PLCCS 2003 Judgments

2003 P L C (C.S.) 191

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

ASLAM PERVAIZ SOOMRO

Versus

SECRETARY, MINISTRY OF INDUSTRIES AND PRODUCTIONS, ISLAMABAD and 5 others

Appeal No. 1004(K) of 1999, decided on 18th July, 2002.

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

--‑Rr.3, 4 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Termination of service on ground of absence from duty‑‑‑Transfer on deputation‑‑­Repatriation‑‑‑Civil servant serving as Junior Officer was transferred on deputation for three years where he remained serving and his monthly contributions/salary etc., were regularly being remitted to parent Department‑‑‑After expiry of period of three years of deputation, borrowing Department passed order of repatriation of civil servant, but soon after that repatriating/relieving order was withdrawn by borrowing Department and civil servant due to withdrawal of relieving order remained serving in borrowing Department—As servant, after expiry of three years of his deputation, could not rejoin parent Department his services were terminates without issuing him show‑cause notice and without making any inquiry front borrowing Department about absence of civil servant despite parent Department had been receiving monthly contribution of extended period‑‑­Repatriation order passed by borrowing Department was within knowledge of parent Department, but order withdrawing repatriation/relieving order was not within its knowledge because it was not communicated to the parent Department‑‑‑Even if order withdrawing repatriation was not communicated by borrowing Department to parent Department, it was duty of civil servant to inform parent Department about it and it was also duty of parent Department to inquire about civil servant when he did not join parent Department‑‑‑Parent Department had acted in unusual hasty manner in terminating services of civil servant straightaway without issuing show‑cause notice and without making inquiry‑‑‑Order terminating services of civil servant, in circumstances, could not sustain and same was set aside with direction to reinstate civil servant in service.

1999 PLC (C.S.) 655; 1996 SCMR 201, 2002 PLC (C.S.) 843: 2001 SCMR 300 and 1998 PLC 500 ref.

Sanaullah Noor Ghouri for Appellant.

Niaz A. Khan for Respondents.

Date of hearing: 11th February, 2002.

2003 P L C (C.S.) 378

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

SHAHID MAHMOOD NADEEM

Versus

CHAIRMAN, PAKISTAN TELEVISION CORPORATION, ISLAMABAD

Appeal No.2(L) of 1999, decided on 15th January, 2003.

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

‑‑‑‑Rr. 3(b), 4(1)(b)(iv), 6 & 7‑‑‑Employees Service Rules, Rr.13, 16 & 14.07‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Termination of service on charge of misconduct‑‑‑First charge against civil servant was that he had given/made false statements, oral and in writing against the employer Corporation and in his interview had made comments tarnishing image and performance of the Corporation in the eyes of public in the country and abroad‑‑‑Civil servant in his reply to said charge‑sheet justified his statements and comments‑‑‑Effect‑‑‑Employee was not only prohibited by Service Rules to make adverse remarks against his employer, but rules of ethics and good governance also required an employee not to make derogatory statements against his Department from where he was earning his bread and butter‑‑‑Image of the employer Institution was definitely damaged when remarks affecting financial and other affairs of the Institution were made by its employee‑‑‑Civil servant took part in inquiry proceeding against him‑‑‑Enquiry Officer; in circumstances, had not committed any illegality or irregularity when he found that civil servant had absolutely no authority and justification to make comments attributed to him in the charge‑sheet‑‑‑Civil servant was also charged with misconduct of his habitual absence without leave‑‑‑Civil servant in the said charge‑sheet neither had submitted his reply thereto nor had joined the subsequent inquiry conducted by other Inquiry Officer‑‑‑Employer Corporation terminated services of civil servant holding that charges against him had been proved and that there was no mitigating circumstance‑‑‑Civil servant had alleged that he had not been supplied copies of inquiry reports; that he had not been given a final show‑cause notice and had also not been provided an opportunity of personal hearing ‑‑‑Validity‑‑­Civil servant having been dismissed from service, impugned order passed against him was not an order of termination simpliciter, civil servant under R.13.16 of Employees Service Rules, was entitled to copies of inquiry reports, a final show‑cause notice and personal hearing‑‑‑Order of termination of civil servant could not be sustained in circumstances‑‑‑Order was set aside with direction to supply copies of inquiry reports to civil servant, to issue final show‑cause notice to him and he should be given an opportunity of personal hearing.

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

‑‑‑‑Ss.3, 4, & 5‑‑‑Service Tribunals (Procedure) Rules, 1974, R.3(2)‑‑­Appeal to Service Tribunal‑‑‑Territorial jurisdiction of Service Tribunal‑‑­Appeal filed by civil servant against order of his termination was resisted on grounds that termination order having been communicated to civil servant in Q where he was posted at the time of his termination, Service Tribunal at L had no territorial jurisdiction to decide the appeal and. that appeal was time­ barred‑‑‑Objection with regard to territorial jurisdiction of Service Tribunal was not valid as S.3 of Service Tribunals Act, 1973 related to establishment of one or more Service Tribunals by the President‑‑‑Section 3 of the Act provided that when more than one Tribunal were established, the President would specify in Notification the class or classes of civil servants in respect of whom or the territorial limits within, or the class or classes of cases in respect of which each such Tribunal would exercise jurisdiction‑‑‑President having not issued any notification specifying territorial limits of Tribunals so constituted, territorial limits of Service Tribunal working at L, had not been specified‑‑‑In absence of said notification Service Tribunal at L would exercise its authority to decide appeal of civil servant notwithstanding the fact that disciplinary proceedings culminating into termination of civil servant had been initiated and finalized during his stay at Q‑‑‑Appeal filed at L was competent and objection of employers Corporation with regard to jurisdiction of Tribunal was repelled‑‑‑Appeal tiled by civil servant, was not barred by time as contended by the Corporation as it was filed within 120 days starting from the date when departmental appeal was filed by him‑‑‑Limitation of 120 days for tiling appeal before Service Tribunal would commence from date of filing of departmental appeal.

1982 SCMR 582 ref.

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

‑‑‑‑Ss.4 & 5‑‑‑Appeal‑‑‑Appeal was a continuation of a suit and Service Tribunal for the purpose of deciding appeal filed under S.4 of Service Tribunal, would be deemed to be a Civil Court and would have same powers as were vested in Civil Courts under Code of Civil Procedure, 1908.

(d) Administration of justice‑‑‑

‑‑‑‑Ignorance of law and rules was never an excuse‑‑‑Order which was not issued or was not notified was not an order in the eye of law.

Hafiz Tariq Nasim for Appellant.

M.R. Shaikh for Respondent.

Date of hearing: 15th January, 2003.

2003 P L C (C. S.) 600

[Federal Service Tribunal]

Present: Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

Mirza MUHAMMAD SHARIF

Versus

CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and others

Appeal No.37(Q)CS of 2001, decided on 17th September, 2002.

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

‑‑‑‑S.12‑‑‑Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, Rr.2(4), 4 & 5‑‑‑Pakistan Water and Power Development Employees Act (XXXI of 1958), Ss.8, 17, 18 & 20­‑‑Dismissal from service‑‑‑Civil servant who was appointed as Junior Engineer (B‑17), earned his next promotion as Executive Engineer (B‑18) and he was awarded Pride of Performance for his professional services rendered to the Authority‑‑‑Civil servant was dismissed from service after conducting enquiries against him by order of Chief Executive Officer on certain allegations‑‑‑Civil servant was dismissed from service after initiation of disciplinary proceedings against him under Pakistan Water and Power Development Authority Employees (Efficiency and Disciplinary) Rules, 1978 at the time when Government Servants Removal from Service (Special Powers) Ordinance, 2000 had already come into the field According to S.12 of the said Ordinance all proceedings initiated commencement of the Ordinance were to be governed by provisions of that law‑‑‑Initiation of disciplinary proceedings against civil servant under Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, was thus unlawful and void ab initio‑‑‑Chief Executive Officer who ordered dismissal of civil servant, was not Competent Authority to make such order as he was only delegated financial and administrative powers of General Manager‑‑‑Powers delegated to Chief Executive Officer at best were meant to enable him to perform day to day routine administrative and financial powers for ensuring smooth and efficient operations of the Company and he was not conferred powers to act as

"Appointing Authority"‑‑‑Chief Executive Officer, in circumstances, could not award major penalty of dismissal from service to an Officer who was recruited by Chairman who was Competent Authority‑‑‑Civil servant was grossly discriminated against as other employees connected with management of Regional Store alongwith civil servant were all exonerated‑‑‑Disciplinary proceedings initiated against civil servant which had culminated into his dismissal, being arbitrary, unjust, discriminatory and incompetent, were of no legal consequence‑‑‑Order of dismissal of civil servant from service was set aside and he was reinstated in service.

PLD 1973 Lah. 188: 1998 PLC (C.S) 664 and 2002 PLC (C.S) ­259 ref.

Sh. Riazul Haq for Appellant.

Zaka Farooq Sheikh with Eid Mah Noor, Assistant Director, QESCO, Thatta as Departmental Representative for Respondents.

Date of hearing: 23rd August, 2002.

2003 P L C (C.S.) 1325

[Federal Service Tribunal]

Before: Akbar M. Memon and Nazar Muhammad Shaikh, Members

MUHAMMAD ASLAM

Versus

MANAGING DIRECTOR, UTILITY STORES. CORPORATION OF PAKISTAN (PVT.) LTD. ISLAMABAD and another

Appeal No. 1747(K) of 1998, decided on 11th June, 2003.

Civil service---

‑‑‑‑Termination of service‑‑‑Appointment letter had clearly indicated that civil servant was appointed on contract basis for a period of one year‑‑‑Civil servant having failed to prove that he was permanently appointed, his services were rightly terminated under terms, and conditions of his contractual appointment and such termination not suffering from any infirmity, could not be interfered with.

Dr. Anwar Ali Sahto's case 2002 PLC (C.S.) 526 ref.

Appellant in person.

Ch. Rashid for Respondents.

Date of hearing: 2nd June, 2003.

2003 P L C (C.S.) 1461

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

SHAMSUZZAMAN and others

Versus

Messrs PAKISTAN STEEL FABRICATING CO. LTD. through Chief Executive, Bin Qasim, Karachi and another

Appeals Nos.211, 239, 254, 256, 258 to 261, 263 to 270, 283, 371 to 377, 380, 381 (K)/CE of 2000, decided on 27th February, 2003.

Civil service---

---- Termination of service---Re-instatement---Services of civil servants were terminated without issuing them show-cause notice or holding inquiry, simply on the ground that their services were no longer required---Said civil servants were not alleged to be disqualified, inefficient or corrupt---Even after so-called closure of establishment, Authorities had appointed so many persons, some on monthly basis and some on daily wages---If Authorities wanted to reduce strength of civil servants for the sake of reorganization or for reducing expenditure of establishment, then after closure of establishment new persons should have not been appointed---Such act of Authorities had shown that work in the establishment was still going on and it was wrong to say that there was total closure of establishment---Civil servants who were terminated on ground of being no longer required, having been targeted by Authorities on pick and choose formula deserved to be reinstated---Order of terminating services of civil servants, were set aside and they were ordered to be reinstated in service.

2002 SCMR 1934; 1999 SCMR 1997 and 2002 PLC (C.S.) 1660 ref.

Ch. Ashraf Khan and Shafiq Qureshi for Appellants.

Zahid Hamid, Dilawar Hussain and Asim Iqbal for Respondents.

Date of hearing: 22nd February, 2003.

2003 P L C (C.S.) 1471

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

RIAZ AHMED SHAIKH and others

Versus

Messrs K.E.S.C. LIMITED and another

Appeals Nos.188(K)(CE) to 191 (K)(CE) of 2000, heard on 1st March, 2003.

(a) Karachi Electric Supply Corporation (Removal from Service) Ordinance (X of 1999) [re-promulgated as Ordinance (XVII of 1999)]---

----S.2(b)---Removal from service---Civil servants were removed from service on allegation of receiving illegal gratification after issuing them show-cause notice and charge-sheeting them, but without holding proper inquiry simply on report of Inquiry Committee---Inquiry Committee had submitted its report prior to issuance of show-cause notice and charge ­sheeting the civil servants---Inquiry Committee, though recorded statements of civil servants, but no witness was examined in their presence nor they were given any chance to cross-examine witnesses---Inquiry, in circumstances, had not been conducted by the Committee in accordance with provisions of law---Order of removal of civil servants was passed with retrospective effect as the same was passed on 13-3-2000 but was made effective from 16-8-1999---Executive order could not be passed with retrospective effect---Some civil servants during that period, got their promotion and also received benefits of such promotion---Such order blatantly violated---Civil servants had also been discriminated as in respect of the same transaction four officials were exonerated after holding fresh inquiry against them and were reinstated in service---Departmental appeal of civil servants was rejected by non-speaking order and without any proper reason---Extreme punishment of removal from service having been awarded without following norms of natural justice, such order was set aside with the direction to the Authorities to reinstate them on same position from which they were removed from service with all benefits, provided civil servants would file affidavits with solid proof that they did not work for gain elsewhere during the period they remained out of service.

1998 SCMR 1178; 1997 SCMR 1552; 1985 SCMR 1158 and Malik Muhammad Tariq v. Agriculture Development Bank of Pakistan Head Office, Islamabad through Chairman 2002 PLC (C.S.) 1480 ref.

(b) Civil service---

----Administrative enquiry---Principles---Administrative Authority must act in good faith; and it was not bound to treat the matter as it' it were a trial or to administer oath or examine witnesses; Administrative Authority could obtain information in any way it thought it, provided it would give a fair opportunity to the person sought to be affected thereby to correct or contradict any relevant statement prejudicial to him; and in order to act justly and to reach just end by just means the Courts would insist that. Authority should adopt the elementary principles of natural justice unless the same had been expresssly excluded.

Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256 ref.

Ch. Rashid Ahmed for Appellants.

Mr. Nadeem and M. Suhail H.K. Rana for Respondents.

Date of hearing: 1st March, 2003.

2003 P L C (C.S.) 1535

[Federal Service Tribunal]

Before: Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

Prof. MUHAMMAD ALI SHAIKH

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and others

Appeal No.36(K)CS of 2001, decided on 26th March, 2003.

Civil Service------

‑‑‑‑Resignation‑‑‑Withdrawal of resignation‑‑‑Civil servant had submitted his resignation from service, but while case of resignation was under process, he had submitted an application for withdrawal of the same two days after submission‑of his resignation which was duly received in the Department‑‑­Resignation of civil servant was accepted by Authority after about one month from submission of application for withdrawal of resignation‑‑‑ESTACODE, Edition (1989) clearly mentioned that in case civil servant would withdraw his resignation before the same was accepted by Competent Authority, resignation would be deemed to have been withdrawn‑‑‑Order whereby resignation of civil servant was accepted by Authority, was not justified and same was set aside‑‑‑Civil servant would be deemed to have continued in service from the date he had) submitted his resignation.

Muhammad Nawaz Shaikh for Appellant.

Niaz Ahmed Khan, Standing Counsel alongwith Shabbir Ahmed, Acting Principal and Shah Muhammad, Admin. Officer, Sindh Madarasat‑ul-­Islam, Karachi, Departmental Representatives.

2003 P L C (C.S.) 1547

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

MUHAMMAD MEHMOOD

Versus

GENERAL MANAGER, UTILITY STORES CORPORATION, ISLAMABAD and another

Appeal No. 700 (L) of 1999, decided on 23rd January, 2003.

Civil service‑‑‑

‑‑‑‑ Dismissal from service‑‑‑Reinstatement‑‑‑Civil servant was dismissed from service on charges of misappropriation of trading stock and remaining absent from duty‑‑‑Civil servant had not denied that 88 tins of ghee were not found in stock at the time of raid, but he had explained that said tins of ghee were sold by him as he was forced to do so by some MPA/MNA‑‑‑Price of said ghee had been deposited by civil servant with the Authority‑‑‑No loss in circumstances had occurred to the Authority‑‑‑Case was not of embezzelment, but at the most it was a case of deviation from rules‑‑‑Penalty of dismissal from service imposed on civil servant was very harsh in circumstances‑‑‑Absence of civil servant from duty was for a very short period and for that too he‑had submitted Medical Certificate‑‑‑If Medical Certificate produced by civil servant was not on prescribed form, it would also be only deviation from prescribed rules‑‑‑Appeal filed against dismissal, which was not time‑barred was accepted to the extent that order of dismissal was converted into reduction of civil servant to the initial stage of his scale for a period of three years and was reinstated in service‑‑‑If civil servant was proved to have worked for gain during period of his suspension he would not be paid any back benefit, but if he was proved to have remained out of job during that period, he would be paid all benefits.

Mian Jaffar Hussain for Appellant.

Date of hearing: 23rd January, 2003.

2003 P L C (C.S.) 11

[Karachi High Court]

Before Zia Perwaz, J

Syed SHAHID RAZA

Versus

OXFORD UNIVERSITY PRESS

Suit No. 140 of 2001, decided on 7th January, 2002.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑O.XXXIX, Rr.1 & 2‑‑‑‑Specific Relief Act (1 of 1877), Ss.21, 42 & 54‑‑Enforcement of Shariah Act (X of 1991), S.4(b)‑‑‑‑Termination of service of employee‑‑‑Suit for declaration, injunction and damages‑‑‑Employee‑plaintiff rough application under O.XXXIX, Rr. 1 & 2, C.P.C., sought suspension operation of letter of termination‑‑‑Validity‑‑‑Neither any statutory law nor any statutory rules governing the services of plaintiff were involved in the case‑‑‑Question of interpretation of law to such extent in view of S.4(b) of Shariah Act, 1991, thus, did not arise‑‑‑While granting interlocutory relief, Court maintains the situation as prevailing at the time of institution of proceedings and does not create a new situation‑‑‑Allowing present application would amount to creating a new situation by grant of' interlocutory relief‑‑‑Application for temporary injunction was dismissed in circumstances.

Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messers Siemen A.G. 1991 PTD 488; Joshph James Gonsalves v. Messers Sono Central Trading Limited 1999 PLD 381; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Tahir Mahmood Rana v. The Tourism Development Corporation of Punjab, Lahore and 2 others 1994 CLC 2004 and Muhammad Ramzan Qureshi v. Federal Government and others PLD 1986 F.S.C. 200 ref.

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

----S.21(a)(b)‑‑‑Master and servant‑‑‑Termination of service‑‑ ‑Remedy of servant stated:

The question of specific performance of contract in case of an employee the criteria for termination and grant of injunction in absence of any statutory provision protecting the savant, it is not possible in law to grant him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his mater. The master is always entitled to say that he is prepared to pay damage for breach of contract of service, but will not accept the services of servant A contract for personal service as will appear from S.21(b) of Specific Relef Act, cannot be specifically enforced. But it is not even necessary to invoke S. 21(b) for such contract unenforceable on account of S.21(a), wherein it is provided that a contract for the non‑performance of which compensation in money is adequate relief, cannot be specifically enforced. In a case, where there is a contract between a master and a servant, the master agreeing to pay the salary and the servant agreeing to render personal service, it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract an give rise to only two reliefs damages or specific performance. If specific performance be barred, the only relief available is damages. When a master in breach of his contract refused to employ servant, the on right survives to servant is the right to damages and a decree or damages is the only decree that can ht granted to him.

Messers Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry PLD 1961 SC 531; R.T.H. Janjua v. National Shipping, corporation. PLD 1974 SC 146; Muhammad Yusuf Shah v. Pakistan International Airlines corporation PLD 1981 SC 224; Shahnawaz Ltd. Khawaja Auto Cars Ltd. PLD 1979 Karachi 38; Qari Yar Muhammad v. Anjuman‑e‑Islamia 1987 SCMR 1776; Messrs Vokervam Pakistan Ltd. and others v. Syed Hamid Hussain 1988 MLD 2067; Ch. Nazir Ahmad and others v. Rana Abdul Hamid and others 1990 CLC 385; Muhammad Raza v. Haji Abdul Ghafer and 6 others PLD 1992 Karachi 17; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Habib Bank Limited and others v. Syed Zia‑ul‑Haq Hassan Kazmi 1998 SCMR 60 and Ms. Zeba Mumtaz v. First Women Bank Ltd. and. others PLD 1999 SC 1106 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑O. XXXIX, R.1‑‑‑Temporary injunction, grant of‑‑‑Scope and extent‑‑ Court while granting interlocutory relief maintains the situation as prevailing at the time a institution of proceedings and does not create a new situation.

Qazi Faiz Isa for Plaintiff.

Munawar Ghani for Defendants.

Date of hearing: 1st June, 2001.

2003 P L C (C. S.) 32

[Karachi High Court]

Before Syed Ali Aslam Jaffery and Syed Zawwar Hussain Jaffery. JJ

Syed, FATEH ALI SHAH

Versus

GOVERNMENT OF SINDH, through Secretary Forest Departmental Sindh Secretariat Karachi and 4 others

Constitutional Petition No.D‑187 of 2002, decided on 9th May, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Arts. 13(a), 199 & 212‑‑‑Constitutional petition ‑‑‑Maintainability‑‑P­rinciple of double jeopardy‑‑‑Terms and conditions of service‑‑‑Recovery of loss caused to Government property‑‑‑Civil servant was compulsorily retired from forest department‑‑‑Authorities ordered recovery of a sum of Rs.278,071 from the civil servant on account of loss caused to the Government by the civil servant during his service‑‑‑Plea raised by the civil servant was that recovery of the amount amounted to vexing him twice for the same offence which violated the provisions of Art. 13(a) of the constitution‑‑‑Authorities objected to the maintainability of the petition on re basis of bar contained in Art.212 of the Constitution ‑‑‑Validity‑‑ although certain remedies were available under Art. 199 of the Constitution of an aggrieved person, yet the same were subject to certain conditions and restrictions‑‑‑Bar contained under Art.212 of the Constitution had categorically ousted the jurisdiction of High Court in respect of any matter to which the jurisdiction of administrative Courts or Tribunals extended‑‑­tatters relating to or arising out of the terms and conditions of service of a civil servant were within exclusive jurisdiction of Service Tribunal‑‑‑Subject­ matter of the petition being a matter relating to terms and conditions of service, High Court declined to interfere with the same in exercise of Constitutional jurisdiction‑‑‑High Court advised the civil servant that he ought approach the Service Tribunal if so advised‑‑‑Constitutional petition .vas dismissed in circumstances.

Government of Punjab v. Sarosh Sultan PLD 1995 SC 541 and Messrs Haroon Brothers v. Drugs Registration Board and another 1992 CLC 017 distinguished.

Abdul Bari v. State PLD 1981 Kar. 280 rel.

Abdul Khaliq Bhutto for Petitioner.

Muhammad Bachal Tonyo Additional A.G for Respondent.

Date of hearing: 9th May, 2002.

2003 P L C (C.S.) 56

[Karachi High Court]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

HABIBUR REHMAN

Versus

DEFENCE SECRETARY OF GOVERNMENT OF SINDH COMMUNICATION and others

High Court Appeal No. 70 of 2001, decided on 19th March, 2002.

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

--‑Ss. 42, 54 & 56‑‑‑Civil Procedure Code (V of 1908), S.9 & O. VII, R.11‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Suit for declaration and injunction ‑‑‑Promotion‑‑Plaintiff (civil servant) being aggrieved with decision of Selection Board for not recommending him for promotion filed suit for declaring such decision to be null and void; that his fitness for promotion be re‑determined in accordance with promotion policy; and as interim relief, respondents be restrained from issuing notification of promotion on the basis of recommendations of Selection Board‑‑‑Trial Court dismissed suit under O.VII, R.11, C.P.C. as being barred by Art.212 of the Constitution‑‑­Contention of plaintiff was that Art.212 of the Constitution did not bar jurisdiction of Civil Court in all matters relating to terms and conditions of civil servant, but only to such matters to which jurisdiction of Service Tribunal established under Art.212(1) of the Constitution was extended‑‑­Validity‑‑‑Findings of Trial Court were correct to the extent that question of following a particular promotion policy might be a matter germane to terms and conditions of service‑‑‑Such fact itself would not be sufficient to attract application of Art.212 of the Constitution and there was great deal of force in contention of plaintiff‑‑‑Service Tribunal was debarred by virtue of proviso (b) to SA(1) of Sindh Service Tribunals Act, 1973 from entertaining appeals against determination of fitness to be promoted‑‑‑Findings of Trial Court that plaintiff had remedy before Service Tribunal and suit was barred by Art. 212 of the Constitution was, thus, not sustainable Plaintiff could not Claim a vested right to be promoted, thus, he might not be entitled to a declaration as regards his legal character or right to property under S.42 of specific Relief Act, 1877‑‑‑Plaintiff under S.54 of Specific Relief Act, 1877 could always apply for a perpetual injunction to prevent breach of an obligation existing in his favour‑‑‑If plaintiff was not entitled to any declaratory relief, an injunction could always be granted to prevent breach of ;n obligation on the part of respondents‑‑‑Main fact that plaintiff had not asked for an injunction as independent relief, but had only sought the same y way of consequential relief to declaration prayed for would be of little consequence‑‑‑Present controversy was outside the purview of jurisdiction of service Tribunal ‑‑‑Mala fide order or an order in defiance of the obligations of respondents could always be questioned through a civil suit for injunction‑‑‑High Court accepted appeal and remanded case for its decision in accordance with law.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and 1uhammad Ilyas Hussain v. Cantonment Board Rawalpindi PLD 1976 SC 785 fol.

Irqan Ahmed Khurram v. Government of Pakistan PLD 1980 SC 153; Abdul Hasib v. Muhammad Anis PLD 1994 SC 532; Mian Abdul Malik v. Dr. Sabir Zamir Siddiqui and others 1991 SCMR 1129; Bashir Ahmed v. District Judge Gujranwala 1983 PLC (C.S.) 652 and Syed Muhammad Afzal Farooque v. Secretary Establishment Division 1998 PLC S.) 1175 ref.

(b) Practice and procedure‑‑‑

----Government is required to act fairly and honestly and in accordance with ,v with respect to rights of and its duties towards citizens irrespective of the question whether a particular person has an enforceable legal right in the strict sense.

Shaukat Ali and others v. Government of Pakistan PLD 1997 SC 342 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

----S. 9‑‑‑Specific Relief Act (I of 1877), Ss.54 & 56‑‑‑Sindh Service Tribunals Act (XV of 1973), SA(1), proviso (b)‑‑‑Jurisdiction of Civil Court‑‑‑Scope‑‑‑Question of fitness of a civil servant to‑ be promoted‑‑­Determination‑‑‑Civil Court cannot substitute its opinion for that of Competent Authority as there is always an element of subjective evaluation, which is neither justiciable before Service Tribunal nor before a Court‑‑‑Such subjective evaluation is to be based on an objective criteria‑‑‑Whenever competent Authorities in undertaking such exercise of evaluation act with malice or on whims and caprices or on criterion not prescribed by law Civil Court may well be entitled to interfere and enforce obligations through a perpetual injunction, which may even be in mandatory form.

M.M. Aqil for Appellant.

Suleman Habibullah, Addl. A.‑G. for Respondents Nos. 1 to 3.

Shabir Ahmed Awan for Respondents Nos.4 to 6.

Date of hearing: 5th March, 2002.

2003 P L C (C.S.) 145

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Zia Perwez, J

AIRLEAGUE OF PIA EMPLOYEES, UNION and another

Versus

FEDERATION OF PAKISTAN/THE PRESIDENT/ CHIEF EXECUTIVE and another

Constitutional Petitions Nos.D‑1574 and D‑2024 of 2001, decided on 29th March, 2002.

(a) Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order [Chief Executive's Order 6 of 2001]---

‑‑‑Preamble, Arts. 1, 2, 3, 4 & 5‑‑‑Provisional Constitution Order (I of (999), Premable, Arts.2(3) & 6‑‑‑Proclamation of Emergency by Chief executive of Pakistan dated 14‑10‑1999‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.1(3), 2(xxviii) & 22‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(a) & Sched.‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Constitution Of Pakistan (1973), Arts. 17 & 199‑‑‑Constitutional petition‑‑‑Promulgation 4 Chief Executive's Order 6 of 2001‑‑‑Suspension of trade unions activities ad agreements arrived at between unions and Corporation as a result of ,eating obstacles. hurdles, problems in smooth and orderly running and functioning of Corporation‑‑‑Contention of petitioners was that impugned order No.6 of 2001 was in violation of the mandate given by Supreme Court Syed Zafar Ali Shah's case (PLD 2000 SC 869)‑‑‑Validity‑‑‑Petitioners td not challenged authority of President/Chief Executive to promulgate legislative measures in view of suspension of National Assembly and Senate subsequent dissolution thereof‑‑‑Power of Parliament were exercisable by President/Chief Executive‑‑‑Impugned Order could not be said to be in excess of powers in view of the provisions of Proclamation of Emergency, Provisional Constitution Order, 1999 and authority/powers exercisable by him for achieving the declared objectives/goals embodied in cl. 6(a), (b), (c) of judgment of Supreme Court (PLD 2000 SC 869)‑‑‑Impugned Order had not amended/modified, superseded or repealed any law‑ nor provisions thereof were contradictory or violative of any provisions of the Constitution, Industrial Relations Ordinance, 1969, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Service Tribunals .Act. 1973‑‑‑Provision of Art.6 of Provisional Constitution Order, 1999, was sufficient to hold that country was in the state of emergency at the time, when impugned Order was made by President/Chief Executive‑‑­Articles 2 & 4 of impugned Order related to giving effect to such declared objectives, thus, same could not be said to be redundant or surplusage, which should be considered as integral part of the Order and were to be given the meanings appearing from plain reading thereof‑‑‑Impugned Order was in exercise of the powers conferred by Supreme Court as well as such authority would be derivable from Provisional Constitution Order, 1999‑‑‑High Court dismissed Constitutional petitions being without any force.

Syed Zafar Ali Shah and others v. General Pervaz Musharraf. Chief Executive of Pakistan and others PLD 2000 SC 869; Mohatrama Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Civil Aviation Authority, Islamabad and' others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Madan Mohan Pathak and another v. Union of India and others, (1978) 2 SCC 50 and Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(b) Interpretation of statutes‑‑‑--

‑‑‑‑ Power of Legislature to legislate‑‑‑Scope‑‑‑Power of Court to strike down a law‑‑‑Scope and limitations‑‑‑ Legislature was competent to legislate retrospectively and retroactively and take away a vested right by express words or necessary intendment ‑‑‑Courts would not hold such a legislation as ineffective and strike down same‑‑‑Before striking down a law as being opposed to Constitutional provisions, one would have to establish specifically violation of Constitutional provisions, in absence whereof it could not be said that law was bad merely because same violated some principle of justice and fair play.

Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 fol.

(c) Interpretation of statutes‑‑‑‑

‑‑‑ Motive or policy of Legislature‑‑‑Duty of Court‑‑‑Scope‑‑‑Courts not to question motives or policy of Legislature or refuse to give effect to a statute merely because same appeared to be harsh or unreasonable or vindictive.

The Province Punjab v. Malik Khizar Hayat Khan PLD 1956 FC 200 fol.

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

‑‑‑‑Art.25‑‑‑Expression "equal protection of law" ‑‑‑Connotation and scope.

Article 25 of the Constitution permits reasonable discrimination. It guarantees equal protection of law, which means that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and liabilities imposed. It does not mean that all citizens shall be treated alike under all sets of circumstances and conditions, both in respect of privileges conferred and liabilities imposed. By the expression "equal protection of law", it is envisaged that no person or class of persons would be denied the same protection of law, which is enjoyed by person or class of persons placed in like circumstances in respect of their life, liberty, property or pursuit of happiness. This expression does not provide that every citizen is to be treated alike in all circumstances, but permits reasonable classification founded on reasonable distinction or basis.

Pakistan Burmah Shell Limited and another v. Federation of Pakistan and 3 others 1998 PTD 1804 fol.

(e) Islamic jurisprudence‑‑

‑‑‑‑ Contract/agreement‑‑‑Obligation of party to perform acts thereunder‑‑­Essential‑‑‑Agreements entered into between parties are to be honoured by executing parties, who would be under an obligation to perform all acts to give effect to contract/agreement‑‑‑Such would be the case, when it could be established that agreement/contract was arrived at, wig free‑will of contracting parties without application of pressure, undue influence or coercion by any of them, so as to force into submission the other party for agreeing to demands privileges and benefits, which otherwise it would not agree to. [Contract Act (IX of 1872), Ss. 10, 13, 14, 15 & 16.

(f) Interpretation of statutes‑‑‑‑‑‑

----Legislature is competent to amend an earlier Act or declare its meaning by enacting a new Act‑‑‑Legislature while doing so was competent to declare a meaning which is not consistent or is in deviation of plain language of earlier Act‑‑‑A later statute declaring a meaning of an earlier Act operates directly by its own force and not merely as an aid to construction of earlier statute‑‑‑Legislature is competent to incorporate an earlier Act or certain provisions thereof in a later Act‑‑‑When such is done, then provisions so incorporated become part and parcel of later Act.

(g) Interpretation of statutes‑‑‑

‑‑‑‑ Incorporation of former Act or some of its provisions/clauses into a subsequent Act either by reference or. reproduction‑‑ ‑Legal effect of such incorporation‑‑‑Repeal or amendment in former Act‑‑‑Effect on subsequent Act‑‑‑Statute incorporating provisions of former Act‑‑‑Judging validity of such statute‑‑Criteria.

Incorporation of an earlier Act into a later Act is a legislative device adopted for sake of convenience in order to avoid verbatim reproduction of the provisions of earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become pan and parcel of later Act as if they had been "bodily transposed into it". If a subsequent Act brings into itself by reference some of the clauses of former Act, the legal effect of that is to write those sections into the new Act as if they had been actually written in it with the pen or printed in it. The result is to constitute the later Act alongwith the incorporated provision of earlier Act, an independent legislation, which is not modified or repealed by a modification or repeal of earlier Act.

Where a single section of an Act is reproduced into another statute, then it has to be read in the sense, which it bore in original Act and from which same was taken. Where a subsequent Act. incorporated provision of a previous Act, then the borrowed provision would become an integral and independent pan of subsequent Act and would be totally unaffected by any repeal or amendment in previous Act.

The validity of a statute, which incorporates the provisions of an earlier Act, is to be judged with reference to powers of Legislature enacting the fresh statute and not with reference to the powers of Legislature enacting the original legislation.

Principles of Statutory Interpretation Fourth Edition 1988, p.174; N.S. Bindra Interpretation Statutes Eight Edition 1997, on page 276 and State of Kerala v. M/s. Attesee Agra Industrial 'trading Corporation AIR 1989 SC 222 rel.

(h) Interpretation of statutes‑

‑‑‑‑ Duty of Court to so construe a statute that no part of same is to be rendered void and nugatory‑ ‑‑Effect must be given, if possible, to all the words used in statutory provision, for Legislature is deemed not to waste its words and same should not be regarded as surplusage ‑‑‑Every Act or part of an Act not to be ignored or treated as being meaningless, rather same must be construed as having some operating results.

(i) Interpretation of Statutes‑‑‑-

‑‑‑‑Intra vires or ultra vires statutes‑‑‑Presumption and rebuttal ,thereof‑‑­General presumption is in favour of constitutionality of an enactment‑‑­Burden upon person, who attacks such presumption, to show that there has been a transgression of Constitutional principles.

Pakistan Burmah Shell Limited and another v. Federation of Pakistan and 3 others 1998 PTD 1804 rel.

(j) Interpretation of statutes‑‑‑--

‑‑‑‑ Words used in a statute‑‑‑Presumption of law is that each and every clause of statute has been inserted for some useful purpose‑ ‑‑Statute must be read as a whole to ascertain both its intent and general purpose and also the meaning of each part‑‑‑No word or clause should ordinary be rejected as superfluous‑­Rule of interpretation does not permit to treat words or clause as redundant, unless reading them in the statute would lead to absurdity‑‑‑No provisions of Act should be rendered totally ineffective as a result of interpretation‑‑­Statute is always allowed the privilege of using words not absolutely necessary.

Income Tax Commissioner v. Pemsel 1891 AC 532 and Auchterader of Presbytery v. Lord Kinnoull 6 CL & F 646, 686 rel.

M. L Shahani for Petitioners (in C. P. No. D‑1574 of 2001).

Farough Naseem for Petitioners (in C.P. No.D‑2024 of 2001).

Syed Zaki Muhammad Dy. A.‑G. for Respondents.

Javed Altaf for Respondent.

Date of hearing: 15th February, 2002.

2003 P L C (C.S.) 226

[Karachi High Court]

Before Mushir Alam, J

MAQSOOD ALI KHAN

Versus

NATIONAL BANK OF PAKISTAN through President, Head Office, I.I. Chundrigar Road, Karachi and 3 others

Suit No. 1438 of 2001, heard on 29th October, 2001.

(a) Jurisdiction‑‑‑

‑‑‑‑ Objection to jurisdiction of Court‑‑‑Effect‑‑‑Once challenge is thrown on Court, as to its jurisdiction, then it is incumbent on the Court to decide such question in the first instance before proceeding further on merits‑‑‑Where the Court comes to a conclusion that it has no jurisdcition, then it must abstain from proceeding any further or to embark on merits of the case.

Asadullah Rashid v. Muhammad Munir 1998 SCMR 2129 ref.

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

‑‑Art.212‑‑‑Jurisdiction of High Court‑‑‑Plea that Service Tribunal was non‑functional‑‑‑Propriety and validity‑‑‑Occasional non‑convening of Bench of Service Tribunal for a short period, neither rendered Service Tribunal non‑functional nor such eventuality conferred any jurisdiction on High Court in respect of matter which exclusively fell within the domain of Service Tribunal‑‑‑High Court deprecated the practice of rushing to High Court for interim order during such intervening period when the Bench of the Service Tribunal was not sitting at principal seat.

(c) Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Service Tribunals Act (LXX of 1973), S. 2-A‑‑‑Civil service‑‑‑Suit for declaration‑‑­Civil Court, jurisdiction of‑‑‑Plaintiff being employee: of a Bank was issued with a show‑cause notice‑‑‑Instead of joining the inquiry, the matter was assailed before High Court in a declaratory suit‑‑‑Validity‑‑‑Result of departmental inquiry was subject to issuance of final. show‑cause notice and the plaintiff would be entitled to contest and defend the outcome of such final show‑cause notice and charge‑sheet‑‑‑Where order passed in departmental proceedings was subject to departmental remedy and such outcome way further subject to judicial scrutiny by Service Tribunal, jurisdiction of High Court was ousted in such matter‑‑‑Suit being barred under Art. 212 of the Constitution read with S.2‑A of the Service Tribunals Act, 1973, plaint was rejected in circumstances.

Mian Abdul Majid and 7 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1972 Kar. 66; Muhammad Afzal Khan v. Karachi Development Authority and 6 others PLD 1984 Kar. 114; United Bank Ltd. v. Messrs Akbar Agencies Ltd. PLD 1987 Kar. 81; S.M. Ismail Naqvi v. Federation of Pakistan 2000 PLC 1135; Shagufta Begum v. The Income‑Tax Officer; Circle‑XI, Zone‑B, Lahore PLD 1989 SC 360; ' Dr. Muhammad Rashir Chaudhry v. Chairman, Sheikh Zayed Hospital and 3 others 2000 PLC (C.S.); Dr. Muhammad Rashid Chaudhry v. Chairman, Sheikh Zayed Hospital and another 2000 PLC (C.S.) 1093; Khalid Mehmood Vatoo v. Government of Punjab 1998 SCMR 2280 and Asadullah Rashid v. Muhammad Munir 1998 SCMR 2129 ref.

United Trading Society v. Federation of Pakistan Suit No.1080 of 2000 distinguished.

Khalid Jawed Khan for Plaintiff.

Raja Qureshi for Defendant.

Date of hearing: 29th October, 2001.

2003 P L C (C.S.) 304

[Karachi High Court]

Before Sabihuddin Ahmed and S.Ali Aslam Jafri, JJ

AYAZ MUHAMMAD KHAN and others

Versus

PROVINCE OF SINDH and others

C. P. D. No. 1922 of 2001, decided on 19th October, 2001.

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Once it was conceded that the terms of Notification with regard to filling up vacancies and fixation of quota for urban and rural areas were part of law, selection of candidates could only be made according to law and ignorance of law on part of candidates could not give rise to any legal right or even legitimate expectation‑‑‑Direction to submit permanent residence certificates in advertisement itself indicated that said term of notification would be followed‑‑‑Once law required that selection of candidate had to be made according to a method laid down in the notification, it could not be assumed under any circumstances that Authority, however, high or low could be possessed of an implied power to exclude application of mandate of law by omitting to mention the fact that such law would be followed in effecting appointments‑‑‑No estoppel against law‑‑­Contention that in absence of a clear stipulation in the advertisement, candidates were entitled to assume that selection could be made on the basis of open merits and that there was no justification for applying terms of notification viz. permanent residence certificate was repelled, in circumstances.

Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Mushtaque Ahmed Mohal v. The Honourable Lahore High Court 1997 SCMR 1043 and Al‑Jihad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

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

‑‑‑‑Art. 27(1), first proviso‑‑‑Civil service‑‑‑Appointment‑‑‑Article 27 (1) of Constitution of Pakistan (1973) had guaranteed a fundamental right to the effect that no citizen otherwise qualified for appointment in service of Pakistan would be discriminated against in respect of such appointment on ground only of race, religion, caste, residence or place of birth‑‑‑First proviso to Art.27(1) of the Constitution, however, initially had stipulated that for a period of not exceeding 10 years from commencing day, posts could be reserved for persons belonging to any class or area to secure their adequate representation in service of Pakistan‑‑‑Said period of 10 years was subsequently extended up to 20 years and after expiry of extended period of 20 years same was extended to 40 years which means up to 14‑8‑2013.

Mushtaque Ahmed Mohal v. Lahore High Court 1997 SCMR 1043 ref.

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

‑‑‑‑Arts. 23, 25 & 27‑‑‑Civil service‑‑‑Appointment‑‑‑Discrimination in appointment‑‑‑Because of uneven economic development and lack of appropriate educational facilities in certain parts of country, residents of those areas came to be so handicapped that they were unable to compete with their more fortunate counterparts in the developed areas on the basis of straight open competition‑‑‑Relatively poorer performance of such candidates in examination did not reflect any inherent lack of intelligence or capabilities, but reflected only absence of facilities available to them, which could harass their talent‑‑‑To attain objective of genuine equality of opportunities rather than mere nominal equality in accordance with true spirit of Islam, Constitution‑makers stipulated enabling provisions to undertake affirmative action for benefit of' under‑privileged people‑‑‑While Art. 22(3) of Constitution had forbidden discrimination in admission to State‑aided educational institution on grounds of race, religion, or place of birth Article 22(4) of said Article had enabled public Authority to make provisions for advancement of my socially or educationally backward class of citizens.

Pardeep Jain v. Union of India AIR 1984 SC 1420; Attiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 and Miss Gul Rookh Sarfaraz v. Government of N.‑W.F.P. 2001 SCMR 1729 ref.

(d) Civil service‑‑‑

‑‑‑‑ Appointment of Judges of subordinate judiciary‑‑‑Criterion fur appointment‑‑‑Merits, no doubt, should be the only criterion in appointment of Judges of Courts, but mere number of marks secured by a candidate in written test and in interview could not be treated as sole criterion of his merit and the attributes that he possessed for being able to perform onerous duties of a Judge‑‑‑Mere knowledge of law or ability to answer questions put to a particular person with a reasonable amount of confidence, could not reflect several qualities, which a Judge ought to possess‑ ‑‑Candidate at the threshold of his career who did not perform as well as his other colleagues in an examination owing to insufficiency of proper educational facilities, could not be dubbed as less meritorious‑‑ ‑Mere grant of some weightage to persons who had not the opportunities to demonstrate their true talent, could not he treated as some thing repugnant to concept of merit.

Al‑Jihad Trust v. Federation of Pakistan PLD 1996 SC 324; Attiya Bibi Khan v: Federation of Pakistan 2001 SCMR 1161 and Miss Gul Rookh Sarfaraz v. Government of N.‑W. F.P. 2001 SCMR 1729 ref.

(e) Civil service‑‑‑-

‑‑‑‑ Appointment of Judges of subordinate judiciary‑‑‑Notification whereby vacancies for. recruitment in urban and rural areas were allocated, reservations therein were not stipulated in absolute or mandatory terms, but merely were guildines which were declared to be `advisable' to be followed‑‑‑Normally through 40% and 60% ratio of urban and rural areas was to be maintained, a departure could be justified in case requisite number of candidates from particular group were unable to meet .a minimum threshold of qualifying marks which could be determined by Selection Authority or if disparity between marks obtained by a candidate not qualifying for selection from one group and another selected from other group was too high.

Haseeb‑ur‑Rehman for Petitioners.

Raja Qureshi for Respondents.

Manzoor Ali Khan: Amicus curiae.

Date of hearing: 19th October, 2001.

2003 P L C (C.S.) 587

[Karachi High Court]

Before Zahid Kurban Alavi and Sarmad Jalal Osmany, JJ

IRSHAD ALI KHAN DEHELVI and others

Versus

THE REGISTRAR, HIGH COURT OF SINDH and others

Civil Petition No.2357 of 1996, heard on 28th August, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Civil service ‑‑‑Appointment‑‑‑Age‑­Condonation of age limit‑‑‑Civil servants who had challenged the appointment of respondents, without touching the merits, had sought relief from the High Court to the extent that they could be allowed to apply for the posts of Judicial Magistrates/Civil Judges when such posts would become available‑‑‑Contention of the petitioners was that they had been pursuing the Constitutional petition since 1996 and same having not been disposed of due to no fault of theirs, bar of their age had come in between them for any future appointment‑‑‑Petitioners had requested that High Court could consider question of condoning the age limit in circumstances‑‑‑Respondents had no objection to the prayer, but State Counsel had pointed out that there was no baron petitioners on applying afresh for the new posts that had been advertised from time to time‑‑‑High Court, however, refused to condone bar of age as it was Competent Authority which was to decide that issue‑‑‑High Court disposed of the Constitutional petition with observations that Competent Authority could keep in mind such aspect while processing any application moved by petitioners‑‑‑High Court also recommended that a lenient view could be taken against the petitioners while deciding issue of condonation of age.

Naimur Rehman for Petitioners.

Abbas Ali, A.A.‑G.

Syed Azmatullah for Respondent No.5.

Shamsuddin Khalid for Respondent Nos.6 an4 8.

Ansar Abdul Latif for Respondent Nos. 12, 15, 26, 45, 61, 67, 69 and 89.

Partab Rai for Respondent Nos. 13 and 85.

K.B. Bhutto for Respondent No.27.

A.D. Hotwani for Respondent Nos. 88, 90 and 91.

Habibur Rehman for most of the Respondents.

Date of hearing: 28th August, 2002.

2003 P L C (C.S.) 592

[Karachi High Court]

Before Syed Ali Aslam Jafri and Syed Zawar Hussain Jafri, JJ

ALI BAKHSH

Versus

GOVERNMENT OF SINDH through Secretary, Forest Department, Karachi and others

Constitutional Petition No.D‑186 of 2002, decided on 9th May, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199 & 212‑‑‑Civil service‑‑‑Compulsory retirement‑‑‑Constitutional petition, maintainability of‑‑‑Petitioner who was a civil servant was retired compulsorily from service with an order to recover from him the amount of loss allegedly caused by him to the Government‑‑‑Petitioner in the Constitutional petition had not called in question order of his compulsorily retirement, but had challenged direction order to pay amount of alleged loss, alleging that same was without any authority and jurisdiction and was a mala fide act on the part of Authority‑‑‑Validity‑‑‑No doubt under Art.199 of Constitution of Pakistan (1973), Certain remedies to an aggrieved person were available, but same were subject to certain conditions and restrictions as laid down in the said Article itself‑‑‑Bar contained under Art. 212 of Constitution of Pakistan, (1973) had specifically and categorically ousted jurisdiction of High Court in respect of any matter to which jurisdiction of Administrative Courts or Tribunal extended‑‑‑Matters relating to or arising out of terms and conditions of service of a civil servant would fall within exclusive jurisdiction of a Service Tribunal‑‑‑Matter in dispute being related to terms and conditions of service of petitioner, Constitutional petition was dismissed‑‑‑Petitioner could, however, approach the competent Forum/Tribunal.

Government of Punjab v. Sarosh Sultan PLD 1995 SC 541: Messrs Haroon Brothers v. Drugs Registration Board and another 1992 CLC 1017 and Abdul Bari v. State PLD 1981 Kar. 290 ref.

Abdul Khaliq Bhutto for Petitioner.

Muhammad Bachal Tonyo, Addl. A.‑G. for Respondents.

Date of hearing: 9th May, 2002.

2003 P L C (C.S.) 989

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

ABDUL GHANI

Versus

PAKISTAN STEEL MILLS CORPORATION LTD. and another

Civil Revision Application No.57 of 2002, decided on 20th September, 2002.

Civil Procedure Code (V of 1908)---

----O.VII, R. 11---Service Tribunals Act (LXX of 1973), Ss. 2(a), 2-A & 4--­Civil Servants Act (LXXI of 1973), S.2(b)---Rejection of plaint---Suit for recovery of gratuity amount---Trial Court rejected plaint on the ground that plain-tiff was a civil servant, thus, jurisdiction of Civil Court was barred--­Appellate Court upheld such order---Validity---Plaintiff had served Employer Corporation up to year 1998---Section 2-A had been added in Service Tribunals Act, 1973 in year 1997, thus, plaintiff was governed by the said provisions---For purpose of availing benefit under Service Tribunals Act, 1973, a person who is or has been a civil servant within meaning of Civil Servants Act, 1973 and a person ,declared to be civil servant under S.2-A of Service -Tribunals Act, 1973, has been made civil servant--­Plaintiff after retirement had not ceased to be civil servant---No illegality or irregularity in impugned judgment/decree was found---High Court dismissed revision petition in circumstances.

Ahmad Yar Chowhan v. Federal Public Service Commission NLR 1999 Service 67; Moeen-ud-Din Khan v. Gomal University, D.I. Khan 2001 PLC (C.S.) 915; General Manager, Optical Fibre System v. Abdul Rasheed Khan, Member, NIRC 2000 PLC (C.S.) 180; Syed Aftab Ahmad and others v. KESC and others 1999 SCMR 197; Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826 and Kot Addu Power Company Limited v. Muhammad Bashir 2001 SCMR 1898 ref.

Ashraf Hussain for Applicant.

S. Amanullah Agha for Respondents.

Date of hearing: 30th August, 2002.

2003 P L C (C.S) 1074

[Sindh High Court]

Before Muhammad Roshan Essani and Anwar Zaheer Jamali, JJ

Sheikh KARIMUR RAHIM

Versus

GOVERNMENT OF PAKISTAN and others

Civil Petition No. 1869 of 1996, decided on 6th March, 2003.

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Dismissal from service under M.L.R. 58 w.e.f. 28-4-1970--­Existence of adequate and efficacious alternate remedy---Effect---Civil servant, in the present case, had failed to avail such remedy without any reason whatsoever---Non-availing of such remedy before the Service Tribunal which was available as far back as 1973, was fatal to the case of civil servant as the factual controversy involved in the matter as to whether the proceedings before the Military Tribunal under M.L.R. 58 were in violation of principles of natural justice and due opportunity of hearing was not afforded to the civil servant or whether the action taken by the Authorities, which ultimately resulted in civil servant's dismissal from service was mala fide, arbitrary and illegal could not be examined by the High Court in exercise of its jurisdiction under Art. 199 of the Constitution at such a belated stage i.e. after more than three decades---Non-availing of remedy before the Service Tribunal by the civil servant and in view of S.4, Service Tribunals Act, 1973 and bar of Art. 212 of the Constitution so also the laches, strengthened the plea of non-availability of the Constitutional petition---High Court, while considering the question of grant of relief to petitioner under Art. 199 of the Constitution could not remain oblivious of changed circumstances and subsequent developments which may not justify grant of such discretionary relief to the petitioner at a belated stage.

Muhammad Ibrahim Parekh v. The Islamic Republic of Pakistan C.P. No.D-312 of 1995 applied.

S.A. Rizvi v. Islamic Republic of Pakistan and 2 others 1991 MLD 1834 and W.P. No.8593 of 1995 ref.

Habibur Rehman for Petitioner.

Syed Tariq Ali for Respondents.

2003 P L C (C.S.) 1110

[Sindh High Court]

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

MUSHTAQ HUSSAIN SOOMRO

Versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.D-1901 of 2000, decided on 7th March, 2002.

(a) Civil Service---

----Promotion---Civil servant who had challenged Notification relating to promotion to the post of Inspector, at the time of enforcement of Notification was holding the post of Assistant Inspector---Civil servant could have no locus standi to challenge rules framed for purpose of promotion to a higher post as promotion of a civil servant to a higher post was not a vested right--­Only right which civil servant could claim, was to be considered for promotion to a higher post.

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

----Arts.199 & 212---Civil service---Constitutional jurisdiction, exercise of--­Notification challenged by petitioner in Constitutional petition had laid down terms and conditions of recruitment and promotion of the civil servants which related to terms and conditions of service---Petitioner, in circumstances, was precluded from invoking jurisdiction of High Court under Art.199 of Constitution of Pakistan (1973) in view of provisions of Art. 212 of Constitution of Pakistan (1973).

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Aurban Ali Kalwar and 38 others v. S.S.P., Ghotki and 38 others PLJ 1999 Kar. 154 and Government of N.-W.F.P. Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal 1990 SCMR 1321 ref.

(c) Civil service---

----Appointment---Promotion---Appointment or promotion of a civil servant was to be governed by rules applicable and conditions required to be satisfied on date of. appointment or promotion and not on the basis of earlier requirements---Rules applicable and conditions required to be satisfied on date of appointment, were to be taken into consideration and not what were required at earlier date.

(d) Civil service---

----Promotion---Question of fitness for promotion---Authority competent to determine---Question of fitness for promotion pertained to competency of civil servant concerned for promotion which was to be decided by Competent Authority---Question of fitness for promotion was a subjective evaluation on basis of objective criteria and opinion formed by a Competent Authority could not be interfered with by Service Tribunal or by a Court.

Muhammad Nawaz Shaikh for Petitioner.

Ch. Rasheed for Respondents Nos.4 and 5.

Sarwar Khan, A.A.-G. for the Official Respondents.

2003 P L C (C.S.) 1150

[Karachi High Court]

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

ABDUL KHALIQUE

Versus

UNIVERSITY OF KARACHI through Vice-Chancellor/Registrar and 4 others

Civil Petition No.D-969 of 1999, decided on 20th January, 2000.

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

----Art.199---Constitutional petition---Civil service---Petitioner was selected by the Selection Board but was not appointed by the Appointing Authority--­Petitioner through Constitutional petition prayed that he be appointed as "selected" by the Selection Board which was dismissed by the High Court on the ground that on mere selection by the Board no vested right was created in favour of the petitioner having not been appointed by the appointing Authority and no letter of appointment had been issued to him---Such view of the High Court was approved by the Supreme Court on appeal--­Department, on directions of the Supreme Court, readvertised the posts and appointed the respondents---Petitioner impugned their appointment in the present petition on the ground that he having been recommended and selected by the Board and being a superior candidate in education, experience and on merits as compared, to the respondents, be appointed---Appointment of respondents was assailed and sought to be declared as illegal---Validity---Mere selection by the Selection Board would not confer any right upon the petitioner, petitioner could not be deemed to have been appointed in view of Supreme Court's order---Constitutional petition was dismissed by the High Court.

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

----Art.199---Constitutional petition---Disputed question of fact---Petitioner had prayed for declaration that he was more qualified than the others---Such being a disputed fact could not be resolved while exercising jurisdiction under Art. 199 of Constitution.

Taza Gul Khattak for Petitioner.

K. Nadeem Azhar for Respondents Nos. 1 to 3.

Ikram Siddiqui for Respondent No.4.

Date of hearing: 16th November, 1999.

2003 P L C (C.S.) 1249

[Karachi High Court]

Before Wahid Bux Brohi and Muhammad Mujeebullah Siddiqui, JJ

BASHIR AHMED

Versus

GOVERNMENT OF SINDH through Secretary, Home Department and 3 others

Constitutional Petition No.D-12 of 2003, decided on 8th May, 2003.

Sindh Prisons Department (Efficiency and Discipline) Rules, 1999---

----R.4(b)(v)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Speaking order--­Failure to give reasons in the order, of dismissal from service---Civil servant was serving as OG-Warder in District Jail and on account of escape of one prisoner, show-cause notice was issued to him for the act of negligence and carelessness in performing duties---Reply of show-cause notice filed by the civil servant was held to be unsatisfactory and the Authorities dismissed him under the' provisions of R.4(b)(v) of Sindh Prisons Department (Efficiency and Discipline) Rules, 1999---Plea raised by the civil servant was that the Authorities had not given any reason in the order of dismissal and the order was not a speaking order---Validity---Recording of reasons for dismissal of a civil servant was a legal requirement under S.24-A, General Clauses Act, 1897 and by not recording reasons Authorities had violated the established law---High Court remanded the case to the Authorities to pass fresh order in accordance with law.

Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330 ref.

Ahmed Ali Shaikh for Petitioner.

Muhammad Bachal Tunio, Learned Addl. A.-G. for Respondents.

2003 P L C (C.S.) 1252

[Karachi High Court]

Present: Abdul Ghani Shaikh, Chairman and Yousuf Ali Mirza, Member-I

MUHAMMAD ARIF SIDDIQUI

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and another

Appeal No. 224 of 1999, decided on 21st April, 2003.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3, 4 (b)(ii) & 5(4)(b)---Sindh Service Tribunals Act (XV of 1973), S.4---Awarding of major penalty of compulsory retirement---Penalty of compulsory retirement was awarded on civil servant after charge-sheeting him and holding enquiry against him on the allegation that while working as Administrator, Works Co-operative Housing Society, had made certain bogus and double allotments of plots of the Society---Approval of Competent Authority under R.5(4)(b) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 was a condition precedent for awarding major penalty to a civil servant---Advisor to Chief Minister for Cooperation delegated with powers of Minister in the present case had acted as competent authority who accorded the said approval---Very appointment of Advisor to Chief Minister being in violation of the Constitution, was declared as invalid and without lawful authority by the High Court in the case reported as PLD 2000 Karachi 333 and orders passed by said Advisor were also declared as being without lawful authority and of no legal effect---Approval for awarding major penalty of compulsory retirement to civil servant by said Advisor in capacity of Competent Authority was without lawful authority and coram non judice---Departmental appeal addressed to Chief Secretary, should have been forwarded to Chief Minister because major penalty to civil servant was awarded with approval of Minister, but same was decided by Chief Secretary whose status was below the status of Minister ---Order passed on departmental appeal by Chief Secretary was also without lawful authority and coram non judice---Both orders passed by incompetent Authorities were set aside by Service Tribunal in appeal as being unjust, unwarranted and of no legal consequences.

2001 YLR 304; 1991 PLC (C.S.) 444 and Ahmed Yosuf Ali Rizvi and others v. Munawar Ali Butt and others PLD 2000 Kar. 333 ref.

Muhammad Arif Lateef for Appellant.

Ch. Muhammad Iqbal, A.A.-G. for the Official Respondents.

Date of hearing: 22nd November, 2002.

2003 P L C (C.S.) 1306

[Karachi High Court]

Present: Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member-I and Nur Ahmad Shah, Member-II

NAZIR AHMED

Versus

THE INSPECTOR-GENERAL OF POLICE, SINDH and 2 others

Appeal No. 52 of 1999, decided on 11th April, 2003.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3 & 4(b)(iv)---Sindh Service Tribunals Act (XV of 1973), S.4--­Dismissal from service---Major penalty of dismissal, from service' was awarded to civil servant on allegations of negligence, cowardness and slackness in performance of official duties---Civil servant was charge­-sheeted, but neither regular enquiry was conducted against him which in view of nature of allegations against him, was necessary nor final show-cause notice was given to civil servant before inflicting major penalty upon him--­Other civil servant was also served with similar charge-sheet and regular inquiry was conducted against him wherein he was not found guilty and was exonerated and also was re-instated in service---Authority, in circumstances, had adopted different methods for different officials in one and the same case---Such double standard and discriminatory treatment on the part of Authority by itself was sufficient to vitiate whole proceedings---Nature of allegation against civil servant certainly required a thorough probe, but instead a short cut method was adopted in his case---Such-like procedure was deprecated---Orders passed against civil servant by Authorities were set aside and he was directed to be re-instated in service.

1995 PLC, (C.S.) 134; 1992 PLC (C.S.) 64; 1993 PLC (C.S.) 396; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; 1985 SCMR 1062 and 1991 SCMR 209 ref.

Syed Zafar Ali Shah for Appellant.

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

Date of hearing: 4th March, 2003.

2003 P L C (C.S.) 1329

[Karachi High Court]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

PARVEZ AHMAD

Versus

FEDERATION OF PAKISTAN and others

Civil Petition Nos.D-1959 to 1961 of 2002, decided on 24th December, 2002.

Airports Security Force Act (LXXVII of 1975)---

----S.7-F [as amended by Airport Security Force (Amendment) Ordinance (XXXV of 1984)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Dismissal from service---Petitioner who was employed as A.S.-I. in Airport Security Force was tried on the charge of misappropriation/embezzlment of public money by Field General Court Martial ---Petitioner was convicted, sentenced to suffer R.I. for four years and to pay the embezzled amount and was also dismissed from service--­Petitioner was subject to Pakistan Army Act, 1952 and was convicted and sentenced by Competent Authority under the said Act---Provisions of S.7 of Airport Security Force Act, 1975 had provided appeal/revision against order passed by said Competent. Authority---Constitutional petition filed by petitioner against order of Competent Authority passed against him without exhausting remedy before proper forum provided under law, was not maintainable---Constitutional jurisdiction could only be invoked when no adequate and efficacious remedy was provided under law.

Azhar Majeed Khalid v. Force Commander, Airport Security Force, Quaid-e-Azam International Airport HQ, Karachi and others 2002 SCMR 1135 ref.

Ghulam Sarwar Chandio for Petitioner.

Date of hearing; 24th December 2002

2003 P L C (C.S.) 5

[Lahore High Court]

Before Muhammad Khalid Alvi, J

MUHAMMAD SIDDIQUE ZAKI

Versus

SECRETARY PAKISTAN CENTRAL COTTON COMMITTEE, NINISTRY OF FOOD AND AGRICULTURE, KARACHI and others

Constitutional Petition No.2822 of 2002, decided on 17th April, 2002.

Service Tribunals Act (LXX of 1973)---

----S. 5(2)---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintainability---Alternate remedy---Interim order, enforcement of--­Contention of civil servant was that the interim order passed by Service Tribunal was not complied with by the authorities and there was no provision in Service Tribunals Act, 1973, for enforcing the order therefore, Constitutional petition was the only remedy---Validity---Service Tribunal being a Civil Court within the meaning of S.5(2) of Service Tribunals Act, 1973, it could get its order enforced under O.XXXIX, R.2(3) C.P.C. and other enabling provisions of the Civil Procedure Code---Civil servant in the present case having alternate and efficacious remedy available to him under the law his Constitutional petition was dismissed.

Kanwar Intizar Muhammad Khan for Petitioner.

Muhammad Qasim Khan, A.A.-G. assisted by Hushmat Hussain Naqvi for Respondents.

2003 P L C (C.S.) 50

[Lahore High Court]

Before Abdul Shakoor Paracha, J

Syed AZIZ-UL-HASSAN

Versus

DIRECTOR, SPECIAL EDUCATION, PUNJAB, LAHORE and 3 others

Writ Petition No.3735 of 2001/BWP, decided on 23rd July, 2001.

Civil Servants Act (LXXI of 1973)---

--S. 10---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional jurisdiction of High Court---Matter relating to terms and conditions of service---Dispute was with regard to transfer of petitioner who was working in Education Department--.-Validity---Petitioner being public servant could not challenge the transfer order as the same was a part of terms and conditions of service of the petitioner---High Court had no jurisdiction to entertain Constitutional petition in view of bar as contained in Art.212 of the Constitution---Petition was dismissed in circumstances.

Zahid Akhtar v. Government of Punjab through Secretary, Local Govt and Rural Development, Lahore and two others PLD 1995 SC 530 and Noor Muhammad v. Government of Punjab through Secretary Education Punjab. Lahore and three others 2000 PLC CS 204 ref.

Abdur Rasheed Rashid for Petitioner.

2003 P L C (C.S.) 97

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

PUNJAB SMALL INDUSTRIES CORPORATION DIVISIOINAL STAFF UNION C.B.A., through General Secretary

Versus

THE PUNJAB SMALL INDUSTRIES CORPORATION through Managing Director and others

Constitutional Petition No.9155 of 1999, decided on 7th March, 2002.

Constitution of Pakistan (1973)-----

-----Art. 199---Constitutional petition---Locus poenitentiae, principle of--­Applicability---Re-fixing of pay and recovery of excess amount paid due to wrong fixation---Petitioner had assailed the act of re-fixing of pay scale and demanding from him excess payments made to him due to wrong fixation of pay scale---Validity---Order passed by Punjab Small Industries Corporation for re-fixation of pays of its employees was with lawful authority and of legal effect---High Court declined to interfere with the same---Order to the extent of refund. of the excess amount already received by the employees due to wrong fixation was hit by principle of locus poenitentiae and amount was not recoverable from the employees---Petition was disposed of accordingly.

Jalal-ud-Din's case PLD 1992 SC 207 and PLD 1993 SC 200 ref.

M. A. Khadim for Petitioner.

Abdul Wahid Chaudhry for Respondents.

2003 P L C (C.S.) 104

[Lahore High Court]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

Dr. FARHAT SALEEMI

Versus

GOVERNMENT OF PUNJAB through Chief Secretary Secretariat, Lahore and 3 others

Intra‑Court Appeal No. 1333 in Writ Petition No.20379 of 1998, heard on 22nd May, 2002.

Civil service‑‑‑-

‑‑‑‑ Appointment‑‑‑Selection Committee, findings of‑‑‑Substituting such findings‑‑‑Jurisdiction of High Court‑‑Dispute was with regard to appointment to a post of Professor in the subject of Physics‑‑‑Appellant assailed the appointment of respondent on the ground of lack of requisite qualification‑‑‑Respondent had throughout been student of Physics who did her graduation and post‑graduation as well as doctorate and post‑doctorate in the subject of Physics‑‑‑Evaluation report qua the papers of the respondent were found to be relevant and admissible by Selection Committee‑‑ ‑Both the candidates i.e. the appellant and the respondent were interviewed and the respondent got more marks than the appellant‑‑‑Selection of respondent for the post was assailed in Constitutional petition‑‑‑High Court did not find any deliberate and flagrant violation of rules or instructions resultantly the petition was dismissed‑‑‑Infra‑Court Appeal‑‑‑Validity‑‑‑High Court had rightly declined to enter into a prohibited domain in making attempt to substitute its judgment for one made by the members of Selection Committee whose task was to select and recommend a candidate for appointment to the post‑‑‑High Court, in Infra‑Court Appeal, declined to interfere with the appointment of the respondent.

Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others PLD 1994 Lah. 55 and Abdul Ghaffar v. Azad Government of State of Jammu and Kashmir through Forest Secretary PLJ 1986 SC (AJK) 95 distinguished.

Government of N.‑W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804; Jamshed Ahmad Khan v. S.D.M./A.C. PLD 1987 SC 213; Musa Wezir and others v. N.‑W.F.P. Public Service Commission 1993 SCMR 1124; Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and others PLD 1973 SC 144 and Maqbool Ahmad Maqbool v. The Province of Punjab and 10 others 1971 SCMR 727 ref.

Shakeel‑ur‑Rehman for Appellant.

Mushtaq Ahmad Mohal for Respondent No.2.

Respondent No.4 in person.

Date of hearing: 22nd May, 2002.

2003 P L C (C.S.) 113

[Lahore High Court]

Before Mian Nazir Akhtar, J

Ch. EHSAN SABRI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law Justice, Human Rights and Parliamentary Affairs, Islamabad

Writ Petition No. 18227 of 2000, decided on 5th August, 2002.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Removal from service‑‑‑Petitioner was holding a statutory office of Judge Anti‑Terrorism Court on contract basis for a period of two years under provisions of S.14 of Anti‑Terrorism Act, 1997, but during subsistence of contract he was prematurely removed from service on the basis of certain allegations without giving any opportunity to clear his position simply on letter addressed by Governor to the Law Minister‑‑‑Appointment of petitioner was made after consultation with Chief Justice of Lahore High Court on finding him to be a fit person to hold judicial office and petitioner performed his duties for a period of about one and a half year‑‑‑Petitioner who was removed on basis of certain allegations without giving him opportunity to cleat his position, was within his right to press the Constitutional petition to remove stigma of 'removal from service' from his name as well as to claim arrears of his salary‑‑‑Under provision of S.14(4) of Anti‑Terrorism Act, 1997, it had been made incumbent upon the Competent Authority to consult Chief Justice at the time of removal of Judge Anti‑Terrorism‑‑‑Chief Justice, in circumstances, must be taken into confidence by Federal or Provincial Government and he should be apprised of reasons justifying removal of Judge, but that had not been done in the case of petitioner‑‑‑Statute no doubt contained provision for removal of a Judge from service but that was a very serious .step and ought not to be lightly taken unless it was essential to uphold dignity of Court and secure interests of administration of justice‑‑‑Action taken against petitioner, in circumstances, was arbitrary and not' justifiable in eye of law‑‑‑Order of removal of petitioner from service was declared to be illegal, arbitrary, without lawful authority and of no legal effect by High Court in exercise of its Constitutional jurisdiction.

The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz‑ul‑Haq 1997 SCMR 1552; Jamat‑i-­Islami Pakistan through Syed Munawar Hassan, Secretary‑General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs PLD 2000 SC 111 and Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir larval Malik and others 2001 SCMR 934 ref.

(b) Interpretation of statutes‑‑‑-

‑‑‑‑Statutes which were penal in nature, must be clear, definite and certain so as to guard against any arbitrary and capricious action against any person.

(c) Natural justice, principles of‑‑‑--

‑‑‑‑Principle of natural justice "audi alteram partem" (no one should be condemned unheard) was deemed to be a part of every statute unless its application was specifically excluded.

University of Dacca v. Zakir Ahmad PLD 1965 SC 90 ref.

Ch. Abdul Razzaq Younus for Petitioner.

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

Date of hearing: 10th April and 26th June, 2002.

2003 P L C (C. S.) 128

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD QUSAIN NAQVI and another

Versus

GOVERNMENT OF PUNJAB through Chief Secretary Punjab, Lahore and 6 others

Writ Petition No.4298 of 2001, heard on.13th June. 2002.

Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999)-----

----Ss.2, 3, 10(2)(3) & 13---Punjab Technical Education and Vocational Training Authority .Rules, 1999, Rr.7 & 9---Provisional Constitution Order (1 of 1999), Art.5-A---Constitution of Pakistan (1973), Arts.128 & 199--­Constitutional petition---Re-promulgation of Ordinance---Validity---Petitioners who were Provincial Government employees had challenged re ­promulgation of Punjab Technical Education and Vocational Training Authority Ordinance, 1999 contending that their services stood transferred to Authority established under S.3 of that Ordinance, members whereof were private sector industrialists and that administration and control of their services had been unlawfully delegated to private individuals to the detriment of petitioners---Governor of Punjab promulgated Punjab Technical Education and Vocational Training Authority Ordinance (XXIV of 1999), which was laid before Provincial Assembly, but, could not be processed---Governor after expiry of three months' period prescribed under Art. 128 of Constitution of Pakistan, (1973) re-promulgated the Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999)---Ordinance earlier promulgated having not been considered by Provincial Assembly and prescribed period of three months having expired, Governor could have acted to fill up vacuum by re-promulgating subsequent Ordinance--­Apprehensions of petitioners that delegation of their services to private individual would affect their service structure, was misplaced as their services were taken over by the Authority on terms and conditions which would not be less favourable than those admissible to them immediately before their transfer to the Authority--- Under S.10(3) of re-promulgated Ordinance, petitioners would continue to be employees of Government liable to be transferred back to Government by Transferee Authority--­Provisions of re-promulgated Ordinance and Rules framed thereunder, in circumstances, had sufficiently protected services of petitioners.

The Collector of Customs, Karachi and others v. M/s New Electronics (Pvt.) Ltd. and 59 others PLD 1994 SC 363; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 and Riaz Ahmad v. The State 1998 SCMR 1729 ref.

Sohail Iqbal Bhatti for Petitioners.

Fauzi Zafar, A. A.-G. and. Saleem Sehgal for Respondents Nos.6 and 7.

Date of hearing: 13th June, 2002.

2003 P L C (C.S.) 141

[Lahore High Court]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

MUHAMMAD YASIN WATTOO, PRESIDENT, PAKISTAN AUDIT WORKS EMPLOYEES ASSOCIATION

Versus

GOVERNMENT OF PAKISTAN, through Secretary Finance Division Pakistan Secretariat and 2 others

Writ Petitions Nos.2657, 2340, 3581, 3446, 3548 of 1994, 10090 of 1995 and 18278 of 2000, heard on 10th February, 2002.

Secretariat Allowance (Rescission of Orders etc.) Ordinance (XII of 2000)‑‑‑

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Secretariat Allowance‑‑‑Entitlement‑‑‑Petitioners who were employees of various Federal Government Departments claimed Secretariat Allowance which was being paid to employees serving in Federal Secretariat and Civil Secretariat‑‑‑Constitutional petitions by petitioners having been dismissed. petitioners approached the Supreme Court and case was remanded to High Court to examine matter of petitioners with reference to provisions of Secretariat Allowance (Rescission Orders etc.) Ordinance, 2000‑‑Section 2(1) of Secretariat Allowance (Rescission Orders) Ordinance, 2000, envisaged that ail orders, office memorandums and instructions whereby Secretariat Allowance was granted to certain Federal Government Employees stood rescinded w.e.f. 1‑7‑1988‑‑‑Effect of said provision of law was that persons employed in Secretariat and other Government Organizations of Federal Government would not get any benefit‑‑‑Petitioners had claimed that they were entitled to Secretariat Allowance as they had been granted interim relief in form of direction issued to Authorities for payment of said allowance‑‑­Provisions of subsection (2) of S.2 of Secretariat Allowance (Rescission Orders etc.), 2000 had provided that orders and decisions of any Court including High Court or Supreme Court granting Secretariat Allowance which had been implemented immediately before commencement of Secretariat Allowance (Recession Orders) Ordinance, 2000 would be saved and would be deemed to have been validly made‑‑‑Order granting interim relief to petitioners having not been implemented immediately before commencement of Secretariat Allowance (Rescission Orders) Ordinance, 2000, Authorities were not liable to pay Secretariat Allowance claimed by petitioners.

Muhammad Shabbir Ahmad Nasir v. Secretary Finance Division Islamabad 1997 SCMR 1026; Federation of Pakistan v. Gul Alam Khan and others C.As. 1575 to 1582 of 1998 ref.

Dr. A. Basit, Hafiz Tariq Naseem, Muhammad Riaz Lone, Ch. Muhammad Nazir and Zafar Iqbal for Appellant.

Kh. Saeed‑uz‑Zafar, Dy. A.‑G. with Ali Sher, Section Officer, Ministry of Finance for Respondents.

Date of hearing: 18th February. 2002.

2003 P L C (C. S.) 170

[Lahore High Court]

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

Dr. M. FURRUKH

Versus

GOVERNMENT OF PUNJAB through Secretary to Government of Punjab, Health Department and another

Writ Petitions Nos.15870 and 20800 of 2000, heard on 19th November, 2001.

(a) Civil service‑‑‑

‑‑‑Appointment‑‑‑Entitlement‑‑‑Candidature of candidate was rejected on the ground that the posts in question were meant only for men and women domiciled in the Province of Punjab whereas the candidate was a domicile of Federal Capital Territory of Islamabad, which territory was not a part of the Province of Punjab‑‑Validity‑‑‑Federal Capital was a separate entity which vas a territory independent of and not apart of any of the Provinces of Pakistan‑‑‑Province of Punjab did not include the Islamabad Capital Territory‑‑‑Expression men and women domiciled in Punjab could not be understood to include the men and women domiciled in the Islamabad Capital Territory‑‑‑Candidature of candidate/petitioner as doctor was rightly rejected by the Punjab Service Commission.

(b) Province of West Pakistan (Dissolution) Order (1 of 1970)‑‑‑

--‑‑Art. 14(2)‑‑‑Constitution of Pakistan (1973), Art. 192(4)‑‑‑Civil service ‑‑Judicial service‑‑‑Appointment‑‑‑Eligibility‑‑‑Territories of Pakistan Candidature of the candidate for one of the posts of Civil Judges‑cum-Judicial Magistrates was rejected on the ground that posts in question were meant only for men and women domiciled in the Province of Punjab whereas the candidate was a domicile of Federal Capital Territory of Islamabad and that the said territory was not a part of the Province of Punjab ‑‑‑Validity‑‑Province of "West Pakistan" was dissolved through Province of West Pakistan (Dissolution) Order (1 of 1970) and under said Order four existing Provinces and Centrally Administered. Areas called Islamabad Capital Territory were created‑‑‑ Under Art.14(2) of the said Order, Islamabad, Capital Territory would he within the jurisdiction of the High Court of Punjab and said situation was protected by Art.192(4) of the Constitution of Pakistan (1973)‑‑‑Islamabad Capital Territory, though geographically, territorially, administratively and for the purpose of legislation did not form part of the Province of Punjab, but for the purpose of the judiciary, said territory had come under the control of the Province of Punjab through its High Court and as a result of said legal and Constitutional position, the judicial officers serving in the Islamabad Capital Territory were the officers belonging to the judiciary of Punjab and it was the High Court of Punjab which was exercising authority over the said officers‑‑‑If the Islamabad Capital Territory fell under the powers of Punjab for the purpose of judiciary and if it was the judicial officers from Punjab who held judicial posts in Islamabad, then it would be neither just nor proper to keep the men and women of Islamabad out of judicial service of Punjab‑‑‑So long as the Islamabad Capital Territory remained under the jurisdiction of the High Court of the Province of Punjab, the men and women domiciled in said territory, would be eligible to hold posts in the judicial service of the said Province‑‑‑Authorities concerned, however, could reserve only a specified number of seats in said service for the residents of Federal Capital.

Ahmed Waseem for Petitioner.

Mushtaq Ahmed Mohal for Respondents.

Date of hearing: 19th November, 2001.

2003 P L C (C. S.) 197

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Ch. LIAQAT ALI

Versus

SECRETARY, IRRIGATION AND POWER DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 26 others

Writ Petitions Nos. 19610 and 24467 of 1999, Writ Petitions Nos.3122, 8957, 954, 23133, 3221, 4235, 3868, 2878, 4824, 878, 530, 4822, 4823, 295, 4205 and 1371 of 2000, decided on 1st February, 2002.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Status quo order, non‑compliance of‑‑‑Order of the Authorities was assailed before Service Tribunal and status quo order was passed‑‑‑Authorities had already passed the order against which the status quo order was granted by the Service Tribunal ‑‑‑Petitioners had relinquished the charge in compliance of the order, against which the status quo order was passed, and the order was implemented and acted upon two days before the receipt of the status quo order‑‑‑Validity‑‑‑Order passed by the Authorities was not illegal and unlawful‑‑‑High Court declined to issue direction in Constitutional jurisdiction to the public functionaries to take back the order on such score‑‑‑Order passed by the Authorities was independent order and appeal against the order lay under S.4 of Punjab Service Tribunals Act, 1974, before the Service Tribunal‑‑‑High Court could not interfere in Constitutional jurisdiction and set aside the order on account of bar contained finder Art.212 of the Constitution‑‑‑Constitutional petition was dismissed in circumstances.

PLD 1949 Lah. 100 fol.

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

‑‑‑‑R. 10(b)‑‑‑Punjab Civil Servants Act (VIII of 1974), S.11‑‑‑Ad hoc appointment‑‑‑Reversion to lower grade‑‑‑Non‑issuance of show‑cause notice‑‑‑Validity‑‑‑Reversion order of a civil servant, who had been appointed on ad hoc basis could be passed without issuing of any show‑cause notice and no right accrued in favour of such civil servant under R. 10(b) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with S.11 of Punjab Civil Servants Act, 1974.

Muhammad Sarfraz's case Writ Petition No. 16596 of 2000 ref.

Sh. Munir Ahmad, M. Dilawar Mahmood, Ch. Muhammad Hussain and Maqbool Alam Mian for Petitioner.

Muhammad Shan Gul for the Auditor‑General, Punjab.

2003 P L C (C.S.) 209

[Lahore High Court]

Before Ali Nawaz Chowhan, J

Mst. BARKAT BIBI

Versus

COMMISSIONER and others

Writ Petition No. 1509 of 1999, decided on 13th October, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Grant of benevolent fund with retrospective effect‑‑‑Widow as legal heir of deceased civil servant in her Constitutional petition had sought direction to the Authority to grant her benevolent fund with retrospective effect‑‑‑Precedents existed where such benefit was allowed to widow retrospectively, same treatment thus ought to have been given to the widow ‑‑‑Authority was directed by the High Court to consider placing case of petitioner before Provincial Board of Management for its decision in accordance with law.

N.A. Butt for Petitioner.

Mrs. Roshan Ara, A.A. ‑G. for Respondents.

2003 P L C (C.S.) 210

[Lahore High Court]

Before Syed Jamshed Ali, J

ABDUL JABBAR

Versus

S.S.P., and others

Writ Petition No. 19920 of 2000 decided on 22nd January, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Civil service‑‑Appointment‑‑‑Petitioner despite Having cleared written test and interview, was refused appointment on ground that Domicile Certificate submitted by him was not a genuine document‑‑‑Petitioner had submitted that he would be satisfied if an appropriate direction was issued to the concerned Authority to attend to pending matter and decide his case within reasonable time limit to be fixed by Court‑‑‑Constitutional petition was disposed of with direction to the Authority that matter pending before it be decided within a period of one month in accordance with law.

N.A. Butt for Petitioner.

Malik Akhtar Hussain Awan, Addl. A.‑G.

2003 P L C (C.S.) 239

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RIAZ CHEEMA

Versus

UNIVERSITY OF THE PUNJAB through Vice‑Chancellor Lahore and 2 others

Writ Petitions Nos. 5287 and 14444 of 1995, 1161, 1162, 1163, 1147 and 1148 of 1996, heard on 24th September, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑Arts. 199, 4 & 25‑‑‑Constitutional petition‑‑‑Civil service‑‑‑ Appointment‑‑‑Preparation of waiting list for filling up future vacancies‑‑Selection Committee constituted for appointment of Librarians in the year 1989 selected ten candidates and also prepared waiting list for filling up of the future vacancies if so arise‑‑‑Claim of petitioners was that they having been kept on the waiting list by the Selection Committee, and being qualified to be appointed should have been appointed on posts falling vacant, but they were not considered for the posts‑‑‑Candidates who applied for the post of librarians advertised in 1989 and were kept on waiting list, could not be appointed on the subsequent posts without advertisement for such posts in the newspapers because every citizen who was qualified for said post had a right of, compete for the appointment as Librarian and he could not be deprived of his right of competing for the same under the garb of waiting list earlier prepared by the Selection Committee‑‑‑Preparation of waiting list was illegal and unlawful as the posts which would occur subsequently could not be filled on the basis of earlier interviews taken by the Selection Committee when those posts had not been duly advertised to the general public‑‑­Maintainability of the waiting list and filling of the posts thereunder, not only was illegal, but was discriminatory which was hit by Art. 25 of the Constitution of Pakistan (1973) and was also in violation of Art. 4 of the Constitution‑‑‑Department concerned was directed by the High Court not to fill the vacancies of the Librarians on the basis of waiting list, but should fill the same on open merit after advertising the same and after affording opportunities to all the candidates who were qualified for the same.

Musa Wazir and 2 others v. N.‑W.F.P. Public Service Commission 1993 SCMR 1124; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 and Dr. Faizur Rehman and others v. N.‑W.F.P. Public Service Commission, Peshawar 1996 SCMR 589 ref.

Muhammad Ahmad Hassan Khan for Petitioner.

Syed Mohsin Abbas Naqvi for Respondents Nos. 1 and 2.

Muhammad Akhtar Rana for Respondent No.3.

Date of hearing: 24th September, 2001.

2003 P L C (C. S.) 243

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Prof. M. ASHRAF KHAN NIAZI

Versus

CHAIRMAN, BOARD OF GOVERNORS, ALLAMA IQBAL MEDICAL COLLEGE/JINNAH HOSPITAL, LAHORE and 2 others

Writ Petition No. 17959 of 2002, decided on 1st October, 2002.

(a) Civil service-

--Transfer on deputation ---Repatriation---Validity---Not vested right of a civil servant/statutory employee to continue on deputation.

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC (Pak.) 13; Sheikh Abdul Rahim's case PLD 1964 Lah. 376; Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839 and Government of Pakistan v. Prof. M.A. Saeed C. P. No. 427-L of 1991 ref.

(b) Punjab Medical and Health Institutions Ordinance (VIII of 2002)---

----S.8(3)---Constitution of Pakistan (1973), Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4---Constitutional petition---Petitioner who was a civil servant and remained as such in view of S.8(3) of Punjab Medical and Health Institutions Ordinance, 2002, Constitutional petition filed by him against his grievance was not maintainable in view of bar contained in Art.212 of Constitution of Pakistan (1973) read with S.4 of Service Tribunals Act, 1973.

M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC ref.

Syed Ali Hassan Gillani for Petitioner.

Muhammad Hanif Khattana, Addl A.-G. for Respondents (on Court's call).

2003 P L C (C.S.) 277

[Lahore High Court]

Before Muhammad Sair Ali, J

MUHAMMAD IQBAL KHAN and another

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Pak Secretariat, Islamabad and 2 others

Writ Petitions Nos.3299, 2672 and 3300 of 2001, heard on 29th March, 2002.

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

----Arts.199, 187(2) & 190---Constitutional petition---Enforcement of order of Supreme Court---Management Trainee Scheme of company---Company did not absorb petitioners in regular service after completion of training-­Supreme Court while refusing leave to appeal filed against judgment of High Court dismissing Constitutional petition of petitioners observed that in case company decided, to induct new trainees, petitioners would be at liberty to apply for the post and company would give due consideration to the fact that they had successfully completed training"---Company then invited applications for posts from persons holding 1st Division throughout their academic career---Petitioners though not being 1st divisioners nevertheles made applications, and they were not selected---Petitioners seeking their selection only on the basis of their completion of training filed Constitutional petition before High Court with a prayer to direct company to consider them in the light of order of Supreme Court---Validity---Contention of petitioners seeking to place embargo on company to prescribe other qualifications and criteria for selection of posts except those suitable to petitioners and restrain company from prescribing criteria and qualifications suitable for its professional and business needs, job requirements and managerial exigencies was repelled---Petitioners had not shown that raising of qualifications and selection criteria was meant to exclude them from consideration for the post and to flout orders of Supreme Court---Company for fourteen posts had received 1333 applications; out of which 1320 applicants including petitioners had been found ineligible for failing to meet selection criteria---Out of 13 eligible candidates, only 6 had been selected--­Petitioners had not proved that process of scrutiny of their applications alongwith others was selective or uneven or coloured---High Court had no jurisdiction to judicially review selection and suitability process undertaken by company in its business interest---Supreme Court in its order had not restrained company to prescribe other suitable and better qualifications in addition to condition of successful completion of training by applying Management Trainees---Completion of training was not the sole criteria, but was one of the factors to be considered alongwith other relevant facts, factors and qualifications on comparison to other applicants for purposes of eligibility and ultimate selection---Absence of requisite higher qualifications and criteria in petitioners could not have won their "successful completion of training as Management Trainees" the advertised posts---Words "due consideration" used in order of Supreme Court neither could be taken to mean that other prescribed qualifications should not at all be taken into account in case of petitioners nor same could be misinterpreted as "due priority" over all other eligible candidates resulting in discrimination to them---High Court dismissed Constitutional petition in circumstances.

1999 MLD 3446 and 1998 SCMR 1549 ref.

(b) Constitution of Pakistan (1973)--

----Art.199---Judicial review by High Court---Scope---Selection of a candidate for a post---Suitability, determination of---High Court had no jurisdiction to judicially review selection and suitability process undertaken by a company in the interest of its business---Power of judicial review would be available to High Court in case of mala fides of an agency or company, if falling within the scope of Art. 199 of the Constitution.

(c) Words and phrases-

----- Consideration"---Meaning.

Words and Phrases Legally Defined by John B. Sunders, Butterworth, 1969 Edn. and Chamber's 21st Century Dictionary, p. 292 rel.

(d) Words and phrases--

----- Consider"---Meaning.

Concise Oxford Dictionary, 7th Edn., p.201 rel.

(e) Word and phrases---

----- Due consideration" ---Definition.

Black's Law Dictionary, 5th Edn., of 1979, p.448 rel.

(f) Word and phrases--

----"Consideration and "due consideration"---Connotation.

Meaning and definition of term "consideration" and "due consideration" in concise are that all factors and circumstances meriting attention should be given due weight and significance in the given situation and cases by accounting for each and every aspect of the matter including the prescribed factor requiring appreciation subject, of course, to other factors, criteria and qualifications needing thoughtful assessment.

Afnan Karim Kundi for Petitioners.

Nasir Iqbal Siddiqui for Respondents.

Date of hearing: 29th March, 2002.

2003 P L C (C.S.) 296

[Lahore High Court]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

Prof. KAMRAN AZIZ

Versus

CHIEF EXECUTIVE, ALLAMA IQBAL MEDICAL COLLEGE, LAHORE and 3 others

Intra-Court Appeal No.452 of 1999 in Writ Petition Nos.9491, 20626, 20627 of 1999 and 11659,and 13515 of 1998, heard on 11th April, 2002.

Punjab Medical and Health Institution Act (IX of 1998)---

----Ss.2, 4 & 6---Punjab Medical and Health Institutions Ordinance (VIII of 2002), Ss. 3 & 17---Constitution of Pakistan (1973), Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Notice to appellants after their transfer to vacate accommodation located in the premises of Medical College---Contention of appellants was that after establishment of Medical or Health Institutions, only management and administration of Institutions stood vested in respondents and no the property as same had not been transferred by Provincial Government to respondent-Institution, which had no lawful authority to deal with such property and eject appellants therefrom---High Court dismissed Constitutional petitions filed by appellants---Validity---Matter at relevant time was governed by Punjab Medical and Health Institutions Act, 1998, though same had been repealed by S.17 of Punjab Medical and Health Institutions Ordinance, 2002--­Medical College in question had been notified as a Medical Institution and its Chief Executive had been appointed in terms of S.6 of the Act of 1998--­Such notified Institutions were to be body corporate with power also to hold and dispose of property---Property in question, in absence of any provision to the contrary in Act of 1998, was to be held by such Notified Medical Institution, which was intended so by the Act providing for establishment- of Medical Institution and notifying same---Transfer of property or vesting of title in property would not be relevant to the present controversy--­Respondent-Institution in matter of management and administration of property of Medical Institution would not be acting in derogation to a title vesting in Provincial Government in matter of allotment of premises or its vacation for purposes of management and administration of Institution itself---Medical or Health Institution still continued to have power to hold property, though in S.3 of Punjab Medical and Health- Institutions Ordinance, 2002, an embargo had been placed upon such Institutions to dispose of property without approval of Provincial Government---Appellants under policy issued by Provincial Government and also relied upon by them, were liable to vacate premises upon transfer from Institution on expiry of prescribed period of two months---High Court dismissed Intra-Court Appeals and connected Constitutional petitions allowing one month period to appellants.

Shahid Javed v. Government of the Punjab 1998 PLC (C.S.) 122 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Akram Sheikh for Appellant.

Uzair Karamat Bhandari and M. Fareed Chaudhry for Respondents.

Date of hearing: 11th April, 2002.

2003 P L C (C.S.) 300

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SABAZ ALI KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources Pak Secretariat, Islamabad and another

Writ Petition No.833 of 2002, decided on 17th April, 2002.

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

----Arts.199, 187(2) & 190---Constitutional petition---Enforcement of order of Supreme Court---Management Trainee Scheme of a company---Petitioner was not absorbed in regular service after completion of training---Supreme Court while refusing leave to appeal filed against judgment of High Court dismissing Constitutional petition of petitioner, observed that in the case company decided to induct new trainees, petitioner would be at liberty to apply for the post and company would give due consideration to the fact that he had successfully completed training---Company then invited applications for posts for several times but every time did not consider the petitioner---Validity---Supreme Court had only given direction to respondents to consider case of petitioner at the time of appointment, which respondents did consider as was evident from chart placed on record--­Petitioner had secured 47.67% marks and retained position in merits list at Serial No.20---Such chart also revealed that four ex-trainees had been appointed having attained position in merits list at Serial Nos.2, 3, 4 & 13--­Respondents in such circumstances had not violated direction of Supreme Court---Petitioner had concealed material facts from High Court as contents of Constitutional petition did not reveal at all that he had appeared in written test. and interview and had not succeeded and attained position in merits list at Serial No.20, petitioner, therefore, had not approached with clean hands--­High Court refused to exercise discretion in favour of petitioner and dismissed Constitutional petition in circumstances.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Agha Saleem Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930; Shamsul Arifin and others v. Government of Pakistan and others 1999 MLD 3446; Abdur Rashid v. Pakistan and others 1969 SCMR 141; Nawab Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Rana Muhammad Arshad v. Additional Commissioner, Revenue, Multan and others 1998 SCMR 1462 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Discretionary in character---Person seeking equity must come with clean hands.

(c) Equity---

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

Shehzad Rabbani for Petitioner.

Saleem Baig for Respondents.

2003 P L C (C.S.) 330

[Lahore High Court]

Before Ali Nawaz Chowhan, J

MUHAMMAD SARWAR

Versus

SECRETARY, MINISTRY OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Writ Petition No.2386 of 2001, decided on 27th November, 2001.

Civil service---

----Deputation---Extension of deputation period on compassionate grounds--­Civil servant belonged to the Provincial Government service where he had been recruited as Steno-typist in the Agriculture Department (Water Management Wing)---Later on his services were placed at the disposal of Pakistan Telecommunication Authority on deputation---Civil servant had desired that he should continue serving under his present employers and if he returned to his parent Department, he would be placed in hardship because his wife was a Lecturer in Quaid-e-Azam University and it was important for the family to live together---Validity---Wife of the civil servant was working in an autonomous body while he himself was an employee of the Punjab Government---Office memorandum on which he was placing reliance irrespective of the conditions which had been laid for such-like considerations did not apply to the Provincial Government employees--­Office memorandum of the Cabinet Division would not be attracted in such­like situation and even if it was attracted, willingness of the Department concerned and also the condition to which the guidelines had been subjected would come into operation--- Civil servant was directed to return to his parent Department and then to seek his transfer to the city where his wife was working on the basis of hardship and the Government may take a sympathetic view.

Abdul Rahim Bhatti for Petitioners.

Abdur Rashid Awan for Respondent.

2003 P L C (C.S.) 344

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YOUSAF

Versus

PAKISTAN RAILWAYS, HEADQUARTERS OFFICE, LAHORE and 5 others

Writ Petitions Nos. 23301, 17276, 18115, 19821, 22379, 23301, 23302, 23303, 23304, 23305, 23306, 23307, 23308, 23309, 23310, 23311, 23312, 23313, 23314, 23315, 23316, 23317,23318, 23319, 23320, 23321, 23322, 23323, 23324, 23325, 23326, 23327, 23328, 23329, 23330, 23331, 23332, 23333 of 1999 and 22007 of 2001,decided on 28th March, 2002. , (a) Service Tribunals Act (LXX of 1973)----

----Ss. 2-A & 4---Employees working on contract or work-charge basis and temporary employees---Status as civil servant---Jurisdiction of Service Tribunal---Scope---After insertion of S.2-A in Service Tribunals Act, 1973, all such employees, are civil servants for the limited purpose to approach Service Tribunal for redressal of their grievance.

Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore PLD 2000 SC 826 ref, (b) Service Tribunals Act (LXX of 1973)----

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Temporary employees of Railway on daily wages---Grievance of petitioners was that despite their having been in service for more than three years, the Authorities declined to convert them in permanent employees---Authorities contended' that after insertion of S.2-A in Service Tribunals Act, 1973, the grievance of petitioners could only be redressed by Service Tribunal---Plea raised by the petitioners was that even after induction of S.2-A in Service Tribunals Act, 1973, still they were excluded from the definition of "civil servant" and their case fell in exception as they were workers---Validity---In view of the judgment passed by Supreme Court in case titled G.M., National Bank of Pakistan and others v. Abdul Aziz and others, reported as 2002 PLC (C.S.) 18, even the workers who had filed petitions before Labour Courts which were decided and the appeals pending before the Labour Appellate Tribunal were abated as 'the persons who were workers covered by S.2-A of Service Tribunals Act, 1973 had only remedy before Service Tribunal---Petitioners were not exempted from approaching Service Tribunal---Petition was dismissed in circumstances.

G.M., National Bank of Pakistan and others v. Abdul Aziz and others 2002 PLC (C.S.) 18 fol.

PLD 1977 SC 382; 1998 PLC (C.S.) 777; 1999 PLC (C.S.) 1208; 1998 SCMR 1911= 1998 PLC (C. S.) 1154; PLD 1978 Kar. 132; PLD 1996 SC 610; 1997 PLC (C.S.) 1131; 1985 PLC (C.S.) 681; PLD 1973 SC 144; PLD 1974 SC 291; PLD 1992 SC 451; 1993 SCMR 2385; 1999 PLC 872; NLR 2002 (sic) 30; Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore 2000 SCMR 826; 1997 SCMR 169; 1998 SCMR 220; 2000 SCMR 832; NLR 1999 Lah. 56; 1992 SCMR 1341; 1991 SCMR 197 and Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197 ref.

Farooq Zaman Qureshi and Asmat Kamal Khan for Petitioners.

Sh. Anwarul Haq, Jahangir A. Jhojha and Aamir Latif on behalf of Irfan Masood Sheikh for Respondents.

Date of hearing: 15th March, 2002.

2003 P L C (C.S.) 386

[Lahore]

Before Ch. Ijaz Ahmad, J

MANAGING DIRECTOR, (POWER), WAPDA, WAPDA HOUSE, LAHORE and 2 others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION (N.I.R.C.), LAHORE BENCH through Member Riaz ul Hassan Alvi and another

Writ Petition No.9756 of 2002, decided on 26th November, 2002.

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

----S.17(1-B)---Service Tribunals Act (LXX of 1973), S.2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer order--­Employee of WAPDA challenged his transfer order before National Industrial Relations Commission---After addition of S.2-A in Service Tribunals Act, 1973, petition filed by employee before National Industrial Relations Commission had abated automatically---Employee, however, was well within his right to avail proper remedy before competent authority/forum within ten days---Authorities were restrained by the High Court to take any action against the employee to enable him to avail proper remedy before Competent Authority/forum.

WAPDA v. Muhammad Zubair and others 1997 PLC (C.S.) 189; Wasim Ahmad Khan v. WAPDA 1997 SCMR 2000; Zahir Ullah v. Chairman, WAPDA, Lahore 2000 SCMR 826; WAPDA v. Aga Nazim Ali 1986 SCMR 574; WAPDA v. Javaid Ahmad, Line Superintendent 1989 SCMR 1068; Syed Zahid Hussain v. U.B.L. 2000 PLC (C.S.) 927; WAPDA v. Member, N.I.R.C., Lahore 2002 PLC (C.S.) 1199; Kot Addu Power Company Limited v. Muhammad Bashir 2001 SCMR 1898; Muhammad Ibrahim Mangrio v. Chairman, WAPDA 2001 SCMR 848; Province of Punjab v. Dr.S. Muhammad Zafar Bukhari PLD 1997 SC 351; Mian Ghulam Dastgir Bari v. Rai Salahuddin and 3 others PLD 1987 Lah. 39 and Karachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others 2001 SCMR 1277 ref.

Muhammad Sharif for Petitioners.

Mahmood Hussain for Respondents.

2003 P L C (C.S.) 414

[Lahore High Court]

Before Ch. Ijaz Ahmad and Syed Zahid Hussain, JJ

MUHAMMAD SHAKOOR

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad and 2 others

Writ Petition No.19477 of 2000 and Intra-Court Appeal No.477 of 2002, decided on 19th June, 2002.

Federal Public Service Commission Rules For Competitive Examination, 1996----

----Rr.6(iii)(g) & 15---Law Reforms Ordinance (XII of 1972), S.3(2), proviso----Intra-Court Appeal, maintainability of---Principle of approbate and reprobate---Waiver and estoppel, principle of---Appellant who appeared in C.S.S. Examination was selected on basis of Punjab Domicile and was allocated to Postal Group which he joined---Appellant filed representation before Federal Public Service Commission, but no order having been passed on his representation, he filed representation before Chairman of Federal Public Service Commission which was rejected---Appellant then filed Constitutional petition which was dismissed by Single Judge of High Court against which he filed Intra-Court Appeal---Appellant had contended that though appeal was not maintainable under proviso to S.3(2) of Law Reform Ordinance 1972, but as no appeal, revision or review was provided under federal Public Service Commission Rules for Competitive Examination, 996 in view of R.15 thereof, Infra-Court Appeal was maintainable-Validity---Appellant having himself filed representation before Chairman. Federal Public Service Commission against intimation of Federal Public service Commission, he could not say that Chairman, Federal Public Service commission had no authority to hear and decide lis before him on principle of 'approbate and reprobate'---Appellant having submitted representation in form of review before Chairman, Federal Public Service Commission, he was estopped after its rejection, to wriggle out from that position on principle of waiver and estoppel ---Intra-Court Appeal filed by appellant, was not maintainable.

Ali Ahmad and others v. Muhammad Siddiq and others KLR 1991 Civil Case 132; Ghulam Rasool's case PLD 1971 SC 376; Chaudhry Haq Nawaz Chohan's case 1994 CLC 1530; Muhammad Abdullah v. Deputy Settlement Commissioner PLD 1985 SC 107 and Mst. Karim Bibi v. Hussain Bakhsh and others PLD 1984 SC 344 ref.

Muhammad Arif Raja for Appellant.

2003 P L C (C.S.) 422

[Lahore High Court]

Before Maulvi Amvarul Haq, J

AKHTAR MAHMOOD

Versus

COMMISSIONER, GUJRANWALA DIVISION, GUJRANWALA and 8 others

Writ Petitions Nos.7682 and 7883 of 1999, heard on 6th June, 2002.

Punjab Local Councils Servants (Service) Rules, 1997----

----R. 12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal, competency of---Petitioners who were employees of Municipal Corporation, were promoted to posts of Octroi Inspector and Head Clerk respectively---Respondents tiled appeals against order of promotion of petitioners before Additional Commissioner who allowed the same--­Appellate Authority under R.12 of Punjab Local Councils Servants (Service) Rules, 1997, being Commissioner, Additional Commissioner before whom appeals were filed hid no jurisdiction in the matter---Orders passed by Additional Commissioner were declared to be without lawful authority and were set aside by High Court.

Dr. Ehsan ul Haque Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 6th June, 2002.

2003 P L C (C.S.) 433

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASLAM

versus

GOVERNMENT OF THE PUNJAB, SERVICE AND GENERAL ADMINISTRATION, PUNJAB CIVIL SECRETRIAT, LAHORE through Secretary and 5 others

Constitutional Petition No. 17654 of 2001, decided on 24th April, 2002.

Constitution of Pakistan (1973)---

----Arts. 4, 25 & 199---Constitutional petition---Civil service---Authorities passed order, against petitioner without providing him proper hearing or giving any reasons,---Public functionaries are obliged to redress grievance. of citizens/subordinates with reason---High Court in view of special circumstances, having ample powers to give direction to public functionaries to act in accordance with law by virtue of Arts.4 & 199 of Constitution of Pakistan (1973) set aside order passed by Authorities which was not valid in eyes of law and case was remanded to be decided afresh after providing proper hearing to concerned parties strictly in accordance with law within specified period.

Mrs. M.N. Arshad and others v: Miss Naeema Khan PLD 1990 SC 612; Engineer Naraindas, and others v. Federation of Pakistan and others 2002 SCMR 82; Government of Sindh v. Saleem Raza 2001 SCMR 701; Nafees Ahmad's case 2001 PSCC 50; H.M. Rizvi's case PLD 1981 SC 612; Zakir Ahmad's case PLD 1965 SC 90 and M/s. Airport Support Service's case 1998 SCIAR 2268 ref.

Mehmood Ahmad Qazi for Petitioner.

Saeed-uz-Zafar, Dy. A.-G. for Pakistan.

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

2003 P L C (C.S.) 436

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Syed HASSAN RAZA

Versus

MUNICIPAL/METROPOLITAN CORPORATION, LAHORE through Administrator, Lahore and 3 others

Writ Petition No.29252 of 1997, heard on 19th April, 2002.

Civil service---

---- Payment of emoluments according to duties performed---Civil servant initially was appointed as a Ward Servant and thereafter he got training of E.P.T. Vaccination and obtained requisite certificate from concerned Authority---Civil servant, on the recommendation of concerned Authority was posted against post of Vaccinator and he had been working on that post for the last twelve years, but despite request of civil servant he was not paid emoluments for said period according to duties performed by him---Civil servant holding requisite qualification was already eligible to be appointed as Vaccinator in B.S.5, when he was working on the post---No complaint was there against the civil servant that he was not efficient or in any manner was not capable or eligible to perform his duties which he was performing for the last twelve years---Civil servant being entitled to be paid emoluments in accordance with duties he was performing as a Vaccinator, direction was issued to the Authorities that he should be paid accordingly.

Postmaster General, Eastern Circle (E.P.), Dacca and another v. Muhammad Hashim PLD 1978 SC. 61; Abdul Qayyum v. Secretary, Ministry of Defence and another 1993 SCMR 1097; Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72; Sarwar Ali Khan v Chief Secretary to Government of Sindh and another PLD 1994 SC 233 and Federation of Pakistan v. Shahzada Shahpur Jan and 2 others 1986 SCMR 991 ref.

Asmat Kamal Khan for Petitioner.

Muhammad Afzal for Respondents.

Date of hearing: 19th April, 2002.

2003 P L C (C.S.) 455

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD MUNIR

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAY, LAHORE and 2 others

CA institutional Petition No. 14391 of 1997, decided on 18th March, 2002.

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

----S. 2-A---Civil Servants Act (LXXI of 1973), S.2(b)---Civil servant-­Question of status---Employees on work charge basis and temporary employees---Right to approach Service Tribunal---Scope---After induction of S.2-A in Service Tribunals Act, 1973, all the employees working on contract or on work charge basis and temporary employees are civil servants for the limited purpose to approach Service Tribunal for redressal of their grievance.

Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore 2000 SCMR 826 and G.M., National Bank of Pakistan and others v. Abdul Aziz and others 2002 PLC (C.S.) 18 ref.

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

----Ss. 2-A & 4---Civil Servants Act (LXXI of 1973), S.2(b)---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--­Maintainability---Bar contained in Art. 212 of the Constitution---Seniority of Ticket. Collector Railway---Jurisdiction of Service Tribunal ---Scope--­Contention of the petitioner was that as he was a workman, therefore, grievance of change in seniority list could be looked into by High Court in exercise of Constitutional jurisdiction---Validity---Employees though not falling in S.2(b) of Civil Servants Act, 1973, were covered by the provisions of S.2-A of Service Tribunals Act, 1973, for the purpose of availing remedy before Service Tribunal---Persons employed in Organization/corporation on contract basis, could not be disentitled to the remedy of appeal which had become available to them on account of incorporation of S.2-A in the Service Tribunals Act, 1973---High Court directed Authorities to decide the application of the petitioner within 60 days, if the same would be filed---Petition was dismissed accordingly.

Mst. Nargis Nazir v. Divisional Superintendent, Pakistan Railways, Multan 1992 PLC 58; Seed Aftab Ahmad and others v. KESC and others 1999 SCMR 197 and Malik Mumtaz Ahmad and others v. Federal Service Tribunal 2000 SCMR 832 ref.

Kh. Fawad Ibn-e-Zahoor for Petitioner.

Masood Mirza, Amir Latif and Irfan Masood Sheikh for Respondents.

Date of hearing: 11th March, 2002.

2003 P L C (C.S.) 483

[Lahore High Court]

Before Maulvi Anwarul Haq, J

IBRAR HUSSAIN and another

Versus

SECRETARY TO THE GOVERNMENT OF PUNJAB, AGRICULTURE

DEPARTMENT and 3 others

Writ Petition No.21608 of 1999, heard on 12th March, 2002.

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

----S.20---Market Committee funds---Travelling allowance of employee of Market Committees---Payment---Market Committees are to be run from the moneys received in Market Committee fund under S.20 of Punjab Agricultural Produce Markets Ordinance, 1978---Such fund of Market Committee can be lawfully utilized for payment of travelling allowance to its employees---Employees are to be recruited and are to be granted allowances in the manner prescribed by Market Committee.

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

----S.20---Agricultural Produce Markets (General) Rules, 1979, R.73---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Market Committee funds---Permanent travelling allowance, payment of---Principles--Grievance of the petitioners was that the Competent Authority had rightly granted permanent travelling allowance to them but higher Authorities had wrongly made the matter of fixation of the allowance as prerogative of Provincial Government---Validity---Permanent travelling allowance could be granted to employees of Market Committee even under the provisions of R.73 of Agricultural Produce Markets (General) Rules, 1979, by Competent Authority who was to be the judge of the circumstances in which the. travelling allowance was payable in accordance with the Rules---As the Competent Authority had found that the Market Committee was spread over a large area comprising of several Revenue :states and the staff had not been provided with conveyance to perform the field duties extending over such large area, therefore, the order of Competent Authority was within the four corners of law and the Rules---Letter issued by higher Authorities thus was without lawful authority and of no legal effect and permanent traveling allowance would be payable to the petitioners in terms of memorandum issued by the Competent Authority---Petition was allowed in circumstances.

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

----Ss.2(b) & 4---Service Tribunal---Jurisdiction---Employees of Market Committee---Status---Such employees are not employees of Provincial Government, rather are employees of Market Committee and do not fall within the definition of "civil servants" as contained in S.2(b) of Punjab Service Tribunals Act, 1974.

Qazi Akhtar Ali, Secretary, Market Committee Bhalural, District Sargodha v. Director of Agricultural Punjab, Agricultural House, Lahore 2000 PLC (C.S.) 784 ref.

A. Karim Malik for Petitioners.

Fauzi Zafar, A.A.-G. for Respondents.

Date of hearing: 12th March, 2002:

2003 P L C (C.S.) 503

[Lahore High Court]

Before Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

MUHAMMAD ZAFEER ABBASI, DEPUTY SECRETARY, MINISTRY OF

KASHMIR AFFAIRS AND NORTHERN AREAS AND SAFRON, GOVERNMENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD

Versus

GOVERNMENT OF PAKISTAN through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others

Writ Petition No.2396 of 2000, decided on 14th January, 2003.

(a) Civil service---

---Promotion---Fitness and suitability of an officer, for promotion, decision as to---Such decision may be subjective, but same has to be arrived at by applying an objective process to ensure that course of justice is not deflected.

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

----S.9---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Promotion---Central Selection Board superseded petitioner for promotion to BS-20 on oral assertion of one of its Members regarding reputation of petitioner---Validity---Petitioner had not worked under such Member of Selection Board---Such Member had not disclosed basis of his opinion regarding reputation of petitioner ---Supersession of petitioner on oral allegation of such Member was not only against Promotion Policy, but was rendered arbitrary---Petitioner had no right to be promoted, but he was entitled to be considered for promotion---Superseded civil servant according to policy, was entitled to be considered for promotion after earning one more Confidential Report for one full year---Petitioner was entitled to be considered for promotion, because meeting in which he was superseded was held on 24-6-2000 and by now his A.C.Rs. for years 2000 and 2002 would also be available---High Court accepted Constitutional petition, set aside impugned decision and remitted case to Central Selection Board for reconsideration in accordance with law.

Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and others 1999 SCMR 1605; Fida Muhammad and others v. Government of N.-W.F.P. 1999 PLC (C.S.) 180; Muhammad Ihsan-ul-Haq v. Secretary to Government of Pakistan 1997 PLC (C.S.) 127; Taj Mahmood v. Inspector-­General Police, Punjab, Lahore and others 1993 PLC (C.S.) 576; Phullan v. Muhammad Sarwar and 2 others 1992 CLC 1975; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Khalid Mahmood Watto v. Government of Punjab and others 1998 SCMR 2280; Lutfi Siddiqui v. The Secretary, Establishment Division, Rawalpindi and 2 others 1991 SCMR 125; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Syed Badurd-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.

(c) Civil service---

----Promotion---Annual Confidential Reports may not be conclusive to determine fitness and suitability of an officer for promotion---When an officer is to be superseded on allegation of doubtful reputation, the opinion/decision of Selection Board must be based on some tangible material.

(d) Civil service---

----Promotion Policy of Federal Government---Quantification of Confidential Reports, formula for---Such formula is intended to structure discretion of Selection Board to ensure just arid fair treatment to contenders for promotion---Officers upon whom major penalty has been imposed or adverse A.C.Rs. are recorded, according to formula, do not become outcaste for purpose of promotion.

ESTACODE, 1997 Edn., Serial No. 172-A. ref.

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

----Art. 199--Constitutional jurisdiction of High Court---Scope--Civil service-- Promotion, suitability of an officer for---High Court could not substitute opinion of Selection Board with its own opinion---Where opinion as to unsuitability of an officer for promotion was not based on any material, then decision based thereon would become arbitrary and open to correction by High Court in exercise of Constitutional jurisdiction.

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

----S. 9---Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)---Constitution of Pakistan (1973), Art. 4---Promotion---Not a vested right---Right of civil servant to be considered for promotion---Neither illusionary nor a perfunctory ritual---Withholding of promotion is a major penalty---Civil servant is entitled to be heard before depriving him of promotion---Opinion of Selection Board must be based on lawful reasons and tangible material---Guidelines stated.

Civil servant has no right to be promoted, yet in accordance with section 9 of Civil Servants Act, 1973, he is entitled to be considered for promotion. The right contemplated by section 9 is neither illusionary nor a perfunctory ritual. Withholding of promotion is a major penalty in accordance with Government Servants (Efficiency and Discipline) Rules, 1973, and therefore, before a civil servant is condemned, he has a right to insist that the material on the basis of which he is being deprived of promotion should be disclosed to him and he should be allowed an opportunity to clear himself. The consideration of an officer for promotion is, therefore, to be based not only on the relevant law and the rules, but also on some tangible material, which could be lawfully taken into consideration. Therefore, unless the opinion of Selection Committee is backed by some tangible material, it cannot be said that case of civil servant for promotion was considered in accordance with law.

The expression "law" as employed in Article 4 of the Constitution is of wider import, which includes the duty of every public functionary to act in the manner justly and fairly and in accordance with the principles of natural justice.

(g) Constitution of Pakistan (1973)---

-----Art. 4---Term "law" as used in Art. 4 of the Constitution--­Applicability---Such term is of wider import, which includes duty of every public functionary to act in the matter justly and fairly and in accordance with principles of natural justice.

(h) Civil service---

----Good governance, demand of---Treatment of civil servants in accordance with law and in just and fair manner in the matter of advancement of their career is of paramount consideration for good governance, otherwise their commitment to job, dedication to duty, their power to take decision and even their integrity might be confined to casualty, ward.

(i) Civil service---

---- Promotion to a selection post ---Guidlines stated.

Central Selection Board while formulating their recommendations for consideration by the competent authority is to be guided primarily by Promotion Policy, the Confidential Reports, the relevant instructions issued from time to time by Establishment Division and. of course it can take into consideration any material, which may have bearing on fitness and suitability of an officer for promotion. However, if he has to be superseded, not only the reason should be recorded, 'but it should be supported by tangible material.

Abdul Rahim Bhatti for Appellant.

M. Nawaz Bhatti, Deputy Attorney General for Respondent Nos. 1 to 4.

Nemo for Respondent No.5.

Date of hearing: 20th December, 2002.

2003 P L C (C.S.) 538

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

PUNJAB TEACHERS UNION, DISTRICT SIALKOT

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat, Secretariat Punjab, Lahore and 6 others

Writ Petitions Nos. 12993 and 13448 of 2002, decided on 12th August, 2002.

Civil service---

----Promotion---Contention of civil servants was that all appointments made on contract basis would usurp their right of promotion---Authority stated that civil servants would be treated in accordance with rules and their promotion chances according to quota, pertaining to their cadre would not be affected--­Civil servants on such assurance by Authority were satisfied and did not press the petition which was disposed of accordingly.

Malik Noor Muhammad Awan for Petitioner.

Maqbool Elahi Malik, A.-G., Punjab along with M. Bilal Khan A.A.-G., Punjab, with Miss Shama Zia, S.O., Litigation for Respondents.

Date of hearing: 12th August, 2002.

2003 P L C (C.S.) 645

[Lahore High Court]

Before Tanvir Bashir Ansari, J

GHULAM MEHMOOD QURESHI

Versus

FEDERATION OF PAKISTAN

Writ Petition No. 1168 of 2001, heard on 30th October, 2002.

(a) Removal From Service (Special Powers) Ordinance (XVII of 2000)---

----S.13---Disciplinary proceedings, commencement of---Terminus quo of--­Civil servant was sent on forced leave on 12-4-2000, whereas charge-sheet was issued to him on 24-11-2000 and 30-12-2000---Order of suspension or order of sending civil servant on leave was in the nature of administrative action-- -Issuance of charge-sheet and statement of allegations was the start of quasi-judicial investigating process, through which allegations were brought to notice of civil servant---Pending proceedings contemplated in S.13 of the Ordinance related to proceedings that commenced with issuance of charge­sheet and not by an administrative act of sending civil servant on forced leave---Charge-sheet had been issued after commencement of the Ordinance, S.13 thereof would have no application---Civil servant was liable to be dealt with under the Ordinance.

Mushtaq Hussain Qazi and others v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others 2001 PLC (C.S.) 223 distinguished.

Mushtaq Hussain Qazi and others v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others 2001 PLC (C.S.) 223; Mst. Karim Bibi and others v. Hussain Bakhsh PLD .1984 SC 344 and Mst. Bilquis Jaffar v. Zulifiqar Ahmad Ghuman, Cantonment Magistrate Office of Cantonment Board, Lahore and another 2002 CLC 42-ref.

(b) Words and Phrases---

----Proceedings---Meaning---Term 'Proceedings' shall mean a prescribed course of action for enforcing a legal right.

(c) Civil service---

----Disciplinary proceedings, commencement of---Proceedings in a disciplinary matter would not commence till the issuance of a charge­sheet statement of allegation.

(d) Removal From Service (Special Powers) Ordinance (XVII of 2000)---

----Ss.2(aa) and 5.1(a)(b)---Competent Authority---Charge-sheet, issuance of---Civil servant was in Grade-l8--Chairman, who was Secretary Ministry of Railways and Communication was duly authorized to be Competent Authority for purposes of the Ordinance.

(c) Removal From Service (Special Powers) ordinance (XVII of 2000)---

---Ss.5 & 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Charge-sheet containing allegation of misconduct, issuance of--­Contention of petitioner was that he had been exonerated in an earlier inquiry, thus, he could not be subjected to same charges once again as swine would amount to double jeopardy---Validity---Earlier inquiry had not been conducted in pursuance of any specific charge-sheet or show-cause notice, but was in the nature of only fact finding inquiry---Charges in present charge-sheet were different and distinct---Contention of petitioner was not supported by facts on record---High Court dismissed Constitutional petition in circumstances.

(f) Civil Service---

----Disciplinary departmental proceedings and criminal proceedings--­Difference and distinction---Cancellation of F.I.Rs. registered against civil servant could not be an impediment in process of a departmental inquiry--­Both departmental proceedings and criminal proceedings were different and distinct and they did not overlap each other in any area---Dismissal of criminal proceeding, would not necessarily mean that departmental proceedings must also fail, if case against civil servant was otherwise proved during departmental proceedings.

Messrs Habib Bank Ltd. v. Shahid Masud Malik and others 2001 SCMR 2018 rel.

Abdur Rashid Nadir v. Government of Punjab through Chief Secretary Government of Punjab Civil Secretariat, Lahore and 8 others 2000 YL.R 718 and Tariq Mehmood and another v. A.D.B.P, Sindh and 5 others 2001 MLD 1494 ref.

(g) Mala fide---

----Mere allegation of mala fides by itself was no proof that alleged act was actually based off mala fides.

(h) Removal From Service (Special Powers), Ordinance (XVII of 2000)---

----Ss.5 & 13---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Disciplinary proceeding commenced against petitioner after issuing him charge-sheet containing allegation of misconduct were challenged being based on mala fides--­Validity---If an adverse action was taken against petitioner in a mala fide manner, same could be dealt with at appropriate stage by Service Tribunal in its exclusive jurisdiction---High Court dismissed. Constitutional petition in circumstances.

Zahid Akhter v. Government of Punjab PLD 1995 SC 530 rel.

Munshi Farooq Akbar, Patwari, Halqa Tatar, Sub-Division Okara, District, Okara v. Assistant Commissioner Collector, Okara and others 1998 PLC (C.S.) 49 ref.

(i) Civil service--

---Disciplinary proceedings---Charge-sheet---Connotation, object and effect---A charge-sheet is merely an expression made by department against its employee stating therein that particular acts of misconduct are alleged against him---This is the first step to commence disciplinary proceedings---It is neither a condemnation of civil servant nor a stigma or slur on his service record--Unless proved, it remains in the nature of allegation, which may or may not be proved during the course of an inquiry.

(j) Constitution of Pakistan (1973)---

----Art.199---Civil service---Disciplinary proceedings---Charge-sheet, quashment of---Constitutional jurisdiction of High Court---Scope---Putting an end to charge-sheet at its very inception, unless same was shown to be ab initio void, would amount to stifling of disciplinary proceedings resulting in thwarting and defeating purpose and object of disciplinary proceedings themselves---Invoking Constitutional jurisdiction at such stage would not be a prudent exercise of jurisdiction.

Abdul Ghafoor Mangi for Petitioner.

Miss Shaista Altaf for Respondent No.2.

Date of hearing: 30th October, 2002.

2003 P L C (C.S.) 654

[Lahore High Court]

Present: Tanvir Bashir Ansari, J

MUHAMMAD ISLAM KHAN

Versus

CHAIRMAN, ADBP and others

Writ Petition No.3053 of 2002, heard on 1st November, 2002.

(a) Removal from Service (Special Power), Ordinance (XVII of 2000)---

---Ss.2(a), 2(a.a), 5,1(a)(b) & 13---S.R.O.28/(I)/2000, dated 27-5-2000--Competent Authority---Issuance of charge-sheet and statement of allegations by Chairman of the Bank ---Validity---Employee was holding substantive post of Joint Director---Employee while holding acting charge of Director could not be said to be holding substantive post of a Director----According to S.R.O.28/(I)/2000 issued under S.2(a) of the Ordinance, for persons holding post in BS-16 to BS.19, Managing Director, Chief Executive Officer of Organization (Chairman ADBP in present case) was authorised to exercise powers of Competent Authority---No infirmity was found in competency of authority, who had issued charge-sheet.

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

----S.2---Disciplinary proceedings---Inquiry Committee, constitution of--­Validity ---Employee was holding substantive post of Joint Director, while all the Members of Inquiry Committee were holding substantive post of Director---Employee's contention that he was holding an equal rank with Members of Inquiry Committee was, held, to be devoid of force.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Question of mala fides was a question of fact, which had to be proved through substantial material on record---Such exercise could not be undertaken in Constitutional jurisdiction of High Court.

Haji Muhammad Saif Ullah v. Federation of Pakistan PLD 1989 SC 690 ref.

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

----Ss.2(a), 2(a.a) & 5.1(a)(b)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Disciplinary proceedings---Inquiry Committee--­Petitioner claiming to be employed in Grade-19 or its equivalent objected to constitution of Inquiry Committee on the ground that all its Members were enjoying equal pay scale and being equal in rank with petitioner could not become Members thereof---Validity---Question regarding equivalence of post was a question of fact---Unless and until such equivalence was determined by a competent forum, petitioner could not be assumed to be holding a post equivalent to any higher post than his actual substantive post---High Court dismissed Constitutional petition in limine.

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

----S.13---Constitution of Pakistan (1973), Art. 199---Disciplinary proceedings---Charge-sheet, issuance of---Exercise of Constitutional jurisdiction at the stage, when only a charge-sheet or a show-cause notice was issued, would amount to a pre-mature stifling of disciplinary proceedings, which teas against the spirit of law.

Ch. Mushtaq Ahmed Khan for Petitioner.

Dr. G.S. Khan for Respondents.

Date of hearing: 1st November, 2000

2003 P L C (C.S.) 675

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD YOUSUF

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB CIVIL. SECRETARIAT, LAHORE and 2 others

Writ Petition No.9568 of 2002, decided on 17th October, 2002.

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

----S.4(1)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Promotion of civil servant---Fitness of civil servant for promotion---Determination---Grievance of the civil servant was that his colleagues had been promoted, but his promotion was withheld without arty justification--Service Tribunal while deciding appeal had given finding against the civil servant and also 'held' that the Tribunal had no jurisdiction to interfere in the determination of fitness of civil servant in the matter of promotion---Having been unsuccessful before Service Tribunal, the civil servant assailed the order passed by the Authorities in Constitutional jurisdiction---Plea raised by the Authorities was that the civil servant should have filed an appeal before Supreme Court and the present Constitutional petition was not maintainable---Validity---Service Tribunal was justified to hold that Tribunal had no jurisdiction in the matter and the same was in consonance with S.4(1)(b) of Punjab Service Tribunals Act, 1974---Once the Service Tribunal had come to the conclusion that the Tribunal had no jurisdiction to take the cognizance of the matter then the Tribunal should not have given the finding with regard to the merits of the case---Civil servant had filed the Constitutional petition after accepting the verdict of the Service Tribunal-- -Order passed by the Authorities was set aside and the matter was remanded to the Authorities for deciding the representation filed by the civil servant afresh---Constitutional petition was allowed accordingly.

Capt. Sarfraz Ahmad Mufti v. Government of Punjab 1991 SCMR 1637; Muhammad Ahsan-ul-Haq v. Secretary' to Government of Pakistan 1997 PLC (C.S.) 127; Barkat Ali v. Muhammad Ehsan 2000 PLC (C.S.). 123; N.A. Qureshi v. Government of Punjab PLD 1982 Lah. 242; Tahir Latif Sheikh v. Federation 2000 PLC (C.S.) 582 and Khan Sahib Sher Muhammad Mir v. Islamic Republic of Pakistan 1987 SCMR 92 ref.

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

----S.24-A---Speaking order---Deciding representation filed by civil ­servant ---Scope---Duty and obligation of public functionaries is to decide the representation of their subordinates with reasons.

Messrs Airport Support Service v. Airport Manager 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 ref.

Hafiz Tariq Naseem for Petitioner.

Muhammad Hanif Khattana, Addl. A.-G. for Respondents.

2003 P L C (C.S.) 689

[Lahore High Court]

Before Mian Muhammad Jahangir, J

Syed SAFEER HUSSAIN SHAH

Versus

CHIEF SECRETARY, GOVERNMENT OF, PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others

Writ Petition No.3120 of 2001, decided on 15th August, 2002.

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

----S.8-A---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.14-A---Constitution of Pakistan (1973), Arts.4, 25, 199 & 212---Constitutional petition, locus standi to file---One step promotion on account of distinguished performance, prayer for---Recommendations for awarding one step promotion to petitioner even though endorsed by Home Secretary did not bear fruits despite expiry of considerable period--­Representation filed by petitioner was pending for the last five years, which had restrained him for availing legal remedy---Petitioner's other colleagues had been granted one step promotion in similar circumstances---All citizens were equal before law and were entitled for equal protection of law--­Constitutional petition would be competent, where there was violation of Arts.4 & 25 of the Constitution---Bar of jurisdiction under Art.212 of the Constitution could not be urged in such situation---Nothing adverse in career of petitioner was alleged restraining Department from allowing him one step promotion---Where Department was not disposing of representation for orders, then aggrieved person would have remedy of filing Constitutional petition---High Court accepted Constitutional petition and directed respondents to grant one step promotion to petitioner alongwith back-benefits from the date, when his colleagues were promoted.

I.A. Sharwani and others v. Government of Pakistan through Finance Division and others 1991 SCMR 1041: Ch. Mukhtar Ahmad v. Government of Punjab and others 2000 CLC 1073 and Abdul Jabbar Iqbal v. Government of the Punjab, Local Government and Rural Development Department, Lahore through Secretary and 4 others 1995 PLC (C.S.) 246 ref.

(b) Civil service--

---- Departmental representation---Non-disposal of---Remedy of aggrieved person---Civil servant would have remedy of filing Constitutional petition before High Court---Constitution of Pakistan (1973), Art.199.

Syed Hamid Ali Bokhari for Petitioner.

Raja Saeed Akram, Asstt. A.-G. for Respondents.

2003 P L C (C.S.) 721

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SALAH-UD-DIN, ASSISTANT ENGINEER (MKDA)

Versus

SECRETARY, FORESTRY, WILDLIFE, FISHERIES AND TOURISM

DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 5 others

Writ Petitions Nos.2798 and 771 of 2000, heard on 3rd October, 2002.

(a) Punjab Civil Servants Act (VIII of 1973)---

----S.2(b)---Punjab Service Tribunals Act (IX of 1974), S.2(b)---Murree­-Kahuta Development Authority Act (I of 1987), Ss. 1 & 30---Employees of Murree-Kahuta Development Authority not civil servants ---Scope---Kahuta Development Authority was a corporation established under Murree-Kahuta Development Authority Act, 1987---Held, employee of Murree-Kahuta Development Authority was not a civil servant within the meaning of Punjab Civil Servants Act, 1973 or Punjab Service Tribunals Act, 1974.

(b) Murree-Kahuta Development Authority Act (I of 1987)---

----S.32---Murree-Kahuta Development Authority Service Rules, 1994--­Enforcement of Rules---Objection of the authority was that Murree-Kahuta Development Authority Service Rules, 1994, could not be enforced as the same were not statutory Rules---Validity---Rule-making power had not been left to the Corporation, rather the Government had retained the same and Murree-Kahuta Development Authority Service Rules, 1994, had been promulgated by the Governor in exercise of powers under S.32 of Murree-­Kahuta Development Authority Act, 1987 as such the Rules were statutory.

(c) Murree-Kahuta Development Authority Service Rules, 1994---

----Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.6(3)--­Constitution of Pakistan (1973), Art.199---Constitutional- petition--­Condemning a person unheard--- Failure to conduct inquiry---Imposing of major penalties---Petitioner was employee of Murree-Kahuta Development Authority---Charge of misconduct was made against the petitioner, show­-cause notice was issued to him and without holding any inquiry, a major penalty for recovery of a sum of Rs.500,000 was imposed on him--­Validity---Appellate Authority ought to have considered the appeal of the petitioner 'Keeping in view the fact that no inquiry was held in the case--­Before imposing the major penalty, the assertion of the petitioner contained in his representation was to be considered in proper perspective to fix the liability and to trace the actual or the other culprits involved in the case--­Proper hearing having not been afforded to the petitioner at the appellate stage, order passed byte Appellate Authority did not decide the contention raised by the petitioner---Order passed by the Authorities was without lawful authority and the same was set aside---Case was remanded to Appellate Authority for decision afresh.

Hafiz S.A. Rehman for Petitioner.

Raja Saeed Akram, A.A.-G. with M.D. Abbasi, DFO for Respondent.

Date of hearing: 3rd October, 2002.

2003 P L C (C.S.) 736

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SHER AFZAL KHAN

Versus

FEDERATION OF PAKISTAN through Home Secretary, Ministry of Interior, Kashmir Affairs, Northern Areas State and Frontier Region, Islamabad and 5 others

Writ Petition No.2290 of 2002, heard on 7th October, 2002.

National Accountability Bureau Ordinance (XVIII of 1999)---

----S.5-A(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Judge as National Accountability Bureau Court--­Continuing as the Judge after having been retired as District and Sessions Judge---Petitioner was appointed as Judge of the National Accountability Bureau Court on 14-5-2001 while serving as District and Sessions Judge-­After the retirement of the petitioner as District and Sessions Judge, the Authorities did not allow the petitioner to complete his tenure of three years as a Judge of National Accountability Bureau Court---Validity---Having exercised leis option on 3-12-200 the petitioner was entitled to continue as Judge of the National Accountability Court for a period of three years from the date of his initial appointment as the Judge of the National Accountabiliy, Court---Act of the Authorities in not allowing the petitioner to complete his tenure as incorporate in S.5-A(3) of National Accountability Bureau Ordinance, 1999, was without lawful authority---High Court directed the Authorities to allow the petitioner to complete his tenure of three years as Judge of National Accountability Bureau.

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 fol.

Muhammad Ikram Ch. for Petitioner.

Ch. Sultan Munawar, D.A.-G. for Respondents.

Hafiz S.A. Rehman for Respondent No.6.

Date of hearing: 7th October, 2002.

2003 P L C (C.S.) 746

[Lahore High Court]

Before Syed Sakhi Hussain Bukhari, J

WAQAR AHMAD

Versus

CHAIRMAN, PAKISTAN BAITUL MAL

Writ Petitions Nos.2454 and 2270 of 2000, heard on 25th February, 2603.

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

----S.11(1)(iii)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973); Arts.199 & 212---Constitutional petition---Termination of services---Civil servants had challenged termination of their services in Constitutional petition before High Court---Contention of Authority was that such orders could only be challenged before Service Tribunal and not in Constitutional petition before High Court---Civil servants had contended that there being no Service. Tribunal, their Constitutional petitions were maintainable---One of the civil servants earlier had filed appeal before Service Tribunal against his transfer order which was decided by Service Tribunal on merits---Civil servants; in circumstances, could not say that there was no Service Tribunal for filing appeal against orders of their termination----Order whereby services of civil servants were terminated, even if challenged on ground of mala fides, were appealable before Service Tribunal and could not be challenged before High Court in Constitutional petition, in view of bar contained in Art.212 of Constitution of Pakistan (1973).

Syed Mazhar Hussain Bukhari v. The Secretary, Government of Punjab, Local Government and Rural Development Department, Lahore 1998 SCMR 1948 ref.

Muhammad Abdullah Yousaf Bhatti and Shabbir Ahmad Bhutta for Petitioner.

Alhaj Elahi Sh. for Respondent.

Dates of hearing: 20th and 25th February, 2003.

2003 P L C (C.S.) 770

[Lahore High Court]

Before Ch. Ijaz Ahmad and Syed Zahid Hussain, JJ

PUNJAB PROVINCIAL COOPERATIVE BANK LTD. and another

Versus

QADEER AHMED and 7 others

Intra-Court Appeal No. 1019 of 1999, heard on 18th December, 2002.

Constitution of Pakistan (1973)---

----Art. 199---Cooperative Societies Act (VII of 1925), S.70---Constitutional petition---Recruitment---Cooperative Bank had invited applications to fill tip vacant posts of Managers---Respondents were amongst those who were, finally selected---Recommendation of Recruitment Committee was approved by the Board of Directors however no appointment letters were issued to respondents under - direction of the then Chief-Minister---Constitutional petition filed by respondents had been accepted by the High Court--­Validity---Respondents had passed the written test and interview held by the Bank---Bank sent the summary to the then Chief-Minister through Secretary. Cooperative Department who approved the same vide order, dated 28-3-1997 and observed that the recruitment was made on merit, therefore, Cooperative Department was to go ahead for issuing the appointment letters---Secretary, Cooperative Department re-submitted the summary to the Chief Minister on 7-4-1997, reply to which reverted. that matter might be looked into keeping in view the National Economy and the Cooperative Bank was advised to re­ examine the proposal---Note of the Chief Minister dated 14-4-1997 revealed that the matter be resubmitted on the point whether the Cooperative Bank could do without the advertised posts of the Manager---Bank failed to attach any document that the summary was re-submitted after re-examination by the Secretary, Cooperative Department to the then Chief Minister---Prior order of the Chief Minister dated 28-3-1997 approving the said appointments, therefore, remained in the field---Resolution passed by the Bank on 26-4-1997 qua fresh recruitment placing a ban thereon was passed subsequent time to the order of Chief Minister dated 28-3-1997, therefore, the said resolution had prospective effect and not retrospective effect---Action of the Bank to withhold appointment letters of respondents was without lawful authority and Infra-Court appeal was accordingly dismissed by the High Court.

Lahore Central Cooperative Bank v . Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; Faiz Ahmad v. Registrar, Cooperative Societies and others PLD 1962 SC 315; Zainul Abdin v. Multan Central Cooperative Bank PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca v, Rustam Ali and others PLD 1966 SC 848; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748 and Rana Muhammad Ilyas and others v. Board of Intermediate and Secondary Education, Rawalpindi and others PLD 2001 SC 531 ref.

(b) Cooperative Societies Act (VII of 1925)----

----S.65-B---Constitution of Pakistan (1973). Art. 199--- Constitutional petition---Approbate and reprobate---Cooperative Bank had contended that they were not performing any function in connection with affairs of -the Province or Local Authority, therefore,' Constitutional petition was not maintainable against thern--Validity---Admitted fact was that the Cooperative Bank had sent a summary to the then Chief Minister through the Secretary, Cooperative Department, therefore. contention of: the Bank, had no force on the well known principle of approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 176 ref.

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

----Arts.199 & 4---Constitutional petition---Court has ample jurisdiction under Art. 199 of the Constitution to give directions to the public functionaries to act in accordance with law in view of Art.4 of the Constitution.

S.H.M. Rizvi v,. Maqsood Ahmad PLD 1981. SC, 612; Maj. (Retd.) Aftab Ahmad v. Azad Government 1992 SCMR 307; Farooq, Ahmad Khan and others v. Shaukat Jan Baluch 1998. PLC (C.S.) 425; Iqbal Ahmad and others v. Secretary, Ministry of Education 1998 PLC (C,S.) 542 and Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696 ref.

M. Ilyas Khan for Appellants.

Munib Iqbal for Respondents Nos. 1 to 6, Malik Khizar Hayat Khan, . Addl. A.-G for Respondents Nos.7 and 8.

Date of hearing: 18th December, 2002.

2003 P L C (C.S.) 785

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Mst. NAVEEDA MUNAWAR and another

Versus

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others

Writ Petitions Nos. 13481 and 15258 of 2002, decided on 29th October, 2002.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Civil service---Withholding of salaries---Constitutional petition, maintainability of---Petitioners had not challenged vires of the order of removal from service, but had prayed for direction to the Authority to release the arrears of their salaries which were withheld---Constitutional petition was resisted in view of bar contained in Art. 212 of Constitution contending that High Court had no jurisdiction in the matter--Validity--­Authority could not withhold salaries of petitioners for the work and duties which they had actually performed---High Court had ample power to give direction to the Authority to act in accordance with law despite the bar contained in Art.212 of Constitution---Action of Authority being based on malice, Constitutional petitions by petitioners were accepted to the extent of non-releasing the salaries of petitioners in respect of actual work done and duties performed by them---Authority was directed to release salaries of petitioners.

Mst. Shamim Bano v. Province of Punjab 1998 PLC (C.S.). 337; Qazi Akhtar Ali v. Director Agriculture 2000 PLC (C.S.) 784; Administrator, District Council, Larkana v. Ghulab Khan 2001 PLC (C.S.) 991; Barkat Ali v. Muhammad Ihsan 2000 SCMR 556 and Hafiz Mazhar Hussain v. DEO, Khanewal PLJ 1998 Lah. 985 ref.

Pervaiz Inayat Malik for Petitioners.

Muhammad Hanif Khatana, Addl. Advocate-General alongwith. Munir Ahmad Javaid, Legal Officer and Kaneez, D.E.O., Narowal.

Aziz Ahmad Ghumman, D:E.O., Daska and Rana Khushi Muhammad, D.E.C., Sialkot with Record.

Date of hearing: 29th October, 2002.

2003 P L C (C.S.) 906

[Lahore High Court]

Present: Muhammad Khalid Alvi, J

MUHAMMAD ZIKRIYA and others

Versus

SENIOR SUPERINTENDENT OF POLICE, MULTAN and others

Writ Petition Nos. 1314, 1714, 1318, 1477 and 1574 of 2002, heard on 21st November, 2002.

Police Rules, 1934--------

----R.13.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Age relaxation for qualifying examination---Petitioners who initially were appointed as Constables, were to qualify their examination for being placed on List 'A'---Examination for List 'A' having. been delayed, all petitioners were given two years' age relaxation in the examination ---Na examination was held for List 'A' and List 'B/1' from 1999 to 2001 when for the first time examination of List-B/1 was held in 2002 in which petitioners were allowed to participate---Petitioners cleared their written examination and were called upon for interview---Petitioners appeared for interview, but same was refused on ground that petitioners had already become over age as they had crossed prescribed age limit of 33 years--­Examination for List 'B/1.' was required to be held each year, but in case of petitioners no examination was held for three years---Omission of Authorities in not holding examination every year, had deprived petitioners of their right of fair competition and they had become over age not because of any lapse on their part, but due to negligence on part of Authorities for .which petitioners were not to suffer---Petitioners otherwise being qualified to compete, could not be denied such right---Even otherwise petitioners earlier having been granted two years' age relaxation in examination for List 'A', they, on same principle, were entitled to further age relaxation for qualifying List 'B/1' Examination.

Zafarullah Khan Khakwani for Petitioners.

Muhammad Qasim Khan A.A.-G. for Respondents.

Date of hearing: 21st November, 2002.

2003 PLC (C.S.) 910

[Lahore High Court]

Before Tanvir Bashir Ansari, J

GHULAM HAIDER SHAD, MANAGER, AUQAF, BAHAWALPUR

Versus

CHIEF ADMINISTRATOR, AUQAF PUNJAB, LAHORE and others

Writ Petition No.938-S of 1995/BWP dismissed on 22nd March, 2002.

Punjab Auqaf Organization (Appointment and Conditions of Service) Rules. 1994------

-----R.6---Appointment on current charge basis---Regularization of service---Civil servant prior to his appointment against newly created post of Assistant Manager on current charge basis only, was appointed as a Stenographer---All posts of Assistant Managers in Auqaf Organization having been upgraded as Managers, civil servant had claimed to have been regularized as such, contending that act of fixation of his salary of Assistant Manager and Manager and payment of annual increments would show that he was treated as Assistant Manager/Manager---Promotion to a selection post under R.6(1) of Punjab Auqaf Organization (Appointment and Conditions of Service) Rules, 1994 was to be made on basis of selection on merits while in case of a non-selection post, promotion would be made on basis of seniority-cum­ fitness---Civil servant had failed to demonstrate on record that his appointment/promotion as Assistant Manager was made either upon recommendation of Selection Board or was result of recommendation by appropriate Departmental Promotion Committee and that his promotion to post of Assistant Manager was made on regular basis---Contention that civil servant was paid salary in higher scale or that he was also transferred in capacity of Assistant Manager, would not advance the case of civil servant.

Federation of Pakistan and others v. Rais Khan 1993 SCMR 609 ref..

M. Shamshir Iqbal Chaughtai for Petitioner.

Muftu-ur-Rehim and Aziz-ur-Rehman Khan for Respondents.

Date of hearing: 21st March, 2002.

2003 P L C (C.S.) 921

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

TARIQ EHSAN, B.TECH (HONS.)

Versus

DIRECTOR, CIVIL AVIATION AUTHORITY, REGIONAL OFFICE, ALLAMA IQBAL INTERNATIONAL AIRPORT, LAHORE and another

Writ Petitions Nos.3193 and 3263 of 2003, decided on 19th March, 2003.

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

----Arts. 199, 4 &. 212---Service Tribunals Act (LXX of 1973), Ss. 4 & 2-A---Call letter was issued by the Authority to appear in the examination which was subsequently withdrawn---Bar contained in Art. 212 of the Constitution read with Ss. 4 & 2-A of the Service Tribunals Act---Held, High Court in exercise of its Constitutional jurisdiction has ample power to give direction to the public functionaries to act in accordance with law.

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

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

----Art. 201---Order of High Court not challenged before any higher forum---Such order would become final and binding on each and every organ of State.

(c) Administration of justice------

---- Principles of---No one should be penalized, by inaction of the public functionaries.

Ahmad Latif Qureshi v. Controller of Examinations and others PLD 1994 Lah. 3 fol.

(d) Natural justice, principles of-----

------Order without providing proper hearing and without notice---Such order was without lawful authority being violative of principles of natural justice.

Pakistan and others v. Public-at-large and others PLD 1987 SC 304; University of Dacca v. Zakir Ahmad PLD 1965 SC 90 and Pakistan Chrome Mines v. Inquiry Officer and others 1983 SCMR 1208 ref.

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

----S. 24-A---Public functionaries to decide the representations/appeals of their subordinates with reasons and within reasonable time.

Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268 fol.

Muhammad Nazar Khan for Petitioners.

Sher Zaman Khan, Deputy Attorney-General for Pakistan for Respondent.

2003 P L C (C.S.) 925

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

ZULFIQAR ALI and another

Versus

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others

Constitutional Petition No. 12154 of 2002, decided on 12th August, 2002.

Civil service---

------Removal from service---Re-instatement---Civil servants who were appointed as P.T.C. Teachers had been removed from service after about four years from their appointment---On filing appeal against their removal from service civil servants were directed to be reinstated in service, but Authority before finalizing case of reinstatement, had advertised for appointment of teachers on contract basis---Civil servants should not be affected by fresh appointment orders if issued to teachers appointed on contract basis and judgment of Service Tribunal whereby civil servants were reinstated in service would be implemented before filling posts by fresh appointees.

Pervaiz Inayat Malik for Petitioners.

M. Bilal Khan, Addl.A.-G. with Shama Zia, S.O. for Respondent.

Date of hearing: 12th August, 2002.

2003 P L C (C.S.) 926

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD AMIN BUTT

Versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB and another

Writ Petition No. 19466 of 2002, decided on 5th November, 2002.

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

----R.6(3)---Constitution of Pakistan (1973), Arts. 199 & 212--- Constitutional petition---Civil service---Petitioner had challenged show-cause notice issued to him and contended that sole basis of show-cause notice was a preliminary inquiry and the truth or otherwise of allegations could only be established in a regular inquiry---Petitioner had further maintained that be was exonerated by Anti-Corruption Agency---Issue raised in petition was germane to the terms and conditions of service of the petitioner and it was raised at the stage when no final order had been passed---Bar of jurisdiction contemplated by Art.212 of Constitution was attracted in the case---Constitutional petition was dismissed being not maintainable.

Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 5th November, .2002.

2003 P L C (C.S.) 927

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Haji MUHAMMAD SANAULLAH

Versus

CIRCLE REGISTRAR, COOPERATIVE SOCIETIES and others

Constitutional Petition No. 14649 of 2001, decided on 15th January, 2002.

Cooperative Societies Act (VII of 1925)----

----S.44-C---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal from service---Petitioner was dismissed from service on charges of absence from duty and misappropriation of funds without issuance of show-cause notice and without affording him any opportunity to explain his position and to prove his innocence before Competent Authority--­Dismissal from service on certain allegation was a stigma on his career which required thorough inquiry by the Cooperative Society before passing order of dismissal---Petitioner was not afforded an opportunity of hearing and even statement of allegations was not supplied to him and no reply was called from him---Findings of Managing Committee regarding embezzlement of funds against the petitioner in circumstances were without lawful authority and without jurisdiction---Cooperative Society had passed order of dismissal against petitioner in violation of principles of natural justice---Case of petitioner was a tit one where formal inquiry was required to be held, but same having not been done, findings against the petitioner without final inquiry were unlawful order of dismissal against petitioner, was incompetently passed by the Cooperative Society because Society could refer matter to the Registrar for the removal of the services of the employee of the Society as provided under S.44-C of Cooperative Societies Act, 1925--­Managing Committee could only recommend for removal of services of petitioner and the Society itself could not pass the removal order--­Contention that petitioner was a temporary employee and could be terminated at any time, was repelled as petitioner had not been terminated, during the probation period, but had been terminated by leveling serious allegations, against him which required holding of an inquiry---Order terminating service of petitioner was set aside by High Court in Constitutional petition declaring the same to be illegal, unlawful and without jurisdiction.

Ghulam Hadi Baloch's case 1987 SCMR 602 ref.

Abdul Wahid Ghaudhry-for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. for Respondents

Date of hearing: 15th January, 2002.

2003 P L C (C.S.) 940

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Mst. ZUBEDA AKHTAR

Versus

GHULAM RASOOL AZAD, EXECUTIVE DISTRICT OFFICER (EDUCATION), SHEIKHUPURA

Criminal Original No.668-W in Writ Petition No.7228 of 2002, decided on 14th November, 2002.

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

----S.4---Contempt of Court Act (LXIV of 1976), Ss. 4 & 5---Constitution of Pakistan (1973), Arts. 199 & 201---Constitutional petition---Contempt of Court---Petitioner a civil servant being aggrieved of her transfer from District 'S' to District 'F' tiled appeal against her transfer before Punjab Service Tribunal which was disposed of with direction to the Authority to transfer the petitioner to some nearby institution in District 'S', but said direction was not honoured by the Authority---Petitioner being again aggrieved tiled Constitutional petition which was disposed of by High Court with direction to the Authority to consider case of petitioner within specified period, but that direction also was not complied with by the Authority--­Effect---Public functionary was duty bound to obey directions of Punjab Service Tribunal and of the High Court---High Court while taking serious notice of conduct of the Authority in avoiding to implement judgments of Punjab Service Tribunal and High Court, directed to send case alongwith contempt application to Secretary Education and to Chief Secretary of Province to look into the matter to see what was happening in their departments where Authority concerned was not obeying orders of the Courts and interpreting same while sitting in the office which was in derogation of mandate of Constitution as was envisaged by Art. 201 of Constitution--­Higher Authorities were directed to issue instructions to the Authority concerned to obey directions of Courts or to agitate matter before higher forums.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G.

Date of hearing :14th November, 2002.

2003 P L C (C.S.) 954

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Ch. QALAB-E-HUSSAIN

Versus

DIRECTOR-GENERAL, EXCISE AND TAXATION, PUNJAB, LAHORE and 3 others

Writ Petition No.2410 of 2003, decided on 26th February, 2003.

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

----S.9--Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Transfer of civil servant related to terms and conditions of service---Constitutional petition would not be maintainable in view of bar contained in Art. 212 of the Constitution.

Nazir Hussain's case 1992 SCMR 1843 ref.

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

----S.10---Constitution of Pakistan (1973), Art. 199---Punjab Service Tribunals Act (IX of 1974), S.4---Constitutional petition---Transfer---Civil servant alleged his transfer order to be mala fide---Validity---Question of mala fides could be raised before competent forum by filing appeal.

Muhammad Yamin's case PLD 1980 SC 22 ref.

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

----Art.199---Constitutional jurisdiction of High Court ---Scope--­Constitutional petition would not be maintainable qua intermediate stages.

Abdul Wahab’s case PLD 1989 SC 508 ref.

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

----S.9---Constitution of Pakistan (1973), Arts. 199 & 212---Punjab Service Tribunals Act (IX of 1974), S.4---Constitutional petition--Transfer---Non­ disposal of appeal/representation filed before Competent Authority by civil servant against his transfer order---Validity---High Court in spite of bar contained in Art.212 of the Constitution read with S.4 of Punjab Service, Tribunal Act, 1974, had ample jurisdiction to give direction to public functionaries to act strictly in accordance with law---High court directed Competent Authority to decide appeal/representation of civil servant in accordance with law within specified time after providing proper hearing to all concerned.

Fazal Elahi's case PLD 1980 SC 171 ref.

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

Ch. Muhammad Rafique Warraich for Petitioner.

Muhammad Hanif Khatana, A.A.-G. (on Court's call).

2003 P L C (C.S.) 975

[Lahore High Court]

Before Farrukh Lateef, J, ABDUL LATIF and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.7033 of 2002, decided on 2nd September, 2002.

Civil service-----

---- Constitution of Pakistan (1973), Art.199---Constitutional petition---­Appointment on posts of S.S. Educators---Qualification for---Qualification for appointment on post of S.S. Educators, as per the advertisement was M.A./M.Sc. and in addition thereto professional qualifications like M.Ed., M.A.Ed., M.S.Ed., B.S. Ed.---Candidates in circumstances, should have possessed on Academic Decree of M.A. or M.Sc. and a professional degree as well---Candidates did not possess degree of M.A. or M.Sc. as one of them possessed B.A. Degree while others possessed B.Sc. Degrees---Candidates though possessed requisite professional degrees of M.A. Ed. but requirement for post applied by them was that of an academic degree of M.A., M.Sc. which they did not possess---Candidates could not be deemed to possess requisite qualifications for the post applied for by them--­Direction could not be issued by High Court to Authorities to consider the candidates qualifications fit for the posts they had applied for.

Malik Muhammad Shabbir Langrial for Petitioners.

Tariq Murtaza Malizai for Respondents.

2003 P L C (C.S.) 985

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASHRAF CHATHA

Versus

DEPARTMENT OF EDUCATION through its Secretary, Secretariat, Lahore and 2 others

Writ Petition No.4433 of 2003, decided on 10th April, 2003

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

----Arts.199, 4 & 212---Service Tribunals Act (LXX of 1973), S.4---Appeal---Transfer order issued by the Authority was subsequently withdrawn---Representation before Authority was pending undecided---Bar contained in Art.212 of the Constitution read with S.4 of the Service Tribunals Act, 1973---Applicability---High Court had ample power to give direction to the public functionaries to act in accordance with law in exercise of its Constitutional jurisdiction.

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

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

----S.24-A---Public functionaries to decide the representations of citizens/their subordinates without fear, favour and nepotism, within reasonable time.

Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268 fol.

Ch. Fawwad Hussain for Petitioner.

Muhammad Hanif Khatana Addl, A.-G (on Court’s call).

2003 P L C (C.S.) 1018

[Lahore High Court]

Before Tanvir Bashir Ansari, J

Dr. NIGHAT BILAL

Versus

SECRETARY, MINISTRY OF HEALTH and others

Writ Petition. No.2334 of 2001, decided on 2nd December, 2002.

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

----SA(b)---Constitution of Pakistan (1973), Arts.199 & 212---General Clauses Act (X of 1897), S.21---Constitutional petition---Seniority---Locus poenitentiae principle of---Application---Petitioner while serving on deputation in BS. 18 was permanently absorbed in the borrowing Department in BS-19 through Notification dated 24-11-1994---Appeal filed by intervenor against grant of BS.19 to the petitioner was disposed of by Service Tribunal with direction to Department to consider intervenor against post of BS.19 lying vacant---Constitutional petition filed by petitioner against order dated 25-9-1997 directing her repatriation to parent Department was dismissed by High Court, but her Intra-Court Appeal was accepted on 8-11-1999 with observations that her .entitlement to grant of BS. 19 could be examined without disturbing her status as permanent employee of the Department--­Petitioner continued to perform her duties in BS.19 till then without any hindrance---Department on 3-5-2001 absorbed petitioner in BS.18 against a vacant post with her right of seniority w.e.f. 24-11-1994---Validity---Order of Service Tribunal had not been challenged for obvious reason that same was based upon consent of the parties---Status of petitioner in Grade. 19 had been duly accepted and acknowledged by the parties and continuously acted upon from 24-11-1994 uptill 3-5-2001---Petitioner had performed her duties in Grade-19 for one and a half years even after judgment in Intra-Court Appeal---Such conduct of respondents would preclude them from taking any receding steps to detriment of petitioner on principle of locus poenitentiae as Notification dated 24-11-1994 had taken legal effect and had created certain rights in her favour---Non-providing opportunity of hearing to petitioner before issuing Notification dated 3-5-2001 had .rendered same null and void and ineffective on her rights---Notification dated 3-5-2001 placing petitioner in Grade-18 involved question of her fitness to hold a particular post--­Jurisdiction of Service Tribunal to consider such question had been excluded under S.4(b) of Service Tribunals Act, 1973---High Court accepted Constitutional petition and set aside impugned notification declaring the petitioner to be permanent employee in Grade-19 within meaning of Notification dated 24-11-1994.

(b) Natural justice, principles of---

----Such principles would be read as part and parcel of all statutes, judicial, quasi judicial or administrative proceedings, unless applicability thereof was specifically excluded.

Qazi M. Jamil for Petitioner.

Qazi Ahmed Naeem Qureshi for the Federation.

Hafiz S.A. Rehman for Respondent.

Date of hearing: 30th October, 2002.

2003 P L C (C.S.) 1033

[Lahore High Court]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

Mst. SURRIYA ASMA

Versus

DISTRICT EDUCATION OFFICER (W.E.F.), LAYYAH

Infra-Court Appeal No. 16 of 2003 in Writ Petition No 7343 of 2002, decided on 3rd March, 2003.

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

----Preamble---Person serving as a civil servant and enjoying all benefits of, such service either on the basis of a valid appointment order or the bogus, one, no order detrimental to his service could be passed except by adopting relevant Efficiency and Discipline Rules by treating him as a civil servant.

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

----S.4(b)---Authority having power to determine fitness or otherwise of a person to be appointed or to hold a particular post---Appeal against order of such authority was not competent before the Service Tribunal.

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

----S.4---Appeal---Maintainability---Question as to whether the appointment order of the civil servant was valid or bogus being a different question from his being fit or otherwise, appeal concerning such question was competent before Service Tribunal.

Khyzar Hayat Khan Punian for Appellant.

2003 P L C (C.S.) 1037

[Lahore High Court]

Before Maulvi Anwarul Haq, J

PUNJAB TEXTILE WORKERS FEDERATION (REGD.) PUNJAB) through General Secretary, Chiniot Bazar, Faisalabad and another

Versus

PUNJAB PROVINCE WORKERS WELFARE BOARD through its Chairman/Secretary to Government of the Punjab, Labour and Men Power Department, Lahore and another

Writ Petition No.9268 of 1999, heard on 19th June, 2002.

Workers' Welfare Funds Ordinance (XXXVI of 1971)---

----Preamble, Ss.3, 4, 4-A, 11-A & 11-C(f)---Workers' Welfare Fund Rules, 1976, Sched. A---Punjab Province Workers Plot Allotment Regulations, 1976, Reglns. 3 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Establishment of Workers' Colonies--­Allotment of plots---Claim of development charges---Petitioners had challenged development charges claimed by Authority on ground that plots in colony established by Authority were to be given to petitioners free of cost---Validity---No provision existed in Workers' Welfare Funds Ordinance, 1971 and Rules and Regulations, 1976 authorising the Authority to claim development charges from workers who were eligible to allotment of plots and whose applications for allotment were allowed---Regulation 8 of Punjab Province Workers Plot Allotment Regulations, 1976 had provided that plots would be allotted to workers free of cost---Condition regarding payment of development charges having not been supported by provisions of Workers' Welfare Funds Ordinance, 1971 and Rules and Regulations framed thereunder, act of Authority claiming development charges in respect of plots allotted to eligible workers, was declared to be without lawful authority by High Court---Any amount charged from eligible allottees/petitioners would be refunded to them.

Sheikh Abdul Hamid for Petitioners.

Badar-ul-Amir Malik for Respondents.

Date of hearing: 19th June, 2002.

2003 P L C (C.S.) 1046

[Lahore High Court]

Before Justices Maulvi Anwarul Haq, Chairman, Nasim Sikandar and Muhammad Sayeed Akhtar, Members

MUHAMMAD AFZAL JAVED, ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE

Versus

LAHORE HIGH COURT, LAHORE through Registrar, Lahore High Court, Lahore and 2 others

Service Appeal No.67 of 1999, heard on 30th January, 2003.

Civil service---

---- Adverse remarks, expunction of---Civil servant felt aggrieved of adverse remarks entered in his A.C.R. for the period from 1-1-1994 to 6-7-1994--­A.C.Rs. of civil servant pertaining to a point of time both before and after said few months for which adverse entries had been made, did not contain any adverse entries---Authority could not bring any material on which disputed adverse entries might have been based---Even upon examination of impugned A.C.R. of civil servant, it had been found that Reporting Officer had over all graded civil servant to be average in Parts II, III & IV---While drawing pen picture, only observation was "nothing special"---In Part VI(a)(iii) of A.C.R. civil servant had been graded as an average officer while in Part VI(b)(ii) he had been reported to be fit for promotion on his turn---Said impugned entry was rather inconsistent with other entries in Part VI---Civil servant having earned good reports before as well as for period subsequent to disputed period, Reporting Officer should have stated with particularity as to how all of a sudden there was a change in the conduct and behaviour of civil servant, supported by sufficient material, but that had not been done by Reporting Officer which had resulted in grave prejudice to civil servant---Adverse remarks made in A.C.R. of civil servant for disputed period from 1-1-1994 to 6-7-1994, were expunged, in circumstances.

Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 PLC (C.S.) 1059 ref.

Mehmood Ahmed Qazi for Appellant.

Azam Rasool Malik and Nayyar Iqbal Ghauri for Respondents.

Date of hearing: 30th January, 2003.

2003 P L C (C. S.) 1049

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SARFRAZ KHAN ZAFAR

Versus

SECRETARY, GOVERNMENT OF PUNJAB, HOUSING URBAN DEVELOPMENT AND PUBLIC HEALTH ENGINEERING DEPARTMENT, LAHORE, and others

Writ Petition No. 1156 of 1999, decided on 12th February, 1999.

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

----S.9---Constitution of Pakistan (1973), Arts. 129, 130, 199 & 240(b)--­-Constitutional petition-- -Transfer letter---Local M.P.A. wrote a letter to Minister requesting him to give direction to Secretary of the Department to transfer some other person in place of the petitioner---Validity---Petitioner was governed by Civil Servants Act, 1974 and, Rules framed thereunder and Minister nowhere figured in those provisions, of law---Secretary of the Department was responsible to act in accordance with law and was not bound to accept direction of Minister---High Court sent copy of Constitutional petition to the Secretary with direction to look into the matter personally and pass appropriate order strictly in accordance with law.

Zahid Akhtar v. Province of Punjab 1995 SCMR 530 ref.

Dr. Ehsan-ul-Haque Khan for Petitioner.

2003 P L C (C.S.) 1053

[Lahore High Court]

Before Farrukh Lateef, J

HABIB-UR-REHMAN

Versus

REGIONAL COMMISSIONER OF INCOME TAX, CENTRAL REGION, MULTAN and 4 others

Writ Petition No.5782 of 1997, decided on 15th October, 2002.

Civil service---

----Promotion---Not a vested right---Basis of promotion is merit or suitability---Fitness or suitability for promotion to a particular post, determination of---Sole judge is the Competent Authority, its opinion cannot be substituted by Court--Equality guaranteed under Constitution cannot take away right of Authority to pick and choose proper persons for employment or promotion in Government service---Claim to promotion cannot be enforced by invoking Constitutional jurisdiction---Principles.

A claim to promotion by a civil servant is not a vested right and cannot be enforced by invoking Constitutional jurisdiction. The giving or refusal of promotion is a matter, which falls within the exclusive discretionary domain of Executive Authorities concerned in the matter.

Equality guaranteed under the Constitution cannot take away the right of Authority to pick and choose proper persons for employment or promotion in Government service. It is for the Promotion Authority to determine such suitability after assessment of all relevant, considerations such as seniority, competence, rectitude and antecedent official records. The basis of all promotions is merit or suitability and so far as suitability for promotion to a particular post is concerned, the sole judge is the competent authority; its opinion cannot be substituted by the Court.

Question of fitness or suitability for promotion is a matter of subjective evaluation on the basis of objective criteria and sole judge for such evaluation is the concerned competent authority, whose opinion cannot be substituted by the High Court in writ jurisdiction.

Mian Abbas Ahmad for Petitioner.

Ch. Sagheer Ahmad for Respondent

2003 P L C (C.S.) 1065

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHARIF BAJWA

Versus

FEDERATION OF PAKISTAN through Chairman, Pakistan Railways Headquarters, Lahore and 4 others

Writ Petition No.20073 of 2001, decided on 13th November, 2002.

(a) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction, exercise of---Scope---High Court has no jurisdiction to resolve disputed question of facts in Constitutional jurisdiction.

Muhammad Younas Khan's case 1993 SCMR 618 fol.

(b) Civil service---

----Pension---Right of civil servant and no more bounty of the State.

The Government of N.-W.F.P. v. Muhammad Said Khan and another PLD 1973 SC 514 fol.

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

---Art. 199---Civil service---Withholding of pension of petitioner without passing any order and providing opportunity of hearing---Validity---Neither petitioner nor respondents had filed order of Competent Authority, qua withholding pension of petitioner---High Court disposed of Constitutional petition with direction to respondent to look into the matter personally and pass appropriate order within specified time after providing opportunity of hearing to all concerned including petitioner.

Province of the Punjab v. Ch. Muhammad Akhtar 1986 PLC (C.S.) 1015; Syed Munir Hussain Shah v. Secretary, Livestock Dairy 1995 PLC (C.S.) 943; Muhammad Akram Butt, v. Government of Pakistan PLD 1978 Kar. 132; Rehmat Ullah v. The Secretary, Evacuee Property Trust Board 1972 SCMR 168; Muhammad Ashraf v. Dr. Muhammad Zaman and others 1994 SCMR 249; Anjuman-e-Ahmadia, Sargodha v. The D.C., Sargodha. PLD 1966 SC 639 and The Majlis-i-Intizamia v. The Secretary, Government of West Pakistan PLD 1963 SC 109 ref.

Ch. Muhammad Hanif Zahid for Petitioner.

Irfan Masud Sheikh, Legal Advisor for Respondents.

2003 P L C (C.S.) 1084

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

KHIZER HAYAT

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), SIALKOT and 2 others

Writ Petition No. 11743 of 2002 decided on 3rd July, 2002.

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

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Appointment, cancellation of---Petitioner was appointed as P.T.C. Teacher, but his appointment was cancelled alongwith other 113 teachers--­Petitioner did not file appeal against cancellation of his appointment while all others filed appeals before Service Tribunal which were accepted and they were directed to be reinstated in service---Petitioner who had not filed appeal had claimed that he was also entitled to same treatment which had been given to others and that he could not be discriminated---Petitioner who neither had filed any representation nor had filed appeal before Service Tribunal, his matter had attained finality to the extent of cancellation of his appointment--­Each case had its own merits and it could not be said that petitioner's case was at par with the case of other civil servants who had sought relief from competent forum---High Court could not entertain Constitutional petition of the petitioner against order of cancellation of appointment and could not direct Authorities to reinstate him in service as his matter related to terms and conditions of service---Petitioner should have tiled appeal before Service Tribunal, but he having not done so, would suffer for the same.

1996 SCMR 1185 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 3rd July, 2002.

2003 P L C (C.S.) 1089

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

ZULFIQAR ALI

Versus

SECRETARY EDUCATION

Writ Petition No. 13301 of 2002, decided on 12th August, 2002.

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

----R.6---Constitution of Pakistan (1973), Arts. 199 & 212---Show-cause notice---Concept, effect and validity---Constitutional petition against issuance of show-cause notice---Maintainability---Issuance of a show-cause notice was not an adverse action, but was a step towards the passing of a final order which was challengeable before Service Tribunal---High Court could not entertain Constitutional petition due to bar contained under Art. 212 of Constitution of Pakistan (1973)---Issuance of show-cause notice under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 related to terms and conditions of a civil servant.

PLD 1962 (W.P.) Lah. 935; 1993 SCMR 603; 2000 PLC (C.S.) 937; 1992 SCMR 1134; 1998 CLC 1890; 1986 SCMR 790; 1994 SCMR 2232; 1998 PLC (C.S.) 70; 1998 PLC (C.S.) 1213; 1998 PLC (C.S.) 607: 1997 SCMR 1508 = 1997 PLC (C.S.) 971 and 1998 PLC (C.S.) 931 ref.

Pervaiz Inayat Malik for Petitioner.

M. Bilal Khan, Addl. A.-G. for Respondent.

Date of hearing: 12th August, 2002.

2003 P L C (C.S.) 1105

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YASIN SAQIB

Versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION CORPORATION; ISLAMABAD and 7 ethers

Writ Petition No. 24009 of 2000, decided on 8th August, 2002.

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

----Art.199(1)(b)(ii)---Civil service---Writ of quo warranto, issuance of--­Authority in order to implement direction of Supreme Court given in its judgment, constituted a Committee to consider equivalence of B.Tech.(Hons.) Degree with B.Sc. BE. Degree in the light of decision of Supreme Court---Committee after discussing in detail case of equivalence decided that candidates holding qualification of B.Tech.(Hons.) were to be considered for promotion---As per recommendations of the Committee, two persons were promoted as Assistant Divisional Engineers---Order for formation of Committee and said order of the promotion were not challenged by any one---Petitioner had filed petition after about three years from the formation of Committee and the promotion on which petitioner had prayed for issuance of a direction in the nature of quo warranto asking the promotees as to under what authority of law they were holding promoted posts and that they be restrained from acting as such ---Petitioner had failed to show any reason that why he did not challenge formation of Committee and promotion soon after passing orders in that respect---Writ filed by petitioner was hit by laches---Petitioner if had any grievance, could file representation against the said promotion and in case of dismissal of his representation, he could approach the Service Tribunal---Writ of quo warranto, otherwise could not be issued as petitioner himself was party---Writ of quo warranto was not maintainable if it was filed by an interested person or who was affected, himself by impugned order.

(b) Constitution of Pakistan (1973)--

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4--­Constitutional jurisdiction, exercise of---Due to bar contained under Art. 212 of Constitution of Pakistan (1973); matters relating to terms and conditions of service, could not be entertained in Constitutional jurisdiction of High Court even under the garb of issuance of illegal Notification---Orders even if passed without jurisdiction, with mala fide intention or on political basis, could only be challenged before Service Tribunal.

Zahid Akhtar's case PLD 1995 SC 530 ref.

Ch. Irshadullah Chatha for Petitioner

2003 P L C (C.S.) 1119

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD NAWAZ

Versus

PUNJAB SERVICE TRIBUNAL and others

Writ Petition No. 13480 of 2002, decided on 26th July, 2002.

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

----Ss.3(3)(a) & 4(2)(a)---Constitution of Pakistan (1973), Art.199 & 212(3)---Constitutional petition--Removal from service---Constitution of Service Tribunal---Appeal against order of removal from service filed by civil servant having been dismissed by Service Tribunal, civil servant filed Constitutional petition---Petitioner/civil servant had challenged the very constitution of Service Tribunal alleging that same was constituted in violation of mandatory provisions of Ss.3(3)(a) & 4(2)(a) of Punjab Service Tribunals Act, 1974---Petitioner having himself approached Service Tribunal, after dismissal of his appeal he was barred by his own acquiescence to challenge vires of composition of Service Tribunal---Petitioner was not allowed under law to approbate and reprobate and would not, be heard challenging jurisdiction which he himself had invoked--Petitioner having alternate remedy to file appeal before Supreme Court by virtue of Art. 212(3) of Constitution of Pakistan (1973) Constitutional petition before High Court was not maintainable.

Qayyum Nawaz and 9 others v. N.-W.F.P. and 4 others 1999 SCMR 2331; Khalid Siddique v. Secretary, Excise and Taxation Department; Government of Punjab, Lahore and 2 others 2000 SCMR 554; Ch. Muhammad Ismail v. Fazalzada, Civil Judge and others PLD 1996 SC 246; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Ghulam Muhammad v. Muhammad Din 1989 MLD 488; Ch. Haq Nawaz Chuhan v: Tariq Azam and others 1994 CLC 1530; Rice Export Corporation of Pakistan (Pvt.) Ltd. v. The Chairman, Labour Appellate Tribunal and others 1993 PLC 287 and Syed Nazar Hussain Zaidi's case 1981 SCMR 402 ref.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. (on Court's Call).

Date of hearing: 26th July, 2002.

2003 P L C (C.S.) 1126

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Lt.-Col. (R) ABDUL WAJID MALIK

Versus

SAEED AHMAD KHAN, SECRETARY (SERVICES), S&GAD, Civil Secretariat, Lahore and 2 others

Criminal Original No. 1019/W of 2002, decided on 24th October, 2002.

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

----S.3---Punjab Civil Service Pension Rules, 1963, R.1.8---Constitution of Pakistan (1973), Art. 204---Petition for contempt of Court---Petitioner having retired on teaching age of superannuation had applied to the Competent Authority for release of his pension---Respondent had not released pension of the petitioner---Being aggrieved with the act of the respondent, petitioner had tiled contempt petition praying therein that the respondents be charged and punished for committing wilful disobedience of the settled law as laid down by the Supreme Court---Validity---Mere reading of the reply set to the petitioner following his letter to the respondents had revealed that the respondents had not committed contempt of the Supreme Court as they did not flout the judgment of the Supreme Court---Petitioner being a civil servant had alternative remedy to file appeal before the Service Tribunal---High court dismissed the petition as being not maintainable as well as on merits.

Capital Development Authority v. Sub. Faqir Shah PLD 2002 SC 243; Farhat Azeem v. Waheed-ur-Rasool and others PLD 2000 SC 18; Province of Punjab v. Dr. S. Muhammad Zafar Bokhari PLD 1997 SC 351; Ashfaq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 and Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 ref.

Malik Waqar Saleem for Petitioner.

2003 P L C (C.S.) 1146

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

AKHTAR MEHMOOD

Versus

DEPUTY COMMISSIONER, GUJRAT and another

Writ Petition No. 10888 of 1996, heard on 4th March, 2003.

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

----S.2---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Appointment---Political influence---Chief Minister had no authority, under the provisions of Punjab Civil Servants Act; 1974 to give direction to Appointing Authority to appoint a person of his own choice---Appointment letter issued by Appointing Authority under the direction of the, Chief Minister was not sustainable; in the eyes of law.

Ghulam Mohy-ud-Din's case PLD 1964 SC 829 rel.

(b) Civil service---

----Appointment---"Locus poenitentiae", principle of---Applicability---Where order was not issued by the Competent Authority after applying its independent mind in terms of advertisement issued for the recruitment and where there were no recommendations for the Recruitment Committee in favour of person appointed, principle of "locus poenitentiae" was not attracted.

Jalal Din's case PLD 1992 SC 207 ref.

Shaukat Refique Bajwa for Petitioner.

Mean Hameed-ud-Din Kasuri, D.A.G. for Respondent No.2.

Date of hearing: 4th March, 2003.

2003 P L C (C.S.) 1157

[Lahore High Court]

Before Mian Saqib Nisar, J

MUHAMMAD AFZAL KHAN NIAZI

Versus

THE PRINCIPAL, SADIQ PUBLIC SCHOOL, BAHAWALPUR

Writ Petition No, 5602 of 2001, heard on 16th July, 2002.

(a) Constitutional of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Constitutional petition against a Public School---Respondent being a 'person' Constitutional petition was competent against him.

Muhammad Zubair Ikram v. Aitchisan College Lahore through Principal PLD 2000 Lah. 489 fol.

(b) Constitution of Pakistan (1973)--

----Art.199---Constitutional petition---No statutory rules of employment applicable to the Corporation/respondent---Question whether Constitutional petition could be enforced on the basis of wrongful termination of an employee against respondent/statutory Corporation---Employment of employees of statutory Corporation being not regulated by statutory rules any wrongful termination would not be subject of Constitutional jurisdiction but an aggrieved employee could agitate the matter in Civil Court.

The Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC 170; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 and Ijaz Hussain Suleri v. The Registrar an another 1999 SCMR 2381 ref.

PLD 2000 Lah. 489 distinguished.

Chaudhry Parmoon Bashir for Petitioner.

Sardar Riaz Ahmad Dahar for Respondent.

Date of hearing: 16th July, 2002.

2003 P L C (C.S.) 1161

[Lahore High Court]

Before Syed Jamshed Ali, J

FARRUKH BASHIR

Versus

FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD through Secretary and 2 others

Writ Petitions Nos.601, 627 and 579 of 2003, heard on 14th April, 2003.

(a) Physical Examination of Candidates For Competitive Examination Regulations, 2001---

----Reglns.1, 5, 10, 21, 23 & 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Declaring candidates unfit on medical grounds---Petitioners/candidates serving as Doctors, appeared in CSS Examination and were temporarily declared unfit for having defective vision, being overweight and due to Hypertension etc ---To be medically fit or unfit was one thing and to be unfit for efficient discharge of duties was quite another---Central Medical Board or Appellate Board in the present case, did not record their opinion that the defects notified by them in two out of three candidates were likely to interfere in efficient discharge of duties as required by Regln. No.24 of Physical Examination of Candidates for Competitive Examination, Regulations, 2001 which was mandatory in nature---Candidate who had successfully competed for the Examination should not be eliminated unless defect was of such a nature which was likely to interfere with the efficient performance of his duties as an officer---In case of two candidates, only Ophthalmologist, while examining said candidates with reference to decision of Central Medical Board, had given a favourable report, but contrary to his earlier opinion, while sitting as Member of Appellate Board, he found said candidates unfit---Inconsistent opinion of the Doctor had eroded credibility of his opinion as member of Appellate Board and it could not be relied upon---Said candidates were also found to be overweight---Civil Surgeon had expressed his opinion before High Court, that weight alone would not stand in the way of efficient performance of duties---Regulations had only provided for minimum weight and not maximum weight which otherwise, was capable of reduction---Other candidate was declared unfit due to hypertension and her detailed examination by Central Medical Board had not been placed on record nor decision taken by Appellate Board had been brought on the record---Physical Examination of Candidates for Competitive Examination Regulations, 2001, did not specify hypertension as a disqualifying factor---Central Medical Board while declaring three petitioners/candidates unfit did not comply with Regln. 24 which was mandatory and could no be left td guesswork---Non-compliance of Regln. 24 at least would create a doubt whether Central Medical Board or Appellate Board were only recoiling their opinion as to medical fitness or it necessarily included fitness for service in Federal Government and benefit of doubt had to go to candidates rather to Central Medical Board or Appellate Board---No motive though had been attributed to the Members of Central Medical Board or Appellate Board, their opinion was not sacrosanct because mandatory provisions of Regln. 24 of Physical Examination of candidates for Competitive Examination Regulations, 2001, were not kept in view by the Boards---Constitutional petitions filed by petitioners/candidates were allowed with direction to the authorities to constitute Appellate Medical Board accordingly:

Government of Sindh through the Chief Secretary v. Khalid Ahmed and others 1994 SCMR 782; Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 and Chairman, East Pakistan Railway Board, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan Railway PLD 1966 SC 725 ref.

(b) Physical Examination of Candidates for Competitive Examination Regulations, 2001---

----Regln.1---Constitution of Pakistan (1973), Arts. 4 & 199---Constitutional petition---Absolute discretion, exercise of---Authorities had relied on Regln. No. 1 of Physical Examination of Candidates for Competitive Examination Regulations, 2001 which had invested "absolute discretion" in the Government of Pakistan to reject as unfit any candidate---'Absolute discretion' of Federal Government was regulated by report of Medical Board and though the discretion was not limited by said Regulations, but decision to finally accept or reject a candidate was to be taken in a just, fair and proper manner---Concept of "absolute discretion" does not exist in law as it was wholly incompatible with the guarantee provided by Art. 4 of the Constitution of Pakistan (1973)---"Absolute discretion" was a ruthless master and unless it was structured, it was likely to be abused---Such a- provision would be ex facie discriminatory.

Ch. Riyasat Ali and Malik Noor Muhammad Awan for Appellant.

Sher Zaman Khan, Deputy Attorney-General for Respondent.

Date of hearing: 14th April, 2003.

2003 P L C (C.S.) 1186

[Lahore High Court]

Before Muhammad Khalid Alvi, J

Malik FAZAL ABBAS

Versus

SECRETARY TO THE GOVERNMENT OF PUNJAB, EXCISE AND TAXATION DEPARTMENT and 2 others

Writ Petition No. 1282 of 2003, decided on 3rd April, 2003.

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

----S.5(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Enforcement of order of Service Tribunal---Petitioner/civil servant, through Constitutional petition had challenged inaction of the Authorities by not complying with order passed by Service Tribunal---Petitioner prayed the High Court to issue an appropriate writ for enforcement of the order of Service Tribunal---Validity---Service Tribunal being a "Civil Court" within meaning of S.5(2) of Punjab Service Tribunals Act, 1974, for the purpose of deciding appeal, it had all the powers of a "Civil Curt" provided under C.P.C.---Section 36, C.P.C. had provided that all provisions of C.P.C. relating to execution of decrees would be applicable for execution of orders as well---Service Tribunal would have all powers of Civil Court to bring issue before it to its logical end like Civil Court---Service Tribunal could get its order enforced/executed---Petitioner having alternate and efficacious remedy before Service Tribunal, available to him under law, Constitutional petition was not maintainable.

Iqbal Hussain Panwar Hajveri for Petitioner.

Muhammad Jahangir Arshad A.A.-G. (on Court's Call).

2003 P L C (C.S.) 1191

[Lahore High Court]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

Dr. KHALIL-UR-REHMAN BHATTI

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Writ Petition No. 16997 of 1996, heard on 6th February, 2002.

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

----Ss.3 & 33---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pakistan Medical and Dental-Council, in exercise of its power conferred upon it under S.33 of Medical and Dental Council Ordinance, 1962 framed Regulations for appointment of Lecturers/Senior Registrars. Professors, Associate Professors and Examiners whereunder, it had beer incorporated that qualifications for the appointment of certain post mentioned in said Regulations were in order of priority---Petitioner; contended that Regulations had been framed by Council without jurisdiction and in excess of its powers---Validity---Council under S.33(2)(d) of Medical and Dental Council Ordinance, 1962 was only empowered to prescribe minimum qualifications and experience required for teachers for appointment in Medial and Dental Institutions and nowhere provided that Council while prescribing minimum qualifications, could fix a priority amongst the minimum qualifications---Council while framing Regulations derived its powers from S.33 of Medical and Dental Council Ordinance, 1962 only--­Impugned Regulations had shown that before providing the qualifications, it had been specifically mentioned that "the qualifications mentioned in these Regulations were in order of priority"---Council under provisions of S.33(2)(d) of Medical and Dental Council Ordinance, 1962 could prescribe the minimum qualification, but it could not provide order of priority which would be left to the discretion of Appointing. Authority---Council had no powers of classification or to fix the priority while prescribing minimum qualifications for different posts under the Regulations---Candidates for said posts ultimately were to be adjudged by Selecting Authorities for the purpose of appointment or promotion and comparative value of basic or additional qualifications were to be adjudged by said Authorities for the posts High Court allowed Constitutional petition to the extent that Regulations classifying order of priority/preference amongst different qualifications, otherwise recognized, were illegal and, without lawful authority.

Pakistan Medical and Dental Council v. Dr. Zeb-un-Nisa 1991 SCMR 536 ref.

Muhammad Akram Qureshi for Petitioner.

Muhammad Ishaq Ch. for Respondent No.4.

Nemo for the Remaining Respondents.

Date of hearing: 6th February, 2002.

2003 P L C (C.S.) 1201

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

BADAR ZAMAN

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment and another

Writ Petition No.5338 of 2003, decided on 28th April, 2003.

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

----S.2-A---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.2(aa), 10 & 12---Pakistan Postal Services Management Board Ordinance (CXXVI of 2002), S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Maintainability---Vires of Pakistan Postal Services---Management Board Ordinance, 2002---Matter agitated in the petition pertained to the terms and conditions of service, Constitutional petition was not maintainable---Constitutional petition, even otherwise was not maintainable as petitioners had alternate remedy to file appeal before competent Tribunal in view of S. 1,0 of Removal from Service (Special Powers) Ordinance, 2000---Petitioner having challenged vires of Pakistan Postal Services Management Board Ordinance, 2002, Constitutional petition was not maintainable---Contention of petitioner that action against him was finally taken by incompetent Authority, had no force.

United Bank Ltd. v. Islamic Republic of Pakistan PLD 1999 SC 990; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153 and M. Yameen Qureshi's case PLD 1980 SC 22 ref.

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

----Art. 199---Constitutional petition---Maintainability---Constitutional petition was not maintainable qua intermediate stages.

Abdul Wahab's case PLD 1989 SC 508 ref.

Ch. Naseer Ahmad Bhutta for Petitioner.

Sher Zaman Khan, Deputy Attorney-General for, Pakistan (on Court’s call).

2003 P L C (C.S.) 1218

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Mst. JAMILA BEGUM

Versus

THE GENERAL MANAGER, PAKISTAN RAILWAYS, LAHORE and 2 others

Writ Petition No. 13458 of 1998, heard on 19th September, 2001.

Pakistan Railway Servants Benevolent Fund (Disbursements) Rules, 1969---

----R.3(1)(e)(i)---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Grant from the benevolent fund---Petitioner had contended that after the death of her husband on 1-5-1972 who was an employee of the respondents Pakistan Railways, grant from the benevolent fund had been sanctioned to her for her lifetime or till her re-marriage but it had not been paid to her despite the fact that she had not been remarried---Petitioner had sought direction for the respondent that she be paid the grant of benevolent fund for her lifetime---Validity---Admittedly the benevolent fund grant had been sanctioned vide letter dated 12-7-1972 and was for lifetime or till the remarriage of the petitioner---Fact that the petitioner had not remarried was not disputed---Sanction had been accorded and was acted upon and the respondent-Department could not be permitted to resile from the same---High Court allowed the writ petition and the respondent-Department was directed to pay the sanctioned benevolent fund grant as admissible to the petitioner.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 ref.

Muhammad Akram Javaid for Appellant.

Muhammad Aslam Sandhu for Respondent.

Date of hearing: 19th September, 2001.

2003 P L C (C. S.) 1222

[Lahore High Court]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

Dr. NEELAM HUSSAIN

Versus

Dr. RAZIA PARVEEN QURESHI and 2 others

Intra-Court Appeal No.606 of 2001 in Writ Petition No.4017 of 1998, decided on 26th May, 2003.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art. 199---Intra-Court appeal---Constitutional petition--­Maintainability-- Question of maintainability of Constitutional petition decided in favour of appellant in earlier Intra-Court appeal was, not challenged by either of the parties---Such judgment had attained finality.

PLD 1987 SC 145 rel.

(b) Interpretation of statutes---

---- Court cannot supply casus omissus meaning thereby that Court is not competent to fill up omission on part of Legislature.

Muhammad Ayyub v. Abdul Khaliq 1990 MLD 1293 rel.

(c) Interpretation of statutes---

----If language of enacting part of statute does not contain provisions, which should occur in it, then Court cannot derive such provisions by implication in statute.

Governor-General of Council v. Municipal Corporation, Madras PLD 1948 PC 211 rel.

(d) Interpretation of statutes---

---- Court had no power to fill any gaps found in an enactment.

Khizar Hayat and others v. Commissioner, Sargodha PLD 1965 Lah. 349 rel.

(e) Interpretation of statutes---

---- Court not competent to depart from plain meaning of expression used in statute.

Rehmat Khan's case 1993 CLC 412 rel.

(f) Interpretation of statutes---

---- Pith and substance of enactment should be considered to find out its true nature and character.

Shamim-ur-Rehman's case PLD 1983 SC 457 rel.

(g) Interpretation of statutes---

---- Intention of Legislature is primarily gathered from language used in the contents of statute.

Iqbal Muhammad Ihsan's case 1992 PLC 549 rel.

(h) Interpretation of statutes---

---- Plain reading of statute is the best rule of interpretation.

Trustees of Fort of Karachi's case 1990 CLC 197 rel.

(i) Interpretation of statutes---

---- Law cannot be interpreted differently simply on ground of hardship--­Intention of statute must be gathered from plain and unambiguous expression used therein rather than from any notion.

Muhammad Ayyub v. Abdul Khaliq 1990 MLD 1293 rel.

(j) Interpretation of statutes---

----Maxim: "Ejusdem generis", doctrine of---Meaning---Where general words immediately follow or are closely associated with specific words, then their meaning must be limited by reference to preceding words.

Don Basoo High School v. The Assistant Director, E. O. B. I. and others PLD 1989 SC 128 rel.

(k) Interpretation of statutes---

---- Headings, marginal notes and punctuation of an enactment---Importance and status of.

Statutory Interpretation by Francis Bennion ref.

(l) Interpretation of statutes---

---- Way an enactment is punctuated may assist in determining whether it is to be read distributively, though same cannot be relied on.

(m) Interpretation of statutes---

---- Court in order to ascertain meaning of a statute has to look to punctuation to make interpretation reasonable and consistent with the statute.

Zubair Ahmad v. Sindh Labour Appellate Tribunal, Karachi PLD 1985 Kar. 760; New Jubilee Insurance Co. Ltd. v. Enquiry Officer, War Risks Insurance and another 1985 SCMR 1317 and Taylor v. Charles Bleach ILR 37 Mad. 113 rel.

(n) Interpretation of statutes---

----Punctuation---When there was no inconsistency, absurdity or ambiguity in a statute as officially printed and punctuated, Court would not give same a different meaning by changing punctuation.

Rocca v. Boyle 166 Col. 94 and American Jurisprudence, Vol. 50. pp. 250, 253 rel.

(o) Interpretation of statutes---

--- -Position of "comma" is extremely important.

Committee of Fruit Marketing v. Collins (1925) 3h CLR 410 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

(p) Interpretation of statutes---

----Punctuation in statute should not be ignored---If punctuation was in accord with suggested meaning of statute, then same would be an important additional reason for acceptance of such meaning.

Thakur Jaikrit Singh and others v. Sohan Raj AIR 1959 Raj. 64 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

(q) Interpretation of statutes---

---- Word "etc. " would be given its ordinary dictionary meaning.

Dr. Habib-ur-Rehman's case PLD 1973 SC 144 rel.

(r) Constitution of Pakistan (1973)---

----Art. 199---Punjab Public Service Commission Regulations, 1998, Regln. 2(n)(o)(p)(q)---Policy Decision No.21, para. 13(b)(ii)---Policy Decision No.22, paras. 4 & 5---Punjab Public Service Commission (Functions) Rules, 1978, R.2(2)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Constitutional petition---Post of Assistant Professor---Public Service Commission recommended appellant for appointment against such post on basis of marks obtained in interview---High Court accepted Constitutional petition filed by respondent by awarding her 0.5 marks for additional qualification---Validity---Word "etc. " as used in para. 13(b)(ii) of Policy Decision No.21 would be given its ordinary dictionary meaning---Meaning of such word was fully covered by legal maxim "ejusdem generis"--- Disploma secured by a person must be in terms of diploma in Computer Science, B. Ed, etc., according to para. 13(b)(ii) of Policy Decision No.21---Respondent had secured diploma in Guiney, which was not synonymous or in accordance with Computer Science or B.Ed.--­High Court in its Constitutional jurisdiction has erred in law to grant 0.5 marks being not in accord with plain reading of para. 13(b)(ii) of Policy Decision No.21---Regulations and. Instructions had been issued by Competent Authority to hold competitive examination, thus, having the force of law---High Court had erred in law to rely upon para. 5 of Policy Decision No.22, which would not play any role in such case---If interpretation of High Court was accepted, then para. 4 of Policy Decision No.22 would become redundant---Intra-Court appeal was accepted.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Radaka Corporation v. Collector of Customs 1989 SCMR 353 and Dr. Habib-ur-­Rehman's case PLD 1973 SC 144 ref.

(s) Words and phrases--

----"Etc. "---Meaning.

Kitabistan Dictionary and Black's Law Dictionary, Sixth Edn. rel.

(t) Interpretation of statutes---

-----Plain meaning must be given weight while interpreting provisions of law or instructions of policy decisions.

(u) Interpretation of statutes---

----Departmental practice---Departure from---Scope---Where departmental practice followed a particular practice in implementation of some rule, whether right or wrong, then it would be extremely unfair to make a departure from same after lapse of many years and thereby disturb right that has been settled by a long and consistent course of practice.

Radaka Corporation v. Collector of Customs 1989 SCMR 353; Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Miss Abeeba Zakiya v. Deputy Director 1984 CLC 1331; Altaf Ahmad Asmat v. Sarfraz Hussain 1984 CLC 1308; The United Netherlands Navigation v. The Commissioner PLD 1965 SC 412 and Mst. Karmon v. Jowand Singh and others AIR 1931 Lah. 320 rel.

(v) Constitution of Pakistan (1973)---

----Art. 199---Action of Public Service Commission not in accordance with Policy decisions---High Court had ample jurisdiction to entertain Constitutional petition against such action.

(w) Interpretation of statutes---

--- Policy decision must be read as a whole.

Hamid Khan for Appellant.

Shahzad Shaukat for Respondent No. 1.

Mushtaq Ahmad Mahal for Respondent No.2.

M. Hanif Khattana, Addl. A.-G. for Respondent No.3.

Date of hearing: 26th May, 2003.

2003 P L C (C.S.) 1258

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SALIM SADIQ

Versus

GOVERNMENT OF PUNJAB through Secretary Education, Civil Secretariat, Lahore and 3 others

Petition No.6232 of 2003, decided on 14th May, 2003.

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

----Rr. 5, 6, 7-A & 7-C---Constitution of Pakistan (1973), Arts. 199, 4, 5(2) & 212---Constitutional petition---Non-compliance of Rules and inaction of public functionaries---Petitioner had challenged inaction of Authorities and had alleged that Authorities had failed to comply with the Rules---Petitioner, being a civil servant and his matter pertained to terms and conditions of service, could not maintain Constitutional petition---Constitutional petition qua the intermediary stage with regard to terms and conditions of service was not maintainable--Public functionaries were duty bound to act in accordance with .law as envisaged by Art. 4 of the Constitution---Constitution was a social binding contract between the Executive; the Legislature and the Judiciary which command that each and every such tier must obey the dictates of Constitution as envisaged by Art. 5(2) of Constitution of Pakistan (1973)---Even Chief Executive of the country was not above the Constitution---Public functionaries were duty bound to decide controversies of their subordinates with reasons and within reasonable time and nobody should be penalized by the inaction of public functionaries---Despite the bar contained is Art. 212 of Constitution, High Court had ample jurisdiction to give the directions to the public functionaries to act in accordance with law by virtue of its Arts. 4 & 199.

Ch. Yar Muhammad Durraiana v. Government of the Punjab 1992 PLC (C.S.) 95; M. Yamin Qureshi's case PLD 1980 SC 22; Abdul Bart's case PLD 1981 Kar. 290; Muzaffar Hussain's case PLC 2000 (C.S.) 442; Abdul Wahab's case PLD 1989 SC 508; Ch. Zahoor Elahi's case PLD 1975 SC 383; Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268; Ahmad Latif Qureshi's case PLD 1994 Lah. 3 and H.M. Rizvi's case PLD 1981 SC 612 ref.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. (on Const's Call) for Respondents.

Date of hearing: 14th May, 2003.

2003 P L C (C.S.) 1265

[Lahore High Court]

Before Maulvi Anwarul Haq, J

ARIF MUHAMMAD QAZI and.30 others

Versus

THE FEDERATION OF PAKISTAN through Secretary and 8 others

Writ Petition No. 144 of 1998, heard on 8th May, 2003.

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

‑‑‑Ss. 2(1)(a) & 23‑‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Part III‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Ad hoc appointment‑‑‑Categorisation of ad hoc appointees as per formula devised by Government to regularize their service: firstly appointees duly qualified recruited after invitation of applications through advertisement and observance of quota; and secondly appointees lacking in requisite qualification appointed without observance of quota and invitation of applications through advertisement‑‑‑Cases falling in first category were required to be referred to Public Service Commission for confirmation, while appointees falling in second category were required to compete with fresh candidates before Commission for selection‑‑‑Validity‑‑­Question of duly qualified or lacking requisite qualification at time of ad hoc appointment constituted an intelligible differentia having rationale with the exercise to be undertaken by Government‑‑‑Ad hoc appointees had nothing to do with observance of quota or invitation of applications through advertisement‑‑‑Such formalities would be observed by Appointing Authority and in case of any lapse on their part, duly qualified appointees would not suffer for same as their cases were being sent to Commission for consideration‑‑‑Commission itself had lodged protest on such categorization with Government‑‑‑None of the ad hoc appointees irrespective of such categories had been appointed in manner prescribed‑‑‑Notwithstanding such categorizations, ultimate decision would lie with Commission‑‑‑High Court disposed of Constitutional petitions with directions to Authority to send cases of appointees failing in category first to Commission for consideration and taking decision thereon, and in case of any difficulty, matter could be referred to President in terms of S.23 of Civil Servants Act, 1973.

Writ Petition No. 2087 of 1999; Dr. Naveeda Tufail and 72 others v. Government of Punjab 2003 PLC (C.S.) 69 and Criminal Original Petition No. 13 of 2003 ref.

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

‑‑‑‑S.2(1)(a)‑‑‑Ad hoc appointees allowed to continue indefinitely, when there was no "pending recruitment" within meaning of S.2(1)(a) of Civil Servants Act, 1973‑‑‑Held, observations made by Supreme Court in Dr. Naveeda Rasool's case (2003 PLC (C.S.) 69) and implementation of such judgment through order dated 24‑4‑2003 of Supreme Court would apply to such case.

Dr. Naveeda Tufail and 72 others v. Government of Punjab 2003 PLC (C.S.) 69 and Criminal Original Petition No. 13 of 2003 rel.

Dr. G.S. Khan for Petitioner.

Ch. Sultan Mansoor, D.A.‑G. and Miss Shaista Altaf for Respondents.

Date of hearing: 8th May, 2003.

2003 P L C (C.S.) 1274

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Miss FAUZIA YAQOOB

Versus

ASSISTANT POST MASTER GENERAL, PUNJAB, LAHORE and others

Writ Petition No.4920 of 2003, decided on 3rd July, 2003.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4--­Constitutional petition---Maintainability---Vested right---Non-issuance of appointment letter---Failure to attach documents in support of report and parawise comments---Grievance of petitioner was that she appeared in written test and interview and secured first position on merit but appointment letter was not issued to her---Contention of the Authorities was that there were some irregularities in the written test---Further contention was that the petition was not maintainable as jurisdiction of High Court was barred under Art. 212 of the constitution read with S.4 of Service Tribunals Act, 1973--­Validity---Petitioner, having not been inducted in service by the Authorities, the jurisdiction of High Court was not barred under Art. 212 of the Constitution read with S.4 of Service Tribunals Act, 1973---Authorities failed to attach any document along with the report and parawise comments alleging that some irregularities were committed by the Authorities at the time of holding written test and interview, therefore, Authorities failed to substantiate the parawise comments---High Court directed the Authorities to issue appointment letter to the petitioner---Petition was Allowed in circumstances.

Dr. Ahmad Suleman Waris v. Dr. Naeem Akhtar PLD 1997 SC 382; Army Welfare's case 1992 SCMR 1652; Abdul Jabbar Maimen's case 1996 SCMR 1349; Munawar Khan's case 1993 SCMR 1287; Ubaid Ullah's case PLD 1997 SC 835 and Ghulam Mustafa's case 1998 PLC (C.S.) 274 ref.

Muhammad Iqbal Mohal for Petitioner

Sher Zaman Khan, Deputy Attorney-General and Muhammad Shakot, Division Superintendent, Post Services, Sialkot for Respondents.

2003 P L C (C.S.) 1296

[Lahore High Court]

Present: M. Javed Buttar, J

MUHAMMAD TUFAIL

Versus

EXECUTIVE ENGINEER, LAHORE ELECTRIC SUPPLY COMPANY LIMITED, LAHORE and another

Writ Petitions Nos.12383, 17705, 23477, 9812 of 1999, 18950, 20991, 7313 and 9120 of 2000, decided on 20th February, 2003.

Constitution of Pakistan (1973)---

----Arts. 199 & 212(2)---Constitutional petition, maintainability of--­Petitioners who were employees of Electric Supply Companies were compulsory retired/dismissed from- service/removed from service--­Validity---Said companies were limited by shares, registered under Companies Ordinance, 1984 and were not statutory Corporations and Federal Government did not own any share in the said Companies---Companies being merey commercial organizations, law of master and servant was fully attracted in the cases---Officials of said two Companies who had passed orders against petitioners, being not Public Functionaries, orders passed by said officials could not be challenged by petitioners under Art. 199 of Constitution---Petitioners, could sue said companies for damages for their alleged illegal compulsory retirement, dismissal from service, removal from service or reversion in rank---Orders passed against petitioners, also could not be challenged before Service Tribunal because said orders were passed by officials of a public limited company which were not even statutory organizations, could not be challenged before Service Tribunal as orders impugned before Service tribunal had to be passed by a Competent Authority which could be a departmental Competent Authority---Remedy of Constitutional petition under Art. 199 of Constitution would also be not available to petitioners due to bar as contained in Art. 212(2) of Constitution of Pakistan (1973).

Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 PLC (C.S.) 817; Ahmad Hussain Qureshi v. Chairman, Water and Power Development Authority and another PLD 1967 Lah. 796; Fayyaz Ali Khan v. The Government of West Pakistan through the Secretary, Transport Department and another 1971 SCMR 454; Ch. Muhammad Ashraf v. Punjab Road Transport Board, Lahore and 2 others 1980 PLC 409; Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others PLD 1980 Quetta 58 and Mian Inamul Mulk v. N.-W.F.P. through Chief Secretary PLD 1981 Pesh. 1 ref.

Asmat Kamal Khan for Petitioner.

Mian Fide Hussain for Respondents.

Date of hearing: 7th November, 2000.

2003 P L C (C.S.) 1309

[Lahore High Court]

Present: Seed Jamshed Ali, J

MUHAMMAD NAEEM SADIQ

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA through Chairman and others

Writ Petition No. 17241 of 2001, decided on 22nd January, 2002.

Civil service---

----Appointment---Candidate in response to public notice for posts of Assistant, applied for said post and was duly selected, but formal appointment letter was not issued to him on ground that Provincial Government had imposed ban on fresh recruitment---Process of selection of candidate was finalized in year 1995---After about 5 years of finalization of such selection respondent-Board decided to fill 20% vacant posts of Assistants by initial appointment only from among the employees of the Board and 80% by promotion on basis of seniority-cum-fitness---Outsiders, in circumstances, were eliminated, though at the time of public notice 33% posts of Assistants were reserved for direct recruitment---Validity---Said subsequent decision of Board altering method of recruitment could not be applied with retrospective effect to annual selection of candidate duly made about five years prior to said decision---In accordance with rules in force at the time when applications were invited, process of selection of candidate was undertaken, candidate was eligible for direct appointment to the post of Assistant and ban subsequently imposed by Government on fresh recruitment was inapplicable---Refusal of Board to issue appointment letter to the candidate for post for which he was selected, was based on utter misconception and misapplication of its own decision---Board was directed by the High Court to issue formal letter of appointment to candidate for post of Assistant.

Rana Muhammad Ilyas and others v. Board of Intermediate and Secondary Education PLD 2001 SC 531 ref.

Mian Sarfraz-ul-Hassan for Petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 22nd January, 2002.

2003 P L C (C.S.) 1322

[Lahore High Court]

Present: Justice (Rtd.) Riaz Kayani, Chairman

MUHAMMAD ZIA-UL-HAQ

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, LIVESTOCK AND DAIRY DEVELOPMENT DEPARTMENT, LAHORE and 4 others

Appeal No.352 of 2003, decided on 15th April, 2003.

Civil service---

---- Wedlock Policy---Transfer---Civil servant was adjusted against post of Assistant at place 'L' under Wedlock Policy as his wife was also working as a teacher at place 'L'---Civil servant was transferred at place 'K'--­Government Policy was that spouse had to be allowed to work at the same station to avoid hardship---Wedlock Policy had been introduced and acted upon with a philosophy---If husband in Government Department was posted at one city and his wife posted in another Government Department was working in a different city, it was definitely going to cause mental distress to both of them with the consequences which were not only injurious to them, but to the public and Government exchequer---Authority while rejecting departmental appeal of civil servant, did not consider said circumstances and had failed to give any reason that transfer of civil servant to place 'K' was essential in the administrative interest of Government overriding the Wedlock Policy---Transfer of co-civil servant to place 'L' was not indicated as to how mutual exchange would promote interest of the State---Order transferring civil servant to place 'K' was set aside and he was allowed to work at place 'L' and case was remanded to be decided afresh after applying mind to representation made by civil servant after hearing civil servant and co-civil servant.

Pervaiz Inayat Malik for Appellant.

Dr. Saeed Ahmad, Law Officer on behalf of Respondents Nos. 1 and 2.

Khadim Hussain Sindhu, District Attorney and F.D. Chaudhary for Respondent No.4.

Dr. Khalid Saleem, V.O.(H) for Respondent No.3.

Date of hearing: 14th April, 2003.

2003 P L C (C.S.) 1331

[Lahore High Court]

Before Nasim Sikandar, J

Agha M. IKRAM KHAN

Versus

FEDERATION OF PAKISTAN

Writ Petition No.13818 of 2002, decided on 31st July, 2002.

Constitution of Pakistan (1973)---

----Arts. 199 & 25---Service Tribunals Act (LXX of 1973), S.2-A--­Constitutional petition---Petitioner who was retired General Manager Admn. of National Fertilizer Corporation, had prayed to be treated at par with the Federal and Provincial Government Servants for relief in payment of property tax by invoking provisions of Art. 25 of the Constitution--­Validity---Allowing exemption to an assessee of a Federal or Provincial levy, was the privilege of concerned Government---High Court in exercise of its Constitutional jurisdiction, could not require Federal or a Provincial Government to adopt a particular policy---Claim of petitioner was devoid of any force as employer Corporation was a body corporate which could be wound up at any time and its legal status was not much different from any public company limited by shares---Employees of a company could not be said to stand at par with civil servants employed by Federal or a Provincial Government---Mere fact that Railway employees were governed by a Board, would not by itself mean that they were not in the employment of Federal Government---Provisions of S.2-A of Service Tribunals Act, 1973 were specific and related to matters which could be taken to the Service Tribunal---Said provision of law would not make those categories of employees to be civil servants for other purposes.

Rashdeen Nawaz Kasuri for Petitioner.

Date of hearing: 31st July, 2002.

2003 P L C (C.S.) 1332

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

JAVED NISAR SYED

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Cabinet Secretariat, Islamabad and another

Writ Petition No. 638 of 2002, decided on 3rd July, 2003.

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

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Pro forma promotion---Appeal of petitioner was pending before Service Tribunal---Petitioner wanted pro forma promotion through Constitutional petition---Validity---Petitioner could not make such claim through Constitutional petition---Petition was dismissed in circumstances.

Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 and Muhammad Raees v. Government of Balochistan 1995 PLC (C.S.) 151 distinguished.

Government of the Punjab and others v. Captain Muhammad Mushtaq 2000 SCMR 1504; Shafi Muhammad Mughal v. Secretary Establishment Division and others 2001 SCMR 1446; Dr. Muhammad Salman Waris v. Dr. Naeem Akhtar and others PLD 1997 SC 382; Muhammad Anees v. Abdul Haseeb PLD 1994 SC 539; Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118 and Ch. Tanbir Ahmad Siddiky v. Province of the East Pakistan and others PLD 1968 SC 185 ref.

M.A. Ghani for Petitioner.

Sher Zaman Khan, D.A.-G. for Respondents

2003 P L C (C.S.) 1335

[Lahore High Court]

Before M. Javed Buttar, J

SHARIF HUSSAIN

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 4 others

Writ Petition No. 13939 of 1999, heard on 2nd July, 2003.

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

----S.2-A---Civil Servants Act (LXXI of 1973)----Employees of Federal Government---Provisions of S.2-A of Service Tribunals Act, 1973--­Applicability---Provisions of S.2-A of Service Tribunals Act, 1973, are not applicable to Federal Government employees but are applicable only to those employees who are in service under any Authority, Corporation, Body or Organization established by or under a Federal Law or which is under or controlled by Federal Government or where the Federal Government has a controlling share or interest in any such Authority and Corporation etc.--­Such employees have by fiction of law to be considered in service of Pakistan and deemed to be civil servants for the purposes of Service Tribunals Act, 1973---Employees of Federal Government who have been excluded from the definition of civil servant' as provided in S.2(1)(b) of Civil Servants Act, 1973 are not amenable to the provisions of Service Tribunals Act, 1973.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----S.25-A---Service Tribunals Act (LXX of 1973), S.2-A---Civil Servants Act (LXXI of 1973), S.2(1)(b), third proviso---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Employee of Federal Government---Status of workman---Petitioner was Goods Clerk in Pakistan Railway and his services were terminated---Grievance petition under S.25-A of Industrial Relations Ordinance, 1969 was accepted by Labour Court and he was ordered to be reinstated in service---Labour Appellate Tribunal set aside the order passed by the Labour Court only tin the ground that after insertion of S.2-A in Service Tribunals Act, 1973, remedy was with the Service Tribunal---Plea raised by the petitioner was that he was workman and being employee of Federal Government was not covered under the provisions of S.2-A of Service Tribunals Act, 1973---Validity---Only those employees of Federal Government could approach Service Tribunal who were not excluded from the definition of 'civil servant' as provided in S.2(1)(b) of Civil Servants Act, 1973---Petitioner having been held a 'workman' by Labour Court and such finding having trot been upset by the Labour Appellate Tribunal, the petitioner stood excluded from the definition of civil servant' as provided in S.2(1)(b) third proviso of Civil Servants Act, 1973---Pakistan Railways is a Department of Federal Government and as such its employees do not hold posts in connection with the affairs of Federation, thus it is not an Authority, Corporation; Body or Organization within the meaning of S.2-A of Service Tribunals Act, 1973---Petitioner could not approach the Service Tribunal and Labour Appellant Tribunal had illegally applied the provisions of S.2-A of Service Tribunals Act, 1973, as the same was not applicable to the Federal Government employees--­Judgment passed by Labour Appellate Tribunal was set aside and the case was remanded to it for decision of appeal on merits---Petition was allowed accordingly.

Chief Mechanical Engineer, Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal, N.-W.F.P., Peshawar and another 2003 PLC 118 fol.

Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826 distinguished.

Asmat Kamal Khan for Appellant.

Sh. Nadeem Anwar-ul-Haq for Respondents.

Date of hearing: 2nd July, 2003.

2003 P L C (C.S.) 1350

[Lahore High Court]

Before Iftikhar Hussain Chaudhry, J

MUNIR AHMED

Versus

THE FEDERATION OF PAKISTAN and others

Writ Petition No.8479 of 2002, decided on 29th January, 2003.

Establishment of Officer of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Deduction of amount from pension of civil servant---Amount in question was deducted by Corporation from petitioner's pensionary dues after his retirement on ground that said payment was obtained by petitioner by presenting medical prescription of an unapproved doctor and that said prescriptions were also manipulated---Said order of the Corporation was assailed by petitioner before Wafaqi Mohtasib who after hearing parties concluded that Corporation could not have deducted said amount from the pension of the petitioner---On filing representation by respondent-Corporation, President of Pakistan, set aside findings recorded by Wafaqi Mohtasib---Validity---Petitioner had obtained payment against medical bills in an unethical manner as he was not entitled to amount in question which he had received from the Corporation unlawfully ---Wafaqi Mohtasib while recording his findings did not take said aspect of matter into consideration---President of Pakistan, in circumstances had rightly set aside findings of Wafaqi Mohtasib keeping in view the background in which excess amount was obtained by petitioner in an unethical manner.

Liaqat Ali Butt for Petitioner.

Tariq Shamim, Standing Counsel for Federation of Pakistan.

2003 P L C (C.S.) 1374

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ASHIQ ALI KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Irrigation and Power Department Lahore and 3 others

Writ Petition No.7108 of 2003, decided on 29th May, 2003.

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

----Art. 199---Civil service---Constitutional petition---Summons/show-cause notice---Constitutional petition was not maintainable against summons/show­ cause notice.

Sabir Aziz v. Sessions Judge, Lahore and others 2000 PCr.LJ 204; Manzoor Hussain v. The State PLD 1998 Lah. 239; Peer Bakhish v. The State 1997 PCr.LJ 24; 1997 PCr.LJ 1197; 1997 PCr.LJ 1248; Shagufta Begum's case PLD 1989 SC 360 and Nabi Bakhsh Khan Khoso's case 2000 SCMR 1017 ref.

(b) Civil service---

----Criminal proceedings as well as Departmental proceedings could be initiated simultaneously, being not dependent on each other.

Deputy Inspector-General of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134 and Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 ref.

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

----Art. 199---Constitutional petition---Maintainability where petitioner had more than one alternative remedies under law, Constitutional petition was not maintainable.

Sindh Quality Control Board of Drug and another v. Pioneer Laboratories, Karachi and 6 others 1993 SCMR 1177; Syed Alamdar Hussain's case PLD 1978 SC 121; Muhammad Abbas's case PLD 1981 SC 642 and Ismail A. Rehman's case PLD 1990 Kar. 286 ref.

A.G. Tariq Chaudhry for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. and Sher Zaman Khan, D.A.-G. for Respondents.

2003 P L C (C.S.) 1382

[Lahore High Court]

Before Farrukh Lateef, J

ZAHEER AHMED and others

Versus

SENIOR MEMBER, BOARD OF REVENUE and others

Writ Petition No.2045 of 2003, decided on 27th June, 2003.

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

----Arts.175, 199 & 212---Constitutional petition ---Maintainability--­Contentions were that where an order passed by any Authority was unlawful, without jurisdiction or void, there would be no bar to filing of Constitutional petition in spite of alternate remedy being available; and that rule that invoking Constitutional jurisdiction was possible only after exhausting all other remedies, was a rule of convenience and discretion and not a rule of law affecting jurisdiction---Validity---Contentions were repelled because Art. 175 of Constitution had provided that no Court would have any jurisdiction save as was or could be conferred on it by Constitution or by or under any law.

Chairman, Central-Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd. and another 2001 SCMR 777; Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. through Managing Director. PLD 2001 Kar. 344 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

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

----Arts.199 & 212---Judicial review---Constitutional power of judicial review vested in High Court under Art. 199 of Constitution was not inherent as distinct from judicial power, but was subject to limitation provided in the Constitution itself---While exercising said power, limitation imposed by Constitution, could neither be overlooked nor dispensed with---When it appeared or was brought to the notice of High Court that a particular order of Departmental Authority lay within ambit of Service Tribunal, jurisdiction of High Court was ipso facto ousted as a result of barring provision of Art.212 of the Constitution and it was not competent on any ground to examine the validity of an order which fell within jurisdiction of Service Tribunal---Matter in dispute in the present case did not relate to suitability or fitness for promotion to higher post, but was alleged violation of rules and procedure in selection---Plea of opposing civil servants that despite being eligible for promotion they were not considered and their case for promotion was deferred by Departmental Promotion Committee without any justification related to service rights of- civil servants which were exclusive concern of Service Tribunal as question of eligibility for promotion related primarily to terms and conditions of service and question of eligibility was not excluded from the purview of jurisdiction of Service Tribunal---Impugned order falling., within exclusive jurisdiction of Service Tribunal under Art.212(2) of the Constitution, Constitutional petition under Art.199 of the Constitution was not competent--Even if order of promotion was acted upon, principle of locus poenitentiae was not applicable because it was not a case of withdrawal of order of promotion by Departmental Promotion Committee, but order of promotion was quashed by higher Authority and not by Departmental Promotion Committee.

Rana Muhammad Asif v. The Secretary to Government of the Punjab, Revenue Department, Punjab, Lahore and 4 others 1994 PLC (C.S.) 1331; Shaft Mughal v. Secretary, Establishment Division and others 2001 SCMR 1446; Muhammad Anees and others v. Abdul Haseeb and others PLD 1994 SC 539; Khalid Mehmood Wattoo v. Government of the Punjab and others 1998 SCMR 2280; The Chairman, Central Board of Revenue and others v. Muhammad Malook and 11 others 1991 SCMR 1540; Pakistan through Secretary, Ministry of Finance v. Muhammad Hamayat Ullah Farukhi PLD 1969 SC 407 and Muhammad Mansif and others v. Government of the Punjab, Department of Communication and Works, Lahore and others 2000 PLC (C.S.) 1070 ref.

Muhammad Farooq Wattoo for Petitioners.

Syed Hashmat Hussain Naqvi on behalf of A.A.-G. for Respondents Nos. 1 and 2.

Altaf Ibrahim Qureshi for Respondents Nos.3 to 6.

Date of hearing: 13th June, 2003.

2003 P L C (C.S.) 1395

[Lahore High Court]

Before Farrukh Lateef, J

MANZOOR AHMED

Versus

D.I.-G. and others

Writ Petition No.5218 of 2002, decided on 20th June, 2003.

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

----S.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Out of turn promotion entitlement---Civil servant serving as S.H.O. of Police Station having recovered vehicle which was forcibly snatched by accused was recommended one step out of turn promotion for his said act---When case of said promotion was in process, new Government came into power which changed its Policy of granting out of turn promotion and case of civil servant was returned with direction for fresh recommendation for cash award or gallantry award to civil servant---Civil servant had challenged such order in Constitutional petition---Validity---Promotion of a civil servant was neither a vested right nor Constitutional right---Policy with regard to out of turn promotion having been changed, Authority was not competent to nave recommended and forwarded petitioner's case to higher Competent Authority---Was the prerogative of State/Government to formulate Policy and its functionaries were bound by the same-- -Even otherwise out of turn promotion was announced by way of reward and a reward could not be claimed as of right---Before granting the reward, Authority announcing it could vary its nature as Authority which had the power to make an order, had also power to undo it---Principle of locus poenitentiae was not attracted in case of civil servant because of order of one step out of turn promotion announced by Authority was not given implementation o: given effect to--­Prayer in Constitutional petition for issuing direction to Authority concerned to order one step out of turn promotion to petitioner could not be granted for the reason that existence of a legal right was the foundation of every writ of mandamus which was lacking in the present case---Since right to promotion was not a vested right, it could not be enforced through Constitutional jurisdiction of High Court.

Writ Petition No.28879 of 1997; Writ Petition No.2445 of 1995; Writ Petition No. 17474 of 1997 and Writ Petition No. 17232 of 1997 ref.

Aqa Asif Jafferi for Petitioner.

Syed Hashmat Hussain Naqvi on behalf of A.A.-G. for Respondents.

Date of hearing: 18th June, 2003.

2003 P L C (C.S.) 1416

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Mrs. SHAH JAHAN, HEADMISTRESS, GOVERNMENT GIRLS ELEMENTARY SCHOOL, PINDI BHATTIAN

Versus

KHUSHNOOD AKHTAR LASHARI, EDUCATION SECRETARY, PUNJAB, LAHORE

Writ Petition No.9232 of 2003, decided on 1st July, 2003.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition, maintainability of---Civil service---Suspension of civil servant---Petitioner in his Constitutional petition had challenged vires of his suspension order--Matter pertaining to terms and conditions of service of petitioner, Constitutional petition by petitioner, was not maintainable in view of bar contained in Art.212 of the Constitution---Constitutional petition was also not maintainable qua intermediate stages---Despite bar contained in Art.212 of the Constitution High Court while exercising jurisdiction under Art. 199 of the Constitution had ample powers to give direction to public functionaries to act strictly in accordance with law---Case was remanded with direction that same be decided strictly in accordance with law after providing proper hearing to petitioner and any other concerned person within stipulated period.

Muhammad Sadiq Khokhar v. Engineer-in-Chief, Pakistan Army G.H and another 1985 SCMR 63; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Abdul Bari v. Government of the Pakistan and others PLD 1981 Kar. 290; Muzaffar Hussain's case 2002 PLC (C.S.) 442; Abdul Wahab's case PLD 1989 SC 508 and H.M. Rizvi's case PLD 1981 SC 612 ref.

Malik Abdul Aziz for Petitioner.

2003 P L C (C.S.) 1425

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Mian ALI MUHAMMAD

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN and 3 others

Writ Petition No.24 of 2003, heard on 14th May, 2003.

Civil service---

----Promotion---Effect of minor penalty on promotion---Promotion was declined to civil servant on ground that minor penalty stood imposed upon him---Civil servant otherwise being qualified for promotion, his promotion could not have been withheld on ground only that minor penalty was imposed upon him---Case of civil servant was sent back by the High Court to the Authority concerned for being considered for his promotion.

Fazal Elahi Siddiqui for Appellant.

Ch. Sultan Mansoor, D.A.-G. for Respondents.

Date of hearing: 14th May, 2003.

2003 P L C (C.S.) 1440

[Lahore High Court]

Before Mansoor Ahmad, J

MUHAMMAD SAEED and 2 others

Versus

FEDERATION OF PAKISTAN and 22 others

Writ Petition No.3200 of 2001, decided on 15th July, 2003.

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

----Rr. 14, 15 & 16---Constitution of Pakistan (1973), Art. 199---Rules of Business, 1973, Third Sched., Entry 22 & Second Sched, Entries 7, 8--­Constitutional petition---Appointment---Advertisement for appointment on basis of Provincial and Regional Quota---Validity---Petitioners in their Constitutional petition had challenged advertisement made in the newspapers inviting applications for various posts falling in BPS. 1 to 15 on the basis of Provincial and Regional Quota---Contention of petitioners was that vacancies in posts in offices of Islamabad Capital Territory should be filled in by the appointment of persons domiciled of Islamabad Capital Territory and that composite reading of Rr. 14, 15 & 16 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 had shown that only domiciled of Islamabad Capital Territory, were eligible for such posts and said vacancies could not be filled in on the basis of Provincial and Regional Quota as mentioned in the said advertisement---Validity---Islamabad is a Federal Capital and people from all the Provinces of Pakistan and Centrally Administered Areas come to reside in Federal Capital---Mere location of an institution in one specified Province or in the area was not a sufficient indicator that it was only meant for said area or locality---Persons belonging to Provinces and various parts of the country come to live in Islamabad due to exigencies of their service and said Federal Institutes serve whole of Pakistan and were not meant to serve only Islamabad Capital Territory---Impugned advertisement was validly issued by the Authorities---Posts in the institutions in Federal Capital had to be filled in on All-Pakistan Basis in accordance with merits and Provincial and Regional Quotas prescribed by Government from time to time.

Syed Sajid Hussain v. Ch. Muhammad Latif and others 1992 SCMR 468; Maulvi Abdul Aziz Khan v. Nawabzada Sarfraz Ali and others 1998 SCMR 98; Federation of Pakistan and another v. Hashim Shah Qureshi 1978 SCMR 156; WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18 and Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others 1992 SCMR 77 ref.

Dr. G.S. Khan, Muhammad Bashir Kiani and Muhammad Idrees Kiani for Petitioners.

Hafiz S.A. Rehman and Malik Muhammad Hayat Khan for Respondents.

Raja Abdul Ghafoor for Applicant (in C. M. No. 103 of 2002).

Date of hearing: 30th June, 2003.

2003 P L C (C.S.) 1468

[Lahore High Court]

Before Syed Jamshed Ali, J

ABDUL SAEED KHAN

Versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 4 others

Writ Petition No. 778 of 2003, decided on 13th June, 2003.

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

----Rr.4(1)(a)(ii), 5 & 7---Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S.13---Punjab Civil Servants Act (V11I of 1974), S.23.(2)---Deferment of promotion---Promotion of civil servant from BS-16 to BS-17 was deferred on grounds: of adverse remarks about his integrity in his ACR for relevant period pendency of criminal case against him and that Inquiry Officer had recommended imposition of major penalty on civil servant---Adverse ACR for relevant year was not conveyed to civil servant—­Un communicated adverse remarks could not be considered, against civil servant for deferring his case for promotion---As far as promotion during pendency of criminal case was concerned, there was no specific rule, but according to instructions in letter dated 7-9-1962 issued by Competent Authority which had force of rules according to S.23(2) of Punjab Civil Servants Act, 1974 it had been left to the Competent Authority to take cognizance pf criminal case against civil servant and to postpone consideration of case for promotion or ignore it---Contention of civil servant, that inquiry proceedings against him under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, had become infructuous, was repelled because S.13 of Punjab Removal from Service (Special Powers) Ordinance, 2000, had saved the proceedings pending under Punjab Civil Servants Act, 1974 and Rules made thereunder---Final decision of question of deferment of promotion, however, was left for determination by Competent Authority.

N.A. Qureshi v. Government of the Punjab and 2 others PLD 1982 Lah. 242; Muhammad Aslam Sheikh v. Federation of Pakistan through Secretary, Establishment Division Cabinet Secretariat, Islamabad and another 1999 PLC (C.S.) 761 and Muhammad Farooq Chohan v. Province of Punjab PLD 1987 SC 271 ref.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. and Miss Shama Zia, Litigation Officer for Respondents.

Date of hearing: 13th June, 2003.

2003 P L C (C.S.) 1479

[Lahore High Court]

Before Syed Jamshed Ali, J

JAVED AKHTAR MASIH

Versus

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

Writ Petition No.24339 of 2000, heard on 30th June, 2003.

Master and servant---

----Termination of service---Principles of natural justice ---Applicability--­Such principles apply even in a case in which master-servant rule applies--­Servant would be entitled to notice and opportunity of hearing before any adverse action is taken against him.

Abdul Jabbar Memon and others case 1996 SCMR 1349 ref.

Miss Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 fol.

Malik Noor Muhammad Awan for Appellant.

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

Date of. hearing: 30th June, 2003.

2003 P L C (C.S.) 1496

[Lahore High Court]

Before Syed Jamshed Ali, J

Sh. MUHAMMAD RIAZ

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Communication and Works and another

Writ. Petition No 11838 of 2002, heard on 11th July, 2003.

(a) Civil service------

‑‑‑‑Promotion‑‑‑Withholding of promotion on ground of anticipated departmental inquiry after civil servant was recommended by Selection Board and‑ was approved by Competent Authority‑‑‑Validity‑‑‑Withholding of promotion was a penalty‑‑‑Refusal to issue formal notification of promotion of civil servant on such ground after he had been recommended and duly approved by Competent Authority, was illegal and arbitrary.

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

(b) Civil service‑‑‑

‑‑‑‑ Promotion‑‑‑Pendency or contemplated initiation of disciplinary proceedings‑‑‑Right of civil servant to be considered for promotion not barred‑‑‑Duty pf Selection Board and Competent Authority to consider effect of pending inquiry and then determine, whether civil servant should or should not be promoted‑‑‑Rationale behind such rule stated.

An officer against whom a departmental, inquiry has already been initiated before consideration of his case for promotion, is not an outcast for purpose of consideration of his case for promotion and there is no bar on his promotion. The approach that a civil servant cannot or should not be promoted during pendency of departmental inquiry is not to be accepted and applied as an inflexible rule. It will depend on the facts and circumstances of each individual case. However, Selection Board and Competent Authority are required to consider the effect of pending inquiry and then to determine, whether civil servant should or should not be promoted. The rationale behind is, firstly, that unless an allegation is proved, it remains an accusation only, may give rise only to a suspicion about conduct of a civil servant and a speculation that he might ultimately be punished. Secondly, if at all as a result of departmental inquiry, a civil servant is found to be guilty, he may be suitably punished which may include his dismissal. Administrative authorities are free from observing the fetters and technicalities of judicial trial, because in such‑like matters they are not acting judicially, nevertheless their decisions are required to be based on relevant considerations and material and not on suspicion and speculation alone.

The State of Madhya Pradesh v. Bani Singh and another AIR 1990 SC 1308 and O&M Establishment Manual, Vol.II (Revised), pp. 122‑123 rel.

(c) Administrative decision‑‑‑

‑‑‑‑ Administrative Authorities are free from observing the fetters and technicalities of judicial trial, because in, such‑like matters they are not acting judicially, nevertheless their decisions are required to be based on relevant considerations and material and not on suspicion and speculation alone.

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

‑‑‑‑Ss. 8. & 23‑‑‑Instructions contained in Government of the Punjab, Services and General Administration Department Letter No'.SOIV (S&GAD)­-I‑75/67 (Policy), dated 18‑1‑1968 [O&M Establishment Manual, Vol.II (Revised)], pp. 122‑123‑‑‑'Validity‑‑-Such instructions would be followed for having the force of rules by virtue of S.23 of Punjab Civil Servants Act, 1974 and not being inconsistent with provisions thereof.

O&M Establishment Manual. Vol.II (Revised), pp. 122‑123 ref.

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

‑‑‑‑S. 8‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Writ of mandamus‑‑‑Withholding of promotion‑‑‑Competent Authority recalled its approval to recommendation of Selection Board for promotion of petitioner on the basis of major and minor penalties imposed upon him, which had already been set aside by Service Tribunal and affirmed by the Supreme Court‑‑‑Validity‑‑‑Grievance of petitioner was not about breach of terms and conditions of his service‑‑‑Jurisdiction of Service Tribunal extended to examine orders passed by Departmental Authorities in relation to terms and conditions of service of civil servants‑‑‑Service Tribunal did not have any jurisdiction to issue a direction in the nature of mandamus to Departmental Authorities compelling them to act in accordance with favourable orders already passed by them‑‑‑Promotion of petitioner had been withheld in contemplation of initiation of an inquiry in respect of certain allegations thereby doubting his fitness‑‑‑Petitioner had been superseded in the meeting of Selection Board held during pendency of Constitutional petition on basis of irrelevant considerations as orders imposing major and minor penalties had already been set aside‑‑‑Minor penalty of "censure" had been imposed upon petitioner after recommendation of Selection Board and its approval by. Competent Authority‑‑‑Minor penalty could not be considered as a disqualifying factor‑‑‑Petitioner in matter of promotion had not been dealt with in accordance with rules and in a just and fair manner‑‑‑Inaction of authority not to issue a formal notification and, thereafter super session of petitioner was without lawful authority‑‑‑High Court directed Authority to place petitioner's case before Selection Board in its next meeting for his consideration for promotion from due date‑‑‑[Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992 PLC (C.S.) 95 overruled].

Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others. 1991 SCMR 1637 and O&M Establishment Manual, Vol.‑II (Revised), 1974 Edin., pp. 123‑124 rel.

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

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

‑‑‑‑Arts. 199 & 122‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Constitutional jurisdiction of High Court‑--Scope‑‑‑Unless jurisdiction of Service Tribunal extends to a matter, the bar of jurisdiction contemplated by Art. 212 of the Constitution would not be attracted.

Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 27 others PLD 1981 SC 137 and Mateen‑ul‑Hassan Khan and others v. The Secretary, Finance Department, Government of Sindh, Karachi and‑others 1985 PLC (P.S.) 681 rel.

(g) Jurisdiction‑‑‑--

‑‑‑‑--Ouster of jurisdiction of superior Courts‑‑‑Not to be lightly inferred‑‑‑In case of doubt, same be resolved in favour of jurisdiction rather than its ouster.

Mateen‑ul‑Hassan Khan and others v. The Secretary, Finance Department, Government of Sindh, Karachi and others 1985 PLC (C.S.) 681 fol.

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

‑‑‑‑S. 4(b), proviso‑‑‑Question of "fitness" as distinguished from "eligibility" for promotion‑‑‑Specifically excluded from jurisdiction of Service Tribunal by virtue of proviso to S.4(2) of Punjab Service Tribunals Act, 1974.

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

‑‑‑‑SA(1)‑‑‑Denial of promotion‑‑‑No appeal would lie before Service Tribunal against deferment or supersession.

M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927; Zafar Iqbal v. M.G.O. Branch, GHQ Rawalpindi and 3 others 1995 SCMR 881 and Government of Punjab through Secretary, Health Department, Civil Secretariat, Lahore and another v. Dr. Aman‑ul-­Haq, M.S. District Headquarter, Gujranwala 2000 PSC 599 rel.

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

‑‑‑‑S.8‑‑‑Promotion‑‑‑Not an illusory right‑‑‑Civil servant though riot having a right to be promoted was entitled to be considered for promotion by virtue of S.8 of Punjab Civil Servants Act, 1974‑‑‑Right of promotion would be rendered as perfunctory ritual, if Competent Authority acted in the matter contrary to the rules, arbitrarily or by taking into consideration irrelevant considerations.

Sarfraz Ahmad Hiraja v. Water and Power Development Authority and others 1999 SCMR 2828; Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508; Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others PLC 1996 SC 222 and Director of Education v: Government of the Punjab and others 1997 PLC (C.S.) 216 ref.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 &c, 212‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court would refrain from substituting opinion of Departmental Authority with its own opinion‑‑‑Where Departmental Authority acted in matter contrary to the rules, arbitrarily or in an unjust, unfair and oppressive manner or took into consideration irrelevant considerations, then corrective judicial process could always be applied by High Court while exercising Constitutional jurisdiction in such cases in which jurisdiction of Service Tribunals stood ousted.

M.R Khalid v. Government of the Punjab 1994 PLC (C.S.) 138 ref.

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

‑‑‑‑S. 8‑‑-Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.4(1)(a)‑‑‑Promotion‑‑‑Minor penalty by itself could not be considered as a disqualifying factor‑‑‑[Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992 PLC (C.S.) 95 overruled].

Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637 and O&M Establishment Manual, Vol.‑II (Revised), 1974 Edn. pp. 123‑124 rel.

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

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

‑‑‑‑S.8‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.4(1)(a)‑‑‑Promotion‑‑‑Minor penalty‑‑‑Withholding of promotion on basis of penalty of "censure" would attract rule of double jeopardy‑‑‑Competent Authority could take into consideration minor ,penalty, while forming opinion as to suitability of civil servant for promotion‑‑‑Principles.

Withholding of promotion of civil servant only on the basis of a solitary penalty of censure attracts the rule of double jeopardy, because civil servant, who commits an actionable wrong, cannot again be punished for the same wrong for which he has already been punished. If a penalty of "censure" is coupled with other relevant considerations and competent authority, while forming opinion as to suitability of civil servant, also takes into consideration a minor penalty, the decision may not be bad‑‑‑[Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992 PLC (C.S.) 95 overruled].

Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637 and O&M Establishment Manual, Vol.II (Revised), 1974 Edn., pp. 123‑124 rel.

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

Rana Farman Ali Sabir for Petitioner.

Raja Abdul Rehman, A.A.‑G. for Respondents

Date of hearing: 11th July, 2003.

2003 P L C (C.S.) 1508

[Lahore High Court]

Before Syed Jamshed Ali, J

RIZWAN AKHTAR

Versus

UNIVERSITY OF THE PUNJAB through Vice‑Chancellor, Quaid‑e‑Azam Campus, Lahore and 4 others

Writ Petition No.2360 of 2001, heard on 10th April, 2003.

(a) Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑-

‑‑‑‑Statutes Nos.5, 6(2), 6(3) & 7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Inquiry proceedings‑‑‑Competent Authority, appointed Authorized Officer under Statute No.5 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 to proceed against civil servant‑‑‑Authorized Officer was to decide whether in the facts of the case and in the interest of justice any inquiry should be conducted by Inquiry Officer or Inquiry Committee and in case it was so decided, Inquiry Officer or Inquiry Committee was to be appointed by Authorized Officer under Status No.6(2) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑If, however, Authorized Officer, acting under Statute 6(3) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 would decide that it was not necessary to have an inquiry conducted through an Inquiry Officer and Inquiry Committee, he would 'proceed in the matter by informing civil servant of the action proposed to be taken and the grounds of action and give him reasonable opportunity of showing cause against proposed action‑‑‑When Inquiry Officer or Inquiry Committee was appointed, Authorized Officer, would frame the charge and communicate the same to accused civil servant as required by Statute No. 7 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 and then Inquiry Officer or Inquiry Committee would hold an inquiry‑‑­Authorized Officer, in the present case, framed the charge‑sheet, but it was not brought on record whether any decision was taken by Authorized Officer as contemplated by Statute No.6(2) or 6(3) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑Framing of charge, according to Statute No.7 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975. would follow only after an Inquiry Officer or Inquiry Committee was appointed, but Authorized Officer in complete ignorance of said Statutes, after issuing charge‑sheet to the civil servant, himself proceeded to hold inquiry‑‑‑Procedure adopted by Authorized Officer, was wholly alien to said Statutes.

Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Board of Intermediate and Secondary Education, Sargodha through Secretary v. Abdur Rehman 1988 SCMR 1711 and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 ref.

(b) Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑--

‑‑‑‑Statutes Nos.5, 6(2), 6(3) & 7‑‑‑Constitution of Pakistan (1973), Arts.4 & 199‑‑‑Constitutional petition‑‑‑Termination of service‑‑‑Statutory Rules, principle of‑‑‑Natural justice, violation of‑‑‑Petitioner working as junior clerk in the University was proceeded against under Punjab University Employees (Efficiency and Discipline) Statutes, 1975 oh allegations of forgery, inefficiency, misconduct and corruption and his services were terminated after holding inquiry against him‑‑‑Charge brought against the petitioner, contained three allegations i.e. wrong tabulation of result, making bogus award lists and forging the result of candidate‑‑‑Inquiry report of Authorized Officer showed that charges brought against petitioner were not proved as neither he had wrongly tabulated the result nor had made bogus award lists nor had forged the results‑‑‑Inquiry Officer found that co‑accused had entertained bogus re‑checking award lists‑‑‑Allegation on which petitioner had been punished did not form part of charge‑sheet and. petitioner was condemned unheard because no opportunity to defend himself against allegation was provided to him‑‑‑Authorized Officer, in circumstance had clearly violated Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑Competent Authority had only approved the recommendations of Authorized Officer with non‑speaking and sketchy order‑‑‑Appellate order also did not show that case of petitioner, was considered fairly and in accordance with Statutes of University which were statutory rules‑‑‑Even if services of an employee of a Statutory Corporation were not governed by statutory rules; the employer amenable to Constitutional jurisdiction was under a duty to act justly 'and fairly in accordance with mandate of Art.4 of the Constitution‑‑‑If tenure of employees of Statutory Corporation had been left at the total discretion of employer, even then no exemption from application of principle of natural justice could be claimed‑‑‑In case of breach of rule of natural justice, corrective judicial process could be applied‑‑‑A Statutory Corporation could not be heard to say that it would be at liberty to violate its own rules and then to fall back on the plea that rules being non‑statutory, Courts should shut their eyes even if their action was arbitrary, contrary to their own regulations, unjust and unfair‑‑‑Employee of a Statutory Corporation could not be removed under cover of total and absolute discretion is violation of principles of natural justice‑‑‑Petitioner, in the present case was condemned unheard, and Authorized Officer who himself was prosecutor, had himself held inquiry‑‑‑High Court partly allowed Constitutional petition declaring terminating the service of petitioner as without lawful authority with direction that appeal pending before Appellate Authority should be decided afresh in accordance with law with a. speaking order.

Khalid Pervez v. Punjab Seed Corporation 1989 PLC (C.S.) 444; Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275; Indian Institute of Technology v. Mangat Singh 1973(2) SLR 46; Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another AIR 1975 SC 1331; Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362; Lal Din v. Vice ­Chancellor and others 1994 PLC (C.S.) 880; Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Atta‑ur‑Rehman v. The Province of West Pakistan PLD 1968 (W.P.) Lah. 185; Muhammad Ashraf v. D.G., Multan Development Authority 2000 PLC (C.S.) 796; Muhammad Akram v. Ferman Bi PLD 1990 SC 28; Dr. Ghulam Mustafa Chaudhry v. Dr. Muhammad Ashiq Khan Durani 2000 PLC (C.S.) 385; Mrs. Aneesa Rehman v. Pakistan International Airliness Corporation and another 1994 SCMR 2232; Asif Peter v. D.G.,M.D.A., Multan and others 2000 PLC (C.S.) 1360 and U.P. Warehousing Corporation v. Vijay Narayan AIR 1980 SC 840 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ Authority who had framed regulations, was bound to follow said regulations and a departure therefrom, would amount °to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations were framed.

Asmat Kamal Khan and C.M. Sarwar for Petitioner.

Syed Mohsin Abbas Naqvi for Respondents.

Date of hearing: 10th April, 2003.

2003 P L C (C.S.) 180

[Peshawar High Court]

Before Abdur Rauf Lughmani and Qazi Ehsanullah Qureshi, JJ

MALIK NAZ

Versus

UNIVERSITY OF PESHAWAR through Registrar, Peshawar and 3 others

Writ Petitions Nos. 1120, 1392 and 1393 of 2000, decided on 5th July, 2002.

(a) Legislation‑‑‑

‑‑‑‑ Delegated legislation‑‑‑Scope‑‑‑Provisions of principal legislation cannot be rendered ineffective through delegated legislation‑‑‑Delegated legislation must not be in conflict with the main Act.

(b) University of Peshawar Act (II of 1974)‑‑‑

‑‑‑‑S. 22(r)‑‑Principal of constituent colleges‑‑‑Appointment‑‑‑Such appointment is regulated by S.22(r) of University of Peshawar Act, 1974, which makes it obligatory that appointment of staff in Grade‑17 and above is to be made by Syndicate on the recommendations of Selection Board.

(c) University of Peshawar Act (II of 1974)‑‑‑

‑‑‑‑Ss. 22(r) & 27(2), proviso‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Amendment in first statute‑‑‑Amendment in conflict with the provisions of S.22(r) of University of Peshawar Act, 1974‑‑­Amendment was approved by the Senate of the University, whereby the post of Principal of constituent colleges was to be filled by appointment by the Senate on the recommendation of Vice‑Chancellor ‑‑Validity‑‑‑Amendment approved by the Senate was in conflict with the provisions of S.23(r) of University of Peshawar Act, 1974, as Selection Board was empowered to recommend appointment in B‑17 and above‑‑‑Proposed amendment was against the procedure given in S.27(2) and was in conflict with S.22(r) of University of Peshawar Act, 1974‑‑‑High Court noted that amendment could be made in accordance with the procedure but must not be in conflict with the provisions of University of Peshawar Act, 1974‑‑‑Proposed amendment was declared null and void and the same was set aside‑‑‑Constitutional petition was allowed in circumstances.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principle of laches‑‑‑Applicability‑‑­Civil litigation existed between the parties‑‑Judgment and decree was passed by Civil Court but the petitioner did not bother to challenge the same well in time‑‑‑Effect‑‑‑Petitioner could not be permitted to raise the issues in the Constitutional petition‑‑‑Principle of laches was applicable in circumstances.

Jahanzeb Rahim, Bat‑at‑Law for Petitioners.

Mian Ijaz Hussain Shah and Muhammad Latif Khan for Respondents.

Syed Safdar Hussain for Petitioners (in Writ Petition No.1393 of 2000).

Date of hearing: 5th July, 2002.

2003 P L C (C.S.) 395

[Peshawar High Court]

Before Khalida Rashid, J

MUHAMMAD AYUB KHAN

Versus

ABDUL MATEEN KHAN, DISTRICT AND SESSIONS JUDGE, MARDAN (COMPETENT AUTHORITY)

Departmental Appeal No.5 of 2002, decided on 25th November, 2002.

(a) North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑----

‑‑‑‑Rr.2(1)(a)(b), 5 & 6‑‑‑Disciplinary action against defaulting civil servant‑‑‑Inquiry procedure to be observed for imposing minor and major penalties exhaustively stated.

The definition of "authority" and "Authorised Officer" is provided in Rule 2(1)(b) & (c) of North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973. "Authorised Officer" is defined as an officer authorised by the authority to perform the functions of authorised officer under these Rules. Rule 5 prescribes procedure for initiating disciplinary action against a defaulting Government servant. Where a Government servant is accused of misconduct, corruption etc., it is authorised officer appointed by authority, who has to, with approval of authority, suspend him. Authorised Officer shall also decide whether in the facts of the case or in the interest of justice, un inquiry is to be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure prescribed by rule 6 is to be followed. If authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall by order in writing inform Government servant of the action proposed to be taken against him and the grounds of such action shall also be communicated to him. It is next required of the authorised officer to give him show‑cause notice. However, no such notice shall be given, when authority is satisfied that in the interest of security of Pakistan, it is not expedient to give show‑cause notice. On the receipt of explanation of accused, it is again the authorised officer, who is to determine whether the charges have been proved. If it is proposed to impose a minor penalty, he shall pass order accordingly and if it is proposed to impose major penalty, he shall forward case alongwith record i.e. charge­sheet, statement of allegations, explanation of accused, findings of Inquiry Officer/Committee, if appointed, and his own recommendations regarding penalty to be imposed, to the authority, who shall then pass such order as it may deem proper.

(b) North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.4(1)(b)(iii), 5 & 6‑‑‑Misconduct‑‑‑Absence from duty, allegation of‑‑­Removal from service‑‑‑Authority imposed such penalty without holding regular enquiry and affording opportunity of hearing to civil servant‑‑­Validity‑‑‑Authority had passed impugned order against the scheme provided under R.5 of the Rules‑‑‑Authority could not assume powers of Authorised Officer‑‑‑Authority was required to have appointed Authorised Officer with direction to proceed against civil servant in accordance with law‑‑‑Civil servant had been subjected to major penalty without holding any inquiry or affording him any opportunity to explain his absence, which was violative of the Rules as well as against principles of natural justice‑‑‑Punishment of removal of civil servant from service for misconduct was too harsh‑‑‑High Court accepted appeal and set aside impugned. order‑‑‑Declaring the Government servant to have been retired from service from a specified date.

Province of Punjab v. Muhammad Safdar 1980 SCMR 850; Chairman, Area Electricity Board, WAPDA, Peshawar and 3 others v. Jehangir Khan 1999 SCMR 841(c) and Rashid Mehmood v. Additional Inspector‑General of Police and 2 others 2002 SCMR 57 ref.

(c) North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑--

‑‑‑‑Rr.2(1)(a)(b) & 5‑‑‑"Authority" could not assume powers of "Authorised Officer".

Murid Hussain v. Divisional Forest Officer, Dera Ghazi Khan and others 1997 PLC (C.S.) 657; Postmaster General Southern, Punjab, Lahore and others v. Ahmad Nadeem Bhatti 1999 SCMR 1311; Sh. Muhammad Sharif Akhtar v. Chief Engineer/Chairman, Area Electricity Board, WAPDA, Lahore and 2 others 1992 PLC (C.S.) 503; Yousuf Jamal v. Director Food, Punjab, Lahore 1992 PLC (C.S.) 1055 and Zarar Khan v. Government of Sindh and others PLD 1980 SC 310 rel.

(d) North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑--

‑‑‑‑Rr. 3 & 4(1)(b)(iii)‑‑‑Misconduct, allegation of‑‑‑Removal from service, punishment of‑‑‑Too harsh.

Commandant, 502, EME Central Workshop, Rawalpindi and others v. No.M‑E‑ 1962 LDC Ayub Hussain 1997 SCMR 1471 ref.

Amjid Ali Khan for Appellant.

Shah Rawan; Superintendent, Sessions Court for Respondent.

Date of hearing: 28th October, 2002.

2003 P L C (C.S.) 520

[Peshawar High Court]

Before Khalida Rachid, J

RAFI ULLAH KHAN

Versus

THE DISTRICT & SESSIONS JUDGE, BANNU

Departmental Appeals Nos. 1 to 3 of 2002, decided on 27th January, 2003.

North‑West Frontier Province Civil Servants (Appointment, Transfer and Promotion) Rule, 1989‑‑‑

‑‑‑ R. 3(2)‑‑‑North‑West Frontier Province Establishment Code, Chap.2, Para. 2‑‑‑High Court (Lahore) Rules and Orders, Vol. I, Chap. 18, Rr. VI & X(2)(b)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Promotion‑‑‑District Judge filled up vacancies of Senior Clerks/Readers (BPS‑7) through initial recruitment instead of promoting junior clerks to such posts‑‑‑Validity‑‑‑No method of appointment, qualifications and other conditions had been laid for ministerial posts in subordinate judiciary in accordance with R.3(2) of North‑West Frontier Province Civil Servants (Appointment, Transfer and Promotion) Rules, 1989‑‑‑Pre‑existing rules as contained in R.VI, Chap.18, Vol.1 of High Court Rules and Orders being not inconsistent with Rules of 1989 would be followed‑‑‑Post of Reader to Civil Judge had to be filled up by promotion on basis of seniority‑cum‑fitness from amongst officials of lower grades‑‑‑Such posts were promotion posts and not to be filled up by initial recruitment‑‑­Very method adopted for appointment on such posts was against law and rules on the subject‑‑‑Appellants were neither inefficient nor lacking requisite qualification, nor suffering from any disability for promotion to such posts‑‑‑High Court accepted appeals and set aside impugned order with directions to District Judge to fill up such vacant posts through promotion.

Inayatullah Khan for Appellant.

Nasir Mahfooz for Respondents Nos.2 to 4.

Date of hearing: 23rd December, 2002.

2003 P L C (C.S.) 696

[Peshawar High Court]

Present: Mian Shakirullah Jan, C.J. and Ijaz Afzal Khan, J

KHALIL AHMAD SIDDIQUI

Versus

PAKISTAN through Secretary Interior, Interior Division, Government of Pakistan and 5 others

Writ Petition No. 1268 of 2001, heard on 11th December, 2002.

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

----R.12-A [as inserted vide S.R.O. No.521(1)/2000, dated 31-7-2000]--­Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Date of birth, correction of---Estoppel by conduct---Civil servant sought to correct his date of birth recorded at time of joining service in year 1965---Validity---Date of birth of civil servant recorded in Secondary School Certificate and service record was the same--­Civil servant had not pursued the applications made in years 1966 and 1982 for correction of service record to their logical end---Civil servant had not explained as to why he had slept over such matter for decades, and why he had not got Secondary School Certificate corrected from the concerned. Board---Such facts militated against genuineness of stand taken by civil servant---Plea of civil servant that in the year 1998, Department had refused him N.O.C., for visiting India to collect Birth Certificate appeared to be an afterthought to confuse and confound one issue with another, "particularly when same too had not been raised and pursued wholeheartedly at right time---Such was clearly case of estoppel by conduct, which would bar civil servant from seeking relief prayed for at such belated stage---Date of birth once recorded at time of joining Government service would be final by virtue of R. 12-A of the Rules.---Court dismissed Constitutional petition being, misconceived.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Sobho Gian Chandani v. Federation of Pakistan and 8 others 1996 MLD 1569; S. Munawar Ali Sher v. Federation of Pakistan through Ministry of Interior Government of Pakistan and 3 others PLD 1999 Lah. 459; Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372 and Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 ref

Zulftqar Ali v. H. Kamal Hussain and others Election Appeal No. 1 of 1994 distinguished.

(b) Civil service-

---- Date of birth---Seeking correction of date of birth by civil servant at the verge of his retirement---Purpose---Just to prolong their tenure and enjoy perks and privileges of their service at the costs of others---Such idea either never creeps in their mind earlier or is never taken seriously and pursued to desired end.

(c) Civil service-

---- Date of birth entered- in National Identity Card as well as Secondary School Certificate---Preference---Entry made in Secondary School Certificate was more authentic and reliable document as compared to former.

Zulfiqar Ali v. H. Kamal Hussain and others Election Appeal No. 1 of 1994 ref.

Yahya Khan Afridi for Appellant.

Hamid Farooq Durrani, D.A.-G. for Respondents

Date of hearing: 11th December, 2002.

2003 P L C (C. S.) 779

[Peshawar High Court]

Before Abdul Rauf Khan Lughmani and Muhammad Qaim Jan Khan, JJ

MUHAMMAD JAVED KHAN

Versus

SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT OF N.-W.F.P., PESHAWAR and 11 others

Writ Petition No.429 and Civil Miscellaneous No. 613 of 2002, decided on 17th October, 2002.

Constitution of Pakistan (1973)---

--Arts.25 & 199---Constitutional petition---Selection for vacancy---Discrimination policy decision, following of---Petitioner applied for a post advertised by the Authorities but was not appointed as he secured less marks than the respondents---Grievance of the petitioner was that for the years of experience, one mark was allocated to the candidates for each completed year ­and as he had experience of 4 years, 6 months and 18 days; therefore, period of more than 6 months should have been counted as one year and instead of giving 4 marks the Authorities should have given 5 marks ---Validity--­According to the policy of the Government, the broken period of less than one year whatever it might be was not countable--- Policy was uniform for all the candidates and the petitioner had not been discriminated as the respondents had also additional experience for more than 6/7 months but that too was ignored---Representation of the petitioner had been duly considered by the department but in the light of the policy decision his representation could not be accepted---Petitioner in the present case, had been treated equally and no discrimination was apparent qua other respondents---Marks of the petitioner had been correctly calculated for experience and had been awarded 4 marks for which he was entitled and that no discrimination had been trade in the case of petitioner---High Court declined to interfere with the selection trade by the Authorities--Petition was dismissed in limine.

Adam Khan for Petitioner.

Jehanzeb Rahim, A.-G. for Responder (on Pre-admission Notice)

2003 P L C (C.S.) 1057

[Peshawar High Court]

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

FAZLI HAQ KHAN, REGISTRAR and 26 others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Finance, Peshawar and 3 others

Writ Petition No. 1102 of 1992, decided on 20th January, 2003.

(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----Ss.17 & 26---North-West Frontier Province Policy Department Ministerial Service Rules, 1974---North-West Frontier Province Rules of Business, R.11---Police Rules, 1934, R. 10.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Claim for 20% special pay/allowance by Ministerial Staff of N.-W.F.P. Police Department as sanctioned to Police Staff and also allowed in other Provinces---Refusal of claim by Department---Validity---Ministerial Staff of Police Department were governed by North-West Frontier Province Ministerial Service Rules, 1974, and thus, were not members of uniform police governed under Police Rules, 1934---Government had sanctioned 20% special pay to Police Staff in lieu of special pay/instructional allowance---Ministerial Staff was neither Police Staff nor were drawing any special pay or instructional allowance--­Job of Ministerial Staff was quite different from Police Staff---Government had adopted its own policy within its available means keeping in view financial implications of granting and refusing relief---Quality, quantity and mode of function-and duties performed by one class of civil servants were given prime consideration while dealing with such-like situations---Civil servant was only entitled to pay sanctioned for the post---Department had neither issued any order in violation of S.17 of Civil Servants Act, 1973 nor misinterpreted the terms "Police Staff"---High Court dismissed Constitutional petition as not maintainable.

PLD 1993 SC 200 and PLD 1998 Kar. 116 ref.

(b) Civil service---

---- Salary/allowance as available in. other Provinces, demand for ---Validity--­Employee of Provincial Government had no right to demand salary/allowance as available in other Provinces, because one Province could or might have means to give one concession, while other Province might not have similar means to provide such pay/allowances to its employees.

Muhammad Anwar for Petitioner.

Imtiaz Ali, A.A.-G. for the State.

Date of hearing: 9th October, 2002.

2003 P L C (C.S.) 1122

[Peshawar High Court]

Before Mian Shakirullah Jan, C.J. and Ejaz Afzal Khan, J

MUHAMMAD ZAHOOR and 43 others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, LG&RD Department, Civil Secretariat, Peshawar and 6 others

Writ Petition No. 1084 of 1996, decided on 4th March, 2003.

(a) North-West Frontier Province Employees on Contract Basis (Regularization of Services) Act (VIII of 1989)---

----S.2(b)(c)---Government of North-West Frontier Province Rules of Business, 1985, R.3 & Sched. I, Colmn 2---North-West Frontier Province Civil Servants (Regularization of Services) Act (I of 1988), S.5--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--Regularisation of service---Appointment of petitioners on contract basis against posts created in a Planning. Cell under name of Strengthening of Local Government and Rural Development Department---Refusal of respondents to extend benefits of North-West Frontier Province Employees on Contract Basis (Regularization of Services) Act, 1989 to petitioners by way of regularizing their services of absorbing them in Department--­Validity---Legislature in its wisdom had assigned restrictive meanings to expressions "Government Department" and "post" as used in S. 2(b) & (c) of North-West Frontier Province Employees on Contract Basis (Regularization of Services) Act, 1989---According to R.3 of Government of North-West Frontier Province Rules of Business, 1985, a Government Department not mentioned in its Column No.2, Sched. I could not be construed as Department---Local Government and Rural Development Department was a Department within meaning of S.2(b) of Act (VIII of 1989), but the project on which petitioners had been appointed was a cell, a section and not a Department itself ---Petitioners' case was neither covered by any provision of Act VIII of 1989 and Act I of 1988 nor same could be treated at par with ad hoc employees regularised thereunder---Such project, wherein petitioners had been appointed, was not in existence and its employees were in surplus pool---No case was made out for issuance of writ within terms of Art. 199 of Constitution or on equitable considerations---High Court dismissed Constitutional petition.

(b) North-West Frontier Province Employees on Contract Basis (Regularization of Services) Act (VIII of 1989)---

----S.2(b)(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Regularization of service---Appointment of petitioners on contract basis against posts created in a Cell of Government Department---Refusal of Government to amend the Act on strength of judgment reported as 1993 SCMR 1124 and extend benefits thereof to petitioners by way of regularizing their services---Validity---Ratio of said judgment was that practice in matter of recruitment and promotion etc., should be such as could foster competence, discipline and efficiency in public service, and that such objectives should not only be advanced, but to be manifestly seen to have been advanced---Government could amend law in order to regularise services of petitioners as there was nothing in such judgment to restrain or prohibit amendment.

Musa Wazir v. N.-W.F.P. Public Service Commission 1993 SCMR 1124 ref.

Muhammad Zahaarul Haq for Petitioners.

Imtiaz Ali, A.-A.G. for Respondents.

Date of hearing: 19th December, 2002.

2003 P L C (C.S.) 1129

[Peshawar High Court]

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

SHER BAHADUR, DE PTCL, PESHAWAR

Versus

PTCL and others

Writ Petition No.932 of 2002, decided on 3rd April, 2003.

Pakistan Engineering Council Act (V of 1976)---

----Ss.8 & 10---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S.36(2)---Pakistan Telecommunication Corporation Service Regulations, 1994, Paras. 4.19 (Part III) & 4.20(2)---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Promotion--­Powers of Pakistan Engineering Council---Pakistan Engineering Council had power to decide as to whether any particular qualification could be equated with another academic qualification; but Council had no power to say that a civil servant/employee holding a particular academic qualification could not be promoted from a particular grade to a higher grade---Only a Government/Department could decide whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade---Services of employees of P.T.C.L. were governed by Statutory Service Regulation, which implied that persons, who were not registered with Pakistan Engineering Council could not be denied promotion to higher grade---Assertion of petitioner that respondents being not in possession of Engineering Degrees could not be promoted to post of Divisional Engineer, was devoid of any force as acceptance of such plea would amount to denial of promotion to such associate engineers who had been inducted in the service of Telegraph and Telephone Department even prior to appointment of petitioner---Essential aspect of service was that by passage of time an employee would expect his promotion to the next higher grade after fulfilling required conditions laid down by Department concerned---Only on basis of non-registration of respondents with Pakistan Engineering Council, benefit of promotion could not be taken away from them which is outside the domain of Pakistan Engineering Council--­Question of eligibility to promotion, being related to terms and conditions of service, jurisdiction of High Court in said matter was barred under Art. 212 of the Constitution---Constitutional petition was not maintainable, in circumstances.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701; Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Pakistan Engineering Council through Registrar, Islamabad and others v. Federation of Pakistan through Secretary, Establishment, Islamabad and others 1998 SCMR 811 and 1999 PLC (C.S.) 1061 ref.

Abdul Aziz Kundi for Petitioner.

Aamir Javed for Respondent No. 1.

Jehangir Khan for Respondent No.5.

Date of hearing: 3rd April, 2003.

2003 P L C (C.S.) 1139

[Peshawar High Court]

Before Malik Hamid Saeed and Fazal-ur-Rehman Khan, JJ

AMANULLAH KHAN

Versus

SECRETARY, GOVERNMENT OF N.-W.F.P., LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, PESHAWAR and 2 others

Writ Petition No. 28 of 2001, decided on 2nd June, 2003.

North-West Frontier Province Local Councils Servants (Efficiency and Discipline) Rules, 1980---

----Rr.5 & 6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of municipal employee belonging to Provincial Unified Group of Functionaries and governed by N.-W.F.P. Local Councils Servants (Efficiency and Discipline) Rules, 1980 on the charge of embezzlement--­Contentions of the petitioner/employee was that no opportunity was given to him by the Inquiry Officer to plead his case and thus he had been condemned unheard and that order of dismissal was passed by the Secretary, Government of N.-W.F.P., Local Government in the capacity as "Authority" as well as "Authorised Officer", which was not warranted by law and liable to be struck down---Validity---Record showed that Provincial Secretary, Local Government not only charge-sheeted the employee in the capacity of "Authority" but in the same capacity, he also dismissed him from service--­"Authority" and "Authorised Officer" were quite separate and distinct entities, under N.-W.F.P. Local Councils Servants (E&D) Rules, 1980, each having separate functions to perform and the functions of one could not be performed by the other but, in the present case, both the functions of "Authority" and "Authorised Officer" had been performed by one and the same person---Where the law required a thing to be done in a particular manner, the doing of that thing in any other manner would be illegal and would vitiate the proceedings---No explanation of the employee having been called for, the order of his dismissal could not be maintained---High Court set aside the order of the Provincial Secretary, Local Government with direction that the employee be reinstated in service immediately--­Constitutional petition having been accepted on the technical grounds, the Authority, if so desired could take fresh action against the employee, but before doing so, the Provincial Government would be well advised to clearly define/notify the "Authorised Officer", "Authority" and the "Appellate/Review Authority" for the matter and then to take action against the employee according to law.

PLD 1981 SC 176 ref.

Rustam Khan Kundi for Petitioner.

Shaukat Hayat Khan, Deputy Advocate-General for Respondents.

Muhammalullah Khan for Respondent No.3.

Date of hearing: 2nd June, 2003.

2003 P L C (C.S.) 1376

[Peshawar High Court]

Before Talaat Qayyum Qureshi and Ijaz-ul-Hassan, JJ

KHALIDA PARVEEN

Versus

DISTRICT EDUCATION OFFICER and 2 others

Writ Petition No. 1416 of 2000, decided on 2nd June, 2003.

Civil service---

----Withholding salary of civil servant---Civil servant was appointed against leave vacancy as Arabic Teacher and she worked for 34 months on that post---Salary of civil servant for said period of 34 months was withheld on ground that appointment of civil servant was irregular and in violation of rules and regulations---No objection with regard to alleged irregularity or violation of rules and regulations was ever raised by Authority during said period of service of civil servant---During period-of her appointment, civil servant was entrusted with election duties and during inspection, satisfactory remarks were entered in log book about her performance---Civil servant who was duly appointed, could not be subjected to victimization on account of negligence of Department---Department had no legal justification to withhold salary of civil servant for period she served the Department---Department was directed to release amount of salary for whole period of 34 months in which she had served.

Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 PLC (C.S.) 991 ref.

Ghulam Nabi Khan for Petitioner.

Sardar Shaukat Hayat, Addl. A.-G. for Respondents

Date of hearing: 21st June, 2003

2003 P L C (C.S.) 1400

[Peshawar High Court]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

NOOR AHMAD SHAH

Versus

GOVERNMENT OF N.-W.F.P through Secretary Education and 5 others

Writ Petition No. 1549 of 2001, decided on 20th June, 2003.

General Financial Rules----

--- R.117(1), Vol.1---Constitution of Pakistan (1973), Arts. 199 & 212---Civil service---Constitutional petition ---Maintainability---Recovery of amount from pensionary benefit---Civil servant who was to retire on attaining the age of superannuation, remained working even after superannuation for about eleven months without objection from the Authority, but Authority on finalization of his pension case, recovered the amount of salaries drawn by him during the said period of eleven months from pensionary benefits of civil servant---Validity---Civil servant having worked during the period of eleven months without any objection from the Authority, there was no justification for Authority to effect recovery of amount from the pensionary benefits of civil servant---Nothing was on file to demonstrate that civil servant had a hand in the affair and that he had approached the High Court with unclean hands disentitling him to discretionary and equitable relief provided under Art. 199 of the Constitution---Jurisdiction of High Court to entertain a Constitutional petition at the instance of a civil servant, was not ousted in respect of all matters, but ouster was limited to only those cases which could be taken up by Service Tribunal---Recovery in question had been effected without issuing notice to the civil servant---Non-issuance of notice had certainly prejudiced the interest of civil servant---Order recovering amount from pensionary benefits of civil servant, was declared to be illegal and without lawful authority and of no legal effect by the High Curt, in exercise of its Constitutional jurisdiction with direction to pay the recovered amount to civil servant.

PLD 1992 SC 207 and I.A. Sherwani v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Amanullah Khan for Petitioner.

Sardar Shaukat Hayat. D.A.-G. for Respondents.

Date of hearing: 20th June, 2003.

2003 P L C (C.S.) 1453

[Peshawar High Court]

Before Nasir-ul-Mulk and Talaat Qayyum Qureshi, JJ

RUKHSAR ALI and 11 others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Education, Peshawar and 3 others

Writ Petition No.239 of 2002, decided on 3rd July, 2003.

(a) North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10---N.-W.F.P. Public Service Commission (Functions) Rules, 1983, RA ---N.-W.F.P. Civil Servants Act (XVIII of 1973), Ss.2(b)(ii) & 25--­Rules of Business (N.-W.F.P.), Rr.19; 22 & 25---Constitution of Pakistan (1973), Arts. 199 & 25---Constitutional petition---Doctrine of promissory estoppel and principles of locus poenitentiae---Appointment---Provincial Public Service Commission had recommended the petitioners for recruitment/appointment on "regular basis" much before the Provincial Cabinet decisions to tile effect that the appointments in question be made on "contract basis"---Appointing Authorities without caring for the recommendations of the Service Commission, issued appointment letters of the petitioners on "contract basis"--Validity---Posts which were to be filled in on regular basis could not be converted into that of contract basis with the decision of the Provincial Cabinet without amending/changing the existing Law, Rules and Regulations---Principles---Doctrine, of promissory estoppel and principles of 'locus poenitentiae---Applicability.

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

---Art. 114---Estoppel---Promissory estoppel---Doctrine of promissory estoppel need not be inhabited by the same limitations as estoppel in the strict sense of the terms---Doctrine of promissory estoppel is an equitable principle evolved by the Courts for doing justice and there is no reason why the same should be given only a limited application - by way of defence.

Pakistan through Ministry of Finance, Economic Affairs and another v. Facto Belarus Tractors Limited PLD 2002 SC 208; Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546 and Messrs Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others AIR 1979 SC 621 ref.

Qazi Muhammad Jamil for Petitioners.

Tariq Javed, D.A.G. for Respondents.

Date of hearing: 3rd July, 2003.

2003 P L C (C.S.) 1522

[Peshawar High Court]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan, JJ

Syed IMAM SHAH and 2 others

Versus

GOVERNMENT OF N.‑W.F.P. through Chief Secretary and 6 others

Writ Petition No.430 of 2001, decided on 27th May, 2003.

(a) University of Peshawar Service Statute, 1997‑‑‑

‑‑‑‑S.16‑‑‑University of Peshawar Act (II of 1974), S.13(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Appointment‑‑‑Civil servants who initially were recruited in BPS‑5, were promoted in due course to the posts of Senior Clerks in BPS‑7 and then to senior scale Assistants in BPS‑11 on basis of "seniority‑cum‑fitness‑‑‑Said practice of promotion, was replaced with a new method‑‑‑Vacancies of Superintendents having occurred, applications were invited and suitable candidates were selected and appointed against said posts‑‑‑Grievance of petitioners was that vacancies of Superintendents should have been filled through initial recruitment and not through new method of selection/appointment‑‑‑Validity‑‑‑Old practice of recruitment was put to an end and new method was introduced in terms of S.16 of University of Peshawar Service Statute, 1997 governing the terms and conditions of service of employees of University‑‑‑Notification laying down eligibility criteria for the posts of Ministerial Staff (BPS‑5 to BPS‑16) were issued with approval of Competent/Appointing Authority‑‑‑Said criteria was approved by Vice‑Chancellor exercising his powers under S.13(3) of University of Peshawar Act, 1974 in anticipation of approval of same by‑­relevant bodies of the University‑‑‑No mala fides had been established in the present case and new method of appointment and promotion had been introduced for valid reasons which hardly justified interference of High Court in exercise of its Constitutional jurisdiction‑‑‑Where an administrative or executive officer had acted under a law, High Court would control action by an appropriate order only if said officer had gone out of law in exercising a jurisdiction not vested in law‑‑‑Proceedings under Art. 199 of the Constitution would be competent against action found in violation of law laid down by superior Courts‑‑‑Petitioners/civil servants could not prove that they had been made victim of excesses; that they suffered at the hands of University Authorities; and that equality and rule of propriety demanded of High Court to come to their rescue by declaring action of Authorities as void, illegal and discriminatory‑‑­Constitutional petition being not maintainable, was dismissed in circumstances.

Dr. M. Afzal Beg v. University of Punjab and others 1999 PLC (C.S.) 60; Managing Director (Powers), WAPDA and others v. Muhammad Luqman PLD 2003 SC 175; Sardar Sultan Ahmad Khan v. Government of Punjab and others 2001 MLD 1013 and Saleem & Co. v. The Deputy Collector of Customs, Lahore Dry Port, Mughalpura, Lahore and 2 others PLD 2001 Lah. 5 ref.

(b) Mala fides‑‑‑-

‑‑‑‑ Meaning and onus to prove ‑‑‑Mala fides was one of the most difficult thing to prove and onus to prove was entirely upon person alleging the same‑‑‑When presumption was of regularity with regard to all official acts, until that presumption was rebutted, action could not be challenged merely upon a vague allegation of mala fides ‑‑‑Mala fides must be pleaded with particularity and once one kind of mala fides was alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched merely on the basis of vague and indefinite allegation‑‑­Person alleging that an action had been taken against him mala fide, was required to show that person responsible for taking said action had been motivated by any mala fide considerations‑‑‑Mere allegation that an action had been taken wrongly, was not sufficient to establish a case of mala fides nor could a case of mala fides be established on the basis of universal malice against a particular class or section of people.

Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

Shahbaz Khan for Petitioners.

Tariq Javeed, D.A. ‑G. for Respondent No. 1.

Abdul Qadir Khattak and Wali Khan Afridi for Respondents Nos.8 to 16.

Date of hearing: 7th May, 2003.

2003 P L C (C.S.) 419

[Quetta High Court]

Before Raja Fayyaz Ahmad, CJ. And

Muhammad Nadir Khan, J

BISMILLAH

Versus

SECRETARY, EDUCATION DEPARMTENT, GOVERNMENT OF BALOCHISTAN, QUETTA and another

Constitutional Petition No. 187 of 2002, decided on 20th November, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Vested right‑‑‑Appointment in Government Department‑‑‑Eligibility‑‑‑Workshop practice, whether a substitute of experience‑‑‑Grievance of the petitioner was that he was interviewed and secured highest marks but he was refused to be appointed against the vacancy as he was declared unqualified for want of experience required for the post‑‑‑To meet the requirement of the requisite experience, the petitioner produced a certificate of workshop practice‑‑‑Contention of the Authorities was that the Certificate was not a substitute of the experience as required and the certificate was issued about two years after the petitioner was interviewed, hence the petitioner had no vested right ‑‑‑Validity‑‑­Interview was conducted on 6‑9‑2000, and the certificate was issued on 23‑8‑2002, therefore, the certificate was of no benefit to the petitioner‑‑­Workshop practice could not replace the required experience of one year training‑‑‑Petitioner not possessing the required experience, was not to be allowed to take the interview test but such omission on the part of the Authorities did not create any right in favour of the petitioner‑‑‑Petitioner himself created the entire situation putting himself as well as the Authorities to undergo the unnecessary exercise by applying for the post despite being not eligible for the same and thereafter pursuing the same on unjustified grounds‑‑‑Petitioner, in circumstances, was not entitled to the post and no legal or Constitutional right of the petitioner had been infringed‑‑­Constitutional petition was dismissed in limine.

Nasir Khan Kasi for Appellant.

Sultan Muhammad, Assistant Advocate‑General for Respondents.

Date of hearing: 30th October, 2002.

2003 P L C (C.S.) 679

[Quetta High Court]

Before: Amanullah Khan and Fazal-ur-Rehman, JJ

HAAVI AZAM and 15 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 4 others

Constitutional Petition No.277 of 2002, decided on 16th December, 2002.

(a) Balochistan Service Tribunals Act (V of 1974)---

----S.4(1)(b)---Promotion--Jurisdiction of Service Tribunal---Scope--­Question of fitness or otherwise of a person for promotion to higher post or grade determined by Departmental Authority---Tribunal had no jurisdiction to adjudicate .and determine such question.

Mian Abdul Malik v. Dr. Sabir 1991 SCMR 1129 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 fol.

(b) Balochistan Service Tribunals Act (V of 1974)--

----S.4(1)(b)---Promotion---Jurisdiction of Service Tribunal to determine question of "fitness" or "suitability" of civil servant for promotion is barred---Principles.

When a case of civil servant is referred to Departmental Promotion Committee or Departmental Authority for promotion alongwith other civil servants, and the Committee or Authority after evaluating record and performance of such civil servant amongst others considers him "tit for promotion", then in such a case only, no appeal would lie -to Service Tribunal. Question of fitness is determined on a subjective evaluation on the basis of objective criteria, where substitution of opinion of competent authority. is not possible by that of Tribunal or Court. Thus, in such background, jurisdiction of Service Tribunal will be barred, as question of "fitness" or "suitability" for promotion have always been considered to be the exclusive jurisdiction of Competent Authority or Departmental Promotion Committee.

Malik v. Dr. Sabir 1991 SCMR 1129 rel.

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

----Arts. 199 & 212---Balochistan Service Tribunals Act (V of 1974), S.4--­Constitutional petition---Accelerated promotion---Grant of such promotion to respondents in recognition of their meritorious services---Such question falls within definition of "terms and conditions of service", thus, Service Tribunal has exclusive jurisdiction---High Court dismissed Constitutional petition for want of jurisdiction---Principles.

Cases of respondents and petitioners were not before Departmental Selection Committee or Competent Authority for promotion to higher post and while giving accelerated promotion to respondents, cases of petitioners were not before Departmental Promotion Committee to come to a conclusive decision as to who amongst petitioners and respondents was fit for promotion to higher post. It was only on the basis of their meritorious services that respondents were considered and promoted, thus, the case of accelerated promotion does not fall, within the definition of "fitness" as laid down by Supreme Court.

Mian Abdul Malik v. Dr. Sabir 1991 SCMR 1129 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 rel.

Respondents were only recommended for promotion out of turn on basis of their meritorious services, which by stretch of imagination can be termed as subjective evaluation on the basis of objective criteria declaring them fit for promotion as their case was not before Departmental Promotion Committee to see, whether they were fit for promotion. Petitioners were never superseded by any Committee or Competent Authority considered them unfit for promotion, on the contrary their cases were never considered for promotion.

Thus, question of accelerated promotion of respondents on the basis of their meritorious services falls within the definition of terms and conditions of their service where obviously Service Tribunal has the exclusive jurisdiction.

High Court dismissed Constitutional petition for want of jurisdiction.

(d) Balochistan Service Tribunals Act (V of 1974)---

----S.4(1)(b)-- Promotion---Eligibility of civil servant---Such question relates to terms and conditions of service, thus, falls within exclusive domain of Service Tribunal.

Zafar Ullah Baloch v. Government of Balochistan 2002 SCMR 1056 ref.

(e) Balochistan Service Tribunals Act (V of 1974)--

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Appeal--­Powers of Service Tribunal in service matters---Very vast---Extent.

Since Service Tribunal is the creation of Constitution itself, and Article 212 ousts writ jurisdiction of High Court, in service matters, the scope of (powers of) Service Tribunal is very vast and even if the orders passed are based on mala fides or same are ultra vires, coram non judice or without jurisdiction, even then, the same come within the exclusive jurisdiction of Service Tribunal and the jurisdiction of High Court is barred in view of Article 212 of the Constitution.

I.A. Sherwani and others v. Government of Pakistan 1991, SCMR 1041 rel.

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

----Art. 199---Alternate, adequate and efficacious remedy---Non-availability of such remedy to aggrieved person---Condition precedent for exercise of jurisdiction under Art. 199 of the Constitution---Where alternate, adequate and efficacious remedy is available, High Court would be reluctant to exercise its jurisdiction, which is an extraordinary discretionary relief.

(g) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction---Where matter was already sub-judice before Departmental Authority, High Court would not entertain Constitutional petition---Invoking Constitutional, jurisdiction and by passing statutory remedy without reasonable cause was deprecated.

Al-Ahram Builders v. Income-tax Appellate Tribunal 1993 SCMR 29 ref.

Syed Ayaz Zahoor for Petitioners.

Muhammad Salahuddin Mengal, A.-G., Muhammad Riaz Ahmed and H. Shakeel Ahmad for Respondents.

Date of hearing: 13th November, 2002.

2003 P L C (C.S.) 1316

[Quetta High Court]

Present: Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malghani, J

SALLAHUDDIN

Versus

SECRETARY HEALTH and 2 others

Civil Petition No.406 of 2002, decided on 2nd June, 2003.

(a) Balochistan Civil Service Pension Rules, 1982---

----R.3.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Retirement on ground of invalidation of a civil servant---Right forearm of the civil servant was excised on account of cancer and post operation radiotherapy was done, due to which nerves of the right arm were damaged and civil servant had lost the movement of his hand---Held, case of the civil servant was one of invalid pension as defined by R.3.3 of Balochistan Civil Service Pension Rules, 1982 and the Department was bound under law to have processed his case for pension as required under the Rules and by not doing so they acted without lawful authority, as such, the Department was directed by the High Court to process the case of the civil servant for invalid pension as provided by R.3.3 of the Balochistan Civil Service Pension Rules. 1989.

(b) Official act---

---- Public functionary who undertakes to perform an official act, must do so reasonably, in accordance with the procedure laid down in this behalf and with reasonable skill and diligence, particularly where rights of individual maybe jeoperdised by his neglect.

Tahir Hussain for Appellant.

Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 13th May, 2003.

2003 P L C (C.S.) 619

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman, Muhammad Idrees Baloch and Syeda Tahira Safdar, Members

MUHAMMAD IRFAN KASI

Versus

PROVINCE OF BALOCHISTAN

Service Appeals Nos.39, 71 to 75, 79, 82 and 83 of 2001 decided on 17th October, 2002.

(a) Civil service---

---Induction/re-employment of Officers of Armed Forces of Pakistan in civil service---Establishment Division Memorandum, Cl. 5(b) (Part. II)--Service rendered in Pakistan Army---Counting such service towards the civil service---Civil servant was inducted in civil service in Basic Pay Scale 19 and under no rule an Army Officer could be inducted directly in such pay scale---Effect---Person having been inducted in Basic Pay Scale, 19 in civil service, only on the basis of his service rendered in Pakistan, Army, his services rendered in Armed Force would be counted toward, his service rendered as civil servant.

(b) Balochistan Civil Servants Act (IX of 1974)---

--S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]---Retirement from service---Plea of pre-mature retirement--­Approbate and reprobate ---Civil servant was initially appointed by Federal Government in Ministry of Information on ad hoe basis as Information Officer and afterwards inducted in Balochtstan Civil Service--- Alter having been inducted, the seniority of tie civil servant was challenged by his other colleagues and the matter went upto Supreme Court and the service of the civil servant was counted from his initial appointment in the year 1974, by Federal Government---Grievance of the civil servant was that he had been pre-maturely retired by the authorities on 22-5-2001—Validity—Civil servant could not approbate and reprobate, as he got promotion on the basis of his previous service rendered by him in the department of information---Civil servant was not retired from service pre-maturely in circumstances.

(c) Balochistan Civil Servants Act (IX of 1974)--

----S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)---Balochistan---Service Tribunals Act (V of 1974), S.4--Constitution of Pakistan (1973), Art.212----Vires of amendment in service laws-- Jurisdiction of Service Tribunal---Amendment is S.13 of Balochistan Civil Servants Act, 1974 [as amended by Balochistan Civil Servant (Amendment) Ordinance (IV of 2000)] pertained to the term and conditions, of service, therefore any law passed by the authority was amenable to the jurisdiction of Service Tribunal--Since in service matters no Court had power to exercise jurisdiction the amending Ordinance passed by the Governor could not be challenged before any outer Court---Contention that Service Tribunal having the functions of a Civil Court and substituted for High Court under Art.212 of the Constitution could; therefore, declare the­ law ultra wires--Validity- -Service Tribunal had the jurisdiction to declare a law invalid or ultra vires:

Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Ouetta 59; Fazal Ellahi and 22 others v. Government of Punjab and 13 others PLD 1977 Lah. 549; Province of Punjab through Secretary, Health v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and I.A. Sherwani v. Government of Pakistan through Secretary Finance, Islamabad and others 1991 SCMR 1041 ref.

(d) Balochistan Civil Servants Act (IX of 1974)---

---S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]---Provisions of S.13 of Balochistan Civil Servants Act, 1974, before and after amendment ---Comparison---Un-amended S.13 of Balochistan Civil Servants Act, 1974; has been renumbered and subsection (2) has been incorporates: and on the question of retirement the Government has been authorized to retire a civil servant after completion of his 25 years' service ---Similar powers have been retained by the Government in S.2(2) of Balochistan Civil Servants Act, 1974---Previously under the un-amended section no reason was required for retiring a civil servant but by virtue of S.2(2) of Balochistan Civil Servants Act, 1974 [as attended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)], notice in writing is a pre-requisite to inform a civil servant of the charge and has to be given reasonable opportunity of showing cause against such direction.

(e) Balochistan Civil Servants Act (IX of 1974)---

----S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]---Provisions of, Ss. 13(1)(a) & 13(2)(b) as amended by Balochistan Civil Servants (Amendment) Ordinance, 2000---Excessive delegation of power---Validity---Competent Authority under un-amended S.13 of Balochistan Civil Servants Act, 1974, was empowered to retire a civil servant on completion of 25 years of service with benefits, whereas under the amended section only subsection (2)(b) has been incorporated whereby notice in writing has been made a pre-requisite to civil servant to show cause before any action is taken---Insertion of subsection (2)(b) in Balochistan Civil Servants Act, 1974, cannot be termed as excessive delegation of powers.

(f) Provisional Constitution Order (I of 1999)---

----Arts. 3 & 4---Provisional Constitution (Amendment) Order (9 of 1999)---Balochistan Civil Servants Act (IX of 1971). S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]--­Promulgation of Ordinance---Authority of Governor ---Vires of amending Ordinance---Validity---Provisions of amend Ordinance were to be tested on the touchstone of Provisional Constitution Order (I of 1999)--No defect or flaw had been pointed out in the authority of Governor under Chief Executive's Order (9 of 1999) for promulgation of Balochistan Civil Servant (Amendment) Ordinance (IV of 2000)---Governor had been, authorized to promulgate the Ordinance under Provisional Constitution Order, 1999, therefore, no exception could be taken to the same ---Balochistan Civil Servants (Amendment) Ordinance (IV of 2000) had been validity promulgated by the Governor in circumstances.

Zafar Ali Shah's: case PLD 2000 SC 869; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 223; Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 and Qazi Hussain Ahmed's case PLD 2002 SC 853 ref.

(g) Interpretation of statutes----

----Delegation of powers---Scope---Delegation of powers is not a new phenomenon and it has been validly recognized in other advanced countries of the world---Justification of issuing a legislative instrument is a matter solely within the competence of Legislature or the law givers---Courts have been kept in restraint from questioning the motive or reasons of Legislature.

Corpus Juris Secundum, Vol. 16, p. 809; Administrative Law Text, Third Edn., p.26; Mutual Film (corporation v. Industrial Commission of Ohio 236 US 230 and PLD 1983 SC 475 ref.

(h) Balochistan Civil Servants Act (IX of 1974)--

----S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]---Balochistan Service Tribunals Act (V of 1974), S.4---Order of retirement of civil servants---Issuance of show-cause notice---Principles of natural justice, non-compliance of---Competent Authority informed the civil servants vide show-cause notices who replied the same--After receiving the replies, the notifications were issued whereby the civil servants were ordered to he retired from service on completion of their 25 years of service--­Contention of the civil servants was that the notifications were in violation of principles of natural justice---Validity---Civil servants could be retired under S.13(1)(a) of Balochistan Civil Servants Act, 1974 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)], after completion of their 25 years of service, qualifying for pension or other retirement benefit ---Action could only be taken under S.13(1) of Balochistan Civil Servants Ail, 1974, when a civil servant was informed of the same in writing under S.13(2) of Balochistan Civil Servants Act, 1974, [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]-- Notifications did not show that any adverse action had been taken against the civil servants as the same indicated simplicitor retirement of the civil servants with all service benefits---.Against the civil servants, there were allegations of corruption, and their cases could have been referred to the Regional Accountability Bureau Authorities or the Anti-Corruption Establishment but instead of doing so, simplicitor retirement order was passed---Discretion exercised by the Competent Authority was just, fair and equitable--­Notifications were not issued in violation of principles of natural justice--­Appeal was dismissed in circumstances.

Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59; Fazal Ellahi and 22 others v. Government of Punjab and 13 others PLD 1977 Lah. 549; Province of Punjab through Secretary, Health v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; I.A. Sherwani v. Government of Pakistan through Secretary Finance, Islamabad and others 1991 SCMR 1041; Interpretation of Statutes: by N.S. Bindra's Seventh Edition p.812; Fundamental Law of Pakistan AK. Brohi; Consumer Action Group and others v. State of T.N. and another (2000) 7 SC Cases 425; Kuni Behari Lal Butail and others v. State of H.P. and others (2000) 3 SC Cases 40; Zafar Ali Shah's case PLD 2000 SC 869; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 223; Khan Astand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 and Qazi Hussain Ahmed's case PLD 2002 SC 853 ref.

(i) Balochistan Civil Servants Act (IX of 1974)---

----S.13 [as amended by Balochistan Civil Servants (Amendment) Ordinance (IV of 2000)]---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.4, 5 & 6---Order of retirement from service--Issuance of show-cause notice---Non-conducting of detailed inquiry---Competent Authority issued show-cause notices and after taking replies from the civil servants opted not to conduct a detailed injury in the matter, as the material was already placed before him by the Balochistan Service Review Board and exercised discretion in passing the notifications of retirement ---Validity--­Competent Authority under Government Servants (Efficiency and Discipline) Rules, 1973, could form an Inquiry Board or Committee and if satisfied that no further inquiry was warranted in the case of a civil servant it could dispense with the detailed inquiry and could pass appropriate order--­Notifications were rightly issued by Competent Authority in circumstances.

State v. Ziaur Rehman PLD 1973 SC 49 ref.

Muhammad Aslam Chishti for Appellant.

Ghulam Mustafa Mengal, A.A.-G. and Ashraf Khan Tanoli, A.-G. for Respondents.

Dates of hearing: 6th, 13th, 20th, 27th June, 2002 and 25th July of 2002.

2003 P L C (C.S.) 1000

[Service Tribunal N.-W.F.P.]

Before Khan Akbar Khan, Chairman and Muhammad Shaukat, Member

Engr. NAWAB KHAN, SUPERINTENDING ENGINEER, NORTHERN IRRIGATION CIRCLE, MARDAN

Versus

THE SECRETARY, GOVERNMENT OF N.-W.F.P., IRRIGATION DEPARTMENT, PESHAWAR and 4 others

Service Appeal No.292 of 1998, decided on 1st October, 2002.

North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---

----R.4(1)(a)(iv)---Penalty of recovery of amount---Authority on basis of decision of Public Accounts Committee directed civil servant through its letters to deposit amount on account of pecuniary loss allegedly caused by civil servant to Government---Orders of recovery of amount were passed by Authority on basis of directions of Public Accounts Committee on alleged irregularities/illegalities stated to have been committed by civil servant during his tenure as Executive Engineer---Public Accounts Committee was not an executive body to give direction for taking action against a civil servant, but could make only recommendations to the Authority concerned in that respect---Action so taken by Authority against civil servant in shape of recovery of amount in question on basis of directions of Public Accounts Committee for alleged irregularities was illegal and was not warranted by law especially when no codal formalities like holding proper enquiry had been observed in case of civil servant---Civil servant was to be dealt with under North-West Frontier Province Government Servants (Efficiency and Discipline) Rules. 1973 before passing any punishment against him; that having not been done, orders passed against civil servants were set aside.

Adam Khan and M. Alam for H. Nisar for Appellant.

Sultan Mehmood, Government Pleader for Respondents.

2003 P L C (C.S.) 1363

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman

SAADAT ANWAR

Versus

GOVERNMENT OF BALOCHISTAN

Service Appeal No.24 of 2001, decided on 22nd May, 2003.

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992—­

----Rr.2(1)(e), 4, 5(1), 6(7), 7(1), (8) & 12---Balochistan Service Tribunals Act (V of 1974), S.4---Dismissal from service---Civil servant was dismissed from service after charge-sheeting him and holding inquiry against him on certain allegations like exceeding his official position. making advance payment to contractor, reputation of being corrupt and misconduct etc.--­Enquiry Officer initially did not fix any date and he conducted proceedings by visiting the site in the absence of civil servant as during course of inspection of site, civil servant was not associated---Only one witness was examined and statement of said witness was recorded in absence of civil servant without affording him opportunity to cross-examine him---Record was checked by Investigating Officer in absence of civil servant. who was never informed about such inspection which was in violation of relevant rules---Validity---Authorized Officer was under a legal obligation to supply record to Inquiry Officer, but in tote case of civil servant same had not been done which was in violation of R.6(8) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---Inquiry which formed basis of dismissal order of civil servant having been conducted in sheer violation of Rules and also in violation of principles of natural justice, was void ab initio and of no legal effect---Advance payment to contractor was made by civil servant on completion of work and after inspection---No loss had been caused to the Government exchequer by making advance payment to contractor---Even if certain irregularities were proved to have been committed by civil servant, penalty of. dismissal from service imposed on him was not justified---Order dismissing civil servant was set aside and he was ordered to be re-instated.

PLC 1982 (C.S.) 266 ref.

Basharatullah for Appellant.

Ghulam Mustafa Mengal, Addl. A.-G. for Respondent.

Date of hearing: 19th December, 2002.

2003 P L C (C.S.) 66

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑I

JAMSHED KHAN, DEPUTY DISTRICT OFFICER, (ROADS) KAROR

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE

Appeal No.642 of 2002, decided on 17th July, 2002.

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

‑‑‑S. 4‑‑‑Reduction in time scale by one stage‑‑‑Misclassification of funds‑‑‑ Failure to conduct departmental inquiry ‑‑‑Penalty or, the basis of reply filed by the civil servant‑‑‑Allegation of misclassification of funds was denied by the civil servant‑‑‑Authorities held the civil servant guilty merely on the basis of replies and additional defence filed by the civil servant and his co­ accused‑‑‑Validity‑‑‑No evidence or proof could be extracted from the replies of the civil servant to conclude that he was guilty of misclassification‑‑­Denial of the charge by the civil servant could not be construed to be any kind of confession‑‑‑Penalty passed by the authorities against the civil servant was set aside‑‑‑Appeal was allowed in circumstances.

Rizwana Anjum Mufti for Appellant.

Ch. Manzoor Hussain, District Attorney for Respondent.

Date of hearing: 8th July, 2002.

2003 P L C (C.S.) 328

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑III

TARIQ MEHMOOD

Versus

DIRECTOR, PUBLIC INSTRUCTION (SE), PUNJAB, LAHORE and others

Appeal No.31 of 2001, decided on 27th March, 2002.

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

‑‑‑‑Rr.3 (b) & 4(1)(b)(i)‑‑‑Major penalty of reduction in time scale to initial stage‑ ‑‑Imposition of‑‑‑Civil servant having committed misconduct by 'issuing bogus certificate in favour of a student, forging record relevant to date of birth of student, was imposed major penalty of reduction in time scale to initial stage after holding proper inquiry against him‑‑‑Civil servant had been given full opportunity to defend his cause in course of departmental proceedings, but penalty of reduction in pay to the maximum stage appeared too extreme‑‑‑Considering facts of case penalty imposed on civil servant stood .converted into that of reduction of pay by one stage.

Pervaiz Inayat Malik for Appellant.

Muhammad Boota, SC/DR for Respondent No.3

Rana Safdar Ali Asif, District Attorney.

Date of hearing: 18th March, 2002.

2003 P L C (C.S.) 400

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman, Ch. Muhammad Sarwar, Member‑I and Sardar Alam, Member‑II

Rana TARIQ SHAUKAT and 634 others

Versus

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

Appeal No. 1517 of 2001, decided on 3rd May, 2002.

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

‑‑‑‑S.4‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rr.3, 4 & 22‑‑‑Constitution of Pakistan (1973), Art.18‑‑­Appointment‑‑‑Requirement‑‑‑Appointment to a public office should be through a transparent process by advertising the posts in newspapers of wide circulation enabling all and sundry possessing requisite qualifications to try their luck by submitting applications as required, and an independent Selection Committee comprising of Subject Specialist was to be convened to pick‑up candidates strictly on merits‑‑‑After undergoing the rigours of test and interviews, selected candidates had to prove their fitness on medical grounds and it was only then that induction in service could be termed to be clean and honourable in accordance with Art. 18 of Constitution of Pakistan (1973).

Chairman, Minimum Wages Board, Peshawar and another v. Fiaz Khan Khattak 1999 SCMR 1004; Jehangir Mirza, Senior Superintendent of Police, Lahore and others v. Government of Pakistan PLD 1990 SC 1013; Muhammad Raza Mehdi v. The Vice‑Chancellor/Chairman, Syndicate N.E.D. University of Engineering and Technology, Karachi and others 1998 PLC (C.S.) 1260; Secretary to Government of the Punjab, Agriculture Department, Lahore and 4 others v. Sheikh Naveed Kamal, Assistant Research Officer 2001 SCMR 1661; Ishtiaq Hassan v. Secretary, Agriculture Department, Government of the Punjab, Lahore, and another PLJ 1996 Tribunal Cases Service 32; Asad Ullah Munir Tarar v. Chief Engineer, Irrigation Development Zone, Lahore, 1995 PLC (C.S.) 938; Muhammad Ayub v. Secretary to Government of the Punjab, Agriculture Department. Lahore 1995 PLC (C.S.) 428; Imran Ahmad v. Secretary to Government of the Punjab, Agriculture, Lahore 1995 PLC (C.S.) 611; Chief Secretary. Government of the Punjab, Lahore and another v. Abdul Majid 2001 SCMR 1971; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 and Muhammad Ashraf v. Government of the Punjab PLJ 1998 Tribunal Cases (Service) 77 ref.

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

‑‑‑‑S.10‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22‑‑‑Ad hoc appointee ‑‑‑Appointment and termination of ad hoc appointee had no vested right to continue in service, till arrival of a selectee as S.10(3) of Punjab Civil Servants Act, 1974, was of overriding nature and could be used to terminate service of ad hoc appointee either on one month's 'pay or on 30 days' notice‑‑‑Ad hoc appointees could not renege on conditions on which they accepted their ad hoc appointments.

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

‑‑‑‑Art.25‑‑‑Class discrimination‑‑‑Class discrimination without reasonable classification‑‑‑Validity‑‑‑In order to plead ground of discrimination, it must be shown that cases selected for comparison were outcome of legal orders‑‑­Mere fact that two persons had obtained certain advantage otherwise not admissible, could not constitute adequate ground for claiming similar advantage on basis of discrimination.

Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad 1998 SCMR 882 and Pakistan International Airlines through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC 890 ref.

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

‑‑‑‑R. 22‑‑‑Regularization of ad‑hoc appointee‑‑‑Regularization of ad‑hoc appointee could only, be resorted to under provisions of R, 22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which required forwarding of a requisition by Appointing Authority to Selection Authority who fell back on their own mechanism of appointment.

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

‑‑‑‑R.23‑‑‑Powers of Chief Minister to relax rules‑‑‑Extent‑‑‑Chief Minister though was empowered to relax Rules but only in an individual case of hardship by giving special reasons.

Engineer Naraindas and another v. Federation of Pakistan and another 2002 SCMR 82 and Government of Sindh v. Saleem Raza 2001 SCMR 701 ref.

(f) Civil service‑‑‑

‑‑‑‑ Natural justice, principle of‑‑‑Applicability‑‑‑Opportunity of hearing or rule of audi alteram partem was only applicable where rights of an individual were affected in matters relating to person, property, service or reputation‑‑­Rule could have been successfully invoked if Authorities had resorted to provisions of Efficiency and Discipline Rules for proceeding against civil servants on ground of misconduct or inefficiency.

Amjad Ali and others v. The Board of Intermediate and Secondary Education and others 2001 SCMR 125 and Muhammad Ashraf v. Government of the Punjab PLJ 1998 Tribunal Cases, (Service) 77 ‑ref.

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

‑‑‑‑S.4‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Civil servant either should agitate his grievance before Service Tribunal after waiting for 90 days from the date when departmental appeal was filed to enable the Appellate Authority in Department to pass necessary order and if such order was not passed then appeal could be filed within next 30 days and civil servant could file appeal at his own risk whenever departmental appeal was decided within next 30 days of passing of the order.

Syed Firdose Ali v. Secretary, Establishment Division, Islamabad 1997 SCMR 1160 ref.

Hafiz Tariq Nasim for Appellants.

Khadim Hussain Sindhu, District Attorney, Muhammad Yousaf, Addl. Secretary (Adorn.), Higher Education, Muhammad Rafiq Shad, S.O. (S‑II), School Education Department, Abdi Khan, Superintendent, Office o DPI (Colleges), Punjab, Lahore, Muhammad Iqbal, DEO (Coleges), Sargodha, Abdul Razzaq, Dy. Director Legal, Punjab Public Service Comnussion, Lahore, Bashir Ahmad, Law Officer, Office of EDO Education, Muzaffargarh. Ehsan Ahmad Bhatti, Law Officer, Office of EDO Education,. Sargodha, Javaid Iqbal, DEO (Colleges), Bahawalnagar and Muhammad Aslant, Assistant Director Education' Rawalpindi, Departmental Representative.

Date of hearing: 13th April, 2002.

2003 P L C (C.S.) 417

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑I

Rao ABDUL SATTAR

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), KHANEWAL and 2 others

Appeal No. 940 of 2002, decided on 11th July, 2002.

Civil service‑‑‑

‑‑‑‑Transfer‑‑‑Civil servant who was transferred, was to retire within a period of less than two years‑‑‑Civil servant was under obligation to serve anywhere in the Province and even out of Province and Competent Authority could transfer him anywhere, Competent Authority, however, must exercise its powers judiciously and in accordance with guidelines given in Transfer Policy by the Government‑‑‑Competent Authority had not assigned any reason as to why civil servant who was at fag end of his service carrier, had been disturbed by transferring him to a new place of posting‑‑‑Authorities had alleged that civil servant had been transferred on the basis of certain complaints against him‑‑‑No fact finding enquiry was held to make any .probe, into the alleged complaints‑‑‑Mere complaints against civil servant could not be taken to be a legitimate ground for transfer of civil servant in the absence of any enquiry‑‑‑Order transferring civil servant being against Transfer Policy of Government, was unsustainable and was set aside.

Irfan Qadir for Appellant.

Ch. Manzoor Hussain, District Attorney and Muhammad Saghir Abid, Assistant DEO (SE), Khanewal for Respondents.

Date of hearing: 4th July, 2002.

2003 P L C (C.S.) 1213

[Punjab Service Tribunal]

Before Shafqat Ali Hijazi, Member

MUHAMMAD SHAFIQ AHMED SIDDIQUI

Versus

PROVINCE OF THE PUNJAB through Secretary, Communications and Works Department and 4 others

Appeal No.2529 of 2000, decided on 20th September, 2002.

Civil service---

---- Promotion---Entitlement to pay scale of higher post---Civil servant while serving as Sub-Engineer in BS-11 in parent department was allowed to work on deputation with borrowing Department as Sub-Divisional Officer in BS-17, where he was allowed only pay of BS-11 alongwith 20% deputation allowance---Parent Department rejected civil servant's claim for pay of the post of BS-17 for deputation period and grant of Selection Grade in BS-16 out of 25% quota reserved for Sub-Engineers---Validity---Civil servant was eligible for promotion after clearance of departmental examination, which was basic condition of promotion and which he cleared later on--Post of Sub-Divisional Officer had been allowed to civil servant after his return to parent Department, in the light of terms and conditions of deputation policy---Civil servant had not agitated such issue while on deputation with borrowing Department---Appeal filed by civil servant was dismissed in circumstances.

1992 SCMR 1869; PLD 1994 SC 233; 1998 SCMR 2614 and 1992 PLC 130 ref.

Saleem Anwar Khan for Appellant.

Muhammad Aslam Awais, District Attorney for Respondents.

Date of hearing: 9th September, 2002.

2003 P L C (C.S.) 1445

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. NISAR AHMAD and others

Versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, LAHORE and others

Appeals Nos.2904 and 2783 of 2002 decided on 29th January, 2003.

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

----Rr.4(1)(b)(i-a)(ii)(iv)---Penalties of removal from service, recovery of amount and stoppage of increments---Such penalties were imposed on the civil servants after charge-sheeting and holding enquiry against them on allegations of certain financial irregularities and violation of relevant rules and regulations---Inquiry Officer found civil servants guilty without giving any reason or logic in his conclusion arrived at in few lines---Competent Authority, after affording personal hearing to the civil servants, imposed the penalties keeping in view report of Enquiry Officer and after consulting with incharge of the concerned Department---View of incharge of Department could not have been taken into account unless she appeared as a witness and was cross-examined by the civil servants---Not only inquiry was held in slip­shod and perfunctory manner, but incharge of concerned Department also did not appear as witness---Imposition of penalty of recovery of amount from civil servants not only was illegal, but was totally uncalled for as the same was imposed without letting the civil servants. known as to the item regarding which financial irregularity had allegedly been committed by them and to what extent and no cogent evidence was adduced in that respect--­Penalty of removal from service was imposed by Authority without any tangible evidence to connect the civil servants, with commission of any misconduct---Proceedings against civil servants having been conducted in a manner totally bereft of legal norms, order imposing penalties, was set aside and civil servants were ordered to be reinstated in service.

Dr. Ehsan-ul-Haq and Ch. M. Ikram Zahid for Appellants

Khadim Hussain Sindhu, D.A. for Respondents

Date of hearing: 23rd January, 2003.

2003 P L C (C.S.) 1482

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

RAB NAWAZ KHAN

Versus

THE CURATOR, ZOOLOGICAL GARDENS, BAHAWALPUR and others

Appeal No. 459 of 2000, decided on 12th November, 2002.

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

‑‑‑‑Rr.3(a) & 4(1)(b)(i)‑‑‑Penalty of reduction in pay scale and recovery of amount as compensation for loss‑‑‑Civil servant serving as Baildar in Zoological Gardens, was served with a show‑cause notice alleging that due to his negligence and inefficiency two Antelopes were killed and two other were found missing from the Zoological Gardens where at the relevant time he was serving voluntarily as Chowkidar‑‑‑Civil servant had admitted that at the fag end of night he dozed and at that time occurrence had taken place‑‑­Inquiry Officer took into consideration admission made by civil servant which according to Inquiry Report had indicated negligence of civil servant‑‑‑Authority after hearing civil servant, imposed upon him penalty of reduction in pay scale to initial stage of his scale and recovery of Rs.40,000 as compensation to Government for the loss‑‑‑Regular inquiry was not held in case for the reason that civil servant serving as Baildat had himself volunteered to offer his duty as Chowkidar and had also admitted that he dozed at the fag end of night when occurrence had taken place‑‑‑Authorized officer had given full chance to civil servant to present his case and civil servant could not point out any lacuna in the report of Authorized Officer‑‑­Civil servant had failed to take care a9d caution expected from a Chowkidar and definitely was slack in his vigil‑‑‑Penalty of recovery of Rs.40,000 as compensation to be paid to Government, was maintained, but penalty of reduction' in pay scale to the initial stage of a scale was set aside as same was not only harsh, but was also contrary to law.

Syed Muhammad Ibrahim Shah Bukhari for Appellant.

Muhammad Ashraf, Superintendent for Respondent No.1.

Khadim Hussain Sindhu, District Attorney for the Remaining Respondent.

Date of hearing: 5th November, 2002.

2003 P L C (C.S.) 1519

[Punjab Service Tribunal]

Before Muhammad Aslam, Member‑I

SHAUKAT ALI RAAN, CHIEF CORPORATION OFFICER, MUNICIPAL CORPORATION, GUJRANWALA

Versus

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

Appeal No.2507 of 1997, decided on 21st February, 1998.

Civil service‑‑‑

---Transfer of civil servant‑‑‑Civil servant had challenged his transfer from post of Chief Officer Zila Council at place 'M' to post of Chief Corporation Officer Municipal Corporation at place 'G'‑‑‑Contention of civil servant was that his transfer was premature as it was made within period of three months‑‑‑Station of posting in Zila Council or Municipal Corporation was the same‑‑‑Civil servant was mainly concerned about his frequent transfers‑‑­Validity‑‑‑Transfer of civil servant was made in public interest and on administrative grounds and premature transfers were made of a number of members of Local Council servants on such ground and not of civil servant alone‑‑‑Transfer order had not only been accepted by civil servant, but same had also been. implemented and civil servant had assumed the charge at place where he was transferred‑‑‑Civil servant was estopped by his own conduct to agitate against his transfer.

M.A. Riaz for Appellant.

Kh. Haider Ali, District Attorney.

Dr. Ehsan‑ul‑Haque Khan for Respondent No.3.

Date of hearing: 21st February, 1998.

2003 P L C (C.S.) 1527

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑IV

MUHAMMAD AFZAL

Versus

DIRECTOR, ELEMENTARY EDUCATION, LAHORE DIVISION, LAHORE and others

Appeal No.935 of 2000, decided on 27th March, 2001.

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

‑‑‑‑R.4(1)(b)(iv)‑‑‑Dismissal from service‑‑‑Civil servant who was appointed as PTC Teacher, was dismissed from service after issuing show‑cause notice on allegation that his appointment letter was bogus‑‑‑No enquiry was held against civil servant and it had nowhere been disclosed as to how the appointment letter was bogus‑‑‑Authority had merely signed a cyclostyled order of dismissal from service without applying its mind at all‑‑­Departmental Authorities in the joint written objections, had introduced new reasons for dismissing civil servants from service which was to the effect that civil servant was appointed under political influence and in violation of Department's Recruitment Policy‑‑‑Said generalized assertion had again remained unsubstantiated as no detail was given of the said political influence and it was also not mentioned as to which part of the Recruitment Policy was violated and how‑‑‑Record placed on record had clearly established that civil servant possessed required qualifications prescribed for appointment as PTC Teacher and that Appointing Authority had issued appointment order on recommendation of concerned Recruitment Committee‑‑‑Order dismissing civil servant from service was set aside and civil servant was ordered to be reinstated in service with full back benefits.

Muhammad Ahsan Bhoon for Appellant.

District Attorney for Respondents.

Date of hearing: 27th March, 2001.

2003 P L C (C.S.) 109

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, Bahauddin Sirhindi, Member‑I and

Abdul Rasheed Memon, Member‑II

Raja MUHAMMAD ANAYAT KHAN

Versus

THE CHIEF SECRETARY and others

Appeal No. 11 of 1999, decided on 26th April, 2000.

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

‑‑‑‑S.13‑‑‑Application for voluntary retirement on completion of qualifying service of 25 years‑‑‑Subsequent withdrawal of application ‑‑‑Permissibility‑‑­Civil servant serving as Section Officer, applied for voluntary retirement on completion of qualifying service of 25 years‑‑‑Notification for voluntary retirement was issued which was to be effective after about three months from the issuance of said Notification‑‑‑After about two months from issuance of Notification of retirement civil servant moved application for withdrawal of his request for premature retirement which application was recommended after six days of .its filing indicating therein that Department was already short of experienced Section Officers‑‑‑Application for withdrawal of retirement was finally dismissed by Authority on the ground that option of retirement once exercised, would assume finality and that voluntary retirement orders could be withdrawn only before implementation thereof and that in the case of civil servant implementation had already been effected‑‑‑Validity‑‑‑Option of civil servant for pre‑mature, retirement though was accepted and notification in that respect was also issued. but effective date of retirement would be that which was mentioned by civil servant in his application for premature retirement and application for withdrawal of application for premature retirement was filed by civil servant before the said date‑‑‑Civil servant, in circumstances, was well within his right to withdraw his application for premature retirement before the date of its effectiveness as at the relevant time he was civil servant‑‑‑Notification accepting option of civil servant, was set aside and restoration of civil servant against his post of Section Officer was ordered.

1984 PLC (C.S.) 864; 1984 PLC (C.S.) 1085; 1995 SCMR 904 and Abdul Nabi v. Government of West Pakistan PLD 1973 Quetta 4 ref.

M.M. Aqil Awan for Appellant.

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

Date of hearing: 2nd March, 2000.

2003 P L C (C. S.) 134

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Ghulam Sarwar Khero, Member‑I and Muhammad Iqbal Kazi, Member‑II

Dr. BASHIR AHMED

Versus

SECRETARY TO GOVERNMENT OF SINDH LABOUR AND MANPOWER DEPARTMENT KARACHI and 3 others

Appeal No, .59 of 2001, decided on 13th February, 2002.

(a) Civil service‑‑‑-

‑‑‑‑Master and servant, relationship of‑‑‑Every employee drawing salary or wages from public exchequer would be deemed to be in service of Pakistan‑‑­Civil servant who was employee of Social Security Institution and was drawing his salary from public exchequer, would be considered in service of Pakistan and relationship between him and respondent Authority was not that of master and servant.

(b) Civil service‑‑‑

------Order dismissing civil servant from service‑‑‑Maintainability‑‑‑Civil servant had contended that order dismissing him from service, was not maintainable as the same was passed by Authorised Officer and not by the Authority‑‑‑Contention of civil servant was repelled because order of dismissal was passed admittedly by the Authority competent to pass the same.

(c) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑-

‑‑‑‑Rr,4, 5, 6 & 7‑‑‑Dismissal from service on allegation of absence from duty‑‑‑Civil servant was granted 30 days' leave on ground of illness of his mother and during leave period he requested for extension of leave which request was turned down, and he was required to resume duties, but instead of resuming duties he continued requesting for extension of leave and remained absent for about three years without sanction of leave‑‑‑Show‑cause notice was issued to the civil servant, but reply given by him being not satisfactory, penalty of dismissal from service was imposed on him‑‑­Question of providing civil servant opportunity of personal hearing would not arise because of his continuous absence from duty for three years during which period civil servant was repeatedly called upon to resume his duty but he failed to do so‑‑‑Contention of civil servant that no inquiry with regard to his ailment was conducted, was repelled because civil servant having remained absent from duty for three years, no regular inquiry was necessary‑‑‑Unauthorised absence of civil servant from duty for several years would amount to misconduct and civil servant could not claim leave as a matter of right and Authority had every justification for refusing to grant his application for leave.

1985 PLC (C.S.) 921; 1985 PLC (C.S.) 928; 1985 PLC (C.S.) 564: 1985 SCMR 1178; 1996 SCMR 201; 1991 SCMR 802; PLD 1994 SC 222 and 1998 SCMR 1890 ref.

(d) Civil service‑‑‑-

‑‑‑‑ Dismissal from service‑‑‑Option for retirement‑‑‑Civil servant, who was dismissed from service for remaining absent from duty continuously for three nears, was given option for retirement from service‑‑‑Procedure provided under the Service Rules applicable to civil servant a permanent Medical Board had been constituted comprising of one Chairman and 3 members and the Board after examining civil servant would issue a medical certificate in prescribed form which would then be examined by Director who after necessary formalities would pass order of retirement‑‑‑Civil servant having failed to appear before that Medical Board, question of acceptance of option of civil servant for his retirement would not arise.

Ghulam Sarwar Chandio for Appellant.

Muhammad Qasim Mirjat, A. A.‑G. for Respondent No. 1.

Khalid Mohibullah for Respondents Nos.2 to 4.

Date of hearing: 21st November, 2001.

2003 P L C (C.S.) 258

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

ALLAH BUX

Versus

ADDITIONAL SUPERINTENDENT OF POLICE, HYDERABAD and 3 others

Appeal No. 131 of 1996, decided on 19th February, 1999.

Civil service‑

‑‑‑‑ Dismissal from service‑‑‑Civil servant was dismissed from service on ground of registration of a criminal case‑‑‑Civil servant though was acquitted by High Court by giving him benefit of doubt, but civil and criminal liabilities were two different things‑‑‑Case involving criminal and civil liabilities‑‑‑Acquittal in criminal case would not automatically absolve him from civil liability‑‑‑High Court gave benefit of doubt to civil servant because of certain technical/procedural flaws and had rightly acquitted him because in criminal law, benefit of doubt always would go to accused‑‑­Acquittal in criminal case due to technical flaws in prosecution would not absolve civil servant of his civil/service liability‑‑‑No enmity was alleged by civil servant against personnel of law enforcing agency and no ulterior motive of police was adduced by him at any stage‑‑‑Order of dismissal of civil servant from service, could not be interfered with in circumstances.

AIR 1961 Cal. 626; PLD 1956 SC 431 1990 PLC (C.S.) 327; 1990 PLC (C.S.) 397; 1990 PLC (C.S.) 398 and 1996 PLC (C.S.) 247 ref.

Riaz Hussain Baloch for Appellant.

S.M. Sayedain Zaidi, A.A.‑G. for Respondents.

Date of hearing: 28th January, 1999.

2003 P L C (C.S.) 268

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

IQBAL SAEED KHAN

Versus

CHIEF MINISTER through Chief Secretary and 22 others

Appeal No. 109 of 1995, decided on 18th December, 1998.

(a) Interpretation of statutes‑

‑‑‑‑ One has to confine himself to the actual use of words used by Legislature/law framing Authority and no addition can be made therein of "ones" own words.

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

‑‑‑‑S. 8‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, Rr. 9, 11 & 13‑‑‑Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.4‑‑‑Seniority, determination of‑‑­Civil servant working as Demonstrator, applied through proper channel for the post of Section Officer in B.P.17 and after written test/viva voce on recommendation by Public Service Commission, was appointed to the said posts‑‑‑Civil servant, on said appointment, sought to be relieved from his existing post of Demonstrator, but he was not relieved by Competent Authority‑‑‑Civil servant having failed to join his duty as Section Officer, his appointment order was cancelled, but on protest/representation, civil servant was re‑appointed after about six months of cancellation of appointment on same terms and conditions as contained in his first appointment order as Section Officer and his seniority was determined from the date of his assumption and not date of his first appointment order‑‑‑Order granting seniority to civil servant from date of his assumption was not legal as after appointment of civil servant to the post of Section Officer his failure to join said duty was not due to his negligence but was due to denial of Competent Authority to relieve him from his duty as Demonstrator‑‑‑Said order passed in grave irregularity/illegality was set aside‑‑‑Seniority of civil servant on subsequent promotion, even if delayed, was protected under provisions of R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, unless properly superseded in accordance with law.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaidi, A.A. ‑G. for Respondents Nos. 1 to 3.

Muhammad Nawaz Shaikh for Respondents Nos.4 and 6.

Date of hearing: 19th November, 1998.

2003 P L C (C.S.) 358

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haider, Senior Member

Mst. SAMAR JABEEN

Versus

THE SUB‑DIVISIONAL EDUCATION OFFICER (FEMALE), KARACHI and 2 others

Appeal No. 101 of 1997, decided on 3rd December, 1998.

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.4, 5 & 8‑‑‑Imposition of penalty‑‑‑Inquiry procedure‑‑‑Charge‑sheet and statement of allegations were required to be signed by "Authorised Officer" who was also authorised to appoint Inquiry Officer or Inquiry Committee to inquire into charges of alleged misconduct against accused/civil servant‑‑‑Inquiry procedure being a quasi judicial procedure, evidence had to be produced before Inquiry Officer or the Inquiry Committee‑‑‑Accused civil servant's statement alongwith statement of defence witnesses had to be recorded after examination‑in‑chief and prosecution witnesses‑‑‑Both prosecution and defence were entitled to cross ­examine witnesses of other side‑‑‑Only after said procedure was complied with, Inquiry Officer or Inquiry Committee would give findings whether charges stood proved, disproved or partially proved‑‑‑On receipt of findings of inquiry, Authorised Officer would proceed further‑‑‑If a minor penalty was called for then Authorised Officer could award it himself, but if a major penalty was called for Authorised Officer would be required to submit case to Authority alongwith all record and suggest major penalty to be imposed upon accused civil servant and it was for Authority to decide about the proposed penalty himself.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑-

‑‑‑‑Rr.4, 5 & 8‑‑‑.Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service on allegation of certain charges against him without holding departmental inquiry in accordance with law and without affording civil servant a fair opportunity to participate in said inquiry and also denying civil servant right of personal hearing before awarding maximum penalty of dismissal from service which was most harsh of all prescribed penalties‑‑‑Order of dismissal even otherwise passed by incompetent Authority, was set aside in view of the illegalities and irregularities in inquiry.

(c) Practice and procedure‑‑‑

‑ ‑‑‑Pendency of matter before High Court ‑‑‑‑Whenever a matter was sub judice before High Court all forums should refrain from passing any order till its final disposal.

1997 SCMR 1543 ref.

Amanullah Khan for Appellant.

Akram Shahbaz for Respondent No. 1.

S.M. Sayedain Zaidi, A.A.‑G. for Respondents Nos.2 and 3.

Date of hearing: 5th November, 1998.

2003 P L C (C.S.) 490

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider Seniors Member and Buhauddin Sirhindi, Member

MUHAMMAD MUNIR HASAN

Versus

THE CHANCELLOR, NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY and another

Appeal No.26 of 1995, decided on 29th January, 1999.

(a) Administration of justice‑‑‑

‑‑‑‑Principles‑‑‑Justice demanded that all powers, even discretionary powers, must be exercised judiciously, bona fide and not mala fide‑‑‑Non‑speaking order had been considered bad in law all over civilized world and against principles of natural justice.

(b) Civil service‑‑‑

‑‑‑‑Appointment ‑‑‑Appointment for specified period‑‑‑Dispensing with services prior to expiry of specified period‑‑‑Civil servant, who was appointed for a period of four years as Vice‑Chancellor of a University, was notified to have "ceased" to hold office with immediate effect without assigning any reason, nineteen months prior to expiry of said period‑‑‑No show‑cause notice was issued to civil servant and no enquiry was also held against him‑‑‑Civil servant also was not provided any personal hearing prior to issuance of notification whereunder civil servant was declared to have ceased to hold office‑‑‑Civil servant in circumstances, was condemned unheard‑‑‑Justice demanded that reasons to dispense with services of civil servant should have been communicated to him in writing and civil servant should have been provided a proper opportunity to defend himself and a judicious order should have been passed in the matter after affording him a proper personal hearing‑‑­That having not been done, order passed by. Authority against civil servant, was bad in law.

PLD 1962 (W.P.) Kar. 899 and 1998 SCMR 60 ref:

(c) Words and phrases‑‑‑

‑‑‑‑"Pleasure"‑‑‑Meaning and connotation‑‑‑Word "pleasure" is related to "aesthetic" sense and cannot be defined in specific words.

Appellant in person.

Rehanul Hassan Farooqi for Respondents.

S.M. Sayedain Zaidi, A.A.‑G. (on Notice).

Dates of hearing: 5th June and 24th December, 1998.

2003 P L C (C.S.) 661

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

MUHRAM ALI

Versus

INSPECTOR-GENERAL SINDH, POLICE DEPARMTENT, KARACHI and 2 others

Appeal No. 186 of 1997, decided on 19th February, 1999.

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

----R.6(6)---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service ---Reinstatement---Police constable was dismissed from service without issuing show-cause notice and holding departmental inquiry on allegation that he alongwith another constable had snatched certain amount from the complainant---Order of dismissal was challenged on the ground that order of dismissal was passed summarily without issuing show-cause notice and without holding any, inquiry---Civil servant had accepted his guilt verbally before highest ranking officer in presence of claimant and S.H.O. concerned---Civil servant had not alleged any enmity or prejudice against the Authorities---Summary proceedings had been provided under Sindh Police (Efficiency and Discipline) Rules, 1988---Even otherwise mere technicalities should not obstruct process of justice and. malpractices committed by civil servants needed to be curbed with iron hand in the larger public interest--­Civil servant who did not deserve any mercy, was rightly dismissed from service in circumstance.

1998 PLC (C.S.) 794 ref.

Syed Zafar Ali Shah for Appellant.

S.M. Sayedain Zaidi, A.A.-G. for Respondents.

Date of hearing: 26th January, 1999.

2003 P L C (C.S.) 916

[Sindh Service Tribunal]

Before Yousuf Ali Mirza, Member-I and Nur Ahmad Shah, Member-II

ABDUL KARIM TAGGAR

Versus

DISTRICT POLICE OFFICER, NAUSHAHRO FEROZE and 2 others

Appeal No.81 of 2001, decided on 19th September, 2002.

Civil service--

----Dismissal from service---Civil servant was dismissed from service after charge-sheeting him, but without holding proper inquiry on the ground that he was involved in criminal case---Civil servant though was challaned in said criminal case, but Court had acquitted him as he was not found guilty--­Department should have initiated disciplinary action against the civil servant for his misconduct independently of the criminal prosecution or should have awaited at least the outcome of criminal case against him if the same was to be made sole ground for a disciplinary action against him---Civil servant having been exonerated from the accusation, the ground of his dismissal from service could not be sustained---Appeal against dismissal order tiled by civil servant though was time-barred, but order passed against the civil servant being void, ab initio, it would not gain validity with lapse of time because there was no limitation against an illegal order---Order dismissing civil servant was set aside and he was entitled to all benefits.

1998 PLC (C.S.) 1430 ref.

Ansari Abdul Lateef for Appellant.

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

Date of hearing: 19th September, 2002.

2003 P L C (C.S.) 1312

[Sindh Service Tribunal]

Present: Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member-I and Nur Ahmad Shah, Member-II

ANIS AHMED and another

Versus

KARACHI WATER AND SEWERAGE BOARD, KARACHI through its Chairman and others

Appeals Nos. 259 and 267 of 2000, decided on 21st April, 2003.

Civil service---

----Dismissal from service---Civil servants were dismissed from service on allegation that they had tampered the official documents with the intention of causing financial loss to Board---Civil servants were issued show-cause notices, but neither statement of allegation was ever supplied/given to them nor enquiry was conducted in accordance with the relevant Rules---No mention of any enquiry ordered or any Enquiry Officer appointed to conduct enquiry in the matters was mentioned in the notices---Enquiry Officer had neither examined any witness in presence of civil servants nor civil servants were given chance to cross-examine them---Enquiry Report was based upon statement of the contracts which was not recorded in presence of civil servants---Enquiry Report, in circumstances, had no legal value and sanctity in the eyes of law which was ruled out of consideration---Enquiry Officer in his report had recommended major penalty of "compulsory retirement" against civil servants---Same was the penalty proposed in the final show-­cause notice issued to civil servants, but they were awarded major penalty of dismissal from service'---Though both such penalties were major, but penalty of dismissal from service was much harsher than that of compulsory retirement---Penalty of dismissal from service, in circumstances, was not in accordance with penalty proposed to be inflicted upon civil servants in the final show-cause notice issued to them---Orders dismissing civil servants from service, were set aside and they were directed to be re-instated in service.

PLD 2000 SC 104; 2002 PLC (C.S.) 1349; 1993 PLC 698; 1993 PLC (C.S.) 447; 1993 PLC (C.S.) 1135; 1993 PLC (C.S.) 308; 2002 PLC (C.S.) 136; 2002 PLC (C.S.) 289 and 2002 PLC (C.S.) 738 ref.

A. Nafees Osmani for Appellant (in Appeal No. 259 of 2000).

Ghulam Mustafa Khawaja for Respondent (in Appeal No. 267 of 2000).

Abdul Karim Khan for Respondents.

Date of hearing: 28th March; 2003.

2003 P L C (C.S.) 7

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

INSPECTOR‑GENERAL OF POLICE, POLICE HEADQUARTERS OFFICE, KARACHI and 2 others

Versus

SHAFQAT MEHMOOD

Civil Petition for Leave to Appeal No.352‑K of 2002, decided on 27th June, 2002.

(On appeal from judgment dated 31‑1‑2002 passed by the Sindh Service Tribunal, Karachi, in Appeal No.284 of 1999)

(a) Civil service‑‑‑

--‑Natural Justice, principles of‑‑‑Applicability‑‑‑Opportunity of defence to civil servant‑‑‑Scope‑‑‑Proper inquiry is to be conducted wherein government servant is to be provided an opportunity of defence and personal hearing and if charges in regular inquiry are proved then action against the public servant is to be taken.

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

‑‑‑‑Art. 212(3)‑‑‑Dismissal from service‑‑‑Fact‑finding Inquiry Committee recommendations of‑‑‑Failure to associate civil servant with inquiry conducted against him‑‑‑Civil servant was charged with a criminal case in which he was exonerated by the complainant and was acquitted ‑‑‑Department constituted Fact‑Finding Committee which investigated the matter ‑‑‑Civil servant was not allowed to take part in the investigation and on the basis o the report submitted by the Committee, the civil servant was dismissed from service‑‑‑Service Tribunal allowed the appeal filed by the civil servant and reinstated him on the ground that after his acquittal, there was no material available with the authorities to take action and impose major penalty‑­Validity‑‑‑Judgment passed by Service Tribunal was based on valid any sound reasons and was in consonance with the law laid down by Supreme Court‑‑‑Neither there was misreading, nor non‑reading of material evidence misconstruction of facts and law‑‑‑Authorities failed to raise any question of general public importance as contemplated under Art.212(3) of the constitution‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

Rashid Mehmood v. Additional Inspector‑General of Police and 2 others 2002 SCMR 57 ref.

Suleman Habibullah, Additional. Advocate‑General Sindh with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 27th June, 2002.

2003 P L C (C.S.) 19

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ZAHID RASHID

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and another

Civil Appeal No.54 of 2002, decided on 24th September, 2002.

(On appeal from the judgment dated 13‑2‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.382(R)C.S/2000).

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

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contention that in the circumstances of the case the maintenance of the order of penalty on the Civil Servant was justified in law or not.

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

‑‑‑‑‑Rr. 2(4) & 3‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Reduction to lower post for one year in basic pay scale‑‑‑Misconduct, allegation of‑‑­Acquittal from criminal charge‑‑‑Civil servant was charged with the offence of abduction and kidnapping on the basis of a press report‑‑‑During criminal trial, the prosecution failed to produce any evidence against the civil servant resultantly, he was acquitted of the charge‑‑‑Departmental proceedings were also initiated against the civil servant‑‑‑Authorized officer did not find the civil servant guilty of the charges but recommended penalty of reduction to lower. post in Basic Pay Scale‑17 for a period of two years without any material and justification‑‑‑Service Tribunal reduced the penalty to reduction to lower grade for one year‑‑‑Service Tribunal did not record any express findings against the civil servant justifying the penalty‑‑‑Reporter, publisher or editor of the newspaper were neither examined in the inquiry proceedings nor in the criminal case‑‑‑Effect‑‑‑Charges of abduction, kidnapping etc. ultimately culminated in honourable acquittal of the civil servant by competent Court of law in the criminal case‑‑‑Non‑examining of reporter, publisher or editor of the newspaper led to belief that the entire proceedings were initiated falsely with certain motive against the civil servant‑‑‑Judgment passed by Service Tribunal was set aside and the civil servant was reinstated in original grade in Basic Pay Scale‑18 with all back benefits.

Abid Hassan Minto, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Hafiz S.A. Rehman, Dy. A.‑G instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 24th September, 2002.

2003 P L C (C.S.) 29

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

Syed NIAZ HUSSAIN SHAH BUKHARI, TECHNICIAN (PROCESS)

Versus

OIL AND GAS DEVELOPMENT CORPORATION LIMITED, through

Chairman, OGDC Head Office, Islamabad

Civil Petition For Leave to Appeal No.51 of 2002, decided on 11th September, 2002.

(On appeal from judgment dated 2‑11‑2001 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 1076(R)CE of 2000)

(a) Civil service‑‑

‑‑‑‑ Pay, entitlement to‑‑‑When there is no work, there is in no pay.

(b) Civil service‑‑‑

‑‑‑‑ Salary, refund of‑‑‑Civil servant after obtaining stay order against his transfer was allowed to continue his duties at original place, where he was paid salary for about three years. ‑‑‑Authority deducted from salary of civil servant the amount paid to him as salary for the period when he remained absent from duty‑‑‑Service Tribunal dismissed appeal of civil servant‑‑‑Validity‑‑‑Civil servant had not performed his duties either at original place or at transferred place, thus, was not entitled to salary‑‑‑Period for which refund of salary was effected from civil servant was the period for which, he had not worked‑‑‑When there was no work, there was no pay‑‑‑Recovery had rightly been effected from civil servant‑‑‑Impugned judgment was not open to exception as there was no jurisdictional error or misconstruction of facts and law‑‑­No substantial question of law of public importance as envisaged under Art. 212(3) of the Constitution was made out‑‑‑Supreme Court dismissed petition for leave to appeal in circumstances‑‑‑Constitution of Pakistan (1973), Art. 212(3).

Sadiq Muhammad Warraich, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner.

Sardar Muhammad Aslam, Dy. A .G. and M.S. Khattak, Advocate­-on-Record for Respondent.

Date of hearing: 11th September, 2002.

2003 P L C (C.S.) 36

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SALEEM and 2 others

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, ISLAMABAD and another

Civil Appeals No.80 to 82 of 2001, decided on 28th June, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 15‑5‑2001 passed, in Appeals No.448 to 450/98).

(a) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑-

‑‑‑‑Credit Manual of Agricultural Development Bank of Pakistan, Rr.2.17 & 2.28‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan 1,1973), Art‑212(3) ‑‑‑Dismissal from service on charge of gross misconduct, negligence and inefficiency‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether the rules governing the petitioners were statutory in nature and that inquiry report was not furnished to them, which had violated principles of natural justice; whether authorised officer had tailed to issue any notice to petitioners after receiving inquiry report, which had prevented petitioners from explaining their position qua inquiry report; whether Service Tribunal in impugned judgment had not discussed the merits of case of petitioner in spite of the fact that he had been proceeded against on entirely different charges than the one levelled against petitioner in the other petition and whether concerned authority lacked jurisdiction under the rules to decide the matter.

(b) Civil service‑‑‑

‑‑‑‑ Official responsible for procedural irregularities in financial institutions‑‑­Duty of competent authority‑‑‑Such irregularities cannot be taken lightly‑‑­Such officials must be proceeded against for an appropriate action under relevant rules by competent authority.

(c) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑-

‑‑‑‑Service Tribunals Act (LXX of 1973),' S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Dismissal from service‑‑‑Charge of gross misconduct, inefficiency and negligence‑‑‑Dismissal of departmental appeals as well as appeals before Service Tribunal‑‑‑Plea of appellants was that non‑supply of copy of inquiry report and non‑issuance of second show‑cause notice had rendered such dismissal order illegal‑‑‑Validity‑‑‑Appellants during departmental proceedings had neither: demanded for supply of copy of inquiry report nor supply of such copy and issuance of second show‑cause notice was essential under Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑Appellants had neither raised such plea in departmental appeals nor before Service ~tribunal nor pleaded that because of such reason, they had been caused any prejudice in proceedings before Inquiry Officer and authorised officer‑‑­Supreme Court repelled such plea as having no force.

(d) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑-

‑‑‑‑Credit Manual of Agricultural Development Bank of Pakistan R.2.28‑‑­Service Tribunal Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art‑212 ‑‑‑Dismissal from service‑‑‑Charge against appellants (Mobile Credits Officers of Bank) to have committed gross irregularities to grant of loan‑‑‑Award of such punishment to appellants‑‑‑Dismissal of departmental appeals as well as appeals before Service Tribunal‑‑‑Plea of appellants was that they having processed loan cases had placed same for approval before sanctioning authority, who was duty bound to satisfy himself about fulfilment of requirement of Rule 2.28 of Credit Manual and in case of failure, such authority would directly be responsible for violation of such rules‑‑‑Validity‑‑‑Charge sheet did not contain allegation of misappropriation or embezzlement of bank money by appellants, rather they had been charge sheeted for allegation of having processed loan cases in violation of Rule 2.28 of Credit Manual and having failed to ask for adequate security for loan, as a result of which there was risk of its non‑payment‑‑‑None of appellants was holding authority to sanction loan, rather their function as Mobile Credit Officer was to process loan cases for approval of sanctioning authority‑‑‑Managers of concerned Branches were authorised to sanction loan and not the appellants‑‑‑Manager being incharge of Branch would ultimately be responsible for all affairs of the Branch‑‑‑Manager could neither shift his responsibility to his subordinates nor claim any immunity therefrom on the ground that he, while discharging the function of sanctioning authority, was not supposed to undertake the exercise of scrutiny of documents‑‑‑Appellants had not been charged for committing alleged irregularities for financial gain or that they had extended favour to loanees in violation of rules without knowledge of Managers‑‑‑Nothing was available on record to show that concerned Managers had been misled and misguided in discharge of their duty by appellants‑‑‑Departmental authorities without taking notice of negligence of Managers. who had sanctioned loans in violation of Rule 2.28 of Credit Manual, had shifted burden to their subordinates through discrimination as such Manager had either been exonerated from the charge or had not been proceeded against under the rules‑‑‑Bank had adopted policy of pick and choose in departure of rule of fair play and equal treatment in matter of fixing responsibility of all concerned‑‑‑Neither departmental authorities nor Service Tribunal had taken pain to ascertain correct position and fix the responsibility for violation of the rule ‑‑‑Appellants were not exclusively responsible for alleged irregularities to be proceeded against for departmental action‑‑‑Question as to whether non‑recovery of loans was due to fault or negligence of appellants or the loanees failed to discharge their liability. had not been properly determined‑‑‑Supreme Court accepted appeals, set aside impugned judgment and reinstated appellants in service‑‑­Appellants were not granted back benefits in view of the nature of allegation against them as they were discharging sensitive duty of processing loan cases, but they would be deemed to be in service continuously in all respects including seniority, promotion and pension.

Sharafat Ali Nadeem v. Federal Service Tribunal 1987 SCMR 1774; Inayatullah Khan v. Provincial Government N.‑W.F.P. 1985 SCMR 1747; Faizul Haq v. N.‑W.F.P. Chief Secretary 1984 SCMR 451; Fouzia Ahmad v. First Women Bank Ltd. 1999 PLC (CS) 1194 and Mir Muhammad v. N.­W.F.P. Government through Chief Secretary PLD 1981 SC 176 ref.

Gal Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (in C.A. 8(1 of 2001) for Petitioner.

Shan Abdur Rashid, Advocate Supreme Court and Ch. Akhtar Ali, advocate‑on‑Record (in C.A. 81‑82 of 2001) for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record (Absent) for Respondent No.1 (in all cases).

Sardar Muhammad Aslam, Dy. A.G. and M.S. Khattak, Advocate­-on‑Record for Respondent No.2 (in all cases).

Dates of hearing: 26th to 28th June, 2002.

2003 P L C (C.S.) 52

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

Malik SHAUKAT HAYAT

Versus

WATER AND POWER DEVELOPMENT AUTHORITY, through Chairman, Lahore and others

Civil Appeal No. 1258 of 1996, decided on 3rd October, 2002.

(On appeal from the judgment dated 1‑10‑1995 of the Federal Service Tribunal, Islamabad passed in Appeal No.209‑R of 1995).

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

‑‑‑‑S. 4‑‑‑House rent allowance‑‑‑Fixation‑‑‑Relevancy to basic pay scale‑‑­Sanction of house rent allowance in accordance with basic pay "scale and not in accordance with the designation‑‑‑Validity‑‑‑House rent is granted against the minimum of pay scale the civil servant serves in‑‑‑No reference at all is made to the designation or to the post held by the employee for drawing house rent allowance.

(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 18‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑House rent allowance‑‑‑Fixation‑‑‑Relevancy to basic pay scale‑‑‑Appellant being a meter reader was initially an employee of Electric Power Company‑‑‑When the company was taken over by Water and Power Development Authority, the pay fixation was finalized vide notification issued under S.18 of Pakistan Water and Power Development Authority Act, 1958‑‑‑Meter Readers in Water and Power Development Authority had been drawing salary in Basic Pay Scale‑5 but the pay already being received by the appellant as meter reader was more than other meter readers working in Water and Power Development Authority and the same corresponded to Basic Pay Scale‑7‑‑­House rent of the appellant was fixed by the Authority on the basis of the post he was holding and appeal before Service Tribunal was dismissed‑‑‑Plea raised by the appellant was that the house rent was to be fixed as per the Basic Pay Scale being enjoyed by him and not according to the post held by him‑‑‑Validity‑‑‑House rent allowance was referable to Basic Pay Scale and everyone would avail the same according to his basic pay scale and no according to his designation or post‑‑‑Fixation of house rent according to pay scale of the appellant would not disturb either the department or the colleagues because the higher pay scale happened to be given to him due to his higher salary package brought by him from Electric Power Company‑‑­Appellant drawing higher pay and scale was entitled to draw house rent allowance in accordance with his pay scale and not in accordance with his designation or post.

Fazal Illahi Siddiqui, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 16th September, 2002.

2003 P L C (C. S.) 64

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through Chief Secretary Sindh, Karachi and 4 others

Versus

GUL MUHAMMAD HAJANO

Civil Petition for Leave to Appeal No.385‑K of 2002, decided on 17th July. 2002.

(On appeal from judgment dated 21‑2‑2002, passed by the High Court of Sindh, Karachi, in Constitutional Petition No.D‑641 of 2001).

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑S. 8‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑­.onstitutional jurisdiction of High Court‑‑‑Scope‑‑‑Seniority Implementation of summary approved by Chief Minister for protection of seniority and fixation of pay‑‑‑High Court directed the authorities to implement the summary‑‑‑Plea raised by the authorities was that as the matter elated to terms and conditions of service, therefore, it was outside the jurisdiction of High Court‑‑‑Constitutional petition filed by the civil servants ,vas allowed on the ground that no order of Government was being called in question and only an obligation to perform its duties to pass orders within a reasonable time was being invoked‑‑‑Validity‑‑‑Judgment passed by High court was based on sound valid and legal grounds and was in accordance with the law laid down by Supreme Court‑‑‑No misreading, non‑reading of material placed before the High Court existed and there was no misconstruction of facts and law‑‑‑No question of general public importance being involved in the case leave to appeal was refused.

Suleman Habibuilah, Additional Advocate‑General, Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Respondent in person.

Date of hearing 17th July, 2002.

2003 P L C (C.S.) 69

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

Dr. NAVEEDA TUFAIL and 72 others

Versus

GOVERNMENT OF PUNJAB and others

Civil Petitions Nos. 1093 to 1117, 1135 to 1141, 1169 to 1183, 1190 to 1214 and 1229 of 2002, decided on 25th September, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 3-5‑2002 passed in Appeals Nos. 1533, 889, 901. 1045, 1082 of 2001, 1385 to 1388, 1390 of 2000, 1634, 1546, 1831, 1578, 1579, 1588, 1607, 1608, 1609, 1618, 1634, 1698, 1815, 1831, 2259 of 2001, 881 to 883, 1546, 1547, 1811, 1897 of 2001, 878, 879, 880, 884, 888, 890, 892, 893, 895, 915, 1043, 1044, 1046, 1625, 1644 of 2001, 1546, 1539, 887, 894, 898, 899 of 2001, 1391 of 2000, 1410, 1414, 1415, 1504, 1517, 1549, 1550, 1552, 1553, 1554, 1555, 1675, 897, 914, 917, 1565, 1583, 1625 and 1612 of 2001 respectively).

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

‑‑‑S.2(i)(a)‑‑‑Ad hoc appointment‑‑‑Effect‑‑‑Making recruitment on ad hoc basis with or without advertisement of the posts in normal circumstances amounts to curtailment of the legitimate right of appointment of deserving persons on regular basis and is against the policy of law.

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

‑‑‑‑S.2(1)(a)‑‑‑Ad hoc appointment‑‑‑Object, purpose, scope and duration‑‑­Concept of ad hoc appointment against the post in public" sector is a stop‑gap arrangement which is not a permanent characteristic of civil service‑‑‑Not proper in public sector to occupy the posts required to be tilled through the method prescribed by law, by making ad hoc appointments and allow the incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis‑‑‑Ad hoc employee has no right to hold the post beyond the period for which he was appointed and it is also not right for the Government to continue ad hoc appointment for number of years without undertaking the exercise of selection on regular basis in the prescribed manner‑‑‑Appointment of a duly qualified person on ad hoc basis made otherwise in accordance with prescribed method of recruitment is made only in exceptional circumstances‑‑‑Stop‑gap arrangement as a temporary measure for a specified time does not by itself confer any right. on the incumbent for regular appointment car to hold the same for indefinite period‑‑‑If the incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, such incumbent would carry the right to be considered for permanent appointment through the process of selection‑‑‑Continuation of ad hoc appointment for considerable length of time would create an impression in the mind. of employee that he was being really considered to be retained on regular basis‑‑‑Ad hoc appointment by its very nature is transitory which is made for a particular period and creates no right in favour of incumbent with lapse of time‑‑‑Appointing authority may in its discretion, if necessary, snake ad hoc appointments but it is not open for the authority to disregard the rules relating to the filling of vacancies on regular basis in the prescribed manner ­Practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies s through the process of selection 'in the prescribed manner amounts to misusing the authority‑‑­Appointment on ad hoc basis except in exceptional circumstances was deprecated by the Supreme Court with observation that such appointment should not be allowed to continue beyond the period for which it was initially made.

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

‑‑‑‑S. 5‑‑‑Appointment in public sector‑‑‑Duties of public authorities‑‑­Scope‑‑Such appointment is a trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service.

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

‑‑‑‑Part.II & Chap. 1 [Arts.7 to 261‑‑‑Employmc ant‑‑‑Fundamental rights‑‑­Applicability‑ ‑‑Scope‑‑‑Employment for a common person is source of livelihood and right of livelihood is an undeniable right to a person‑‑‑If work is sole source of livelihood of a person. then right to work is not less than a fundamental right which has to he given protection accordingly.

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

‑‑‑‑Ss. 2(r)(a) & 10‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Ad hoc appointment, regularization of‑‑‑Principle of equality‑‑‑Applicability‑‑­Petitioners were appointed as lecturers by Provincial Government on ad hoc basis‑‑‑Despite having been appointed for many years, the Provincial Government declined to regularize the posts of petitioners, whereas the similar appointees by Federal Government had already been regularized‑‑­Petitioners contended that non‑regularizing of the posts was against the principles of equality as contained in Art.25 of the Constitution‑‑‑Validity‑‑Petitioners being employees of Provincial Government could not claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Art.25 of the Constitution would demand that the petitioners while facing similar circumstances should be treated in the similar manner‑‑‑Principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government would stand at par with that of the ad hoc employees of Federal Government and it would be fair, just and proper to consider the cases of petitioners for regularization‑‑‑Ad hoc appointments having created a legitimate expectancy in the minds of petitioners for their retention on regular basis, Supreme Court directed the Provincial Government, while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government, to initiate the process of regularization of petitioners through Provincial Public Service Commission‑‑‑Supreme Court further directed that in case any of the petitioners was not found suitable by the Public Service commission, he would not be retained in service‑‑­Petition for leave to appeal was converted into appeal and was allowed.

Amjad Ali and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125; Dehli Transport Corporation v. D.T.C. Mazdoor Congross AIR 1991 SC 101; Abdul Jabbar Memon v. P.I.A. Human Rights case No.104 of 1992; Abdul Majid Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Federation of Pakistan v. Rais Khan 1993 SCMR 609; Jaffar Ali Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115; WAPDA v. Muhammad Hussain Gul 1993 SCMR 2337; Secretary Education Civil Secretariat, Lahore v. Nasir Iqbal C.P. No.768‑L of 1197; Gohar Masood v. Secretary Health Department 2001 SCMR 1128; Director Social Welfare N.‑W.F.P Peshawar v. Saadullah Khan 1996 SCMR 1350; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Muhammad Shahbaz Cheema v. Province of Punjab 1981 SCMR 469; Muhammad Azam Ali v. Government of the Punjab through Chief Secretary 1985 SCMR 1408; Nasarullah Khan v. The Registrar Peshawar High Court, Peshawar PLD 1993 SC 195; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Ashraf v. Government of Punjab PLJ 1998 Tr.C. Services 77; PLD 1984 FSC 34; Pakistan v. Public at Large PLD 1987 SC 304; Abdul Jabbar Menton and others 1996 SCMR 1349; Province of Punjab v. Azhar Abbas 2002 SCMR_ 1; Chief Secretary, Government of Punjab v. Abdul Majeed 2001 SCMR 1971 and Government of the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 ref.

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

‑‑‑‑Art.212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Petition for leave to appeal‑‑‑Raising of new plea‑‑‑Question of general public importance‑‑‑Authorities contended that the plea not raised by the petitioners before Service Tribunal could not be agitated before Supreme Court‑‑­Validity‑‑‑Questions of general public importance being involved in the petition, the technical objection was not allowed by Supreme Court to be raised.

Ch. Akhtar Ali, Advocate Supreme Court/Advocate‑on‑Record for Petitioners (in C. Ps. Nos. 1190 and 1191 of 2002).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Ziadi, Advocate‑on‑Record for Petitioners (in all other Cases).

Maqbool Ellahi Malik, Advocate General, Punjab, with Tariq Mahmood Khokhar, Additional Advocate‑General Punjab for Respondents (in all cases).

Date of hearing: 9th July, 2002.

2003 P L C (C.S.) 86

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar. JJ

KHALID MEHMOOD RAJA

Versus

DIRECTOR‑GENERAL PAKISTAN RANGERS (SINDH) and another

Civil Petition No.3203 of 2001, decided on 17th September, 2002.

(On appeal from the judgment dated 8‑10‑2001 of the Federal Service Tribunal, passed in Appeal No.761(R)(CS) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal before Service Tribunal‑‑‑Case remanded‑‑‑Service Tribunal dismissed the appeal of civil servant for the reason that in earlier judgment passed by Supreme Court, no direction was given that the civil servant would be entitled to tile appeal. in case any order adverse to the civil servant was passed‑‑­Respondents/authorities consented for remand of appeal to Service Tribunal for decision afresh‑‑‑By consent of the parties, the petition for leave to appeal was converted into appeal and judgment passed by Service Tribunal was set aside‑‑‑Case was remanded to Service Tribunal for decision afresh on merits‑‑‑Appeal was allowed.

Petitioner in person.

Hafiz S.A. Rehman, Deputy Attorney‑General for Pakistan.

Date of hearing: 17th September, 2002.

2003 P L C (C.S.) 94

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ

MUHAMMAD AFZAL VIRK, S.D.O.

Versus

CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, GUJRANWALA and another

Civil Appeal No.942 of 1996, decided on 19th September, 2002.

(On appeal from the judgment of .the Federal Service Tribunal, Islamabad, dated 24‑4‑1995, passed in Appeal No.366(L) of 1994).

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

‑‑‑‑R. 4(1)(a)(vi)‑‑‑Minor penalty‑‑‑Acts of omission and commission‑‑­Causing pecuniary loss to the department‑‑‑Withholding of increment for two years‑‑‑Appellant being Sub‑Divisional Officer in Water and Power Development Authority provided electric connection to a consumer, under Tariff 04‑A instead of Tariff 07‑A1‑‑‑Allegation against the appellant was that the consumer was running poultry farm which was categorized as industry under Tariff 07‑A1 but the appellant provided connection under Tariff 04‑A as commercial connection‑‑‑Such connection caused a loss of an amount of Rs.39250 to Water and Power Development Authority‑‑‑Show cause notice was issued to the appellant and having being dissatisfied with the reply to the notice, increment for two years was withheld and amount of Rs.39250 was ordered to be recovered‑‑‑Departmental appeal was partly accepted and penalty of withholding of increments was set aside‑‑‑Appeal before Service Tribunal was dismissed and the decision of appellate authority was maintained‑‑‑Validity‑‑Action of appellant for sanction of electricity connection for commercial purpose was not within his power and he sanctioned the same with ulterior motives‑‑‑Appellant in his reply to show cause notice had thrown the responsibility on the shoulders of Supervisor by stating that he did not bring the same to his knowledge and sanctioned the same in routine and casual manner‑‑‑Such explanation given by the appellant was mala fide on his part and the same was not acceptable‑‑Penalty imposed by the authorities was according to the rules and the same was within the domain of Competent Authority‑‑‑Authorities having already shown leniency to the appellant, further leniency in the present case was not fair‑‑‑Judgment passed by Service Tribunal was well reasoned, and was based on proper appreciation of material available on record and the same was not open to exception‑‑‑No substantial question of law of public importance as envisaged under Art.212(3) of the Constitution was involved‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Appeal was dismissed.

Shaukat Ali Mehr, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant.

M. Saleem Ch., Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 18th September, 2002.

2003 P L C (C. S.) 101

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil-ur-Rehman Ramday and Karamat Nazir Bhandari, JJ

SHAMSHAD ALI

Versus

SENIOR POST MASTER (DELY), ISLAMABAD G.P.O., ISLAMABAD and 2 others

Civil Appeal No. 1016 of 1996, decided on 19th September, 2002.

(On appeal from judgment dated 26-10-1995, passed by the Federal Service Tribunal, Islamabad in Appeal No.307(R) of 1995).

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

----R. 5---Compulsory retirement---Departmental inquiry---Professional irregularity---Civil servant was working as clerk in Treasury Branch of General Post Office---Envelopes and postage stamps worth lacs of rupees were drawn by the civil servant and the same were taken into account after many weeks---Show-cause notice was issued to the civil servant and in reply to the notice, the civil servant admitted the delay and reason for the same was rush of work---Having been dissatisfied with the reply given by the civil servant, the authorities imposed a penalty of compulsory retirement--­Departmental appeal as well as appeal before Service Tribunal were dismissed---Plea raised by the civil servant was that he had not been afforded opportunity to rebut the evidence about the allegations made by the authorities and regular inquiry as provided under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973, was not conducted--­Validity---In view of overwhelming evidence against the civil servant and his own admission, Supreme Court declined the contention that no regular inquiry under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973, was conducted---Service Tribunal had considered the available material very carefully and the judgment passed by the Service Tribunal was based on valid, and sound reasons and the law laid down by Supreme Court---Competent Authority had already taken a lenient view in awarding punishment of compulsory retirement from service---Supreme Court declined to interfere with the judgment passed. by Service Tribunal---Appeal was dismissed.

M. Sadiq Warraich, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant.

Hafiz S.A. Rehman, Deputy Attorney-General and Raja Abdul Ghafoor, Advocate-on-Record (absent) for Respondents.

Date of hearing: 19th September, 2002.

2003 P L C (C.S.) 167

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Tanvir Ahmad Khan and Sardar Muhammad Raza, JJ

GOVERNMENT OF N.‑W. F. P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others

Versus

AURANGZEB EX‑DRIVER

Civil Petition No.308‑P of 2001, decided on 16th July, 2002.

(On appeal from the judgment of the N.‑W.F.P. Service Tribunal, Peshawar dated 4‑6‑2001 passed in Appeal No.2806 of 2000).

(a) Civil service‑‑‑

‑‑‑‑Absence from duty without leave‑‑‑Removal from service‑‑‑Civil servant, could not be allowed to put a premium on his abscondence in a murder case and to use the same as a ground for absence from his official duty‑‑‑Civil servant remained fugitive from law and Courts and remained in hiding for a long time and never applied for leave despite notices‑‑‑Civil servant's absence without leave, in circumstances, was sufficient ground for his removal from service.

(b) Civil service‑

‑‑‑‑"Criminal proceedings" and "departmental proceedings "‑ Distinction‑‑­Acquittal of civil servant from a criminal charge‑‑‑Impact‑‑‑Prosecution on a criminal charge of a civil servant and departmental proceedings against him are entirely different' as one relates to the enforcement of criminal liability whereas the other is concerned with the service discipline, as such, acquittal from criminal charge has no bearing on disciplinary proceedings.

Amir Abdullah v. Superintendent of Police and others 1998 SCMR 333 ref.

Sardar Shaukat Hayat, Additional Advocate‑General, N.‑W.F.P. for Petitioners.

Fateh Muhammad Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 16th July, 2002.

2003 P L C (C.S.) 174

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

IMTIAZ AHMAD MAHMOOD

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Chairman and another

Civil Appeal No. 660 of 2001, decided on 31st October, 2002.

(On appeal from the judgment dated 22‑3‑2000 of the Federal Service Tribunal, Islamabad passed in Appeal No. 847(R) of 1998).

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

‑‑‑‑Ss. 4 & 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑­Service Tribunal‑‑‑Jurisdiction‑‑‑Scope‑‑‑Service Tribunal while dismissing the appeal as withdrawn made an observation to the effect that "if any Court had passed any judgment in respect of terms and conditions of service of a civil servant or deemed to be a civil servant after 10‑6‑1997 (the date of insertion of S.2‑A in the Service Tribunals Act, 1973) the same was void and of no legal effect‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, inter alia, as to whether Service Tribunal had the authority to make any observation declaring a Civil Court's decree to be void particularly when the .appellant before the Tribunal had withdrawn the appeal unconditionally.

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

‑‑‑‑Ss.4 & 2‑A‑‑‑Appeal to Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal, while dealing with the terms and conditions of civil servant in appeal, can only uphold or set aside an order passed by a Departmental Authority and no more and no less‑‑‑Service Tribunal cannot sit in appeal against the judgment of a Civil Court which is not only a Court of general jurisdiction but has its own hierarchy ascending right up to the Supreme Court‑‑Principles.

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

‑‑‑‑Ss.4 & 2‑A‑‑‑Appeal to Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal while dismissing appeal of civil servant as withdrawn made an observation to the effect that "if any Court had passed any judgment in respect of terms and conditions of service of a civil servant or deemed to be a civil servant after 10‑6‑1997 (the date of insertion of S.2A in the Service Tribunals Act, 1973) the same was void and of no legal effect‑‑‑Validity‑‑‑Held, observations made by the Service Tribunal against the judgment of Civil Court were not sustainable at all.

(d) Words and phrases‑‑‑

‑‑‑‑‑‑ Void order" or "order without jurisdiction"‑‑‑Connotation‑‑Both the terms have their own independent entities and entail different consequences.

Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147; Conforce Ltd. v. Syed Ali and others PLD 1977 SC 599 and Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367 ref.

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

‑‑‑‑Ss. 4 & 2A‑‑‑Appeal‑‑‑Jurisdiction of Service Tribunal ‑‑‑Scope‑‑­Appellant, in the present case, on the date of final order passed by the Departmental Authority, was not a civil servant and thus could not resort to the Service Tribunal and the only forum available to him was the Civil Court of general jurisdiction and thus he filed a civil suit on 13‑3‑1995, more than two years prior to the insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Civil Court was not only competent to hear the matter on 13‑3‑1995 but remained competent during the continuation of trial for more than two years‑‑‑Civil Court, advertently or inadvertently, passed a decree on 30‑6‑1997 with a strong impression that Civil Court still was vested with the jurisdiction which it carried for so long‑‑‑Validity‑‑‑Held, decree passed by the Civil Court on 30‑6‑1997 was not void but without jurisdiction and 'a decree passed without jurisdiction was to be challenged before the higher Appellate Authority provided in the same hierarchy‑‑­Respondent‑Department had rightly gone in appeal before the District Judge on 30‑7‑1997; had the appeal been pursued and had all the legal implications been brought to the notice of the Appellate Court, the same would certainly have set aside the original decree but the respondent withdrew the appeal unconditionally on 7‑10‑1998 in the Appellate Court‑‑­Whenever an appeal is withdrawn simpliciter that has the effect of restoring the status quo ante and the position in the present case, remained "as if the appeal had not been filed" ‑‑‑Withdrawal of appeal by itself could not operate upon the dismissal of original suit because the original suit was that of the respondent therein‑‑‑Had the appeal been left intact, the Appellate Court might have directed the transfer of suit to the Service Tribunal‑‑‑Very entertainment of the appeal by 'Service Tribunal was void, withdrawal of appeal by the Department before Appellate Civil Court was a serious mistake and the decree dated 30‑6‑1997 though being without jurisdiction yet was not set aside in appeal and thus held the field and had become final in circumstances.

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

-‑‑Ss. 6 & 2‑A‑‑‑Pending cases‑‑‑Maxim: "Ubi jus ibi remedium" (where there is a right, there is always a remedy)‑‑‑Applicability‑‑‑Provision of S. 6 Service Tribunals Act, 1973 had not become redundant six months after the promulgation of the Service Tribunals Act, 1973 because if it was so interpreted anyone declared to be a civil servant thereafter would have no forum at all to resort to‑‑With the insertion of S.2‑A in the Service Tribunals Act, 1973 and with the declaration of all concerned employees as civil servants, Service Tribunal automatically got' established as appropriate Tribunal within the meaning of proviso to S.6, Service Tribunals Act, 1973, which dealt with the pending cases.

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

‑‑S. 2‑A‑‑‑Civil servant who has already filed a suit, appeal or application before any forum would be entitled to resort to the Service Tribunal with days of the establishment of appropriate Tribunal for him after the insertion of S.2‑A in the Service Tribunals Act, 1973.

(h) Maxim‑‑­

‑"Ubi jus ibi remedium"‑‑‑Applicability.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Agha Tariq Mahmood, Advocate Supreme Court and Ch. Akhtar Advocate‑on‑Record for Respondents.

Date of hearing: 23rd September; 2002.

2003 P L C (C.S.) 187

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

PRINCIPAL, GOVERNMENT GIRLS COLLEGE, THANA MALAKAND AGENCY (NOW AT SAIDU SHARIF SWAT) and 3 others

Versus

Mrs. BILQUIS BEGUM

Civil Appeal. No.661 of 1997, decided on 18th October, 2002.

(On appeal from judgment dated 10‑3‑1996, passed by the N.‑W.F.P. Service Tribunal, Peshawar, in Appeal No.526 of 1995).

(a) North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

--‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the Authorities that in spite of proper counselling and advice, the civil servant failed to improve her adverse behaviour, therefore, adverse entries were made in the Annual Confidential Report of the civil servant and in absence of any mala fides attributed to the Reporting Officer or to the Countersigning Officer, the Tribunal's order that the entries in the Annual Confidential Report be expunged was in excess of jurisdiction.

(b) North-West Frontier Province Service Tribunals Act (I of 1974)--‑

‑‑‑S. 4‑‑‑Adverse remarks in Annual Confidential Report, expunction of‑‑­Civil servant being aggrieved of the adverse remarks, filed appeal before Service Tribunal for expunction of the same‑‑‑Overall performance of the civil servant had been appreciable as she had performed her duties to the best of her ability which was reflected from her attendance in the relevant register of the college as well as the result of the students who passed the relevant subjects‑‑‑Performance of the civil servant was supported by documentary evidence on the record of Service Tribunal‑‑‑Annual Confidential Reports were recorded against the civil servant for the year 1994, whereas subsequently she was promoted‑‑‑Service Tribunal after going through the available record allowed the appeal of the civil servant and adverse entries in the record were expunged‑‑‑Validity‑‑‑Judgment passed by the Service Tribunal was based on the principles of fairplay, equity and justice which was not open to exception‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Appeal was dismissed.

Sardar Shaukat Hayat, Addl. A.‑G., N.‑W.F.P. for Appellants.

M. Zahoor Qureshi, Advocate‑on‑Record for Respondent.

Date of hearing: 18th October, 2002.

2003 P L C (C.S.) 201

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUHAMMAD GULSHAN KHAN

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and others

Civil Petition for Leave to Appeal No.2680 of 2001, decided on 23rd September, 2002.

(On appeal from the judgment dated 7‑7‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.426‑RCS/2000).

(a) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Civil servant was non‑suited on the ground that his appeal was hit by the principle of res judicata‑‑‑Record showed that civil servant was firstly bypassed by the Promotion Committee without any reason while promoting the other civil servants out of turn in clear violation of law and rules but he was promoted after the judgment of the Supreme Court in his favour‑‑‑Promotion Committee, subsequent to the said judgment of the Supreme Court convened its meeting and promoted the civil servant vide notification dated 22‑5‑1999‑‑‑Seniority list issued thereafter showed the civil servant at S.No.38 while the other civil servants who were promoted out of turn by the Committee were shown at S. Nos. 4 & 6 being much senior‑‑‑Question of seniority of civil servant was not at all considered by any forum after the notification dated 22‑5‑1999 promoting the civil servant‑‑‑Held, it was not understandable as to how the Service Tribunal had dismissed the civil servant's appeal on the issue of seniority on the ground of res judicata as such issue of giving him seniority at the appropriate place cropped up after his due promotion in 1999‑‑‑Courts were duty bound to decide the cases on merits in accordance with law and the rules‑‑‑Courts, while dispensing justice, were duty bound to apply the provisions of law in their true perspective and application of the same could not be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties‑‑‑Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter Civil servant, who had unblemished record, therefore, should not suffer for the commission of illegalities by the earlier Promotion Committee which did not consider his case for promotion in spite of the fact that he was admittedly senior to those who were promoted out of turn‑‑‑Civil servant, in circumstances, could not be kept junior to the persons who were promoted out of turn in the seniority list.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salmi Afroze and 2 others PLD 1992 SC 263: Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

(b) Administration of justice‑‑‑

‑‑‑Courts were duty bound to decide the cases on merits in accordance with, law and the rules‑‑‑Courts; while dispensing justice, were duty bound w apply the provisions of law in their true perspective and application of the same could not be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties‑‑‑Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salmi Afroze and 2 others PLD 1992 SC 263: Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

(c) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Condition‑‑‑Civil servant on his promotion would rank senior in the seniority list with effect from the date when the persons junior to him were promoted unless he was earlier superseded‑‑‑Civil servant, in the present case, was senior to other civil servants who were promoted by the Promotion Committee without considering his case and without advancing any reason and against all canons of justice‑‑‑No reason whatsoever existed for not considering the civil servant for promotion at that juncture when his juniors were considered for the same‑‑‑Failure on the part of the Department to consider the civil servant for promotion had caused an illegality which took quite some time to be cured‑‑‑Held, civil servant, in circumstances, could not be kept junior in the seniority list to the ones who were promoted out of turn.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salmi Afroze and 2 others PLD 1992 SC 263; Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman, Dy. Attorney‑General for Respondents Nos. 1 to 3.

Haji Shaukat Mehmood (present in person) for Respondent No.4.

Date of hearing: 23rd September, 2002.

2003 P L C (C.S.) 212

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

GOVERNMENT Of PAKISTAN through Establishment Division, Islamabad and 7 others

Versus

HAMEED AKHTAR NIAZI, ACADEMY OF ADMINISTRATIVE, TRAINING WALTON, LAHORE and others

Civil Appeals Nos. 1599 to 1606 of 1999, decided on 11th October, 2002.

(On appeal from the judgment dated 7‑12‑1998 of Federal Service Tribunal, Islamabad passed in Appeal No. 124(L) of 1980).

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

‑‑‑‑S.9‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Promotion‑‑‑Selection post and non‑selection post‑‑‑Criterion for promotion‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Criterion for promotion in case of selection post is merit, while in case of non‑selection post it is on the basis of seniority-­cum‑fitness‑‑‑Criterion for selection for promotion to the higher grade rests upon decision of the Competent Authority‑‑‑No other forum/Authority can assume the duties, which specifically have been assigned to the Competent Authority‑‑Seniority is one of the factors, which is considered for promotion, but seniority alone is not enough‑‑‑Promotion is not automatic but it depends on many other factors, such as, competence, availability of post and antecedents etc. and none of the said factors is less important than seniority and for promotion all these factors, on case‑to‑case basis, are to be considered‑‑‑Benefit of promotion, on the basis of improved seniority, as a matter of right in selection grade, cannot be claimed nor the Service Tribunal in appeal is competent to grant the same from back date, as the same is explicitly beyond its jurisdiction‑‑‑Requirements for promotion having not been examined by the Competent Authority at the relevant time, promotion could not be granted by the Service Tribunal‑‑‑Civil servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter, which is within the exclusive domain of the Government/Executive Authority‑‑‑If promotion is denied to a civil servant it could not be termed as denial of any fundamental right.

Muhammad Umar Malik v. Federal Service Tribunal and others PLD 1987 SC 172; Muhammad Saleem Bhatti v. Secretary to Government of Punjab, Agriculture Department, Lahore and 2 others 1985 PLC (C.S.) 26; R. Sampath v. The State of Madras and another AIR 1962 Mad. 485 and M.A. Moqeem v. The State of Mysore and others AIR 1963 Mys. 219 ref.

1973 SCMR 304; 1985 SCMR 1394; PLD 1991 SC 1118; 1996 SCMR 850 and 1988 SCMR 736 distinguished.

(b) Civil service‑‑

‑‑‑‑Promotion‑‑‑Promotion from back date to the retired civil servant cannot be granted.

(c) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Service Tribunal could not antedate the promotion.

(d) Civil service‑‑

‑‑‑‑ Promotion‑‑‑Prescribed length of service for promotion to B‑19 is 12 years in B‑17 and above.

Sardar Muhammad Aslam, Dy. A.‑G. and Anwar H. Mir, Advocate­‑on‑Record (absent) for Appellant (in C. A.No.1599 of 1999).

K.M. Samadani, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant (in C.As.Nos.1600, 1601, 1603 to 1606 of 1999).

Mian Saeedur Rehman Farrukh, Advocate Supreme Court and Sh. Salahud Din, Advocate‑on‑Record for Appellant (in C.A.No.1602 of I 999).

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1 (in C. A. No. 1599 of 1999).

Aleem Mahmood (in person), Abdul Hameed Qureshi (in person), Akbar Hayat Gandapuri (in person) and S.A. M. Walidi (in person).

Nemo for the Remaining Respondents.

Date of hearing: 13th June, 2002.

2003 P L C (C.S.) 231

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD ASADULLAH SHAIKH

Versus

GOVERNMENT OF PAKISTAN and others

Civil Petition for Leave to Appeal No.691‑K of 2000, decided on 22nd November, 2002.

(On appeal from the judgment. dated 17‑10‑2000 of the Federal Service Tribunal, Islamabad, passed in Service Appeal No. 72(K) of 1998).

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

‑‑‑‑R.5(1)(iii)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service on the charges of misconduct and corruption and having assumed a style of living beyond his ostensible means of income by the civil servant‑‑­Non‑conducting of enquiry and non‑issuance of second show‑cause notice‑­Effect‑‑‑Civil servant secured ex‑Pakistan leave for 56 days due to his heart ailment, which was granted to him, his young son aged 16 years was also suffering from B‑Thalassemia Major and was under treatment in Pakistan and doctor treating him in Pakistan recommended his bone marrow transplant from abroad‑‑‑Civil servant while abroad regarding his own heart ailment arranged for the treatment of his son there and came back to Pakistan and applied for extension of his leave for further 120 days on the ground of bone marrow transplant of his ailing son abroad and his leave was extended accordingly‑‑‑Civil servant left Pakistan and got his son admitted in a hospital abroad for treatment ‑‑‑Unexpired leave of the civil servant was abruptly cancelled with immediate effect and Competent Authority through a letter informed the civil servant that his request for extension in ex; Pakistan leave was declined and he was placed under suspension and, therefore, he was served with a show‑cause notice by the Competent Authority under Government Servants (Efficiency and Discipline) Rules, 1973 on specific charges‑‑‑Authorized Officer after applying his independent mind decided that no formal enquiry was needed in the facts and circumstances of the case and approaching the matter in term of R.5(1)(iii), Government Servants (Efficiency and Discipline) Rules, 1973, civil servant was specifically informed about the charges in detail and he was also informed the proposed penalty to be imposed on him in case the charges levelled against him were proved and he was further informed that while replying to the notice he should intimate whether he wanted to be heard in person‑‑‑Civil servant while abroad submitted his detailed reply and towards the end of the same he also prayed for an opportunity of being heard in. person enabling him to clarify the alleged charges‑‑‑Authorized Officer (Establishment Secretary) again asked the civil servant by a letter to avail the opportunity of personal hearing‑‑‑Civil servant did not deny the receipt of all these letters from the Authorized Officer but all the times deferred his appearance ‑‑Same behaviour was also shown when his appeal before Service Tribunal was pending and was finally decided under R.19(1) of Service Tribunals (Procedure) Rules, 1974 and was dismissed‑‑‑Supreme Court had also provided the civil servant opportunity for appearance time and again but he did not avail the same and sought exemption from personal appearance‑‑­Held, case of the civil servant having been dealt with under R.5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, the question as to whether an enquiry was needed or not depended upon the nature of charges‑‑‑Charges against the civil servant were apparent from the documents taken into consideration by the Authorized Officer and legal requirements were fully complied with by the Authorized Officer and the civil servant was in full knowledge of the case against him‑‑‑When the matter was dealt with under R.5(1)(iii) of the Rules, as no enquiry was conducted and the show-­cause notice earlier issued to the civil servant was all pervasive, as such no second show‑cause notice was required in the present case‑‑‑Apart from the charge of misappropriating crores of rupees there was an allegation against the civil servant of having assumed a style of living beyond his ostensible means of income and his reply in that regard was also deficient‑‑‑Civil servant, for the last more than six years, was living abroad and had not visited Pakistan to answer the charges against him‑‑‑Such‑like conduct on his part was quite unbecoming of a civil servant and could not be approved on my ground‑‑‑Petition for leave to appeal of civil servant against the order of he Service Tribunal was dismissed in, circumstances.

Inayatullah Khan v. The Provincial Government, N.‑W.F.P., Peshawar i985 SCMR 1747; Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 SCMIR 1543; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 2,22; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868 and The Deputy Inspector-­General of Police and another v. Muhammad Arif 1989 SCMR 852 distinguished.

M.M. Aqil, Advocate Supreme Court for Petitioner.

Hafiz S.A. Rehman, Deputy Attorney‑General for Respondents.

Date of hearing: 4th October, 2002.

2003 P L C (C.S.) 245

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

GOVERNMENT OF BALOCHISTAN through Secretary, S&GAD, Quetta

Versus

MARJAN KHAN

Civil Appeal No. 1572 of 2001, decided on 11th November, 2002.

(On appeal from the judgment dated 21‑12‑2000 passed by the Service Tribunal, Balochistan, Quetta in S.A. No. 6 of 2002).

(a) Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Provision of S.4, Balochistan Service Tribunals Act, 1974 conferred exclusive jurisdiction on the Service Tribunal pertaining to teams and conditions of a civil servant.

Jamal Khan Jaffar v. Government of Balochistan 1998 SCMR 1302; Ghulam Dastgir v. S.M.A. Kazmi PLD 1970 Lah. 33 and Muhammad Saeed Khan v. I.‑G. of Pakistan Railways Police and another 1983 PLC 307 ref.

(b) Civil service‑‑‑

‑‑‑Age of civil servant‑‑‑Essential term of conditions of service‑‑‑Date of birth of a civil servant is the sheet anchor for determining his superannuation on which date he is to bid farewell to the Department thus it is pivotal and most crucial and essential term and condition of his service.

(c) Civil service‑‑‑

‑‑‑‑ Age of civil servant‑‑‑Proof‑‑‑Civil servant, in the present case, had rendered rational explanation as to insertion of his date of birth (15‑2‑1942) initially at the time of admission to class one of the local Primary School which got corrected well in time still he was serving as EAC before induction into provincial civil service through competitive examination, factum whereof was duly borne out from his non‑gazetted service book original whereof was produced in the Court revealing his corrected date of birth as 15‑2‑1946‑‑‑Civil servant though had to refer to the Matriculation Certificate being the essential requisite which obviously contained, date of birth unchanged for which he could not be penalized for the same being not the exclusive proof of date of birth and was to be read in conjunction with other allied material determining the same, such as municipal record which in his case was non‑existent, being a remote point of Tribal Area but was vouched by other documents such as School Teacher's Certificate based upon sworn affidavit of the civil servant's mother being the best evidence available having first hand knowledge, Medical Certificate issued by the Medical Superintendent of the Hospital, manifesting his age‑ based upon Radiologist and Dental Surgeon, opinion. [p. 253] C

Ghulam Dastgir v. S.M.A. Kazmi PLD 1970 Lah. 33 and Jamal Khan Jaffar v. Government of Balochistan 1998 SCMR 1302 ref.

(d) Civil service‑

‑‑‑‑ Age of civil servant‑‑‑Correction‑‑‑Civil servant had been diligently and vigorously pursuing the matter with the Competent Authorities including departmental hierarchy for getting his date of birth corrected and eventually succeeded before the Provincial Chief Minister, who granted the same vide a notification which remained unchallenged‑‑Plea of Department as to delay was ill‑founded in circumstances.

Ishfaq Hussain Rana v. Government of the Punjab 1993 SCMR 1326 ref.

(e) Civil service‑‑

‑‑‑‑ Age of civil servant‑‑‑Correction‑‑‑Department which had acted upon the corrected date of birth of civil servant had opted not to consider his candidature for promotion to BPS‑21, inter alia, on that basis, was estopped from reprobating the same.

Ghulam Mustafa Mangal, Additional Advocate‑General for Appellant.

Abdur Rahim Kazmi, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent.

Date of hearing: 9th October, 2002.

2003 P L C (C.S.) 262

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

DIRECTOR‑GENERAL, ORDNANCE SERVICES, GENERAL

HEADQUARTERS, RAWALPINDI

Versus

MUHAMMAD ABDUL LATIF

Civil Appeal No.628 of 1998, decided on 14th November, 2002.

(On appeal from the judgment dated 17‑7‑1996 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 123‑R of 1996).

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

‑‑‑‑Art. 212(3)‑‑‑Finance Division DM No. F.1(1)‑Imp‑1/77 dated 28‑4‑1977‑ ‑Withholding of increments of civil servant‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Department, on the objection raised by the Audit Officer, stopped the said increments and before the implementation of appointment letter civil servant was informed that five advance increments could not be given because the same had not been allowed in accordance with the rules and general policy of the Government‑‑‑Civil servant challenged such order of the Authority before Service Tribunal which was accepted in his favour‑‑ Validity‑‑‑Petitioner (Department) sought leave to appeal against the order of Service Tribunal on the ground that the principle of locus poenitentiae was not applicable in the case of civil servant inasmuch as the said principle could not be pressed in service for overriding a law; that the Service Tribunal had wrongly construed that it was the Audit Officer, who ordered the stoppage of increments, but in fact the same had been allowed in violation of the Rules and the policy framed by the Government; that it was obligatory on the Service Tribunal to consider as to whether the appeal filed by the civil servant was not barred by time because his representation against the stoppage of the increments had been rejected way back in 1988 and, therefore, the appeal filed after eight years against the said order was not maintainable; that even the representation made against the stoppage of increments was barred by time because the increments were stopped in 1982 while the representation was made in 1988‑‑‑Leave to appeal was granted by the Supreme Court to consider the contentions raised in support of the petition.

(b) Civil service‑‑‑

‑‑‑Advance increments, withholding of‑‑‑Locus poenitentiae, principle of‑ ‑applicability‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Decision regarding stoppage of five advance increments was made by the Competent Authority which was communicated to the appointee after the issuance of appointment letter‑‑‑Payment of such five advance increments was never made to the civil servant due to its stoppage/cancellation on account of Government Policy and relevant Rules‑‑‑Contention of the civil servant was that five advance increments were included in the pay bills and, therefore, a legal right had accrued in his favour which could not have been infringed for the reason that same was never incorporated in the salary, slip and preparation of bills simpliciter by the civil servant himself would not amount to creation of a legal right‑‑‑Validity‑‑‑Held, a legal right was such right which was recognizable and enforceable at law and on the basis of pay bills duly prepared by the civil servant himself it could not be inferred that any legal right had accrued in his favour‑‑‑Condition concerning five advance increments contained in the appointment letter in fact was never implemented‑‑‑Principle of locus poenitentiae hardly rendered any assistance to the case of civil servant in circumstances‑‑‑Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v., Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

(c) Locus poenitentiae, principle of‑‑

‑‑‑‑ Applicability‑‑‑ Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 288 Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207 ref:

Raja Muhammad Irshad, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Ibadur Rehman Lodhi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 14th November, 2002.

2003 P L C (C.S.) 274

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MIR AMAN SHAH

Versus

SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD and others

Civil Petition No.3021 of 2001, decided on 21st October, 2002.

(On appeal from the judgment dated 9‑8‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.321(R) of 2002).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Office Memorandum of Finance Division (Regulation Wing‑I), No.F.1(82)‑83/85 dated 1‑1‑1986, cls. (iii) & (vi)‑‑‑Office Memorandum of (Finance Division Regulation Wing) No.F.7(1)‑Imp‑1/90 Vol. II, dated 7‑2‑1991‑‑‑Move‑over, grant of‑‑‑Civil servant having earned only one good report during the relevant period of five years and his other reports being just average, he was rightly denied move‑over from B‑18 to B‑19.

Rana Manzoor‑ul‑Hassan v. Secretary, Ministry of Education, Islamabad 1995 SCMR 8 fol.

Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi PLD 1992 SC 144 and Federation of Pakistan v. Muhammad Qaisar Hayat Khan 1994 SCMR 544 distinguished.

Petitioner in person.

Sardar Muhammad Aslam, Deputy Attorney‑General for Respondents.

Date of hearing: 21st October, 2002.

2003 P L C (C.S.) 285

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUHAMMAD IQBAL KHAN NIAZI

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Civil Appeal No.625 of 1999, decided on 22nd October, 2002.

(On appeal from the judgment dated 4‑12‑1998 of the Punjab subordinate Judiciary Service Tribunal (Lahore High Court, Lahore) passed in Service Appeal No. 11 of 1996).

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

‑‑‑High Court of West Pakistan Delegation of Powers Rules, 1960, Sched., Item 2(g)‑‑‑Punjab Civil Service (Judicial Branch) Rules, 1962, R.8(1)‑‑­Punjab Civil Servants Act (VIII of 1974), S.10(1)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of service of la Civil Judge before the expiry of maximum period of probation‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider, inter alia, the contentions that the petitioner was appointed as Civil Judge by the orders of the Governor and therefore his services could not be dispensed with by the High Court; that only the power of appointment was delegated to the High Court and the power of termination/removal from service had not been specially delegated to the High Court, therefore, other prevailing rules i.e. High Court of West Pakistan Delegation of Powers Rules, 1960 would be applicable whereunder only the Governor was competent to remove a Civil Judge from the service; that for the purpose of the interpretation of the rules of service governing the judicial officers, namely West Pakistan Delegation of Powers Rules, (960, West Pakistan P.C.S. (JB) Service Rules, 1962 and Punjab Judicial Service Rules, 1994 were to be read together; that. S.10(1) of the Punjab Civil Servants Act, 1974 was un‑Islamic and also violative of principles of natural justice enshrined in the maxim "audi alteram partem" and that services of the petitioner were terminated by a Committee headed by the then Acting Chief Justice which action was violative of the principles enunciated by the Supreme Court in the case of Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.

Al‑Jehad Trust through Raeesul Mujahideed Habib‑ul‑Wahab‑ul-­Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 ref.

(b) Punjab Civil Service (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑Rr. 8(1) & 3(b), Expln.‑‑‑Initial probationary period ‑‑‑Extension‑‑­Record did not indicate that any order was passed by the day following the completion of the initial probationary period of two years envisaged by R.8(1) of the Rules, probationary period, in circumstances, stood extended by a period of two years in view of Cl. 3(b) and Expln. thereof.

(c) Civil service‑

‑‑‑‑ Termination of service‑‑‑Order of termination was passed without assigning any reason‑‑‑Contention of the civil servant was that termination of service had put him under the vestige of a stigma‑‑‑Validity‑‑‑Order of termination of service having been passed without assigning any reason for the action was simpliciter and harmless in nature‑‑‑Allegation that the order put him under the vestige of stigma was more imaginary than real‑‑‑stigma does not flow from an innocuous order of termination of services.

(d) Punjab Civil Service (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑R.8(2)‑‑‑Probationer judicial officer‑‑‑Competent Authority is empowered to ascertain whether the work or conduct of a member of the service during the period of probation has been satisfactory or otherwise.

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

‑‑‑‑S.10(1)‑‑‑Punjab Civil Service (Judicial Branch) Rules, 1962, R.8‑‑­Probationer Civil Judge‑‑‑Termination of service‑‑‑Plea of discrimination ‑‑­Validity‑‑‑Batchmates of the Civil Judge whose services were terminated had successfully crossed the hurdle of the probationary period whereas he had bogged down and his services were dispensed with on the strength of the ,provisions of S.10(1) of the Civil Servants Act, 1974 read with R.8, Punjab Civil Service (Judicial Branch) Rules, 1962‑‑‑Question of discrimination n case of the aggrieved civil servant would not arise, in circumstances.

(f) High Court of West Pakistan Delegation of Powers Rules, 1960‑‑‑

‑‑‑West Pakistan General Clauses Act (VI of 1956), S.15‑‑‑Notification No. SOR.I(S&GAD)‑Integ. 15‑23‑59 dated 22‑4‑1970‑‑‑Power to dismiss or remove from service etc. a Civil Judge was specifically delegated to the High Court and it is immaterial whether it was exercised or not‑‑‑High Court, therefore, "is competent to dismiss or remove from service or retire compulsorily or reduce in rank or suspend a Civil Judge‑‑‑Principles.

Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393; The Secretary, Government of the Punjab v. Riaz‑ul‑Haq 1997 SCMR 1552; Karachi Port Trust v. Altaf Ahmed 1996 SCMR 1205; Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275; Liaqat Ali Shahid v. Government of the Punjab 1999 PLC (C.S.) 334 and Muhammad Suleman v. Lahore High Court, Lahore and another Civil Petition No. 1056‑L of 1999 ref.

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

‑‑‑S.10(1)‑‑‑Vices of S.10(1), Punjab Civil Servants Act, 1974‑‑‑Contention hat S.10(1) of the Act was un‑Islamic was bereft of substance as the same as not so far been declared to be repugnant to the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).

(h) Civil service‑‑‑

‑‑‑‑Probationer‑‑‑Vested right to continue in service‑‑‑Scope‑-‑Termination of service‑‑‑Maxim: "Audi alteram partem"‑‑Applicability ‑‑‑ Probationer has no vested right to continue in service, therefore, his services can be terminated without a show‑cause notice and the question of violation of the principles of audi alteram partem does not arise except in case of mala fides.

Province of Sindh v. Public at Large PLD 1988 SC 138 and Rehan Saeed Khan and others v. Federation of Pakistan 2001 PLC (C.S.) 1275 ref.

K.M.A. Samadani, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant.

Malik Azam Rasool, Advocate Supreme Court for Respondent.

Date of hearing: 22nd October, 2002.

2003 P L C (C.S.) 317

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

SAMIULLAH KHAN MARWAT

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Islamabad and another

Civil Petition No.761 of 2000, decided on 2nd April, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 30‑3‑2000 passed; in Appeal. No. 113‑R 1999).

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

‑‑‑‑Rr. 3(a)(b)(d), 4(1)(b)(iv), 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑­Charges against civil servant while holding charge as S.S.P. and D.I.‑G. of Police related to inefficiency, loss of control over subordinates, victimization of citizens through illegal arrests, detentions and registration of false cases‑‑‑. Dismissal of appeal of civil servant by Service Tribunal in the light of findings of Inquiry Officer and report of Prime Minister's Inspection Commission‑‑‑Validity‑‑‑Inquiry Officer on tire basis of evidence brought in inquiry had found civil servant guilty of such charges‑‑‑Competent Authority after issuing final show‑cause notice to civil servant and considering the matter had dismissed him from service‑‑‑Departmental Authorities had also considered report of Prime Minister's Inspection Commission, which had neither been brought on record in proceedings before Inquiry Officer nor had been put to civil servant in inquiry‑‑‑Such report of Prime Minister's Inspection Commission could not be treated as material against civil servant for purposes of inquiry under Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Reference to such report made by Service Tribunal in impugned judgment was not proper and legal‑‑‑Findings of Inquiry Officer were not suffering from misreading or non‑reading of evidence‑‑‑Civil servant while holding charge of S.S.P. and D.I.‑G. Police would be deemed to be custodian of rights of citizens and was under legal obligation not to permit his subordinates to use the machinery of criminal law against innocent people instead of protecting their rights and liberties as guaranteed under Constitution and was also not supposed to take any exception to legal acts of his subordinates‑‑‑Exercise of powers by public functionaries in derogation to direction of law would amount to disobeying the command of law and Constitution‑‑‑Failure of civil servant to initiate departmental proceedings against his subordinates for illegalities committed by them despite knowledge, would be a strong proof of his involvement in such activities and presumption would be that such activities had been carried out under his instructions‑‑‑Wilful violation of law by a Senior Officer and permission to his subordinates to violate law, would tantamount to misconduct and indiscipline‑‑‑Absolving civil servant from all other charges except said charges would show that Inquiry Officer was entirely independent, against whom no bias had been pleaded‑‑‑No exception could be taken to report of Inquiry Officer‑‑‑Order of dismissal from service passed by Competent Authority could sustain without report of Prime Minister's Inspection Commission‑‑‑Major penalty of dismissal from service on such charges was unexceptionable‑‑‑Supreme Court dismissed petition for leave to appeal having no substance.

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

‑‑‑Rr. 5 & 6‑‑‑Proceedings before Inquiry Officer‑‑‑Material neither brought on record in proceedings before Inquiry Officer nor put to accused civil servant in inquiry‑‑‑Such material could not be used against accused as evidence by Authorized Officer and Competent Authority.

(c) Administration of justice‑‑‑

‑‑‑‑Concept‑‑‑Administration of justice is not confined only to judicial system‑‑‑Every person discharging functions in relation to rights of people is bound to act fairly, justly and in accordance with law‑‑‑Exercise of powers by public functionaries in derogation of direction of law would amount to disobeying the command of law and Constitution‑‑‑If a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse of his official authority, he should be made answerable to law and should be proceeded against for aft appropriate action by his superiors.

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

‑‑‑‑R.2(4:)‑‑‑"Misconduct"‑‑‑Connotation‑‑‑Mere inefficiency as such might not fall within definition of misconduct‑‑‑Wilful violation of law by a Senior Officer and permission to his subordinates to violate law, would tantamount to misconduct and indiscipline.

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2002.

2003 P L C (C.S.) 333

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman‑‑‑Petitioner

Versus

INAYAT RASOOL‑‑‑Respondent

Civil Petition No.371‑K of 2001, decided on 27th May, 2002.

(On appeal from the judgment dated 31‑3‑2001 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1560 (K) of 1998).

(a) Pakistan International Airlines Corporation Personnel Policies Manual.‑--

‑‑‑‑ Cl. 18:06:05‑‑‑Pakistan International Airlines on Essential Utility Service (M.L.R. 52), pera.5‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Service Tribunals Act (LXX of 1973), S.4‑­‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service under M.L.R. No.52‑‑‑Review Board declared such order void ab initio‑‑‑Re­employment of respondent through order dated 14‑2‑1990 without benefit of his previous service-‑‑Authority through order, dated 31‑7‑1995 counted previous service of respondent for purpose of pensionary benefits in terms of cl. 18:06:05 of PIAC Personnel Policies Manual‑‑‑Respondent opted for Voluntary Golden Handshake Scheme subject to grant of benefit of service rendered by him prior to his termination and also for period during which he remained out of service in terms of letter dated 31‑7‑1995 issued on recommendation of Review Board‑‑‑Authority accepted such option without giving benefit of service rendered prior to re‑employment‑‑‑Respondent approached authority for injustice done to him by depriving him from legitimate right of reinstatement in service with benefit of previous service, but failed‑‑‑Service Tribunal accepted respondent's appeal‑‑‑Validity Review Board had recommended re‑employment of respondent with grant of benefit of previous service towards pensionary benefit and seniority‑‑­Review Board had used word 're‑employment' for reinstatement and its recommendation practically was for reinstatement in service without grant of financial 'back benefits‑‑‑Authority ‑having extended benefit of previous service to respondent and acknowledged same before Supreme Court in Pakistan International Airlines Corporation v. Malik Khalid Hussain and others (C.R.P. No.7‑K of 2001 etc.), could not retrace its steps and change its position contrary to stand earlier. taken before Supreme Court‑‑‑Such admission of Authority would estop it from taking a different position at the cost of disadvantage to respondent in the present case‑‑‑Benefit of previous service given to respondent through order dated 31‑7‑1995 having taken effect had created valuable rights in his favour and had attained finality, which could not be undone on the strength of re‑employment order, dated 14‑2‑1990, rather same would be deemed to have been superseded and merged in subsequent order, dated 31‑7‑1995, which would hold field for purpose of Golden Handshake Scheme‑‑‑Supreme Court dismissed petition for leave to appeal.

Civil Review Petitions Nos.7‑K to 13‑K of 2000 and Pakistan International Airlines Corporation v. Malik Khalid Hussain and others C.R.P. No.7‑K of 2001 etc. rel.

(b) Civil service‑‑

‑‑‑‑ Re‑employment and reinstatement in service ‑‑‑Distinction‑‑‑Re­employment in plain words is fresh appointment, whereas reinstatement is to place a person in his previous position.

(c) Locus poenitentiae, principle of‑‑‑-

‑‑‑‑Authority having power to make an order has also power to undo the same‑‑‑Exception‑‑‑Order once having taken legal effect and created certain rights in favour of any individual cannot be withdrawn or rescinded to the detriment of those rights‑‑‑General Clauses Act (X of 1897), S.21.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 fol.

Government of Pakistan v. Fauji Cement Company Ltd. 2001 SCMR 1771; Muhammad Nawaz v. Federation of Pakistan 2000 SCMR 2883; Government of Sindh v. Niaz Ahmad 1992 SCMR 1420; Excel Builders v. Ardeshir Cowasjee 1991 SCMR 2293; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2089; Engineer‑in‑Chief Branch v. Jalaluddin 1999 SCMR 2883; PLD 1992 SC 207 and Themas v. Dawar Khan PLD 1990 SC 629 rel.

Fazal‑i‑Ghani, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Petitioner.

Respondent in person.

Date of hearing: 27th May, 2002.

2003 P L C (C.S.) 353

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

ABDUL QAYYUM‑‑‑Petitioner

Versus

D.G., PROJECT MANAGEMENT ORGANIZATION, JS HQ, RAWALPINDI and 2 others‑‑‑Respondents

Civil Petition No.281 of 2001, decided on 24th June, 2002.

(On appeal from the judgment of Federal Service Tribunal Islamabad, dated 20‑11‑2000 pAssed in Appeals Nos.230 (P) and 996(R) of 1999).

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

‑‑‑‑Rr.3(b), 4(1)(b)(iv), 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4--­Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service without holding of regular inquiry‑‑‑Effect‑‑‑Charge against civil servant was of being involved in preparing forged documents for hiring accommodation for his co‑employee‑‑‑Show‑cause notice issued on the basis of preliminary inquiry was replied by civil servant‑‑‑Competent Authority finding the civil servant guilty of misconduct dismissed him from service‑‑‑Service Tribunal dismissed appeal of civil servant‑‑Validity‑‑‑Record showed that preliminary inquiry had been held for purpose of collecting, evidence, in support of allegation for holding a regular inquiry under Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Serving of charge‑sheet with statement of allegation to civil servant was necessary under the Rules to provide him a fair opportunity to submit reply to the charges‑‑‑Civil servant was entitled to cross‑examine witnesses and produce evidence in rebuttal in regular inquiry‑‑‑Competent Authority in the light of evidence and findings of Inquiry Officer could pass an appropriate order, but respondents without observing the procedure of inquiry had awarded major penalty to civil servant on the basis of preliminary inquiry‑‑‑Authorised Officer in his note had stated that civil servant was being proceeded against for misconduct under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, thus, without explicit order of dispensation of requirement of regular inquiry, departure from normal rule was not legal‑‑‑Civil servant had been dismissed from service without establishing charge of misconduct by way of holding a proper inquiry and providing him opportunity of hearing‑‑­Question, whether transaction in question was a private affair between civil servant and co‑employee or same would constitute an act of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973, would need determination in the light of explanation given by civil servant ‑‑‑Co­ employee, the real beneficiary of transaction and main character of the drama, had not been proceeded against, whereas civil servant, who was a middle man, had been held responsible‑‑‑Dismissal of civil servant from service in summary manner was violative of principle of natural justice‑‑­Supreme Court converted petition into appeal and accepted same, set aside impugned judgment and reinstated civil servant in service with back benefits.

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

‑‑‑‑Rr. 5 & 6‑‑‑Regular inquiry, requirement of‑‑‑Without an explicit order of dispensation of requirement of regular inquiry, departure from normal rule was not legal‑‑‑Requirement of regular inquiry could be dispensed with in exceptional circumstances‑‑‑Where recording of evidence was necessary to establish the charges, 'then departure from requirement of regular inquiry under the Rules would amount to condemn a person unheard.

Muhammad Munir Paracha, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Sardar Muhammad Ghazi, Advocate. Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 24th June, 2002.

2003 P L C (C.S.) 365

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through Secretary Education Government of Sindh, Karachi and 3 others

Versus

Miss SAIMA PANO and others

Civil Petitions for Leave to Appeal Nos.544‑K to 555‑K of 2002, decided on 17th July, 2002.

(On appeal from judgment dated 29‑3‑2002, passed by the Sindh Service Tribunal, Karachi, in Appeals Nos. 123 to 134 of 1999).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of service ‑‑‑Departmental appeal/representation‑‑‑Despatched under postal certificate‑‑‑Non‑consideration of such appeal/representation‑‑‑Civil servant was terminated from service by Competent Authority and against the order of termination, civil servant preferred departmental appeal/representation which was despatched under postal cover‑‑‑Appellate Authority did not consider the appeal at all or the same was not placed before it for the reasons best known to the quarters concerned‑‑‑Order passed by the Appellate Authority was not a speaking order‑‑‑Civil servant was not even afforded a chance of personal hearing before passing the termination orders‑‑‑Authenticity and genuineness of the postal certificate was neither challenged nor questioned by the Authorities before Service Tribunal ‑‑Appeal before Service Tribunal was allowed, termination order was set aside and the case was remanded to the Authorities for decision afresh‑-‑Validity‑‑‑Where the civil servant was not afforded a chance of personal hearing before passing of termination order, such order would be void ab initio‑‑‑Service Tribunal had rightly allowed the appeal and set aside the termination order‑‑‑Judgment passed by the Service Tribunal was well‑reasoned and based on the law laid down by Supreme Court‑‑‑No misreading or non‑reading of material available on record was found‑‑‑Question of general public importance was also not involved in the matter‑‑‑Leave to appeal was refused.

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 17th May, 2002.

2003 P L C (C.S.) 368

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

ZULFIQAR‑UL‑HUSNAIN and 19 others

Versus

OIL AND GAS DEVELOPMENT CORPORATION

Civil Appeals Nos. 925‑R to 943‑R of 1999 and 1068 of 2000, decided on 15th January, 2001.

(On appeal from the judgment dated 16‑3‑1999 and 18‑3‑1999 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.797‑R, 600‑R, 602‑R, 601‑R, 599‑R, 597‑R, 598‑R, 589‑R, 591‑R, 581‑R, 594‑R, 583‑R, 586‑R, 603‑R, 593‑8, 592‑R, 585‑R, 588‑R and 596‑R of 1997, and Appeal No, 561‑R of 1997).

(a) Oil and Gas Development Corporation Act (XXXVH of 1961)‑‑‑

‑‑‑‑Ss. 5 & 6(1‑C)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art. 212(3)‑‑‑Promotion from Executive Group‑I to Executive Group‑III‑Criteria‑‑‑Assistant Officers (Non­ Technical) and Assistant Officers (Technical) both previously placed in NPS‑16 were placed in Executive Group‑I & II respectively after introduction of Pay Groups instead of Pay Scales‑‑‑Contention of appellants ­Assistant Officers (Non‑Technical) was that their shifting from EG‑I to EG‑II would not amount to promotion as both categories pertained to Assistant Officers and that they were entitled to be promoted from EG‑I to EG‑III in order to maintain uniformity between Assistant Officer (Non‑Technical) and Assistant Officer (Technical) as was the practice in past‑‑‑Service Tribunal dismissed the appeal of appellants on the ground that Assistant Officer placed in EG‑I could not jump over to EG‑III without having put in five years service in EG‑II and that both such categories could not be treated alike‑‑­Validity‑‑‑Assistant Officer (Non‑Technical) EG‑I and Assistant Officer (Technical) EG‑II both fell within same category of employees‑‑‑No discriminatory treatment could be meted out to either category in the matter of promotion to next higher group i.e. EG‑III‑‑‑Promotion claimed by appellants from EG‑I to EG‑III would not be in conflict with policy decision taken by Board as reflected in its letter dated 28‑1‑1980 clearly stipulating that promotion criteria and other terms and conditions of employment of Officers would remain unchanged after introduction of Pay Groups‑‑­Supreme Court accepted appeals and set aside, impugned judgment to the extent of appellants with the result that thy would be entitled to grant of promotion to EG‑III with effect from the dates they were promoted to EG‑II.

Muhammad Ali v. The Chairman, Oil and Gas Development Corporation, Islamabad Appeal No. 417‑R of 1997 ref.

(b) Civil service‑‑‑

‑‑‑‑ Doctrine of past and closed transaction‑‑‑Applicability‑‑‑Order affecting large number of employees was challenged only by some, of them before Service Tribunal‑‑‑Contention. of Authority was that grant of relief to present appellants would affect about 300 other employees of Corporation‑‑­Validity‑‑‑Such contention was not sustainable as order proposed to be passed in such proceedings would be confined to cases of present appellants alone and not other employees having failed to approach Tribunal for redress of their grievance‑‑‑Cases of those employees would be hit by doctrine of past and closed transaction ‑‑‑Withholding relief to present appellants in these proceedings on such ground would not be justified.

(c) Oil and Gas Development Corporation Act (XXXVII of 1961)‑‑‑

‑‑‑‑Ss. 5 & 6‑‑‑Promotion policy‑‑‑Power of Chairman‑‑‑Scope‑‑‑Chairman/ Delegatee could not lay down a policy of promotion, which had the effect of nullifying the decision taken by the Board itself.

(d) Oil and Gas Development Corporation Act (XXXVII of 1961)‑‑‑

‑‑‑‑Ss. 5 & 6(1‑C)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Promotion from Executive Group‑II to Executive Group-III‑‑‑Appellant while working as Assistant Accountant in EG‑I was appointed on 9‑5‑1990 as Marketing Officer in EG‑II‑‑‑Appellant thereafter represented to Corporation that he should have been appointed in EG‑III instead of EG‑11 on account of having more experience; and that EG‑III was not for non‑technical officers‑‑‑Service Tribunal dismissed the appeal on the ground that appellant had accepted offer and joined as Marketing Officer without any protest‑‑‑Contention of appellant was that under similar circumstances 14 Assistant Accountants in EG‑I had been promoted to post of Accountants in EG‑III following the decision of Service Tribunal also affirmed by Supreme Court, thus, there was no reason for not granting promotion to appellant to EG‑III w.e.f. 9‑5‑1990‑‑‑Validity‑‑‑Discriminatory treatment had been meted out to appellant as well as 14 other Assistant Accountants in EG‑I similarly placed as he in the matter of grant of EG‑III from a specified date‑‑‑Supreme Court accepted appeal and set aside impugned judgment holding that appellant .was entitled to placement in EG‑III with effect from the date of his original appointment i e. 9‑5‑1990.

Abdul Jabbar Memon and other's case 1996 SCMR 1349 ref.

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos. 925 to 931 of 1999).

Raja Muhammad Bashir, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos.932 to 943 of 1999).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant (in C.A. No. 1068 of 2000).

Shah Abdur Rashid, Advocate, Supreme Court for the Respondent‑Corporation.

Date of hearing: 15th January, 2001.

2003 P L C (C.S.) 479

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

WAPDA through Chairman

Versus

SHARAFAT HUSSAIN and others

Civil Petitions for Leave to Appeal Nos. 1604 to 1612 and 1919 of 2002, decided on 14th January, 2003.

(On appeal from the judgment dated 30‑5‑2002 of the Federal Service Tribunal, Islamabad in Service Appeals Nos.110(R)(CS)/2001, 111(R)(CS)/2001, 112(R)(CS)/2001, 114(R)(CS)/2001, 115(R)(CS)/2001, 116(R)(CS)/2001, 117(R)(CS)/2001, 118(R)(CS)/2001, 122(R)(CS)/2001; 1501(L)/1999).

(a) Pakistan Wafer and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 17(1‑A)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Compulsory/premature retirement ‑‑‑Mala fides‑‑‑Natural justice, principles of‑‑‑Applicability‑‑‑Civil servants were initially proceeded against departmentally on different charges under Efficiency and Discipline Rules, 1958 but nothing contrary was proved against them‑‑‑Authority thereafter with mala fide intention, in order to oust civil servants from service, directed their compulsory retirement under S.17(1‑A) of the Act‑‑‑Service Tribunal set aside such order and reinstated civil servants in service for being condemned unheard‑‑‑Validity‑‑‑Civil servants were entitled to right of hearing before passing order of their compulsory retirement from service‑‑­impugned judgment needed no interference by Supreme Court‑‑‑Leave to appeal was refused:

WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 and Water and Power Development Authority through Chairman and others v. Muhammad Naveed Iqbal, Line Superintendent and others Civil Petitions Nos. 1254, 1255, 1272 and 1259 of 2002 ref.

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

‑‑‑‑Art. 212(3)‑‑‑Petition for leave to appeal was time‑barred‑‑‑Supreme Court declined to dilate upon such aspect of case after having decided petition on merits.

M. Munir Peracha, Advocate Supreme Court for Petitioners (in all Cases).

Respondent No. 1 in person (in C. P. No. 1607 of 2002).

F.K. Butt, Addl. A.‑G. for Respondent No.2 (in all Cases).

Date of hearing: 14th January, 2003.

2003 P LC (C.S.) 488

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ

AAMIR IKRAM and 10 others

Versus

DISTRICT HEALTH OFFICER, VEHARI and others

Civil Petitions for Leave to Appeal Nos.2253/L to 2263/L of 2002, decided on 4th December, 2002.

(On appeal from the judgment dated 5‑12‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.543/1999, 544/1999, 553/1999, 544/1999, 556/1999, 557/1999, 559/1999, 564/1999, 568/1999, 1822/1999 and 1823/1999 respectively).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan 1973), Art.212(3)‑‑‑Termination of service‑‑‑Service Tribunal by allowing petitioners' appeals ordered their reinstatement in service, but treated intervening period as extraordinary leave‑‑‑Validity‑‑‑Supreme Court had already granted back‑benefits to other employees of the same Department while accepting their petitions filed against the same impugned judgment‑‑‑Present petitioners were party in the impugned judgment of Tribunal and were aggrieved of the same, but had filed petitions now‑‑‑Observing that Department should have been magnanimous enough to have allowed such benefit to the present petitioners, Supreme Court converted petitions into appeal and allowed all back‑benefits to the petitioners.

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

‑‑‑‑Art. 212(3)‑‑‑Petition for leave to appeal‑‑‑Delay of 146 days, condonation of‑‑‑Supreme Court out of impugned judgment had already granted same relief to other employees of the same Department‑‑‑Delay in present matter should not come in the way of petitioners for dispensation of complete and substantial justice, who were sailing in the same boat.

Muhammad Anwar Ghuman, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Dr. Muhammad Abid and Arshad Hussain Bukhari, Law Assistant for Respondents.

Date of hearing: 4th December, 2002.

2003 P L C (C.S.) 497

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PRESIDENT, UNITED BANK LTD. and others

Versus

IFTIKHAR HUSSAIN KHAN and another

Civil Appeal No. 1324 of 1999, decided on 13th December, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad; dated 3‑12‑1998, passed in Appeal No.40(K) of 1998).

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

‑‑‑‑R. 37‑‑‑Dismissal from service‑‑‑ Allegation of misconduct involving misappropriation of funds by employee of the Bank‑‑‑Service Tribunal reinstated the employee on appeal with all back‑benefits ‑‑‑Validity‑‑­Employee having refunded the amount at a very late stage had violated the Rules of the Bank, as such, keeping in view R.37, United Bank Limited (Staff) Service Rules, 1981 total exoneration of the employee from charge was uncalled for but dismissal from service was not warranted‑‑‑Supreme Court, allowed the appeal of the employee partly and awarded penalty of postponement of promotion of the employee for a period of three years from the date of his reinstatement in service.

WAPDA v. Abdul Waheed 2002 SCMR 753 distinguished.

Ikram Ahmad Ansari, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record for Appellants.

Abdul Mujeeb Pirzada. Advocate Supreme Court for Respondents No. 1.

Date of hearing: 13th December, 2002.

2003 P L C (C.S.) 500

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

KARACHI ELECTRIC SUPPLY CORPORATION through Managing Director, Karachi

Versus

ABDUL JABBAR CHANNA and others

Civil Petitions for Leave to Appeal Nos. 1001‑K to 1013‑K of 2002, decided on 16th December, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad. dated 20‑8‑2002, passed in Appeals Nos. 1278(K) to 1290(K) of 1999).

Karachi Electric Supply Corporation (Removal from Service) Ordinance (X of 1999)‑‑

‑‑‑‑S. 2(a)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement of employees of Corporation with immediate effect under S.2(a) of the Ordinance‑‑‑Reinstatement of such employees ordered by the Service Tribunal on appeal‑‑‑Validity‑‑‑Employees had contended that they had been compulsorily retired ahead of their tenure and in violation of the terms and conditions of their service settled at the initial stage of their employment: that they had been retired by incompetent Authority, without assigning any reason; that the retirement order had been passed without issuing any show‑­cause notice, which was in violation of principles of natural justice and that the Corporation had acted in discriminatory manner, inasmuch as number of employees having been removed from service or retired compulsorily, had been again reinstated and given the same jobs‑‑‑Initial order of appointment issued by the Corporation to the employees did not mention that the service of the employees would be terminated or they would be retired from service without giving any reason‑‑‑Record showed that all such employees stood confirmed in their respective posts and then subsequently, after earning satisfactory reports and unblemished performance during the service, had been promoted in their respective scales, having reached the stage, without giving any show‑cause notice, they had been abruptly ordered to be retired from service‑‑‑Held, by passing the order of retirement, the Corporation had not only violated the settled terms and conditions of service of the employees, but at the same time, the order violated the basic principles of audi alteram partem, because no show‑cause notice or any opportunity of hearing had been given to the employees‑‑‑Action of the Corporation in circumstances, was totally against the law‑‑‑Corporation had failed to give plausible explanation for the order whereby the employment of as many as twelve confirmed and regular employees, comprising top hierarchy of Engineering Service had been terminated, without any reason‑‑‑Judgment of the Service Tribunal reinstating such employees was well‑reasoned, which was not open to exception‑‑‑Neither there was misreading of material, nor misconstruction of law and no question of general public importance was involved in the matter‑‑‑Petition for leave to appeal against reinstatement of the employees was dismissed by the Supreme Court.

A.R. Akhtar, Advocate Supreme Court/Advocate‑on‑Record for Petitioners (in all Petitions).

Miss Wajahat Niaz, Advocate‑on‑Record for Respondent No. 1.

Date of hearing; 16th December, 2002.

2003 P L C (C.S.) 514

[Supreme Court of Pakistan]

Present: Rana Bhaghwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

SHAMAS‑UD‑DIN KHAWAJA

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Islamabad and 2 others

Civil Petition No.2500 of 2001, decided on 9th October, 2002.

(On appeal from the judgment dated 25th June, 2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.763(R)/(CS)/2000).

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

‑‑‑‑Rr. 6, 5 & 4‑‑‑Service Tribunals Act, (LXX of 1973), S.4‑‑‑Compulsory retirement‑‑‑Inquiry procedure‑‑‑Full‑fledged inquiry is to be made whereby an Authorised Officer is required to frame a charge and inform the accused civil servant of the statement of allegations against him‑‑‑Provision of R.6(1)(2), Government Servants (Efficiency and Discipline) Rules, 1973 clearly stipulates that the accused official shall be provided not less than 7 or more than 14 days period to put in his defence, oral or documentary evidence, and also to cross‑examine the witnesses against him‑‑‑Mere factum of taking in hand inquiry, proceedings under the Rules against a civil servant cannot be equated with the procedure prescribed in R.6(1)(2)(3) of the Rules‑‑‑Ample convincing and reliable evidence has to be on the record which could safely go to prove the charges levelled against the civil servant and only then findings of compulsory retirement could be recorded‑‑‑Where the departmental proceedings were initiated only on the basis of criminal charge, which was not subsequently proved by the competent Court of law and resulted in acquittal, order of Service Tribunal upholding the order of compulsory retirement by the Department was set aside by the Supreme Court.

Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

S.M. Abdul Wahab, Advocate Supreme Court instructed by M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Hatiz S.A. Rehman, Deputy Attorney‑General instructed by Ch. Muhammad Akram, Advocate‑on‑Record for Respondents.

Date of hearing; 9th October, 2002.

2003 P L C (C.S.) 517

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

MUHAMMAD JANAN

Versus

GENERAL MANAGER, PAKISTAN MINERAL DEVELOPMENT CORPORATION (PVT.) LTD., ISLAMABAD and another

Civil Petition for Leave to Appeal No.428 of 2001, decided on 11th November, 2002.

(On appeal from the judgment dated 14‑12‑2002 of the Federal Service Tribunal, Islamabad in Appeal No.372(P) of 1999).

Pakistan Mineral Development Corporation Rules‑‑‑

----R. 36‑‑‑Employee, a Shot Firer working under the Corporation‑‑­Retirement of such employee under R.36 of the Rules‑‑‑Validity‑‑‑Employee would retire from service on attaining the age of 60 years---Where the age of the employee was not yet of 60 years, his retirement, was illegal on the face of it‑‑‑Services of a very senior and experienced employee, in the present case, were dispensed with on the pretext of retirement without any just cause‑‑‑ Employee, in case of retirement before superannuation, was entitle to be given notice which was not done‑‑‑Service Tribunal on appeal had failed to appreciate the matter in its true perspective and mixed up flit termination of an employee with the factum of retirement‑‑‑Supreme Court, by converting the petition for leave to appeal into an appeal, directed that it the employee, as per service record, had by now attained the age of 60 years, he shall be deemed to have retired on such date with all back and future benefits and if he had not attained the age of 60 years, he was reinstated in service with all benefits.

Habibul Wahab‑ul‑Khairi, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

M. Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents/Caveators.

Date of hearing: 26th September, 2002.

2003 P L C (C.S.) 524

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Muhammad Bashir Jehangiri, JJ

ABDUL KHALIQUE

Versus

THE UNIVERSITY OF KARACHI through its Registrar and 2 others

Civil Petition No. 136‑L of 1998, decided on 11th November, 1998.

(On appeal from the judgment dated 5‑9‑1997 of the High Court of Sindh at Karachi passed in C.P No.D‑383 of 1996).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Selection by Selection Board‑‑‑Vested right‑‑‑Time‑barred petition‑‑‑Petitioner was selected by Selection 'Board but the Appointing Authority did not appoint him to the post‑‑‑Validity‑‑‑Mere selection by Selection Board did not confer a right on the petitioner to be appointed for the post when his selection was not approved by the Appointing Authority‑‑­Grievance raised by the petitioner was of individual nature‑‑‑No question of law of public importance was involved warranting interference under Art. 212(3) of the Constitution‑‑‑Petition was barred by 95 days and no valid ground existed for condonation of delay‑‑‑Leave to appeal was refused.

Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

K.A. Wahab, Advocate‑on‑Record for Respondent No. 1.

Muhammad Saleem Sammo, A.A.‑G. Sindh (on Court's Notice).

Date of hearing: 11th November, 1998.

2003 P L C (C.S.) 526

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MANAGING DIRECTOR (POWER), WAPDA and others

Versus

MUHAMMAD LUQMAN

Civil Appeal No.381 of 1997, decided on 10th September, 2002.

(On appeal from the judgment dated 8‑11‑1995 of the Federal Service Tribunal, Islamabad in Appeal No.248(L) of 1995).

(a) Pakistan Power Wing Commercial and Revenue Officers Rules, 1982‑‑‑

‑‑‑‑Appendex I. Col. 6‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑WAPDA employee‑‑­Promotion‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether appeal of the employee before Service Tribunal was time-­barred; whether the employee had no vested right to claim promotion in a particular grade and from a particular date whether the employee was governed by the Pakistan Power Wing Commercial and Revenue Officers Rules, 1982 or some other Rules; whether the note incorporated in Col. 6 of Appendex I of the said Rules barred the employee from being allowed Grade‑17 as Revenue Officer, if he did not fulfil the conditions laid down in the said note and whether promotion of employee as Revenue Officer should have been ordered with retrospective effect from 28‑12‑1986 in view of the seniority given to him.

(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 17(1‑B)‑‑‑Civil Servants Act (LXXI of 1973), S.22(2)‑‑‑Service Tribunals Act (LXX of 1973), S.4(1)(a)‑‑‑Appeal to Service Tribunal‑‑­WAPDA employee being a civil servant by fiction of law could not have filed an appeal before the Service Tribunal without exhausting the remedy of representation under S.22(2) of the Civil Servants Act, 1973.

Gulbat Khan v. WAPDA 1992 SCMR 1789 and Muhammad Ibrahim Mangrio and others v. Chairman, WAPDA and another 2001 SCMR 848 ref.

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

‑‑‑‑Ss. 4 & 7‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Period of limitation was to be reckoned from the date of tiling the representation by the civil servant.

(d) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Vested right of employee‑‑‑Where the Rules, Regulations and Policy had been framed for regulating appointment and promotion, any breach or deviation from them for mala fide reasons or due to arbitrary act of Competent Authority, would entitle an aggrieved person to challenge the same.

Walayat Ali Mir v. Pakistan International Airlines Corporation 1995 SCMR 650 ref.

(e) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 17‑‑‑Pakistan Power Wing Commercial and Revenue Officers Rules, 1982, Appendix 1, Col. 6, Note‑‑‑Interpretation of Note in the Appendix‑‑‑Note makes it manifest that a promotee on selection will be allowed B‑17 and will be reverted to his original grade/post if he failed to qualify the prescribed Departmental Examination within two consecutive chances.

M. Saleem Chaudhry, Advocate Supreme Court for Appellants.

Mian Mehmood Hassan, Advocate Supreme Court for Respondent.

Date of hearing: 10th September 2002.

2003 P L C (C.S.) 531

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

TARIQ MAHMOOD

Versus

AUDITOR‑GENERAL OF PAKISTAN, ISLAMABAD and another

Civil Petition No.3204 of 2001, decided on 11th July, 2002.

(On appeal from the judgment of Federal. Service Tribunal, Islamabad, dated 11‑9‑2001 passed in Appeal No.448(R) (C.S.) of 2000).

Government Servants (Revised Leave) Rules, 1980‑‑‑

‑‑‑‑R.20‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Absent without leave‑‑‑ Dismissal from service‑‑Medical leave‑‑‑Failure to consult doctor in Government hospital‑‑­Civil servant was dismissed from service on the charge of absence from duty without leave‑‑‑Departmental Authorities having not been satisfied with the plea of serious illness of the civil servant dismissed him from service as the civil servant did not consult any doctor in Government hospital‑‑‑Order of dismissal was maintained by the Service Tribunal‑‑‑‑Civil servant contended that in case of leave on medical ground the Authority competent to sanction leave could secure second medical opinion but there was no justification either for refusal of leave or for initiation of departmental proceedings‑‑‑Validity‑‑‑Civil servant failed to explain as to why he had not applied to the concerned Authorities for grant of leave on medical ground and for what reason he did not consult the doctor in Government hospital and inform the concerned quarters about his illness‑‑‑Service Tribunal having perused service record of the petitioner observed that he was habitual, wilful absentee without authorized leave and that such conduct was not in conformity with the Government Servants (Conduct) Rules, 1964‑‑­Tribunal for its satisfaction; could competently look into the service record of the civil servant and earlier absence of the civil servant was relevant to determine the present matter‑‑‑Leave to appeal was refused.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 11th July, 2002.

2003 P L C (C.S.) 533

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Kamal Mansur Alam, JJ

Major (Retd.) ABDUL WAHEED KHAN

Versus

FEDERAL SERVICE TRIBUNAL and others

Civil Petition No.362‑K of 1999, decided on 17th August, 1999.

(On appeal from the judgment of the Federal Service Tribunal, Karachi, dated 21‑4‑1999, passed in Appeal No.55(K) of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Second representation, rejection of‑‑‑Civil servant was reverted in the year 1992, he filed representations repeatedly but the Authorities did not reply‑‑‑Finally on 31‑12‑1998, tile departmental appeal filed by the civil servant was rejected‑‑‑Appeal before Service Tribunal was filed on 20‑1‑1999, but the same was dismissed as time‑barred‑‑‑Plea raised by the civil servant was that the appeal before Service Tribunal was filed within 30 days of the order of Departmental Appellate Authority thus the same was within limitation‑‑‑Validity‑‑‑Even if the order of reversion was dated 21‑7-1992 but for the first time the Competent Authority had rejected the representation in the year 1998‑‑‑Civil servant's appeal before Service Tribunal filed within 30 days of such order of reversion by the Departmental Appellate Authority was in time‑‑‑If any representation of the civil servant was earlier rejected by the Departmental Authority, another order by the Departmental Authority passing a similar rejection order on second representation would not extend the period of limitation‑‑‑Supreme Court converted' the petition into appeal, judgment of Service Tribunal was set aside and the case was remanded to the Tribunal for decision afresh.

Ali Akbar, Advocate Supreme Court for Petitioner.

S. Tariq Ali, Standing Counsel for Respondents Nos. 1 and 2.

Manan Bhatti Asstt. Manager, Law Department, Pakistan Steel Mills for Respondents Nos.3, 4 and 5.

Date of hearing: 17th August, 1999.

2003 P L C (C.S.) 537

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

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

Versus

MUHAMMAD KHAN and others

Civil Petitions Nos. 195‑L and 199‑L of 2002, decided on 16th May, 2002.

(On appeal from the judgment dated 13‑8‑2001. passed by Punjab Service Tribunal, Lahore, in Appeals No. 1716.and 1667 of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.212(3)‑‑‑Petition for leave to appeal‑‑‑Barred by limitation‑‑‑Delay caused by Government functionaries‑‑‑Appeals tiled by civil servants were allowed by Service Tribunal‑‑‑Petitions against the judgments of Service Tribunal were assailed by Government which were barred by 89 and 97 days‑‑‑Government failed to furnish any plausible justification on the basis of which the delay could be condoned‑‑‑Delay appeared to be deliberate and intentional‑‑‑Supreme Court directed the Authorities to take care of the matter and to conduct a thorough probe and further directed to fix the responsibility for the delay and action be initiated against the delinquents to stop such condemnable practice in future and compliance report be submitted to Supreme Court within prescribed time‑‑‑Petitions were dismissed as time­ barred.

A. H. Masood, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record (absent) for Petitioners (in C.Ps. Nos. 195‑L and 199‑L of 2002).

Nemo for Respondents.

Date of hearing: 16th May, 2002.

2003 P L C (C. S.) 539

[Supreme Court of Pakistan]

Present: Javed Iqbal Sardar Muhammad Raza Khan and Falak Sher, JJ

Dr. MUHAMMAD HUSSAIN

Versus

PRINCIPAL, AYUB MEDICAL COLLEGE and another

Civil Petition No. 1635 of 2001, decided on 3rd October, 2002.

(On appeal from the judgment dated 25‑1‑2001 of the Peshawar High Court, Abbottabad Bench, passed in No.240 of 1997).

Civil service‑‑‑

‑‑‑‑Recruitment‑‑‑Promotion‑‑‑Alteration or amendment of the prescribed qualification by the‑Government‑‑‑Validity‑‑‑Government was competent to enhance, alter or amend the prescribed qualification for a particular post‑‑­No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post‑‑‑Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service‑‑‑Civil servant cannot claim vested right in other higher tiers in the hierarchy except for the post which the civil servant happened to hold‑‑‑Principles.

Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected to as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent and day to day changes in every walk of life scientific developments and increasing technical know‑how cannot be ignored.

No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the post which the civil servant happens to held, he cannot claim vested right in other higher tiers in the hierarchy.

In the absence of impairment of vested right, it would be within the exclusive competence of the Government to determine the terms and conditions of the service. It cannot be said that a rule which grants weightage to academic qualifications against experience is unreasonable and harsh. With the increasing emphasis on specialization and improved techniques and knowledge, the academic qualifications may be, granted greater weightage than the actual experience on the job without such qualifications.

Civil servant has no vested right whatsoever for promotion on the ground that there was do other competitor or on the basis of his satisfactory service record because it is for the Competent Authority to determine the suitability of a person for promotion after assessment of all relevant considerations i.e. seniority, competence, rectitude and qualifications. Rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date. Civil servant can neither have any vested right in respect of the terms and conditions of a post which was higher than the one which he was holding nor a change in the recruitment rules of the higher post can be said to operate against him retrospectively.

It is within the competence of Competent Authority to prescribe the requisite qualifications for a particular post as may be conducive to the maintenance of proper discipline and efficiency.

Contention that no amendment could be made in the regulation concerned which should be kept intact as it was at the time of the appointment of the employee, is devoid of any logic.

The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations. The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice.

The competent authority is fully competent to make amendment in the prescribed qualifications and by doing so no illegality whatsoever has been committed.

Government of N.‑W.F.P. v; Muzaffar Iqbal 1990 SCMR 1321; Government of West Pakistan v. Fida Muhammad PLD 1960 SC 45: Central Board of Revenue, Government .if Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 ; Province of West Pakistan v. Muhammad Akhtar 13LD 1962 SC 428; Manzur Ahmad v. Muhammad Ishaq PLD 1964 SC 17; Muhammad Umar Malik v. Federal Service 'tribunal and others PLD 1987 SC 172; Muhammad Ahmad v. Government of West Pakistan PLD 1971 SC 846; Muhammad Alsam Chishti v. Chairman, WAPDA 1984 PLC (C.S.) 21; Government of .Pakistan v. Fatehullah Khan PLD 1960 SC 105; Province of Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Habib Bank Ltd. and others v. National Industrial Relations Commission and others PLD 1988 SC 362 and Banarasidas v. State of Uttar Pradesh PLD 1956 SC (Ind.) 323 ref.

Sheikh Mehmood Ahmad. Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd October, 2002.

2003 P L C (C.S.) 545

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

GOVERNMENT OF SINDH

Versus

ILYAS KHICHI

Civil Petition for Leave to Appeal No.493‑K of 1999, decided on 28th April, 2000.

(On appeal from the judgment dated 26‑5‑1999 of Sindh Service Tribunal passed in Appeal No.74 of 1998).

Police Rules, 1934‑‑‑

‑‑‑‑R.12.8‑‑‑Civil Servants Act (LXXI of 1973), S.22‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑ Reinstatement‑‑ Probationer‑‑‑Right of appeal‑‑‑Civil servant was appointed in police and during his basic training, he was terminated from service on certain allegations‑‑‑Neither any show‑cause notice was issued, nor any opportunity was provided to the civil servant to defend himself‑‑‑Service Tribunal allowed the appeal and reinstated the civil servant in service‑‑‑Plea raised by the Authorities was that under the provisions of R.12.8 of Police Rules, 1934 a probationer could be discharged from service without any show‑cause notice‑‑‑Validity‑‑‑Officers against whom action was to be taken under R.12.8 of Police Rules, 1934 did not have any right of appeal but the officer being civil servant was governed by the provisions of Civil Servants Act, 1973‑‑‑Right of departmental appeal being provided to the civil servant under Civil Servants Act, 1973, the provisions of R.12 8 of Police Rules, 1934, could not prevail over the same‑‑‑Supreme Court declined to interfere with the order passed by Service Tribunal‑‑‑Leave to appeal was refused.

Government of Sindh v. Muhammad Hussain and 6 others 2000 SCMR 75 fol.

Ainuddin Khan A.A.‑G., Sindh and A.A. Siddiqui, Advocate on Record for Petitioners.

M.M. Aqil Awan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent.

Date of hearing: 28th April, 2000.

2003 P L C (C.S.) 547

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

ADMINISTRATOR, MUNICIPAL CORPORATION

Versus

MUHAMMAD ARSHAD and others

Civil Appeals Nos. 1420 to 1424 of 1998, decided on 23rd November, 2001.

(On appeal from the judgment dated 22‑5‑1998 of Lahore High Court Multan Bench, passed in Writ Petitions Nos.9997 of 1997, 10225 of 1997 336 of 1998, 334 of 1998, 1386 of 1998).

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

‑‑‑‑R.17‑A‑‑‑Notification No.S.R.III/2/42/92, dated 18‑2‑1997‑‑‑Local Government Letter No. S.O.II(LG) 10‑7/96‑P, dated 17‑1‑1995‑‑­Constitution of Pakistan (1973), Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider that whether the provisions of R. 17‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were applicable to the servants of the Municipal Corporation, that whether the letter/instructions applying the provisions of R.17‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, to Local Council employees had the effect of amending West Pakistan Municipal Committee Rules, 1969, and that whether the High Court was right in applying the provisions of R. 17‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, to the persons who were governed by West Pakistan Municipal Committees Service Rules, 1969.

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

‑‑‑‑R.17‑A‑‑‑Notification No.S.R.III/2/42/92, dated 18‑2‑1997‑‑‑Local Government Letter No. S.O.II(LG) 10‑7/96‑P, dated 17‑1‑1995‑‑‑Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983, R.22‑‑‑Employees of Municipal Corporation‑‑‑Provisions of West Pakistan Municipal Committees Service Rules, 1969‑‑‑Applicability‑‑­Contention of the Municipal Corporation was that its employees were governed by the provisions of West Pakistan Municipal Committees Service Rules, 1969, therefore, the provisions of R.17‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were not applicable‑‑‑­Validity‑‑‑Municipal Administration Ordinance, 1960, having been repealed, provisions of West Pakistan Municipal Committees Service Rules, 1969, were not applicable‑‑‑Employees of Municipal Corporation by virtue of R.22 of Punjab Local Councils Service (Appointment and Conditions of Service) Rules. 1983, were governed by R. 17‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Appeal was dismissed.

Farooq, Hassan Naqvi, Advocate Supreme Court with Mahmood A. Qureshi. Advocate‑on‑Record (absent) for Appellant.

Respondents: Ex parte (in C. As. Nos.1420 and 1424 of 1998).

Malik Ainul Haq, Advocate Supreme Court for Respondent No.2 (in C. A. No. 1421 of 1998).

N.A. Butt, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 1422 of 1998).

Date of hearing: 8th October 2001.

2003 P L C (C.S.) 552

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

IQTIDAR ULLAH BABAR

Versus

MUHAMMAD IQBAL and 3 other

Civil Petitions Nos. 184‑P and 185‑P of 2002, decided on 12th June, 2002.

(On appeal from the judgment/order dated 1‑4‑2002 passed by N.W.F.P. Service Tribunal, Peshawar in Appeal No.640 and 641 /Neem/2001).

North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Selection for post‑‑­Assessment of qualifications‑‑‑Service Tribunal, jurisdiction of‑‑‑Petitioner was selected by Departmental Selection Committee for the post of Assistant Professor Pathology‑‑‑Respondents filed appeal before Service Tribunal against the selection of the petitioner, which was allowed and the selection was set aside‑‑‑Controversy related to assessment of qualifications and experience of candidate to judge his suitability for the post‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Service Tribunal could competently reverse the selection made by Departmental Selection Committee and substitute its opinion regarding suitability of candidates by evaluating their qualifications and experience or while doing so it had acted in excess of its jurisdiction.

Qazi Atiqur Rehman, Advocate Supreme Court for Petitioner (in both Cases).

Hafiz S.A. Rehmaan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent No. 1 (in both Cases).

Mussarat Bilali, Addl. A.‑G., N.‑W.F.P. for Respondents Nos.2 to (in both Cases).

Date of hearing: 12th June, 2002.

2003 P L C (C.S.) 567

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

TAHIRA WAHEED

Versus

DIRECTOR‑GENERAL, GOVERNMENT EDUCATIONAL INSTITUTIONS, SIR SYED ROAD, RAWALPINDI and another

Civil Petition No. 1978 of 2000, decided on 15th April, 2002.

(On appeal from the judgment/order dated 21‑10‑2000 passed by Federal Service Tribunal, Islamabad in Appeal No.163(R)CS/2000).

Civil Servants (Revised) Leave Rules, 1980‑‑‑

‑‑‑‑Rr. 5 & 9‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.4(b)(iii)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Dismissal from service‑‑‑Absence without leave‑‑‑Ex‑Pakistan leave, failure to obtain No‑Objection Certificate‑‑‑Civil servant absented from duty without leave for more than two years and had gone abroad without obtaining No‑Objection Certificate for ex‑Pakistan leave‑‑‑Show‑cause notice was issued and he was dismissed from service under R.4(b)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Contention of the civil servant was that as No‑Objection Certificate was granted to .her to avail ex‑Pakistan leave, therefore, presumption would be that Competent Authority had also sanctioned/granted leave in her favour‑‑‑Validity‑‑‑Leave in favour of a person was sanctioned under Civil Servants (Revised) Leave Rules, 1980, after taking into consideration his/her leave account and if there was no leave found on his/her account, the civil servant would be entitled for leave without pay and on coming to such conclusion formula laid down under Rr. 5 & 9 of Civil Servants (Revised) Leave Rules. 1980, was to be followed‑‑‑If a Government Officer, without getting sanctioned leave in his/her favour, left the Department, he/she would do so at his/her own risk and in such a situation, the presumption would be that he/she was absent from duty‑‑‑Service Tribunal had rightly concluded that as the civil servant absented herself from the duty for a sufficient long period without getting sanctioned leave in her favour, therefore, she was rightly found guilty for major penalty of dismissal from service‑‑‑Supreme Court declined to interfere with the dismissal order‑‑‑Leave to appeal was refused.

Sardar Muhammad Siddique Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2003 P L C (C.S.) 569

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Syed QAMAR IQBAL RIZVI

Versus

GOVERNMENT OF PUNJAB and another

Civil Petition No.47 of 2000, decided on 1st April, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 3‑11‑1999 passed in Appeal No.2220 of 1999).

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

‑‑‑‑R.4(1)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Misconduct‑‑‑Use of funds without approval and sanction‑‑‑Dismissal front service‑‑‑Charge against the civil servant was that he made certain payments without prior approval of concerned Authorities‑‑‑Show‑cause notice was issued and then in consequence of departmental inquiry, the civil servant was dismissed from service‑‑‑Order of dismissal was maintained by the Service Tribunal‑‑­Validity‑‑‑Civil servant admitted making of such payments which was not only an irregularity but also constituted misconduct under Punjab Civil Servants (Efficiency and Discipline) Rules, 1974‑‑‑No factual or legal defect existed either in the order of the Competent Authority or in the judgment/order of Service Tribunal‑‑‑Supreme Court declined to interfere with the order passed by Competent Authority which was confirmed by Service Tribunal in appeal‑‑‑Leave to appeal was refused.

Raja M. Ibrahim Satti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate Supreme Court for Petitioner.

Farooq Aziz, Director for Respondent.

Date of hearing: 1st April, 2002.

2003 P L C (C. S.) 574

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmad Khan, JJ

GHULAM RASOOL

Versus

COMMISSIONER, LAHORE DIVISION, LAHORE and 2 others

Civil Petition No.3435‑‑L of 2001, decided on 15th April, 2002.

(On appeal from the order dated 3‑9‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1856 of 2000).

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

‑‑‑‑R.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal form service‑‑‑Admission of guilt‑‑‑Civil servant was charge‑sheeted oil the allegation of issuance of arms licences without sanction from the District Magistrate‑‑‑‑ Departmental inquiry was conducted against the civil servant and on his failure to reply the charge‑sheet satisfactorily major penalty of removal from service was recommended‑‑ ‑Competent Authority after affording opportunity of personal hearing to the civil servant, imposed major penalty of removal from service‑‑‑Service Tribunal declined to interfere with the order of dismissal passed against the civil servant‑‑‑Plea raised by the civil servant was that he had been falsely implicated in the case ‑‑‑Validity‑‑Proper procedure as laid down under Punjab Civil Servants (Efficiency anti Discipline) Rules 1975 had been adopted and the civil servant had beats removed from service in accordance with law after issuing him a charge-­sheet and holding preliminary and final inquiries in the matter with a chatter of personal hearing‑‑‑Inquiry reports revealed that the civil servant during personal hearing had admitted that he had prepared/issued a lot of arms licences and such fact was admission of guilt of the charges levelled against him‑‑‑Supreme Court declined to interfere with the order of dismissal‑‑­Leave to appeal was refused.

M.S. Baqir, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2003 P L C (C.S.) 577

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABDUL QAYYUM ABBASI

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and others

Civil Petition No.701‑L of 1999, decided on 21st May, 2002.

(On appeal from the judgment/order dated 18‑2‑1999 passed by Punjab Service Tribunal, Lahore in Appeal No.2818 of 1997).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Dismissal from service‑‑‑Reinstatement of colleague of civil servant in service‑‑‑Failure to participate in inquiry proceedings‑‑‑Civil servant was proceeded departmentally in pursuance of charge‑sheet‑‑‑During the inquiry proceedings, the civil servant was given sufficient opportunity to participate in the inquiry but he absented himself‑‑‑Civil servant was dismissed from service and the dismissal order was maintained by Appellate Authority as well as Service Tribunal‑‑‑Contention of the civil servant was that he had not been afforded proper opportunity of hearing and also contended that another colleague of him was reinstated in service thus he was also liable to be reinstated‑‑‑Validity‑‑‑Full opportunity was given to the civil servant but he himself did not participate in the proceedings‑‑‑Supreme Court declined to discuss the case of the colleague of the civil servant as it was not known as to what type of material was brought by the Department against him and under what circumstances he was reinstated in service‑‑­Leave to appeal was refused.

Hameed Azhar Malik, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Ms. Salma Malik, Addl. A.‑G. (Punjab) for Respondents.

Date of hearing: 21st May, 2002.

2003 P L C (C.S.) 585

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

Dr. Syed ABUL HASSAN NAJMEE

Versus

GOVERNMENT OF PUNJAB and others

Civil Petition No.262‑L of 1999, decided on 10th May, 2002.

(On appeal from the judgment dated 18‑12‑1998 passed by the Punjab Subordinate Judiciary Service Tribunal at Lahore High Court, Lahore in Service Appeal No.7 of 1993).

Punjab Subordinate Judiciary Service Tribunals Ordinance (II of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Government of Punjab Order No.E‑II.23‑6/85, dated, 11/17‑2‑1993 and Finance Department Circular No.FD‑SRI‑9‑3/86, dated, 20‑7‑1988‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Special allowances for persons having qualified as L.L.M. and Ph.D ‑‑‑Civil servant possessed L.L.M. degree and also qualified his Ph.D ‑‑‑Claim of the civil servant was that special allowance for L.L.M. be granted in addition to Ph.D. allowance‑‑‑Punjab Subordinate Judiciary Service Tribunal refused to grant the claim of the civil servant‑‑‑Validity‑‑‑No rule or policy decision of the Government existed which entitled the civil servant to the special allowance for L.L.M. degree in addition to Ph.D. allowance‑‑‑By placing a rider by Government of Punjab Order No.E‑II.23‑6/85 dated, 11/17‑2‑1993, the Government had neutralized its earlier letter dated 20‑9‑1990‑‑‑View taken by the Tribunal being reasonable and unexceptionable, Supreme Court declined to interfere with the same‑‑‑Leave to appeal was refused.

M. Anwar Ghumman, Advocate Supreme Court with Ch. Talib Hussain, Advocate‑on‑Record for Petitioner.

Ms. Fowzi Zafar, A.A.‑G. for Respondents.

Date of hearing: 10th May, 2002.

2003 P L C (C.S.) 589

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

GOVERNMENT OF SINDH

Versus

ABDUL SATTAR SHEIKH and others

Civil Petition for Leave to Appeal No.526‑K of 1999, decided on 27th April, 2000.

(On appeal from the judgment dated 6‑5‑1999 of High Court of Sindh, passed in Constitutional Petition No.1765 of 1995).

General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Civil service‑‑­Principle of locus poenitentiae‑‑‑Applicability‑‑‑Government issued a notification whereby promotion of respondents was ordered to take effect after a period of more than two years‑‑‑Respondents had enjoyed facilities emanating from the notification when another notification was issued and the facilities were withdrawn‑‑‑High Court decided the matter in favour of the respondents by holding that on the principle of locus poenitentiae the facilities/privileges could not be withdrawn and also observed that before issuance of second notification neither any notice was given to the respondents nor opportunity of being heard was afforded to them‑‑‑Plea raised by the Government was that the second notification was issued to rectify a mistake but failed to point out any mistake in the earlier notification‑‑‑Leave to appeal was refused.

Ainuddua Khan. Addl. A.‑G., Sindh for Petitioners.

Respondents Nos. 1 and 3 in person.

Date of hearing: 27th April, 2000.

2003 P L C (C.S.) 596

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan and Qazi Muhammad Farooq, JJ

MUHAMMAD HANIF

Versus

S.P. LAHORE and others

Civil Petition No. 1539‑L of 1998, heard on 20th November, 2002.

(On appeal from the order dated 3‑7‑1998 of the Punjab Service Tribunal, passed in Appeal No.517 of 1995).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Absence from duty‑‑‑Plea of illness‑‑‑Failure to appear before authorized Medical Officer‑‑‑Civil servant was a police constable and remained absent from duty without leave‑‑‑Reason advanced by him for his absence was his illness‑‑‑Competent Authority rejected the Medical Certificates produced by the civil servant on the ground that he failed to appear before the authorized Medical Officer and had not kept a constant link with his Department to avoid the possibility of any communication gap‑‑­Service Tribunal dismissed the appeal filed by the civil servant‑‑‑Plea raised by the civil servant was that the Medical Certificates could not be rejected summarily by the Authorities‑‑‑Validity‑‑‑Reasons given for dismissal of appeal of the civil servant were justified‑‑‑Leave to appeal was refused.

M. Anwar Ghuman, Senior Advocate Supreme Court and Mehdi Khan Mehtab. Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 20th November, 2002.

2003 P L C (C.S.) 598

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

DIRECTOR. PUBLIC INSTRUCTIONS (E.E.), PUNJAB and others

Versus

LIAQAT ALI KHAN

Civil Petition for Leave to Appeal No.3667‑L of 2001, decided on 8th May, 2002.

(On appeal from the judgment dated 25‑9‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2999 of 2000).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Arrears of salary, entitlement to‑‑‑Period consumed during departmental proceedings‑‑­Reinstatement in service‑‑‑Civil servant was dismissed from service on the allegation of absence without leave‑‑‑Order of dismissal was set aside by Departmental Appellate Authority and the civil servant was reinstated in service‑‑‑Salary qua the period during which the civil servant remained out of service was treated as extraordinary leave‑‑‑Service Tribunal found the civil servant entitled to the payment of arrears of pay for the period‑‑­Validity‑‑‑Competent Authority had set aside the order of dismissal from service of the civil servant being satisfied that the same was not passed in a proper manner‑‑‑If the civil servant was not at fault in any manner, he could not be deprived of his salary for the period during which his departmental appeal could not be decided by the Competent Authority in time‑‑­Authorities failed to raise question of law of general public importance as envisaged within the contemplation of Art.212(3) of the Constitution warranting interference by Supreme Court‑‑‑Leave to appeal was refused.

Malik Akhtar Hussain Awan, Additional Advocate‑General, Punjab with Muhammad Anwar Ghuman, Advocate Supreme Court for Petitioner.

Respondent in person.

Date of hearing: 8th May, 2002.

2003 P L C (C.S.) 616

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ALAMDAR HUSSAIN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others

Civil Petition No. 1507-L of 1999, decided on 6th June, 2002.

(On appeal from the judgment dated 18-6-1999 passed by the Punjab Service Tribunal in Appeal No.662 of 1998).

Constitution of Pakistan (1973)---

----Art.212(3)---Date of birth, correction of---Principles---Grievance of the civil servant was that inadvertently his year of birth had been recorded as 1939 instead of 1941---Correction was sought for the first time in the year 1998 which was denied by the Departmental Authorities as well as by Service Tribunal---Plea raised by the civil servant was that he had been serving in erstwhile East Pakistan and due to non-receipt of proper record from there his date of birth was wrongly entered in his service record--­Validity---Government employee under the relevant rules could not make prayer for correction of his date of birth after two years of joining of service---If the civil servant had valid claim regarding his date of birth he should have instituted proceedings for correction of his date of birth within the period of two years after coming back from East Pakistan and if it was not possible then at least should have agitated for correction of his date of birth within reasonable time---Presumption was that the civil servant was satisfied with his date of birth because he did not challenge the same at the earliest stage---Civil servant had full knowledge about such entry in his service record because his date of birth had been mentioned in Annual Confidential Reports---Despite acquiring knowledge, the civil servant did not agitate against such entry as such by his own conduct, he could not be allowed to change his stance after a considerable long period---Supreme Court declined to interfere with the judgment passed by Service Tribunal--­Leave to appeal was refused.

Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494 ref.

Syed Shabbar Raza Rizvi, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th June, 2002.

2003 P LC (C.S.) 707

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

Capt. ASIF ALI, DIVISIONAL ELECTRICAL ENGINEER, PAKISTAN

RAILWAYS DIVISIONAL SUPERINTENDENT OFFICE, KARACHI

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, ESTABLISHMENT

DIVISION, ISLAMABAD and 4 others

Civil Appeal No. 1232 of 1996, decided on 6th June, 2001.

(On appeal from judgment dated 16-10-1995 passed by the Federal Service Tribunal, Islamabad in Appeal No. 267(R) of 1995).

(a) Compulsory Service in the Armed Forces Ordinance (XXXI of 1971)---

----S.9-A [as inserted by. Compulsory Service; in the Armed Forces (Amendment) Ordinance (IV of 1978)]---Constitution of Pakistan (1973), Art. 212(3)--Supreme Court granted leave to appeal to render an authoritative decision on the question, of interpretation of S.9-A of Compulsory Service in the Armed Forces (Amendment) Ordinance, 1978.

(b) Compulsory Service in the Armed Forces Ordinance (XXXI of 1971)----

----Ss. 2(b), 4 & 9-A [as inserted by Compulsory Service is the Armed Forces (Amendment) Ordinance (IV of 1978)]---Compulsory Service in the Armed Forces Rules, 1971, R.13---Essential Personnel (Registration) Ordinance (X of 1948), S.2(a)---Constitution of Pakistan (1973), Art.212(3)---Ante-date seniority---Counting of period of compulsory service rendered in Armed Forces towards seniority in civil service---Appellant was appointed after the appointment of respondent, but he was shown senior to respondent in seniority list---Such ante-date seniority was allowed to appellant by Competent Authority under S.9-A of Compulsory Service in the Armed Forces Ordinance, 1971 for having rendered compulsory service in Pakistan Armed Forces ---Departmental appeal filed by respondent was dismissed, but his appeal before Service Tribunal was accepted---Contention of Establishment Division before Service Tribunal was that they used to consider the services rendered in Armed Forces towards seniority in other service up to year 1992, but subsequently such policy was amended and the officers were required to prove that such services were requisitioned for antedation of their seniority---No effort had been made by Tribunal to obtain details of such policy anti/or amends thereto be brought to bear upon facts and circumstances of the present case---Appellant's entitlement to benefit of his compulsory Army Service of 2-1/2 years towards seniority vis-a-vis respondent required reconsideration by Service Tribunal---Supreme Court accepted the appeal, set aside the order of Tribunal and remanded the case for its fresh decision in accordance with law and rules governing the case.

Dr. Rafique Ahmad 'Kolachi v. Government of Sindh and 3 others 1995 PLC (C. S.) 454 ref.

Hafiz S.A. Rehman Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.

M. Nawaz Bhatti, Deputy Attorney-General with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Shah Abdur Rashid, Advocate Supreme Court with Mehdi Khan Mehtab, Advocate-on-Record for Respondent No.5.

Date of hearing: 6th June, 2001.

2003 P L C (C.S.) 719

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Abdur Rehman Khan, JJ

NADEEM SHAHID and another

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 3 others

Civil Petitions for Leave to Appeal Nos.317 to 325, 412, 413, 472, 736 and 737-L of 1998, decided on 6th January, 1999.

(On appeal from. the judgment, dated 29-9-1997 passed by Lahore High Court, Lahore in I.C.As. Nos.665 of .1997, 749, 679, 754, 755, 757, 761, 767, 828, 669, 670, 680, 673 and 675 of 1997, respectively).

Master and servant--

---- Constitution of Pakistan (1973), Art. 185(3)---Contractual employment--­Termination from service----Principle of master and servant ---Applicability--­Services of petitioners were governed by the terms and conditions of contract which they executed at the time they entered the employment of the Insurance Corporation---Services could be terminated after giving 15 days' notice or salary in lieu of notice under the contract of service---Termination order was assailed before High Court in exercise of its jurisdiction under Art.199 of the Constitution---High Court dismissed the petition and Intra­-Court Appeal was also dismissed---Contention of the petitioners was that they had been discriminated as a large number of trainee executives similarly placed as the petitioners had been reinstated in service---Corporation counsel stated at the bar that no discriminatory treatment had been meted out to the petitioners and if any person similarly placed as the petitioners, was reinstated, the same treatment would be meted out to the petitioners--­Validity---Where the services of the petitioners were governed by the terms and conditions of the contract, the order of termination did not suffer from any legal infirmity---Subject to the statement made at the bar, on behalf of the respondent Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Secretary, Government of Punjab through Secretary, Health Department, Lahore v. Raizul Haq 1997 SCMR 1552 and Agha Salim Khurshid v. Federation of Pakistan 1998 SCMR 1930 ref.

Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Sher Zaman Khan, Deputy Attorney-General for Respondents

Date of hearing: 6th January, 1999.

2003 P L C (C.S.) 741

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ISHAQ NASRI

Versus

S.S.P., GUJRANWALA and others

Civil Petition No.951-L of 2000, decided on 2nd April, 2002.

(On appeal from the judgment dated 24-1-2002 passed by Service Tribunal, Lahore in Appeal No. 1467 of 2001).

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

----S.4---Constitution of Pakistan (1973), 4rt.212(3)---Dismissal from Service---Plea not raised earlier ---Effect---Contention of the civil servant was that no notice was legally served on him before imposing major penalty of dismissal---Such plea was neither raised before Departmental Appellate Authority nor in the grounds of appeal before .Service Tribunal---Civil servant even in the petition before Supreme Court raised no such ground--­Finding of fact recorded by Departmental Appellate Authority and Service Tribunal did not suffer from any legal infirmity---Civil servant was rightly dismissed from service ---No substantial question of law of public. importance was invoked as contemplated by Art.212 of the Constitution---Leave to appeal was refused.

Muhammad Farooq Bedar, Advocate Supreme Court, and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2002.

2003 P L C (C.S.) 759

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

RAHAT NASEEM MALIK

Versus

PRESIDENT OF PAKISTAN and others

Civil Petition No.732 of 2000, decided on 21st March, 2002.

(On appeal from the judgment/order dated 23-2-2000 passed by Federal Service Tribunal, Islamabad in Appeal No. 1137(R) of 1998).

(a) Civil service------

-----Inquiry Officer, function of---Native---Inquiry Officer performs, quasi­ judicial functions and is not supposed to pronounce a judicial verdict, as Judge of a Court of law is required to do so under recognized procedure laid down for conducting, legal proceedings.

(b) Civil service---

----Inquiry Officer and Criminal Court---Distinction between the procedure to be followed by a Court of criminal jurisdiction while determining the guilt or innocence of an accused and establishing a fact before an Inquiry Officer---Accusation before a Criminal Court has to be established by producing convincing and trustworthy evidence---Furnishing evidence of the same standard is not necessary before an Inquiry Officer, who exercises quasi-judicial jurisdiction, because acceptance or otherwise of its opinion by Competent Authority depends upon the nature of charge, material produced before it and the circumstances leading to draw inference may be on the basis of strong probabilitie? that officer charged for misconduct or -corruption has been found guilty.

High Court of. Judicature at Bombay through its Registrar v. Udaysingh and others AIR 1977 SC 2286 ref.

(c) Duty of Court---

----Court established under a statute is bound by the procedure prescribed for its function.

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

----R.3(c)(iii)---Reputation of civil servant---Determination---Deeds of a civil servant are considered sufficient to ascertain his reputation.

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

----S.5---Civil Procedure Code (V of 1908), S.141---Qanun-e-Shahadat (10 of 1984), Art.2(4)---Jurisdiction of Service Tribunal---Scope---Service Tribunal under S.5 of Service Tribunals Act, 1973, exercises the jurisdiction of a Civil Court under Code of Civil Procedure, 1908, which must be exercised judicially keeping in view the recognized principles of law--­ Service Tribunal can set aside ;the judgment challenged before it, if it is shown that the finding recorded by Inquiry Officer against the delinquent officer is perverse and is not supported by any legal evidence at all or the findings are not sustainable, because in view of the material available on record, no reasonable man could reach at the conclusion drawn by the Inquiry Officer.

Nand Kishore Prasad v. The State of Bihar and others AIR 1978 SC 1277 and Union of India v. H. C. Goel AIR 1964 SC 364

(f) Government servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(c), 4 (1)(b)(ii) & 5 (1)(iv)---Government Servants (Conduct) Rules, 1964, R.12---Service Tribunals Act (LXX of 1973), S.4---National Accountability Bureau Ordinance (XVIII of 1999), Preamble---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service---Such penalty was imposed on civil servant on finding him guilty of having persistent reputation of being corrupt; assuming the style of living beyond his means of income; and pecuniary assets as declared in Annual Declaration of Assests were disproportionate to his known means of income---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---Inquiry Officer had mainly relied upon documentary evidence produced before him by Department including the Declaration of Assets and Returns of Wealth Tax of civil servant, the evidentiary value of which could not legitimately be denied by him as they were bearing his signatures---Comparison of both said documents led to draw an inference that civil servant had sufficient financial resources at his disposal on the basis of which, he and his wife bad been acquiring movable and immovable assets---Civil servant had no other legitimate source of income except his salary, and against such limited source of income, he had been procuring valuable assets besides supporting his family. members including incurring expenditures on education etc. of children as well as pleasure trips to United States of America, United Kingdom and Canada with family---Civil servant had obtained ex-Pakistan leave on the pretext of his going abroad for medical check up, whereas no such check up had taken place over there---Conduct of civil servant during service could be visualized from such aspect alone---Civil servant had taken different stands to justify resources of his income on the basis of which he acquired movable and immovable assets---Civil servant to provide cover to his investments as declared in Declaration of Assests and Returns of Wealth Tax had shown his income from prize bond winnings and saving from salaries etc. but without mentioning in Returns of Wealth Tax their details, exact figures of cash in hand and other generating funds---Such discrepancies were sufficient to opine against civil servant with reference to charge of corruption ,etc.---Findings of Inquiry Officer were tot based on conjectural surmises, who after considering the view-point of civil servant in the light of material/evidence ,available on record, had not agreed with the same for strong reasons---Competent Authority had awarded mild punishment of compulsory retirement from service, meaning thereby that civil servant had been allowed to enjoy pensionary benefits besides perpetuating his action in pursuance whereof he had accumulated huge assets in his name as well as in the name of his wife, because no criminal case had. been proposed against him for retrieving illegal gains as well as for awarding him substantial punishment of imprisonment on account of having indulged into corruption and corrupt practices on the basis of which he had been removed from service---Service Tribunal after taking into, consideration material available on record had judiciously disbelieved the plea of civil servant and had maintained his penalty---No case was made out for interference on this score as well'--Supreme Court refused to grant leave to appeal and dismissed the petition with directions to Competent Authority to. initiate proceedings of criminal nature against the civil servant as well.

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

----Rr. 3(c), 4(1)(b) & 5---National Accountability Bureau Ordinance (XV1II of 19.99), Preamble---Constitution of Pakistan (1973), Art.212(3)---Charge of corruption/corrupt practices---Retrieval of assets from civil servant--­Supreme Court emphasised that Inquiry Officer while recommending adverse action against delinquent officer should also simultaneously recommended for registration of criminal case against such officer and if need be Government Servants (Efficiency and Discipline) Rules, 1973, should. be amended suitably by invoking golden principle of Islamic justice of rewards and punishment in Government Department.

Corruption has become a menace for the society notwithstanding the fact, whether it is committed by the Government Officers/officials or anyone else and no drastic actions have ever been suggested against them to retrieve the assets except recently when by promulgating National Accountability Ordinance, against some of them action has been initiated before the criminal Courts of justice. Therefore, in order to curb such menance of the society it is high time to suggest stringent measures which are required to be taken by the competent authority while disposing of the disciplinary measures against delinquent officers) if it has been decided to accept the opinion of Inquiry Officer who has recommended adverse action against him/them under the Government Servants (Efficiency and Discipline) Rules, 1973, he should also simultaneously recommend for registration of a criminal case against such officer and to achieve the object if need be the Efficiency and Discipline Rules should be amended suitably by invoking the golden principle of Islamic justice. of rewards and punishment in the Government Department.

Supreme Court directed that copy of the judgment be sent to Secretary, Establishment Division for examining possibility to amend Government Servants (Efficiency and Discipline) Rules, 1973 in view of the observations made hereinabove.

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

----Art. 2(1)(d)(4)---Opinion rendered by Inquiry Officer on a point---Its value---Such opinion is not a final verdict to decide the fate of parties arrayed before it for determination of a particular question---Where Inquiry Officer assesses/estimates on the basis of evidence before him that the point requiring determination has been established, and if his such opinion/verdict is acceptable to a prudent man, then under Qanun-e-Shahadat, 1984, it can be deemed that fact has been proved accordingly.

K.M.A. Samdani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Sardar Muhammad Aslam, Deputy Attorney-General and Ch. Akhtar Ali, Advocate-on-Record for Respondents. , Dates of hearing: 12th and 13th March, 2002.

2003 P L C (C.S.) 776

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

IFTIKHAR AHMAD QURESHI

Versus

GOVERNMENT OF PAKISTAN through Mrs. Nargis Sethi Joint Secretary, Ministry of Defence, Aviation Division, Rawalpindi and 3 others

Civil Petition No.2255-L of 2000, decided on 29th March, 2002.

(On appeal from the judgment dated 23-6-2000 of Lahore High Court, Lahore passed in W.P. No. 795 of 2000).

Pilots Occupational Disability Fund Bye-Laws---

----Para. 17---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional petition before High Court---Petitioner while serving as Cadet Pilot in Pakistan International Airlines Corporation was declared by its Medical Review Board to be permanently unlit for renewal of Commercial/Private Pilot Licence on the ground of suffering from "Perceptual and Cognitive Deficit" (socia-pathic personality disorder)---High Court dismissed the Constitutional petition filed by petitioner ---Validity--­Respondents had afforded full opportunity to petitioner to produce his documents and put up his case before Medical Review Board. but he tailed to substantiate his claim that hef was medically fit and able for renewal of commercial licence---Other Flight Engineers and Pilots, who had been found fit, had been taken on their duties, whereas petitioner had not been declared fit, thus, petitioner had not been discriminated---Petitioner had voluntarily received his entire claim from Insurance Company for the loss of his license---Petitioner in such situation could not maintain Constitutional petition and reagitate his claim---Supreme Court refused to grant leave to appeal and dismissed the petition being devoid of force.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859 ref.

S. M. Masud, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Kh. Saeeduzzafar, Deputy Attorney-General for Respondents.

Date of hearing: 14th March, 2002.

2003 P L C (C.S.) 796

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry,. Qazi Muhammad Farooq, Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

CIVIL APPEALS NOS. 533 TO 539 AND

1396 TO 1663 OF 2002.

MANAGING DIRECTOR, SUI SOUTHERN GAS COMPANY LTD., KARACHI

Versus

GHULAM ABBAS and others

(On appeal from the judgment/order dated 31-5-2001 and 5-4-2002 passed by Federal Service Tribunal, Islamabad in Appeals Nos.1105 (R) to 1110 (R) and 1165 (R) of 1999 and 438 (R)(CE) to 460(R)(CE), 757(R)(CE) to 763(R)(CE), 774(R)(CE), 852(R)(CE) to 858(R)(CE), 860(R)(CE) to 865(R)(CE), 871(R)(CE) to 874(R)(CE), 876(R)(CE) to 877(R)(CE), 879(R)(CE), 881(R)(CE) to 886(R)(CE),. 888(R)(CE), 891(R)(CE) to 893(R)(CE). 895(R)(CE) to 897(R)(CE), 1229(R)(CE) to 1233(R)(CE), 351(R)(CE), 535(R)(CE), 538(R)(CE), 545(R)(CE) 4nd 546(R)(CE), 1099(R)(CE), 734(R)(CE) to 736(R)(CE) of 2000, 363(R)(CE) to 368(R)(CE) of 2001, 642(R)(CE) to 646(R)(CE), 1083(R)(CE), 1168(R)(CE) to 1170(R)(CE), 1181(R)(CE) and 1182(R)(CE); 1205(R)(CE), 658(R)(CE), 659(R)(CE), 976(R)(CE) of 2000, 339(R)(CE) to 341(R)(CE) of 2001, 461(R)(CE) to. 507(R)(CE), 764(R)(CE) to 805(R)(CE), 866(R)(CE) to 869(R)(CE), 899(R)(CE) to 916(R)(CB), 918(R)(CE) to 931(R)(CE), 933(R)(CE), 935(R)(CE), 943(R)(CE), 1234(R)(CE) to 1236(R)(CE), 1274(R)(CE), 1279(R)(CE), 539(R)(CE) to 544(R)(CE), 1097(R)(CE) and 1098(R)(CE), 737(R)(CE) to 739(R)(CE) of 2000, 21(R)(CE), 369(R)(CE) to 372(R)(CE) of 2001, 386(R)(CE) of 2001, 1118(R)(CE) to 1120(R)(CE), 1154(R)(CE), 1166(R)(CE), 1167(R)(CE), 638(R)(CE) to 641(R)(CE), 660(R)(CE), 812(R)(CE), 1158(R)(CE), 1159(R)(CE). 1172(R)(CE), 1202(R)(CE), 656(R)(CE) and 870(R)(CE) of 2000).

CIVIL PETITIONS NOS. 25 TO 44 OF 2002

MUHAMMAD TAHIR ACHAKZAI and others

Versus

MANAGING DIRECTOR, SUI SOUTHERN GAS

COMPANY LTD. and others

(On appeal from the judgment/order dated 8-11-2001 passed by Federal Service Tribunal, Islamabad in Appeals No. 4(Q)(CE) to 25(Q)(CE) of 2001).

CIVIL PETITIONS NOS. 1779 TO 1810 AND 1812 OF 2002

MANAGING DIRECTOR, SUI SOUTHERN

GAS COMPANY LTD., KARACHI

Versus

GHULAM SHABBIR and others

(On appeal from the judgment/order dated 21-8-2002, 26-8-2002 and 6-9-2002 passed by Federal Service Tribunal in Appeals Nos.89 (K)(CE) to 97(K)(CE), 156(K)(CE) to 225(K)(CE), 230(K)(CE), 231(K)(CE), 235(K)(CE), 247(K)(CE) to 249(K)(CE) of 2001 and 230(K)(CE) of 1999).

CIVIL PETITIONS NOS. 1850, 1861 TO 1914, 1992 TO 2040, 2051 TO 2100, 2117 TO 2161, 2169 TO 2317 AND 2327 OF 2002

MANAGING DIRECTOR, SUI SOUTHERN

GAS COMPANY LTD.

Versus

MUHAMMAD SALEH and others

(On appeal from the judgment/order dated 29-7-2002, passed by Federal Service Tribunal in Appeals Nos. 109(R)(CE), 352(R)(CE), 509(R)(CE) to 537(R)(CE), 547(R)(CE) to 549(R)(CE), 647(R)(CE) to 655(R)(CE), 740(R)(CE) to 754(R)(CE), 806(R)(CE) to 808(R)(CE). 811(R)(CE), 937(R)(CE) to 942(R)(CE), 944(R)(CE) to 1060(R)(CE), 1082(R)(CE), 1084(R)(CE) to 1095(R)(CE), I100(R)(CE) to 1103(R)(CE), 1109(R)(CE), 1114(R)(CE), 1115(R)(CE), 1121(R)(CE) to 1153(R)(CE); 1155(R)(CE) to 1157(R)(CE), 1164(R)(CE), 1165(R)(CE), 1171(R)(CE), 1173(R)(CE), 1180(R)(CE), 1191(R)(CE) to 1201(R)(CE), 1203(R)(CE), 1204(R)(CE), 1209(R)(CE) to 1228(R)(CE), 1239(R)(CE), to 2000 620R(R)(CW), 22(R) (WE) to127(R)R(CW)) 330(R)(CW) to 338(R)(CW), 376(R)(CW) to 380(R)(CW),.342(R)(CW) to 347(R)(CW), 349(R)(CW), 361(R)(CW), 392(R)(CW) to 402(R)(CW), 405(R)(.CW), 406(R)(CW), 454(R)(CW) to 472(R)(CW), 505(R)(CW), 506(R)(CW), 509(R)(CW), 513(R)(CW), 514(R)(CW), 519(R)(CW), 526(R)(CW), 527(R)(CW), 529(R)(CW), 533(R)(CW) to 535 of 2001).

CIVIL PETITIONS NOS.762 TO 765, 1219 TO 1225, 1242 TO 1244, 1294 TO 1298, 1364 TO 1366 OF 2002

AND 2792 TO 2798 AND 2801 OF 2001, Engr: MUHAMMAD NAWAZ PANHWAR

and others

Versus

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

(On appeal from the judgments/orders dated 29-3-2002, 16-4-2002, 14-5-2002, 27-7-2001, passed by Federal Service Tribunal in Appeals Nos, 544(K)(CE), 550(K)(CE), 551(K)(CE), 710(K)(CE)?575(K)(CE) 577(K)(CE), 632(K)(CE), 575(K)(CE), 577(K)(CE); 632(K)(CE), 639(K)(CE), 641(K)(CE) 576(K)(CE), 633(K)(CE), 640(K)(CE) of 2000, alongwith 252(K)(CE), 253(K)(CE), 260(K)(CE), 261(K)(CE), 262(K)(CE), 266(K)(CE), 508(K)ECE), 254(K)(CE), 258(K)(CE), 265(K)(CE), 895(K)(CE) to 902(K),(CE) of 2001).

CIVIL REVIEW PETITION NO. 420 OF 2001

MAKHDOOM TANVIR AHMAD

Versus

MANAGING DIRECTOR, SUI SOUTHERN

GAS COMPANY LTD.

(On review from the judgment of this Court dated 22nd October, 2001 passed in Civil Petition No.985 of 2001).

CIVIL REVIEW PETITIONS NOS, 421 AND 431 OF 2001.

Dr. ANWAR ALI SANTO and others

Versus

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

(On review from the judgment of this Court dated 22nd October, 2001 passed in Civil Appeals Nos. 366, 374, 376 and 367 of 2001).

CIVIL REVIEW PETITION NO.426 OF 2001

MUHAMMAD AKRAM and others

Versus

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

(On review from the judgment of this Court dated 22nd October, 2001 passed in Civil Petitions Nos. 745 to 760 of 2001).

CIVIL REVIEW PETITIONS NOS. 427, 428, 430 AND 432 OF 2001

MUNAWAR ALI and others

Versus

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

(On review from the judgment of this Court dated 22nd October, 2001 passed in Civil Appeals Nos. 613 to 637, 1877 to 1881, 1883 to 1886, 1889, 1890, 1892 to 1894, 1896, 1900, 1901, 1905, 1908 to 1911, 1913, 1914, 1916, 1917, 1920, 1934 to 1946, 1949, 1951, 1953, 1954, 1956, 1960, 1962 to 1967, 1969, 1972, 1973, 1975, 1977 to 1983, 1985, 1988, 1190 to 1992, 1994, 1998, 2001, 2002, 2004 to 2007, 2009, 2013, 2014, 2016 to 2022, 2026, 2027, 2029, 2030, 2032, 2035, 2037, 2038, 2040, 2043 to 2051, 2053, 2055, 2057, 2058, 2061 to 2067, 648 to 654 of 2001 and C. P. No. 120 of 2001). .

CIVIL REVIEW PETITION N0.429 OF 2001

EJAZ ALI MUGHERI and others

Versus

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

(On review from the judgment of this Court dated 22nd October, 2001 passed in Civil Petitions Nos. 1-263 to 1284, 1286 to 1290, 1292, 1293 , 1295 to 1341 of 2001).

Civil Appeals Nos.533 to 539, 1396 to 1663 of 2002, Civil Petitions Nos.25 to 44, 1779 to 1810, 1812, 1850, 1861 to 1914, 1992 to 2040, 2051 to 2100, 2117 to 2161, 2169 to 2317, 2327, 762 to 765, 1219 to 1225, 1242 to 1244, 1294 to 1298, 1364 to 1366 of 2002, 2792 to 298, 2801 of 2001, Civil Review Petitions Nos. 420, 421, 431, 426, 427, 428, 430, 432 and 429 of 2001, decided on 2nd May, 2003.

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by the Supreme Court to consider whether Federal Service Tribunal while exercising powers conferred upon it under S.5, Service Tribunals Act, 1973 viz. to confirm, set aside, vary or modify the order appealed against, could direct the employer-Company for regularisation/absorption of the employees of the Company; whether one member of the Service Tribunal having already retired from service could sit as a member of the Tribunal and whether his sitting in the Bench rendered the impugned judgment as coram non judice, unlawful and without jurisdiction and whether the law laid down by the Supreme Court in the cases of the Managing Director, Sui Northern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Sui Southern Gas Company Ltd. v. Engr. Naraindas and others PLD 2001 SC 555 and Abdul Samad v. Federation of Pakistan and others 2002 SCMR 71 was correctly appreciated and applied by the Service Tribunal.

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

----S. 3-A---Benches of the Tribunal---While conducting hearing the status of a Chairman was also of a Member; whereas S.3-A(2)(a) & (b) of the Act, provided that the decisions were to be pronounced by the majority of the Members and in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion was expressed by him, would have supremacy and constitute the decision of the Tribunal--?Judgment, in the present case, had been authored by the Chairman and all the members had concurred with him, therefore, presuming that one member joined the proceedings without lawful authority but nevertheless said judgment could sustain, as the same had been rendered by the Bench comprising more than two members of the Tribunal and apprehension of influencing the judgment by the said Member (retired) stood excluded as the judgment was authored by a former Judge of the High Court being the Chairman of the Service Tribunal and could be treated to have been delivered validly under de facto doctrine---Said Member, immediately before his retirement had been performing .same functions, therefore, it would be deemed that in exercise of the same powers in good faith be associated himself in the proceedings---Inclusion of the said Member as .member of the Bench, had also not caused prejudice to any of the parties because he had not authored the judgment nor there was any likelihood of his having influenced the judgment in any manner as the same was authored by the Chairman and remaining two Members of the Bench had concurred with him:

Constitutional Limitations by Colly, 8th Edn., Vol.2, p.137; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture PLD 1970 SC 98; Gikaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473 and Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161 quoted.

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

----Ss. 4 &. 2-A---Sui Southern Gas Transmission Company Limited Executive Service Rules, 1982, Rr. 6.1, 6.2 & 6.3----Appeal--?Jurisidetion of Service Tribunal---Scope---Probationers, who were put to jobs in pursuance of letters by the Government which controlled Employer Company had served in their respective capacity for a period of more than 4/5 years entirely to the satisfaction of employer and nothing adverse had been brought against them on record---Employer, abruptly vide letters of different dates, issued orders of discontinuation of their assignments--Service Tribunal allowed the appeals of such probationers against the order of the employer---Validity---Employer Company, on completion of initial period of one year, extendable for another period of one year, under Rr. 6.1, 6.2 & 6.3 of the Sui 'Southern Gas Transmission Company Limited Executive Service Rules 1982 was bound either to terminate services of the probationers if their work and conduct were found unsatisfactory or to confirm them against the posts which were held by them---Probationers had completed successfully their period of probation as letter of termination did not indicate that on account of their unsatisfactory performance, they. were removed from service---Probationers, therefore, on having completed the period -of 2 years of probation successfully would be deemed to have attained the status of civil servants for the purpose of S.2-.A, Service Tribunals Act, 1973, conferring thereby jurisdiction upon the Service Tribunal to grant them relief under S.4, Service Tribunals Act, 1973---Principles.

On completion of initial period of one year, extendable for another period of one year, under Rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the Sui Southern Gas Co. Ltd: the Employer Company was bound either to terminate the services of the probationers if their work and conduct were found unsatisfactory or to confirm them against the posts which were held by them. The probationers had completed successfully their period of probation as the letter of termination of their services did not indicate that on account of their unsatisfactory performance, they were removed from service, therefore, on having completed the period of 2 years of probation successfully it would be deemed that they had attained the status of civil servants for the purpose of section 2-A of the Service Tribunals Act, 1973, conferring thereby jurisdiction upon Service Tribunal to grant them relief under section 4 of the said Act; 1973.

Since the question relating to the termination of. services of the probationers related to the terms and conditions of their service, they were free to approach Service Tribunal for redress of their grievance.

Right to approach the Service Tribunal by an employee of an Authority, Corporation, Body or Organization, established by or under the Federal Law or which was owned or controlled by Federal Government or in which Federal Government had controlling shares or interest was conferred vide section 2-A inserted by means of Service Tribunal (Amendment) Act, 1997 w.e.f 10th June, 1997, according to which the employees of such Corporation, etc. would be deemed to be civil servants for the purpose of Service Tribunals Act, 1973.

Benefit of section 2-A was not extendable only to regular employees of such Organization but also to the employees who were on contract or workmen Distinction may be noted that under the Civil Servants Act, an employee, who was working on contract basis, does not fall within the definition of civil servant but by promulgating section 2-A of the Act, 1973 such right had been conferred upon the contract employees as well as on workmen.

If an employee who is in the employment on contract or enjoys status of workman in the organization is covered by section 2-A of the Act, 1973 and is deemed to be a civil servant, then why the probationers who had completed the period of probation of two years under the Executive Service Rules of Sui Southern Gas Co. Ltd. successfully could not be treated to be civil servants, eligible to seek relief from the Service Tribunal under section 4 of the Act, 1973.

There should not be any doubt in any manner of whatsoever nature that the Employer Company had framed these rules itself, therefore, it was bound to follow the same. The Company was bound to confirm/absorb/regularize the probationers, if they had completed the probation period satisfactorily. Since in, the present cases, probationers were allowed to hold the posts assigned to them on completion of training of six months, for a period of more than two. years, therefore, presumption would be that on having completed the period of probation satisfactorily, they had acquired the status of regular employees of the Company, being controlled by the Government, and they would be deemed to be the civil servants under section 2-A of the Service Tribunals Act, 1993. Thus, Service Tribunal had entertained their appeals lawfully under section 4 of the Service Tribunals Act, 1973.

Managing Director, SW Northern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others PLD 2001 SC 176; Abdul Samad v. Federation of Pakistan and others 2002 SCMR 71; Engineer Narain Das and others v. Federation of Pakistan and others 2002 SCMR 82; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 and Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826.ref.

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

----Ss. 5 & 4---Powers of Service Tribunal ---Scope---Appeal--?Expressions 'confirm', 'set aside' or 'modify the order appealed against' and 'vary'---Connotation---Contention of the employer was that Service Tribunal could not order absorption in service of an employee while deciding an appeal---Validity---Service Tribunal, had vast jurisdiction to redress the grievance of the person before it---Service Tribunal, in the present case, had given such direction in the context of termination order and it had not determined the fitness or otherwise of the employees to be appointed or to hold a particular post, contention, therefore, was misconceived and the Service Tribunal had not exceeded its jurisdiction-?Principles.

Adverting to the question whether an employee can be ordered to be absorbed in the service by the Tribunal while deciding an appeal, the expressions used in section 5(1) of the Act namely confirm, set aside or modify the order appealed against, are understandable in ordinary sense but expression "vary" needs to be defined to ascertain the powers of Tribunal. As per Shorter Oxford English Dictionary "vary" includes the meaning of 'to undergo change or alteration, to pass from one condition, state etc. to another, to differ in respect of statement to give-?-Undoubtedly if this definition is accepted there would be no difficulty in concluding that the Service Tribunal had vast jurisdiction to redress the grievance of the person before it.

Powers of Service Tribunal tinder section 5 of the Act are very wide and all questions of laws and facts arising therein are open to be gone into by the Tribunal. The Service Tribunal while hearing such an appeal has full power to confirm, alter, set aside or modify the order of Departmental Authority keeping in view the facts and circumstances of the case and to meet the ends of justice.

Tribunal had very wide powers and all questions of law arising therein can be gone into by the Tribunal and the only limitation on the powers of the Service Tribunal is that it should satisfy the test of reasonableness.

Tribunal had given such direction in context of termination order and it had not determined the fitness or otherwise of the employees to be appointed or to hold a particular post and the contention that Service Tribunal could not order to absorb the employees in service was misconceived and the Tribunal had not exceeded its jurisdiction.

In the present case, the probationers, on completion of training period, were entitled to change over to regular employment of the Company because they had successfully completed their training and such incorporation to regular cadre had become necessary because despite of completing training period of six months they were not being absorbed against regular cadre of the company and their fate was hanging fire despite the tact that they had also completed the period of probation entirely to the satisfaction of the employer as termination order of service disclosed nothing adverse against, them. Thus-in view of the facts and circumstances of the case the Tribunal had jurisdiction to grant such relief.

The probationers naturally had an expectation of posting after the completion of pre-service training of six months but the company for one reason or the other did not absorb them against the regular cadre and kept the running from pillar to post but without any, success as ultimately after lapse of 7/8 years when they had become over-age to join arty Government service in Pakistan they were shown door with ulterior motives for no other reason except that till then their absorption in the regular cadres had become 'mandatory. Therefore, simpliciter reinstatement of the probationer in service by the Service Tribunal would have not met the ends of justice. As such in exercise of the powers conferred upon the Tribunal directions were made to absorb the employees of Company into the regular cadres.

Shorter Exford English Dictionary; Pakistan Railways through General Manager v. Ghulam Rasool 1997 SCMR 1581; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Managing Director, Sui Northern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others PLD 2001 SC 176; Engineer Narain Das and others v. Federation of Pakistan and others 2002 SCMR 82 and Abdul Samad v. Federation of Pakistan and others 2002 SCMR 71 ref.

Mian Abdul Malik v. Dr. Sabir Zamer Siddiqui and 4 others 1991 SCMR 1129; Z.A. Javed Raja v. Secretary, Establishment Division, Islamabad and 3 others 1996 PLC (C.S.) 360 and Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 143 distinguished.

(e) Civil service----

---- Terms "reinstatement" and "absorption" were distinct and different from each other---[Dr. Anwar Ali Sahto and others v. Federation of Pakistan sand others PLD 2002 SC 101 dissented from].

Terms reinstatement' andabsorption' are distinct and different from each other, even as per dictionary meanings. As far as reinstatement is concerned it would mean to restore or replace in last position, privileges, etc., whereas absorption means disappearance through incorporation in something else.

Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 dissented from.

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

----Ss. 4 & 5---Sui Southern Gas Transmission Company Limited Executive Services Rules,. 1982, Rr. 6.1, 6.2 & 6.3---Cases of all employees of Sui Southern Gas Transmission Company Ltd. covered by Sui Southern Gas Transmission Company Ltd. Executive Service Rules, 1982, notwithstanding the fact whether they were appointed as Trainee Engineers or Management Trainees or in any other capacity, were covered by the binding effect of Supreme Court judgment in Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176.

Managing Director. Sui Northern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others PLD 2001 SC 176 ref.

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

----Ss.4 & 5---Sui Southern Gas Transmission Company Limited Executive Service Rules. 1982, Rr.6.1, 6.2 & 6.3---Appointments of probationer, in the present case, were made with reference to their applications and subsequent tests/interviews which meant that they were also recruited on merits---Contention of the employer company that probationers got their appointments due to political influence did not seem to be correct in view of the procedure followed in giving the appointments to them, however, for any flaw or defect in the appointments as far as the probationers were concerned, they could not be blamed.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 ref.

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

----Ss.2-A & 4----Civil Servants Act (LXXI of 1973), S.2(2)---Sui Southern Gas Transmission Company Limited Executive Service Rules, 1982, Rr.6.1, 6.2 & 6.3---Appeal---Employees of the Company were not governed by statutory rules-neither they were civil servants as per its definition under S.2(2), Civil Servants Act, 1973 nor there was any provision in their Service Rules for filing appeal/representation--?They were covered by S.2-A, Service Tribunals Act, 1973 and were not obliged to file departmental appeal before approaching the Service Tribunal for redressal of their grievances.

Syed Aftab Ahmad and others v: K.E.S.C. 1999 SCMR 197; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 ref.

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

----Ss. 2-A & 4---Appeal---Civil servant under the provision of S.2-A, Service Tribunals Act, 1973 can directly approach the Service Tribunal within 30 days under SA(1), Service Tribunals Act. 1973 after passing of original order without filing departmental appeal or representation under S.4, proviso of the Service Tribunals Act, 1973.

Syed Aftab Ahmad and others v. K.E.S.C. 1999 SCMR 197; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan -International Airlines Corporation, Karachi and others 2002 SCMR 1034 ref.

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

----S.4(1)---Sui Southern Gas Transmission Company Limited Executive Service Rules, 1982, Rr.6.1, 6.7 & 6.3---appeal by employees of the company ---Limitation---Condonation of delay---If an employee of the company had filed a departmental appeal or representation, departmental appeal or representation being not competent, if some delay had been caused due to waiting the result of representation the same was liable to be condoned.

Government of Sindh v. Masood Hussain 2002 PLC (C.S.) 752 ref.

(k) Limitation-----

---- Administration of justice---Decision of the cases on merits always to be encouraged instead of non-suiting the litigants for technical reasons including on limitation.

Muhammad Yaqub v. Pakistan Petroleum Limited and another 2000 SCMR 830; Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD 2001 SC 980; Teekam Das M. Haseja, Executive Engineer, WAPDA v. Chairman, WAPDA 2002 SCMR 142 and WAPDA v. Muhammad Khalid 1991 SCMR 1765 ref.

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

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.212 --- Appeal to Service Tribunal ---Condonation of delay by the Tribunal---Validity---Interference by Supreme Court in the order of the Service Tribunal, condoning the delay in filing appeal before it would not advance the cause of justice.

Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 fol.

Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645 ref.

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

----Ss.5 & 4---Sui Southern Gas. Transmission Company Limited Executive Service Rules, 1982, Rr.6.1, 6.2 & 6.3---Constitution of Pakistan (1973), Art. 25---Powers of Service Tribunal ---Scope--?Appeal---Service Tribunal had jurisdiction to direct the employer ?Company for absorption of the employees of the Company who were litigating with it---Equal protection of law ---Persons similarly situated or similarly placed were to be treated alike and could not be discriminated against under. Art.25 of the Constitution and would be entitled to the same relief which had been given to the other employees whose services were terminated or under the same circumstances as they belonged to the same group---Observations of the Service Tribunal made in the judgment with regard to the similarly placed person being discriminatory were expunged by the Supreme Court---Employees thus could not be directed to qualify IBA test for permanent section in service of the company.

Managing Director, Sui Northern Gas Co. , v. Saleem Mustafa Sheikh and others PLD 2001 SC 176; Engineer Narain Das and? others v. .Federation of Pakistan and others 2002 SCMR 82; Abdul Samad v. Federation of Pakistan and others 2002 SCMR 71; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Messrs Elahi Cotton Mills and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994 ref.

(n) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S. 1(4)---Employees falling within the definition of "workman" as per S.1(4), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would enjoy the protection of the said Ordinance and their services would not be governed by the principle of master and servant.

Mst. Zeba Mumtaz v. -First Women Bank Ltd. and others PLD 1999 SC 1106 and WAPDA v: Khanimullah and others 2000 SCMR 879 ref.

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

----S. 2-A & 4---Wes, Pakistan Industrial and Commercial Employment (Standing Orders; Ordinance (VI of 1968), S.1(4)---Industrial Relations Ordinance (XXIII of 1969), S. 1(3)---Employees of a Government Controlled Company commenced their services with the said Company in 1994-1995 and continued the same for a considerably long period---Such employees, at that time enjoyed the protection of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, Labour Courts established under Industrial Relations Ordinance, 1969 had jurisdiction for the redressal of their grievance but on 10th June, 1997 on insertion of S.2-A in the Service Tribunals Act, 1973 the forum was changed in respect of an organization, corporation etc. owned/controlled by the Government and the remedy for redressal of their grievancewas provided to them before the Service Tribunal without toughing to substantive laws under which their services were being governed---Service Tribunal, therefore, while dealing with the cases of workmen, shall decide their cases according to Labour Laws by applying procedure envisaged under S.4 Service Tribunals Act, 1973.

(p) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----

----S.O. 1(b)---Permanent workman,---Determination-- Record showed that neither there was any specific project against which the employees were recruited/appointed, nor the project against which their appointments had taken place, had peen completed---Inference thus could be drawn that the employees were pat on the jobs which were likely to continue for a period of more titan nine months, as such in view of provisions of S.O.1(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, they had attained the status of a permanent workman.

Deputy Director, Administration and Coordination, Faisalabad Development Authority and another v. Muhammad Amin and others 1995 SCMR 21 and Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore 1999 SCMR 2557 ref.

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

----Ss. 2-A & 4---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)---Employees of Government-controlled company who enjoyed the protection of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for determination of their rights, after the 10th June, 1997 by insertion of S.2-A in the Service Tribunals Act, 1973, remedy would be available to them before Service Tribunal vis-a-vis termination simpliciter of their service as well as in consequence of disciplinary action who, on following the procedure laid down under S.4, Service Tribunals Act, 1973, shall decide their cases.

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

----S. 4---Constitution of Pakistan (1973), Art.212---Condonation of delay by the Service Tribunal in filing the proceedings before it--?Validity---Consistent practice of the Supreme Court was that findings recorded by the Service Tribunal condoning the delay in filing proceedings before it were not interfered, but if it was shown that discretion had been exercised discriminately qua the cases in which identical question of condonation of delay in filing appeal was involved, the interference became essential to meet the ends of justice and case was remanded to the Tribunal.

WAPDA v. Muhammad Khalid 1991 SCMR 1765; Allah Warayo Chana and 29 others v. Aijaz Ahmad Khan and 6 others 1999 SCMR 880; Baber Gul and another v. Sohail Ahmed Sheikh and others 2002 SCMR 581; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 83(': Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan anti others PLD 2001 SC 980 and Teekam Das M. Haseeja, Executive Engineer WAPDA v. Chairman, WAPDA and another 2002 SCMR 142 ref.

Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi 2003 PLC (C. S.) 212 distinguished.

(s) Constitution of Pakistan (1973)-----

----Art. 188---Supreme Court Rules, 1980, O.XXVI, RA ---Review of Supreme Court judgment---Scope---Reversal of conclusion earlier reached by the Court, after, full consideration of the question was not possible in exercise of the review jurisdiction? under Art.188 of the Constitution---If nothing had been overlooked by the Supreme Court nor? the Court had failed to consider any important aspect of the matter, review petition would not sustain.

Abdul. Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada 1999 SCMR 2189 and Wasim Sajjad v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 SC 233 ref.

(t) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Non-consideration of documents had made out a case for review of the judgment- --Review petition thus would be competent if something which was obvious in the judgment had been overlooked and had the same been considered by the Court the final result of the case would have been otherwise.

I.A. Sherwani- and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Suba through Legal Heirs v. Fatima Bibi through Legal Heirs 1996 SCMR 158 ref.

(u) Constitution of Pakistan (1973)---

----Arts. 188 & 25(1)---Supreme Court Rules, 1980, O.XXVI, R.1--?Review of Supreme Court Judgment---Ground for the review was based upon the principles of equal protection of law under Art.25(1) of the Constitution, to the effect that the arguments which were advanced in some outer cases without success could not form the basis in the judgment under review for imposing condition upon the petitioners for absorption in service---Validity----All persons equally placed to be treated alike both in privileges conferred and liabilities imposed---An error in the judgment under review being apparent on the record, case was covered under Art. 188 of the Constitution---Supreme Court directed the employer to absorb the employees (petitioners) without any condition.

Sui Southern Gas Company Ltd, v. Engr Naraindas and others PLD 2001 SC 555; Managing Director, Sui Northern Gas Co. Ltd. v: Saleem Mustafa Sheikh and others PLD 2001 SC 176; Engr. Narain Das and others w. Federation of Pakistan and others 2002 SCMR 82 and Abdul Samad v, Federation of Pakistan and others 2002 SCMR 71 ref.

(v) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980. O.XXVI, R.1---Review of Supreme Court Judgment---Ratio decidendi of a case may not have been applied in the judgment under review and it there was a necessity to conduct an inquiry in the matter, the case could have been remanded for further inquiry in the interest of justice---Effect---When it was established that the Court had failed to consider any important aspect of the matter, review petition could be filed---Error, therefore, had crept it the judgment under review account of applying ratio decidendi of the case as well as for want of inquiry coupled with the fact of non-application of the rule laid down in another case on the similar matter---Supreme Court, in circumstances, recalled the judgment under review to the extent of non-suiting the petitioners and case was remanded.

Wasim Sajjad and others v. Federation of Pakistan PLD 2001 SC 233 and Executive Engineer, Central Civil Division, P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610 ref.

(w) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1 ?Review of Supreme Court Judgment---Error apparent on the face of record regarding interpretation of expressions i.e. 'reinstatement' and 'absorption' as given in the judgment tinder review needed to be rectified-- Supreme Court allowed the review petition to the extent that the expression 'reinstatement' and 'absorption' were distinct and different from each other therefore conclusion in the judgment under review that those were synonymous terms was expunged from the judgment under review holding that the petitioners shall be absorbed into service as had been done in compliance with other Supreme Court judgment on identical matters in view of Art.25(1) of the Constitution.

Mohtarma Benazir Bhutto v. The State PLD 1999 SC 937 fol.

Managing Director, Sui Northern Gas Co.. Ltd. v. Saleem Mustafa Sheikh and others PLD 2001 SC 176; Engr. Narain Das and others v. Federation of Pakistan and others 2002 SCMR 82 and Abdul Samad v. Federation of Pakistan and others 2002 SCMR 71 ref.

Barrister Ch. Muhammad Tamil; Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Appellant-Company (in C.As. Nos.533 to 539 and 1396 to 1663 of 2002).

Hafiz S.A. Rehman, D.A.-G. for Appellant No.2. (in C. As. Nos. 1396 to 1663 of 2002).

Mr. Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C As. Nos.533 to 539, 1442 to 1446, 1449 to 1452, 1454 to 1459, 1461 to 1463, 1465, 1469 to 1471, 1474 to 1484, 1453 to 1496. 1591 to 1593, 1595, 1596. 1605, 1609, 1613, 1617, 1620, 1623, 1624, 1627 to 1636, 1646 to 1648, 1652 to 1656, 1658, 1660, 1662 and 1663 of 2002).

Respondent No.2: Ex parte (in C.As. Nos.533 to 539 of 2002).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.As. Nos. 1466 to 1468, 1472, 1473, 1485 to 1490, 1597, 1603, 1604, 1616, 1618, 1619, 1621, 1522, 1626, 1637 to 1639, 1641 to 1644, 1649, 1657, 1661 of 2002).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.As. Nos.1396 to 1417, 1419, 1421, 1422 to 1426, 1498 to 1500, 1502 to 1504, 1507 to 1513, 1544 to 1571 of 2002):

Abid Hassan Minto, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C. As. Nos. 1418, 1427 to 1439, 1497, 1516 to 1519, 1521 to 1524, 1526 to 1531, 1533, 1534, 1536, 1537, 1539 to 1543, 1584, 1572 to 1574, 1576 to 1583 and 1585 to 1588.of 2002).

Sadiq Muhammad Warraich, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.As. Nos. 1140, 1441, 1447, 1448, 1453, 1501,1505, 1506, 1514 1515, 1520, 1525, 1532, 1535; 1538, 1575, 1589, 1590, 1594, 1598 to 1602, 1606 to 1608,.1610 to 1612, 1614, 1615, 1640, 1650 and 1651 of 2002).

Tariq Asad, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.As. Nos. 1412 and 1413 of 2002).

Nemo for Respondents (in CPs. Nos.1420, 1464, 1491, 1492, 1625, 1645 and 1659 of 2002).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.25 to 44 of 2002).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent-Company (in C.Ps. Nos. 2.4 to 44 of 2002).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Petitioners-Company (in C.Ps. Nos. 1779 to 1810 and 1812 of 2002).

Rai Muhammad Nawaz Kharral, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.P. Nos. 1779 to 1810 of 2002).

Nemo for Respondents (in C. P. No. 1812 of 2002).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M. S. Khattak, Advocate-on- Record (in C.Ps. Nos. 1850, 1861 to 1914, 1992 to 2040, 2051 to 2100, 2117 to 2161, 2169 to 2317 and 2327 of 2002).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in CPs. Nos.1850, 1861, 1862, 1867, 1870, 1872, 1875 to 1877, 1879, 1882, 1892 to 1898, 1900,.1901, 1905, 1906, 1914, 1994 to 1996, 1998 to 2006, 2009, 2023, 2024, 2026, 2028, 2034, 2036, 2037, 2052 to 2057, 2059, 2063, 2075, 2076, 2078, 2079, 2081 to 2092, 2094, 2098, 2100, 2125, 2126, 2128, 2131, 2134 to 2137, 2139 to 2161, 2169, 2.170, 2173, 2176 to 2179, 2182, 2183, 2187, 2189, 2192, 2199, 2200, 2209 to 2211, 2241, 2242, 2248, 2251, 2252, 2255 to 2257, 2262, 2265 to 2267, 2271, 2281, 2282, 2285, 2286, 2309, 2311 and 2312 of 2002).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in CPs. Nos.1863 to 1866, 1868, 1869, 1871, 1873, 1874, 1879, 1880, 1882 to 1885, 1888, 1889, 1890, 1891, 1899, 1903, 1904, 1907 to 1911, 1913, 1992, 2011 to 2022, 2025, 2031, 2073, 2080, 2097, 2118, 2119, 2123, 2124,2.130, 2171, 2172, 2174, 2175, 2180, 2181, 2184, 2190, 2194, 2195, 2196, 2198, 2202, 2203, 2204, 2207, 2212 to 2217, 2218 to 2223, 2226, 2227, 2228, 2229, 2230, 2231, 2233, 2235, 2238, 2239, 2240, 2244, 2247, 2249,.2253, 2254, 2258, 2261, 2263, 2264, 2276, 2277, 2279, 2280, 2288 to 2296, 2298, 2300 to 2304, 2306, 2307 and 2308 of 2002).

Rai Muhammad Nawaz Kharral, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in CPs. Nos. 1902, 2185 to 2187, 2191, 2193, 2197, 2201, 2205; 2206, 2208, 2225, 2237, 2243, 2246, 2259, 2268 to 2270, 2272, 2275, 2283, 2284, 2297, 2299, 2305, 2313, 2315 and 2317 of 2002).

Mehr Khan Malik, Advocate-on-Record for Respondents (in Cps. Nos.2008, 2030, 2038, 2040; 2051, 2065, 2070, 2074, 2095, 2096, 2099, 2120, 2122, 2133 of 2002).

Nemo for Respondents (in CPs. Nos. 1878, 1881, 1886, 1887, 1912, 1993, 1997, 2007, 2010, 2027, 2029, 2032, 2033, 2035, 2039, 2058, 2061, 2062, 2064, 2066 to 2069, 2071, 2072, 2093, 2117, 2121, 2127, 2129, 2132, 2138, 2188, 2224, 2232, 2234., 2245, 2250, 2260, 2273, 2274, 2278, 2287, 2310, 2314, 2323 of 2002).

Tariq Asad, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.762 to 765, 1219 to 1225, 1242 to 1244, 1294 to 1298 and 1364 to 1366 of 2002).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2792 to 2798 and 2801 of 2001).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondents-Company (in C. Ps. Nos.762 to 765, 1219 to 1225, 1242 to 1244, 1294 to 1298, 1364 to 1366 of 2002 and 2792 to 2798, and 2801 of 2001).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner (in Civil Review Petition No.420 of 2001).

Barrister Ch., Muhammad Jamil Advocate Supreme Court and M.S. Khattak, Advocate-on-Record - for Respondent (in Civil Review Petition No.420 of 2001).

Abdul Hafeez Pirzada, Senior Advocate Supreme. Court and Mehr Khan Malik; Advocate-on-Record for Petitioner (in Civil Review Petition No.421 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Review Petition No. 431 of 2001).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in Civil Review' Petition Nos. 421 and 431 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Review Petition No.426 of 2001).

Barrister Ch. Muhammad Jamil, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.2 (in Civil Review Petition No.426 of 2001):

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Civil Review Petition No. 427 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Review Petition No.428 of 2001).

Mehr Khan Malik, Advocate-on-Record for Petitioner (in Civil Review Petition No.430 of 2001).

Petitioner in person (in Civil Review Petition No.432 of 2001).

Brisster Ch Muhammad Jamil, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record, for Respondent No.2 (in Civil ?Review Petition Nos.427, 428, 430 and 432 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil -Review Petition No.429 of 2001).

Barrister Ch. Muhammad Jamil, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.2. (in Civil Review Petition No.429 of 2001).

Dates of hearing: 31st March to 4th-April and 7th April, 2003.

2003 P L C (C.S.) 880

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ, Khawaja ABDUL HAMEED NASIR and others

Versus

NATIONAL BANK OF PAKISTAN and others

Civil Appeal No. 1932 of 2000, decided on 5th March, 2003.

(On appeal from the judgment dated 31‑7‑1998 of the Lahore High Court passed in I.C.A. No. 197 of 1982).

National Bank of Pakistan Employees Provident, Pension and Gratuity Fund Rules‑‑‑

‑‑‑‑ Circular No. 77(9)‑IFXI/77, paras 1, 2 & 9‑‑‑Matter of provident fund of employees of National Bank of Pakistan‑‑‑Object and effect of Circular No. 77(9)‑IFXI/77, paras 1, 2 & 9 on existing Schemes of pension, contributory fund and gratuity in respect of the employees of National Bank of Pakistan‑‑‑Employees of National Bank of Pakistan were entitled to receive whole of the amount accumulated in their account of provident fund (total amount of contribution made by them and the Bank alongwith interest up to the date of payment)‑‑‑All those employees of National Bank of Pakistan covered by the said Circular were entitled to receive whole of the amount available in the provident fund account as on 30‑11‑1977 contributed by them and the Bank‑‑‑Act of withholding the payment of that part of the, amount available in the said account which was contributed by the Bank was illegal and without lawful authority and could not be sustained‑‑‑Principles.

It is clear from a bare reading of the Circular as a whole that the intention behind issuing the same was to provide better social security to the employees of the financial institutions and it was made clear in the later part of paragraph I that so far as the employees of the National Bank were concerned, the existing schemes of pension, contributory fund and gratuity shall be discontinued. It is, therefore, clear from this part of the said paragraph that the existing schemes of pension, contributory fund and gratuity in respect of the employees of National Bank were discontinued by their own operation, as such, it was not dependent upon the exercise of option by them in their favour. The argument that such employees as a matter of fact were left with no choice but to accept that from 30‑11‑1977, their previous scheme as to gratuity had become inoperative and they were automatically governed by the said scheme embodied in the Circular, has force as a consequence of which they could not be deprived of the right to receive the amount available in their provident fund account as on 30‑11‑1977 alongwith interest up to the date of payment whether it was contributed by them or the bank.

This being the position, the employees of the National Bank were entitled to receive whole of the amount accumulated in their account of provident fund (total amount of contribution made by them and the Bank alongwith interest up to the date of payment), therefore, the act of withholding the payment of that part of the amount available in the said account which was contributed by the Bank was illegal and without lawful authority and could not be sustained.

Paragraph 2 of the Circular is not independent but it is to be read in conjunction with the entire policy decision embodied in the said Circular and in particular paragraph 9 thereof. In paragraph 9, it has been clearly stated that option was to be given by those employees whose service was not pensionable to convert the same as pensionable in lieu of giving up of their right to receive that part of the provident fund contributed by the financial institutions as such, paragraph 2 was applicable only to such employees.

In the concluding portion of paragraph 1, it was by operation of the r new scheme itself that previous scheme of pension and provident fund, etc. was made inoperative qua the employees of National Bank on the assumption that the said decision as to exercise of option and surrender of amount of provident fund was not applicable to them as their service was already pensionable.

Such instruments (Circulars) are to be constructed keeping in view the real intention behind them for taking such decision which should be explored by scrutiny of the attending, circumstances and in particular the instrument as a whole. It is clear from the Circular that the decision was taken to provide better social security to the employees of the financial institutions and in the case of employees of National Bank of Pakistan whose service was already pensionable, they were given benefit of the same as per its own force. There is no possibility of even entertaining any doubt as to its applicability to them qua the entitlement to receive the entire amount accumulated in their provident fund account on 30‑11‑1977 at the time of closure of the said amount whether contributed by them or the Bank with interest up to the date of payment to which no legal exception can be taken.

Benefit was extended to all the persons falling in the same category, therefore, in order to do complete justice, all those employees of the National Bank of Pakistan covered by the Circular are entitled to receive whole of the amount available in the provident fund account as on 30‑11‑1977 contributed by them and the bank.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Rana Muhammad Sarwar, Advocate Supreme Court for Appellants.

Javed Altaf, Advocate Supreme Court and Sardar Muhammad Aslam, D.A.‑G. for Respondents.

Date of hearing: 5tli March, 2003.

2003 P L C (C. S.) 904

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ALTAF HUSSAIN SHAH

Versus

PUNJAB SERVICE TRIBUNAL, LAHORE and others

Civil Petition for Leave to Appeal N0.22-L of 1999, decided on 9th May, 2002.

(On appeal from judgment of Punjab Service Tribunal dated 25-10-1998 passed in Appeal No. 1209 of 1997).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 4, 5 & 6---Constitution of Pakistan (1973). Art. 212(3)---Dismissal from service---Allegation of misconduct---Contention of civil servant was that he was condemned unheard and that no regular enquiry was held---Service Tribunal dismissed appeal filed by civil servant ---Validity--­Impugned judgment and record showed that proper procedure under Punjab Police (Efficiency and Discipline), Rules, 1975 had been observed and rules , of natural justice had been strictly adhered to---Maximum possible opportunity of defence had been provided to civil servant as he was heard both by Appointing Authority and Appellate Forum---No substantial question of law of public importance was made out---Supreme Court dismissed petition in circumstances.

Sheikh Salahud Din, Advocate-on-Record for Petitioner.

A.H. Maqsood, Advocate Supreme Court for the State.

Date of hearing: 9th May, 2002:

2003 P L C (C. S.) 909

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

AMJAD ALI, ASSISTANT SUB INSPECTOR (RETIRED)

Versus

SENIOR SUPERINTENDENT OF POLICE, MULTAN and others

Civil Petition No. 409-L of 1999, decided on 8th May, 2002.

(On appeal from the order dated 3-2-1999 passed .by the Lahore High Court, Lahore in Appeal No. 1810 of 1997)

Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 4, 5 & 6---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service---Bailiff of High Court recovered detenue from illegal confinement of civil servant (Assistant Sub-Inspector)---Liability of civil servant was proved to satisfaction of High Court, which directed him to pay certain sum as compensation---Civil Servant in departmental proceeding could not controvert such accusation, thus, had rightly been found guilty imposing such penalty---No Legal infirmity was found in impugned judgment or disciplinary proceedings---No miscarriage of justice had been caused---No substantial question of law of general public importance was involved in petition---Supreme Court dismissed petition.

Tassawar Hussain Qureshi, Advocate Supreme Court with Mr. Mehamood A. Qureshi, Advocate-on-Record for Petitioner.

Roshan Ara, A.A.-G., Muhammad Shafiq, Inspector (Legal) and Amanatullah Inspector for the State.

Date of hearing: 8th May, 2002.

2003 P L C (C.S.) 913

[Supreme Court of Pakistan]

Present: Nazinr Hussain Siddiqui and Abdul Hameed Dogar, JJ

MANAGING DIRECTOR. PAKISTAN RAILWAYS CARRIAGE FACTORY ISLAMABAD

Versus

MUHAMMAD ASGHAR

Civil Petition No.3403 of 2001, decided on 21st March, 2003.

(On appeal from the judgment dated 10-10-2001 of the Federal Service Tribunal, Islamabad, passed in Appeal 724(R)/C.S./2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Prime Minister's Secretariat UO No. 15(P)PMDIR/931/97, dated, 11-3-1997---Pensionary emoluments, calculation of---Increment in the monthly salary announced by the Prime Minister of Pakistan in address to the Nation---Prime Minister Secretariat's letter issued in response to the Prime Minister's address to the Nation regarding financial relief to the low paid employees on the face of it did not speak of ad hoc or temporary relief rather mentioned that the financial relief was allowed to all the employees from BS-1 to BS-16 with effect from 1-3-1997---Increment being permanent increase in the pay scale would be reckonable towards the pensionary emoluments---Department while refusing the relief to the civil servant had not only discriminated but had shown double standard, as such, while maintaining the finding of the Service Tribunal, Supreme Court upheld the reckoning of the increased amount in the basic pay towards calculating the pensionary emoluments and refused leave to appeal.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioner.

Respondent in person.

Ms.Naheeda Mehboob Elahi, Advocate Supreme Court and Ali Sher, S.O., Ministry of Finance (on Court's Notice).

Date of hearing: 21st March, 2003.

2003 P L C (C.S.) 918

[Supreme Court of Pakistan]

Present: Irshad Hassan Khan, CJ, Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

GOVERNOR, STATE BANK OF PAKISTAN and others

Versus

SHAMSUL ISLAM and others

Civil Petitions Nos.2844 to 3008 of 2001. decided on 30th October, 2001.

(On appeal from judgment dated 28-7-2001 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.277(R) to 300(R), 1670(K), 301(R) to 310(R), 347(R) to 350(R), 377(R), 483(P), 1068(R) to 1076(R), 1198(K), 1199(K), 1201(K) to 1265(K), 1340(K) to 1367(K), 1401(K), 1652(K) to 1669(K) and 1200(K) of 1998).

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

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Question of fact--­Factual controversy set at rest by Service Tribunal . in post .remand proceedings after conducting requisite inquiry---Such question could not be re-opened/re-agitated before Supreme Court.

Khawaja Saeeduz Zafar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 30th October, 2001.

2003 P L C (C.S.) 932

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

FEDERATION OF PIKISTAN through Secretary, Ministry of Housing and Works, Islamabad and another

Versus

A.R.P. MEMON, D.G. PETROLEUM AND ENERG" RESOURCES, ISLAMABAD

Civil Petition No.2116 of 2()01, decided on 19th April, 2002.

(On appeal from the judgment of LahoreHigh Court. Rawalpindi Bench, dated 23-5-2001 passed in Writ Petition No. 1743 of 2000).

Pakistan Allocation Rules, 1961---

-----Rr. 10 & 16(2)---Facility provided to Federal Government Servant of self-hiring of house owned by his/her spouse or any other family member--­Scope---Such facility can be availed by civil servant while in service, but not after his retirement--Civil servant on retirement can retain such accommodation in his possession for a period not exceeding six months on payment of normal rent---Order of self-hiring passed in favour of civil servant at the time, when he was in service cannot be given effect after his retirement.

Sardar Muhammad Aslam, Deputy Attorney-General of Pakistan and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 8th April, 2002.

2003 P L C (C.S.) 935

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others

Versus

IRSHAD AHMAD and others

Civil Petitions. Nos.2990-L to 2992-L of 2001, decided on 24th March, 2003.

(On appeal from the judgment dated 28-6-2001 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 1271, 1273 and 1192 of 2000).

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

----Rr.4, 6 & 7---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art.212(3)---Removal from, service---Re­instatement---Petition for---Disciplinary proceedings were initiated against respondents/civil servants on allegation that the civil servant (main accused) appointed lady teachers at the time when there was ban on such appointment and that all such appointments were made without approval of Departmental Recruitment Committee and that other accused/respondents had facilitated said false and vague appointments---Appointments were made by the said main accused who was ex-Deputy District Education Officer and respondents/civil servants had absolutely no say being little fry of Education Department---Main accused had been awarded minor penalty in reduction in pay despite pivotal role was played by her, but respondents were awarded major penalty of removal from service---Allegations leveled against respondents were vague, sketchy, ambiguous and without any evidence --- No iota of evidence was available to show as to how respondents had facilitated bogus appointments and who was the beneficiary---Respondents were removed from service in an arbitrary and whimsical manner which was a classic example of abuse and misuse of authority---Service Tribunal, had rightly set aside order of dismissal passed against respondents by the Authority---Conclusion arrived at by Service Tribunal which was strictly in accordance with law, settled norms of justice, and being well based could not be interfered with---Petition for leave to appeal before Supreme Court against judgment of Service Tribunal being merit less, was dismissed especially when no substantial question of law of public importance arose.

Miss Salma Malik, Asstt. A.-G., Punjab and Ch. Mehdi Khan Mehtab for Petitioners (in all Cases).

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Respondents (in all Cases).

Date of hearing: 24th March, 2003.

2003 P L C (C.S.) 938

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmad Khan and Sardar Muhammad Raza, JJ, IZZAT BAIG AWAN

Versus

HABIB BANK LIMITED

Civil Petition for Leave to Appeal No.1702 of 2001, decided on 23rd July, 2002.

(On appeal from the judgment, dated 10-5-2001 of the Federal Service Tribunal, Islamabad in Appeal No.98(R)CE of 2000).

(a) Bank employees-----

---- Institution of banking is one of trust reposed by public at large and Bank Authorities in peculiar nature of the duties of their employees cannot afford breach of trust by retaining in service people who are involved in criminal. cases.

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

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 212(3)---Bank employee---Removal from service---Absence from duty---Involvement in criminal case---On such involvement, the Bank employee absented himself from duty---Bank Authorities issued show-cause notice and after affording opportunity of hearing to the Bank employee, removed him from service--­Service Tribunal maintained the order of removal from service---Plea raised by the employee was that his absence was unavoidable---Validity---Absence whether avoidable or unavoidable was the sole concern of the official---Bank could not afford the luxury of absence as well as loss of goodwill---Case of laxity on the part of the employee was proved and his retention in service being not in the interest of the Bank, he was rightly removed---Leave to appeal was refused.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

Ajmal Kamal, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 23rd July, 2002.

2003 P L C (C.S.) 943

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.

Versus

SINDH LABOUR APPELLATE TRIBUNAL and 10 others

(On appeal from the judgment, dated 7-12-2000 passed by the Federal Service Tribunal in Appeal No.434(K)(CE) of 2000).

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

----S. 2-A---Jurisdiction of Service Tribunal under S.2-A of Service Tribunals Act, 1973---Scope---Condonation of delay---Insertion of S.2-A in Service Tribunals Act, 1973, being procedural in nature, was retrospective in operation---Service Tribunal was competent to consider application for condonation of delay on showing sufficient cause in just and proper cases.

Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Qaisar Amin and others v. President of U.B.L. and others 2000 SCMR 174 and Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others 2000 SCMR 832 ref.

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

--Ss. 2-A, 4 & 6---Constitution of Pakistan (1973), Art. 212(3)---Dismissal of appeal by Service Tribunal as barred by time---Abatement of proceedings before High Court ---Extending period of limitation---Employees filed Constitutional petitions before High Court against order, dated 25-2-1991, passed by Authorities which abated on 11-4-2000, after insertion of S.2-A in Service Tribunals Act. 1973---Employees instead of filing appeals before Service Tribunal within 30 days, filed the same on 12-6-2000. and Service Tribunal dismissed the same being barred by .limitation---Validity--­Provision of S.2-A of Service Tribunals Act, 1973 was inserted And was made effective from 10-6-1997 and in view of S.6 of Service Tribunals Act, 1973. in case of abatement of proceedings before any Court the appeal before the Service Tribunal was to be preferred within 90 days---Employees filed Constitutional petition in the year 1991, which remained pending and it stood automatically abated on the insertion of S.2-A in Service Tribunals Act, 1973 i.e. 10-6-1997 but the formal order of abatement was passed on 11-4-2000, which did not extend the period of limitation prescribed under law---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Qaisar Amin and others v. President of U.B.L. and others 2000 SCMR 174; Muhammad Yaqub v. Pakistan Petroleum Ltd. and others 2000 SCMR 830; Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others 2000 SCMR 832 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 ref.

G.M. Dastagir, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th June, 2001.

2003 P L C (C.S) 947

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Tanvir Ahmed Khan. JJ

SAEED ULLAH, LINE SUPERINTENDENT-I

Versus

THE CHIEF EXECUTIVE LESCO LTD and other

Civil Petition for Leave to Appeal No. 1611-L of 2002, decided on 3rd July, 2002.

(On appeal from the order of Lahore High Court Lahore passed on 4-3-2002 in Writ Petition No. 1294 of 2002).

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4--­Constitutional petition---Compulsory retirement from service---High Court disposed of Constitutional petition with direction to Authority to dispose of appeal /representation of civil servant within specified time ---Validity--­Authority had dismissed appeal filed civil servant---High Court had not committed any illegality in directing civil servant to avail remedy provided under law---Subject-matter of dispute related to terms and conditions of service, which in view of Art. 212 of the Constitution squarely tell within jurisdiction of Service Tribunal- --Supreme Court dismissed petition and refused leave.

Mian Mahmood Hussain, Advocate Supreme Court and Faiz-ur­-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd July, 2002.

2003 P L C (C.S.) 948

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

EJAZ AHMED WARRAICH

Versus

PRESIDENT OF U.B.L. and others

Civil Petition No.2019-L of 2000, decided on 28th March, 2003.

(On appeal from the judgment, dated 5-6-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.952(L) of 1999).

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

----S.2-A---Constitution of Pakistan (1973), Art.212(3)---Interpretation, scope and applicability of S.2-A, Service Tribunals Act, 1973---Contention of the petitioner was that cashier of a Nationalised Bank was a 'civil servant' under S.2-A and dismissal of his appeal by the Service Tribunal for want of jurisdiction was not legal---Validity---All such employees were amenable to the jurisdiction of Service Tribunal being civil servants which status had been conferred upon them by virtue of S.2-A, Service Tribunals Act, 1973 for the limited purpose i.e. approaching the Service Tribunal for the redressal of their grievance concerning terms and conditions of their service irrespective of Service Rules and Regulations applicable in their cases and it hardly mattered as to whether being a cashier of the Bank, his services were regulated by the Wage Commission Award or otherwise ---Principles--­Supreme Court converted the petition for leave to appeal into appeal and remanded the case to the Service Tribunal for decision of the same afresh after affording opportunity of hearing to all concerned.

Contention of the petitioner civil servant in the present case vas that section 2-A of the Service Tribunals Act, 1973 had been misconstrued and misinterpreted which resulted in miscarriage of justice as the exceptions contained in the definition of 'civil servant' in the Civil Servants Act, 1973 and the Service Tribunals Act, 1973 could be made applicable to such categories of persons who shall be deemed to be 'civil servants' under section 2-A for the purposes of the Service Tribunals Act, 1973. It was also urged that the petitioner being Cashier performing his duties in the Nationalized Bank was 'civil servant' and could have invoked the jurisdiction of the Federal Service Tribunal for redressal of his grievance.

The provisions as contained in section 2-A of the Service Tribunals Act, 1973 have been misconstrued and misinterpreted by the Service Tribunal in the present case. All such employees are amenable to the jurisdiction of Service Tribunal being 'civil servant' which status has been conferred upon them by virtue of section 2-A for the limited purpose i.e. approaching the Service Tribunal for the redressal of their grievance concerning terms and conditions of their service irrespective of the Service Rules and Regulations applicable in their cases. It hardly matters as to whether being a cashier his services were regulated by the Wage Commission Award or otherwise.

The service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest has been declared to be service of Pakistan. Every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purpose of this Act i.e. the Service Tribunals Act, 1973. It is not necessary for an employee working in any of the organizations covered by section 2-A that he should also come within the ambit of definition of the 'civil servant' given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved.

As regards the employees, employed on contract basis or if they were workmen excluded by the definition of 'civil servants' given in section 2(1)(b) of the Act of 1973, it has been since held that the latter definition is not applicable to the employees covered by the newly-enacted section 2-A. As a corollary, it must follow that the exceptions mentioned in clause (b) of subsection (1) of section 2 of the Act of 1973 will not be attracted to such cases.

Section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. Such were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that they were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973.

The petition was converted into appeal and accepted and Service Tribunal was directed by the Supreme Court to decide the appeal afresh after affording proper opportunity of hearing to all concerned as the controversy squarely fell within its jurisdictional domain.

Jehangir A. Jhoja, Advocate Supreme Court and Ozair Chughtai. Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th March, 2003.

2003 P L C (C.S.) 956

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

NAZAR HUSSAIN and others

Versus

DEPUTY DISTRICT EDUCATION OFFICER and others

Civil Petitions Nos.3537 and 3764-L of 2001, decided on 25th April, 2003.

(On appeal from the judgment, dated 22-9-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2256 of 1998 and 587 of 1999)

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

-----R. 22---Punjab Civil Servants Act (VIII of 1974), Ss.10 & 11--­Constitution of Pakistan (1973), Art.212(3)---Ad hoc appointment---Service subsequently regularized---Termination of service of such appointees on the ground that their services were regularized in an illegal manner and contrary to Rules---Validity---Regularization made in contravention of prescribed e procedure could not be 'equated with that of "legal regularization and in absence whereof the status of ad hoc or temporary appointees could not be changed unless regularized legally by adopting the prescribed procedure---Where the said procedure had not been followed, no legal right whatsoever had been created in favour of the ad hoc appointees which could refrain the Competent Authority from retracing their steps taken by them and accordingly the Competent Authority could remove the ad hoc appointees from service without assigning any reason and even without a show-cause notice and mere by affix of time no ad hoc/temporary appointment could be converted to regular appointment till the prescribed procedure was followed---Principles.

The petitioners in the present case were appointed on ad hoc basis and subsequently regularized in an illegal manner and contrary to rules and thereafter their services were terminated being regularized in violation of the relevant law and procedure prescribed thereunder.

The petitioners were appointed on ad hoc basis having no legal footings till regularization of their service which was to be made in accordance with the provisions 'as contained in sections 10 and 11 of the Punjab Civil Servants Act, 1974 read with Rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which appears to be quite exhaustive in nature, comprehensive and capable enough to meet all sorts of eventualities concerning ad hoc appointments., On the touchstone of the criterion as stipulated in the above mentioned Act and Rules made thereunder the case, of petitioners had been examined whose appointment letter made it abundantly clear that they were appointed in a purely temporary capacity for a period of six months liable to be terminated at any time on one week notice with specific condition that these appointments will not confer any right of regular appointment. The petitioners were never regularized by following the prescribed procedure, the posts were never advertised, no examination whatsoever was held, no Selection Committee was constituted and in such circumstances the question of recognition of merits to be determined by the objective criteria would not arise which, if allowed to continue, would certainly lead to disastrous consequences. The regularization made in contravention of prescribed procedure could not be equated with that of a 'legal regularization' in absence whereof the status of ad hoc or temporary appointees could not be changed unless regularized legally by adopting the prescribed procedure which was never followed. No legal right whatsoever had been created in favour of the petitioners which could refrain the Competent Authority from retracing their steps taken by them and accordingly the Competent Authority was competent to remove the petitioners from service. Service of ad hoc/temporary appointees could be terminated by the Departmental Authority without assigning any reason for the same and even without a show-cause notice and mere by afflux of time no ad hoc/temporary appointment could be converted to regular appointment till the prescribed procedure was followed.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Dr. Muhammad Yunis v. Province of Sindh 1989 PLC (C.S.) 8; Fayaz Hussain Shah v. Province of Sindh 1991 PLC (C.S.) 447 and Province of Punjab v. Azhar Abbas 2002 SCMR 1 ref.

Muhammad Riaz Lone, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners (in C.P. No.3537-L of 2001)

Kanwar Iqbal Ahmed Khan, Advocate Supreme Court and Mehdi Khan Mehtab Advocate-on-Record for Petitioners (in C.P. No.3764-L of 2001).

Nemo for Respondents.

Date of hearing: 25th April 2003.

2003 P L C (C.S.) 961

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Ahbasi, JJ

NADIR SHAH, S.D.O., MINOR CANAL CELL, IRRIGATION SUB-DIVISION, DERA MURAD JAMALI and 2 others

Versus

SECRETARY, IRRIGATION AND POWER DEPARTMENT, BALOCHISTAN, QUETTA and 7 others

Civil Miscellaneous Appeal No.20 of 1999, decided on 23rd July, 2002.

(On appeal from from the order of D.R.(J) dated 12-10-1999 passed under Order V, Rule 3 of the Supreme Court Rules, 1980).

Balochistan Civil Servants Act (IX of 1974)---

----S.8---Constitution of Pakistan (1973), Art.212(3)---Seniority---Ad hoc appointees placed senior to civil servants selected by Public Service Commission ---Service Tribunal set aside such seniority and placed regular civil servants senior to ad hoc appointees---Plea raised by the ad hoc appointees was that seniority was not a vested right of a civil servant under Balochistan Civil Servants Act, 1974, therefore, appeals before Service Tribunal were bound to be dismissed---Validity---In case of persons appointed by initial recruitment, their seniority inter se would be fixed in accordance with the order of merit assigned by Public Service Commission, provided the persons selected for in a later selection---Ad hoc appointees would be entitled to count seniority from the date of their regularization and not from the date of initial appointment---Supreme Court declined to take any exception to the law laid down by Supreme Court in earlier judgments--­Leave to appeal was refused.

Wajahat Hussain v. Province of the Punjab PLD 1991 SC 82 rel.

Muhammad Munir Peracha. Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Nemo for Respondents.

Date of hearing: 23rd July, 2002.

2003 P L C (C.S.) 963

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD ISHAQ WAHEED BUTT

Versus

CHAIRMAN, BANK OF PUNJAB and 2 others

Constitutional Petition No.671-L of 2002, decided on 27th February, 2003.

(On appeal from the order dated 4-12-2001 of the Lahore High Court, Lahore, passed in Writ Petition No. 15506 of 2001).

Constitution of Pakistan (1973)-----

----Arts.199 & 185(3)---Constitutional petition---Maintainability---Bank employee---Termination of service---Service of employee was not governed by Statutory Rules, employee, however, attempted to build up his argument on the basis of minutes of Meeting of Board of Directors of the Bank to maintain his Constitutional petition which was not accepted ---Validity--­Minutes of the Meeting of the Board of Directors could not be equated to that of "Statutory Rules"---No jurisdictional flaw or legal infirmity could be pointed out in the order of the High Court which was unexceptionable and did not warrant interference---Petition for leave to appeal was dismissed by the Supreme Court.

Arshad Ahmad v. Chairman, Bank of Punjab, Lahore 2000 PLC (C.S.) 1355 and Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 ref.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Petitioner.

Ali Sibtain Fazli, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 27th February, 2003.

2003 P L C (C.S.) 970

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

Ch. HUMAYUN AKHTAR

Versus

PAKISTAN through Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad

Civil Petition No. 1585-L of 2002, decided on 26th June, 2002.

(On appeal from the judgment dated 26-4-2002 of the Lahore High Court, Lahore passed in Writ Petition No.6143 of 1996).

Constitution of Pakistan (1973)-----

----Art.199---Service Tribunals Act (LXX of 1973), S.4---Question of implementation of judgment of Service Tribunal, which had been set aside by Supreme Court. would not arise.

Federation of Pakistan and another v. Riaz Ahmad Baig and another 1984 SCMR 759 ref.

Petitioner in person.

M. Nawaz Bhatti, Dy. A.G. for Respondent.

Date of hearing: 26th June, 2002.

2003 P L C (C.S.) 971

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed. C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MEHFOOZ ILAHI PIRACHA

Versus

SME BANK LIMITED, ISLAMABAD and 3 others

Civil Petition No.595 of 2002, decided on 8th May, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 24-4-2002 passed in Miscellaneous Petition No.128 of 2002 (Appeal No.417(R)(CE) of 2002).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Interim relief sought to suspend operation of impugned order was refused by Service Tribunal---Validity---Petition for leave to appeal against interim order would not be maintainable---Interim relief sought by civil servant, if allowed, would amount to disposal of appeal before Tribunal---Supreme Court dismissed petition and refused leave with direction to Tribunal to decide appeal of civil servant as early as possible.

Ch. Mushtaq Ahmed, Senior Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record (absent) for Petitioner.

K.M.A. Samdani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 8th May, 2002.

2003 P L C (C.S.) 973

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Raja MUHAMMAD AJAIB (R) DIRECTOR, ACCOUNTS, WAPDA BONDS CELL, TARBELA

Versus

CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and 2 others

Civil Petition No. 1975 of 2000, decided on 7th June, 2002.

(On appeal from the judgment of Federal Service Tribunal, dated 24-10-2000 passed in Appeal No.241(P) of 1999).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Promotion--­Grievance of civil servant was that though he was recommended by Competent Authority for promotion through circulation, but he was deprived of promotion on the pretext that he already stood retired, whereas his colleagues were given promotion from back dates after their retirement--­Leave to appeal was granted by Supreme Court to consider matter in detail as contention raised with regard to discrimination and unfair treatment was floating on record.

Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Walayat Ali Mir v. Pakistan International Airlines 1995 SCMR 650; Ghulam Rasool v. Government of Balochistan PLD 2002 SC 381 and Baber Gul v. Sohail Ahmed Sheikh 2000 SCMR 581 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 7th June, 2002.

2003 P L C (C.S.) 977

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SECRETARY OF GOVERNMENT OF N.-W.F.P., C & W DEPARTMENT and 3 others

Versus

JAMAL ABDUL NASIR

Civil Petition No.61-P of 2002, decided on 15th April, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar passed in Writ Petition No. 1160 of 1998, dated 23-10-2001).

Civil service---

---- Imposition of ban on recruitments ---Retrospective application---Scope--­ Appointments made against available posts after fulfilling departmental requirements, when there was no ban on such recruitments ---Subsequent imposition of ban on fresh appointments would not operate retrospectively so as to undo appointments already made against vacant posts and affect-existing rights of individuals---When order had been given effect to and acted upon, then concerned Authority would have no power to rescind same on the principle of locus poenitentiae.

Shahbaz v. Crown PLD 1956 FC 46; Mahboob Rabani v. Government of Pakistan PLD 1963 Lah. 53; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 rel.

Sardar Shakil Hayat. Additional A.-G., N.-W.F.P. for Petitioners.

Nemo for Respondent.

Date of hearing: 15th April, 2002.

2003 P L C (C.S.) 981

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD ASLAM

Versus

GOVERNMENT OF PUNJAB, through Secretary Education and others

Civil Petition for Leave to Appeal No. 685-L of 1999, decided on 3rd May, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 17-3-1999 passed in I.C.A. No.21 of 1999).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Constitutional petition before High Court--­Selection to post of P.T.C. Teacher---Three -teachers were appointed---As a result of selection---Petitioner challenged appointment of only one teacher through Constitutional petition, which was dismissed by High Court---Validity---Logic behind such selective approach and pick and choose by petitioner was not understandable---Constitutional petition challenging selection and appointment of one teacher would be wholly incompetent--­Name of respondent-teacher impleaded in Constitutional petition was deleted from memo. of petition presented before Supreme Court---No adverse order could be passed against such respondent without impleading him as party to proceedings---Supreme Court dismissed petition.

Muhammad Tahir Chaudhary, Advocate Supreme Court for Petitioner.

Muhammad Saleem Chaudhary. Advocate Supreme Court for Respondents.

Date of hearing: 3rd May, 2002.

2003 P L C (C.S.) 983

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

WAPDA

Versus

Miss AMIRA NASREEN and another

Civil Petitions Nos. 118 and 119 of 2002, decided on 18th September, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 19-11-2001 passed in Appeals Nos.447(P)/SC/2001 and 448(P)/SC/2001).

North-West Frontier Province Service Tribunals Act (I of 1974)-----

----S.4---Constitution of Pakistan (1973), Art.212(3)---Transfer of civil servant---Jurisdiction of Service Tribunal---Female lady teachers were transferred from their home station to a distant station---One of the teachers was unmarried, while husband of the other was employed at the station from where she was transferred---On posts against which the teachers were working the Authorities wanted to recruit two teachers on contract basis--­Service Tribunal having come to the conclusion that the transfer was. not in public interest. allowed the appeals and transfer orders were set aside---Plea raised by the Authorities was that transfer was their prerogative, therefore, appeals before Service Tribunal were not maintainable---Validity---Service Tribunal had rightly found that the transfer, was not in public interest--­Supreme Court under Art.212(3) of the Constitution could grant leave against judgment of Service Tribunal---No question of law of public importance within the contemplation of Art.212(3) of the Constitution was involved---Leave to appeal was refused.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in both Petitions).

Date of hearing: 18th September, 2002

2003 P L C (C.S.) 988

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

SECRETARY EDUCATION and others

Versus

IJAZ HUSSAIN and others

Civil Petitions Nos.226 to 231-L of 2002, decided on 1st April, 2002.

(On appeal from the judgment dated 25-9-2001 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 1204 to 1219 of 1998).

Constitution of Pakistan (1973)-----

----Art.212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Service Tribunals Act (LXX of 1973), S.4---Petition for leave to appeal was barred by forty-four days ---Condonation of delay---Reason given in application was that file continued moving from one Department to another to determine, whether appeal should be filed or not---Validity---Such ground could not be accepted as a sufficient ground for condonation of delay---Supreme Court dismissed application and also main petition as barred by time and refused leave.

Muhammad Anwar Ghuman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 1st April, 2002.

2003 P L C (C.S.) 994

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

ABDUL GHAFOOR

Versus

SUPERINTENDENT OF POLICE, JHANG and another

Civil Petition No.3040-L of 2001, decided on 12th September, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 28-6-2002 passed in Service Appeal No.2409 of 2001).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R.6(3)---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service---Professional misconduct and indiscipline of police official---Non-conducting of regular inquiry---Holding of General Police Proceedings---Applicability and procedure---Civil servant was a police official and was awarded punishment of compulsory retirement from service---Order passed by the Authorities was maintained by Service Tribunal---Plea raised by the civil servant was that no regular inquiry was held by the Authorities which was against the rules---Validity---Police was a disciplined force and if the Authority decided that the requirement of regular inquiry was not necessary, the Authority may, while. adopting the summary procedure in terms of R.6(3) of Punjab Police (Efficiency and Discipline) Rules, 1975, pass an appropriate order---Professional misconduct and indiscipline of the civil servant, a member of disciplined force, was proved by the bad entries persistently earned by him in his service record, .there would be no need of regular inquiry as provided under R.6(4) of Punjab the service record of the civil servant and rightly formed opinion that he was not fit to be further retained in the police service---Supreme Court declined to interfere with the order passed by the Authorities---Leave to appeal was refused.

Syed Zulfiqar Ali Bokhari, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 12th September, 2002.

2003 P L C (C.S.) 998

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Ch. ABDUL REHMAN

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 3 others

Civil Petition No.781 of 2002, decided on 18th November, 2002.

(On appeal from the judgment of Federal Service Tribunal dated 7-5-2002 passed in Appeal No.855(L)(CS) of 2000).

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

----S.17(1-A)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement in service without back­ benefits---Retirement from service during pendency of appeal before Departmental Authorities---Employee on the charge of misconduct was awarded punishment of withholding of promotion for next three years___ During pendency of appeal before Departmental Authorities, the employ was retired from service under S.17(1-A) of West Pakistan Water and Power Development Authority Act, 1958---Employee being unsuccessful before Departmental Authorities, and upon his such retirement, filed appeal before Service Tribunal---Appeal was allowed by Service Tribunal and he was reinstated in service without back-benefits---Contention of the employee was that the retirement was not legal and he was wrongly deprived of his legitimate right of earning of livelihood, therefore, he was entitled to back­ benefits---Validity---Service Tribunal having considered the question relating to grant of back-benefits in detail had found the employee not entitled to such relief---Supreme Court declined to take any exception to the discretion exercised by the Service Tribunal---No question of public importance was involved in the petition for interference of Supreme Court---Leave to appeal was refused.

Syed Ali Hussain Gilani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Muhammad Nawaz Bhatti, D.A.-G. for Respondents.

Date of hearing: 18th November, 2002.

2003 P L C (C. S.) 1008

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Capt. (Retd.) ABDUL QAYYUM

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 81 others

Civil Appeal No. 1895 of 2000, decided on 16th December, 2002.

(On appeal from the order dated 14-4-1999 of the Punjab Service Tribunal Lahore passed in Appeal No.291 of 1993).

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

----Ss.7 & 22---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.8---Constitution of Pakistan (1973), Art.212(3)--­Contention of civil servant was that two conflicting judgments on the same subject had been rendered by Supreme Court in cases titled Muhammad Iqbal Khokhar and 3 others v. Government of Punjab PLD 1991 SC 35 and Wajahat Hussain and others v. Province of Punjab PLD 1991 SC 82 and that the entire matter required further probe and authoritative pronouncement on the subject was needed---Leave to appeal was granted by Supreme Court to consider the contention of the civil servant.

PLD 1991 SC 35 and Wajahat Hussain and others v. Province of Punjab PLD 1991 SC 82 ref.

(b) Compulsory Service (Armed Forces) Ordinance (XXXI of 1971)----

----S.9-A [as inserted by Compulsory Service in Armed Forces (Amendment) Ordinance (IV of 1978)]---Words 'other essential services'---Applicability--­Insertion of the words 'other essential services' is nothing but recognition of principle of fairness that a person who joins a civilian Department after release from Army is entitled to service benefit.

(c) Compulsory Service (Armed Forces) Ordinance (XXXI of 1971)-----

----S.9-A [as inserted by Compulsory Service in Armed Forces (Amendment) Ordinance (IV of 1978)]---Punjab Civil Servants Act (VIII of 1974), Ss. 7 & 22---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.8---Seniority, fixation of---Relaxation in Rules---Powers of the Governor---Examination of Annual Confidential Reports by Supreme Court---Civil servant joined Army as Engineer on 21-10-1969 and after his release from Army in the year 1975, he was appointed in Communication and Works Department---Respondent civil servants joined the same Department but after 21-10-1969---Civil servant relying on S.9-A of Compulsory Service (Armed Forces) Ordinance, 1971, represented to Provincial Government that his case was at par with the other such appointees---Governor of the Province in relaxation of his residual powers contained in S.22 of Punjab Civil Servants Act, 1974, allowed the benefit of Army service to the civil servant and he was ranked senior to respondent civil servants---Such fixation of seniority was assailed by the respondent civil servants and finally in the light of judgment passed by Supreme Court, Authorities revised the seniority of the civil servant and he was placed junior to the respondent civil servants---Departmental representation as well as appeal before Service Tribunal were dismissed---Validity---Powers of the Governor under S.22 of Punjab Civil Servants Act, 1974, fully justified the Governor to do so on the basis of principles of equity, good conscience and justice---Even insertion of words 'or other essential persons' in S.9-A of Compulsory Service (Armed Forces) Ordinance, 1971, would have retrospective operation---Supreme Court agreeing with the general observations made in the judgment reported as PLD 1997 SC 351,. was of the view that the seniority of the civil servant was rightly fixed by the Governor and implemented by the Authorities---Supreme Court examined the Annual Confidential Reports of the civil servant itself and restrained the Authorities from proceeding against him and further directed that no mala fide action would be taken against him---Supreme Court also directed the Authorities to consider the civil servant for promotion to his due rank---Judgment passed by Service Tribunal was set aside and the seniority of the civil servant was restored---Appeal was allowed.

PLD 1997 SC 351 rel.

PLD 1991 SC 35; PLD 1992 SC 184; Wajahat Hussain and others v. Province of Punjab PLD 1991 SC 82; Ch. Kabir Ahmed's case 1982 SCMR 978 and C.P. No. 668 of 1998 ref.

Hafiz Tariq Naseem, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Fauzi Zafar, A.A.-G., Punjab and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondent No. 1.

Iqbal Mahmood Awan, Advocate Supreme Court and Faiz-ur-­Rehman, Advocate-on-Record for the Remaining Respondents.

Date of hearing: 28th May, 2002.

2003 P L C (C.S.) 1027

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

PAKISTAN RAILWAYS through General Manager and another

Versus

AJMAL KHAN

Civil Petition for Leave to Appeal No. 1819 of 2001, decided on 23rd July, 2002.

(On appeal from judgment of Federal Service Tribunal date 19-4-2001 passed in Appeal No.37(Q)CS of 2000).

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

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S. 4---Leav preparatory to retirement order, withdrawal of---Completion of 25 years of service---Civil servant on completion of 25 years of service applied for such leave which was duly sanctioned but the Authorities withdrew the order of the ground that the same was wrongly sanctioned and the civil servant was transferred---Service Tribunal set aside the order of withdrawal and restore the leave order---Plea raised by the Authorities was that no appeal or request of the civil servant could be considered till he had complied with the order of transfer---Validity---Civil servant on completion of 25 years of service could not be compelled to continue in employment against his wishes-­Authorities had not acted fairly and reasonably in abiding by their police decision as the transfer order could have been held in abeyance or cancelled rather than insisting its compliance to the disadvantage and inconvenience of low-paid employee---Supreme Court observed that the Authorities, instead of causing hardship and inconvenience to an employee with long service spreading over 25 years, should have adopted just, fair and reasonable attitude in dealing with its employees rather than to adopt attitude of rigidity having harsh bureaucratic tendency---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

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

----Art. 129(e)---Performance of official acts---Presumption---Contention of Authorities was that the order procured by civil servant was manipulated against policy decision of Department and the same was procured it collaboration with lower staff---No action was initiated against any dealing official---Effect---Official acts were presumed to have been correctly and regularly performed and there was no presumption of manipulation or collusion in the working of a public Department---Contention of the Authorities was repelled in circumstances.

Tariq Shamim, Advocated Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 23rd July, 2002.

2003 P L C (C.S.) 1029

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SADIQ and another

Versus

FEDERAL SERVICE TRIBUNAL, ISLAMABAD and others

Civil Petitions Nos.2138 and 2445 of 2001, decided on 26th June, 2002.

(On appeal from the judgment of Federal Service Tribunal dated 28-4-2001 passed in Appeals Nos.514(R) CS/2000 and 513 (R) CS/2000 respectively).

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

----R.11---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art. 212(3)---Appointment in relaxation of rules---Failure to advertise the post in newspaper---Misconduct---Holder of public office--­Misuse of authority---Earning of legitimate right to hold the post after serving for considerable period---Civil servants were appointed by Departmental Selection Committee in relaxation of rules and had served for a considerable period but later on they were reverted to the lower posts on the ground that the posts were not advertised in newspaper---Orders of reversion were maintained by Service Tribunal---Plea raised by the Civil servants was that after having served for a considerable period, they had earned a legitimate right to hold the positions---Validity---Post was necessarily to be advertised in newspaper before initiating the process of selection---Departure from mandatory provisions of R. 11 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, would render the appointment invalid and the defect was not automatically cured---Act of making of appointments in departure from the rules amounted to defeat equal right of employment on merits, therefore, appointment obtained by the civil servants would not create any right in their favour for regularization---Mere passage of time would not be a ground to allow the rectification of irregularity on the ground that the appointees should not suffer for the fault of concerned Authorities--­Supreme Court noted it with concern that the public functionaries through misuse of their powers, without observing the rules made appointments to oblige their favourits and deprive the deserving persons from their legitimate right of service---Holder of public office by misusing his authority in breach of law and public trust was guilty of misconduct---Supreme Court recommended the Government that while taking notice of such irregularities it should take appropriate action against the concerned Authorities under Government Servants (Efficiency and Discipline) Rules, 1973, to ensure the transparency in the appointments and to eradicate the element of favouritism and nepotism for advancement of policy of merits and fairness---Supreme Court upheld the judgment passed by Service Tribunal and directed the Authorities not to till the posts, against which the civil servants were appointed, without following the prescribed method provided under the rules and the civil servants would also be entitled for appointment subject to their eligibility and merit---Leave to appeal was refused.

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

----R.11---Appointments without advertisement in newspaper---Opinion of Law Division---Curing of illegality---Validity---Opinion of Law Division would not cure illegally in the appointments made in violation of rules and the same could not be approved and allowed to be perpetuated on the basis of favourable opinion of Law Division.

Malik Qamar Afzal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in both Cases).

Sardar Muhammad Aslam, Dy. A.-G. for Respondents (in both Cases).

Date of hearing: 26th June, 2002.

2003 P L C (C.S.) 1035

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

MUHAMMAD ASLAM

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others

Civil Petition No. 178-L of 1999, decided on 13th May, 2002.

(On appeal from the judgment/order dated 22-12-1998 passed by Punjab Service Tribunal, Lahore in Appeal No.3897 of 1997).

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

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Admission of guilty---In reply to show-cause notice, the civil servant had made admission about accepting share of bribery which he used to charge on behalf of his senior official from the drivers of vehicles---Service Tribunal had rightly dismissed appeal filed by the civil servant----Leave to appeal was refused.

Hafiz Tariq Nasim, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Ms. Yasmeen Sehgal, A.A.-G. and Imtiaz Ali, Legal Advisor for Respondents.

Date of hearing: 13th May, 2002.

2003 P L C (C. S.) 1048

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

AURANGZEB KHAN

Versus

FEDERATION OF PAKISTAN

Civil Original No. 1 of 2002, heard on 4th July, 2002.

Civil Servants Act (LXXI of 1973)---

----S.9---Constitution of Pakistan (1973), Art. 204---Promotion---Fitness of civil servant---Determination---Jurisdiction of Supreme Court---Scope--­Jurisdiction of Service Tribunal and Supreme Court is limited and the Supreme Court cannot go into the question regarding fitness or otherwise of a Government employee---Supreme Court declined to interfere with the order passed by the Authorities whereby the promotion of the civil servant was not recommended---Petition was dismissed.

Petitioner in person.

Muhammad Nawaz Bhatti, Deputy Attorney-General for Respondent.

Date of hearing: 4th July, 2002.

2003 P L C (C.S.) 1050

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF PUNJAB through Secretary, Agriculture Department, Lahore and 4 others

Versus

Mehar ATTAULLAH, A.S.-I. and 40 others

Civil Petitions Nos.2544-L and 2545-L of 2002, decided on 21st November, 2002.

(On appeal from the judgment of Punjab Service Tribunal dated 14-5-2002 passed in Service Appeals Nos.2432 and 262 of 2002 respectively).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Direction by Service Tribunal to adjust civil servants---Surplus staff was terminated by Authorities on the ground of closure of project---Plea raised by the civil servants was that they could be adjusted by the Authorities against other posts which were lying vacant---Due to ban on new recruitment, Authorities declined to adjust the civil servants---Service Tribunal directed the Authorities to adjust the civil servants against the vacant posts---Validity---Adjustment of the civil servants against the posts as special case was not impracticable---Supreme Court declined to interfere with the judgment passed by Service Tribunal--­No question of law of public importance was involved---Leave to appeal was refused.

Muhammad Zaman Bhatti, Advocate Supreme Court and Rao Muhammad Yousaf, Advocate-on-Record (absent) for Petitioners.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents.

Date of hearing: 21st November, 2002.

2003 P L C (C.S.) 1055

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

FAZAL KARIM DIVISIONAL ENGINEER, PAKISTAN RAILWAYS, RAWALPINDI

Versus

GOVERNMENT OF PAKISTAN through Secretary/Chairman Railways, Islamabad and another

Civil Petition, No.278 of 2002 decided on 14th October, 2002.

(On appeal from the judgment of Federal Service Tribunal, dated 22-12-2001 passed in Appeal No.261-R/(CS) of 2000).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Date of promotion, decision of---Certain posts of Divisional Engineers in Pakistan Railway were created by Government in the year 1994---Civil servant was given charge of the post on stop gap arrangement as the posts were not the posts of promotion quota---Posts were kept to be filled by promotion and the civil servant was promoted under the instructions issued by Establishment Division---Service Tribunal found the civil servant entitled for the promotion from the date of said instruction---Plea raised by the civil servant was that he was entitled to promotion before said date---Validity---Neither any post against the promotion quota was in existence before the said date, nor the civil servant was entitled for promotion prior to that date---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 14th October, 2002.

2003 P L C (C.S.) 1061

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

MUHAMMAD NAEEM and others

Versus

U.B.L. through its President and others

Civil Petitions Nos. 1235 to 1245, 1248, 1371 to 1376 and 1405 to 1408 of 2001, decided on 26th November, 2001.

(On appeal from the judgments dated 13-2-2001 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.111 to 114, 116 to 122, 115, 77 to 79, 88, 74, 75-P(CE) of 2000 and 47, 49, 53 and 55-R(CE)/2000).

Service Tribunals Act (LXX of 1973)---

----S.4---Coftstitution of Pakistan (1973), Art.212(3)---Time-barred appeal, dismissed in limine---Demand of terminal benefits---Termination order was passed in the year 1997, and appeal before Service Tribunal was filed in the year 2000---Service Tribunal dismissed the appeal in limine on its being barred by limitation---Plea raised by the civil servant was that the appeal before Service Tribunal was in nature of first appeal and the same should not have been dismissed in limine---Validity---Service Tribunal may dismiss appeal in limine where the same on the face of it is barred by time, barred by any law and disputed questions of law and facts are not involved---Civil servant was not entitled to arty terminal benefits in view of the judgments passed by Supreme Court---Leave to appeal was refused.

Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 and Tariq Inayat v. United Bank Limited C.Ps. Nos. 2292 of 2002, etc. fol.

United Bank Limited through President v. Shamim Ahmed Khan PLD 1999 SC 990; Ali Muhammad v. Commissioner Refugees, N.-W.F.P. 1995 SCMR 1675; Muhammad Ahmed v. Government of Sindh 1999 SCMR 255 and Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 ref.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents.

Date of hearing: 23rd November, 2001.

2003 P L C (C.S.) 1068

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ

ABDUL RASHEED UMRANI

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, S&GAD, Quetta and another

Civil Appeal No. 1554 of 1998, decided on 22nd October, 2002.

(On appeal from the order dated 31-7-1997 of the Balochistan (Subordinate Judiciary) Service Tribunal, Quetta passed in Service Appeal No. 1 of 1996).

(a) Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---

----Rr.5 & 9---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider, whether seniority fixed by Selection Committee at the time of ad hoc appointment of contesting Judicial Officers would be carried ahead even after regularization or rule of age would be determining factor.

(b) Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---

----Rr.5 & 9--Method of recruitment---Selection by Public Service Commission and that by Departmental Selection Committee---Procedure--­Distinction---Fixation of seniority---Formula of age---Applicability--­Selection made by Public Service Commission is not synonymous to the selection made by Departmental Selection Committee and is not one and the same thing---In case of selection made by an Authority other than Public Service Commission, the provision of R.9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984, is not invocable---Seniority of selectees of Public Service Commission is governed on the basis of order of merits assigned to them by the Commission notwithstanding the different dates of their recommendation and the appointment without the intervention of Public Service Commission and following the prescribed method cannot claim fixation of seniority inter se on the basis of principle embodied in R.9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984--­Recommendation of Judge of High Court as Member of the Commission in viva voce test is binding on the Commission and merit is accordingly assigned to the selectees on the basis of combined result of written examination and viva voce test---Appointing Authority may appoint Civil Judges through the process of selection by Committee of Judges constituted by Chief Justice pending nomination of candidate by Public Service Commission as envisaged under R.5(3) of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---If such appointments are subsequently regularized without the intervention of Public Service Commission, it is not a selection in terms of R.5 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---Seniority of such appointees inter se is not governed by R.9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---Selection by any other body other than Public Service Commission even through process of test and interview, is not a selection by the Commission---Seniority of selectees on appointment in absence of any specific rule is governed by the formula of age.

(c) Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984---

----Rr.5 & 9---Selection of Civil Judges---Fixation of seniority---Formula of age---Applicability---Both Civil Judges were appointed by Committee of Judges initially on ad hoc basis and later on their appointments were regularized from the date of their initial appointment---In provisional seniority list prepared by High Court, appellant Civil Judge was shown as junior to respondent Civil Judge---On representation made by appellant Civil Judge, the Authorities changed the final seniority list and appellant Civil Judge was shown senior to respondent Civil Judge---Balochistan (Subordinate Judiciary) Service Tribunal, allowed the appeal filed by respondent Civil Judge and seniority order was reversed---Plea raised by appellant Civil Judge was that provisions of R.9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984, was not applicable in fixation of seniority as the appointments were not made on the recommendations of Public Service Commission---Appellant Civil-Judge further contended that formula of age was applicable in the present case---Validity---Contestants were interviewed together by Selection Committee and their appointments were also made on same date, except that they were recommended by the Committee on different dates---As the contestants were not recruitees of Public Service Commission, therefore, the order of merit assigned to them by the Selection Committee of Judges of High Court would not be considered a criteria for determination of their seniority in absence of any statutory rule---In the matter of incumbents inter se in the present case, the provisions of R.9 of Balochistan Civil Judges and Judicial Magistrates Service Rules, 1984, would not be applicable and in absence of any specific statutory rule, the contesting Civil Judges would be governed by, age, formula---Judgment passed by Balochistan (Subordinate Judiciary) Service Tribunal was set aside---Appeal was allowed.

Raja M. Afsar, Advocate Supreme Court for Appellant.

Salahuddin Mengal, Advocate-General, Balochistan for Respondent No. 1.

Basharatullah, Senior, Advocate Supreme Court and Muhammad Riaz Ahmed, Advocate-on-Record for Respondent No.2.

Date of hearing: 22nd October, 2002.

2003 P L C (C.S.) 1078

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ

Qari AHMED JAN

Versus

GOVERNMENT OF BALOCHISTAN through S&GAD, Quetta and 3 others

Civil Petition No.9-Q of 2000, decided on 24th October. 2002.

(On appeal from the judgment of High Court of Balochistan, dated 6-1-2000 passed in Service Appeal No.6/1997).

(a) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---

----Rr.2(f), 6 & 7---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Misconduct and inefficiency---Lack of legal knowledge and experience---Issuance of interim stay orders against recovery of Government dues---Judicial Officer had issued the stay orders in 28 cases in one day--­Show-cause notice was served upon the Officer and after conducting regular inquiry, he was dismissed from service---Penalty imposed by the Authorities was maintained by Balochistan (Subordinate Judiciary) Service Tribunal--­Plea raised by the Judicial Officer was that the interim orders had been passed for want of legal knowledge and experience---Validity---Sufficient material in support of charge in the nature of orders passed by the Judicial Officer in extraordinary manner existed in the civil suits and miscellaneous applications without notice to the opposite-parties---Plea raised by the Officer itself would be a ground to proceed against him for inefficiency--­Officer was holding very sacred office as custodian of rights of the people and being required to be extra vigilant in judicial matters, was not supposed to pass such orders against the policy of law without hearing the opposite-­party---Failure of Judicial Officer to observe the procedural requirement and passing of the orders in disregard of the law would lead to legitimate inference that either such orders were passed for some extraneous consideration or in complete ignorance of law; in both the cases the Judicial Officer would become disentitled to hold judicial post---No direct evidence was available in proof of the charge against the Judicial Officer but the manner in which he exercised the jurisdiction would itself be a sufficient proof of his being not fair and independent in the judicial affairs---Such conduct was that of unbecoming of Judicial Officer---Judgment passed by the Service Tribunal was unexceptionable---leave to appeal was refused.

(b) Administration of justice---

---- Discharge of judicial functions and proceedings---Departure from procedure laid down by law---Effect---Such departure is unfair to parties before the Court and norms of justice and the same is prejudicial to judicial system---Duty of Judicial Officer is to maintain image and dignity of judiciary so that high expectations of people from judiciary should not be damaged by his conduct and work---Holder of Judicial Office must be extra careful, honest and straightforward and should not act and behave in a manner which may lower the image of judiciary in estimation of people and create doubt in the minds of a common person regarding the integrity and fairness of Judicial Officer in his private and public life---Judicial Office being very sensitive, the degree of vigilance of a person holding such an office should be much more to that of any other person in the society.

(c) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---

----Rr.6 & 7---Departmental inquiry---Proceeding on medical leave without any serious ailment---Effect---Non-appearance of civil servant before Inquiry Officer on such ground would be an evidence of his bad conduct.

(d) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---

----Rr.6 & 7---Departmental inquiry---Condemned unheard, principle of--­Applicability---Wilful non-participation of civil servant in inquiry would not provide him a ground to contend that he was condemned unheard.

Muhammad Aslam Chishti, Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th October, 2002.

2003 P L C (C.S.) 1086

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

MUHAMMAD HANIF

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh Secretariat, Karachi and others

Civil Petition No.279-K of 2002, decided on 5th July, 2002.

(On appeal from the judgment/order dated 18-1-2002 passed by Sindh Service Tribunal, Karachi in Appeal No.21 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Civil Procedure Code (V of 1908), S.11---Jurisdiction of Service Tribunal, invoking of---Principle of res judicata---Applicability---Order of termination of service was firstly assailed by civil servant after completion of ninety days from submission of departmental appeal without its having been decided---Appeal before Service Tribunal was dismissed and the judgment was maintained by Supreme Court in appellate as well as review jurisdiction---Civil servant once again invoked the jurisdiction of Service Tribunal on the basis of dismissal of departmental appeal---Second appeal before Service Tribunal was, also dismissed---Plea raised by the civil servant was that after dismissal of appeal by Department, new cause of action had arisen to the civil servant---Validity---Civil servant had already availed remedy before Service Tribunal in respect of the same cause of action, and Supreme Court by invoking its appellate as well as review jurisdiction but without any success---Cause of action to seek reinstatement of civil servant in the service had come to an end---Aggrieved person should invoke the jurisdiction of Service Tribunal under S.4 of Sindh Service Tribunals Act, 1973 on expiry of 90 days after filing of departmental appeal within next 30 days, if appeal filed by him had been decided or he should keep on waiting for the decision of departmental appeal and whenever the departmental appeal was decided and order was passed against the employee, then within 30 days from the passing of such order, the civil servant could file the appeal---Service Tribunal had rightly non-suited the civil servant because the cause of action available to the civil servant had come to an end---Second appeal before Service Tribunal was barred by the -principles of res judicata---Leave to appeal was refused.

Qadir Bukhsh v. Province of Sindh and another 1982 SCMR 582 fol.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner:

Nemo for Respondents.

Date of hearing: 5th July, 2002.

2003 P L C (C.S.) 1091

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

MUHAMMAD YAHYA

Versus

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

Civil Petition No.3033-L of 2001, decided on 11th July, 2002.

(On appeal from the order dated 21-7-2001 of the Punjab Service Tribunal, Lahore passed in C.M. No.704 of 2001 in Appeal No.3432 of 1997).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Appeal dismissed in default-- Restoration of---Unexplained delay of three years---Appeal before Service Tribunal was dismissed on 29-9-1998, and application for restoration of the appeal was filed on 28-6-2001---Plea raised by the civil servant was that he came to know about the dismissal of the appeal on 2-11-1998, when he came there to appear before the Tribunal---Validity---When the civil servant came to know about the dismissal of the appeal he would have tiled the application for restoration immediately after 2-11-1998 but instead he filed the application after the delay of three ;ears without any application for condonation of delay and without showing any justifiable ground for filing the application after such delay---Service Tribunal had rightly declined to restore the appeal---Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 11th July, 2002.

2003 P L C (C.S.) 1103

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

PRESIDENT, NATIONAL BANK OF PAKISTAN, I. I. CHUNDRIGAR ROAD, KARACHI and another

Versus

MUHAMMAD ALI SABRI

Civil Petition No.2187-L of 2001, decided on 28th June, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Lahore dated 20-4-2001 passed in Appeal No.817-L of 1998).

Service Tribunals Act (LXX of 1973)--

----Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Restoration in service with back benefits---Respondent was Bank employee on daily wages and his services were terminated---After insertion of S.2-A in Service Tribunals Act, 1973, grievance petition filed by the employee was returned by Labour Court---Service Tribunal allowed the appeal and the employee was reinstated in service with back benefits---Plea raised by the Bank was that the appeal filed by the employee was time-barred---Validity---Employee was discriminated as the Service Tribunal in earlier appeals of similarly placed employees had set aside the orders of their termination and the Bank was directed to regularize their services---Employee was similarly treated by the Service Tribunal in view of its earlier decision---Judgment of Service Tribunal did not warrant for any interference by Supreme Court under Art. 212(3) of the Constitution, as no question of law of public importance was involved in the petition---Leave to appeal was refused.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others PLD 2001 SC 176 ref.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioner.

Abdul Hameed Awan, Advocate Supreme Court for Respondent.

Date of hearing: 28th June, 2002.

2003 P L C (C.S.) 1108

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

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

Versus

KHALID SIDDIQUE

Civil Petition No. 3311-L of 2002, decided on 16th April, 2003.

(On appeal from the judgment dated 28-5-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 174 of 2002).

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

---Art. 212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition barred by 34 days ---Condonation of delay---Plea of petitioner not to have obtained certified copy in time, held, could not be considered being devoid of merit--­Supreme Court dismissed petition as barred by time.

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

----R.4(a)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 212(3)---Minor penalty of stoppage of two annual increments---Use of objectionable and unethical language by civil servant in letters addressed to his senior officer---Service Tribunal set aside punishment after finding nothing unethical or objectionable in such letters, which with reference to taxation contained only proposals for elimination of corruption in registration on basis of forged document---Validity---Department could not substantiate such accusation against civil servant by leading cogent and concrete evidence---Finding of Tribunal being well based did not warrant any interference---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 16th April, 2003.

2003 P L C (C.S.) 1117

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ZULFIQAR ALI

Versus

SUPERINTENDENT OF POLICE and others

Civil Petition No. 1548 of 2002, decided on 16th December, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 15-5-2002, passed in appeal No. 634 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--Opinion of officer not appointed as Inquiry Officer---Civil servant, on the charge of embezzlement and after conducting departmental inquiry, was dismissed from service---Appellate Authority appointed another officer as Inquiry Officer and new inquiry was conducted---Second Inquiry Officer exonerated the civil servant of the charges---Appellate Authority appointed another officer to examine the report of the second Inquiry Officer and on the recommendation of that other officer, civil servant was dismissed from service---Service Tribunal maintained the order of dismissal passed by the Authorities---Plea raised by the civil servant was that the other officer on whose recommendation, he was dismissed from service was not a duly appointed Inquiry Officer---Validity---Such other officer was not appointed as Inquiry Officer but was deputed to examine the report of the Inquiry Officer alongwith the record to assist the Appellate Authority for proper disposal of appeal pending before him from the Department side---Report made by the other officer pointed out the material and the evidence available on record which was not taken into consideration by the second Inquiry Officer who had exonerated the civil servant---By taking into consideration the evidence and material pointed out by the other officer in his report while deciding the appeal, the Appellate Authority had not committed any illegality---Appellate Authority' was fully competent to overrule findings of second Inquiry Officer on the ground that the same were suffering from non-reading or misreading of record---Findings of facts recorded by Departmental Authorities and those recorded by the Tribunal as well in appeal did not suffer from any illegality---Leave to appeal was refused.

Ahmad Awais, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2002.

2003 P L C (C.S.) 1136

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance

Versus

M. ASGHAR ALI and others

Civil Petitions Nos.350 to 399, 769, Civil Miscellaneous Applications Nos. 1034 to 1037 and 1248 to 1249 of 2002, decided on 25th July, 2002.

(On appeal from the judgment dated 9-1-2002 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.222(R)/CS/2001, 254-R/CS to 283(R)/CS/2001, 290(R)/CS/2001, to 305(R)/CS/2001 of 2001, 310(R)/CS/2001 to 314(R)/CS/2001, 317(R)/CS/2001 to 319(R)/CS/2001 2001 and 342(R)CS/2001).

Civil Service Regulations---

----Regln. 38-C---Secretariat Allowance (Rescission of Orders etc.), Ordinance (XII of 2000), Ss.2 & 3---Constitution of Pakistan (1973), Arts.25 & 212(3)---Secretariat allowance/Personal allowance, discontinuation of ---Discrimiantory treatment-- Grievance of civil servants was that after discontinuation of the secretariat/personal allowance, some of the civil servants had been paid the allowance and they were discriminated--­Service Tribunal allowed appeals filed by the civil servants and directed the authorities to grant them the allowance---Validity---Case had been rightly decided by the Service Tribunal in the light of S.3 of Secretariat Allowance (Recessions of Orders etc.) Ordinance, 2000, as it was found that the other civil servants had been continuously paid the secretairat/personal allowances up to 1-12-2001 and the allowances already paid to the other civil servants under S.2(2) of Secretairat Allowance (Recession of Orders etc.) Ordinance, 2000, were also saved---Service Tribunal had also rightly found that the case of aggrieved civil servants was also covered by S.3 of Secretairat Allowance (Recession of Orders etc.), Ordinance, 2000, and refusal of Competent Authority to grant them allowance was a treatment which was discriminatory and the same was not just and proper on any judicial principle---Supreme Court declined to take any exception to the judgment passed by Service Tribunal---Leave to appeal was refused.

Sardar Muhammad Aslam, Deputy Attorney-General and Ali Sher, Section Officer, Finance Division for Petitioner (in all CPs).

Respondents in person (in all C.Ps).

Date of hearing: 25th July, 2002.

2003 P L C (C.S.) 1143

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

THE MANAGING DIRECTOR, M.R.F.P.A.C., KAMRA and others

Versus

TARIQ BASHIR, HASHMI

Civil Appeal No. 1560 of 1997, decided on 29th October, 2002.

(On appeal from the judgment dated 23-7-1996 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 129(L) of 1996).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Reinstatement in service of civil servant on extended probation period---Failure to give show-­cause notice---Civil servant was dismissed from service on account of his absence from duty without any show-cause notice---Service Tribunal allowed the appeal and reinstated the civil servant in service---Contention of the authorities was that the civil servant was on extended probation, therefore, his services could be terminated without show-cause notice---Validity---Civil servant though was on extended probation but he should have been afforded opportunity to present his case before the authorities---Service Tribunal had committed no illegality or irregularity in reinstating ,the civil servant in service when his services were terminated with stigma without providing him opportunity to put up his case---Leave to appeal was refused.

Hafiz S.A. Rehman, Deputy Attorney-General and Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Riazul Haq Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 29th October, 2002.

2003 P L C (C.S.) 1149

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

BASHIR AHMED

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others

Civil Petition No.276-L of 1999, decided on 18th July, 2002.

(On appeal from the judgment dated 29-12-1998 passed by the Punjab Service Tribunal, Lahore, in Appeal No.61 of 1995).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Promotion list--­Filing of appeal before Service Tribunal, with a delay of two decades--­Grievance of the civil servant was that he was not placed at the B-I list without taking requisite test, making him eligible for promotion---Plea raised by the civil servant was that two other civil servants had been placed on the list without such test---Validity---Civil servant was 54 years of age and he failed to explain as to why he kept silent for almost two decades after crossing the required age of 33 years before approaching the Service Tribunal for the relief---Holding of the requisite test was publicized and all the borrowing authorities and officers were informed so that the matter in question could be brought to the notice of all the eligible persons---Fact that two other persons had been brought on B-1 list without requisite test was not a justification for any Court of law to direct a similar thing in the present case---Supreme Court declined to give any relief to the civil servant as the Court was not seized of the circumstances in which the two civil servants had been brought on B-1 list and if the same hid been done in violation of the law even then the same was not a precedent for a Court of law to follow--­Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Shehryar, Advocate Supreme Court for Petitioner.

Saleem Sikandar, A.I.-G. Legal for Respondents.

Date of hearing: 18th July, 2002.

2003 P L C (C.S.) 1153

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

THE CHIEF ENGINEER, IRRIGATION, LAHORE ZONE, OLD ANARKALI, LAHORE and others

Versus

SAJJAD HUSSAIN BHATTI

Civil Petition for Leave to Appeal No.3807-L of 2001, decided on 14th May, 2002.

(On appeal from the judgment dated 2-10-2001 of. the Punjab Service Tribunal, Lahore passed in Appeal No. 1796 of 1996).

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

----Ss.7 & 8---Constitution of Pakistan (1973), Art.212(3)---Seniority, fixation of---Right of promotion---Scope---Post of stenotypist was converted/re-designated to that of stenographer---Civil servant aggrieved of the seniority list filed departmental representation and having been unsuccessful preferred appeal before Service Tribunal-- Appeal was allowed by the Service Tribunal and the aggrieved civil servant was declared senior to the other civil servants---Plea raised by other civil servants was that they had been declared senior through the notification of re-designation of the posts--­Validity---Promotion could not be claimed as a matter of right because seniority itself could never infer an absolute right of promotion irrespective of other considerations but it did not mean that the factum of seniority should be ignored without any justification---Every civil servant had a right to be considered for promotion and the giving and refusing of promotion was a matter which was within the exclusive discretionary domain of the authority concerned---Such discretion was to be exercised judiciously--­Notification had only changed the nomenclature and re-designated the post of stenotypist to stenographer and thus had no substantial bearing on the question of seniority---No retrospective effect could be given to the notification and the same had been misconstrued and misinterpreted by the authorities---Aggrieved civil servant was appointed earlier as stenographer and was senior to all those stenotypists who were subsequently appointed and re-designated as stenographers---Conclusion drawn by Service Tribunal was strictly in accordance with law and did not call for any interference---Leave to appeal was refused.

Bashir Ahmad Khan v. Muhammad. Ali Khan PLD 1960 SC 195 ref.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Mian Mehmud Hussain, Advocate Supreme Court for Respondent.

2003 P L C (C.S.) 1159

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

MIR GHIAS KHAN and another

Versus

CHIEF EXECUTIVE/MINISTER KASHMIR AFFAIRS/NORTHERN AFFAIRS and others

Civil Petitions Nos.355 and 375 of 2001, decided on 9th September, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 18-12-2002 passed in Appeals Nos.563 and 746-R/CS/2000).

Civil Servants Act (LXXI of 1973)---

----S.2(1)(b)---Constitution of Pakistan (1973), Art.212(3)---Term civil servant'---Applicability---Status of civil servants employed in the administration of Northern Areas---Service Tribunal dismissed the appeal in limine on the ground that employees in the administration of Northern Areas were not civil servants under S.2(1)(b) of Civil Servants Act, 1973--­Validity---Leave to appeal was granted by Supreme Court to consider, whether the status of such employees was that of the employees of Federal Government and they fell within the definition of "civil servant" in terms of S.2(1)(b) of Civil Servants Act, 1973, to be governed by service laws of Federation and could avail the remedy of appeal before Federal Service Tribunal or they were members of establishment of Northen Areas and were not employees of the Federal Government and thus should have approached Civil Court having territorial jurisdiction.

Muhammad Riaz v. Secretary, Ministry of Kashmir Affairs and Northern Areas, Government of Pakistan and others Civil Appeal No.48 of 2001 ref.

Fazal Ellahi Siddqui, Advocate Supreme Court for Petitioners (in C.P. 355 of 2001).

M. Bilal, Advocate Supreme Court for Petitioners (in C.P. 375 of 2001).

Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in both Cases).

Sardar Muhammad Aslam, Deputy Attorney-General fog Respondents.

Date of hearing: 9th September, 2002.

2003 P L C (C.S.) 1171

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

ABDUL REHMAN QAMAR

Versus

GOVERNMENT OF N.W.F.P. through Secretary Education, Peshawar and 5 others

Civil Appeal No. 1326 of 1996, decided on 19th September, 2002.

(On appeal from the judgment of N.-W.F.P. Service Tribunal, Peshawar, dated 7-5-1995 passed in Appeal No.276 of 1994).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.4(1)(b)---Limitation Act (IX of 1908), S.5--Constitution of Pakistan (1973), Art. 212(3)---Condonation of delay---Leave to appeal was granted by Supreme Court to consider, whether in view of different phraseology used in S.4 of North-West Frontier Province Service Tribunals Act, 1974, civil servant was bona fide misled to believe that order of departmental authority awarding minor penalty was not appealable before Service Tribunal and, therefore, he was entitled to condonation of delay for period he was pursuing the remedy before Civil Court.

Muhammad Anwar v. Chief Secretary to Government of N.-W.F.P. 1996 SCMR 835 distinguished.

(b) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.4(1)(b)---Limitation Act (IX of 1908), Ss.5 & 14---Bar contained under proviso to S.4(1)(b) of North-West Frontier Province Service Tribunals Act, 1974-- Applicability---Condonation of delay---Availing of remedy at wrong forum---Wrong advice of counsel---Civil servant instead of filing of appeal before Service Tribunal against penalty imposed by Departmental Authority filed suit before Civil Court---Sought condonation of delay---Plea raised by the civil servant was that the wrong forum was approached on bona fide mistaken advice of the counsel---Validity---Bar contained under proviso to S.4(1)(b) of North-West Frontier Province Service Tribunals Act, 1974, was not applicable to availing of remedy of appeal before Service Tribunal for challenging legality of punishment awarded to civil servant under North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---Erroneous filing of suit before Civil Court on the pretext of wrong advice would not be an excuse to exclude the time spent in pursuing the remedy before a wrong forum---No exception could be taken to the rule that availing of remedy before Wrong forum-willingly was not a valid ground for condoning the delay, therefore, dismissal of appeal by Service Tribunal being barred by time was not suffering from any legal defect---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Appeal was dismissed.

Muhammad Anwar v. Chief Secretary to Government of N.-W.F.P. 1996 SCMR 835 distinguished.

Abdul Aziz Kundi, Advocate Supreme Court for Appellant.

Imtiaz Ahmed, Additional Advocate-General and M.A. Qayyum Mazhar, Advocate-on-Record for Respondents.

2003 P L C (C.S.) 1175

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

ZAFAR IQBAL KHAN

Versus

PAKISTAN AGRICULTURAL RESEARCH COUNCIL, ISLAMABAD and ethers

Civil Petition for Leave to Appeal No.3073 of 2001, decided on 7th April, 2003.

(On appeal from the judgment, dated 15-8 2001 of the Federal Service Tribunal, Islamabad in Appeal No. 1400 (R) of 1999).

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

---Ss. 6 & 2-A---Abatement of proceedings pending in other forums--­Scope---Insertion of S.2-A in the Service Tribunals Act, 1973 while the matter of the employee was pending before the High Court in its Constitutional jurisdiction---Effect---Provision of S.6, Service Tribunals Act, 1973 operated to abate all suits, appeals or applications pending in any Court while the proviso to the said section laid down in clear words that any party to such a suit, appeal or application, within ninety days of the establishment of appropriate Tribunal, would prefer an appeal to such Tribunal---Words "establishment of the appropriate Tribunal" in said S.6 clearly meant that whenever any Tribunal was established for any person or class of persons, they had to resort to such Tribunal within the period prescribed in the section itself---Abatement provided by the law itself was automatic and it had to take effect from the very date (10-6-1997) when through insertion of S.2-A in the Service Tribunals Act, 1973 the change of forum took place---Whenever the abatement was automatic, no party to litigation before any forum other than the newly-created one, was supposed to wait for the final decision or any instruction by the forum where the cause was already pending---Employee, in the present case, who had filed a Constitutional petition before the High Court, without waiting for the decision of the High Court or any instruction therefrom ought to have resorted to the Service Tribunal---By insertion of S.2-A in the Service Tribunals Act, 1973; the Service Tribunal got established for the employee, in the present case, with effect from 10-6-1997 and it was incumbent upon the employee to have had resorted to the Service Tribunal on or before 10-9-1997 whereas, he filed appeal before the Service Tribunal on 24-6-1999 which was, of course, time-barred.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and The Chairman, P.I.A.C. v. Nasim Malik PLD 1990 SC 951 ref.

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

----Ss.2-A & 4---Time-barred appeal to Service Tribunal---Condonation of delay---Employee had contended that Service Tribunal had acted without jurisdiction in not condoning the delay involved as the same was caused due to bona fide litigation in another forum---Employee, who had filed a Constitutional petition before the High Court, even after the insertion of S.2-A in the Service, Tribunals Act, 1973 continued with the said petition and failed to resort to Service Tribunal after 10-6-1997---Such act of the employee was an act of negligence and lacked care---Lack of exercise of due diligence and caution before moving a wrong forum or staying in a wrong forum, was uncondonable---Litigation before a wrong forum could not be considered to be bona fide act in law and the delay caused thereby could not be condoned.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249; The Chairman, P.I.A.C. v. Nasim Malik PLD 1990 SC 951; Ch. Muhammad Sharif v. Muhammad Ali khan 1975 SCMR 259; Mirza Muhammad Saeed v. Shahab-ud-din PLD 1983 SC 385 and Muhammad Tufail Danish v. Deputy Director, F.I.A. 1991 SCMR 1841 ref.

(c) Pakistan Agricultural Research Employees (Service) Regulations, 1984---

----Regln. 12(5)---Seniority---Assessment Committee, formation of--­Recommendations of Assessment Committee qua seniority in specific cadre or post to be followed---If an employee of the department was promoted and if a new incumbent was appointed in the higher grade, in the same calendar year, the promotee would rank senior to the new entrant regardless of their dates of promotion.

Petitioner in person.

Abdul Karim Kundi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.6.

Date of hearing: 7th April, 2003.

2003 P L C (C. S.) 1185

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

PAKISTAN RAILWAYS through D.S., Lahore and 2 others

Versus

MUHAMMAD ASHRAF and 16 others

Civil Appeal No. 1470 of 1998 decided on 25th September, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 28-11-1996 passed in Writ Petition No. 11741 of 1994).

Pakistan Railways Ways and Works Manual, 1959--­-

---Para. 513(a)---Big city allowance, grant of---Dispute between the parties was with regard to grant of big city allowance---Claim of the civil servants was that as their headquarter was within the limits of city therefore, they were entitled to big city allowance---Authorities asserted that since the headquarter of the civil servants was outside the municipal limits of the city, civil servants were not entitled to the allowance---High Court in exercise of Constitutional jurisdiction accepted the claim of the civil servants--­Authorities without denying the location of the headquarter of the civil servants being within the limits of municipal corporation, had contended that the civil servants were not entitled to the big city allowance---Validity---High Court repelled the contention of Authorities with the observation that no policy or instruction was shown in support of the contention that the big city allowance was not admissible to the civil servants---No substantial question of law of public importance being involved in the case Supreme Court maintained the judgment by High Court.

Mirza Masood-ur-Rehman, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record (absent) for Appellants.

Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 25th September, 2002.

2003 P L C (C.S.) 1189

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

MUHAMMAD AKRAM and others

Versus

THE CHIEF EXECUTIVE and another

Civil Petitions Nos.2715-L to 2724-L of 2002, decided on 13th December, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 23-5-2002 passed in Appeals Nos.2056 and 2066 to 2071 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Reversion to substantive post---Recovery of difference of pay---Civil servants were promoted to higher post but on coming to know that the posts were to be filled through direct recruitment, the Authorities reverted them to their substantive posts and order for recovery of difference of pay from them was also passed---Departmental representations and appeals of the civil servants before Service Tribunal were dismissed---Service Tribunal although dismissed the appeals yet the Authorities were restrained from recovery of difference in pay---Contention of the civil servants was that the Authorities could not impose penalty of reduction in rank---Validity---Posts against which the civil servants were appointed through promotion were not promotion posts---All the Authorities had concurrently found that the posts were to be filled by direct recruitment, therefore, it was not a case of reduction in rank as penalty---Appointments through promotion, being void ab initio, the civil servants would be deemed to have never been promoted--­Service Tribunal had done justice by directing that recovery of difference in pay which the civil servants had drawn against the promoted posts was not to be made---Civil servants who had performed functions against higher post were held entitled to the pay of such post during the relevant period--­Judgment passed by Service Tribunal did not suffer from any illegality--­Leave to appeal was refused.

Jehangir A. Jhoja, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 13th December, 2002.

2003 P L C (C.S.) 1195

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J. and Mian Muhammad Ajmal, J

Syed MUHAMMAD ZAHIR SHAH

Versus

MUHAMMAD ANWAR and 4 others

Civil Petition No. 320-P of 2002, decided on 11th March, 2003.

(On appeal from the judgment of the N.-W.F.P, Service Tribunal, Peshawar, dated 27-5-2001 passed in Appeal No. 1315 of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Appointment---Petitioner was appointed as junior clerk as a special case without codal formalities---Respondent, who possessed better academic qualification and had sufficient long experience to his credit, was a better candidate than the petitioner in all respects for the post of junior clerk but his services were terminated---Service Tribunal had ordered that the respondent be reinstated as junior clerk with full back benefits---Petitioner had failed to point out any legal infirmity in the impugned judgment of the Service Tribunal and could not make out a case of involving substantial question of law of public importance warranting interference by Supreme Court under Art. 212(3) of the Constitution---Petition for leave to appeal was dismissed in circumstances.

Khushdil Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th March, 2003.

2003 P L C (C.S.) 1198

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ

MUDASSAR IQBAL

Versus

D.I.-G. POLICE and others

Civil Petition No. 3568-L of 2001, decided on 3rd July, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 24-9-2001 passed in Appeal No.3444 of 1999).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service-- Professional negligence---Failure to prevent dacoity---Civil servant being police officer had failed to prevent a dacoity committed in jewellery market in a small town after sunset---Disciplinary proceedings were initiated against the civil servant and, after holding regular inquiry he was found negligent, and was dismissed from service---Service Tribunal maintained the dismissal order observing that rime had come to take deterrent action against police officials who apart from getting their confidence eroded in the minds of the public were a constant burden on the public exchequer and had lost their utility---Validity---Case being of an individual grievance, no question of law of public importance was involved within the contemplation of Art. 212 of the Constitution---Findings recorded by Departmental Authority based on established facts which had been upheld with cogent reasons by the Service Tribunal did not suffer from any illegality---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 3rd July, 2002.

2003 P L C (C.S.) 1204

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

MUHAMMAD HUSNAIN BUTT

Versus

S.S.P., FAISALABAD and another

Civil Petition for Leave to Appeal No. 89 of 2003, decided on 30th May, 2003.

(On appeal from the judgment, dated 22-10-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1931 of 2002).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R.6---Constitution of Pakistan (1973), Art.212(3)---Police Officer was dismissed from service on the charges that his living standard was beyond his earnings and that his service record revealed that he had stinking reputation for having bad record of service and he was a black spot for the Police Department---Service record of the officer further demonstrated that a case was registered against him under S.10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.109, P.P.C. but on account of proceedings under S.265-K, Cr.P.C. he was acquitted by Sessions Judge on technical &round in spite of the fact that he was admittedly found naked with a lady in the quarters adjacent to the police station by Assistant Superintendent of Police who paid a surprise visit alongwith other police officials---Officer was reinstated in service by simply holding that since his application under S.265-K, Cr.P.C. had been accepted and he had been acquitted from the charges, he was to be reinstated---Authority while reinstating him totally brushed aside the enquiry report prepared by the D.S.P. who reported therein that employee had been found guilty during the course of investigation---Competent Authority, after examining the record; issued a show-cause notice to the officer and after confronting him with the same dismissed him from service and his appeal was also dismissed by the Appellate Authority and the Service Tribunal---Contention of the Officer was that proper enquiry was not conducted in his case---Validity---Superior Officer of the police force had conducted the raid in company of other police officials and things appearing before them themselves established that there was laxity in observing the discipline on the part of officer---Where a superior who had even otherwise authority to control and supervise the functioning of his subordinate conducted such a raid and the accused officer had admitted the same, resort to the show-cause notice procedure without appointing any Inquiry Officer could not on any principle, be objected to as abuse of the discretion or unjustified in law---Accused officer belonged to a disciplined force and being the custodian of law was required to .protect the moral fibre, honour and dignity of the people at large but the officer instead of protecting such values, himself had indulged in immoral and nefarious activities---Competent Authority after perusing the entire record of the accused official rightly thought it fit not to retain him in service and there was no illegality or legal infirmity in the impugned judgment of the Service Tribunal warranting interference by 'the Supreme Court.

The Deputy Inspector-General of Police, Lahore and others v. Anis-­ur-Rehman Khan PLD 1985 SC 134 fol.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th May, 2003.

2003 P L C (C.S.) 1209

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ

PERVAIZ AKHTAR

Versus

CHIEF INSPECTOR OF MINES and another

Civil Petition No.2205 of 2001, decided on 14th November, 2002.

(On appeal from the judgment/order dated 14-6-2001 passed by Punjab Service Tribunal, Lahore in Service Appeal No. 1358 of 1996).

Punjab Labour and Manpower Department Inspectorate of Mines Service Rules, 1993---

-----Para. 16---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 212(3)---Promotion---Charge in nomenclature of post---Post of Foreman of Electrical and Mechanical cadre---Basis of seniority-cum-fitness--Qualification-- Diploma in Instrument Technology--­Post of mechanic was renamed as Rescue Apparatus Technician---Respondent civil servant was employed in the year 1986, as mechanic, whereas the petitioner civil servant was employed in the year 1987, as electrician--­Petitioner civil servant was promoted to the post and the respondent civil servant was not considered for the promotion---Service Tribunal allowed the appeal filed by the respondent civil servant and he was promoted to the post---Plea raised by the petitioner civil servant was that even if change of nomenclature was kept aside, the respondent civil servant was not entitled to promotion as he had the diploma in Instrument Technology and not in Electrical/Mechanical Technology---Validity---Rescue Apparatus Technician under para. 16 of Punjab Labour and Manpower Department Inspectorate of Mines Service Rules, 1993, with five years' experience was also eligible for promotion---Service Tribunal did not examine the case of both the patties---Petitioner civil servant prima facie, also appeared to be eligible for promotion to the cadre of Foreman---Supreme Court instead of finally determining the question relating to the promotion of the respondent civil servant to the post of Foreman, considered it appropriate to remand the case to the Service Tribunal for re-examination of the case in view of the amended para. 16 of Punjab Labour and Manpower Department Inspectorate of Mines Service Rules, 1993, after providing proper opportunity of hearing to both the parties.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court Muhammad Riaz, Deputy Director Mines for Respondent No. 1.

Respondent No.2 in person.

Date of hearing: 14th November. 2002.

2003 P L C (C.S.) 1215

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

Haji MUHAMMAD AKRAM

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Petition for Leave to Appeal No.2329/L of 2002, decided on 3rd December, 2002.

(On appeal from the judgment dated 3-6-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.555 of 2002).

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

----S.4---West Pakistan Land Revenue Act (XVII of 1967), S.42--­-Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service--­Professional negligence-- Attesting a mutation in violation of law--­Allegation against the civil servant was that while working as Additional Naib-Tehsildar, he attested a mutation which was based on fraudulent and fictitious sale-deed---Civil servant was dismissed from service after holding a detailed inquiry by the Authorities and his appeal before Service Tribunal also failed---Plea raised by the civil servant was that he had been discriminated as other persons involved in the transaction had been let off with minor penalties---Validity---Revenue Officer was enjoined under S.42 of West Pakistan Land Revenue Act, 1967, to hold inquiry regarding genuineness of all entries in the Revenue Record---Civil servant without application of mind sanctioned the mutation in a slipshod manner when he being incharge of the registry branch was supposed to satisfy himself with all the legal requirements and to verify the contents of a sale-deed before attesting the mutation---Supreme Court declined to interfere with the judgment passed by the Service Tribunal---Leave to appeal was refused.

Arif Chaudhry, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd December, 2002.

2003 P L C (C.S.) 1220

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

MUHAMMAD AYUB

Versus

PAKISTAN RAILWAYS and others

Civil Petition No.2667 of 2001, decided on 7th October, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad passed in Appeal No. 35-R CS 2001 dated 31-7-2001).

Pakistan Railways Personal Manual---

---- Paras. 1724 & 1725---Constitution of Pakistan (1973), Art. 212(3)--­Dismissal from service---Suo motu powers of Divisional Superintendent, Pakistan Railways---Scope---Civil servant was proceeded against under Government Servants (Efficiency and Discipline) Rules, 1975, and punishment of compulsory retirement from service was awarded to him--­Divisional Superintendent, Pakistan Railways without assigning any reason interfered with the order passed by the Competent Authority and imposed penalty of dismissal from service---Service Tribunal maintained the penalty and the appeal was dismissed---Validity---Divisional Superintendent, Pakistan Railways in exercise of suo motu powers under paras. 1724 & 1725 of Pakistan Railways Personal Manual, could revise the order passed by Competent Authority after giving show-cause notice to the civil servant--­Such discretionary power in the matter of quantum of sentence must not be used arbitrarily and enhancement of sentence by Reviewing Authority without reasons would render the order illegal---Discretion exercised by Divisional Superintendent, Pakistan Railways in the matter of quantum of punishment was without any justification and the punishment awarded to the civil servant by the Competent Authority would sufficiently meet the ends of justice---Petition for leave to appeal was converted into appeal and judgment passed by the Service Tribunal was set aside---Appeal was allowed.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No. 1.

Date of hearing: 7th October, 2002.

2003 P L C (C.S.) 1239

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD NAVEED IQBAL

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others

Civil Petition No. 1280 of 2002, decided on 12th June, 2003.

(On appeal from the judgment of Federal Service Tribunal dated 7-5-2002 passed in Appeal No.1479(L)(CS)/2000).

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

----Rr.4 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (19731, Art. 212(3)----Reinstatement in service---Back benefits--­Determination---Civil servant was proceeded against under the provisions of Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978, and was awarded penalty of compulsory retirement from service---Appeal before Service Tribunal, against the penalty imposed by the Authorities, was allowed and the civil servant was reinstated in the service---Service Tribunal left the matter relating to back benefits to the Authorities---Plea raised by the civil servant was that withholding the back benefits was not proper and legal---Validity---Service Tribunal having considered the question relating to the grant of back benefits to the civil servant, had rightly left it open for decision by the concerned Authority on conclusion of the departmental inquiry, if any---Supreme Court declined to take any exception to the discretion exercised by the Tribunal---No question of law of public importance being involved in the petition for interference of Supreme Court---Leave to appeal was refused.

Syed Ali Hussain Gilani, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Muhammad Nawaz Bhatti, D.A.G. for Respondents.

Date of hearing: 18th November, 2002.

2003 P L C (C. S.) 1240

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

MUHAMMAD SIDDIQUE

Versus

LAHORE HIGH COURT, LAHORE through its Registrar and others

Civil Petitions for Leave to Appeal No.2666/L of 2000 and 1875/L of 2002.

(On appeal from the orders dated 11-9-2000 and 24-4-2002 of the Punjab Service Tribunal, Lahore, in Appeals Nos.527 of 1992 and 555 of 1985).

High Court Establishment (Appointment and Conditions of Service) Rules, 1964---

----R.24---High Court (Lahore) Rules and Orders, Vol. V, Chap. X---Punjab Civil Servants Act (VIII of 1974), Ss. 2(a) ---Punjab Service Tribunals Act (IX of 1974), S.2(b)---Constitution of Pakistan (1973), Arts. 208 & 240--­Employees of Lahore High Court---Not civil servants---High Court employees being not civil servants, provisions of Punjab Civil Servants Act, 1974 as well as Punjab Service Tribunals Act, 1974 would not be attracted in their cases---Terms and conditions of the High Court employees were governed by the High Court Establishment (Appointment and Conditions of Service) Rules, 1964, R.24 contained in Chap. X of High Court (Lahore) Rules and Orders, Vol. V---Provisions of, R.24 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1964 provided that an appeal would lie against an order of the Registrar to the Administrative Judge in accordance with Sched. II thereof---Said rules were existing laws which were adopted by the Administration Committee of the Lahore High Court on 7-1-1964---Appeal being a substantive right of an y employee which was the creation of the statutes and did not confer any right that had never existed---Employees, in the present case, having exhausted the remedy of appeal provided under the Establishment Rules, could not seek remedy from the Service Tribunal---Service Tribunal, in circumstances, had committed no illegality in, dismissing appeal of the employees of the High Court on the point of jurisdiction.

Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141; Abbas v. Hon'ble Chief Justice 1993 SCMR 715 arid Hadi Bakhsh v. Government of Sindh PLD 1964 SC 532 ref.

Ch. Muhammad Abdus Saleem, Senior Advocate Supreme Court and Muhammad Aslant Chaudhry, Advocate-on-Record for Petitioner (in C.P. No.2666-L of 2000).

N.A. Butt, Advocate Supreme Court and Tanvir Ahmed, Advocate­-on-Record for Petitioner (in C.P. No. 1875-L of 2002).

Malik Azam Rasul, Advocate Supreme Court for Respondent (in both Petitions).

Miss Yasmin Sehgal, A.A.-G. for A.-G., Punjab (in both Petitions).

Date of hearing: 21st February, 2003.

2003 P L C (C.S.) 1247

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SULTAN HUSSAIN

Versus

NATIONAL BANK OF PAKISTAN and 2 others

Civil Petition No. 184 of 2002, decided on 27th September, 2002.

(On appeal from the judgment of Federal Service Tribunal, dated 17-11-2001 passed in Appeal No.7(P)/C.E./2000).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct---Bankers; responsibilities---Return of embezzled amount---Civil servant was served with show-cause notice regarding financial irregularities and embezzlements---Civil servant was dismissed from service after inquiry---Appeal before Service Tribunal was also dismissed--Plea raised by the civil, servant was that the alleged embezzled amount had already been deposited by him, therefore, penalty of dismissal from service was illegal---Validity---Mere fact that the amount allegedly drawn in fraudulent manner was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the civil servant who being custodian of public and private money was not supposed to act in breach of trust--­Employees of financial institutions and Banks are required to be extremely fair in dealings and their conduct should be above board so that people may not lose confidence in financial institutions---Dishonest use of private property for personal gain even temporarily without intention to cause loss to a patty or Bank is not only an act of misconduct but also constitutes a criminal offence--Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Sheikh Riaz-ul-Haque, Advocate Supreme Court, and Ch. Muhammad Akram Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th September, 2002.

2003 P L C (C.S.) 1255

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

No. 6499 Ex-Sub-Inspector IJAZ AHMAD DAR

Versus

DIRECTOR-GENERAL, PAKISTAN RANGERS (SINDH) and another

Civil Petition No. 170 of 2001, decided on 3rd October, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Lahore. dated 14-5-2001. passed in Appeal No. 692-L of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4, proviso---Constitution of Pakistan (1973), Art.212(3)---Termination of service of civil servant without show-cause notice during probation period on ground of unsatisfactory performance---Appeal---Limitation---Only one appeal, review or representation before the Competent Authority was maintainable which remedy was availed by the civil servant and decision of rejection thereof was communicated to him within 90 days, which should have been challenged by the civil servant before the Service Tribunal within 30 days but he did nothing for more than six months and thereafter filed an incompetent appeal to the higher Authority---Effect---Such incompetent appeal to the higher Authority would neither create fresh cause of action nor would extend the period of limitation, as such, the Service Tribunal was justified to hold the appeal of the civil servant to be barred by time--­Competent Authority, on finding the performance of the civil servant unsatisfactory during probationary period could dispense with his services without issuing any show-cause notice---Principles.

Proviso to section 4 of the Service Tribunals Act, 1973 provides that where the remedy of an appeal, review or representation to a Departmental Authority is provided, no appeal would lie to the Tribunal unless aggrieved civil servant has preferred an appeal, review or representation to Departmental Authority which if is not decided and communicated within 90 days, an appeal would lie before the Tribunal within 30 days and if departmental appeal, review or representation is decided within 90 days and decision thereof is communicated, the appeal to the Tribunal would lie within 30 days from the date of the communication of decision of departmental appeal. In the aforesaid section words 'an appeal, review, or representation' have been used twice, the meaning of word 'an' is equivalent to 'one' or 'any'; seldom used to denote plurality', as such, according to law only one appeal, review or representation before the competent Departmental Authority was maintainable which remedy was availed by the civil servant and decision of rejection thereof was communicated to him within 90 days, which should have been challenged by hint before the Tribunal within 30 days but he did nothing for more than six mouths and thereafter filed an incompetent departmental appeal before another higher authority who was not competent Appellate Authority, therefore, such incompetent appeal to the higher Authority would neither create fresh cause of action nor would extend the period of limitation, as such, the Tribunal was justified to hold the appeal of the civil servant to be barred by time.

Even on merits the civil servant had no case, as the Competent Authority on finding the performance of the civil servant unsatisfactory during probationary period, could dispense with his services without issuing any show-cause notice.

Muhammad Munir Peracha, Advocate Supreme Court and Ch Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd October, 2002.

2003 P L C (C. S.) 1262

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

SHAHID MASOOD NADEEM

Versus

DY. C.A.A.F., LAHORE CANTT. and 3 others

Civil Appeal No. 1927 of 1998, decided on 26th November, 2002.

(On appeal from the judgment of Federal Service Tribunal, dated 18-6-1996 passed in Appeal No.54 (I) of 1996).

(a) West Pakistan General Clauses Act (VI of 1956)---

----S.21---Principle of locus poenitentiae---Applicability---Claiming of right on the basis of illegal order---No right can be claimed on the basis of illegal order and such order despite having taken effect, would neither change its status nor create any right enforceable in law in the light of principle that the Authority which possesses the power of passing an order is, also empowered to vary, amend or rescind that order---Once a legal order is given effect, the Authority would lose the power to retrace its steps---Legal order which creates some right' in favour of a person on taking effect cannot be withdrawn, rescinded and withdrawn at any subsequent stage---Principle embodied in S.21 of West Pakistan General Clauses Act, 1956, cannot be made applicable equally to all legal and illegal orders---Distinction exists in benefit derived under a legal order which is recognized in law as a legal right whereas the benefit arising out of an illegal order cannot be given such recognition.

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

----S.4---West Pakistan General Clauses Act (VI of 1956), S.21--­Constitution of Pakistan (1973), Art. 212(3)---Higher pay scale, withdrawal of---Recovery of over payments---Principle of locus poenitentiae--­Applicability---Civil servant was appointed in Basic Pay Scale-7 and subsequently he was placed in Basic Pay Scale- 11---Authorities withdrew the notification of higher pay scale and directed recovery of over payments made to the civil servant during the period of his working in higher pay scale--­Service Tribunal maintained the order passed by the Authorities and dismissed the appeal---Plea raised by the civil servant was that the Authorities could not withdraw the benefit of higher pay scale---Validity--­Civil servant obtained the financial gain under the orders of Competent Authority and principle of locus poenitentiae would not be attracted qua the order relating to the, recovery of pay and allowances already paid to him--- Order to the extent of recovery of pay and allowances was unjust and the same was set aside---Supreme Court directed the Authorities that no recovery would be effected from the civil servant---Order regarding the withdrawal of pay scale was maintained by the Supreme Court---Appeal was disposed of accordingly.

Engineer-in-Chief Branch v. Jalalluddin PLD 1992 SC 207; Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 and Muhammad Nawaz v. Government of Punjab 1981 SCMR 523 ref.

Rafiq Javed Butt, Advocate Supreme Court and S.A. Abid Nawaz, Advocate-on-Record (absent) for Appellant.

Hafiz S.A. Rehman, Deputy Attorney-General for Pakistan and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 26th November, 2002.

2003 P L C (C.S.) 1270

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman and others

Versus

MUHAMMAD NAVEED IQBAL and others

Civil Petitions No. 1254, 1255, 1272 and 1259 of 2002, decided on 18th November, 2002.

(On appeal from the judgments of Federal Service Tribunal dated 7-5-2002 passed in Appeals Nos. 1479 (L)/99, 374 (L) (CS)/2000, 4 (K) (CS)/2000 (dated 10-5-2002), 855 (L) (CS)/2000 respectively).

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

----S.17(1-A)(a)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art. 212(3)---Compulsoryretirement from service--­Jurisdiction of Service Tribunal---Principle of natural justice--­Applicability---Civil servants without having been provided with any opportunity of hearing, were retired from service compulsorily---Service Tribunal allowed the appeals filed by the civil servants and reinstated them in service---Plea raised by the Authorities was that compulsory retirement under S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958, was not a penalty, therefore, judgment passed by the Service Tribunal was without jurisdiction---Validity---Discretion exercised by the Authority under S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958, without assigning any reason and giving formal notice to the concerned civil servants was .not free .from arbitrariness---Service Tribunal having dilated upon the matter in detail formed the opinion that the orders passed by the Authority were in violation of the principles of natural justice which might be the result of mala fides---Supreme Court declined to take any exception to the reasons given by Service Tribunal for setting aside the orders of retirement of the civil servants and did not interfere in the judgment passed by the Service Tribunal---Leave to appeal was refused.

WAPDA v. Sikandar Ali Abro 1998 SCMR 137 and WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128 ref.

Muhammad Nawaz Bhatti, D.A.-G. for Mehmood A. Qureshi, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent.

Date of hearing: 18th November, 2002.

2003 P L C (C.S.) 1277

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SAADAT PERVAZ SAYAN

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 3 others

Civil Appeal No. 588 of 2002, decided on 11th November, 2002.

(On appeal from the judgment of Punjab Service Tribunal, dated 12-3-2002 passed in Appeal No. 2299 of 2001).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider, whether there was evidence on record to connect the civil servant with the allegations levelled against him, and whether there was evidence on -record that in fact it was antedated mutation.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Mutation whether a title document---Attestation of mutation--­Duty of Revenue Officer---Mutation as such neither creates nor extinguishes the title but ostensibly it is evidence of title---Sanctioning Officer is under legal obligation toy verify correct legal and factual position to his satisfaction---Concerned Officer must be careful and vigilant in such matters and should not act in a manner which may affect the rights of concerned persons.

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

----R. 4---Dismissal from service---Professional negligence or procedural irregularity-- Extending favour to colleagues---Civil servant was dismissed from service on the allegation of illegal sanction of a mutation on the ground of professional misconduct---Appeal against dismissal order was also dismissed by Service Tribunal---Plea raised by the civil servant was that it was procedural irregularity and not negligence on the part of the civil servant---Validity---Sanction of mutation on the basis of proposal made by subordinate staff without taking notice of the defect in the transaction contained in the mutation was a serious matter which might fall within the ambit of misconduct---Civil servant while depending on subordinate staff had acted negligently but the procedural irregularity in the sanction of the mutation without any consideration of personal interest or involving an element of bad faith with the intention to extend favour to his senior colleague at the cost of causing loss to any other person or to public exchequer would not be deliberate act and consequently the negligence of the civil servant might not be wilful---Civil servant had been in service for the last about fourteen years with clean record and had fair chance of success in his career, therefore, Supreme Court in the light of nature of charge and degree of negligence found the punishment awarded to him harsh and instead of dismissal from service, the punishment of reduction to lower rank would be sufficient to meet the ends of justice---Supreme Court converted the punishment of dismissal from service into reduction to lower rank---Appeal was allowed accordingly.

(d) Negligence-----

----Negligence and wilful negligence---Distinction---Negligence is, the failure to exercise the degree of care demanded by the circumstances and he want of care which the law prescribes under particular circumstances existing at the time or the act or omission which is involved---Negligence is an omission to do something which a reasonable man guided by those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do---Wilful negligence is a negligent act which is done intentionally and knowingly with some motive and is deliberate but a wilful act may not necessarily have an evil purpose behind it.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Ch. Arshad Ali, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 11th November, 2002.

2003 P L C (C.S.) 1282

[Supreme Court of Pakistan]

Present: Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

S.M.E. BANK LIMITED through Kaiser H. Naseem, President

Versus

MEHFOOZ ELAHI PIRACHA and 2 others

Civil Petition No. 1328 of 2002, decided on 16th September, 2002.

(On appeal from the judgment dated 9-7-2002 passed by the Federal Service Tribunal, Islamabad in Appeal No.417-R/CE/2002).

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

----S.4---Service Tribunal, jurisdiction of---Absence of statutory rules providing right of departmental appeal, review or revision---Effect—In absence of such rules, the civil servant can directly assail order passed against him before Service Tribunal.

Syed Aftab Ahmed v. KESC 1999 SCMR 197; Abdul Hafeez Abbasi v. PIAC C.As. Nos.2117 to 2134 of 2001; C.A. 12 of 2002 and Engineer Nairandas v. Federation of Pakistan 2002 SCMR 82 ref.

(b) Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance (LVI of 2001)---

----S.7---Regional Development Finance Corporation Employees Regulations, 1989, Rglns. 2.8 & 10.2---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 212(3)--­Termination of service---Failure to provide opportunity of hearing---Bank employee had served for the last eighteen years and at the time of his termination of service, he was holding the position of Senior Vice­-President---Authorities terminated services of the employee in terms of a clause mentioned in his appointment letter which clause was applicable during the period of probation only---After lapse of such a long period, the employee was no more on probation and had acquired the status of confirmed employee---Plea of mala fide and bias was raised by the employee that the President of the Bank had developed malice against him due to his pointing out irregularities in appointments in the Bank and such other matters connected with the administration of the Bank which annoyed the President and he was terminated from service---Order of termination from service was set aside by Service Tribunal and the employee was reinstated in service---Validity---Plea of mala fides and bias was borne out from the record--­Supreme Court declined to take any exception to the view of matter taken by Service Tribunal---Leave to appeal was refused.

National Bank of Pakistan v. Manzoor-ul-Hassan 1985 PSC 440; University of the Punjab v. Sardar Ali 1988 SCMR 123 and Muharram Ali v. Government of Punjab 1984 SCMR 289 ref.

Tariq Mehmood Khokhar, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Date of hearing: 16th September, 2002.

2003 P L C (C.S.) 1289

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SECRETARY TO THE GOVERNMENT OF N.-W.F.P. AGRICULTURLAL DEPARTMENT

Versus

ASMATULLAH KHAN and others

Civil Appeals Nos. 1321 to 1324 of 1996, decided on 15th November, 2002.

(On appeal from the judgment of N.-W.F.P. Service Tribunal dated 16-8-1995 passed in Appeals Nos.359/95 to 362/95).

(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S.9---Notification No.FD (SRI) 2-51/72-III, dated, 2-3-1978--­Constitution of Pakistan (1973), Art.212(3)---Promotion to higher grade--­Qualification---Contention of the Authorities was that the Notification No.FD(SRI)2-51/72-III, dated 2-3-1978, had prescribed the minimum qualification for the re-designated/upgraded post in National Pay Scale 17 as Veterinary of Agriculture Graduation Degree (B.Sc. Agri. or B.Sc. Vet.) and since the civil servants were only B.Sc. they were not entitled to the concession of the notification---Leave to appeal was granted by Supreme Court to consider the contention as the same was question of general importance.

(b) North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S.9---Notification No.FD(SRI)2-51/72-III, dated, 2-3-1978---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitution of Pakistan (1973), Art. 25---Promotion to higher grade ---Qualification--­Principle of equal treatment---Service Tribunal in its earlier decision had found that all Research Assistants, whether agriculture graduate or simple science graduate would be entitled to the post of Assistant. Research Officer---Decision of the Service Tribunal on the point of law was not further challenged by the Authorities and the same had attained finality--­Civil servants in the present appeal were also granted the same benefit by the Service Tribunal---Validity---Service Tribunal in the light of principle of equal treatment had rightly found that the civil servants would be entitled to the benefit of its judgment rendered in the earlier appeal without any discrimination---Supreme Court declined to take any exception to the judgment passed by Service Tribunal---Appeal was dismissed.

Government N.-W.F.P. v. Muzaffar Iqbal 1990 SCMR 1321; Accountant-General, Pakistan Revenue v. Arbab Mukhtar Ahmad 1986 SCMR 1206 and Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776 ref.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 rel.

Mrs. Musarrat Hillali, Addl. A.-G., N.-W.F.P. and Haji M.A. Qayyum Mazhar, Advocate-on-Record (absent) for Appellant.

Khurshid Khan, Advocate Supreme Court and Hussain Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 15th November, 2002.

2003 P L C (C.S.) 1303

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Falak Sher, JJ

MUHAMMAD NAWAZ

Versus

DISTRICT AND SESSIONS JUDGE and others

Civil Petition No.393-L of 2003, decided on 25th April, 2003.

(On appeal from the judgment dated 18-12-2002 of the Punjab Service Tribunal passed in Appeal No. 1902 of 2002).

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

----Rr.6 & 7---Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), Ss.3 & 13---Constitution of Pakistan (1973), Art. 212(3)---Disciplinary proceedings pending against civil servant under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Switching over such proceedings to Punjab Removal from Service (Special Powers) Ordinance, 2000 and imposing penalty thereunder on civil servant--­Validity---Disciplinary proceedings initiated prior to coming into force of Ordinance, 2000 would be completed under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and not under Ordinance, 2000---Supreme Court set aside impugned order/judgment and remanded case to departmental authority for decision under (Efficiency and Discipline) Rules, 1999.

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th April, 2003.

2003 P L C (C.S.) 1304

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

BASHARAT ALI

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Petition No.349-L of 2002, decided on 16th April, 2003.

(On appeal from the judgment of Punjab Service Tribunal, Lahore; dated 26-11-2001 passed in Appeal No.3539 of 2000).

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

----R.4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 212(3)---Imposition of penalty on Officer in Grade-17 by Special Secretary Education (Schools)---Review petition before Secretary, Education Department and appeal before Service Tribunal filed against such order were dismissed---Validity---Secretary, Education Department being head of the Department was Competent Authority to pass such order in respect of officers up to Grade-17---Supreme Court set aside impugned orders and remanded case for further proceedings by Competent Authority in accordance with law.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Petitioner.

Shabbar Raza Rizvi, A.-G., Punjab and Hassan Nawaz Tarrar, Special Secretary (Schools), Education Department for Respondent.

Date of hearing: 16th April, 2003.

2003 P L C (C.S.) 1340

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MAZHAR HUSSAIN

Versus

HABIB BANK LIMITED

Civil Petition No. 1794-L of 2000, decided on 16th April, 2003.

(On appeal from the judgment dated 2-5-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.898(L)/99).

Service Tribunals Act (LXX of 1973)---

----S.2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)] & S.4---Constitution of Pakistan (1973), Art. 212(3)---Removal from service---Petitioner was Cashier and his services were regulated by Wage Commission Award---Service Tribunal dismissed petitioner's appeal for lack of jurisdiction on the ground that he was "workman" and not "civil servant' Validity---Tribunal had misconstrued and misinterpreted S.2-A of Services 'Tribunals Act, 1973---Such employees were amenable to jurisdiction of Tribunal being "civil servants", which status had been conferred upon them by virtue of S.2-A of the Act for limited purpose i.e. approaching Tribunal for redressal of their grievances concerning terms and conditions of service irrespective of Service Rules and Regulations applicable to their cases---Fact that services of petitioner as Cashier were regulated by Wage Commission Award or otherwise would hardly matter---Supreme Court accepted appeal and remanded case to Tribunal for its decision afresh after affording opportunity of hearing to all concerned.

Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Aftab Ahmed v. Karachi Electric Supply Corporation 1999 SCMR 197 and Zahir Ullah v. Chairman, WAPDA 2000 SCMR 826 fol.

Ch. Ghulam Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Mian Muhammad Saleem, Advocate Supreme Court for Respondent.

Date of hearing: 16th April; 2003.

2003 P L C (C S.) 1343

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

NASIM AHMAD

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Lahore and another

Civil Petition No.839-L of 2000, decided on 18th March, 2003.

(On appeal from the judgment dated 10-2-2000 of the Federal Service Tribunal, passed in Appeal No. 857(L) of 1999).

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

----S.17(1-A)(a)---Service Tribunals (Procedure) Rules, 1974, R. 6(2)--­Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service without completion of necessary legal formalities---Departmental appeal and appeal before Service Tribunal were dismissed ---Validity--­Competent Authority had misused its powers as same had neither issued show-cause notice nor assigned any reason nor afforded proper opportunity of hearing to civil servant---No unbridled and unfettered powers had been conferred upon Competent Authority under S.17(1-A) of the Act to shunt out its employees at its own whims and wishes without completion of necessary legal formalities---Civil servant had alleged specific mala fides alongwith affidavit, which had been ignored by Tribunal---Service Tribunal was competent to examine as to whether order passed under S.17(1-A) of the Act was bona fide or mala fide---Departmental appeal had been dismissed in a perfunctory and slipshod manner by means of a non-speaking order---Supreme Court accepted appeal, set aside order of retirement and impugned judgment and reinstated civil servant with immediate effect with all back benefits with observation that Competent Authority would be at liberty to initiate fresh action, if deemed fit and proper, subject to all legal exceptions and strictly in accordance with law.

WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and Ejaz Nabi Abbasi v. WAPDA 1992 SCMR 774 rel.

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

----S.17(1-A)---Power of Competent Authority to remove or retire employee of WAPDA---Scope---Authority had no unbridled and unfettered powers to shunt out its employees at its own whims and wishes without completion of necessary legal formalities.

WAPDA v. Sikandar Ali Abro 1998 SCMR 137 rel

Mian Mahmood Hussain, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner.

Abdur Rehman Madni, Advocate Supreme Court for Respondents.

Date of hearing: 18th March, 2003.

2003 P L C (C.S.) 1352

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

FIDA HUSSAIN JAVED and 3 others

Versus

DIRECTOR FOOD, PUNJAB and others

Civil Petitions Nos.2966-L to 2968-L and 4145-L of 2002, decided on 28th May, 2003.

(On appeal from the judgment dated 23-5-2002 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.570/92, 571/92, 595/92, and 1275 of 1994).

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

----R.4(1)(b)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 212(3)---Charge of embezzlement---Compulsory retirement from service and recovery of amount---Such penalty was imposed upon petitioners and two other officers on the basis of evidence collected during inquiry---Service Tribunal dismissed appeals filed by petitioners, but accepted appeals of other officers---Validity---Petitioners in spite of having been served with show-cause notice and publication made in press had deliberately avoided to participate in disciplinary proceedings---Petitioners had been compulsory retired as a result of subjective assessment made by Competent Authority regarding their performance, which was not found above board---Such assessment fell in exclusive jurisdiction of Competent Authority---Charge of embezzlement had been proved as a result of departmental inquiry, which otherwise was not possible without connivance of petitioners, who had signed documents concerning handing over stock of misappropriated wheat ---Factum of embezzlement being question of fact, had been determined by Competent Authority after having comprehensive inquiry, which determination had been upheld by Service Tribunal--­Sufficient incriminating material had come on record against other two officers, but absolving them of such charge would amount to sheer discrimination---Supreme Court dismissed petition filed by petitioners and refused to grant them leave to appeal with directions to other two officers to show-cause ac to why judgments of Service Tribunal passed in their favour (not appearing to be in consonance with evidence as collected against them during inquiry on the basis of which such penalty had been imposed upon petitioners) be not set aside and major penalty imposed upon them by Department be kept intact.

Munawar Tahir Hussain v. Government of the Punjab 1990 SCMR 1470 and Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679 rel.

(b) Civil servant---

----Annual Confidential Report---Performance of civil servant could not be assessed only on basis of ACR.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 2003.

2003 P L C (C.S.) 1357

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

THE PROVINCE OF PUNJAB through Secretary C&W Department and others

Versus

IBRAR YOUNAS BUTT

Civil Petition No.3815-L of 2002, decided on 19th June, 2003.

(On appeal from the judgment dated 17-10-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.788 of 2002).

(a) Civil service---

----Good governance largely dependent on upright, honest and strong bureaucracy---Subservient bureaucracy neither helpful to Government nor inspires confidence in administration---Duty of Government servant to comply with only legal and competent order/direction of his superior Authority, but not illegal and incompetent of order/direction on any plea including risk of disciplinary action---Duty of bureaucrat to apprise elected representative placed as incharge of Government Department about niceties of administration, provide him correct guidance and bring to his notice legal infirmities in the orders/directions---Principles.

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

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Deputation---Lien--­Civil servant while on deputation was permanently absorbed in borrowing Department with consent of parent Department---Repatriation of civil servant to his parent Department after lapse of one decade and treating intervening period spent in borrowing Department on deputation---Service Tribunal accepted appeal of civil servant---Validity---After termination of his lien in parent Department, civil servant could not be repatriated without affording him proper opportunity of hearing as certain vested rights had accrued in his favour after permanent absorption---Repatriation could not be directed in ail arbitrary manner as no unfettered powers had been conferred upon Chief Secretary to pass such order, which was not in accordance with relevant law and rules made thereunder---After lapse of more than a decade, validity of initial appointment and subsequent absorption could not be questioned save in accordance with law---Performance of civil servant was not above board, who was facing some inquiries on account of corruption---Proper course for Authority was to complete inquiry, and in case allegation of corruption was proved, civil servant could be shunted out from service in accordance with law---Corrupt civil servant would neither become an angel after his repatriation from one Department to the other nor same would be a solution in such-like problems---Order of repatriation had resulted in serious miscarriage of justice---Impugned order being well-based did not warrant any interference---Supreme Court dismissed petition and refused to grant leave to appeal.

Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 24th February, 2003.

2003 P L C (C.S.) 1372

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karmat Nazir Bhandari, JJ

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

Versus

MUHAMMAD SHARIF TIRMAZI.

Civil Petition No. 1252-L of 2002, decided on 12th May, 2003.

(On appeal from the judgment dated 12-2-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.3562 of 1999).

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

----R. 4(a)(ii),(b)(i)---Constitution of Pakistan (1973), Art.212(3)---Penalty of reduction in pay by three, stages lower in time scale---Charges of embezzlement and willful absence---Service Tribunal converted such major penalty to that of minor penalty of withholding of three increments--­Validity---Such charges had not been proved by adducing cogent and concrete evidence---Penalty of reduction in pay by one stage in lower time scale as recommended by Authorized Officer was probably due to reason that financial irregularities were not grave in nature---Penalty of reduction in pay by three stages lower in time scale as awarded by Competent Authority was unlawful as 'same could be made, but not beyond that lower stage, such penalty had rightly been , set aside by Tribunal---Minor penalty of withholding of three increments would meet ends of justice---No question of law of public importance being involved, Supreme Court dismissed petition and refused leave to appeal.

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

----R. 4(b)(i)---Reduction to "a" lower stage in time, scale---Meaning---Such reduction could be made to "one" lower stage, but not beyond that.

Miss Salma Malik, Asst. A.G., Punjab and Rao M. Yusuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 12th May, 2003.

2003 P L C (C.S.) 1379

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION AND POWER DEPARTMENT, LAHORE

Versus

ABDUR RASHID KHAN

Civil Petition No. 1624-L of 2002, decided on 17th February, 2003.

(On appeal from the judgment/order dated 16-3-2002 passed by Punjab Service Tribunal, Lahore in Appeal No. 1126 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Recovery of Government loss after retirement of civil servant---Failure to get F.I.R. registered against theft of Government trees---Authorities had imposed recovery from pension of the civil servant of the amount of loss sustained by Government---Civil servant had informed senior official regarding the incidence of theft but the official did nor permit the civil servant to lodge report because the senior official had told him to keep in abeyance the registration of the case---Service Tribunal allowed the appeal of civil servant and order passed by the Authorities was set aside---Validity---Service Tribunal had rightly granted relief to the civil servant---Judgment passed by Service Tribunal did not call for any interference by Supreme Court in exercise of jurisdiction under Art.212(3) of the Constitution---Leave to appeal was refused.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

Date of hearing: 17th February, 2003.

2003 P L C (C.S.) 1389

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

MUHAMMAD QADEER and 2 others

Versus

THE SECRETARY, DEFENCE PRODUCTION DIVISION, GOVERNMENT OF PAKISTAN and others

Civil Petitions Nos. 1339, 1340, 1341 of 2002, decided on 16th July, 2003.

(On appeal from the judgment dated 27-4-2002 of Federal Service Tribunal, Islamabad in 197, 212, 213(R)/CS/2001 etc).

Civil Servants Act (LXX of 1973)---

----S.13 [as amended by Civil Servants (Amendment) Ordinance (XLIII of 2000)]---Service Tribunals Act (LXXI of 1973), S.4---Government Servants (Efficiency and Discipline) Rules, 1973, R.4(b)(ii)---Constitution of Pakistan (1973), Art.212(3)---Retirement from service---Compulsory retirement--­Distinction---Object, scope and application of S.13, Civil Servants Act, 1973 highlighted---Provisions of S.13(2) of the Act provided that a civil servant could not be retired, unless he had been informed in writing of the grounds on which action was proposed against him and reasonable opportunity of showing cause against said direction was given to him---Authorities, in the present case, having complied with S.13(2) of the Act, Supreme Court declined interference.

Perusal of section 13 of Civil Servants Act, 1973 reveals that a civil servant shall retire from service on completion of 25 years of service qualifying for pension or other benefits, as the competent authority may, in public interest, direct and where no direction is given under clause (i) in that eventuality on completion of 60 years. Subsection (2) lays down that no direction under clause (i) of subsection (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction, and has been given a reasonable opportunity of showing cause against the said direction. Under section 13-the Government has clear option to retain or not to retain a civil servant in service after 25 years service. Of course, it is subject to the subsection (2) of said section, but the fact remains that under section 13, the Government now is competent to curtail the service period to above extent, which otherwise would have gone to 60 years of age. Once it is established that the Government has correctly exercised its powers under section 13, the Tribunal would have no power to grant any extension in service for the simple reason that the powers so exercised by the Government conclusively remains within the domain of terms and conditions of service.

Subjection (2) of section 13 clearly lays down that a civil servant cannot be retired, unless he has been informed in writing of the grounds on which action is proposed against him and reasonable opportunity of showing cause against said direction is given to him. The validity and propriety of section 13, as it now stands, are not disputed. It is in the interest of civil servant and the Government, as well.

There is a basic difference in term of compulsory retirement within the meaning of section 4(b)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973 and section 13 of the Act. Under the Rules of 1973, Compulsory Retirement is a punishment, while under section 13, it is not a punishment and a civil servant under this section gets all service benefits without any stigma.

The object of section 13 is to improve the efficiency and discipline in the civil service and for the purpose the civil servants, who have completed 25 years service, yet, have not done anything good for the department, are retired from service. Their retirement in fact is in public interest. The civil servants, who for 25 years served with a minimum level of efficiency, cannot legitimately be expected to do better if permitted to continue thereafter. After completion of 25 years of service, if not all, at least sufficient numbers of them, do not take pair in performing their duties and only want to stay with that sort of performance, which may be in their interest, but certainly not in the .interest of public. Those, who perform their duties diligently, are even re-employed after they attain the age of super annuation. An efficient civil servant is always an asset and is well looked after, whereas those, who do nor possess. such qualities are retired and that too without causing any harm to them. Section 13 is linked with the principles of good governance, which is basic requirement nowadays.

A civil servant is retired under section 13 only when he ceases to be efficient or on the basis of part performance, which was unsatisfactory or of near about said category. The deficiency in performance can occur any time, therefore, each case shall be decided on its own merits. No hard and fast rules can be laid down, as to when a Government servant shall be retired after completion of 25 years' service. There may be cases where till the age of sixty years, the civil servants may be fit to do their duties at the highest level of efficiency. On the other hand, there may be cases of those, who after 25 years of service become a parasite for their department. It is significant to note that the Legislature in its wisdom has not fixed any period for retirement but has left it to the discretion of the competent authority, saying that on such date, as the competent authority may direct in public interest, a civil servant shall retire. Fixation of any period would not be in accordance with the spirit of section 13 of the Act.

Subsection (2) of section 13 was complied with by the Authorities before the petitioners were retired. Supreme Court declined interference.

Pakistan and others v. Public-at-Large and others PLD 1987 SC 304 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court and M.A Zaidi, Advocate-on-Record for Petitioners.

Anwar Mughal, Manager Legal for Respondent No.2.

Date of hearing: 16th April, 2003.

2003 P L C (C.S.) 1404

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Sardar Muhammad Raza, JJ

ZIA GHAFOOR PIRACHA

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI and others

Civil Petitions Nos. 1384 and 1385 of 2002, decided on 2nd June, 2003.

(On appeal from the consolidated judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3-7-2002 passed in I.C.As. Nos.70 and 71 of 2002 respectively)

(a) Interpretation of statutes---

---- Service Regulations of a Statutory Body---Government as required by the Statute having not given its formal approval to the said Regulations, the same would be termed as internal instructions or domestic rules having no status of statutory rules.

The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 ref.

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

----Ss. 12(1)(a), 12(8)(iii)(iv), 14, 15, 17 & 20(1)(iii)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Constitution of Pakistan 1973), Art. 185(3)---Service Regulations of the employees of the Board--­Nature---Dismissal of employees of the Board by the Chairman ---Validity--­Different categories of persons were working in the hierarchy of the Board; some were termed as officers whose terms and conditions were determined by the Controlling Authority but respecting certain employees in BPS-5 to 15, according to Service Regulations of the Board No. 8, the Chairman had all the powers under the law as well as Regulations---Petitioner having been appointed by the Chairman of the Board being Competent Authority, disciplinary action against said employee could be taken by him being Appointing Authority, under S.12 (1)(a) of the Punjab Boards of Intermediate and Secondary Education Act, 1976---Service Regulations of the Board being not statutory in nature adoption of Punjab Civil Service (Efficiency and Discipline) Rules, 1975 by the Board would not make the said Service Regulations statutory in nature---High Court, in circumstances, had rightly dismissed the Constitutional petition of the employee being not maintainable---Petitions for leave to appeal were dismissed.

The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Hamid Mukhtar Piracha v. Faisalabad Development Authority 1984 PSC 42 ref.

Syed Najamul Hassan Kazmi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos. 1 to 2.

Sajjad Hussain Shah, A.-A.G., Punjab and Rao M. Yousaf Khan, Advocate-on-Record for Respondent No.3.

Date of hearing: 2nd June, 2003.

2003 P L C (C.S.) 1413

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ABDUL QAYYUM

Versus

DISTRICT AND SESSIONS JUDGE and others

Civil Petition No. 2111-L of 2002, decided on 24th February, 2003.

(On appeal from the judgment dated 3-6-2002 of the Punjab Service Tribunal, Lahore, passed in A. No. 133 of 2002).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement from service---Unwilling worker---Non-appearance before Inquiry Officer---Civil servant Was habitual latecomer and absentee and appeared to be arrogant---During departmental inquiry, the civil servant did not Appear before Inquiry Officer and entered appearance only after warning was administered to him---Civil servant was earlier dismissed on several occasions and was subsequently reinstated on humanitarian grounds--­Validity---Conclusion drawn by Inquiry Officer duly concurred by the Authorities and upheld by Service Tribunal being well based did not arrant any interference---Leave to appeal was refused.

Ibne Hassan, Advocate Supreme Court and Walayat Umar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th February, 2003.

2003 P L C (C.S.) 1418

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD RAFIQUE

Versus

DIRECTOR-GENERAL, PAKISTAN RANGERS (SINDH)

Civil Petition No.2467-L of 2000, decided on 2nd June, 2003.

(On appeal from the judgment dated 15-8-2000 of the Federal Service Tribunal, Lahore Bench passed in Appeal No.331/L of 1998), Pakistan Rangers Recruitment Rules, 1968---

----R.13(3)(4), Explains. I & II---Constitution of Pakistan (1973), Art. 212(3)---Reversion to former rank on unsatisfactory performance after expiry of probation period---Such order was passed on 9-12-1997, while probation period of civil servant ended on 30-10-1997---Claim of civil servant was that he stood confirmed on the expiry of maximum period of probation---Departmental appeal and appeal filed before Service Tribunal were dismissed---Validity---Competent Authority, if considered performance of civil servant unsatisfactory, was required to pass order of reversion by day on which maximum period of probation expired---Consequence of non­ passing such order by 30-10-1997 was that civil servant stood confirmed by force of law- --Substantial question of law in shape of interpretation of R.13(3)(4) of Pakistan Rangers Recruitment Rules, 1968 being involved, Supreme Court allowed appeal and set aside the impugned judgment.

Hafiz Tariq Naseem, Advocate Supreme Court and Mahmoodul Islam, Advocate-on-Record for Petitioner.

Muhammad Nawaz Bhatti, D.A.G. for Respondent.

Date of hearing: 2nd June, 2003,

2003 P L C (C.S.)1421

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

Ch. MUHAMMAD HUSSAIN NAQSHBANDI

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Petition No. 173-L of 2001, decided on 7th May, 2003.

(On appeal from the judgment dated 7-12-2000 of the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, passed in Service Appeal No.38 of 1996).

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

----R.7---Probation period---Further extension---Scope---Initial period of probation was. two years subject to further extension of two years---Total period of probation would be four years, which could not be extended beyond that---Where no order was made on completion of initial two years of probation period, same would be deemed to have been extended---Further extension for two years could be made irrespective of fact, whether civil servant was appointed by way of initial recruitment or otherwise.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.4---Punjab Civil Servants Act (VIII of 1974), S.10(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.7--­Constitution of Pakistan (1973), Art. 212(3)---Probationer---Termination of service after completion of two years of probation period---Petitioner's contention was that such order could not be passed without issuing show­cause notice; and that on expiry of two years of probation period, he stood automatically confirmed---Tribunal dismissed petitioner's appeal--­Validity ---Total period of probation under R.7 of Punjab Civil Servants (Appointment and Conditions of Service), 1974, was four years, which could not be extended beyond that ---Question of "automatic confirmation" would not arise as in absence of any order on completion of initial two years of probation period, same would be deemed to have been extended for further two years ---Petitioner had not challenged order extending probation period, thus, had impliedly accepted the same---No stigma of misconduct including inefficiency or corruption had been attached with termination of services of petitioner, same would be a case of "termination simpliciter"---Question of issuing show-cause notice prior to such termination would not arise as same was not obligatory on Competent Authority to have issued--.-High Court could not be compelled to reinstate or confirm petitioner as reinstatement and confirmation both would depend on subjective assessment of particular incumbent, which aspect of the matter squarely fell within jurisdictional domain of High Court---Impugned judgment was strictly in accordance with settled norms of. justice---No question of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Tahir Hussain Shirazi v. Governor of the Punjab 1990 SCMR 1510; Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393; Pakistan Punjab Province v. Riaz Ali Khan 1982 SCMR 770; The Deputy Registrar, Cooperative Societies, Peshawar Division and another v. Farman Ali 1991 SCMR 400; Karachi Port Trust through Chairman, Board of Trustee v. Altaf Ahmed and another 1996 SCMR 1205; The Secretary, Government of the Punjab through Secretary, Health Department, Lahore v. Riaz-ul-Haq 1997 SCMR 1552; Iqbal Wasti v. Collector of Customs, Karachi 1987 PLC (C.S.) 758; Federation of Pakistan v. Riaz Ali Khan PLD 1958 (W.P.) Lah. 22; Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Abdul Karim v. The West Pakistan Province PLD 1956 SC (Pak.) 298 and The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Haque 1970 SCMR 398 rel.

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

-----S.10(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.7---Probationer---Termination simpliciter and dismissal or removal from service without show-cause notice---Scope--­Services of probationer could be terminated without notice during initial or extended period of probation---Where no stigma of misconduct including inefficiency or corruption was attached, same would be a case of "termination simpliciter", thus, question of any prior show-cause notice would not arise--- "Termination simpliciter" could not be equated with that of "dismissal" or "removal", where probationer would be eligible for show­ cause notice.

Amjad Hussain Syed, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 7th May, 2003.

2003 P L C (C.S.) 1429

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD AFZAL

Versus

INSPECTOR-GENERAL OF POLICE and others

Civil Petitions Nos.3937-L of 2001, 3980-L of 2001, 106-L to 109-L of 2002, 618-L to 620-L of 2002, decided on 26th May, 2003.

(On appeal front the judgments dated 17-10-2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.79/96, 35/96, 15/96, 139/96, 140/96, 141/96, 16/96, 17/96 and 248/96).

(a) Civil service---

----Pro forma promotion---Petitioners claimed such promotion on analogy of officers junior to them, who had already secured pro forma promotion through judgments of Service Tribunal---Departmental representation and appeal before Service Tribunal were dismissed ---Validity---Petitioners had not challenged such judgments, whereby not only their juniors had been promoted, but their inter se seniority had been disturbed---Such judgments had attained finality irrespective of fact, whether those were to consonance with law or not---Such judgments had been implemented in letter and spirit and valuable rights had accrued in favour of others---If prayer of petitioners was accepted, then they would become senior to few hundreds of -their senior colleagues, who had not been impleaded as party and would be adversely affected---Such petitions were, thus, not competent---Petitioner's contention that such judgments being judgments in personam were not applicable to their case, was repelled---No question of law of public importance was involved---Supreme Court dismissed petitions and refused to grant leave to appeal.

Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Muhammad Sohail v. Government of N.-W.F.P. 1996 SCMR 218 and M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145 rel.

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

---S.4---Original departmental representation appeal/review barred by time--­Appeal before Service Tribunal ---Condonation of delay---Principles.

If original representation was barred by time and aggrieved employee did not disclose sufficient cause for such delay or inability to move Departmental Authority within prescribed period, then no subsequent order of disposal of such incompetent representation/appeal/review could create fresh cause of action or automatically operate to condone delay of limitation in availing remedy under section 4 of Service Tribunals Act, 1973.

Abdul Wahid v. Chairman, Central Board of Revenue 1998 SCMR 882; Aziz Ahmed v. Secretary to Government of Pakistan 1985 SCMR 368; WAPDA v. Aurangzeb 1988 SCMR 1354; Federation of Pakistan v. Muhammad Azim Khan 1989 SCMR 1271; 1982 SCMR 582; Muhammad Hasham v. Inspector-General of Police 1990 SCMR 1440; Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505; ' S.S. Qureshi and 15. others v. Secretary, Ministry of Foreign Affairs and 5 others 1985 SCMR 1953; S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 rel.

(c) Police Rules, 1934----

----R.13.14(2)(a)(b)---No promotion could be made in violation of R.13.14(2)(a)(b) of Police Rules, 1934.

Malik Amjad Pervaiz, Advocate Supreme Court and Walayat Umer, Advocate-on-Record for Petitioners. (in C.P. No. 3937-L of 2001).

Ch. Muhammad Sadiq, Advocate Supreme Court and Mian Ataur Rehman, Advocate-on-Record for Petitioners (in C.Ps Nos.3980-L of 2001, 106 to 109/L of 2002 and 618 to 620-L of 2002).

Miss Yasmin Sehgal, Asstt.-A.G., Punjab, A.H. Masood, Advocate Supreme Court and Saleem Sikandar, Asstt. Inspector-General of Police for Respondents.

Date of hearing: 26th February, 2003.

2003 P L C (C.S.) 1434

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

PROVINCE OF PUNJAB through the Director (E.E.), Lahore Division, Lahore and others

Versus

MUHAMMAD AFZAL

Civil Petition No. 1950-L of 2001, decided on 29th April, 2003.

(On appeal from the judgment dated 27-3-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.935 of 2000).

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

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal service---Appointment of civil servant after six years was alleged to be bogus and procured by exerting political pressure---Civil servant was dismissed from service on such allegation---Service Tribunal accepted civil servant's appeal---Validity---No evidence had been led to support such accusation---No regular inquiry had been made to unveil reality---Civil servant possessing requisite qualification for appointment as PTC Teacher ­Competent Authority had made such appointment at recommendations Tehsil Recruitment Committee---Civil servant had been dismissed from service after having rendered six years' service without affording opportunity of hearing and completion of mandatory formalities as envisaged to Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 causing him serious prejudice and resulting in grave miscarriage of justice---Such dismissal smacked of mala fides---Impugned judgment being well-reasoned did not warrant interference---Supreme Court dismissed petition and refused to grant leave to appeal.

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

----Rr. 5, 6 & 7---Regular inquiry and haphazard probe---Distinction and effect---Haphazard probe and its result without following prescribed procedure as enumerated in Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 could not be equated to that of inquiry and would have no significance at all.

(c) Civil service---

---- Illegal order and arbitrary direction issued by person having no authority---Duty of bureaucracy to disobey such order and direction--­Emphasized.

Bureaucracy should be courageous enough to disobey illegal orders irrespective of the fact, who had issued them including politicians/MNAs/ MPAs having no authority to pass such order or give such arbitrary directions, so that no illegal appointment could be made in contravention of law and under political influence or for any other extraneous considerations.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 29th April, 2003.

2003 P L C (C. S.) 1

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J

and Muhammad Yunus Surakhvi, J

INSPECTOR‑GENERAL OF POLICE, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 2 others

Versus

GHULAM MUSTAFA and 22 others

Civil Appeal No.5 of 2002, decided on 7th June, 2002.

(On appeal from the judgment of the Service Tribunal dated 19‑10‑2001 in Service Appeal No.212 of 2000).

(a) Police Act (V of 1861)‑‑‑

‑‑‑‑S. 46(2)(3)‑‑‑Police Rules, 1934, Rr.13.1(4) & 13.7(2)‑‑‑Notification issued under S.(3) of Police Act, 1861‑‑‑Non‑publication in Official Gazette‑‑‑Effect‑‑‑Notification dated 11‑6‑1999 introduced amendments in Rr.13.1(4) & 13.7(2) of Police Rules, 1934 empowering Inspector‑General of Police to prescribe promotion list linked with special training courses and examination‑‑‑Inspector‑General of Police issued Standing Order No.4/99, dated 5‑11‑1999 prescribing age limit of 37 years for being included in List B‑2 and to undergo special courses‑‑‑Civil servants were not included in List B‑2 prepared in consequence of Standing Order‑‑‑Objection of civil servants was that Standing Order could not be issued on the basis of Notification not published in Official Gazette‑‑‑Validity‑‑‑Notification dated 11‑6‑1999 had not been published in Official Gazette as required by S.46(2) of Police Act, 1861‑Urder issued by Inspector‑General of Police was of no legal effect and action taken on the basis of such amendment and Standing Order was of no legal consequence.

Alam Din and 12 others v. Administrator Auqaf, Azad Government of the State of Jammu and Kashmir, Muzaffarabad and 2 others 1989 CLC 578; Chief Administrator of Auqaf, West Pakistan, Lahore v. Mst. Nooran and 7 others 1980 CLC 378 and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 ref.

(b) Police Rules, 1934--‑‑

‑‑‑‑Rr. 13.1(4) & 13.7(2)‑‑‑Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4‑.‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47‑Amendments introduced in Rr. 13.1(4) & 13.7(2) of Police Rules, 1934 through Notification dated 11‑6‑1999 empowering Inspector‑General of Police to prescribe promotion list linked with special training courses and examination‑‑‑Inspector‑General of Police issued Standing Order prescribing age limit of 37 years for being included in List B‑2 to undergo special courses‑‑‑Civil servants for having crossed age of 37 years were not included in List B‑2 prepared in consequence of Standing Order‑‑‑Service Tribunal accepted appeal of civil servants observing that Police Rules did not envisage any age limit for being included in List B‑2 nor amendment empowered Inspector‑General of Police. to issue such an order‑‑‑Validity‑‑‑Such observations of Service Tribunal were not correct‑‑­Amending order dated 11‑6‑1999 clearly showed that conditions suitable "for drill and other special course" could also be prescribed by Inspector‑General of Police‑‑‑Word "drill" in notification did not leave any doubt that age limit could be prescribed in notification‑‑‑Supreme Court accepted appeal to that extent.

Riaz Naveed Butt, Additional Advocate‑General for Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondents.

Dates of hearing: 3rd and 5th June, 2002.

2003 P L C (C.S.) 23

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi. JJ

AJ&K COUNCIL and 2 others

Versus

ABDUL RASHID TAHIR and 255 others

Civil Appeal No. 33 of 2000, decided on 17th November, 2000.

(On appeal from the judgment of the High Court dated 11‑1‑2000 in Writ Petition No. 111 of 1991).

Azad Jammu and Kashmir Council Secretariat Employees Medical Allowances and Treatment Rules, 1980‑‑‑--

‑‑‑‑R.1‑‑‑Azad Jammu and Kashmir Civil Servants Act, 1976, S.3‑‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S.4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47‑‑‑Civil service‑‑­Medical allowance as terms and conditions of service‑‑‑Jurisdiction of High Court‑‑‑Terms and conditions which were not provided either in Azad Jammu and Kashmir Civil Servants Act, 1976 or in the Rules, would not be included in the category of terms and conditions of service‑‑‑Rules framed under the Act in the present case had clearly regulated a provision with regard to grant of medical allowance to civil servants‑‑‑Medical allowance having been included within the expression "terms and conditions of service of civil servants", the jurisdiction of High Court was totally ousted to issue a writ with regard to matter of allowing medical allowance to the civil servants and only Service Tribunal would have the jurisdiction in the matter‑‑‑Civil servant could not bypass the jurisdiction of Service Tribunal by adding a ground of violation of Fundamental Rights‑‑‑Any case which was founded on terms and conditions of service of a civil servant, even it involved the question of violation of Fundamental Rights, was triable by the Service Tribunal and not by the High Court in exercise of writ jurisdiction.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 and Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46 ref.

Hafiz S.A. Rehman, Advocate and Raja Muhammad Hanif Khan Advocate for Appellants.

Ghulam Mustafa Mughal, Advocate for Respondents.

Date of hearing: 4th October, 2000.

2003 P L C (C.S.) 87

[Azad J & K]

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD ANWAR KHAN

Versus

A.K. GOVERNMENT through Chief Secretary having his Office at Muzaffarabad and 2 others

Constitutional Petition No. 10 of 2001, decided on 6th June, 2002.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44(2)(a)(i)‑‑‑Writ of mandamus‑‑‑Issuance of‑‑‑Civil service‑‑­Government of Azad Jammu and Kashmir had adopted rule of parity through Notification whereby all gazetted and non‑gazetted employees of Azad Kashmir Government were equated with their counter‑parts in Punjab (Pakistan) with respect to their pay and privileges‑‑‑Petitioner through writ petition had sought writ of mandamus against Authorities to implement the said notification on principle of parity ‑‑Petition was resisted contending that as the matter pertained to jurisdictional competence of Service Tribunal because it dealt with terms and conditions of service, writ petition before High Court was not maintainable‑‑‑Validity‑‑‑Petitioner had sought direction to the Authorities to act upon their notification in accordance with law‑‑­Petitioner had not sought quashing of any Government action or any order affecting terms and conditions of his service, but only a direction to act in accordance with law and notification regarding rule of parity‑‑‑Power to issue a direction to that effect vested in High Court under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1973‑‑‑Petition was maintainable in circumstances.

(b) Legislation‑‑‑

‑‑‑‑ Retrospectivity was sole prerogative of Legislature and no notification. Government order or administrative order could be given retrospective effect.

Islamic Republic of Pakistan v. Mazhar‑ul‑Haq and others 1977 SCMR 509; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Fazal Ahmad v. Ziaullah Khan PLD 1964 SC 494 and Justice (Rtd.) Qazi Abdul Ghafoor v. A.K. Government 1996 CLC 1556 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S.4 & Fundamental Rights Nos.15 & 17‑‑‑Civil service‑‑‑Equality of State Subjects and safeguard against discrimination in service‑‑‑When a substantive right had accrued to a person, it could not be snatched by Government through an executive order by giving it retrospective effect‑‑‑To remove discrimination and to give a right to a person, however, was a separate matter ‑‑‑Azad Jammu and Kashmir Interim Constitution Act, 1974 has provided equality to all State Subjects before law and they were entitled to equal protection of law‑‑‑When a Notification or a Government order or any administrative order which amounted to discrimination and was found to be violative of basic rights of a citizen guaranteed under Constitution that would need correction so that it could be couched in such a way which did not offend principle of equality before law and fundamental rights enshrined in Azad Jammu and Kashmir Interim Constitution Act. 1974‑‑‑Superior Courts would never allow a discriminatory treatment to a citizen of State even through legislation what to talk of an administrative order‑‑‑Any administrative order or Government notification which would discriminate an employee regarding service benefits without any legal justification or would snatch his substantive right, would be considered violative of the constitution.

Sardar Khan for Petitioner.

Raja Mumtaz Kayani, Additional Advocate‑General for Respondents.

2003 P L C (C. S.) 120

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

DIRECTOR GENERAL HEALTH, AZAD JAMMU AND KASHMIR GOVERNMENT, MUZAFFARABAD and another

Versus

MUHAMMAD SHABBIR

Civil Appeal No. 166 of 2001, decided on 14th April, 2002.

(On appeal from the judgment of the Service Tribunal dated 8‑8‑2001 in Service Appeal No. 62 of 1996).

(a) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑‑--

‑‑‑‑Rr.3, 4, 5 & 6‑‑‑Dismissal from service‑‑‑Reinstatement‑‑‑Civil servant was dismissed from service after initiating disciplinary action against him under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 on allegation of theft‑‑‑Criminal case was also registered against civil servant but he was honourably acquitted by Trial Court and acquittal order passed by Trial Court had attained finality as no appeal was filed against the said order‑‑‑Civil servant who was proceeded against on ground that he was found guilty of a criminal offence, having been acquitted of that charge had to be reinstated in service because no other misconduct relating to his service was attributed to him.

Shabir Ahmed v. Azad Government and another 1997 PLC (C.S.) 478; Chairman AKLASC and 2 others v. Abdul Hamid Siddique and another 2001 SCR 334; Safiullah v The Managing Director, Agricultural Development Authority, N.‑W.F.P. Peshawar and 2 others PLD 1989 Pesh. 124; Abdul Razzaq v. Superintendent of Police, Faisalabad and another 1986 PLC (C.S.) 222; Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCMR 1309; Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 2 others 1997 PLC (CS) 1047; Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore 1985 SCMR 1062 and Government of West Pakistan v. Mian Muhammad Hayat PLD 1976 SC 202 ref.

(b) Azad Jammu.and Kashmir Civil Servants (Efficiency and Discipline) Rules. 1977‑---------

‑‑‑‑Rr.3, 4. 5 & 6‑‑‑Dismissal from service on allegation of theft‑‑‑Civil servant was dismissed from service after initiating disciplinary action against him under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑‑Criminal case was also registered against civil servant, but he was acquitted honourably by Trial Court holding that prosecution had failed to prove case against him and that order of acquittal had attained finality‑‑‑Mere accusation was not sufficient for proceedings against civil servant under provisions of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules. 1977, but accusation must be supported by some material which could justify accusation so, made.

Raja Muhammad Hanif Khan. Advocate for Appellants.

M. Tabassum Aftab Alvi. Advocate for Respondent.

Date of hearing: 2nd April, 2(x)2.

2003 P L C (C.S.) 388

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, Actg. C.J.

and Khawaja Muhammad Saeed, J

MUHAMMAD ASLAM

Versus

SENIOR VICE‑PRESIDENT AND ZONAL CHIEF, HABIB BANK LTD., and 4 others

Civil Appeal No.92 of 2001, decided on 8th April, 2002.

(On appeal from the judgment of the High Court dated 11‑5‑2001 in Writ Petition No.421 of 2000).

(a) Azad Jammu and Kashmir Industrial Relations Ordinance, 1974‑‑‑-

‑‑‑‑Ss.42 & 30‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A, 4 & 6‑‑­Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Employee of Bank‑‑‑Dismissal from service‑‑‑Insertion of S.2‑A in Service Tribunals Act, 1973, during pendency of appeal filed by Bank against order of Labour Court reinstating the employee in service‑‑‑Labour Appellate Tribunal dismissed appeal as not competent‑‑‑High Court accepted Constitutional petition of Bank finding that Labour Appellate Court was competent to hear appeal‑‑‑Validity‑‑‑Provision of S.2‑A of Service Tribunals Act, 1973 was procedural, which had changed the forum for remedy and had not taken away any vested right of parties ‑‑‑ Proceedings before any other forum stood abated automatically after insertion of S.2‑A in Service Tribunals Act, 1973‑‑‑Bank should have availed the remedy of appeal under Service Tribunals Act, 1973 within 90 days‑‑‑Constitutional petition was not maintainable as such remedy was not available to Bank under the scheme of law‑‑‑Supreme Court accepted appeal and set aside impugned order being without jurisdiction.

National Bank of Pakistan, Principal Office, Peshawar v. Anwarul Haq 1999 PLC (C.S.) 316 ref.

(b) Interpretation of statutes‑‑-

‑‑‑‑ Law is to be taken into consideration as a whole‑‑‑No part or word thereof should be omitted from consideration‑‑‑Intention behind statute/rules must be taken into consideration, which can be gathered from looking into the statute/rules as a whole‑‑‑Attempt should be made to reconcile various provision of statute for rational meaning avoiding redundancy to any proviso thereof.

Khalid Mehmood Butt and others v. Managing Director, AKMIDC and others Civil Appeal No. 128 of 2000 fol.

(c) Interpretation of statutes‑‑‑-

‑‑‑‑ Amendment in a statute‑‑‑Operation, whether prospective or retrospective‑‑‑Determination‑‑‑Amendment merely of procedural nature would operate retrospectively‑‑‑If amendment also affects existing rights of substantive nature, which would cause inconvenience and injustice, then Court would not give retrospective effect to such procedural amendment.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑Operation of legislation‑‑‑Presumption‑‑‑Statutes are presumed to be applicable prospectively unless a clear intention for retrospective effect is shown in the law.

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and Muhammad Alam and 3 others v. The State PLD 1967 SC 259 fol.

(e) Interpretation of statutes‑--

‑‑‑‑ Legislation, whether procedural in nature or affecting substantive rights of parties‑‑‑Determination‑‑‑Such question is to be decided in the light of provisions of relevant statute and no general principle can be laid down in this regard.

Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents Nos. 1 to 3.

Date of hearing: 6th March, 2002.

2003 P L C (C.S.) 424

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, Actg. C.J. and Khawaja Muhammad Saeed, J

Raja SHOUKAT MEHMOOD

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Civil Secretariat, Muzaffarabad and another

Civil Appeal No.91 of 2001, decided on 15th March, 2002.

(On appeal from the judgment of the High Court dated 2‑4‑2001 in Writ Petition No.427 of 2000).

(a) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑

‑‑‑‑S.8‑A [as inserted by Azad Jammu and Kashmir Civil Servants (Amendment) Ordinance, 1989‑‑‑General Clauses Act (X of 1897), S.6‑‑­Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42, 44 & 56‑C‑‑‑Order of Prime Minister for out of turn promotion of civil servant‑‑‑Selection Board refused to consider civil servant on the ground that S.8‑A of Azad Jammu and Kashmir Civil Servants Act, 1976, postulating out of turn promotion had been deleted‑‑‑High Court dismissed Constitutional petition‑‑‑Validity‑‑‑Section 8‑A of Azad Jammu and Kashmir Civil Servants Act, 1976 remained on the statute till 20‑2‑1993, whets same was deleted‑‑­Case of civil servant was recommended by Inspector‑General of Police on 26‑3‑1990, which was approved by Prime Minister on 16‑5‑1991‑‑­Section 8‑A on both such dates was a part of Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑Right had accrued to civil servant on account of such reasons, which could be enforced through Constitutional petition‑‑‑Case of civil servant should have been judged by keeping in view the provisions of S.6 of General Clauses Act, 1897 read with S.56‑C of Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑If law had changed after initiation of case of civil servant for out of turn promotion, even then his case should have been processed in the light of law, which was applicable at relevant time‑‑‑Certification of Commendation issued on 3‑3‑1982 by Commandant, Police Training College, recommendations made by Inspector‑General of Police on 26‑3‑1990 and approval by Prime Minister on 16‑5‑1990 were the steps in series of proceedings meant for allowing out of turn promotion to civil servant, which were interconnected by an intrinsic unity and were to be regarded as one legal proceedings‑‑‑All such steps had taken place prior to deletion of S.8‑A, thus, Selection Board was not justified in law to refuse to judge the suitability of civil servant for out of turn promotion‑‑‑Conduct of Selection Board was highly objectionable, which had not been taken into consideration by High Court while dismissing Constitutional petition of civil servant‑‑‑Supreme Court accepted appeal, set aside judgment of High Court and directed Selection Board to return its findings by considering the matter in accordance with law and place the case of civil servant alongwith its findings before Competent Authority for appropriate orders.

Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46; Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 PLC 2339; Mir Abdul Hamid v. Azad Government and 2 others 1997 PLC (C.S.) 805 and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 ref.

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

‑‑‑‑S.6‑‑‑Effect of repeal‑‑‑Any change in statute, if deals with procedure, could be construed retrospectively‑‑‑Such change could not be allowed to destroy accrued rights in the light of provisions of S.6 of the Act.

(c) Maxim‑‑‑

------“Omres nova constitutio futuris temporibus formam imponere debut non practeritis": Except in special cases, the new law ought to be construed so as to interfere as little as possible with accrued vested right.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospectivity of legislation‑‑‑Deletion of any provision of law would apply retrospectively, if same is of procedural nature‑‑‑If substantial rights by change of law have been effected, then law which was previously enforced would apply to the benefit of person to whom any such benefit had accrued at the time, when that law was in existence.

Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 and Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant.

Kh. Attaullah for Respondents.

Date of hearing: 4th March, 2002.

2003 P L C (C.S.) 439

[Azad J&K]

Before Syed Manzoor Hussain Gilani, CJ

IQBAL AHMAD SHAH and others

Versus

AZAD GOVERNMENT and 9 others

Constitutional Petitions Nos. 220, 232, 251 and 629 of 200(), decided on 21st March, 2002.

(a) Azad Jammu and Kashmir Directorate of School Rules, 1989‑‑‑-

‑‑‑‑‑Items Nos. 15 & 19‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Writ‑‑‑Appointment of primary teachers‑‑‑Minimum qualification‑‑‑Abeyance of Rules‑‑‑Effect‑‑‑Rules regulating method and qualification for appointment as primary teachers enforced on 24‑9‑1989, provided that minimum qualification for post of primary teacher eras Matric with P.T.C. or its equivalent‑‑‑Said Rules were amended through Notification issued in 1990 whereby untrained persons were also held eligible for appointment if trained teachers were not available‑‑‑Subsequently original Rules whereby minimum qualification for post of primary teachers was fixed as Matric with P.T.C. were repromulgated, on 18‑‑5‑1994, but only after about one month, such repromulgated Rules were kept in abeyance through Government Notification dated 14‑6‑1994‑‑‑Appointments of petitioners were made during said period of abeyance and after about four years re‑promulgated Rules were revived‑‑‑Petitioners had claimed that as they had been appointed during period when Rules requiring minimum qualifications as Matric Second Division with P.T.C. were kept in abeyance, their appointments were in accordance with Rules and they could not be removed from service by retrospective operation of any rule or notification‑‑­Validity‑‑‑Abeyance of repromulgated Rules was merely suspension or in­ operation of Rules for the time being and those were neither repealed nor cancelled under abeyance notification, abeyance of said Rules thus would not tantamount to repeal or amendment‑‑‑Since re‑promulgated Rules which were still on the statute book, remained in force despite abeyance Notification, though were not acted upon being in a state of abeyance, appointments made during that period including that of petitioners, were without lawful authority and could not derive force from any prescribed manner‑‑­Authority, however, to meet ends of justice was directed that petitioners who had completed required qualification till date of order, would not be removed from service, and confirmation orders could be issued to them.

Syed Sajid v. Chaudhry Latif and others and State v. Chaudhry Latif 1992 SCMR 468; Azad Jammu and Kashir Government v. Muhammad Younus Tahir and others 1994 CLC 2339; Rasheed Hussain v. Gul Afsar and 3 others 1999 PLC (C.S.) 1248; Secretary for the Prime Minister Secretariat v. Muhammad Aslam and others PLJ 2000 SC 16; Bashir Ahmed Khan v. Custodian and another 1992 SCR 149 and Manzoor Ahmed v. Muhammad Sabir and 2 others 2001 PLC (C.S.) 50 ref.

(b) Words and phrases‑‑‑--

‑‑‑‑'Abeyance', meaning, connotation and scope.

Anuradha v. Santosh Nath AIR 1976 Delhi 246: 78 Punj LR 53 (Delhi) ref.

(c) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑No appointment could be made unless rules were made for the post and its requirements were fulfilled‑‑‑If any appointment was made contrary to rules, same would be without lawful authority and no notice would be required if such appointment was withdrawn, recalled or cancelled and Court also could not grant any relief to retain such illegal appointments.

Kh. Muhammad Naseem and Kh. Farooq Ahmed for Petitioners (in Writ Petition No.629 of 2000).

Kh. Shahad Ahmad, Sardar Shahid Hameed and Sardar M.R. Khan for Petitioners (in Writ Petition No.251 of 2000).

Khawaja Farooq Ahmed for Petitioner (in Writ Petition No.232 of 2000).

Kh. Shahad Ahmed for Petitioner (in Writ Petition No.220 of 2000).

Addl. A.‑G. and Asstt. A.‑G. for Respondents.

2003 P L C (C.S.) 460

[Azad J&K]

Before Syed Manzoor Hussain Gilani, CJ

Khawaja NAZIR AHMED QADRI

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

its Chief Secretary and 3 others

Writ Petition No.641 of 2001, decided on 19th April, 2002.

(a) Azad Jammu and Kashmir Rules of Business, 1985‑‑‑

‑‑‑‑Rr.9, 10 & 12‑‑‑Removal of Custodian of Evacuee Property on the direction of Prime Minister‑‑‑Validity‑‑‑Unless an order, direction or proposal was obtained on a duly processed file from the Competent Authority in accordance with Rules of Business and formed part of record of that branch of Government Office/Secretariat and finally culminated into notification of Government, order of removal of Custodian would carry no weight and would be of no legal validity‑‑‑Any unusual paper carrying direction of Prime Minister, neither could confer any right nor could take back a right already conferred‑‑‑Like all other functionaries of State, Prime Minister being also a creation of law was required to act in accordance with law and Rules of Business and unless a direction of Prime Minister would find place in a duly maintained Government file, it would neither confer any right nor would carry any legal weight‑‑‑Practice of obtaining direction through irregular devices by irrelevant agency or persons, would encourage serious abuse of power which had to be discarded, not only, in view of Rules of Business, but also on grounds of administrative expediency.

PLJ 2001 SC (AJ&K) 50; PLJ 1994 SC 13; 1995 SCR 349; 1999 PLC (C.S.) 1439; 2000 SCR 380; 2001 SCR 17; 2000 SCR 432, 2001 PLC (C.S.) 93; 2000 SCMR 263; Chaudhry Muhammad Fiyyaz, Additional Custodian and another v. Arshad Gilani and others PLJ 1999 SC (AJ&K) 89; Syed Arsahd Jilani and others v. Azad Government and others 2000 PLC (C.S.) 66; Nisar Ahmad Kiani v. Azad Government and others 1999 PLC (C.S.) 1002; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government and others PLD 1994 SC (AJ&K) 13 and 1999 MLD 355 ref.

(b) Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992‑‑‑

‑‑‑‑R.11‑‑‑Removal from service‑‑‑Review or representation ‑‑‑Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992 'had provided a special mechanism for removal of incumbent and if that process was not adopted, proper forum was the High Court‑‑‑Rule 11 of Azad Jammu and Kashmir Custodian Property (Terms and Conditions of Service) Rules, 1992 did not envisage review or representation.

1996 SCR 349; Chaudhry Muhammad Fiyaz v. Syed Arshad Gilani and others PLJ 1999 SC (AJK) 89; 1999 PLC (C.S.) 1439 and Referring Authority v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 ref.

(c) Duty of Court‑‑‑

‑‑‑‑ Court has to look into reasonableness of law and any amendment therein.

(d) Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957‑‑‑

‑‑‑‑S.6‑‑‑Post of Custodian of Evacuee Property‑‑‑Nature of‑‑‑Post of Custodian of Evacuee Property under S.6 of Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957, was statutory post of fiduciary character holding in trust evacuee property worth billions of rupees, besides confidence of those State Subjects whose future was yet to be decided and in circumstances said post was notified as a whole time post‑‑­Said post, in circumstances, could not be entrusted to a person who could be appointed and removed at one's discretion‑‑‑Section 6 of Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957 stipulated post of Custodian of Evacuee Property which implied a permanent office, be it ex-­officio appointment or whole time, but not discretionary.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Vires of law on ground of mala fides‑‑‑Contention that law could not be challenged on ground of mala fides, was a celebrated principle under judicial precedents, but it stricto senso would not apply to rules which could not be said to have same sanctity as law, be it an Ordinance or Act of Assembly as law making Authority would stand at high pedestal, than rule making Authority‑‑‑Rule making Authority was subordinate to law making Authority and rules were akin to Government notification and if a Government notification could be declared to be mala fides, authority of rules was also equally open to challenge on ground of mala fides.

2000 SCR 380 and 2000 PLC (C.S.) 155 ref.

(f) Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992‑‑‑

‑‑‑‑R.7 [as amended by Notification dated 31‑12‑2001]‑‑‑Removal from service of Custodian of Evacuee Property‑‑‑Custodian of Evacuee Property under rules regulating terms and conditions of service could be removed in accordance with procedure provided therein, while in the present case Custodian had been removed from service without notice, without hearing and without following due process of law‑‑‑Court would not accept an order valid and legal by which a person, who was occupying office, was deprived of that office without notice, without hearing or without following due process of law, unless law as a whole was changed‑‑‑Natural and fundamental right of a person to be heard before any order adverse to him was passed‑‑‑Having power of appointment and removal of a person from a post, would not mean unfettered, unchecked and unlimited powers‑‑Powers had to be exercised with due care and caution, not only in accordance with law, but in accordance with rules of natural justice and fair-play‑‑‑Discretion was to be exercised in any manner and at any time the Competent Authority liked, but justice was function of every person and Authority which was vested with dominant powers, be it administrative head, private person or Judicial Authority and such power had to be dispensed according to rules of natural justice‑‑‑Authority was obliged to hear the Custodian of Evacuee Property before taking drastic action of his removal from service‑‑‑Service matters were not only to be decided in accordance with law and rules, but principle of natural justice i.e. nobody could be condemned unheard, had to be strictly observed.

University of Punjab v. Mrs. Roohi Farzana 1996 SCMR 263; Inspector‑General, Police and 3 others v. Aurangzeb and others 2001 SCR 526; Azad Jammu and Kashmir Government v. Muhammad Siddique Haidri PLJ 2000 SC (AJK) 174; Mallick Zafar Ali v. Inspector‑General, Police 1995 SCR 234; Karachi Port Trust v. Altaf Hussain 1996 SCMR 1205; Hussain Ahmed Islahi v. Azad Government and others 1992 SCR 370; 198 7 SCMR 1189; 1998 PLC 14; PLD 1988 SC (AJ&K) 53 and AIR 1990 SC 150 ref.

Mujahid Hussain Naqvi, Khawaja Shahad Ahmed, Kh. Manzoor Qadir and Kh. Muhammad Naseem for Petitioner.

Advocate‑General and Raja Muhammad Hanif Khan for Respondents.

2003 P L C (C.S.) 554

[Supreme Court (AJ&K)]

Present: Chaudhary Muhammad Taj, J

IFFAT SIDDIQUE SULEHRIA

Versus

MUHAMMAD NAEEM and others

Civil Petition for Leave to Appeal No.271 and Civil Miscellaneous No‑231 of 2002, decided on 1st January, 2003.

(On appeal from the judgment of the High Court dated 30‑11‑2002 in Writ Petitions Nos.373, 342, 334 and 385 of 2002).

(a) Azad Jammu and Kashmir State Subjects Act, 1980‑‑‑

‑‑‑‑S. 5‑‑‑Azad Jammu and Kashmir State Subjects Rules, 1980, R.7‑‑‑Azad Jammu and Kashmir. Interim Constitution Act (VIII of 1974), S.42‑‑­Certificate of domicile‑‑‑Posts reserved for Jammu and Kashmir refugees settled in Pakistan‑‑‑Public Service Commission recommended petitioner for one of such posts‑‑‑Such recommendations were challenged on the ground that petitioner had abandoned her previous domicile of a District in Pakistan and had obtained domicile certificate of a District in Azad Kashmir, thus, she was not entitled to be recommended for the post‑‑‑High Court accepted Constitutional petition‑‑‑Validity‑‑‑Issuance of Domicile Certificate of a District in Azad Kashmir on petitioner's application in year 1996 showed her intention to live in Azad Kashmir permanently in future‑‑‑Domicile Certificate of a District in Azad Kashmir was in existence, when petitioner had applied for such post on the basis of domicile certificate of a District in Pakistan issued in year 1991‑‑‑Existence of Domicile Certificate in petitioner's name of a District in Azad Kashmir at the time of applying for such post and its subsequent surrender by her in year 2002 at the time, when recommendations in her favour were in‑progress, would leave no doubt that she was not a Jammu and Kashmir refugee settled in Pakistan‑‑‑Petitioner's marriage with a person, who was a Jammu and Kashmir refugee settled to Pakistan, would not give her such status‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Sultan Khan v. Federal Public Service Commissioner 1983 CLC 2803; Miss Rakhshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir and 2 others PLD 1.986 SC (AJ&K) 1; Tahir Muhammad Durrani v. Shahid Hussain Kazmi and 2 others PLD 1986 (AJ&K) 31); Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947; Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714 Qamar Afzal v. Muhammad Ashfaq Khan and another PLD 1979 SC (AJ&K) 96 and Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C. S.) 947 ref.

Fozia Hussain Abbasi v. The Nomination Board and 4 others 1995 CLC 1761 fol.

(b) Azad Jammu and Kashmir State Subjects Act, 1980‑‑‑

‑‑‑‑S. 5‑‑‑Azad Jammu and Kashmir State Subjects Rules, 1980, R.7‑‑­Domicile, Certificate grant, of‑‑‑Essential conditions‑‑‑Applicant must be residing for a period of five years in Azad Jammu and Kashmir and intending to live there permanently.

Mujahid Hussain Naqvi, Advocate for Petitioner.

Ch. Muhammad Azam Khan, Advocate for Respondent No. 1.

Date of hearing: 19th December, 2002.

2003 P L C (C.S.) 571

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

KHALID MEHMOOD

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary and 3 others

Civil Petition for Leave to Appeal No.218 of 2002, decided on 13th January, 2003.

(On appeal from the judgment of the High Court dated 29‑6‑2002 in Writ Petition No. 106 of 2001).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑

‑‑‑‑S.42(12)‑‑‑Civil service‑‑‑Petitioner being candidate for vacant post of Lecturer, in response to advertisement appeared in the test and interview which were conducted by the Public Service Commission‑‑‑Petitioner contended that all the members of the Service Commission awarded marks to him, but his result was not notified by the Public Service Commission on the ground that he could not produce original degree which according to the petitioner was not a condition precedent at the time of interview‑‑‑High Court summoned the relevant record to determine as to whether marks were actually awarded by Members of Public Service Commission to petitioner as claimed by petitioner‑‑‑High Court found that even though certain marks were given to petitioner, but same were cancelled in such a manner that those could not be read and High Court dismissed writ petition ‑‑‑Validity‑‑­Application was moved by petitioner before the Supreme Court seeking stay order against the Public Service Commission to the effect that it should not conduct fresh test and interview as the petitioner was included among candidates who had passed the test‑‑‑Public Service Commission in the interview, though had awarded marks to the petitioner but on the excuse that he failed to produce original degree at the time of interview, marks so granted were cancelled in such a manner that except marks of Chairman of Public Service Commission, remaining marks granted by other Members of Commission were not legible‑‑‑Petitioner could not be said to have actually passed the examination‑‑‑Prayer of petitioner to the effect that he in fact had passed the examination thus could not be allowed and that a direction, however, should have been issued by the High Court to the Public Service Commission to notify the petitioner as such, and recommend him for his induction as Lecturer against the vacant post was repelled‑‑‑High Court had rightly directed the Pubic Service Commission to conduct fresh interview of the petitioner and in case he qualified, he could be recommended for his appointment as Lecturer against vacant post‑‑­Petitions for leave to appeal and application for stay, were dismissed accordingly.

(b) Administration of justice‑‑‑

‑‑‑‑ Function of Courts of law‑‑‑The Courts were meant for the redressal of grievances if the individuals who felt aggrieved by some act or order of some Competent Authority‑‑‑Nobody, in circumstances, should feel any insult that he was made answerable before the Courts of law.

M. Tabassum Aftab Alvi, Advocate for Petitioner.

Secretary, Public Service Commission (in person) for Respondent No.3.

Date of hearing: 13th January, 2003.

2003 P L C (C. S.) 579

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

MUHAMMAD RIAZ KHAN

Versus

SAJJAD ANJUM and others

Civil Appeals Nos.62 and 63 of 2002, decided on 17th January, 2003.

(On appeal from the judgment of the High Court dated 10‑1‑2002 in Writ Petition No.400 of 2001).

Azad, Jammu and Kashmir Civil Servants Act, 1976‑‑‑

‑‑‑‑S.1(2)‑‑‑Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar Service Rules, 1991, R.4 ‑‑‑ Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr. 3 & 17‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Appointment in service‑‑‑Appellants who were selected for Patwar Course and‑ were deputed for training, successfully completed the Course and were entered in seniority/merit list‑‑‑Collector concerned constituted a Committee for conducting the test and interview of the candidates whose names were entered in the seniority list in order to ascertain their merit for their induction in Revenue Department and Patwaris against vacant posts‑‑‑Appellants had challenged the said action of Collector‑‑‑Grievance of appellants was that on the basis of their entry in the seniority of approved candidates of Patwaris, there was no need to conduct any test and interview before appointing them as Patwaris as any such test and interview would be against Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Teshildar Service Rules, 1991 wherein appointment of Patwaris was to be made by initial recruitment or according to the seniority out of approved Patwari candidates of the District‑‑‑Contention of appellants was repelled because under provisions of R.17, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 appointment was to be ,made on the basis of merits determined by Departmental Selection Committee by conducting test and interview of approved candidates for the post of Patwari‑‑‑When more candidates were available than vacant posts, all approved candidates would compete for their merit by appearing before Selection Committee for test and interview in the light of R.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑Collector, in circumstances, had committed no illegality by constituting a Departmental Committee to conduct the test and interview for determining the merit of approved candidates for Patwaris.

Sardar Muhammad Sadiq Khan, Advocate for Appellant (in C.A. No.62 of 2002).

Imdad Ali Malik, Advocate and Raja Ibrar Hussain, A.‑G. for Respondents (in C.A. No.62 of 2002).

Sardar Muhammad Habib Zia, Advocate for Appellant in C.A. No. 63 of 2002).

Imdad Ali Malik, Advocate and Raja Ibrar Hussain, A.‑G. for Respondents (in C.A. No.63 of 2002).

Date of hearing: 14th November, 2002.

2003 P L C (C.S.) 664

[Supreme Court (AJ&K)]

Present: Muhammad Younus Surakhvi, CJ

ABDUL RAHEEM ZUBAIR BUTT

Versus

AZAD JAMMU AND KASHMIR HIGH COURT through its Registrar, Muzaffarabad and others

Civil Petition for Leave to Appeal No.264 of 2002 and Civil Miscellaneous Nos. 224 and 225 of 2002, decided on 13th December, 2002.

(On appeal from the order passed in the meeting of learned Judges (Full Bench) of AJ&K High Court on 21-11-2002 conveyed on 25-11-2002).

(a) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 2(a), 3 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Azad Jammu and Kashmir High Court Procedure Rules, 1984, Chap. XVIII---Judicial Officer---Misconduct, Allegation of---Removal from service by Chief Justice as Competent Authority---Prime Minister accepted representation of petitioner and set aside order of removal from service---Judges of High Court refused to act upon order of Prime Minister and refused to accept the joining report of the Officer, and conveyed to him decision of their meeting that his representation was not competent before the Prime Minister---Validity---Impugned order was an intimation of decision taken by Judges of High Court in an administrative meeting and was not passed in a case or judicial proceedings---Such order did not fall within ambit of judicial order as visualized by S.42(12) of the Constitution ---Decisions/orders of Judges of High Court passed in their meetings were executive and administrative business of the Court regulated by Chap. XVIII of High Court Procedure Rules, 1984---Order passed by Appointing Authority of the Court employee was not covered by S.9 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Appeal before Supreme Court would be competent only after judicial determination by competent forum on the order of removal of petitioner from service or validity of order of Prime Minister---Supreme Court dismissed petition for leave to appeal being not maintainable.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.42(12)---Azad Jammu and Kashmir High Court Procedure Rules, 1984, Chap. XVIII---Appeal to Supreme Court against administrative order of High Court---Scope---Supreme Court was apex Appellate Court against judicial orders, judgments, decrees and sentences passed by High Court or any other Court or Tribunal established under law---Supreme Court is not Controlling Authority in respect of administrative matters of High Court.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.42(12)---Appeal to Supreme Court---Administrative or executive order---Appeal against such order would not be competent before Supreme Court ---Justiciability of such order would be open before competent Tribunal or Court of competent jurisdiction.

Gulfraz v. Judges of the High Court of West Pakistan (Peshawar) 1972 SCMR 227; International. Guarantee Trust Company Ltd. v. Syeda Abida Hussain and 5 others 1991 SCMR 1481 and Jasvant Sugar Mills Ltd. v. Lakshmi Chand and others AIR 1963 SC 677 ref.

(d) Azad Jammu and Kashmir High Court Procedure Rules, 1984--

----Chap. XVIII-Judicial Officer or Court servant---Removal or dismissal from service or any order relating to terms and conditions of service---Such order was administrative in nature passed by Competent Authority i.e. Chief Justice or Judges of High Court and would remain valid unless set aside by a Court or Tribunal of competent jurisdiction.

(e) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----S.2(a)---Competent Authority in relation to Government employees and Court employees---Two separate categories provided---Reasons stated.

Two categories of the authorities have been given in definition of "competent authority". Firstly, Prime Minister or any officer or authority authorized by him is "competent authority" in relation to all persons in service of the Government. Secondly, in relation to Court employees, "the appointing authority", "Chairman" or "Presiding Officer" of Court or Tribunal is the competent authority. The Courts and Tribunals have been separated and segregated from the authority of Prime Minister. The wisdom behind this segregation- is to upkeep the integrity, independence and authority of judiciary as a special organ of the State and not a subordinate institution of the Government. All other provisions of the Act will have to be read in the light of said definition.

(f) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 2(a), 3 & 9---Azad Jammu and Kashmir- Interim Constitution Act (VIII of 1974), S 46.--Azad Jammu and Kashmir High Court Procedure. Rules, 1984, Chap. XVIII---Judicial Officer---Removal from service by Appointing Authority i.e. Chief Justice of High Court--­Representation or review to Prime Minister---Maintainability---Such order was not covered by S. 9 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Reasons stated.

Section 9 Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 regulating representation and review postulates that when an order is passed under section 3 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 by an officer or authority other than Prime: Minister, representation to Prime Minister is competent, but where an order had been passed by Prime Minister himself, review is competent before Prime Minister. The orders, passed by appointing authorities of the Court employees is not catered by this section. In the case of petitioner, the order was initially passed by Chief Justice and then endorsed by all the Judges of High Court. Chief Justice or Judges of High Court were not officers or authority subordinate to Prime Minister nor authorized by Prime Minister to be competent authority. 'In view of definition of "competent authority", Chief Justice himself was competent in relation to petitioner for being his appointing authority and Judges of High Court were equally competent for being controlling and supervising authority of the subordinate Courts when a matter was placed before them by Chief Justice.

(g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.46---Azad Jammu and Kashmir High Court Procedure Rules, 1984 Chap. XVIII---Power of High Court to superintend and control subordinate Courts---Judges of High Court while sitting in meeting to dilate upon administrative matters brought before them under Chap XVIII of Azad Jammu and Kashmir High Court Procedure Rules, 1984 are competent to take any administrative action in exercise of their authority under the Rules and S.46 of the Constitution Act.

Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Chief Justice of Andhra Pradesh and another N L.V.A. Dikshitulu and others AIR 1979 SC 193 and State of Haryana v. Inder Prakash Anand and others AIR 1976 SC 1841 ref.

(h) Jurisdiction---

----Authority not having jurisdiction---Filing of comments by a party before such authority---Such act of the party would not operate as submission to its jurisdiction.

Filing of comments itself does not operate as submission to jurisdiction of authority, which otherwise did not have jurisdiction. It is usual practice in the office that when a letter is received by a person or authority, it is responded but responding to any such letter by filing comments or replying to it does not mean that the authority is accepted.

(i) Jurisdiction---

----Objection---"Judicial forum" and "Administrative Officer", jurisdiction of---Distinction---Party submitting to jurisdiction of judicial forum without taking abjection as to its jurisdiction could not resile therefrom later on, when its decision went against him---Participation in proceeding or submitting to authority not having jurisdiction over a matter would not debar party from challenging its authority at a later stage.

Ashiq Hussain v. Additional District Judge 1993 CLC 799 and Muhammad Afzal v. Board of Revenue, West Pakistan' and others PLD 1967 SC 314 ref.

(j) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.42(12)---Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, S.3----Azad Jammu and Kashmir High Court Procedure Rules, 1984, Chap. XVIII---Petition for leave to appeal before Supreme Court---Judicial Officer ---Removal from service--Such order was passed by Chief Justice of High Court---Making Chief Justice and Judges of High Court as party in petition, held, unbecoming and unwarranted---Attributing mala fides to the Judges was against Code of Conduct of Advocates and unbecoming of petitioner alleging himself to be a judicial officer---Supreme Court directed Registrar not to entertain any petition/appeal, wherein Judges were made party by name against their decisions or when unbecoming scandalizing or contemptuous language, was used against them.

(k) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

---S.42(5)(12)---Azad Jammu and Kashmir High Court Procedure Rules, 1984 Chap. XVIII---Civil Procedure Code (V of 1908), S.79--­Administrative orders---Open to challenge through issuing authority e.g. Government through Chief Secretary, other Departments through the Secretaries, and in case of Supreme Court and High Court through their Registrars---Judges could never be made party by name, unless person of a Judge as distinguished from his judicial capacity was in dispute---Principles.

The orders of administrative authorities are open to challenge in the manner provided by law through authority, which issues the order, i.e. the Government through Chief. Secretary, other Departments through their Secretaries and in case of Supreme Court and High Court through their Registrars. Judges can never be made a party by name to scandalize and belittle their position and impair independence of the judiciary and Judges.

Subsection (5) of section 44 of Interim Constitution Act, 1974 specifically excludes High Court and Supreme Court from the word "person", which of course includes party and it by analogy applies to all the proceedings and all laws before all Courts, unless person of a Judge as distinguished from his judicial capacity is in dispute.

If such practice is allowed, the Judges of superior Courts may start passing orders against each others, which will create anarchy in the State.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315 ref.

Abdul Majid Mallick and Mujahid Hussain Naqvi, Advocates for Petitioners.

Date of hearing: 10th December, 2002.

2003 P L C (C.S.) 700

[Supreme Court (AJ&K]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Dr. SHABIR KAYANI

Versus

Dr. Syed MUSHTAQ AHMAD GARDAZI and 4 others

Civil Appeals Nos. 169 of 1999 and 17 of 2000, decided on 18th May, 2000.

(On appeal from. the judgment of the High Court dated 20-11-1999 in Writ Petition No. 144 of 1999).

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

----Art.114---Estoppel---Applicability---No estoppel against law---If at any stage an illegality was found, it could always be pleaded---Principle of estoppel was only applicable if a declaration, act or omission was acted upon by the other party.

(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----Rr.10-B & 13---Appointment on current charge basis ---Nature--­Appointment on current charge basis was not a promotion as appointment on current charge basis and the promotion were distinctly different in every case---Order under R. 10-B of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, was not an order of promotion and pay scale having not been mentioned in said rule, appointment on current charge basis was to a higher post arid not to a higher grade---Appointment made under R.10-B, was a temporary arrangement which would be terminated do appointment of a person on regular basis or on the expiry of six months whichever was earlier---Appointment on regular basis was a stage which was to be reached after appointment on current charge basis and two were not the same---Appointment on officiating basis was a promotion, but appointment on current charge basis was not promotion.

Major Muhammad Aftab Ahmad (Rtd.) v. Azad Jammu and Kashmir Government 1992 SCR 307; Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 and Raja Muhammad Ayyaz Khan v. Azad Government and another 1995 SCR 281 ref.

M. Tabbasum Aftab Alvi, Advocate for Appellants (in both Appeals).

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent (in both Appeals).

Kh. Atta Ullah, Additional Advocate-General for Proforma ­Respondents Nos.2 to 5 (in Civil Appeal No. 169 of 1999).

Date of hearing: 9th May, 2000.

2003 P L C (C.S.) 725

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

MUJAHID HUSSAIN NAQVI

Versus

Sardar RAFIQUE MEHMOOD KHAN and 8 others

Civil Appeal No. 164 of 2001, decided on 17th January, 2003.

(On appeal from the judgment of the High Court dated 6‑10‑2001 in Writ Petition No.519 of 2001).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S.3(3)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 43‑‑‑Appointment of Chairman of Service Tribunal‑‑­Respondent who was an eminent Advocate by profession, his appointment as Chairman Service Tribunal had been challenged on the ground that at the time of his appointment, he had crossed 62 years of age‑‑‑Appellant had contended that under S.3(3) of Azad Jammu and Kashmir Service Tribunal Act, 1975 only such person could be appointed as Chairman Service Tribunal who had been or was qualified to be Judge of High Court and that only such person .could be appointed as Judge of High Court who was below 62 years of age and that no person could retain that office under S.43(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974 beyond that age‑‑‑Under provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974, though a person beyond 62 years of age could not remain in office as a Judge of High Court, but a sitting Judge or even a retired Judge could be appointed as Chairman Service Tribunal which would mean that a person could retain his office as Chairman Service Tribunal beyond 62 years of age, if he otherwise was qualified to be appointed as Judge of High Court and had crossed 62 years of age, could still be validly appointed as Chairman of Service Tribunal‑‑‑Contention of appellant that a retired Judge of High Court could be requested to sit and act as Chairman of Service Tribunal, but a person who fulfilled requirement of Judge of High Court could not he allowed to act as Chairman Service Tribunal as he had attained age of 62 years, was repelled‑‑‑Respondent fulfilled requirement for his elevation as Judge of High Court when he was appointed as Chairman Service Tribunal‑‑‑Retired Judge being also eligible to be appointed as Chairman Service Tribunal, no disqualification existed for the respondent to hold that post‑‑‑Authority, in circumstances, was justified in law in appointing the respondent as Chairman Service Tribunal.

Dr. Kamal Hussain and others v. Muhammad Siraj‑ul‑Islam and others PLD 1969 SC, 42; G.D. Karkare v. T.L. Shevde and others AIR 1952 Nag. 330 and Atlas Cycle Industries, Ltd. Sonepat v. Their Workmen AIR 1962 SC 1100 ref.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S. 3(3)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 20, 42 & 43‑‑‑Appointment and duration of office of Judge of High Court and Advocate‑General‑‑‑Implicit prohibition existed against appointment of a person as a Judge of High Court who had attained age of 62 years because under subsection (5) of S.43 of Azad Jammu and Kashmir Interim Constitution Act, 1974, Chief Justice or a Judge of High Court could retain his office till he attained the age of 62 years‑‑‑Qualification for appointment as a Judge of High court or Advocate‑General had jointly been provided under subsection (3) of S.43 of Azad Jammu and Kashmir Interim Constitution Act, 1974 whereas duration of office had been fixed only for a Judge of High Court under subsection (5) of S.43 of said Constitution and no duration had been fixed for Advocate‑General‑‑‑Duration to hold office of a Judge of High Court having been separately provided, same was not the part of his qualification‑‑‑Qualifications for a Judge of High Court and that of Advocate‑General, though were similar in view of subsection (3) of S.43 of Azad Jammu and Kashmir Interim Constitution Act, 1974, but the Constitution contained a specific provision only about duration of office for a Judge of High Court‑‑‑No such protection was available to Advocate‑General who could hold office during the pleasure of Government‑‑‑Contention that a person beyond 62 years could not hold office of Advocate‑General, was repelled‑‑‑Advocate‑General could be removed at any time irrespective of his age if he .would lose confidence of Government, but a Judge of High Court irrespective of pleasure of Government could retain his office till he attained the age of 62 years‑‑‑Privileges and emoluments of Judge of High Court had been provided under the law, whereas terms and conditions of office of Advocate‑General were fixed by Government and incumbent by mutual agreement.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Statute must be taken into consideration as a whole and no part or word of it should be omitted from consideration and that all attempts should be made to reconcile various provisions of statute for rational meaning avoiding redundancy to any provision thereof.

Appellant in person.

Abdul Rashid Abbasi and M. Tabassum Aftab Alvi for Respondents.

Date of hearing: 11th June, 2002.

2003 PLC (C.S.) 743

[Supreme Court [AJ&K])

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ, MUNIR QADIR

Versus

CHAIRMAN, PSC and 4 others

Civil Appeal No. 84 of 1.999, decided on 9th March, 2000.

(On appeal from the judgment of the High Court dated 9-4-1999 in Writ Petition No. 30 of 1999).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)-----

----S. 4---Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977, R.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Writ petition, maintainability of---Writ petition filed in the High Court to challenge the actions/orders of the Public Service Commission and also seeking consequential modification in the Government order by which the appointments were made by accepting the recommendations made by the Public Service Commission, was dismissed on, the short ground that the dispute raised in the writ petition related to terms and conditions of the petitioner over which High Court had no jurisdiction in presence of Service Tribunal---Validity---Appeal before the Service Tribunal under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 could be filed against a final order made by a Departmental Authority in respect of any of the terms and conditions of service, but Public Service Commission was not a Departmental Authority as it dealt with private citizens who aspired to become civil servants and had no nexus with civil servants---When action was taken-against the petitioner by the Public Service Commission, the. petitioner was not a civil servant, it, therefore, could not in circumstances be said that-the modification in the merit list carried out by the Public Service Commission was in respect of terms and conditions of a civil servant--­Section 47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that the jurisdiction of High Court was only ousted in matters to which the jurisdiction of the Service Tribunal was extended---Jurisdiction .of the Service Tribunal having not been extended to an order/action of the Public Service Commission, no question of ouster of High Court jurisdiction therefore, would arise---Cause of action had arisen to the petitioner against the action of Public Service Commission which was, not a Departmental Authority at the time when he was not a civil servant and at that time he could not file appeal before Service Tribunal---Even if writ petition was filed at the time when he had already become a civil servant, it would not change the legal position---Prayer of the petitioner to direct the Government to correct the notification of appointment, being consequential in nature, would follow if the modification carried out by the Public Service Commission was found to be without lawful authority---Order of the High Court was vacated by Supreme Court.

(b) Words and phrases---

------“Departmental Authority"---Term "Departmental Authority" does not include "Public Service Commission".

Kh. Shahad Ahmad, Advocate for Appellant.

Raja Shiraz Kayani, Advocate-General for Respondents Nos. 1, 2 and 5.

Ghulam Mustafa Mughal, Advocate for Respondents Nos. 3 and 4.

Date of hearing: 7th March; 2000.

2003 P L C (C.S.) 748

[Azad J&K]

Before Ghulam Mustafa Mughal, J

Maj. (Retd.) RAFIQUE AHMED DURRANI, SUPERINTENDING ENGINEER, AJ&K UNIVERSITY MUZAFFARABAD

Versus

VICE-CHANCELLOR, AJ&K UNIVERSITY, MUZAFFARABAD and others

Writ Petition No.558 of 2000, decided on 29th July, 2002.

(a) University of Azad Jammu and Kashmir Act, 1985---

----S.11(3)(4)---Dismissal from service of the. employee of University--­Employee against whom disciplinary proceedings were initiated, was dismissed from service after issuing him show-cause notice and holding enquiry against him by the Vice-Chancellor---Disciplinary proceedings initiated by Vice-Chancellor under S.11(3) of University of Azad Jammu and Kashmir Act, 1981 were without jurisdiction and outside purview of said provisions of law---Powers conferred on Vice-Chancellor through S. 11(3) of University of Azad Jammu and Kashmir were of emergent nature, but no such eventuality had arisen in the case---Authority competent to initiate proceedings in case of employee was. Syndicate---Orders passed against employee being without lawful authority and jurisdiction were recalled, in circumstances- --Charges against employee being serious in nature and proper procedure having not been followed in his case. he could not be exonerated without proper inquiry by Competent Authority in prescribed manner Authorities would be free to hold a proper inquiry against the employee i6t accordance with law.

Islamic University Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141; Dr. Ghulam Mustafa Chaudhry v. Dr. Muhammad Ashfaq Khan Vice-Chancellor. Bahauddin Zakria University Multan 2000 PLC (C.S,) 385; University of the Punjab v. Rehmatullah PLD 1982 Lah: 729 and Faisal Shafique's case 1998 MLD 175 ref.

(b) Words and phrases---

----"Emergency"---Meaning and scope---Word "emergency" is not a term of art---Emergency is a state of affairs causing apprehension of unforeseen danger---Emergency is defined as (a) juncture, that arises or crops up suddenly; (b) sudden or unexpected occurrence of state of things---Term is defined as unforeseen combination of circumstances which would call for immediate action.

PLD 1979 BJ 17 ref.

(c) Jurisdiction---

----If a mandatory condition for exercise of jurisdiction by judicial or quasi­ judicial Authority, was not fulfilled, entire proceedings which followed, would become illegal and would suffer from inherent defect of jurisdiction--­Any order passed in continuation of those proceedings would equally suffer from illegality and would be without jurisdiction.

Imdad Ali Mallick for Petitioner.

Farooq Hussain Kashmiri for Respondents.

2003 P L C (C.S.) 783

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh, J

MEHMOOB-UR-REHMAN

Versus

AZAD JAMMU AND KASHMIR UNIVERSITY and 2 others

Civil Petition for, Leave to Appeal No. 136 of 2000, decided on 11th August, 2002.

(On appeal from the judgment of the High Court dated 30-5-2000 in Writ Petition No.504 of 1998).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 42(12) & 47---Civil service---Upgrading of a post---Writ petition was dismissed by the High Court on the ground that it was purely in the discretion of the Authority to upgrade a post and a direction could not be issued by the High Court for exercising a discretionary power in a particular way---Validity---View taken by the High Court was correct as creation and upgrading of posts, revision of pay scales and such-like matters lay purely in the executive domain and the Courts of law could not interfere in such matters---Courts could interfere only if there was an illegality, but no such situation existed in the case---Judgment of the High Court could not be interfered with in circumstances---Petition for leave to appeal against judgment of the High Court was dismissed.

Ghulam Mustafa Mughal, Advocate for Petitioner.

Date of hearing : 10th August, 2000.

2003 P L C (C.S.) 789

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, Actg. C.J. and Khawaja Muhammad Saeed, J

AZAD J&K GOVERNMENT through its Chief Secretary Muzaffarabad and 2 others

Versus

Ch. MUHAMMAD SAEED, STENOGRAPHER and 44 others

Civil Appeal No.74 of 2002, decided on 12th August, 2002.

(On appeal from the judgment of the High Court dated 6-3-2002 in Writ Petition No.497 of 2001).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--

----Ss, 42, 42-A, 42-B, 44 & 45---Civil service---Grant of special judicial allowance---Powers of Supreme Court---Supreme Court of Pakistan having granted special judicial allowance at rate of 20% to all its officers and servants on -their basic pay vide Notification dated 9th October, 2000, employees of Supreme Court of Azad Jammu and Kashmir also requested for grant of such allowances---On direction of Chief Justice meeting of Judges was convened on 17th November, 2000 in which it was unanimously decided to grant allowance prayed for by employees---On sending decision taken in meeting to Law Department same was conveyed to Finance Department for financial concurrence---Law Department through Notification allowed 20% Special Judicial Allowance to Officers of Grade-16 and above whereas 10% to employees below -Grade-16---Employees of below Grade-16 challenged said Notification before High Court and High Court accepting prayer of employees directed Authorities to pay 20% Special Judicial Allowance to said employees also in the light of decision taken by Council of Judges--­Validity---Law Department was not justified in law to issue Notification derogatory to directions of Council of Judges of Supreme Court as Supreme Court had wide powers to issue such directions, orders or decrees as could be necessary for doing complete justice in any case or matter pending before it---All Executive and Judicial Authorities would act in aid of Supreme Court---Any person feeling aggrieved from any order, direction or decree of Supreme Court, subject to provision of law could seek review of order, direction or decree of the Supreme Court with permission of Supreme Court---Observation made by Judges of Supreme Court in a case in nature of obiter dicta, would be binding upon Courts and other Executive Authorities---Under provisions of S.42-A of Azad Jammu and Kashmir Interim Constitution Act, 1974 and Rules made thereunder for exercising authority of Supreme Court, Executive Authorities could not exercise their authority in such a manner which could amount to infringe, impair or curtail any of right granted by Judges of Supreme Court---Executive Authority could not bypass a direction or order of Supreme Court which could attract invocation of S.45 of Azad Jammu and Kashmir Interim Constitution Act, 1974---High Court, in circumstances, was justified in setting aside Notification issued by Law Department on basis of meeting held by. Registrar of Supreme Court as same was contrary to direction of Council of Judges---Decision of Judges of Supreme Court taken in their meetings whereunder right of all employees for grant of 20% Special. Judicial Allowance was accepted, could not be changed or nullified by Law Department by issuing a notification derogatory to such decision--­Such act by itself would amount to disobeying order of Council of Judges.

Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1996 SCMR 284: Ihsan-ur-Rehman v. Mst. Najma Perveen PLD 1986 SC 14; Azad Government and others v. Muhammad Fazal Qureshi and Others Civil Petition for Leave to Appeal No.55 of 2002 and Kamaluddin and 30 others v. Province of Punjab and to others 1998 PLC (C.S.) 807 ref.

(b) Jurisdiction---

---- Jurisdiction conferred by Act---Jurisdiction conferred by an Act impliedly would give powers to Authority for doing all acts and applying means which were found essentially necessary for execution of such directions issued in exercise of vested jurisdiction.

Riaz Naveed Butt, Addl: Advocate-General for Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondents.

Date of hearing: 4th July, 2002.

2003 P L C (C.S.) 887

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J., Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

SARDAR MUHAMMAD AZIM ZIA, CUSTODIAN, EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR` AT MUZAFFARABAD

Versus

NAZIR AHMED QADRI and 3 others

Civil Appeal No.71 of 2002, decided on 3rd March, 2003.

(On appeal from the judgment of the High Court dated 19-4-2002 in Writ Petition No.641 of 2001).

(a) Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992-----

----R. 11---Government was bound to safeguard the interest of serving Custodian in respect of terms and conditions of his service and if any rule or any law for the time being in force was likely to affect the terms and conditions of Custodian's service, the Government was duty bound to make appropriate orders to safeguard his Constitutional legal rights---Rule 11 of Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992, did not envisage any review or representation by an outgoing Custodian before the Government---Said rule further envisaged that Government could riot pass any adverse order against serving Custodian without notice and without following the due process of law.

Faqir Muhammad and others v. Custodian of Evacuee Property and others 1996 SCR 349; Ch. Muhammad Fayyaz, Additional Custodian, Muzaffarabad and another v. Syed Arshid Gillani, Ex-Additional Custodian, Muzaffarabad PLJ 1999 SC (AJK) 89; Syed Arshid Gillani and another v. Azad Jammu and Kashmir Government and 2 others 2000 PLC (C.S.) 66; Muhammad Latif Khan v. Sarwar Hussain and others 1995 PLC (C.S.) 182; Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government, Muzaffarabd v. Mujahid Hussain Naqvi and another PLJ 2001 SC (AJ&K) 50; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13; Allah Ditta and others v. Sher Ahmed Khan and others 1993 SCR 325; Abdul Haq Mughal v. Muhammad Naseer Usmani and 2 others 2002 SCR 146; Mehmood Akhter, Kiani v. Azad Jammu and Kashmir Government and 3 others 1998 SCR 310 and Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2002 PLC (C.S.) 785 ref.

(b) Natural justice, principles of---

----Principles of natural justice were supposed to be the part of every statute having the force of law---Natural justice demands that before condemning any person in any judicial or quasi-judicial proceedings, such person, must be heard.

Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2001 SCR 526; Abdul Rashid v. D.E.O. and another 1998 PLC (C.S) 304 and Messrs Rasab and Brothers v. Deputy Collector, Excise and and others 1993 SCR 346 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)------

----S. 44---Writ jurisdiction, exercise of---Alternate remedy---Adequate remedy and not mere absence of alternate remedy would determine the propriety of the writ---Alternate remedy must be equally convenient, beneficial and effective, only then High Court could refuse to exercise its extraordinary jurisdiction.

Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfraz and 2 others PLD 1984 SC (AJ&K) 77 ref.

(d) Pakistan Administration of Evacuee Property Act (XII of 1957)-----

----Ss. 6, 43(6) & 57---Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions) Rules, 1992, Rr. 7 & 11---Azad Jammu and Kashmir Government Rules of Business, 1985---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Custodian as civil servant, determination of---Entitlement to avail appellate jurisdiction of Service Tribunal---Contention was that as 'Additional Custodian' had been held as civil servant, 'Custodian' would also be held as a civil servant because the term 'Custodian' included "Additional Custodian" and "Assistant Custodian" and Custodian could invoke appellate jurisdiction of Service Tribunal---Contention was without any force because "Custodian" was governed by Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions) Rules, 1992 which were framed in exercise of powers available to it under S.57 of the Pakistan Administration of Evacuee Property Act, 1957 and only such person could be appointed Custodian who either was a Judge of High Court or was qualified to be appointed as Judge of High Court---Additional Custodian was governed by different Rules known as Azad Jammu and Kashmir Additional Custodians, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992 which Rules were also framed by Government in exercise of powers vested in it under S.57 of the Pakistan Administration of Evacuee Property Act, 1957---As "Custodian" and "Deputy Custodian" were governed by different laws, which contained different qualifications and mode of their appointment and different terms and conditions relating to their offices, Custodian could not be held civil servant and was not entitled to avail appellate jurisdiction of Service Tribunal.

(e) Pakistan Administration of Evacuee Property Act (XII of 1957)-----

----S. 6---Civil service---Reversion---Custodian of Evacuee Property having been posted as Secretary Law on deputation against his lien, civil servant who at relevant time was serving as Additional Custodian, was given charge post of Custodian---Subsequently Custodian was sent back to his parent post of Custodian of Evacuee Property and civil servant was reverted to the post of Additional Custodian---On death of Custodian, opposing civil servant was appointed as Custodian by Authority in exercise of powers vested in it under S. 6 of Pakistan Administration of Evacuee Property Act, 1957---Civil servant had alleged that Authority had no jurisdictional competence to revert him to his original position as Additional Custodian--?Validity---Authority was not justified in law to transfer the Custodian and Dost him as Secretary Law because posting and transfer of civil servant could be effected by the Government, but Custodian of Evacuee Property being not civil servant, order of transfer of the Custodian, was totally illegal and bad in law---Civil servant being Additional Custodian in first round of litigation having never treated himself as Custodian, could not be allowed to take totally inconsistent plea to support order of Authority passed in illegal exercise of jurisdiction---Custodian on deputation as Secretary Law, was never appointed as Custodian, but was given the charge of said post in lieu of Custodian when he was, illegally transferred and posted as Secretary Law by Government---Civil servant who had never treated himself to be the Custodian, had never challenged his reversion from Custodian to his original post of Additional Custodian before any Court---Civil servant in circumstances was not justified in law to throw a belated challenge to opposing civil servant for the post of Custodian.

Ch. Muhammad Fayyaz v. Syed Arshid Gillani PLJ 1999 SC (AJK) 89; Syed Arshid Gillani v. Azad Government and others 2000 PLC (C.S.) 66; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir. Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13 ref.

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

----Arts. 72, 73 & 74---Documentary evidence---Photostat copies could not be procured in the absence of original documents.

Ch. Muhammad Azam Khan and S.M. Suleman Khan, Advocates for Appellant.

Mujahid Hussain Naqvi, Advocate for Respondent No. 1

Raja Ibrar Hussain, A.-G. for Respondents Nos.2 to 4.

Dates of hearing: 9th, 10th and 14th January, 2003.

2003 P L C (C.S.) 965

[Azad J&K]

Before Sardar Muhammad Nawaz Khan, J

HABIB-UR-REHMAN, SOCIAL WELFARE OFFICER, MUZAFFARABAD and 7

Others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 5 others

Writ Petition No.328 of 2002, decided on 31st January, 2003.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----Ss.8 & 23---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Promotion of civil servant in the same grade which he was holding---Petitioners, on the basis of Azad Jammu and Kashmir Social Welfare and Women Development Service Rules, 1993 were appointed as Social Welfare Officers after they qualified the relevant test---Subsequently a sub-Committee was constituted to propose amendment in the said Rules--­Amendment in Rules had shown that petitioner already holding posts of Social Welfare Officers in Grade-17 were to be promoted to Assistant Directors who would hold the same Grade-17---Validity---Promotion could only be made in higher grade and not in the same grade---According to provisions of S.8 of Azad Jammu and Kashmir Civil Servants Act, 1976 wherein definition of 'promotion' had been provided---Civil servant could only be promoted to next higher grade and mere change of designation would not fall within the ambit of "promotion" ---Amendment in Rules, appeared to be an action based on mala fides just to deprive petitioners from their legitimate right of promotion because they would become junior to all those Assistant Directors who were already working in the Department which would mean that they would practically be denied their rights of service--­Action to form sub-Committee was also violative of S.23 of Azad Jammu and Kashmir Civil Servants Act, 1976 wherein powers to make Rules had been provided.

(b) Words and phrases-----

----'Promotion'--- Meanings.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-----

----Ss.15 & 17---Equality of State Subjects and safeguards against discrimination in service---All State Subjects are equal before law and are entitled to equal protection of law---State Subjects could not be discriminated or refused their rights of service---Rights of service would mean and include appointment, promotion and all other ancillary matters attached to the service of a citizen.

(d) Interpretations of statutes-----

---- Rules prescribed being subservient to the original Act---Any rule enacted in derogation of original Act or defeating the spirit of Constitution, could not be allowed to prevail.

M. Tabassam Aftab Alvi for Petitioners

Raja Ibrar Hussain Khan, A.-G. for Respondents.

2003 P L C (C. S.) 1041

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

IQBAL BEGUM

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary, New Secretariat, Muzaffarabad and 6 others

Civil Petition for Leave to Appeal No.209 of 2002, decided on 18th October, 2002.

(On appeal from the judgment of the Service Tribunal dated 10-7-2002 in Service Appeal No.313 of 2002).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----S.9---Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, Rr.5, 6 & 7---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Transfer of civil servant---Termination of service--­Appeal---Limitation---Delay, condonation of---Civil servant was transferred from one place of service to another but she did not join her duty at the place of transfer---Civil servant was proceeded against under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and her services were terminated by the Authority---Competent Authority was vested with jurisdiction to pass appropriate orders of transfer and posting of civil servants subordinate to it under provisions of S.9 of Azad Jammu and Kashmir Civil Servants Act, 1976---Civil servant could not claim posting at a particular place as of right---Government, no doubt, had issued instructions that a civil servant would retain his posting at a particular place at least for a period of two years, however, if any person was transferred before expiry of two years stay at a particular station by the Competent Authority, such transfer order could not be termed as void ab initio merely that it had been passed in violation of Government Policy---Civil servant could not disobey transfer order---Aggrieved civil servant had to seek remedy from relevant forum against transfer order in accordance with prescribed method---Civil servant in the present case availed Departmental remedy with success as she was re-instated in service and period she remained out of service was treated leave without pay subject to her entitlement---If civil servant was still not satisfied, she should have filed appeal before Service Tribunal, but she remained engaged in pursuing remedies which were not admissible to her under relevant law---Only such period could be condoned which was spent it wrong forum despite due care and diligence---Forums selected by civil servant for her remedies were not chosen with due care and diligence---Period spent in pursuing such remedies before such forums could not be made ground for condonation of delay---Appeal filed before Service Tribunal after lapse of 12 years, was rightly dismissed by Service Tribunal being barred by time.

Lt.-Col. Sanaullah Raja v. Muhammad Shafi and 2 others 1997 PCr.LJ 1527; Chairman, Azad Jammu and Kashmir Council v. Abdul Latif and 5 others 1997 MLD 2926; Sardar Aftab Ahmed v. Sardar Khurshid Hussain and 3 others 1999 PLC (C.S.) 40; Abdul Khaliq v. Abdullah Khan and 4 others 1998 PLC (C.S.) 1396 and Azad Government and others v. Ch. Muhammad Arif and others Civil Petition for Leave to Appeal No.121 of 2001 ref.

Ch. Muhammad Latif, Advocate for Petitioner.

Raza Ali Khan, Advocate for Respondents.

Date of hearing: 15th October, 2002.

2003 P L C (C.S.) 1092

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

ALI ZAMAN, QUARTER MASTER, D.H.O. OFFICE, MUZAFFARABAD

Versus

DIRECTOR-GENERAL, HEALTH DEPARTMENT AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 4 others

Civil Appeal No.49 of 2002, decided on 7th June, 2002.

(On appeal from the judgment of the Service Tribunal dated 21-3-2002 in Service Appeal No.38 of 2002).

(a) Civil service---

---- Adverse remarks, expunction of---Such remarks incorporated by Authority in A.C.R. of civil servant pertained to year 2000 whereas in ACRs of civil servant from 1993 up to 1999, his performance had been shown to be excellent---Civil servant in said A.C.Rs. had been declared honest and entitled to further promotion---In year 2000 for the first time his performance was, rated as average and he was not held entitled to promotion---Adverse remarks written by Authority had not been conveyed to civil servant---Conduct of Authority was violative of instructions issued by Government vide Notification No. S & GAD/A-4(67) VI/87-dated 30-1-1988 whereby Reporting Officer was bound to convey adverse remarks, within a period of thirty days to civil servant against whom same were' passed--­Purpose for conveying adverse remarks was that person against whom adverse remarks were reported should know those remarks so that he could improve his conduct or submit any explanation relating to his past conduct which gave rise to a complaint against him to the concerned Authority---In Instruction No.40 of said instructions issued vide Notification No. S & GAD/A-4(67) VI/87 dated 30-1-1988, it had been laid down that it adverse remarks were not communicated to concerned civil servant, then such remarks should be ignored for the purpose of promotion and premature retirement---Evidence on record had proved that civil servant and Authority which had passed adverse remarks against him were not on good terms--­Adverse remarks against civil servant, in circumstances, were intentional and with mala fide intention and were the result of bias and hostility of Authority towards civil servant---Said remarks could not be made basis for refusing civil servant his further promotion---Adverse "remarks incorporated in A.C.R. of civil servant for the year 2000, were expunged, in circumstances.

The Secretary, Government of Punjab v. Ahmad Kamaluddin 1981 SCMR 392; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256; Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Ilahi Khan Leghari and another 1992 SCMR 1427; Ghazanfar Ali Malik v. Secretary to Government of Punjab, Local Government & Rural Development Department 1982 PLC (C.S.) 392; Muhammad Naqi Khan v. Secretary, Establishment Division and others 1984 PLC (C.S.) 215; Ch Abdul Karim and 5 others v. Raja Muhammad Nisar and another 1999 PLC (C.S.) 624; Maj. Ziaul Hassan, Home Secretary and others v Mrs. Naseer Chaudhry 2000 SCMR 645 and Ch. Muhammad Akram and another, v. Mr. Hussain Ahmed Islahi and another Civil Appeal No. 38 of 1989 ref.

(b) Civil service---

---- Annual Confidential Report ---Significance---A.C.Rs. were considered in respect of promotion and demotion of civil servant and they had force of rules which could affect terms and conditions of service of a civil servant against which right of appeal of an aggrieved civil servant, had always been accepted by Service Tribunal and the Supreme Court.

(c) Civil service---

----Promotion---Promotion could not be withheld under excuse of any pending departmental inquiry against civil servant---Wisdom behind such view is that if promotion was refused to a civil servant on excuse of any pending departmental inquiry, that would amount to penalizing a civil servant prior to final opinion of Inquiry Committee or Officer---If the civil servant was promoted on basis of his merit, his promotion would not debar Competent Authority to continue with departmental inquiries against him and in case any misconduct was proved against a civil servant in departmental inquiry conducted fairly in accordance with Rules, appropriate order could be passed against civil servant.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Raja Ibrar Hussain, Advocate-General for Respondents.

Date of hearing: 3rd June, 2002.

2003 P L C (C.S.) 1180

[Azad J&K]

Before Ghulam Mustafa Mughal, J

Mst. FOZIA NOOR

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 3 others

Writ Petition No. 370 of 2002, decided on 29th January, 2003.

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules 1977---

----R.3(1)(4)(5)---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), Ss.2 & 4---Appointment---Determination of quota of posts---Civil servant initially .was appointed on ad hoc basis as Subject Specialist and his appointment was extended from time to time---Azad Jammu and Kashmir Public Service Commission issued advertisement whereby applications were invited for induction on different posts in different Departments including post of Subject Specialist which post had been advertised on open merit basis---Said advertisement was made without allocation of quota to different units of Azad Jammu and Kashmir---Rules of quota were mandatory and had a statutory backing---No advertisement, in circumstances, could be made without determining the quota of respective units---Reservation on the basis of regional quota was mandatory and not simply a rule of convenience in view of provisions of Ss.2 & 4 of Azad Jammu and Kashmir Civil Servants Act, 1976 and R.3(4)(5) of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, and considering various Government Orders---All concerned functionaries were bound to implement the same and any inconsistent order would be a serious illegality---Authority concerned was directed to determine the quota of Subject Specialist post accordingly.

Umar Hayat's case 1999 PLC (C.S.) 93 ref.

Raza Ali Khan for Petitioner.

Addl A.-G. for Respondents.

Date of hearing: 29th January, 2003.

2003 P L C (C.S.) 1436

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Chaudhry Muhammad Taj, J

Dr. SHAUKAT TANVEER, DENTAL SURGEON, DISTRICT HEADQUARTER HOSPITAL BHIMBER

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarbad and another

Civil Appeal No. 10 of 2003, decided on 4th July, 2003.

(On appeal from the judgment of the Service Tribunal dated 8-10-2002 in Service Appeal No. 134 of 1997).

Civil service---

----Promotion---At time when post in Grade-18 fell vacant due to promotion of other civil servant in Grade-19, civil servant could not be promoted in post in Grade-18 as at that time he had not passed the grading examination--­Civil servant passed the grading examination subsequently and at the time of his passing said examination said post was still vacant---Civil servant was not granted promotion from the date he passed grading examination despite at relevant time said post was lying vacant---Co-civil servants having been granted promotion from date they passed grading examination, civil servant was also entitled to be promoted from date when he passed grading examination when post for which he was to be promoted was lying vacant.

Muhammad Javed v. Secretary Home and 5 others 2002 SCR 1 and Nazar Ahmed Khan v. Syed Shabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303 ref.

Ch. Jahandad Khan, Advocate for Appellant.

Sardar Abdul Razik Khan, Additional Advocate-General for Respondents.

Date of hearing: 3rd July, 2003.

2003 P L C (C.S.) 1484

[Azad J&K]

Before Ghulam Mustafa Mughal, J

HAROON‑UR‑RASHID and 24 others

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 3 others

Writ Petition No. 134 of 2002, decided on 29th May, 2003.

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑--

‑‑‑‑Rr. 17 & 23‑‑‑Neelum Valley Development Board Act, 1989, Ss.16 & 17‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 49‑‑‑Appointment‑‑‑Writ petition‑‑‑Appointments of petitioners were made without creating posts and without advertisement‑‑‑Such appointments were of no legal consequence‑‑‑Post could not be legally filled whether by promotion or, otherwise unless there existed rules in that respect‑‑‑Even in case of created posts for making appointments, existence of rules was condition precedent and without rules it could not be said that appointment had been validly made‑‑‑No rules or regulations, in the present case, had been framed by Board and all appointments had been made subject to creation of the posts and subject to recommendation of Board‑‑‑Rules could eliminate to a great extent the arbitrary exercise of powers by concerned' Authority in the matter of appointment add promotion of civil servants‑‑‑In absence of creation of posts as well as rules, advertisements, was of no consequence‑‑‑Notice for appointments had not been published in known daily newspapers nor it had been locally served throughout in the constituency‑‑‑Only petitioners had been examined by Committee; and none else .had appeared pursuant to notice‑‑‑Very purpose of selection, in circumstances had been defeated and it could not be said that selection of petitioners had been made after a fair competition from the best available candidates‑‑‑" Selection" was a choice between more than one candidate and in absence of advertisement if no other candidate was asked to appear, then Selection Committee was deprived of opportunity of making the selection‑‑‑Making of appointments in State service being a trust in the, hands of Public Authorities, it was their legal and moral duty to discharge their functions as trustees so that every State subject was provided a fair chance of competition‑‑‑Appointments of petitioners being void, same could not be protected in writ jurisdiction of High Court‑‑‑Mere affording right of hearing would not make illegal appointments as legal‑‑‑Writ petition was dismissed with direction to determine number of required posts and after formal creation of posts and after framing/adopting rules, to fill the same after following due process of law.

PLD 1994 Lah. 3; 2001 SCR 526; 1998 PLC (C.S.) 1396; 1995 SCR 234; 1996 SCR 413; 2000 PLC (C.S.) 151; 2001 PLC (C.S.) 50; 1999 PLC (C.S.) 1248; Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155; Manzoor Ahmad's case 2001 PLC (C.S.) 50; Azad Government v. Haji Mir Muhammad Naseer and 10 others 1999 PLC (C.S.) 1173; 1992 SCMR 468; Ch. Muhammad Fayyaz's case PLJ 1999 SC (AJK) 89; PLD 1970 Dacca 85; Azad Government v. Ashfaque Ahmad‑Hashmi 2001 PLC (C.S.) 34; Tajam‑ul‑Hassan Mirza and others v. Speaker, Azad J&K Legislative Assembly and others Civil Appeal No. 186 of 2001; Mushtaq Ahmed Mohal's case 1997 SCMR 1043; Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 and PLJ 1992 FSC 412 ref.

Kh. Farooq Ahmed for Petitioners.

Advocate‑General, Mir Goher‑ur‑Rehman and Noor Ullah Qureshi for Respondents.

Date of hearing: 29th May, 2002.

2003 P L C (C.S.) 1530

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

Mst. RAFIYA LATIF

Versus

SECRETARY EDUCATION, AZAD JAMMU AND KASHMIR and another

Civil Appeal No. 150 of 2001, decided on 9th July, 2003.

(On appeal from the judgment of the Service Tribunal, dated 1‑9‑2001 in Service Appeal No.238 of 2000).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑

‑‑‑‑Rr.4(6)(i),(ii) & 9‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)‑‑‑Promotion‑‑‑Civil servant who was initially appointed as Junior Teachress, was promoted as Senior Teachress in B‑15, under order of Divisional Director of Schools‑‑‑In order to give her promotion order a legal shape, subsequently after about four months of her promotion, a corrigendum was issued by Assistant Director Schools under direction of Divisional Director Schools through which in her promotion order words" " (according to recommendation of Selection Committee) were added‑‑‑By the time civil servant was promoted, Divisional Director Schools had lost the competence to give promotion to civil servant as during that period post of Senior Teachress was upgraded from B‑15 to B‑16 and on account of that reason promotion could be made under provisions of relevant law on recommendation of Selection Board by Minister Incharge‑‑‑Case of civil servant was never sent to Selection Board alongwith other eligible candidates for its recommendation nor Minister Incharge had approved any such recommendation‑‑‑Illegal exercise of jurisdiction on the part of Divisional Director Schools, had not vested any legal right on the civil servant‑‑‑Promotion order passed by Divisional Director Schools without recommendation of Selection, Committee or Selection Board, was illegal and would confer no right upon promotee/civil servant and was rightly set aside, by Secretary Education and. appeal against setting aside such illegal order was also rightly dismissed by Service Tribunal.

Secretary for Prime Minister v. Muhammad Aslam 2000 PLC (C.S.) 155; Naseebullah v. Mumtaz Khan and others 1993 SCR 44; Ch. Muhammad Saeed v. Azad Government of the State of Jammu and Kashmir and others 1990 PLC (C.S.) 354 and Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarbad and 2 others v. Ashfaque Ahmed Hashmi, Press and Publication Officer, Prime Minister Secretariat, Muzaffarabad 2001 PLC (C.S.) 34 ref.

(b) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Issuance of show‑cause notice‑‑‑Secretary' Education being Head of Department recalled order of promotion of civil servant which was passed by Divisional Director of Schools illegally‑‑‑Secretary Education was not legally obliged to issue any show‑cause notice to civil servant who was illegally and incompetently promoted‑‑‑If an order was passed by a Competent Authority, even if it suffered from other lacunas or legal defects, it could not deprive a civil servant of any privilege, right or other benefit relating to terms and conditions of service without providing such civil servant the right of audience and show‑cause notice, but in the present case order of promotion having been passed in colourable exercise of jurisdiction by Divisional Director of Schools having no jurisdictional competence. Secretary Education was not legally bound to issue show‑cause notice to civil servant‑‑‑Service Tribunal, in circumstances, had rightly upheld order Secretary Education and dismissed appeal of civil servant.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Raja Muhammad Hanif Khan, Advocate for Respondents.

Date of hearing: 13th May, 2003.

2003 P L C (C.S.) 1537

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

Syed IMDAD ALI SHAH

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 8 others

Civil Appeals Nos. 104 to 113 and 127 of 2002, decided on 9th May, 2003.

(On appeal from the judgment of the High Court dated 21‑3‑2002 in Writ Petitions Nos.220, 232, 251 and 629 of 2000).

Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Minimum qualification for the post of Primary Teacher was laid down in the relevant rules as Matric with P.T.C. or equivalent‑‑­Said rules subsequently were amended to the effect that even untrained persons would be eligible for appointment as Primary Teacher in case trained teachers were not available‑‑‑Subsequently amendment was also made in the said rules on 18‑5‑1994 whereby minimum qualification for the post of Primary Teacher was provided as "Matric 2nd Division with PTC or equivalent "‑‑‑Said amended rules, however were kept in abeyance from 14‑6‑1994 onward till further orders‑‑‑On 1‑1‑1998 order of abeyance of rules as amended on 18‑5‑1994 was lifted which was given effect from 1‑2‑1998‑‑‑Civil servants in the present case, were appointed as Primary Teachers by Competent Authority through different appointment orders during period when even untrained persons could be appointed as Primary Teachers if trained teachers were not available‑‑‑Government issued directives vide Notification that all untrained teachers appointed contrary to rules as amended on 18‑5‑1994 whereby qualification of teacher was fixed Matric 2nd Division with P.T.C., should be removed from their services and posts be filled in afresh according to said amended rules‑‑‑Validity‑‑‑Civil servants were competently appointed during period when said Rules were kept in abeyance and during that period all of them were deputed for training by Education Department‑‑‑Civil servants who were only Matric 2nd Division, but were not in possession of P.T.C. qualification, having been allowed by Authority to appear before Departmental Selection Committee for determination of their merit against vacant posts of Primary Teachers, there must be consistency in policies of Government and Government could not penalize any person for the blunder, if any, committed by it‑‑‑If any right on the basis of policy of Government had been vested in course of time to civil servants, they could not be deprived of the same later on‑Judgment of High Court whereby protection had been given to those civil servants who had completed PTC during abeyance period, was maintained, but its order‑ that those who had not acquired qualification should be removed from service, was set aside by Supreme Court extending said benefit to civil servants who were deputed for departmental training at late stage and on account of that reason could not acquire P.T.C. qualification before order of High Court.

Azad Government v. Haji Mir Muhammad Naseer and 10 others 1999 PLC (C.S.) 1173; Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education Lahore and another PLD 1994 Lah. 3 and Fida Hussain v. The Secretary Kashmir Affairs arid Northern Affairs Division, Islamabad and another PLD 1995 SC 701 ref.

Kh. Shahad Ahmed and Sardar Shahid Hamid, Advocates for Appellants (in Civil Appeal No. 104 of 2002).

Raja Muhammad Hanif Khan, Advocate and Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 104 of 2002).

Kh. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No. 105 of 2002).

Raja Muhammad Hanif Khan, Advocate and Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 105 of 2002).

Kh. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No. 106 of 2002).

Raja Muhammad Hanif Khan, Advocate and Riaz. Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No.106 of 2002).

Kh. Attaullah Chak, Advocate for Appellants (in Civil Appeal No. 107 of 2002).

Raja Ibrar Hussain, Advocate‑General, Riaz Naveed Butt, Additional Advocate‑General and Raja Muhammad Hanif Khan, Advocate for Respondents (in Civil Appeal No. 107 of 2002).

Kh. Attaullah Chak, Advocate for Appellants (in Civil Appeal No. 108 of 2002).

Raja Ibrar Hussain, A.‑G., Riaz Naveed Butt, Additional Advocate‑General and Raja Muhammad Hanif Khan, Advocate for Respondents (in Civil Appeal No. 108 of 2002).

Kh. Attaullah Chak, Advocate for Appellants (in Civil Appeal No. 109 of 2002).

Raja Muhammad Hanif Khan and Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 109 of 2002).

Kb. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No. 110 of 2002).

Raja Muhammad Hanif Khan, Advocate and Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 110 of 2002).

Kh. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No. 111 of 2002).

Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 111 of 2002).

Raja Muhammad Hanif Khan, Advocate for Appellants (in Civil Appeal No.112 of 2002).

Kh. Shahad Ahmed, Sardar Shahid Hamid, Syed Nazir Hussain Shah Kazmi, Mujahid Hussain Naqvi, Khawja Muhammad Nasim, Advocates and Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 112 of 2002).

Kh. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No. 113 of 2002).

Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 113 of 2002).

Kh. Farooq Ahmed and Kh. Muhammad Nasim, Advocates for Appellants (in Civil Appeal No. 127 of 2002).

Riaz Naveed Butt, Additional Advocate‑General for Respondents (in Civil Appeal No. 127 of 2002).

Date of hearing: 6th March, 2003.