PLCCS 2004 Judgments

2004 P L C (C.S.) 396

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

ENGINEER MUHAMMAD AHMED ABRO

versus

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY and others

Appeal No. 175(K)(C.S.) of 2001, decided on 10th July, 2003 .

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

‑‑‑S.3(1)(c)‑‑‑Removal from service‑‑‑Civil servant was removed from service on allegation of misconduct‑‑‑Civil servant, who was working as Assistant Director (Engineering) on direction of Deputy Director rushed to site and recorded measurement of bridge as per direction‑‑‑As it was dark hour of night and though civil servant recorded measurement fairly, but later on after re‑measurement, it transpired that measurement taken by the civil servant was in excess due to which the contractor was paid excess amount‑‑‑Civil servant reported his mistake of recording excess measurement to the Deputy Director who took a decision that excess amount, collected by the contractor for excess measurement be deducted from his other pending bills‑‑‑Authorities, in circumstances,' did not suffer any financial loss at the hands of civil servant and civil servant was not found involved in corruption or misappropriation ‑‑‑Co‑civil servant was also issued the same show‑cause notice and on the basis of same investigation report, was compulsorily retired from service, but on filing appeal, he was reinstated in service‑‑‑Such circumstance would make it a case of discrimination as charges against civil servant and co-­civil servant were exactly the same but civil servant was removed from service whereas co‑civil servant was re‑instated‑‑‑Case of civil servant being identical, rule of consistency had to prevail in his case‑‑‑Appeal of civil servant was accepted and Authorities were directed to re­instate civil servant from same date when he was dismissed from service.

Abdul Latif Ansari for Appellant.

Sarwar Muhammad Khan for Respondents.

Date of hearing: 8th July, 2003.

2004 P L C (C.S.) 409

[Federal Service Tribunal]

Before Dr. Akhtar Hasan Khan and Abdul Razzaque, Members

Syed IFTIKHAR ALI SHAH

versus

WAPDA through Chairman, WAPDA House, Lahore and others

Appeal No.814(R) C.S. of 2000 decided on 20th October, 2001.

Government Servants (Efficiency and Discipline) Rules, 1973

‑‑‑‑Rr.3(c)(b) & 4(b)(iv)‑‑‑Service Tribunals Act (LXX of 1973); Ss.4 & 5(1)‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service on charge of misconduct/inefficiency‑‑‑Civil servant was served with a letter of explanation, in which it was stated that civil servant was in the habit of making disparaging remarks, false and frivolous, complaints about his superiors, exhibiting conduct which was unbecoming of an employee and a gentleman and he was also in the habit of wilful insubordination and breach of service 'discipline and the instructions issued by Authority‑‑‑Furthermore civil servant was a habitual litigant on frivolous and illegal causes‑‑‑Said letter of explanation did not indicate inefficiency on the part of civil servant nor it contained any charge of corruption and his failure to receive letter would not call for major penalty of dismissal from service‑‑‑Apparently some bad relationship existed between civil servant and his superiors‑‑‑Allegation of refusal to acknowledge a memo. was not a ground for dismissing a Government servant‑‑‑Order of dismissal from service was modified to that of censure as per S.5(1) of Service Tribunals Act, 1973 and civil servant was re­instated in service with full back‑benefits.

M. Shoaib Shaheen for Appellant.

Irfan Mushtaq for Respondents.

Date of hearing: 15th October, 2001.

2004 P L C (C.S.) 430

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Nabi Bakhsh Bhatti, Members

M. YASIN RASHID and others

versus

PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman, Islamabad and 2 others

Appeals Nos.730‑L to 764‑L of 1998, decided on 15th May, 2000.

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

‑‑‑‑Ss.2(a), 2‑A & 4‑‑‑Civil Servants Act (LXXI of 1973), S.2(b)(ii)‑‑­Appeal before Service Tribunal, maintainability‑‑‑Appellants were employed on work charged basis by respondent‑Corporation, on basis of order passed by High Court in Constitutional petition earlier filed by appellants whereby appellants were assumed to be regular employees of the respondent‑Corporation‑‑‑Said employees, had filed appeal before Service Tribunal with the prayer for direction to respondent‑Corporation to grant them regular pay scale and all other facilities at par with other permanent employees‑‑‑Neither there existed any contract of employment between the appellants and the respondent‑Corporation providing terms and conditions of service nor existed any original or appellate order passed by respondent‑Corporation in that respect‑‑‑Provisions of S.4 of Service Tribunals Act, 1973 had laid down the conditions and circumstances in which appeal was maintainable‑‑‑Right of appeal was a statutory right and was conferred upon a person aggrieved and the provisions conferring such rights had also defined its scope‑‑‑No extraneous consideration or matter could be imported so as to abridge or enlarge the scope of appeal before the Service Tribunal‑‑‑In absence of any contract of employment between the parties, providing terms and conditions of service which could be enforced through statutory jurisdiction of Service Tribunal, appeals by appellants, were not maintainable as the same did not at all fulfil the requirement of S.4 of Service Tribunals Act, 1973‑‑‑Service Tribunal could not assume the jurisdiction as an executing Authority/Court in respect of order earlier passed by the High Court‑‑‑If the said order was assumed by appellants in their favour, they could avail appropriate remedy provided to them for enforcement of the order available under law and appeal under S.4 of Service Tribunals Act, 1973 could not be based on the order Court.

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

‑‑‑‑Ss.2(a), 2‑A & 4‑‑‑Civil Servants Act (LXXI of 1973), S.2(b)(ii)‑‑‑ Appeal before Service Tribunal, maintainability‑‑‑Appellants, were employed on work charged basis and neither existed any contract of employment between the appellants and respondent‑Corporation providing terms and conditions of their services nor existed any original or appellate order passed by respondent‑Corporation in that respect‑‑­Appellants, in circumstances were excluded from definition of `civil servant' and provisions of Service Tribunals Act, 1973, would not at all be attracted in the case of appellants‑‑‑Appellants having been ousted from definition of civil servant, were not entitled to invoke statutory, jurisdiction of Service Tribunal and thus appeals filed by them before Service Tribunal, were not maintainable.

Asmat Kamal Khan for Appellants.

Mian Tabbassam Ali alongwith Raja Eviz Mahmood, Asstt. Director Hayat Muhammad, Dy. Director and Muhammad Ashraf, Law Officer, D.Rs. for Respondents.

Date of hearing: 29th April, 2000.

2004 P L C (C.S.) 438

[Federal Service Tribunal, Islamabad]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

SARFARAZ HUSSAIN SHAH

versus

THE KARACHI ELECTRIC SUPPLY CORPORATION LIMITED

Appeal No. 1601(K)(CE) of 2001, decided on 4th July, 2003.

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

‑‑‑‑Ss. 3(1)(b)(c), 5(4) & 6‑‑‑Dismissal from service‑‑‑Civil servant serving as Medical Officer was dismissed from service after issuing him show‑cause notice, but without holding any inquiry regarding allegations on basis of which he was dismissed from service‑‑‑Authority could not produce any letter which could show that inquiry against civil servant was dispensed with under S.5(4)' of Removal from Service (Special Powers) Ordinance, 2000‑‑‑Civil servant having denied allegations levelled against him, it has become obligatory for Authority to hold inquiry against him‑‑‑Mandatory provisions of law having not been complied with by Authority in case of civil servant, order of his dismissal from service was not sustainable and was set aside with direction to reinstate him in same position.

1997 SCMR 1543 and Secretary Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz‑ul‑Haq 1997 SCMR 1552 ref.

Shafi Muhammadi for appellant.

Ashfaq Ayyubi and Masood Mukhtar Naqvi for Respondent.

Date of hearing: 7th June, 2003.

2004 P L C (C.S.) 453

[Federal Service Tribunal, Islamabad]

Before Akbar M. Memon and Barkat Ali Baloch, Members

Khawaja NASIRUDDIN

Versus

CHAIRMAN, PNSC, KARACHI and another

Appeal No.286(K)(CE) of 2001, decided on 10th September, 2002.

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

‑‑‑‑S.13‑‑‑Retirement‑‑‑Recovery of excess payment‑‑‑Civil servant was retired from service after attaining age of 60 years according to date of his birth as mentioned in the discharge certificate from his previous service‑‑‑Said discharge certificate showed the date of birth of civil servant as 15‑6‑1938 whereas claim of civil servant was that according to his Birth Certificate issued by Municipal Corporation his date of birth was 15‑6‑1944‑‑‑Authority had accepted birth date of civil servant to be 15‑6‑1938 at the time of his appointment‑‑‑Civil servant at the time of appointment though had mentioned about his qualification, but no Matriculation certificate was obtained from which Authority could have verified his birth date‑‑‑Subsequently civil servant went on mentioning different dates and when dates of birth of civil servant were not tallying with each other, no query was made by the Authority and civil servant went on working till date of retirement which was 30‑11‑2000‑‑‑Civil servant having worked after his retirement age, Authority ought to have taken action against him which was not done‑‑‑Civil servant having served for more than two years from due date of his retirement, Authority ordered that all payments made to him subsequent to his date of retirement were illegal and same were ordered' to be adjusted against his final dues‑‑‑Validity‑‑‑No executive order could be passed with retrospective effect and Authority could not make recovery of excess amount as he had rendered his service during that period‑‑‑Civil servant had contended that he would be satisfied if he was ordered to be retired from date of impugned order‑‑‑Accepting request of civil servant, Tribunal ordered accordingly.

(b) Executive order‑‑‑‑

‑‑‑‑No executive order could be passed with retrospective effect.

Abdul Ghafoor Mangi for Appellant. .

Mushtaq Ahmed Sheikh, for PNSC for Respondent.

Date of hearing: 26th July, 2002.

2004 P L C (C.S.) 457

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

ABDUL SATTAR

versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others

Appeal No. 1056(K) of 1999, decided on 28th February, 2003.

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

‑‑‑‑Rr.4 & 5(iv)‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service after issuing show‑cause notice, but without holding inquiry against him‑‑‑Other co‑civil servant against whom similar allegations were ‑levelled, were dealt with leniently as one of them was exonerated and other was imposed penalty of reduction in pay scale to the initial stage, of BPS‑17 for five years which penalty later on was converted into minor penalty of withholding one next annual increment for a period of one year without future effect‑‑‑Proper course for Authorities was to have held a regular inquiry so that whatever was stated by civil servant in his reply should have been taken into consideration and thereafter if he was found guilty of charge against him, then proper penalty should have been imposed upon him‑‑‑Proper course in circumstances was to remand case for holding appropriate inquiry so that the true facts be unearthed‑‑‑Order of dismissal from service was set aside and civil servant was reinstated in service and case, was remanded to hold fresh inquiry against him.

2000 SCMR 1221; 1993 SCMR 603; 2001 PLC (C.S.) 117 and Province of Punjab v. Muhammad Siddique Khan 2000 SCMR 1321 ref.

Abdul Latif Ansari for Appellant.

Abbas Haider Jafri for Respondent.

Date of hearing: 24th February, 2003.

2004 P L C (C.S.) 465

[Federal Service Tribunal]

Before Akbar M. Meman and Barkat Ali Baloch, Members

BEHROLAL VIRIANI

Versus

PAKISTAN TELECOMMUNICATION Co. LTD. Through Chairman and others

Appeal No. 251(K) (CS) of 2000, decided on 25th April, 2003.

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

‑‑‑‑Rr.4(1)(b)(i), 5, 6 & 7‑‑‑Reduction to lower stage in time scale by five steps‑‑‑Such penalty was imposed upon civil servant after charge­sheeting him and holding enquiry against him‑‑‑Very important record relating to enquiry against civil servant was not available and was missing and entire enquiry' against civil servant in respect of charges against him were based on certain facts which could have been verified from record, but no such record was available‑‑‑Enquiry Officer, in circumstances, was not justified in giving his findings which culminated in imposition of major penalty‑‑‑Order imposing penalty was set aside and case was remanded with direction to the Authority to hold fresh enquiry after making all relevant record available and after giving full chance to civil servant to cross‑examine witnesses and to put up his defence within specified period.

Sanaullah Noor Ghori for Appellant.

Umar Qureshi for Respondents.

Date of hearing: 15th April, 2003.

2004 P L C (C.S.) 480

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

Dr.Mrs. NOUSHABA SYED

versus

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI and others

Appeal No. 1888(K) of 1998, decided on 15th March, 2003.

Service Tribunals Act (LXX of 1973)---

----Ss.2-A & 4---Termination of service---Irregular appointment--­Vacancy not advertised in newspaper---Time-barred appeal---Despite her being overage, the civil servant was appointed as Lady Medical Officer, on recommendations of Prime Minister's Secretariat--- -Authorities terminated her services on the ground that her appointment was made in violation of the rules---Civil servant contended that her appointment was regular as she was interviewed by the Selection Committee ---Validity--­Such interview by Selection Committee could not make ipso facto the appointment as valid---Organization recruiting people do not interview the prospective candidates till they advertise or they were forced under orders of very powerful Authority to consider any candidate---Fact that the civil servant was overage was a factor which proved that she had been appointed in violation of the rules---Appointment of the civil servant being not legal, she ,could not be reinstated and also for the reason, that after her termination others had been appointed---Civil servant was' terminated in accordance with prescribed rues as show­cause notice was issued to her and she had been afforded personal hearing---Appeal was dismissed in circumstances.

Riaz Ahmed Shahid v. PIAC Appeal No:4528(K)/98; 1996 SCMR 273; 1994 PLC (C.S.) 755; PLD 1990 SC 692; 1984 SCMR 740 and 1998 PLC.(C.S.) 800 ref.

Abdul Ghafoor Mangi for Appellant.

Masood A. Khan for Respondents.

Date of hearing: 28th February, 2003

2004 P L C (C.S.) 495

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

MUHAMMAD ANWAR

versus

THE CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, LAHORE and 3 others

Appeal No.480(L)(C.S) of 2002, decided on 10th June, 2003.

Civil service---

---- Compulsory retirement---Penalty of compulsory retirement was imposed on civil servant on allegation of receiving illegal gratification---

Civil servant allegedly had persistent reputation of being corrupt --- servant was tried by competent Court for offence of receiving illegal gratification, but was acquitted of said charge and complainant was proceeded against for giving false statement against civil servant of receiving illegal gratification and complainant was tried and was sentenced to three years R. I. imprisonment under S.193, P. P. C.---Show­ cause notice was issued to civil servant after more than six years from alleged incident and no explanation of such an inordinate delay was given by Authority and no Departmental action was taken against civil servant during such period---Though for a Departmental action no period of limitation was prescribed but rules of justice and fair play required that such an action should be prompt and without unnecessary delay---Delay of more than six years for initiating Departmental proceedings was very long and civil servant was .prejudiced by said inordinate delay---Civil servant was acquitted of charge by competent Court, but Authority again took more than two years after pronouncement of judgment of acquittal in issuing show-cause notice to civil servant---If Authority was not satisfied with judgment of acquittal, Authority could have appealed against said judgment to the-High Court, but than had not been done--­ Criminal - proceedings though had no nexus, with Departmental proceedings but it was a peculiar case in which complainant was sentenced to imprisonment for giving fake statement against civil servant ---Second charge against civil servant that he had a – persistent reputation of being, corrupt, was also not justified because on a single incident, Authority, was not justified in levelling said charge against civil servant--- Penalty awarded to civil servant could not be sustained, in circumstances---Penalty of compulsory retirement imposed on civil servant was set aside and he was reinstated in service.

Ch. Bashir Ahmad for Appellant.

Mian Matiur Rehman for Respondents.

Date of hearing: 10th June, 2003.

2004 P L C (C.S.) 499

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

MUHAMMAD SALEEM

versus

DIRECTOR-GENERAL PAKISTAN RANGERS (SINDH) and another

Appeal No. 195(K)(C.S.) of 2000, decided on 3rd July, 2003.

Pakistan Rangers Ordinance (XIV of 1959)---

----S.15(1)---Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967, R.4---Service Tribunals Act (LXX of 1973), S.4---Reduction in rank and dismissal from service---Appeal---Appellant lastly .working as Lance Naik' was reduced in rank and was dismissed from service on charges of misconduct---Allegation against appellant was that Deputy Superintendent Rangers, accompanied with his subordinates including appellant had raided the house of one civilian unauthorisedly---All accused including appellant were examined in Court of Enquiry where they all denied to have conducted raid, but Court of Enquiry had opined that appellant had knowingly made a false statement before the Court and recommended stern disciplinary action against him---Neither said Deputy Superintendent Rangers, was examined nor person whose house was allegedly raided, was called before the Court of Enquiry---Entire case against the appellant and other accused was based on evidence of oneNark' who made probe in the matter on receiving telephone call about alleged raid, but said Naik was not an eye-witness of the occurrence--­Naik had alleged that appellant and others had confessed their guilt in his presence which could be termed as `extra-judicial confession', but same was denied by the appellant and others before the Court of Enquiry--­Evidence before the Court of Enquiry was scanty and findings/ recommendations of the Court of Enquiry were based on presumption only that appellant and others had confessed their guilt due to which appellant was punished---No case having been made out against appellant, order of reduction of his rank and then order of his dismissal from service, were set aside and he was directed to be reinstated in service in the same position from which he was dismissed from service with all back-benefits.

Ghulam Mustafa Lakho for Appellant.

Major Falak Naz, DR for Respondents

Date of hearing; 2nd July, 2003.

2004 P L C (C.S.) 514

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

S.M. ALI GOHAR

Versus

MANAGING DIRECTOR, H.B.F.C., KARACHI and others

Appeal No. 1154(K) of 1999, decided on 28th March, 2003.

House Building Finance Corporation Service Regulations, 1959---

----Regln.11---Civil Servants Act (LXXI of 1973), S.11(2)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Termination of service--­Delay in filing appeal, condonation of---Service of civil servant was terminated after about five years from his appointment simply on the ground that his services were not required by the employer­Corporation---Civil servant, who was appointed as per prescribed procedure, was placed on probation for a period of six months and after completion of the said probationary period was eligible for confirmation---Corporation could terminate services of civil servant under Regln.11 of House Building Finance Corporation Service Regulations, 1959, provided it acted in good faith, without any discrimination in the interest of Corporation and not on extraneous considerations---If termination of civil servant was ordered not in the interest of Corporation, but as a result of discrimination and in violation of principles of natural justice and pick and choose policy which was in violation of principles of "Last in First out (LIFO)" as laid down in S.11(2) of Civil Servants Act, 1973---Termination of civil servant from service, was unjustified legally and was also based on distortion of facts---Order terminating services of civil servant, not passed in a transparent, fair and equitable manner smacked of partiality and mala fides on the part of respondent-Corporation„ being illegal, was not sustainable in law---Service Tribunal condoned delay in filing' appeal against termination order, accepted appeal of civil servant, set aside order terminating his services and ordered his reinstatement in service.

1999 SCMR 311; 2002 SCMR 134 and 1998 SCMR 2296 ref.

Masood Mukhtar Naqvi for Appellant.

M.Z. Khan Naqvi for Respondent alongwith Dr. Hassan Munawwar, Assistant Manager, Departmental Representatives.

Date of hearing: 25th March, 2003.

2004 P L C (C.S.) 530

[Federal Service Tribunal, Islamabad]

Before Akbar M. Memon and Barkat Ali Baloch, Members

Dr. NIGHAT SHAH

Versus

CHAIRMAN, P.I.A.C., KARACHI and others

Appeal No. 1561(K) of 1998, decided on 6th November, 2002.

Civil service---

---- Termination of service---Civil servant worked as Lady Doctor for more than one year from her appointment and was confirmed---Civil servant subsequently was granted study leave and was required to fill in bond stating therein that after qualifying FCPS, she would serve Authorities at least for five years---During course of her study leave, civil servant was terminated on allegation that her appointment was irregular and that her application being unsolicited one, her very appointment order was void ab initio---Services of civil servant were terminated in her absence without issuing her show-cause notice and without holding any inquiry against her---No allegation of misconduct was levelled against the civil servant and she was also not .lacking qualification for her post---Validity---Authorities could not show that any post was filled in on basis of advertisement---Civil servant who was confirmed employee and had served Authorities for more than two years prior to proceeding on study leave, could not have been thrown out from service without issuing show-cause notice and without holding inquiry against her in violation of principles of natural justice as such action was no action in the eye of law---Order terminating service of civil servant, was set aside with direction to Authorities to reinstate her on same position from which she was terminated with all back-benefits.

2002 PLC (C.S.) 1019; Chief Commissioner Karachi v. Mrs. Dina Soharb Katrak PLD 1959 S.C. (Pak.) 45; Messrs Faridsons Limited Karachi and another v. Government of Pakistan and another PLD 1961 SC 537; Abdur Rehman v. Collector and Deputy Commissioner Bahawalnagar and others PLD 1964 SC 461; Abul A'la Maudoodi v Government of Vest Pakistan PLD 1964 SC 673; University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Muhammad Hayat v. Province of Vilest Pakistan PLD 1964 SC 321; Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Khalil-uz-Zaman v. Supreme Appellant Court, Lahore and 4 others PLD 1994 SC 885; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232 and 2002 PLC (C.S.) 1083 ref.

Abdul Ghafoor Mangi for Appellant

Masood A. Khan for Respondents.

Date of hearing: 8th October, 2002.

2004 P L C (C.S.) 543

[Federal Service Tribunal, Islamabad]

Before Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

GUL ZARIN KHATTAK

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 2 others

Appeal No.418(K) CE of 2001, decided on 31st March, 2003.

State Life Employees (Services) Regulations, 1973---

---Regln. 7---Service Tribunals Act (LXX of 1973), S.4---Order granting special pay---Cancellation/withdrawal of order---Civil servant working as Superintendent in Health Insurance Zone, Principal Office, State Life Insurance Corporation was granted special pay of Rs.500 pm. for meritorious services---Orders granting such special pay subsequently was withdrawn on the ground that order granting special pay was not issued with approval of Competent Authority which was Board of Directors--­Chairman, State Life Insurance Corporation had approved grant of special pay to civil servant strictly in accordance with Regln. 7 of State Life Employees (Services) Regulations, 1973---Contention of Authority was that Board of Directors of Corporation in its meeting had amended Regln. 7 of State Life Employees (Services) Regulations, 1973 and that after said amendment, Competent Authority to sanction special pay was Board of Directors and not the Chairman of Corporation, however it could not be proved that said S.7 had been properly amended by issuance of Notification---Withdrawal of special pay granted to civil servant under Regln. 7 of State Life Employees (Services) Regulations, 1973, on ground that such grant stood delegated to Board of Directors, was not legally tenable---Decision of Board taken in its meeting, but not properly notified, would not carry any legal sanctity and could not modify provisions of Regln. 7 of the said Regulations---Order of withdrawal/cancellation of order granting special pay to the civil servant who had rendered 28 years service to the Corporation, was set aside in effect and order granting special pay to civil servant, was restored.

Abdul Lateef Ansari for Appellant.

Masood Mukhtar Naqvi for Respondents.

Date of hearing: 26th March; 2003.

2004 P L C (C.S.) 635

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

KHAIR MUHAMMAD and others

Versus

MANAGING DIRECTOR, SUI SOUTHERN GAS CO. LTD., KARACHI

Appeal Nos.251(K)(CE) to 266(K)(CE),of 2001, heard on 30th March, 2002.

Civil service‑‑‑

‑‑‑‑Termination of service‑‑‑Services of civil servants, who were working in different disciplines, were terminated without issuing them show‑cause notices‑‑‑Conditions of services of civil servants had clearly shown that they were appointed specifically by Authorities for their project requirement and it was also mentioned in appointment letters of civil servants that their appointments would automatically stand terminated on completion of project‑‑‑All said conditions of service were accepted by civil servants at the time of joining their assignments‑‑‑Order of termination, in circumstances, could not be said to be void ab initio or that the same was bad in law for non‑issuing show‑cause notice‑‑­Appeals against orders of termination, otherwise being hopelessly time ­barred were declined to be admitted for hearing.

1996 SCMR 1185; PLD 1976 Lah. 580 and 1978 CLR 99 ref.

Muzaffar‑ul‑Haq for Appellant.

Date of hearing: 30th March, 2002

2004 P L C (C.S.) 677

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

Syed ZAHID HUSSAIN NAQVI

Versus

PAKISTAN AIR FORCE and others

Service Appeal No. 125(K)(CS) of 2000, decided on 24th February, 2003.

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

‑‑‑‑R.4(1)(b)(iv)‑‑‑Dismissal from service‑‑‑Only ground on which civil servant was dismissed from service was his absence from duty‑‑‑Civil servant was given a memorandum showing certain allegations against him and he was required to explain as to why disciplinary action should not be taken against him‑‑‑Civil servant on receiving said memorandum explained his position and submitted that he had some family problems due to which he was upset and could not attend the office‑‑‑Authority, without considering explanation of civil servant, dismissed him after issuing him show‑cause notice, but without holding enquiry against him‑‑‑Evidence on record had shown that all servant had some family problems which he used to bring to the notice of Authority, but Authority instead of taking any lenient view had straightaway dismissed him from service‑‑‑Civil servant admittedly was psychic on account of frustration and family problems which had further aggravated due to his dismissal from service‑‑‑Better course for Authority was to have referred civil servant to some psychiatric, but that had not been done‑‑‑Now when civil servant had reached to a stage where he was not able to work, it was better for the Authority to order his retirement from service, instead of dismissing him from service, which was too harsh‑‑‑Penalty of dismissal from service awarded to civil servant, was converted to that of retirement from service on compassionate grounds as civil servant was not able to work in Department on account of his weak mental faculties.

Niaz Ahmed Khan for Appellant.

DR. Moinuddin CAO in attendance.

Date of hearing: 17th February, 2003.

2004 P L C (C.S.) 713

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members.

ABDUL JABBAR CHANNA and others

Versus

FEDERATION OF PAKISTAN and others

Appeals Nos. 1278(K) to 1290(K) of 1999, decided on 20th August, 2002.

Karachi Electric Supply Corporation (Removal from Service) Ordinance (X of 1999)‑‑‑--

----S.2‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Retirement from service‑‑‑Civil servants who were appointed through proper method of interview, after completing period of probation successfully, were confirmed and subsequently were promoted from time to time‑‑‑Some of them had been rewarded for their excellent performance‑‑‑Civil servants whose performance remained excellent and without any stigma throughout their period of service abruptly with one stroke of pen were retired from service under S.2 of Karachi Electric Supply Corporation (Removal from Service) Ordinance, 1999 in violation of terms and conditions of their service settled at the time of their appointment without assigning any reason and without providing any opportunity of proper hearing before passing such arbitrary order against them‑‑‑Any adverse action taken against civil servants without observing established norms of natural Justice and in violation of original terms and conditions of their services, could not be accorded any value and sanctity‑‑‑Employer­ Corporation, after compulsory retirement of civil servants only recruited fresh Engineering graduates in the same cadre, but had re‑taken number of dismissed civil servants‑‑‑Such clear discriminatory policy, adopted by the Corporation was against norms of natural justice, fair play and propriety and such arbitrary policy could not be subscribed to particularly when such policy had targeted number of civil servants with regular and confirmed services ranging from 12 to 30 years‑‑‑Order of compulsory retirement passed against civil servants, being discriminatory in nature, adverse to legitimate interests of civil servants and having been passed with mala fide intention, was void and could not sustain‑‑‑No limitation could run against such void order even if appeals against such order were time‑barred‑‑‑Order passed against civil servants was set aside with direction to re‑‑instate them with all back­ benefits.

WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC (C.S.) 890; Appeal No. 374(L)(C.S.) of 2000, Sardar Masood Iqbal Khan v. Chairman, WAPDA; 1992 SCMR 1789; 1993 SCMR 1609; 1998 SCMR 137; 1991 SCMR 1041; 1992 SCMR 563; 1996 SCMR 1165; 1994 SCMR 2232; PLD 1977 Lah. 549; 1999 PLC 1360; 1999 PLC (C.S.): 1539; NLR 1997 Kar. (Service) 140; 1998 PLC (C.S.) 1236; PLD 1979 Kar. 610; 1999 SCMR 988; 1994 SCMR 1033; PLD 1987 SC 304; 1997 SCMR 1804; and PLD 1964 SC 673; 1998 SCMR 137 1988 SCMR 1458; 1993 SCMR 715 and 1994 PLC (C.S.) 1018 ref.

Shabbir A. Awan for Appellants.

Muhammad Sadiq for Respondents.

Dates of hearing: 26th September, 2001 and 26th June, 2002.

2004 P L C (C.S.) 929

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

Raja ALI GUL MANGI

versus

MANAGING DIRECTOR, PAKISTAN STATE OIL CO. LTD and others

Appeal No.928(K) of 1999, decided on 12th June, 2003.

(a) Confession‑‑‑

‑‑‑‑Confessional statement‑‑‑Obtaining of signatures under coercion and promise‑‑‑Effect‑‑‑Such admission cannot be considered to be an outcome of consent or free will of the person making the statement.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Appeal before Service Tribunal ‑‑‑Maintainability‑‑­Limitation‑‑‑Statutory Rules, absence of‑‑‑Right of filing of departmental appeal‑‑‑Objection of the authorities was that the appeal of the employee was barred by 53 days as he was required to file appeal directly to Service Tribunal after passing of order by the authorities‑‑‑Validity‑‑‑In absence of statutory rules governing the affairs of the service of employees, which could not be legally compelled to file appeals/representations to the authority or next higher authority for approaching Service Tribunal for redressal of their grievance‑‑‑Since word `could' had been used, as such, it was necessary for the employee to have filed his departmental appeal‑‑‑Present appeal was not barred by limitation as the employee had filed departmental appeal in the first instance thereafter had approached Service Tribunal‑‑‑Appeal was maintainable in circumstances.

Narian Das: v. Federation of Pakistan 2002 SCMR 82 and Abdul Hafeez Abbasi v. P.I.A.C. 2002 PLC (C.S.) 1083 rel.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Termination from service‑‑‑Plea of being a contract employee‑‑‑Scope‑‑‑Appointment of the employee was made in the year, 1996 but no document had been produced which could show that the probation period, was terminated or the same was extended‑‑‑ Since no adverse report was available, employee was deemed to be permanent employee‑‑‑Plea of contract employee was repelled in circumstances.

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

‑‑‑‑Ss. 2‑A & 4‑_‑`;Vest Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.15(3)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 37‑‑Termination of service‑‑ ‑Confession under coercion and without free will‑‑‑Allegation of stealing of bank draft was levelled against the employee and his service was terminated‑‑‑Bank draft in question was in the name of the employer which was misplaced and later on it was recovered‑‑‑Services of employee were terminated under S.15(3) of West Pakistan Industrial and Commercial Employment (standing Orders) Ordinance, 1968, on the ground that the employee had put his signatures on the back side of the bank draft as a token of his confession‑regarding stealing of the draft‑‑.‑.Va1Aity‑‑‑Bank draft was in the name of the employer and the same could neither be encashed nor could have been deposited in the account of the employee, therefore, there was no element of mens ren of the employee‑‑‑Admission of employee in the shape of putting signature on the back side of the bank draft was obtained by the authorities under coercion which was without consent or fret will‑and the employee could not be burdened with the charge of having committed theft of the bank ''draft‑‑Termination order was set aside by the Service Tribunal and the employee was reinstated to service with 5091; back‑benefits‑‑‑Appeal was allowed accordingly.

1999 SCMR 197; CP Nos.2048‑L. 2050‑L & 2051-L of 1989. PLD 1999 SC 692; PLD 1981 SC 275; .1951 SCMR 1237; PLD 1968 Kar. 422; PLD 1976 SC 530; PLD 1955 Kar. 315; ‑PLD ‑1970 Lah. 25; 1985 CLC 178; 2000 SCMR 5136; 1992 SCMR 1789 and PLD 2002 SC 101 ref.

Abdul Ghafoor Mangi, Advocate for appellant:

Raja Haq Nawaz, Advocate .for 'Respondents with D..Rs. Faiz Muhammad Durrani, Legal Executive and Rana Muhammad Idrees for Respondent No. 1.

Date of hearing: 8th February,.2003

2004 P L C (C.S.) 959

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD NAWAZ MIRZA

Versus

DIVISIONAL COMMERCIAL OFFICER, PAKISTAN RAILWAYS, LAHORE and 2 others

Appeal No. 727(L) (C.S.) of 2001, decided on 4th November, 2003.

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

‑‑‑‑Ss.3, 5(4) & 10‑‑‑Constitution of Pakistan (1973), Art.13‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Employee was dismissed from service after issuing show‑cause notice, and charge‑sheeting him on allegation that he was in the habit of making false complaints against various vendors and officials for ulterior motives‑‑‑Competent Authority dispensed with formal inquiry on basis of documentary evidence‑‑‑Employee had been punished for his past punishments awarded to him for his misconduct‑‑­No employee could be punished twice‑‑‑Article 13 of the Constitution was very clear on that point according to which no person could be vexed twice on same charge‑‑‑Employee having been punished for his past misconduct, said punishments, on the principle of double jeopardy, could not be made basis for dismissal order‑‑‑Competent Authority in show‑cause notice had observed that formal inquiry was not needed in view of available documentary evidence‑‑‑No. explanation was given in said show‑cause notice as to what were the documents and what was their nature‑‑‑Employee was never provided the details of available documentary, evidence to enable him to rebut the same‑‑‑Show‑'clause notice, in circumstances; suffered from a legal infirmity and penalty imposed upon him on the basis of such show‑cause notice could not be upheld‑‑‑Competent Authority had dispensed with a formal inquiry by passing a mechanical order and did not pass a speaking order containing reasons‑‑‑Employee should not have been condemned on the strength of said mechanical order‑‑‑Omission on part of Competent Authority to give details of documents and to supply copies of such documents on demand had resulted into miscarriage of justice‑‑‑Appeal which otherwise was within time was accepted and order of dismissal passed against employee was set aside and he was re‑instated in service with back­-benefits.

Pervaiz Inayat Malik, for Appellant.

Ch. Khalil‑ur‑Rehman, Counsel for Respondents.

Date of hearing: 4th November, 2003.

2004 P L C (C.S.) 969

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD NAWAZ MIRZA

Versus

DY. D.S. PASSENGER, PAKISTAN RAILWAYS, LAHORE and another

Appeal No. 174(L)(C.S.) of 2000, decided on 4th November, 2003.

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

‑‑‑‑Rr.3(b) & 4(1)(b)(i)(iv)‑‑‑Dismissal from service‑‑‑Conversion into reversion of grade‑‑‑Employee was dismissed from service after issuing him show‑cause notice on serious allegation of misconduct‑‑‑Penalty of dismissal from service imposed upon employee was subsequently converted into reversion as TCR Grade‑I for a period of three years‑‑­Record had established that show‑cause notice was never served upon the employee‑‑‑Employee, in circumstances was deprived of an opportunity to defend himself‑‑‑Serious charges of misconduct had been levelled against the employee, but no inquiry was held against him to determine the true facts‑-‑Government Servants (Efficiency and Discipline) Rules, 1973 were not followed by the Competent Authority as well as by the Authorized Officer inasmuch as even show‑cause notice was not served upon the employee‑‑‑Entire proceedings against the employee being illegal order passed against him was set aside.

Pervaiz Inayat Malik, for Appellant.

Ch. Khalil‑ur‑Rehman, Counsel for the Respondents.

Date of hearing: 4th November, 2003.

2004 P L C (C. S) 1003

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

Syed ABID HUSSAIN SHAH

Versus

KARACHI ELECTRIC SUPPLY CORPORATION and another

Appeal No. 1047(K)(CE) of 2001, decided on 5th November, 2003.

Karachi Electric Supply Corporation Rules and Conditions of Service‑‑‑

‑‑‑‑S.14(b) & (d)‑‑‑Dismissal from service on allegation of misconduct‑‑­Re‑instatement‑‑‑Employee who served Corporation for about 32 years as Skilled Fitter, was dismissed from service after issuing him show‑cause notice and holding inquiry against him on allegation of receiving illegal gratification 'from a person who made a complaint in writing against him‑‑‑Final/second show‑cause notice was not issued against the employee nor copies of inquiry proceedings/report were supplied to him on account of which‑employee had been seriously prejudiced‑‑‑Record did not show that personal hearing, had been extended to employee before inflicting major punishment of dismissal on him‑‑‑Inquiry against employee was not conducted in proper manner inasmuch as no prosecution witness was examined in presence of employee and he was not afforded opportunity to cross‑examine prosecution witnesses‑‑‑Very person who was allegedly aggrieved by employee for alleged illegal gratification, had withdrawn and abandoned grievance against employee and he had not pressed his applications‑‑‑Event of withdrawing the very complaint by aggrieved person had taken place much before conducting of inquiry against employee‑‑‑Authorities had neither produced original complaint of complainant nor statement of complainant was recorded during inquiry proceedings before Service Tribunal‑‑‑Only presumption, in circumstances, which could be drawn was that there was no complaint and if at all there was any complaint, same was no more actively persued against employee‑‑‑Such fact would show that entire allegation of accepting illegal gratification by employee had become doubtful and unworthy of reliance‑‑‑Non‑examination of complainant, absence of statement of complainant as well as other witnesses, had further weakened the case of Authorities against the employee‑‑Employee, in circumstances had been punished on conjectures, surmises and unproved charge with most extreme and harsh punishment of dismissal from service which could not be justified under any law or rules‑‑­Order of dismissal from service passed against employee, was set aside and he was ordered to be re‑instated in service with all back benefits.

Chaudhary Muhammad Latif Saghar for Appellant.

Chaudhary Muhammad Ashraf Khan for Respondents.

Date of hearing: 25th March, 2003.

2004 P L C (C.S.) 1028

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

HUMAYUN ZIA

Versus

FEDERATION OF PAKISTAN and another

Appeal No.1158(K) of 1998, decided on 16th October, 2003.

Pakistan Insurance Corporation (Staff) Service Regulations, 1959‑‑‑

‑‑‑‑Reglns.28, 29 & 30‑‑‑Dismissal from service‑‑‑Re‑instatement‑‑­Employee was dismissed from service after charge sheeting him on allegation of misconduct‑‑‑Prior to issuing of dismissal order neither any inquiry had been held nor any cogent reason had been assigned for denying employee the right of defence‑‑‑No extreme or serious penalty could be inflicted upon employee; without holding proper, regular independent and fair inquiry; without providing an ample opportunity of defence to delinquent employee; and the reasons in writing for dispensing with inquiry, if a short cut method was adopted by the punishing Authority‑‑‑Authorities had failed to adhere to any of said precautions in the case of employee‑‑‑Employee was entitled to full fledged inquiry before passing of a major punishment against him‑‑­Grave injustice and violation of established rules in respect of conducting disciplinary proceedings against employee had been committed by not holding a regular, independent and thorough inquiry against employee‑‑­Such was a fit case where charges against employee could be proved through a formal inquiry‑‑‑Appeal by employee against . order of his dismissal from service, though was delayed, but since employee had been met with extreme penalty of dismissal from service, without holding any inquiry, Service Tribunal allowing application of employee for condonation of delay, condoned delay to decide appeal on merits on available record‑‑‑Service Tribunal set aside order of dismissal passed against the employee and ordered re‑instatement of employee to the post which he was holding at the time of his dismissal with direction to conduct an inquiry as provided under provisions of Pakistan Insurance Corporation (Staff) Service Regulations, 1959 wherein employee would be given full opportunity to defend himself and such inquiry would be completed within specified period.

Ch. Rasheed Ahmed, Counsel for Appellant.

Faisal Ghani, Counsel for Respondent.

Date of hearing: 9th October, 2002.

2004 P L C (C.S.) 1066

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

Major (Retd.) SULTAN SIKANDAR NOON

Versus

CHAIRMAN, KPT, KARACHI and another

Appeal No.754(K) CE of 2000, decided on 5th July, 2003.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Compulsory retirement‑‑‑Professional misconduct‑‑‑Political pressure, exerting of‑‑‑Delayed compliance of transfer order‑‑‑Civil servant managed to secure Prime Minister's directive for his post as Superintendent Watch and Ward‑‑‑Civil servant was posted out from the post but he did not join the new place of posting and remained absent from there‑‑‑Departmental proceedings were initiated against him and after serving civil servant with show‑cause notice, he was compulsorily retired from service‑‑‑Plea raised by the civil servant was that the inquiry proceedings were defective‑‑Validity‑‑‑Directive of Prime Minister testified to the fact that the civil servant had political affiliations and he exerted political pressure and influence and got the directive from the Prime Minister for his posting which in itself was a gross misconduct under the rules‑‑‑Delayed compliance of transfer order by the civil servant and unauthorized absence did not warrant any inquiry‑‑‑If inquiry proceedings suffered from any minor technicalities it did not cause any prejudice to the civil servant's case though the Inquiry Officer has submitted a detailed and exhaustive report which met the requirements of ends of justice‑‑‑Minor technicalities do not affect the outcome of Efficiency and Discipline proceedings‑‑‑Appeal was dismissed in circumstances.

Tajuddin v. Chairman, Pakistan Insurance Co and others 1993 PLC (C.S.) 1140; Sikandar Ali v. Sindh Service Tribunal and others 1981 SCMR 263; 1996 SCMR 230; 1997 SCMR‑ 1543 and 1981 SCMR 81 ref.

Ch. Rasheed Ahmed, for Appellant.

Malik Riaz for Respondents.

Date of hearing: 11th June, 2003.

2004 P L C (C.S.) 1099

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

WALI DAD

Versus

Messrs PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (PVT.). LIMITED and 2 others

Appeal No. 1921(K) of 1998, decided on 10th November, 2003.

(a) Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Lien of employee‑‑‑Employee who originally was employee of P.I.D.C., was sent on deputation to other establishment and said other establishment later on terminated services of employee as said establishment was closed under order of National Industrial Relations Commission‑‑‑Order terminating services of employee was' upheld up to the Appellate forum‑‑‑Employee had claimed that his lien remained with original employer P.I.D.C. from where he was sent on deputation and that said other establishment was not competent to terminate his services‑‑‑Validity‑‑‑On account of agreement arrived between Collective Bargaining Agent of original employer and Management of said other, establishment, incumbents including the employee had become permanent employees of the other establishment on the terms and conditions of transferee establishment‑‑‑No lien, if employee; in circumstances was left with original employer from where he was sent on deputation to other establishment of which he had become permanent employee‑‑‑Employee, in circumstances, could not say that he being on deputation could not be terminated by said other establishment which establishment, 9therwise had been duly closed under orders of National Industrial Relations Commission‑‑‑Matter having already been closed by two competent forums, no justification was to have opened the same after a delay of 13 years.

1997 PSC 900 (Supreme Court of India); NLR 1993 T.D. (Service) 35; PLD 1980 SC 22; 1988 SCMR 1089; 1992 PLC 1129, PLD 1973 SC 236; NLR 2002 (Service) 8; 2001 SCMR 1905; 1999 SCMR 92, 1989 SCMR 1443; 1996 SCMR 284; 1992 SCMR 435; 2002 SCMR 18; PLD 1974 SC 393; PLD 1981 SC 225; 1996 SCMR 284; 2001 SCMR 328 and 2002 SCMR 1023 ref.

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

‑‑‑‑S.4‑‑‑Appeal‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Appellant whose services were terminated, approached Labour Court by filing grievance petition against his termination‑‑ ‑Dismissal of grievance petition‑‑­Appellant filed appeal before Labour Appellate Tribunal, which appeal was also dismissed‑‑‑Appellant, thereafter filed Constitutional petition, which was dismissed as withdrawn and whereafter appellant filed appeal before the Service Tribunal‑‑‑Appellant having all along pursuing his ,legal remedy, his appeal was not barred by limitation.

Mansoorul Haq Solangi for Appellant.

Masood Ahmed Khan for Respondents.

Date of hearing: 17th January, 2003.

2004 P L C (C.S.) 52

[Karachi High Court]

Before Sabihuddin Ahmed, Actg. C.J. and Syed Ali Aslam Jafri, J

Syed AFTAB AHMED JAFRI

Versus

PAKISTAN through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others

Constitutional Petition No. D-2473 of 2001, decided on 26th February, 2002.

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

----Rr.3, 4 & 7---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.4 & 9---Removal from service---Civil servant was charge-sheeted under Government Servants (Efficiency and Discipline) Rules, 1973 and on the basis of findings of Enquiry Officer was removed from service---Civil servant had filed appeal against order of his removal before Service Tribunal and during pendency of said appeal civil servant was directed to be reinstated, but on the very date of his re instatement, he was suspended in exercise of powers conferred under S.4 of Removal from Service (Special Powers) Ordinance, 2000---Subsequently a charge­ sheet identical to the one forming the basis of earlier action against civil ,servant Was issued---As a consequence of order of reinstatement, Service Tribunal had declared appeal of civil servant to have become infructuous---:Validity---After promulgation of Removal from Service (Special Powers) Ordinance, 2000 Government had option to proceed against a civil servant under said Ordinance or under Government Servants (Efficiency and Discipline) Rules, 1973, because said Rules had not been repealed till then and on principle of construction an action taken thereunder would be treated as valid---Once action had been taken against civil servant according to law and final order was pending adjudication before Service Tribunal, decision to nullify the same and start proceedings de novo, could not be assumed to have been taken under bona fide, exercise of public power---Order of reinstatement of civil servant followed by fresh proceedings under Removal from Service (Special Powers) Ordinance, 2000, could not be sustained and was liable to be set aside---Civil servant's appeal before Service Tribunal would stand revived ,as order declaring, it to have become infructuous was passed on the basis of order of reinstatement which was no longer operating.

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

----S.9---Constitution of Pakistan (1973), Arts.199 & 212---Appeal before Service Tribunal---Jurisdiction of High Court---Under provisions of S.9 of Removal from Service (Special Powers) Ordinance, 2000, only a final order taking disciplinary action against civil servant was appeal able before Service Tribunal---No final order appeared to have been passed so far under Removal from Service (Special Powers) Ordinance, 2000, jurisdiction of High Court was not barred under Art.212 of Constitution of Pakistan (1973).

Mushtaq Ahmed Setho and others v. Federation of Pakistan and others 2001 PLC (C.S.) 623 ref.

Dr. Muhammad Farogh Naseem and Rashid Tariq Khan for Petitioner.

Amir Hani Muslim, Deputy Attorney-General for Respondents.

2004 P L C (C.S.) 108

[Karachi High Court]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Syed AFZAL AHMED HYDARI

Versus

CHIEF EXECUTIVE OF PAKISTAN and others

Constitutional Petition No. 1727 of 2002 decided on 16th May, 2003.

Constitution of Pakistan (1973)---

--Art. 199---Constitutional petition-- Civil service Order of Supreme Court, implementation of---Dispute was with regard to promotion of the petitioner---Grievance of the petitioner was that in, view of the order passed by Supreme Court the Authorities were, under obligation to appoint him on higher pay, scale---Authorities admitted that they had implemented orders of Supreme Court and had not denied right granted to the petitioner in terms of the order passed by Supreme Court--­Authorities also admitted that the petitioner was entitled to move over to the higher pay scale---Effect---Deputy Attorney-General ensured the High, Court to the order of Supreme Court would be implemented within a reasonable time---Petition was responded, of accordingly.

Kunwar Mukhtiar Ahmed for Petitioner.

Syed Zaki Muhammad, D.A.-G. for Respondents

2004 P L C (C.S.) 119

[Karachi High Court]

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

NAZEER AHMED KHAN

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Constitutional Petition No.D-2155 of 1995 decided on 27th May 2003.

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

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Maintainability---Terms and conditions of service---Petitioner was an employee of Pakistan International Airlines Corporation---Grievance of the petitioner was with regard to refusal of the Corporation to allow him to proceed on retirement on medical ground---During the pendency of the petition, S.2-A was inserted in Service Tribunals Act, 1973---Effect---After such insertion, the petitioner had acquired the status of civil servant for the purpose of Service Tribunals Act, 1973, and all proceedings pending in any Court were to abate---Retirement was one of the issues which was covered within the scope of terms and conditions of service of civil servant--­Only forum available to the petitioner for redress of his grievance was the Service Tribunal which he ought to have approached without loss of time as the present petition had abated after insertion of S.2-A in Service Tribunals Act, 1973---Petition was dismissed in circumstances.

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

----S.4---Jurisdiction of Service Tribunal, invoking of---Retired civil servant---Scope---'Civil servant after his retirement is competent to invoke the jurisdiction of Service Tribunal for redress of any grievance relating to the terms and conditions of service.

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

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Matter relating to terms and conditions of service---Jurisdiction of Service Tribunal---Scope---Order relating to such matter even if mala fide, illegal, void or coram no judice, would have to be assailed/challenged by aggrieved civil servant by filing appeal in Service Tribunal---Constitutional petition was not competent in such cases.

Asadullah Arshad v. Haji Muhammad Muneer 1998 SCMR 2129; Nazrul Hassan Siddiqui and others v. Federation of Pakistan and others 2000 PLC (C.S.) 189; Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill 1999 SCMR 650 and Pervaiz Aslam v. Ilyas Hussain Shah and another 1999 SCMR 784 rel.

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

----Art.199---Constitutional jurisdiction of High Court--Valuable right, accrual of---On the basis of order passed on bona - fide mistake, no valuable right accrues, or is created in favour of any person---Constitutional petition was not maintainable in circumstances.

Muhammad Anwar and 8 others v. Muhammad Ashraf PLD 2001 SC 209 rel.

(e) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)-----

----Art. 9(2)---Civil service---Jurisdiction of Wafaqi Mohtasib---Matter pertaining to terms and conditions of service ---Scope--­Power/jurisdiction of Wafaqi Mohtasib under Art. 9(2) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, does not extend to adjudication upon issue relating to terms and conditions of civil servant.

(f) Void order--­----

------Setting aside of void order---Principle---Party which has been adversely affected by a void order is required to get the same set aside by filing proper proceedings.

Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 rel.

(g) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)-----

----Art. 9(2)---General Clauses Act (X of 1897), S.21---Review of order ---Wafaqi Mohtasib, jurisdiction of---Principle of locus poenitentiae--- Applicability---Wafaqi Mohtasib does not have the power to review his .own order but in exercise of powers contained in S.21 of General Clauses Act, 1897, and in view of principle/concept of locus poenitentiae, Wafaqi Mohtasib has the power to vary, amend, add to or to rescind an order passed by him.

Messrs Army Welfare Sugar Mills Ltd. and others v: Federation of Pakistan and others 1992 SCMR 1652 rel.

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

(h) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)-----

----Art. 9(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Vested right---Illegal/void order ---Wafaqi Mohtasib had passed order in. favour of petitioner---Respondent sought review of the order and while accepting the review application, Wafaqi Mohtasib recalled his earlier order---Plea raised by the petitioner was that the order could not be recalled as the same had conferred a vested right on the petitioner and Wafaqi Mohtasib could not review his own order---Validity---Original order of Wafaqi Mohtasib being an order made without jurisdiction was an illegal and void order---Such original order could not confer any right on the petitioner even if it had been acted upon as on the basis of illegal order perpetual rights could not be gained---Original order of Wafaqi Mohtasib was in disregard of the provisions of Art. 9(2) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, and being an order in disregard of the provisions of law, it was liable to be recalled---Subsequent order of Wafaqi Mohtasib withdrawing his earlier order did not amount to review and Wafaqi Mohtasib was competent to recall the same---Even if the earlier order had not been recalled or rescinded it would not create or confer any right on the petitioner as being an illegal/void order it could not be acted upon---High Court declined to interfere with the order passed by Wafaqi Mohtasib whereby he had recalled his earlier order---Petition was dismissed in circumstances.

Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others, 2001 SCMR 209; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalauddin PLD 1992 SC 207 and Abdul Haque Indhar and oihers v. Province of Sindh through Secretary, Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 distinguished.

(i) Administration of justice-----

----Powers of Court of law---Scope---Court of law has the authority power to rectify, correct or recall its order if the same was found to have been made wrongly or illegally---Judicial functionaries bestowed with the power to exercise the jurisdiction conferred on them are legally bound to decide the cases correctly and no wrong decision on law is expected from them.

Imran Ashraf v. The State 2001 SCMR 424 rel.

Habibur Rehman for Petitioner.

Amir Malik for Respondent.

Date of hearing: 30th April, 2003.

2004 P L C (C.S.) 945

[Karachi High Court]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

IZHAR HUSSAIN and 18 others

versus

KHALID SHERWANI and 4 others

Constitutional Petition No.842 of 2002, decided on 9th May, 2003.

Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Competence‑‑‑Petitioners who were officials of the Bank had filed Constitutional petition against President, Vice‑Presidents of the Bank and Federation of Pakistan against their grievances‑‑‑Petitioners had contended that they could not approach Service Tribunal because no final' order had been passed in their case‑‑‑Validity‑‑‑Status of Bank was that its 51 % shares were sold away to private parties and only 49 shares were owned by Government‑‑‑Blink, in circumstances being a private Bank, constitutional jurisdiction could not be invoked against it or its officials‑‑‑Petitioners could very well approach Service Tribunal, specially when wordfinal' stood omitted from the provision of S.4 of Service Tribunal Act, 1973.

Raoof B. Qadri v. State Bank of Pakistan and another PLD 2002‑~,SC 1111; 1992 (SC) 1222 (a)(b); 1995 PLC (C. S.) 1057; 2001 PLC 607; PLD 1979 Kar. 640; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 and United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68 ref.

Rasool Bux Palejo for Petitioners.

Shahid Anwar Bajwa for Respondents Nos. l and 3 to 5.

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2004 P L C (C.S.) 22

[Lahore High Court]

Before Syed Jamshed Ali, J

RIFFAT JAMIL AWAN

Versus

PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION and others

Writ Petition No. 12318 of 2001, decided on 20th February, 2002.

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

----R.4(1)(b)(iii)--Compulsory retirement from service---Civil servant serving as Accounts Officer in B.S. 16 was proceeded against and penalty of compulsory retirement from service was imposed upon him---Civil servant filed appeal before Appellate Authority which appeal was accepted and civil servant was ordered to be reinstated---Concerned Authority, instead of implementing the order of Appellate Authority., submitted the case to Governing Body for review of said order and Governing Body decided not to reinstate civil servant---Governing Body which was constituted under S.5 of' Provincial Employees' Social Security ordinance, 1965 had no jurisdiction whatsoever to nullify order passed appellate Authority under Punjab Civil Servants (Efficiency and Discipline) Rules, 1965 and in absence of any power to review in the said Rules, order passed by Appellate Authority, had attained finality and same could not be interfered with---Governing Body, in circumstances, had transgressed limits of law to undo order passed by Appellate Authority---Order passed by Governing Body was declared without lawful authority and reinstatement of civil servant in service was directed.

Punjab Employees Social Security Institution, Lahore and others v. Manzoor Hussain Khan and others (1992 PLC (C.S.) 417 ref.

Dr. Ihsan-ul-Haque Khan for Petitioner.

Imran Aziz Qureshi for Respondents Nos. 1 and 2.

Malik Akhtar Hussain Awan, Addl. A.-G. for Respondent No.3.

Date of hearing: 20th February, 2002.

2004 P L C (C.S.) 32

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD NASRULLAH KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Finance, Lahore and others

Writ Petition No.8167 of 2000, decided on 16th October, 2002.

Civil service---

----Increments----Entitlement---Civil servant in accordance with rules promulgated in 1991 had become entitled to two increments each for improving his qualification from Matric with diploma course to F.A., B.A. and M.A. ---Chairman, Zila Council being Competent Authority accepting representation of civil servant allowed said increments, but said order was not implemented---Contention of the Authorities was that according to subsequent amendment in the said rules, advance increments were admissible only if higher qualifications were in the relevant/related field which civil servant did not possess---With promulgation of Rules in 1991 a vested right to earn increments had accrued to the civil servant which could not be denied to him because of amendment in the Rules in 1993 on the principle that said amendment could not be made to operate retrospectively so as to destroy a vested right already accrued to civil servant.

Dr. Ihsan-ul-Haq Khan for Petitioner.

Atta Rabbani for Respondent No.3.

Date of hearing: 16th October, 2002.

2004 P L C (C.S.) 50

[Lahore High Court]

Before Syed Jamshed Ali, J

AMJAD IQBAL

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.21363 of 1999, decided on 27th June, 2002.

Civil service---

----Grant of advance increment---Withdrawal of order granting advance increment---Recovery of amount of such increment---Order granting advance increment to civil servant was withdrawn by Authority after about three years from grant of the same---Civil servant again was granted advance increment---Accountant General vide a letter directed the Authority to recover amount received by civil servant as increment during three years---Said letter did not disclose any ground for direct recovery of the amount---Validity---Office of Accountant General had no authority to overrule orders passed by Competent Departmental Authorities---Order granting advance increment was competently passed by competent Departmental Authority, and said order was duly acted upon and implemented---Even if any defect was found in said order, amount of increment already drawn by civil servant could not be ordered to be recovered---Letter issued by Accountant General for recovery of amount, was without lawful authority and was of no legal effect.

Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jallaluddin PLD 1992 SC 207 and Controlling Authority. N.-W.F.P. Board of Technical Education, Peshawar and another v. Abdul Salam, Secretary, N.-W.F.P., Board of Technical Education (presently Chairman of the Board) PLD 1993 SC 200 ref.

Zahid Hussain Khan for Petitioner.

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

Date of hearing: 27th June, 2002.

2004 P L C (C.S.) 59

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IKRAM ALVI

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE

Writ Petition No.21576 of 2002, decided on 18th September, 2003.

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

----S. 4---Constitution of Pakistan (1973), Arts.4, 5(2) & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Duty and obligations of public functionaries---Appeal filed by petitioner before Punjab Service, Tribunal was accepted by the Tribunal, but judgment and order passed in appeal by Tribunal was not implemented by the Authority despite filing number of applications by the petitioner in that respect---Petitioner aggrieved by said conduct of the Authority, filed Constitutional petition---Held, public functionaries under provisions of S.24-A of General Clauses Act, 1897 must decide controversy between the parties within reasonable time with reasons, nobody should be penalized by inaction of public functionaries and in view of Art.4 of Constitution of Pakistan (1973) public functionaries should act in accordance with law which was their ,paramount duty as said functionaries received salaries from public exchequer to discharge their duties in accordance with law---Authority being public functionary, was directed to do the needful to implement order passed by the Service Tribunal accordingly.

Ch. Zahoor Elahi's case P L D 1975 SC 383; Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 and Ahmad Lateef Qureshi v. Controller of Examinations PLD 1994 Lah. 3 ref.

Zia Ullah Khan Niazi for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G.

2004 P L C (C.S.) 69

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD QASIM and 6 others

Versus

HOME DEPARTMENT, GOVERNMENT OF THE PUNJAB through Secretary, Civil Secretariat, Lahore and 2 others

Writ Petitions Nos. 17736, 19768, 20756, 20901, 19769, 19770, 20757, 20968, 21063, 21135, 21136, 20487, 20989 and 20938 of 2002, heard on 3rd June, 2003.

(a) Interpretation of statutes-----

----Beneficial dispensation---Scope---Such dispensation has to be interpreted in a manner so as to advance remedy rather than to suppress it.

(b) Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976------

----R. 3(v)---Police Rules, 1934, R.12.6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recruitment in police---Upper age limit, relaxation of---Petitioners had applied for the posts of A.S.-Is. in police and had sought relaxation of upper age limit---Authorities denied relaxation on the ground that under 8.12.6 of Police Rules, 1934, no extension of upper age limit for the post of A.S.-I. could be granted to the in-service candidates--Plea raised by the petitioners was that due to ban on recruitment, they were entitled to relaxation of upper age limit equivalent to the period during which no recruitment was made--­Validity---Petitioners were entitled to such relaxation and the same should have appeared as part of advertisement for recruitment obviating the necessity of an individual approaching the Authorities for relaxation---Rejection of candidature of petitioners on the ground of their being over age was against the provisions of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---Notification regarding denial of such relaxation was without lawful authority--­Petition was allowed in circumstances.

Hafiz Tariq Nasim and Muhammad Sohail Bhatti for Petitioners.

Muhammad Abbas Tarrar Addl. A.-G. for Respondents Nos.1

Mushtaq Ahmed Mohal with Abdul Razzaq, Dy. Director for Respondent No.3.

Date of hearing: 3rd June, 2003.

2004 P L C (C.S.) 79

[Lahore High Court]

Before Abdul Shakoor Paracha, J

Dr. TARIQ MAHMOOD, DEPUTY CHIEF (TECHNOLOGY), P.C.S.T., ISLAMABAD

Versus

MINISTRY OF SCIENCE AND TECHNOLOGY through its Secretary, Islamabad and 2 others

Writ Petition No.2190 of 2000, heard on 12th May, 2003.

Civil Servants Act (LXXI of 1973)---

----S.9---Constitution of Pakistan (1973), Arts. 199 & 212--­Constitutional petition---Promotion---Entitlement to---Civil servant was working as Deputy Chief of Technology in BPS-19 in Pakistan Council for Science and Technology---Post of Chief Science and Technology in BPS-20 had fallen vacant which post under the relevant rules was to be filled 100% by promotion---Civil servant who fulfilled criterion laid down in the relevant rules for being promoted as Chief of Technology in BPS-20 was not so promoted and the Authority, violating relevant rules had invited applications from general public for filling the said post through direct recruitment---Civil servant had been discriminated, as earlier another person was promoted and another one was also referred to Ministry of Science and Technology for promotion---Action of Authority to invite applications from general public for filling post through direct recruitment was against the rules and was based on discrimination---Said action of Authority being arbitrary, was open to correction by the High Court in exercise of ifs Constitutional jurisdiction---High Court allowing Constitutional petition declared the action of the Authority as unlawful and directed to put the case of civil servant alongwith others to be considered for promotion.

Muzaffar Hussain v. The Superintendent of Police 2002 PLC (C.S.) 442; Miss Rukhasana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Muhammad Zafeer Abbasi v. Government of Pakistan through its Secretary, Establishment Division, Islamabad 2003 PLC (C.S.) 503 ref.

Abdul Raheem Bhatti for Petitioner.

Babar Bilal for Respondent No.2 alongwith G.H.R. Bloch from the Department.

Date of hearing: 12th May, 2003.

2004 P L C (C.S.) 88

[Lahore High Court]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD SIDDIQUE

Versus

DIVISIONAL ENGINEER PHONES, BAHAWALPUR, and others

Writ Petition No.2047 of 2000/BWP, decided on 7th March, 2002.

Civil service---

----Grant of house requisition allowance--Cancellation of sanction granting house requisition allowance---Recovery of amount so received---Sanction for granting house requisition allowance to civil servants, subsequently was cancelled with direction to recover the amount so received by civil servants---Validity---Where a Competent Authority which had conferred a benefit such as payment of allowances or additional monetary benefits, subsequently came to know that rules applicable to subject, did not cover the situation, such Authority had the power to withdraw said benefits and allowances---Payment of house requisition allowance to civil servants, in the present case, being not based on any authority, Notification or letter, having been issued competently by Authority, amount received by civil servants as house requisition allowance, was rightly ordered to be refunded/recovered from civil servants as same was wrongly paid to them.

Shabbir Ahmad Bhutta for Petitioner.

Syed Masood Ahmad Gillani and Rana Izhar, ADE for Respondents.

Date of hearing: 7th March, 2002.

2004 P L C (C.S.) 101

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Sufi GHULAM RASOOL

Versus

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

Writ Petition No. 12601 of 2003, decided on 16th September, 2003.

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

----S.4---Constitution of Pakistan (1973), Arts.4, 5(2), 199 & 212--- General Clauses Act (X of 1897), S.24-A---Constitutional petition--­Grant of pension---Duty and obligation of public functionaries---Inaction of Authorities---Civil servant after his retirement submitted his pension papers to the Authorities, but Authorities having not finalized case of civil servant on one pretext or the other, civil servant filed Constitutional petition alleging that he was penalized by inaction of the Authorities--­Maintainability of the petition was challenged in view of bar contained in Art.212 of the Constitution---Validity---Despite bar contained in Art.212 of the Constitution read with S.4 of Service Tribunals Act, 1973, High Court had ample jurisdiction to give directions to public functionaries to act in accordance with law in view of Art.4 of the Constitution while exercising its powers under Art.199 of the Constitution---Duty and obligation of public functionaries to decide representation of their subordinates without fear, favour and nepotism within reasonable time--­Nobody should be penalized by inactions of public functionaries-- -Public functionaries were obliged to act in accordance with law which was the mandate of Constitution in view of Art.5(2) of the Constitution---Person who entered in Government service had also something to look forward after his retirement, to what were called retirement benefits, grant of pension was most valuable of such benefits---Pension like salary of a civil servant was not a bounty, but was a right acquired after putting in satisfactory service for the prescribed minimum period ---Authority concerned was directed to decide appeal/representation of civil servant strictly in accordance with law after providing him proper hearing within specified period.

H.M. Rizvi's case PLD 1981 SC 612; Messrs Airport Support Service v. The Airport Manager, Karachi Airport 1998 SCMR 2268; Zain Yar Khan v. Chief Engineer C.R. and others 1998 SCMR 2419; Government of the N.-W.F.P. v. Muhammad Said Khan and another PLD 1973 SC 514; Ahmad Lateef Qureshi v. Controller of Examinations PLD 1994 Lah. 3 and Ch. Zahoor Illahi's case PLD 1975 SC 383 ref.

Ch. Muhammad Ashraf for Petitioner.

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

2004 P L C (C.S.) 106

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Mst. HUSSAN ARA

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.5966 of 2002, decided on 10th April, 2002

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition, maintainability of---Civil service---Transfer of civil servant---Civil servant had sought setting aside of order of Authority transferring him from one place to another--­Constitutional petition filed by civil servant was not maintainable because Art. 212 of Constitution of Pakistan (1973) barred jurisdiction of High Court in matters like transfer---Even if transfer order was passed mala fide and was coram non judice and ultra vires, same could only be challenged before Service Tribunal and not before High Court.

Zahid Akhtar's case PLD 1995 SC 530 ref.

Zahid Hussain Khan for Petitioner.

2004 P L C (C.S.) 112

[Lahore]

Before Farrukh Latif, J

MUHAMMAD SALEEM ASGHAR

Versus

DIRECTOR AGRICULTURE and others

Writ Petition No. 311 of 2003; decided on 10th October 2003.

Civil service--

----Pro forma promotion---Two posts of Superintendents had fallen vacant and according to Service Recruitment Rules of the Department. Assistants, Accounts Assistants and Senior Scale Stenographers were eligible for promotion against, said vacancies---Civil servant was Senior Scale Stenographer and was at Serial No.1 of Combined-Seniority List-­Co-civil servant despite being at Serial No.3 in. Combined Seniority List, was promoted as Superintendent---Validity, Co civil, servant who earlier was promoted on officiating basis, subsequently was promoted on regular basis, whereas civil servant who at tote relevant the was working as Superintendent on officiating basis was reverted to his bright post of Senior Scale Stenographer due to his option `and also for the reason that by that time he had not cleared Departmental; Account. Examination which was a prerequisite for promotion to post of Superintendent ---Right of promotion had not accrued to civil servant as regular promotion of co ­civil servant was not set aside by Competent Authority ---Co-civil servant, in circumstances, was rightly promoted and as substantial justice had been done, order of promotion of co-,civil servant; could no be-interfered with.

Sardar Tariq Sher Khan for Petitioner.

Syed Hashmat Hussain Naqvi on behalf of A.A.-G Respondent No. 1.

Malik Sharif Ahmed for Respondent No.2.

Date of hearing: 1st October, 2003.

2004 P L C (C.S.) 117

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION (DEFUNCT)

Versus

Qazi MUHAMMAD SIDDIQUE and others

Writ Petition No. 1171 of 2002, decided on 13th March, 2002.

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

---S.2(1) & (6)---Constitution of Pakistan (1973); Art. 199--­Constitutional petition---Counting of previous service towards pension/ gratuity---Jurisdiction .of Ombudsman to entertain complaint--- Request of respondent for counting of his previous service towards pension/gratuity was turned down by the Corporation and said order of Corporation had attained finality because respondent had not challenged the\ same in departmental appeal---Respondent after lapse of about 23 years filed complaint against the Corporation before Provincial Ombudsman who ignoring all legal objections, raised by the Corporation, passed order against the Corporation and its representation filed against order of Provincial Ombudsman was also dismissed by the Governor--­Validity---Employees of the Corporation were public servants as defined under S.2(6) of Punjab Office of Ombudsman Act, 1997 and Corporation was agency as defined in S. 2(1) of said Act---Provincial Ombudsman, in. circumstances, had no jurisdiction to entertain complaint/petition of, respondent and to pass order thereon---Orders of Ombudsman, on face of it, were without jurisdiction and without lawful authority and against statutory provisions of law---High Court accepting .petition filed by Corporation, set, aside impugned orders of Ombudsman.

Mian Hamid Ullah Khan for Petitioner.

Shamas-ur-Rehman for Respondents.

Date of hearing: 13th March, 2002.

2004 P L C (C.S.) 150

[Lahore High Court]

Present Ch. Ijaz Ahmad, J

MUHAMMAD AFZAL

Versus

DISTRICT EDUCATION OFFICER and 4 others

Writ Petition No. 3198 of 2003, decided on 25th July, 2003.

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

----S. 4---Constitution of Pakistan (1973), Arts. 199, 212 & 4--­Constitutional petition---Termination of service---Services of civil servant were terminated and he filed appeal before Appellate Authority, under the rules, but Appellate Authority dismissed the appeal without providing him proper opportunity of hearing and without giving any reason---Civil servant filed Constitutional petition, against orders of Appellate Authority which petition was resisted by the Authorities contending that matter pertained to terms and conditions of civil servant and High Court could not entertain Constitutional petition in the said matter---Validity---Despite the bar contained in Art. 212 of the Constitution. read with S.4 of Service Tribunals Act, 1973, High Court had ample jurisdiction to give direction to public functionaries to act in accordance with law in view of Art. 4 of the Constitution while exercising its Constitutional jurisdiction---Order passed by Appellate Authority had revealed that same was passed without issuing notice to civil servant and without any reason---Public functionaries were made under duty to decide appeals/representations of their subordinates with reasons---Duty was also cast upon public functionaries to decide appeal of civil servant after issuing notice to him and after providing him proper hearing---Same having not been done, order passed by Appellate Authority was not sustainable in the eye of law on the touchstone of principles of natural justice---High Court set aside order passed by Appellate Authority with direction that appeal/representation filed, by civil servant would be deemed to be pending adjudication and would be decided in accordance with law after providing opportunity of hearing to parties.

H.M. Rizvis case PLD 1981 SC 612; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Pakistan Chrome Mines Ltd. v. Inquiry Officer 1983 SCMR 1208 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 ref.

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

----Principles of natural justice must be read in each and every statute, unless same was prohibited by the words of Statute itself.

Commissioner of Income-tax v. Fazal-ur-Rehman PLD 1964 SC 410 ref.

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

----Art. 189---Judgment of Supreme Court, binding effect of---Judgment of Supreme Court was binding on each and every organ of State.

M.R. Khalid Malik for Petitioner.

Muhammad Qasim Khan, A.-A.G. (on Court's call).

2004 P L C (C.S.) 159

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Miss AMBREEN ASHRAF

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Assistant Director and 2 others

Writ Petition No. 11644 of 2003, decided on 3rd September, 2003.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Age, determination of‑‑‑Correction of date of birth‑‑‑Petitioner passed Matriculation Examination from the Board of Intermediate and Secondary Education, and the Board issued Certificate of Matriculation to the petitioner according to date of birth mentioned by petitioner in her Admission Form which was 15‑3‑1974‑‑­Subsequently on filing civil suit by petitioner date of birth was finally changed in the Matriculation Certificate from 15‑3‑1974 to 27‑12‑1975‑‑­Respondent, Public Service Commission invited application from the candidates for appearing in Competitive Examination in year 2001 and petitioner submitted her application wherein she mentioned her date of birth as 15‑3‑1974 but she could not succeed in the said examination‑‑­Subsequently Federal Public Service Commission again invited applications for Competitive Examination and petitioner submitted her Application Form for said examination and in her Application Form she mentioned corrected date of birth which was 27‑12‑1975 instead of 15‑3‑1974‑‑‑Federal Public Service Commission rejected application of petitioner on ground that she had become over aged‑‑‑High Court under its Constitutional jurisdiction directed the petitioner to make representation before the Commission and also try to obtain Matriculation Certificate with the corrected date of birth‑‑­Representation submitted by petitioner having been rejected by the Service Commission, petitioner had filed Constitutional petition alleging that respondents having changed Policy subsequently, said Policy had to take prospective effect and not retrospective effect and that order rejecting representation of petitioner passed by Federal. Public Service Commission was not sustainable in the eye of law‑‑‑Validity‑‑‑Federal Public Service Commission being well within its rights to frame the Policy, question of prospective or retrospective effect, would not arise in the present case in view of law laid down by Supreme Court in its judgment reported as 1992 SCMR 2430‑‑‑Petitioner having failed to point out that action of respondents was in violation of any rule and regulation of Federal Public Service Commission, Constitutional petition was not maintainable as per law laid down by Supreme Court in case reported as 1984 SCMR 433‑‑‑Constitutional petition 'was dismissed having no merits.

Ali Meer's case 1984 SCMR 433 and Federation of Pakistan v. Muhammad Arfan Baig 1992 SCMR 2430 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Constitution of Pakistan (1973) was based on trichotomy and High Court had only jurisdiction to interpret law and had no jurisdiction to take role of Policy maker nor in Policy matters.

Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Zameer Ahmed Khan's case 1978 SCMR 327 and Government of Pakistan v. Zameer Ahmed Khan PLD 1975 SC 667 ref.

Abdul Hameed Cheema for Petitioner.

Mian Hameed‑ud‑Din Kasuri, Deputy Attorney‑General (on Court's call).

2004 P L C (C.S.) 172

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ANWAR

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman/Secretary and 2 others

First Appeal from Order No.78 of 2002, heard on 19th June, 2003.

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

----S.7(3)(a)---Representation against decision of Commission--­Available to aggrieved candidate under S.7(3)(a) of Federal Public Service Commission Ordinance, 1977.

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

----S.7(3)(a)---Refusal of Commission to recommend a candidate for appointment to a post---N Non-filing of representation or review against such decision would amount to acceptance of such decision by the candidate.

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

----S.7(3)(a)(b)(d)---Rejection of candidature of appellant by Commission---Appellant seeking annulment of nomination of respondent filed Constitutional petition, but withdrew the same and filed appeal--­Validity---Appellant had not challenged decision of Commission refusing to recommend him---Appeal filed by appellant praying for annulment of nomination of respondent would not be competent as he had not taken any step on which an order could be passed under S.7(3)(b) of Federal Public Service Commission Ordinance, 1977, against which appeal in terms of S.7(3)(d) thereof could lie---High Court dismissed appeal in circumstances.

S.M. Abdul Wahab for, Appellant.

Ch. Sultan Mansoor, Deputy Attorney-General for Pakistan for Respondents. Nos. 1 and 2.

Mian Abdul Rauf for Respondent No.3.

Date of hearing: 19th June, 2003.

2004 P L C (C.S.) 201

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD PERVAIZ

Versus

THE DEPUTY COMMISSIONER, NAROWAL and 8 others

Writ Petition No.3410 of 2000, heard on 20th November, 2003.

(a) Civil service---

---- Selection against advertised posts by Recruitment Committee without adopting any acceptable method to determine merits of competitive candidates---Candidate so selected had worked for about eight years in said capacity---Validity---Uprooting such selected candidate would be inevitable---High Court under its Constitutional jurisdiction under Art. 199 of the Constitution, set aside such selection with directions to the Authority to fill in vacant posts in accordance with law after inviting applications through public notice.

Channabasavaih v. State of Mysore AIR 1965 SC 1293 fol.

(b) Civil service---

---- Public employment---Not bounty of the State.

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

----Art.199---Laches---Effect---Laches alone would not be a sufficient ground to dismiss Constitutional petition, unless equity leans in favour of contesting respondent.

Petitioner in person.

Aamir Rehman, Addl. A.-G. with Khalid Majeed, Project Manager for Respondents Nos. 1 to 5.

Respondent No. 6: Ex parte.

Syed Iqbal Hussain Shah Gillani for Respondents Nos. 7 and 8.

Date of hearing: 20th November, 2003.

2004 P L C (C. S.) 206

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Mrs. AZRA SAHI and 3 others

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Aviation Division, Rawalpindi and 2 others

Writ Petition No.901 of 1999, heard on 29th October, 2003.

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

----Regln. 25---Constitution .of Pakistan (1973), Arts.25, 27 & 199--­Constitutional petition ---Vires of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985--­Equality of citizens and safeguard against discrimination in service--­Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 provided that, all employees other than airhostesses, Were to be retired on completion of 60 years of a e, whereas airhostesses were to be retired on completion of 45 years age---Contention was that Regln. 25 was violative of provisions of Arts.25 & 27 of the Constitution which had guaranteed the citizens equal, terms before law and had protected them from discrimination on, the ground of sex alone and the petitioners being female had been discriminated against matter" of length of their service of the sole reason for being female---Validity---Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, being violative of Arts.25 & 27 of the Constitution could not be sustained, which was declared to be without lawful authority and void by the High Court---Petitioners, would be treated at par in the matter of length of their service as similarly placed male employees.

Sherin Dokhat v. Government of Pakistan 1995 PLC (C.S.) 251 ref.

Malik Shahzad Ahmad for Petitioners.

Qazi Ahmad Naeem , Qureshi, Federal Counsel and Mushtaq Hussain Bhatti for Respondents.

Date of hearing: 29th October, 2003.

2004 P L C (C.S.) 234

[Lahore High Court]

Before Syed Jamshed Ali, J

AKMAL KHAN and others

Versus

MINICIPAL COMMITTEE, JARANWALA

Writ Petition No. 1258 of 2000, decided on 1st August, 2002.

Punjab Local Government Ordinance, (XIII of 2001)---

----S.184---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Termination of service---Petitioners, who were employed as P.T.C. Teachers in defunct Municipal Committee, having been terminated, they filed Constitutional petition against their termination--­On statement of Authority that a list of selectees of Recruitment Committee would be maintained and against a vacancy which could be available, petitioners would be adjusted turn by turn, Constitutional petition was disposed of accordingly---Petitioners had sought direction for compelling the Authority to act upon said earlier order---Municipal Committee concerned could not appoint any teacher in Primary School in accordance with Government Policy all schools having been transferred, to District Government---Even otherwise under S.184 of Punjab Local Government Ordinance, 2001, there was complete ban on fresh recruitment---Direction to implement 'order earlier passed in Constitutional petition in view' of statement of Authority thus could not be issued.

Syed Samar Hussain for Petitioners.

M.M. Afzal for Respondent.

2004 P L C (C.S.) 266

[Lahore High Court]

Before Mian Saqib Nisar, J

IQBAL HUSSAIN

Versus

DEPUTY DIRECTOR/REVENUE OFFICER, DISTRICT SHEIKHUPURA and another

Writ Petition No. 13049 of 2003, decided on 23rd September, 2003.

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

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment---Age, determination of---Authority invited applications from suitable candidates for appointment against vacant post of Patwari and maximum age limit prescribed was 35 years---Petitioner had topped the merit list, but was not allowed interview by the Authority on account of his being overage according to his Matriculation Certificate---Contention of petitioner/candidate was that according to his Birth Certificate he was under 35 years of age and he fell within prescribed age limit and Authority had illegally relied upon Matriculation Certificate---Validity---Contention of petitioner was repelled because Matriculation Certificate had been submitted by petitioner himself and until and unless, the entry of age was corrected by the Board of Intermediate and Secondary Education in accordance with law, date mentioned therein would be considered to be his date of birth.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 23rd September, 2003.

2004 P L C (C. S .) 274

[Lahore High Court]

Before Mian Saqib Nisar, J

Qazi ASIF JAN

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.13083 of 2003, decided on 23rd September, 2003.

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

----Rr. 4 & 5---Punjab Civil Servants Act (VIII of 1974), S.12(1)--Constitution of Pakistan (1973), Arts. 199 & 212---Writ of prohibition issuance of---Petitioner who was Government servant, in his Constitutional petition had sought issuance of prohibitory writ and quashing of proceedings commenced against him. under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 which subsequently were converted into Removal from Service (Special Powers) Ordinance, 2000 during pendency of the matter---Despite there being illegality in proceedings against petitioner, still High Court had no, jurisdiction to entertain Constitutional petition because of bar under Art.212 of Constitution of Pakistan (1973).

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 23rd September, 2003.

2004 P L C (C.S.) 276

[Lahore High Court]

Before M. Javed Buttar. J

Retd. Dr. MUHAMMAD IQBAL

Versus

DEFENCE HOUSING AUTHORITY, LAHORE

Writ Petition No.2972 of 2003, decided on 10th June, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Ad hoc appointment---Extension in service---Petitioner, who was employed as Medical Officer on ad hoc basis for fixed term, had assailed in his Constitutional petition the letter issued by respondent-Authority whereby his request for further extension in service and allotment of a plot in respondent's Society had been declined---Petitioner had claimed that though -he was appointed on ad hoc basis for fixed period, but as his service was regularly extended from time to time and he had completed five years of his service, he had acquired the right to be regularized in service---Validity---Alternate remedy of an appeal to the Authority and failing therein a second appeal to Executive Board of the Authority as provided in S.25(2) of Defence Housing Authority Lahore Order No.26 of 2002 were available to the petitioner, but the same had not been utilized by petitioner and he had not explained as to how said remedies were not efficacious---Petitioner, even otherwise, had failed to disclose any enforceable vested right as he was never a regular employee of the Authority---Constitutional petition by employee was .dismissed by the High Court with an observation that he could avail the alternate remedies available to him.

Muhammad Ahmed Qayyum for Petitioner.

Maqbool Ahmad Chaudhry for Respondent.

Date of hearing: 10th June, 2003.

2004 P L C (C.S.) 292

[Lahore High Court]

Before Syed Zahid Hussain and Muhammad Akhtar Shabbir, JJ

Qazi M. ASIF JAH BAHADUR

Versus

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

Intra-Court Appeal No.497 of 2003 in Writ Petition No.13083 of 2003, decided on 28th October, 2003.

Law Reforms Ordinance (XII of 1972)---

----S.3---Constitution of Pakistan (1973), Arts. 199 & 212---Civil service---Intra-Court appeal---Appellant who was civil servant had assailed the departmental proceedings initiated against him through Constitutional petition which was dismissed by the High Court due to bar of jurisdiction contained in Art.212 of the Constitution---Validity---Bar of jurisdiction was attracted in the case in view of non obstante operation of Art.212 of the Constitution and said exclusionary provision was applicable notwithstanding anything therein contained---Contention of appellant that as no final order had been passed, Constitutional petition was competent before High Court, as matter could not be taken to Service Tribunal, was repelled---Constitutional petition was rightly dismissed by the High Court---Order of High Court could not be interfered with in Intra-Court appeal.

Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; I.A. Sherwani v. Government of Pakistan through Secretary, Finance Division, Islamabad 1991 SCMR 1041; Hafiz Sabir Ali v. Administrator, Municipal Corporation, Sahiwal 2002' PLC (C.S.) 1024; Khalid Mahmud Ch. v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Muhammad Azhar v. General Manager (Operation) Power, WAPDA PLD 1990 Lah. 352; Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545; Abdul Wahab v. Government of Punjab PLD 1989 SC 508; Superintendent of Police, Headquarter, Lahore v. Muhammad Latif PLD 1988 SC 387 and Akhtar Ali v. Province of Punjab PLD 1992 Lah. 127 ref.

Pervaiz Inayat Malik for Appellant.

Date of hearing: 28th October, 2003.

2004 P L C (C. S.) 294

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ALLAH DITTA LINEMAN and another

Versus

PAKISTAN TELECOMMUNICATION CORPORATION COMPANY LTD. through Chairman and 4 others

Writ Petition No.7963 of 2003, decided on 22nd October, 2003.

(a) Administration of justice---

----Order not challenged before higher forum is binding between the parties.

Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145 ref.

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

----S.24-A---Constitution of Pakistan (1973), Art.199---Constitutidnai petition---Order, vires of---Grievance of the petitioner was that the Authorities decided his representation for regularization, without providing him any proper hearing---Order passed by the Authorities neither contained reasons nor mentioned any word qua the objections and grounds taken by the petitioner in his representation---Validity---Under S.24-A, General Clauses Act, 1897; it was the duty and obligation of public functionaries to decide representation of their subordinates with reasons---Competent Authority had decided the representation of the petitioners without applying its independent mind---Order having been passed without providing proper hearing to the petitioners, the same was set aside and the matter was remanded to the Authorities for decision afresh by giving reasons, therefor---Constitutional petition was allowed accordingly.

Ghulam Mohy-ud Din's case PLD 1964 SC 829; Messrs Airport Support Service v. Airport Manager Karachi 1998 SCMR 2268; Zain Yar Khan v. Chief Engineer C.R.BCC 1998 SCMR 2419; Pakistan and others v. Public at Large PLD 1987 SC 304; Pakistan Chrome Mine Ltd. v. Enquiry Officer, War Risk Insurance 1983 SCMR 1208 and. Zakir Ahmad's case PLD 1965 SC 90 ref.

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

----Arts.189 & 190---Judgment of Supreme Court is binding on each and every organ of the State.

(d) Natural justice, principles of---

----Principles of natural justice must be, read in each and every statute until and unless the same is prohibited by the wording of the statute itself.

Commissioner of Income-tax, East Pakistan v. Sayeedur Rehman PLD 1964 SC. 410 ref.

Muhammad Arif Raja for Petitioner, Yousaf Hussam Dilawari for Respondent.

2004 P L C (C. S.) 305

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RASHID

Versus

LAHORE DEVELOPMENT AUTHORITY and 3 others

Writ Petition No.9625 of 2003, decided on 3rd November, 2003.

Civil service---

---- Regularization of service--Civil servant was appointed as Litigation Officer in year 1991, but his services having not been regularized despite his several representations, he filed Constitutional petition---High Court disposed of Constitutional petition with direction to Authorities to constitute a Committee to finalize matter of regularization of service of civil servant and Competent Authority would decide matter on the basis of recommendations of said Committee--Committee so constituted had granted one time regularization of service of civil servant---Committee having recommended the name of civil servant for regularization, vested right had accrued to civil servant, but Competent Authority instead of regularizing service of civil servant, decided that seven posts of Litigation Officers should be filled in through open competition after inviting applications through advertisement---Competent Authority had discarded recommendations of Committee duly constituted without issuance of notice to the civil servant---Validity--After receiving recommendations of Committee, it was duty and obligation of Competent Authority to pass order after applying its independent mind keeping in view recommendation of Committee duly constituted according to direction of High Court---Competent Authority .could disagree with recommendation of Committee, but with reason and after issuance of notice to civil servant, but said procedure was not adopted by Competent Authority which act of - Competent Authority was in violation of principles of natural justice---Vested right having accrued to the civil servant the same could not be taken away without issuance of notice to him---Order of Competent Authority for advertisement, was set aside meaning thereby that recommendation of Committee would be placed before Competent Authority and Authority would pass fresh order after applying its independent mind and providing proper hearing to all concerned including the civil servant.

Miss Farzana Qadir, v. Province of Sindh 2000 PLC (C.S.) 225 D.G. Ordinance Service. v. Muhammad Abdul Latif 2003 SCMR 410: Government of the Sindh. v. Abdul Sattar Sheikh and others 2003, SCMR 819; Shahzad Gul v. Additional Secretary Home, Government of N.-W.F.P. and others 1999 SCMR 1028; Government of the Balochrstan v. Marjan Khan 2003 SCMR 444; Chairman, Minimum Wage Board v. Fayyaz Khan Khattak 1999 -SCMR 1004=1999 PLC (C.S.) 1160; Messrs Airport Support Service's case 1998 SCMR 2268; Zakir Ahmad's case PLD 1965 SC 90 and Pakistan Chrome Mines Ltd.'s case 1983 SCMR 1208 ref.

Hafiz Muhammad Naseem for Pefitior-.i.

Mian Muzaffar Hussain, Legal Advisor (LDA) for Respondents.

2004 P L C (C.S.) 310

[Lahore High Court]

Before Syed Zahid Hussain, J

SAIF ULLAH

Versus

DISTRICT COORDINATION OFFICER/CHAIRMAN, SELECTION COMMITTEE, DISTRICT KHUSHAB

Writ Petition No. 14082 of 2003, decided. on 12th November, 2003.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Changing of eligibility and criteria for appointment as teacher---Grievance of the petitioner was that the Authorities could not change the criteria for the appointment as P.T.C. teacher---Validity---Executive Government is fully competent to make such a change in the qualification for a particular post---Government is entitled to make rules in the interest of efficiency of service and such rules can be changed and no one can make a grievance of any such change brought about determining the eligibility criteria---Conditions., qualifications and criteria prevailing at the time of appointment are to be taken into consideration and not what were in the past---No discriminatory treatment was meted out to the petitioner as the Authorities had rightly changed the criteria---Petition was dismissed in circumstances.

Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342 and Malik Niaz Muhammad v. Provincial Transport Authority and others 1989 SCMR 790 ref.

Falak Sher Khan and another v. Mukhtar Ahmad and others PLD 1989 SC 262; Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Government of N.-W.F.P. Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1524 and Mushtaq Ahmad Mohal and others v. The Honourable. Lahore High Court, Lahore and others 1997 SEMR 1043 rel.

Raja Muhammad Akhtar for Petitioner.

2004 P L C (C.S.) 317

[Lahore High Court]

Before Syed Zahid Hussain, J

IJAZ AHMAD CHAUDHRY

Versus

SECRETARY AGRICULTURE, GOVERNMENT OF THE PUNJAB, AGRICULTURE DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 3 others

Writ petition No. 14929 of 2003, decided on 12th November, 2003.

Constitution of Pakistan (1973)---

----Art-199---Constitutional petition---Chief Minister, order of--­Changing of the order by Department---Chief Minister reinstated 831 employees of Agriculture, Department---Name of the petitioner was included in the list of the employees approved by the Chief Minister but the name was not included in the order issued by the Department--­Contention of the Department was that the name of the petitioner was erroneously included in the list 'approved by the Chief Minister--­Validity---What has been approved and ordered by the Chief Minister could not be nullified or altered by the Department---Chief Minister had not ordered for any change, the Department could not act on its own to the prejudice of the petitioner and delete his name from the list of reinstated employees---Petitioner was. entitled to seek implementation of his reinstatement order by the Chief Minister of the Province and the Department had no lawful authority to deprive the petitioner there from--­Petition was allowed accordingly.

Raja Muhammad Nawaz v, Government of the Punjab 1981 SCMR 523 ref.

Ch. Abdul Razzaq for Petitioner.

Fazal Meeran Chohan, Addl. A.-G.

2004 P L C (C.S.) 332

[Lahore High Court]

Before Tassaduq Hussain Jilani, J

ZAKA ULLAH BAJWA

versus

DISRICT COORDINATION OFFICER, GUJRANWALA and another

Writ Petition No.6526 of 2003, decided on 23rd October, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Unclean hands of petitioner‑‑­Contractual appointment‑‑‑Manipulation of record‑‑‑Grievance 'of the petitioner was that his dismissal from service was illegal and based on mala fides‑‑‑Plea raised by the Authorities was that the petitioner had manipulated the record and had substituted the first page of his appointment letter wherein he had added certain favourable terms and conditions which were not stipulated in the original orders ‑‑‑Validity‑‑­Petitioner was not a civil servant, the appointment was contractual and in terms of the contract the same could be dispensed with on one month's notice or payment of one month's salary in lieu thereof‑‑‑No jurisdictional defect existed in the order to warrant interference in the Constitutional jurisdiction of High Court‑‑‑Petitioner having come to High Court with unclean hands, therefore, he could not seek any relief in equitable jurisdiction of High Court‑‑‑Plea raised by the Authorities was not without substance‑‑‑Petition was dismissed in circumstances.

(b) Mala fides‑‑‑

‑‑‑‑ Allegation of mala fides‑‑‑Proof‑‑‑Such allegation cannot be alleged in vague terms ‑‑‑Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging the same to establish‑‑­Presumption of regularity, existed with regard to all official acts and until such presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides.

Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 152 ref.

Petitioner in person.

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

Date of hearing: 17th October, 2003.

2004 P L C (C.S.) 348

[Lahore High Court]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, SAHIWAL

versus

RIAZ AHMAD AFZAL and others

Intra‑Court Appeal No.205 of 2002, decided on 8th May, 2003.

Civil service‑‑‑

‑‑‑‑ Grant of advance increments to employees of Municipal Committee on basis of higher qualification‑‑‑Government of Punjab Finance Department having decided to grant advance increments to its employees on the basis of higher qualification, employees were granted advance increments‑‑‑Government of Punjab Finance Department subsequently issued another Notification clarifying that employees having passed Intermediate Examination from Allama Iqbal Open University, without English, were not entitled to the said advance increments‑‑‑Constitutional petition by employees against the subsequent notification was allowed by Single Judge of High Court and action taken on basis of said subsequent notification was declared without lawful authority and of no legal effect‑‑‑Validity‑‑‑Degrees/Certificates awarded by Allama Iqbal Open University according to the notification were equivalent to Degrees/Certificates awarded by other Universities of the country for the intents and purposes of appointment/advance increment‑‑‑Condition of passing English Subject was imposed only for those wishing for higher studies‑‑‑No illegality was found in the judgment passed by High Court in Constitutional petition‑‑‑Contention raised by the appellant Authority that employees had been civil servants and matter related to terms and conditions of service, was repelled in Intra‑Court Appeal as Constitutional petition was moved by the private employees of Municipal Committee and notices were issued to the Authorities, but no objection in that respect was ever raised by the Authorities‑‑‑When Constitutional petition was decided, no such objection was raised by Government or other Authorities‑‑‑Appellant Authorities had been given full opportunity to argue the case, but they had failed to make out a case for interference in judgment of Single Bench of High Court which otherwise was well‑reasoned ‑‑‑Intra‑Court Appeal was dismissed in circumstances.

PLD 1974 SC 106 and 2000 YLR 3056 ref.

Muhammad Rafique for Appellant.

Syed Arif Raza Giliani for Respondents.

Date of hearing: 8th May, 2003.

2004 P L C (C.S.) 351

[Lahore High Court]

Before Iftikhar Hussain Chaudhry, CJ

SHABBIR, AHMED BHATTI

versus

DEPUTY DISTRICT OFFICER (REV.) and others

Writ Petitions Nos. 15973, 15974, 16142, 16267, 16452, 17811, 17821 and 208Uh of 2002, decided on 19th December, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑‑Civil service‑‑‑Appointment‑‑‑ Government vide Notification No.SOR‑III‑1‑22/90, dated 4‑6‑1997 had reserved 20% quota for children of Government employees‑‑‑Petitioners who were off‑springs of serving Government employees and after passing Patwar School Examination had obtained certificates, were denied benefit of said Notification‑‑‑Authorities had admitted reservation of 20 % quota according to Notification, but as ban imposed on recruitment of Patwaris still existed, specific direction for appointing or for considering the case of petitioners, could not be given to Authorities‑‑Held, when applications were invited for the posts in question case of the petitioners would be processed accordingly and petitioners in case of any grievance, would be at liberty to approach the Court again.

Dr. Ehsanul Haq Khan, Qazi Muhammad Arshad Bhatti and Ch. Nusrat Javed Bajwa for Petitioner.

Ch. M. Nasim Sabir, Addl. A.G.

2004 P L C (C. S.) 358

[Lahore High Court]

Before Maulvi Anwarul Haq, J

LIAQUAT ALI KHAN

versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY and others

Writ Petition No. 1704 of 2001, decided on 18th March, 2002.

Constitution of Pakistan (1973)‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Dismissal from service‑‑‑Civil servant having been dismissed from service, filed Constitutional petition against his dismissal order‑‑‑High Court remanded case to the Authority for decision afresh after hearing petitioner‑‑‑In pursuance of said order of High Court a notice was served upon petitioner by the Authority and in said notice petitioner was described as `dismissed )(EN'‑‑‑Petitioner filed Constitutional petition which was allowed inasmuch as notice of Authority treating petitioner to be an ex-­employee of 'respondent was declared to be illegal‑‑‑On filing Constitutional petition by Authority against said order of High Court, it was ordered by High Court that in future when a notice of hearing would be issued to the petitioner, he would be described as "under suspension XEN" and not as an "ex‑employee" till final order was passed by the Authority after hearing petitioner‑‑‑Petitioner could not urge that he was reinstated in service at any time because order of his dismissal was never set aside‑‑‑In earlier Constitutional petition filed by petitioner his grievance was that he should not be described as an ex‑employee in notice to be issued to him by Authority, High Court directed that he should be described as an "employee under suspension" which would not at all mean that petitioner was reinstated or in fact suspended

Sh. Munir Ahmad for Petitioner.

Sajjad Hussain for Respondent.

Date of hearing: 18th March, 2002.

2004 P L C (C.S.) 363

[Lahore High Court]

Before Maulvi Anwarul Haq, J

UMAR HAYAT BHATTI

versus

PROVINCE OF THE PUNJAB and others

Writ Petition No.3609 of 1997, decided on 4th June, 2002.

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

‑‑‑‑S.8‑‑‑Constitution of Pakistan ' (1973), Arts. 199 &212‑‑‑ Constitutional petition‑‑‑Promotion‑‑‑Selection Board had recorded a finding that civil servant was not eligible to be promoted to the post of Superintending Engineer‑‑‑Said finding of Selection Board could only be challenged before Competent Service Tribunal‑‑‑Fitness for promotion or appointment and eligibility for appointment and promotion were two different concepts and whereas fitness for promotion or appointment, stood excluded from jurisdiction of Service Tribunal, eligibility for promotion was not so excluded‑‑‑Promotion to a higher post had never been considered to be the right of a civil servant‑‑‑Even at times when present Service Laws were not in force, Courts were always reluctant to interfere in matter of promotion as it primarily fell within the domain of Departmental Authorities who considered particular civil servant for promotion‑‑‑Right to be considered for promotion, however, had always been guarded by the Courts‑‑‑Civil servant, in the present case, had already been considered for promotion by Selection Board‑‑‑Decision of Selection Board was not subject to scrutiny of High Court in terms. of Art.212 of Constitution of Pakistan (1973)‑‑‑Civil servant could approach Competent Tribunal to question findings of Selection Board.

N.A. Qureshi v. Government of Punjab PLD 1982 Lah. 242 and Tahir Mahmood v. Inspector‑General of Police, Punjab, Lahore and another 1993 PLC (C.S.) 576 ref.

Hafiz Tariq Nasim for Petitioner.

Fauzi Zafar, A.A.‑G. and Tariq Shamim for Respondents.

Date of hearing: 4th June, 2002.

2004 P L C (C.S.) 369

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ZAHEER‑UL‑HASSAN and another

versus

PAKISTAN POSTAL OFFICE through Post Master General, Lahore and 2 others

Writ Petitions Nos.11791, 12377, 12127, 12546 and 10703 of 2003, heard on 13th November, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principle of consistency‑‑­Applicability‑‑‑ Petitioners being candidates for the posts, appeared in written test as well as in interview and secured highest positions in merit list‑‑‑Authorities instead of issuing appointment letters, recalled the petitioners for re‑examination‑‑‑Plea raised by the petitioners was that High’ Court, had earlier allowed Constitutional, petition filed by another successful candidate and in view of principle of consistency they were also I liable to be appointed‑‑‑Validity‑‑‑Case of .the petitioners was exactly similar to that of the other' candidate‑‑‑Nigh Court on the principle of consistency declined to deviate from its own view‑‑‑Petition was allowed accordingly.

Miss Fauzia Yaqub v. Assistant ,Postmaster General,' Punjab, Lahore 2003 PLC (C . S .) 1274 fol.

Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9 and Muhammad Zaeem Khalid v. Baha‑ud‑Din Zakariya University and others. 1995 SCMR 723 rel.

Ghulam Farid Sanotra for Petitioners.

Sher Zaman, Deputy Attorney‑General for Respondents.

2004 P L C (C.S.) 373

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Dr. ABRAR MAQBOOL and 2 others

versus

GOVERNMENT OF PUNJAB through Secretary, Health Department and another

Writ Petition No. 2410 of 1998, heard on 22nd October, 2003.

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

‑‑‑‑S.33‑‑‑Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, Sched. II‑‑‑Constitution of Pakistan (1973), Arts. 143 & 199‑‑‑Constitutional petition‑‑‑Appointment‑‑‑Eligibility of candidate‑‑‑Petitioners/candidates pursuant to an advertisement issued by Public Service Commission, for appointment of Assistant Professors of Surgery, filed applications for such appointment‑‑‑Petitioners, however. were refused to be interviewed on the ground that because of their tow percentage of marks in M.B.,B.S., they could not be interviewed‑‑­Pakistan 'Medical and Dental Council Regulations, 1985 framed under S.33 of Pakistan Medical and Dental Council Ordinance, 1962, had provided that if a candidate was qualified and had requisite experience, then the merit was to be inter‑judged with reference to preferences of priority and first preference was Teaching experience, second preference was practical experience after Post‑Graduation and third preference was practical experience before Post‑Graduation‑‑‑Provincial Government had taken the plea that according to Punjab Health Department (Medical and Dental Teaching Posts) Rules, 1979, no provision existed with regard to preference of teaching or practical experience ‑‑‑Validity‑‑­Pakistan Medical and Dental Council Regulations, 1985 framed by Pakistan Medical and Dental Council, in exercise of powers under Pakistan Medical and Dental Council Ordinance, 1962, which was a Federal Statute was in conflict with provisions of Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 which was a Provincial Statute‑‑‑Provincial Statute would have to give way to Federal. Statute in view of provisions of Art. 143 of the Constitution‑‑‑High Court, accepting Constitutional petition, directed that Public Service Commission would evaluate petitioners/candidates strictly in accordance with Pakistan Medical and Dental Council Regulations, 1985 by observing order of preference prescribed therein.

Dr. Abrar Hussain Ahmad Khan and others v. Government of Punjab through Secretary and others 1995 CLC 1409; Miss Hina Javed and others v. Government of N.‑W.F.P. and others 1998 SCMR 1469; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421 and Dr. Riaz Ahmad v. Government of Punjab and 6 others 1999 PLC (C.S.) 359 ref.

Muhammad Bashir Kiani for Petitioners.

Tanvir Iqbal, A.A.‑G. for Respondents.

Date of hearing: 22nd October, 2003.

2004 P LC (C.S.) 382

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

NISAR AHMAD and others

versus

TOWN COMMITTEE, KHAIRPUR TAMEWALI through Administrator

Writ Petitions Nos.1538 and 68 of 2001/BWP decided on 27th November, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Civil service ‑‑‑Pensionary benefits etc. ‑‑‑Release of‑‑‑Some of petitioners who were retired from service after completion of their period of superannuation and some others who were declared surplus on account of abolition of concerned Department, applied for release of their pensionary benefits, but same having not been released, they had filed Constitutional petition ‑for direction to the Authority for release of the benefits ‑‑‑Pensionary benefits actually was, the amount which was deducted from the monthly salaries of employees so that a lump sum amount be paid to them after their retirement and it was very painful that after years of their retirement petitioners were in search of their own money‑‑‑State functionaries having failed to exercise their authority to the benefit of employees of their Department, their action and negligence were not immune from judicial scrutiny by High Court as High Court was under legal obligation to exercise its Constitutional jurisdiction to redress the grievance of the poor and helpless employees‑‑‑High Court accepting Constitutional petition, directed the Authority /to release pension/gratuity benefits to all petitioners.

Raja Muhammad Sohail Iftikhar and Shamsher Iqbal Chughtai for Petitioners.

2004 P L C (C.S.) 561

[Lahore High Court]

Before Syed Jamshed Ali, J

AMANAT ALI

versus

MARKET COMMITTEE, LAHORE through Chairman and 2 others

Writ Petition No. 19505 of 2002, decided on 14th January, 2004.

Constitution of Pakistan (1973)----

---Art.194---Constitutional petition---Civil service---Termination of service---Services of employee were terminated on grounds that his appointment was made during the ban, that no relaxation/N.O.C. was obtained from the Competent Authority and that it was made against the policy and procedure---Competent Authority while terminating services of employee did not issue any notice and also did not provide employee an opportunity to defend his appointment which undisputedly was made by the Competent Authority---Order of appointment of employee having been acted upon and implemented, could not have been recalled particularly without any notice or opportunity of hearing to the employee---Employee having been condemned unheard, it was clear violation of rule of natural justice---Order terminating services of employee was set aside and he was directed to be reinstated in service and case was remanded to Competent Authority to pass a fresh order in -accordance with law after hearing employee and providing him an opportunity to defend order of his appointment.

Muhammad Ahmed Qazi for Petitioner.

2004 P L C (C.S.) 567

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Rana MUHAMMAD AFZAL

versus

DIRECTOR FOOD PUNJAB, LAHORE and another

Writ Petition No. 9302 of 2003, decided on 26th January, 2004.

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

----S. 4---Constitution of Pakistan (1973)---Arts. 199 & 212--- Constitutional petition---Maintainability---High Court in its Constitutional jurisdiction can give direction to' the authorities to implement the judgment of the Service Tribunal.

Mrs. Monawar Sanni v. Director Army Education. 1991 SCMR 135; Inamul-Haq v. Secretary Establishment Division 1982 Law Notes Lah. 437; Khalid Mehmood Inspector v. Inspector General Police 1999 PLC (CS) 558; Sardar Muhammad Arshad v. Azad Government through Chief Secretary 1998 PLC (C.S.) 217; Farooq Ahmad Khan v. Shaukat Jan Bouch 1998 PLC (CS) 425 and Qazi Muhammad Anwar. v. Federation of Pakistan PLC 2000 C.S.1165 ref.

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

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Mere filing of a petition by the respondents before the Supreme Court against the decision of Service Tribunal cannot automatically suspend the operation of judgment of the Services Tribunal.

Muhammad Yasin Bhatti for Petitioner.

Muhammad Hanif Khatana Additional Advocate-General for Respondents.

2004 P L C (C.S.) 586

[Lahore High Court]

Before Syed Jamshed Ali, J

JAVAID HUSSAIN QURESHI

versus

FINANCE DEPARTMENT, GOVERNMENT OF THE PUNJAB through Secretary Finance and 2 others

Writ Petition No.24026 of 2000, heard on 8th December, 2003.

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

----Arts.3, 25, 199 & 212---Constitutional petition ---Maintainability--­Reasonable classification---Equal pay for equal work', principle of--­Applicability---Grievance of the petitioner was that he was appointed as Statistical Computer in Basic Pay Scale-8, whereas civil servant appointed as Statistical Assistant with same qualification and performing the same duties was placed in Basic Pay Scale-11---Contention of the Authorities was that the matter pertained to terms and conditions of service and Constitutional jurisdiction of High Court was barred under Art.212 of the Constitution---Validity--Principle ofequal pay for equal work' had not been mentioned either as Fundamental Right or as a Principle of Policy in the Constitution---If equality clause in Art.25 of the Constitution had to have some meanings, the said principle was to be read in Art.25 of the Constitution to give effect to it---Persons similarly placed had to be similarly treated except on the basis of reasonable, classification---When the qualification for both the posts was the same and both the officials were performing, the same duties, the petitioner could not be treated differently---Principle equal pay for equal work' although not specified in the Constitution as Principle of Policy, yet it was built in Art.3 of the Constitution---Pay of the post was one of the terms and conditions of service of a civil servant but the pay, the petitioner claimed on the basis of another official, identically places, was getting in the same organization couldnot be said to be a term and condition of his service---Dispute would relate to terms and conditions of service, if a civil servant was entitled to something under the law or rules which was denied to him---Petitioner was not before the High Court with a complaint of violation of any of his terms and conditions of his service but his grievance was that he was unfairly discriminated against---High Court declared that the petitioner was entitled to pay of Basic Scale-11 from the date it was allowed to similarly appointed civil servant---High Court directed the authorities to issue such order---Constitutional petition was allowed accordingly.

Randhir Singh v. Union of India AIR 1982 SC 879; Miss Benazir Bhutto v. Federation of Pakistan and others PLD ,1988 SC 416; Saeed-ud-Din v. Secretary to the Government of N.W.F.P., Finance Department 1990 CLC 8; Mubarik Ali and 7 others v. Government of the Punjab 1990 CLC 136; Province of the Punjab v. Ramzan Ali Khan PLD 1982 SC 349; Federation of Pakistan v. Muhammad Yaqoob Khan 1987 SCMR 1914; Maznoor Hussain and 37 others v. Province of the Punajb 1989 PLC CS 42; Province of Punjab and another v..Kamal-ud­Din PLD 1983 SC 126; Mysore v. Basavalingappa, AIR 1987 SC 41-1; N.P. Singh and others v. Union of India AIR 1987 SC 485; Telecommunication Research Centre Scientific Officers class-I Association v. Union of India AIR 1987 SC 490; U.P. Rajya Sahakari Bhoom Vikas Bank Ltd. U.P., v. Its Workmen AIR 1990 SC 495 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 ref.

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

----Arts.2-A, 3 & 37(e)---Fundamental rights---Opportunity of work--­Scope ---Equality of opportunity contemplated by the Objectives Resolution includes equal opportunity in public employment---Public employment, before and after entry into public service is not a bounty of the Crown to permit the. State and its ornamental parts to differently treat two public servants identically placed in all respects in the matter of pay---Although Arts.2-A, 3 and 37 of the Constitution are not declared as Fundamental Rights yet these are Constitutional goals, which has to be kept in mind and given due regard while interpreting the Constitution and law.

Miss Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416 ref.

Asmat Kamal Khan for Petitioner.

Asif Mehmood Cheema, A.A.-G. with Muhammad Altaf Khan and Tariq Mehmood Mirza for Respondents.

Date of hearing: 8th December, 2003.

2004 P L C (C.S.) 622

[Lahore High Court]

Before Syed Jamshed Ali, J

Syeda ADEEBA ANJUM

versus

SECRETARY GOVERNMENT OF PUNJAB EDUCATION DEPARTMENT LAHORE and another

Writ Petition No. 10883 of 2003, decided on 30th July, 2003.

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

----S.10---Constitution of Pakistan (1973), Arts.199, 35 & 38--­Constitutional petition---Posting and transfer---Wedlock Policy of Punjab Government was intended to ensure to the benefit of a family, it advanced social good and unless there were insurmountable hurdles, requests of the husband and wife to be posted at one station were required to be considered with an element of compassion and kindness--­Duty of State was to protect the marriage, the family, the mother and the child to secure the well-being of the people.

(b) Contempt of Court Act (LXIV of 1976)---

----S.3---Constitution of Pakistan (1973), Art.204---Non-compliance with the direction of Court was contempt of Court.

Nazir Ahmad Ghazi and Raja Abdur Rehman, Assistant Advocate-General.

2004 P L C (C.S.) 641

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SALEEM and 2 others

Versus

DIRECTOR‑GENERAL, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Writ Petition No. 13018 of 2003, decided on 23rd January, 2004.

(a) Constitution of Pakistan, 1973‑‑‑

‑‑‑‑Art. 199‑‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑When representations of the petitioners on a matter are pending before a competent authority, Constitutional petition on, that matter would not be maintainable.

Ch. Tanbeer Ahmed Siddiky's case PLD 1968 SC 185 ref.

(b) Service Tribunal Act, (LXX of 1973)‑‑‑

‑‑‑S. 4‑‑‑Constitution of Pakistan (1973)‑‑‑Arts. 4, 199 & 122‑‑‑General Clauses Act (X of 1897), S. 24‑A‑‑‑Constitution petition‑‑Maintainability‑‑‑Representation of the petitioners were pending before the competent Authority‑‑‑Contention of the Authorities was that Constitutional petition in service matters was not maintainable in view of the bar contained in Art. 212 of the Constitution read with S.4 of Service Tribunal Act, 1973‑‑‑Validity‑‑‑High Court had ample jurisdiction to give directions to the competent authority to act in accordance with law in view of Art. 4 of the Constitution while exercising power under Art 199 of the Constitution; in spite of bar contained in Art. 212 of the Constitution read with S.4 of Service Tribunals Act, 1973‑‑‑Authorities were directed to decide the representation of the petitioners with reasons strictly in accordance with law, after providing proper hearing to all the parties and within the prescribed time in the light of Art. 4 of the Constitution read with S.24‑A of the General Clauses Act, 1897‑‑­ Constitutional petition was disposed of accordingly.

H.M. Rizvi's case PLD 1981 SC 612; Province of Sindh. v. Gul Muhammad Hanjane's case 2003 SCMR 325; Messrs Airport Support Service v. The Airport Manager Karachi 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer CRBC WAPDA 1998 SCMR 2419 ref.

Rana A. Hameed Talib for Petitioners.

Sher Zaman Khan, Deputy Attorney‑General of Pakistan.

2004 P L C (C.S.) 655

[Lahore High Court]

Before Ch. Ijaz Ahmed, J

FAZAL ELAHI

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. and another

Writ Petition No. 14691 of 2003, decided on 28th January, 2004.

(a) Constitution of Pakistan 1973‑‑‑

‑‑--Arts. 199, 4 & 212‑‑‑Constitutional petition ‑‑‑ Maintainability ‑‑‑ Civil service‑‑‑Grievance of the petitioner was that the authorities had failed to implement the judgment of the Service Tribunal‑‑‑High Court in its Constitutional jurisdiction, could give direction to the authorities to implement the judgment of the Service Tribunal in view of Art. 4 of the Constitution.

Inam‑ul‑Haq, v. Secretary Establishment Division 1982 Law Notes, Lahore 437, Mrs. Monawar Sanni, v. Director Army Education; 1991 SCMR 135, Sardar Muhammad Arshad, v. Azad Government thro: C.S. 1998 PLC (C.S.) 217; Farooq Ahmad Khan v. Shaukat Jan Bouch. 1998 PLC (C.S.) 425; Khalid Mehmood Inspector v. Inspector‑General Police 1999 PLC (C.S.) 558; Qazi Muhammad Anwar, v. Federation of Pakistan 2000 PLC (C.S.) 1165; H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612 and Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Civil service‑‑­Grievance‑of the petitioner was that the authorities had failed to implement the judgment of the Service Tribunal‑‑‑Mere filing of a petition by the authorities before the Supreme Court against the decision of the Service Tribunal could not automatically suspend the operation of the judgment of the Service Tribunal.

Muhammad Tahir Mehmood for Petitioner.

Yousaf Hussain Dilawari for Respondents.

2004 P L C (C.S.) 742

[Lahore High Court]

Before Iftikhar Hussain Chaudhry, J

Mian ATTA MUHAMMAD ZAFAR

Versus

SECRETARY, GOVERNMENT OF PUNJAB, LOCAL GOVT. AND RURAL DEVELOPMENT DEPARTMENT, LAHORE and others

Writ Petition No.647‑S of 2002, decided of on 26th February, 2002.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art. 199‑‑‑Civil service‑-‑Constitutional petition‑‑‑Maintainability of‑‑‑Petitioner who was Administrator of a Municipal Committee was proceeded against on some financial irregularities‑‑‑Surcharge notice was issued to petitioner and after receiving his reply, inquiry was conducted against him and a final show‑cause notice was issued to him‑‑‑Petitioner aggrieved of said final show‑cause notice had filed Constitutional petition‑‑‑Validity of‑‑‑Inquiry initiated against petitioner was almost at, its fag end and a final show‑cause had been issued to him‑‑‑Petitioner bad to defend said notice in appropriate proceedings and in case adverse order was passed against him, he could competently challenge the same before forum having jurisdiction in the matter‑‑‑The matter being under consideration before Departmental Authority, petitioner at such stage could not invoke Constitutional jurisdiction of High Court as High Court ordinarily would not interfere in the matters which were sub judice before lower Courts or Tribunals or were under consideration of Public functionaries and final decision had yet to be rendered in the matter‑‑­Case was hardly of a nature in which High Court should interfere at a stage when only a show‑cause notice had been issued to the petitioner and no adverse order had been passed against him‑‑­Constitutional petition filed by petitioner, being premature, was disposed of accordingly.

M. Shamshir Iqbal Chughtai for Petitioner.

2004 P L C (C.S.) 800

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD KHALID MIRZA and 3 others

versus

LAHORE DEVELOPMENT AUTHORITY and 12 others

Writ Petition No. 11831 of 2002, decided on 25th November, 2003.

Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978‑‑‑

‑‑‑‑Regln.23‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition, maintainability of‑‑‑Petitioners who considered themselves to be eligible for promotion and aggrieved of recommendation qua the respondents for their promotion to said posts, had invoked the Constitutional jurisdiction of High Court‑‑‑Petitioners had prayed that acts of the Authority ignoring petitioners for promotion and on the contrary considering and recommending cases of respondents for the promotion, be declared illegal, unlawful, arbitrary, without jurisdiction and without lawful authority‑‑‑Validity‑‑Remedy of representation w, provided under Regln. 23(2) of Lahore Development Authority (Appointment and Conditions' of Service) Regulations, 1978, to petitioners for redressal of their grievance‑‑‑When an adequate departmental remedy was available to petitioners; Constitutional petition by them was not maintainable‑‑‑No limitation though was provided in the Regulations, but it would be just and proper if Depart‑mental Authority disposed of representation of petitioners within 90 days of filing thereof.

Pervaiz Inayat Malik for Petitioners.

Asmat Kamal Khan, for Respondents Nos. 10 and 12.

Mian Muzaffar Hussain and Rehan Bashir for LDA.

Date of hearing: 25th November, 2003.

2004PLC(C.S.) 815

[Lahore High Court]

Before Muhammad Khalid Alvi, J

ABDUL RASHID KHAN

versus

VICE‑CHANCELLOR, BAHAUDDIN ZAKARIA UNIVERSITY MULTAN and 8 others

Writ Petition No.3695 of 1996, heard on 17th July, 2003.

Bahauddin Zakariya University Act (III of 1975)‑‑‑

‑‑‑‑S.11‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Statutory powers, non‑exercise of ‑‑‑Grievance of the petitioner, was that the University Authority ignored him at the time of appointment of Administrative Officer‑‑‑Revision was filed by the petitioner under S.11‑A of Bahauddin Zakarlya University Act. 1975‑‑‑Assistant Registrar Administration dismissed the revision on the ground that the same was not competent‑‑‑Validity‑‑‑Powers of revision of Chancellor under S.11‑A of Bahauddin Zakariya University Act. 1975, were statutory powers and the same could only be exercised by the Chancellor and non‑else‑‑‑Chancellor was to consider the revision of the petitioner whether the same was competent or not‑‑‑Order passed by the Assistant Registrar Administration was illegal and without lawful authority and the same was set aside‑‑‑High Court remanded the matter to the Chancellor to decide the revision afresh in accordance with ‑‑‑Constitutional petition was allowed accordingly.

1992 SCMR 1093; 2003 MLD 507; PLC 1999 (C.S.) 60 and I.C.A. No.68 of 1995 distinguished.

Pir Muhammad Arif Rafi Shah for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 17th July, 2003.

2004 P L C (C.S.) 824

[Lahore High Court]

Before Syed Jamshed, Ali, J

KHUDA BAKHSH

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION FAISALABAD and others

Writ Petition No.19274 of 2002, decided on 9th October, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Claim `of retirement benefits by ­employee of the Secondary Board of Education‑‑‑Adjustment of advances‑‑Entire record being in possession of the branch concerned, it would be unfair, unjust, harsh and oppressive to call upon the employee to do the adjustment of advances made to him 12 to 15 years ago‑‑­Pension rule's were beneficial dispensation for the retired officials and would be applied in .the same spirit‑‑‑Refusal of Board to sanction retirement benefits, contrary to the pension rules was declared to be without lawful authority‑‑‑Sanction and, release of 80% anticipatory pension to the retired employee was ordered by the High Court.

Malik Noor Muhammad Awan for Petitioner.

Dr. M. Mohy‑ud‑Din Qazi,for Respondents.

Date of hearing: 9th October, 2003.

2004 P L C (C.S.) 828

[Lahore High Court]

Before Syed Jamshed Ali, J

Dr. MUHAMMAD AFZAL and others

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 2 others

Writ Petitions Nos. 11025 and 6858 of 2003, heard on 1st October, 2003

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

‑‑‑‑Arts.199 & 212‑‑‑Constitutional petition‑‑‑Terms and conditions of service‑‑‑Promotion‑‑‑Constitutional petition against extension of service after the age of superannuation‑‑‑Maintainability‑‑‑If civil servant approached the Court to enforce any of the terms and conditions of his service, bar of jurisdiction was attracted but not when he did not so claim and did not ask for any relief to himself except laying an information before the High Court against usurpation of a public office‑‑­Order under challenge had the effect of depriving the petitioner from being considered for promotion/appointment to the post of Director General‑‑‑Such measure affected his prospects of promotion which did not fall within the scope of terms and conditions of service‑‑‑Bar of Art.212, Constitution would not be attracted in circumstances.

Dr. Ehsan‑ul‑Haq v. The Province of Punjab and others 1980 SCMR 972 rel.

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

‑‑‑‑Ss.13 & 23‑‑Constitution of Pakistan (1973), Art. 199‑‑­ Constitutional petition‑‑‑Departmental instructions ‑‑‑Nature‑‑‑Re­ employment of retired civil servant‑‑‑Instructions though had the force of rules by virtue of S. 23 of the Punjab Civil Servants Act, 1974 yet a perusal thereof showed that these were regulatory and directory in nature and not mandatory and the Competent Authority remained possessed of necessary power to re‑employ a retired civil servant‑‑‑Selection Board was only a recommendatory body and recommendation of such a body could not be said to be binding on Competent Authority since the substantive power to direct re‑employment of a civil servant flowed from S. 13 of the Punjab Civil Servants Act, 1974‑‑‑Instructions supplied the guidline to regulate the said discretion‑‑‑What was required to be seen in the present case was whether the Authority had exercised discretion with due application of mind and if it had so done, the High Court could not substitute its opinion for the opinion of the Competent Authority‑‑‑No merit was found in the petitions, which were dismissed, in circumstances.

Dr. Habibur Rahman v. The West Pakistan Public Service Commission; Lahore and 4 others PLD 1973 SC 144 rel.

Dr. Sher Bahadur Khan Panee v. The Government of West Pakistan PLD 1956 (W.P.) Pesh. 77; A.R. Azar, Deputy Chief Engineer, West North‑Western Railways, Lahore and others v. ‑ The Federation of Pakistan and Mr. A.S. Fanpoqui, Director Civil Engineering, Railway Division, Karachi PLD 1958 (W.P.) Lah. 185 and Walayat Ali Mir v. Pakistan International Air Lines Corporation through its Chairman and another 1995 SCMR 650 distinguished.

Hafiz Tariq Nasim assisted by Mahmood Ahmad Qazi and Mushtaq Masood for Petitioner (in W. P. No. 11025 of 2003).

Dr. Muhammad Akmal Saleemi for Petitioner (in W.P. No.6858 of 2003.

Aamir Rehman, Additional Advocate‑General for Respondent Nos. l and 2.

Dr. A. Basit assisted by Raja Bilal Ahmad for Respondent No. 3.

Date of hearing: 1st October, 2003.

2004 P L C (C.S.) 921

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. IKRAMULLAH

versus

DISTRICT COORDINATION OFFICER, GUJRANWALA and 6 others

Writ Petitions Nos.17253 and 17254 of 2003, heard on 28th January, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Recruitment of specialist doctors by Authorities through a selection committee‑‑‑Appearance of the petitioner before the said committee for recruitment‑‑‑Grievance of the petitioner was that said committee was not legally constituted and the recommendations made by it were illegal and without authority‑‑‑Criteria and procedure of selection committee provided for inclusion of .a professor of the concerned speciality as one of its members‑‑‑One Assistant Professor, however, was inducted by the Authorities in the said committee‑‑‑Legality‑‑‑Inclusion of professor of the concerned speciality in the committee whether a mandatory requirement for recruitment of a specialist doctor‑‑‑Under the procedure it was mandatory for the selection of a specialist doctor that the selection committee consisted of a professor of that speciality‑‑‑Wisdom, object and rationale behind inclusion of professor of the concerned speciality as member of the selection committee elucidated‑‑‑Proceedings before an improperly constituted committee would be coram non judice and void.

Maqbool Ahmad Maqbool v. The Province of Punjab and 10 others 1971 SCMR 727 distinguished.

Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional Petition ‑‑‑Estoppel, principle of‑‑­Applicability‑‑‑ Recruitment of specialist doctors by Authorities through a selection committee‑‑‑ Appearance of the petitioner before the said committee for recruitment‑‑‑Grievance of the petitioner was that the said committee was not legally constituted and the recommendations made by it were illegal and without authority‑‑‑Contention of the Authorities was that the petitioner having once appeared before the selection committee was estopped to raise such objection‑‑‑Contention of the Authorities was repelled by the High Court.

Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925 and Muhammad Afzal v. Board of Revenue, West Pakistan and others PLD 1967 SC 314 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Recruitment of specialist doctors by Authorities through a selection committee‑‑‑Appearance of the petitioner before the said committee for recruitment ‑‑‑ Grievance of the petitioner was that said committee was not legally constituted and the recommendations made by it were illegal and without authority‑‑‑Criteria and procedure of selection committee provided for a professor of the concerned speciality as one of its members, however, in case of the petitioner's selection, an assistant professor instead was inducted by the Authorities in the said committee‑‑‑Validity‑‑‑When a thing was prescribed to be performed in a particular manner and by a particular person, it was to be done accordingly‑‑‑Element essential to the lawful exercise of the power was that it should be exercised by the authority upon whom it was conferred, and by no one else‑‑‑Under the said principles the presence of professor of concerned speciality in the selection committee was strictly required‑‑‑Absence of the said Professor from the selection committee made the constitution and recommendations of the same as illegal and of no effect‑‑‑Constitutional petition was allowed.

Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others PLD 1972 Lahore 316 and Administrative Law by Sir William Wade, Eighth Edition (2000) Page No.315 ref.

Ch. Muhammad Anwar Bhinder for Petitioner.

Fazal Miran Chohan and Muhammad Hanif Khatana Addl. A.‑G. for Respondents Nos. l to 3, 5 and 6.

Muhammad Nawaz Kasuri for Respondent No.4.

Khawaj Muhammad Akram for Respondent No.7.

Ali Akbar Qureshi for Respondent No.7 (in Writ Petition No. 17254 of 2003).

2004 P L C (C.S.) 984

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RIAZ and 8 others

Versus

ZILLA COUNCIL SAHIWAL through ADMINISTRATOR and another

Writ Petition No. 11042 of 1998, decided on 3rd March, 2004.

Constitution of Pakistan, 1973‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil Service‑‑‑Petitioners services were terminated under a notification of Provincial Government by the Authorities without holding inquiry‑‑‑Subsequent notification by the Provincial Government directed the reinstatement of the said petitioners‑‑‑Petitioners, however, were not reinstated by the Authorities, therefore, they had filed a Constitutional petitions in that regard which were accepted and they were ordered to be reinstated‑‑‑Petitioners were though reinstated but they were refused payment of back‑benefits of the intervening period prior to their re‑instatement‑‑‑Contention of the petitioners that their services were terminated without assigning any reason and it was found that this action was illegal, therefore on their re­instatement they were entitled to the back‑benefits as they were not employed anywhere during the intervening period‑‑‑Validity‑‑‑Mere non­-mentioning of the payment of back‑benefits in the earlier orders passed by the High Court on the Constitutional petitions for re‑instatement filed by the petitioners was not sufficient to disallow the petitioners the back­-benefits as the termination orders passed against them were declared as illegal‑‑‑Authorities in circumstances were duty bound to make the payment of back‑benefits to the petitioners as their services were terminated not due to their fault, but the respondents were responsible for their illegal termination for a certain period.

General Manager National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 and PLJ 1973 SC 377 Distinguished.

Muhammad Iqbal Abid Chaudhry for Petitioners.

Ch. Muhammad Rafiq, for Respondents.

2004 P L C (C.S.) 1041

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASIF

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.536 of 2003, heard on 29th September, 2003.

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Selection against advertised post of Deputy Director Finance (BS‑18)‑‑‑Non‑awarding to petitioner two marks for additional qualification and five marks for training in relevant field from recognized institute‑‑‑Validity‑‑‑According to Recruitment Rules; two marks were to be awarded for each extra course subject to maximum of six marks‑‑‑Advertisement had mentioned that holder of either degree of MBA (Finance), M.A. (Economics), Chartered Accountant and MBA/M.A., Economics was eligible for appointment‑‑‑Petitioner having degree of MBA (Finance) and M.A. (Economics) would certainly be holding an additional qualification, thus, would be entitled to two marks permissible under the Rules‑‑‑Petitioner had filed training certificate in computer software courses‑‑‑Position of petitioner would come at number one on merits after addition of such seven marks‑‑‑Respondent being Chartered Accountant, would not stand on higher pedestal as all such four qualifications were at par‑‑‑Respondent had not taken over the charge‑‑‑Department had not considered matter in true spirit of judgment reported as 2003 SCMR 291‑‑‑High Court accepted Constitutional petition with direction to department to consider matter after adding two marks for additional qualification and getting verified training certificate and finding same to be in accordance with Rules, add five more marks to petitioner's tally.

Dr. Naveeda Tufail and 75 others v. Government of Punjab and others 2003 SCMR 291 rel.

Fiaz Ahmad Jandran for Petitioner

Col. Sajjad Akhtar for Respondent No.3.

Date of hearing: 29th September, 2003.

2004 P L C (C.S.) 1061

[Lahore High Court]

Before Muhammad Khalid Alvi, J

TAHIRA PARVEEN

Versus

DISTRICT EDUCATION OFFICER (W.E.E.) WOMEN ELEMENTARY EDUCATION, MULTAN and another

Writ Petition No.5370 of 2003, decided on 19th April, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Civil service‑‑‑Appointment on temporary basis‑‑‑Payment for period of maternity leave‑‑‑Petitioner who was appointed as Elementary English Teacher on temporary basis, availed maternity leave for number of months, but said period of leave was treated by the Authority as without pay‑‑Petitioner was in Government service since 1995 and service structure of category of employees in which petitioner fell, had not been framed by Authority‑‑‑Employees who though were inducted on temporary basis, but neither were removed nor any specific order of confirmation was passed with respect to their job, should be deemed to have been regularized‑‑‑Till such time competent Authority would frame service structure regarding petitioner's category, she was entitled to receive pay for period of maternity leave‑‑‑Authority, however would be at liberty to raise any claim against petitioner after confirmation of service structure, if it was so determined that petitioner was not entitled to such leave.

C.Ps. Nos. 127, 4178, 4179 and 4180‑L of 2002 ref.

Muhammad Tariq Rajwana for Petitioner.

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

2004 P L C (C.S.) 1081

[Lahore High Court]

Before Sh. Hakim Ali, J

Mst. RIFFAT NAHEED, LADY MEDICAL TECHNICIAN

Versus

DISTRICT HEALTH OFFICER, BAHAWALPUR and 2 others

Writ Petitions Nos.5243‑S and 5786‑S of 2000/BWP, decided on 23rd October, 2003.

(a) Civil service‑‑‑

----Award of advance increments‑‑‑Withdrawal of and recovery of amount of such increments‑‑‑Rule of locus poenitentiae‑‑‑Applicability‑‑­Employees were awarded four increments on account of their acquiring higher educational qualifications during service‑‑‑Said increments were subsequently withdrawn and amount so received by employees was ordered to be recovered from them‑‑‑Order recovering amount of increments from employees was passed on the ground that they had not improved their qualifications in the field in which they were posted but in the other fields and improvement of qualification in another branch of education would not entitle them to claim and retain advance increments received by them‑‑‑Validity‑‑‑Increments were granted to employees long before issuance of letter which enjoined that advance increments would be permissible only if higher qualification would be obtained in relevant field in which employees were posted‑‑‑Bona fides of employees could not be doubted in the receipt of increments and in such cases where bona fide belief of employee could not be disproved, Department could not be allowed to retrieve the amount paid as advance or as increments to the employees‑‑Even otherwise rule of locus poenitentiae was fully applicable to the, facts and circumstances of the case of employees‑‑­Fault, if any, was of the Department which had not informed or acted promptly on the letter issued thereafter, by Finance Department‑‑‑Order recovering amount of increments from employee, was declared illegal, in circumstances.

Faiz Ahmad v. Chief Engineer, North and others in Civil Revision No. 383‑L of 1999; Muhammad Shakir and others v. Administrator District Council, Rajanpur 2002 PLC (C.S.) 302 and The Engineer in Chief Branch v. Jalal‑ud‑Din PLD 1992 SC 207 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑ Fiscal legislation‑‑‑Rule of interpretation in the matter of fiscal legislation, statutes, memos, letters, circulars was that same were to be interpreted in such a way as to grant more benefits to the subjects/employees than the Government because those were persons who were hard hit by financial worries and the problems and employees should not be made to suffer for the fault of department.

Muhammad Shamshir Iqbal Chughtai for Petitioner.

Ahmad Mansoor Chishti, A.A.‑G. for Respondent.

Date of hearing: 23rd October, 2003.

2004 P L C (C.S.) 1089

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD HANIF and 11 others

Versus

GOVERNMENT OF PUNJAB, through Secretary (I&C) Services General Administration and Information Department, Lahore and 2 others

Writ Petition No.2116 of 2003, decided on 8th‑April, 2004.

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

‑‑‑‑S.4‑‑‑Rules of Business, (1974), Special Institutions, Item No.IV‑‑­Constitution of Pakistan (1973), Arts.25, 199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Terms and conditions of service‑‑‑Upgrading of post‑‑‑Bar contained in Art.212 of the Constitution ‑‑‑Applicability‑‑­Petitioners were Private Secretaries to Members Punjab Public Service Commission‑‑‑Grievance of the petitioners was that the post of Private Secretary to the Chairman Punjab Public Service Commission was upgraded from Basic Pay Scales 16 to 17, while the authorities declined to upgrade their posts‑‑‑Contention of authorities was that the present petition was not maintainable in view of bar contained under Art.212 of the Constitution as the matter pertained to terms and conditions of service‑‑‑Plea raised by the petitioners was that they had been discriminated as the other similarly placed employees had been upgraded‑‑‑Validity‑‑‑Petitioners were employees of Special institutions in terms of Rules of Business, 1974‑‑‑Even otherwise, the upgrading of post was not part and parcel of the terms and conditions of service‑‑‑As the post of Private Secretary to the Chairman Punjab Public Service Commission was upgraded, such .fact had brought the case of the petitioners in the area that the action of the authorities was hit by Art.25 of the Constitution‑‑‑No distinction existed qua the job of Private Secretary to the Chairman and Members of Punjab Public Service Commission‑‑‑Order passed by the authorities was set aside and High Court directed the authorities to pass necessary orders‑‑‑Petition was allowed accordingly.

Manzoor Hussain and others v. Province of the Punjab 1989 PLC'(C.S.) 42 and I.A. Sharwani's case 1991 SCMR 1041 rel.

(b) Public functionaries‑‑‑

‑‑‑‑Public functionaries are duty bound to act in accordance with law‑‑­Law means not only the statutory law but is also law declared by Superior Courts.

Obyar and another v. Federation of Pakistan PLD 1984, Lah 162 rel.

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

‑‑‑‑S.4‑‑‑Representation of employees, decision of‑-‑Principles‑‑Authorities are duty bound to decide the representations of employees with reasons.

Messrs Airport Support of Service v. The Airport manager Karachi 1998 SCMR 2268 rel.

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

‑‑‑‑Arts.189 & 190‑‑‑Judgment passed by Supreme Court is binding on each and every organ of the State.

(e) Administration of justice‑‑‑

‑‑‑‑ Nobody should be penalized by inaction of public functionaries.

Ahmad Lateef Qureshi's case PLD 1994 Lahore 3 rel.

Jarri Ullah Khan for Petitioners.

Muhammad Hanif Khatana, Addl., A‑G. with Abdul Razzaq Deputy Director Legal Punjab Public Service Commission Lahore and Tariq Mehmood Mirza S.O. (PC) F.D.

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2004 P L C (C.S.) 270

[Peshawar High Court]

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

IJAZ and 8 others

Versus

DISTRICT COORDINATION OFFICER LOWER DIR TIMERGARA and another

Writ Petition No.267 of 2003, decided, on 15th October, 2003.

(a) Civil service---

---- Appointment, withdrawal and cancellation of---Civil servants were duly appointed by Competent Authority, but during their training the appointment was cancelled without issuing them any show-cause notice and without affording them opportunity of hearing on ground that while appointing them Appointing Authority had not observed Recruitment Policy and codal formalities---Appointment orders were given effect and they were served cancellation order when they had joined training course---Authority could not show any Government Policy for recruitment which was allegedly violated by the Appointing Authority---Authority had not contended that civil servants were lacking requisite qualifications for their appointment--­Irregularity committed by Appointing Authority 'could not be made basis for rescission of appointment order and that too with retrospective effect when it had already been given effect to and acted upon by the parties---Orders canceling appointment orders, were struck down being illegal, unconstitutional and passed by Authority misusing its powers with direction to reinstate civil servants.

Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 SCMR 1124; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Mahmooda Begum v. District Magistrate, Sialkot and 2 others PLD 1991 Lah. 230 and Syed Muneeb Nazir Shah v. Azad Kashmir Government and others PLD 1985 Azad J&K 17 ref.

(b) Civil service---

---- Appointment and termination---Appointing Authority would apply its own independent mind in passing orders falling Within its authority--­Appointment or termination order of a civil servant could only be justified if found to have been passed by applying its own independent mind and not being influenced or pressurized by any external force.

Essa Khan for Petitioners.

Miss Mussarat Hilali, A.A.-G. for Respondents

Date of hearing: 15th October, 2003.

2004 P L C (C.S.) 278

[Peshawar High Court]

Before Shah Jehan Khan and Ijaz-ul-Hussan Khan, JJ

Dr. INAYAT-UR-REHMAN

Versus

CHIEF EXECUTIVE, KHYBER TEACHING HOSPITAL, PESHAWAR and 3 others

Writ Petition No. 1070 of 2002, decided on 28th October, 2003.

Constitution of Pakistan (1973)---

----Art.199--- Constitutional petition---Appointment---Petitioner had questioned appointment of respondent as Assistant Professor Paediatric Surgery being not qualified for said post for want of required experience and prescribed qualification as advertised---Respondent though lacked prescribed qualification, but Selection Committee after holding interview, placed the petitioner subsequent to the respondent on merit list and after accepting recommendation, respondent was issued appointment order and was placed at Serial No.1 on the merit list---Respondent allegedly qualified F.R.C.S., a Post-Graduate qualification in General Surgery whereas petitioner had qualified F.C.P.S. in Paediatric Surgery earlier to respondent---Respondent though had not worked as Senior Registrar, but he was awarded five marks- which could be awarded only to those candidates who had worked as Senior Registrar---Petitioner was serving as Acting Senior Registrar in Paediatric Surgery Department and despite being entitled to said five marks, was not granted the same--­Respondent was also illegally granted five marks for publication in the concerned specialty as principal author although he had no publication as principal author---Respondent was also illegally allotted 10 marks in interview which could be awarded to a candidate having qualified F.C.P.S. in the respective specialty with three years' experience, whereas he did not possess said experience in respective field--­Irregularities committed by Selection Committee in appointing the respondent, ignoring petitioner who was more qualified and experienced than the respondent were also pointed out by Head of Paediatric Surgery Department who was also member of. Selection Committee---Petitioner had qualified his M.B.,B.S. and had got Post-Graduate qualification of F.C.P.S. prior to respondent and petitioner was more experienced in the relevant respective field than the respondent---Petitioner, in circumstances, was more qualified in concerned specialty in the terms of advertisement while Post-Graduate qualification of respondent was not in respect of the subject of Paedriatric Surgery, but was in General Surgery---Respondent had failed to supply required certificates within prescribed period and even at the time of interview---Certificates of experience subsequently produced by respondent were also not acceptable as the same were not issued by the Heads of the Departments concerned---High Court accepting Constitutional petition directed Authority concerned to rescind appointment order of respondent and appoint the petitioner against advertised post of Assistant Professor who was fully qualified and eligible for the said post.

Abdul Maabood Khattak for Petitioner.

Mir Rahman for Respondent No. 1.

S. Shaukat Hayat for Respondent No.2.

Astaghfirullah for Respondent No.3.

Date of hearing: 29th July, 2003.

2004 PLC (C.S) 298

[Peshawar High Court]

Before Ijaz-ul-Hassan Khan, J

HASSAN KHAN MARWAT, INSPECTOR, POLICE DEPARTMENT, N.-W.F.P., PESHAWAR

Versus

INSPECTOR-GENERAL OF POLICE, N.-W.F.P. PESHAWAR and 3 others

Writ Petition No.427 of 2003, decided on 20th October, 2003.

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

----Arts.199 & 212---Constitutional petition---Maintainability---Civil service---Matter relating to terms and conditions of service---Promotion of the petitioners was held in abeyance till further order---Contention of the Authorities was that after a proper inquiry, the petitioner was found guilty of misconduct and major punishment had been suggested--­Validity---Subject-matter of the petitioner had nexus with the terms and conditions of civil servants---If the petitioner was aggrieved of denial of any term or condition to which he was entitled under the law, the proper remedy for him was to go to Service Tribunal---Bar existed under Art.212 of the Constitution against exercise of extraordinary jurisdiction of High Court under Art.199 of the Constitution---Matter related to terms and conditions of service, High Court declined to exercise Constitutional jurisdiction in favour of the petitioner---Petition was dismissed in circumstances.

Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Chairman, Central Board of Revenue and another v. Muhammad Malooh and 11 others 1999 SCMR 1540 and Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645 distinguished.

Ghulam Jilani v. Government of Punjab and others 1995 PLC (C.S.) 115 ref.

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

----Arts.199 & 2-12---Constitutional jurisdiction of High Court, exercise of---Civil service---Plea of the civil servant was that besides being a Court of law, High Court was a Court of equity also and where there was excess committed by Executive Authority, it must come to the 'aid of the victim ---Validity---Excess -of an authority could not go unnoticed the victim---Validity---Excess of an authority could not go unnoticed without a proper relief to a victim of it provided necessary jurisdiction was possessed by the Court---For the matters relating to terms and conditions of service, no such jurisdiction existed with High Court.

Khushal Khan for Petitioner.

Barrister Jehanzeb Rahim, A.-G. for Respondents.

Date of hearing: 20th October, 2003.

2004 P L C (C.S) 574

[Peshawar High Court]

Before Talaat Qayum Qurashi and Ijaz-ul-Hassan Khan, JJ

Syeda SHAHEEN BUKHARI

versus

UNIVERSITY OF PESHAWAR through Registrar and 4 others

Writ Petition N0.972 of 2002, decided on 11th November, 2003.

University of Peshawar Employees (Efficiency and Discipline) Statutes, 1977---

----Statutes. 6(b)(i), 15, 16, 17, 18 & 19---Constitution of Pakistan (1973); Art. 199---Constitutional petition---Imposition of penalty of reduction in. pay scale and transfer---Penalty of reduction in pay scale and transfer was imposed upon petitioner who was serving as Senior Mistress in School, after issuing her show-cause notice and holding inquiry against her on allegation that she was author/co-author of a news item in press allegedly published in order to impair the image and reputation of institution concerned---Allegation was totally denied by the petitioner and absolutely nothing was on file to prove that petitioner had a hand in the affairs and that she was author/co-author of article/news in question-.--Authorities in the absence of such evidence, had no legal justification to proceed against petitioner and pass impugned order against her---No action could be initiated against an employee on the basis of press reports as press reports without formal proof were not admissible in evidence and no reliance could be placed on the same--­Petitioner had been made victim of excesses on account of the activities of her husband who being a Senior Teacher remained vocal ab6ut the affairs of school and its management and had expressed his concern about its affairs---That fact was sufficient to exhibit mala fides on part of Authorities---Enquiry against petitioner was lingering on since 1997 and it was delayed unnecessarily without any legal justification---Said inquiry had been conducted in utter disregard to mandatory provisions of University of Peshawar Employees (Efficiency and Discipline) Statutes, 1977---Order passed against petitioner whereby she was downgraded was declared without lawful authority and of no legal effect and same was struck down by High Court with an order of restoration of original seniority, position and pay scale of service with all back benefits.

Muhammad Jamil Khan for Petitioner.

Muhammad Aziz Akhtar Chughtai for Respondents.

Date of hearing: 24th September, 2003.

2004 P L C (C.S) 604

[Peshawar High Court]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

Mian Syed ASHGAR SHAH

versus

UNIVERSITY OF PESHAWAR through Registrar and 4 others

Writ Petition'No.973 of 2002, decided on 11th November, 2003.

(a) University of Peshawar Employees. (Efficiency and Discipline) Statutes, 1977---

----Statutes 6, 15, 16, 17, 18 & 19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Compulsory retirement---Inquiry proceedings---Penalty of compulsory retirement was imposed upon the petitioner after charge-sheeting him and holding inquiry against him on certain allegations mainly on the ground that he being teacher had published an article in Press about school affairs---Office order whereby penalty of compulsory retirement was imposed upon the petitioner, was outcome of finding of unauthorisedly constituted Enquiry Committee which was not competent to do so---Authorities had taken adverse action against the petitioner besides incompetency of Enquiry Committee and its findings were based on unfounded allegations and charges and there could be no infrastructure on such a shaking foundation---Petitioner was victimized on allegation that he remained vocal about affairs of school concerned and its management and that he approached the Press in order to malign the image and reputation of the institution---Nothing was in evidence to substantiate charges against the petitioner---No legal evidence of publication of alleged article/news„ by petitioner was forthcoming---No action could be initiated against employee of University on basis of Press reports as Press reports without formal proof were not, admissible in evidence and no reliance could be placed on the same as Press reports were treated as hearsay evidence without formal proof---University employees against whom allegations were alleged, were entitled to controvert the truth of news item by filing are affidavit when called upon to explain---Petition was lingering on since 1977 without any substantial progress and petitioner was made to suffer without any fault on his part which delay spoke of mala fides and inimical attitude towards petitioner---Such conduct/proceedings thus could not be approved by law and rules on the subject---Petitioner had not been fully associated with enquiry proceeding, which even was held by Enquiry Committee , which, had no jurisdiction to hold the same---Petitioner was condemned unheard and no material was available on record to prove complicity of petitioner in guilt---. Order imposing penalty of compulsory retirement on petitioner, was declared illegal by High Court in exercise of its Constitutional jurisdiction with order of -reinstatement of the petitioner with all back-benefits.

Alimuddin v. The State PLD 1982 Lah. 141 ref.

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

----Art.19q---Constitutional jurisdiction of High Court---Scope---High Court, besides being a Court of law, was a Court of equity also and where it would see excess being committed by an Authority, it must rescue the victim from it---Excess of an authority could not go unnoticed without a proper relief to a victim of it.

Muhammad Jamil Khan for Petitioner.

Aziz Akhtar Chughtai for Respondents:

Date of hearing: 24th September, 2003.

2004 P L C (C. S) 626

[Peshawar High Court]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, .IJ

IKRAMULLAH SAEED

versus

CHIEF SECRETARY GOVERNMENT N.-W.F.P: PESHAWAR and 3 others

Writ Petition No. 53 of 2003, decided on 25th September, 2003.

(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Appointment--- In response to an advertisement made in Press by Public Service Commission for the post of Assistant Information Officer, petitioner who was fully qualified for the said post applied for the same--- Petitioner who, after qualifying test, was placed on top of merit list was selected, but despite recommendation of Public Service Commission, petitioner was refused to be appointed on the ground that according to circular issued by Government all existing posts stood abolished and that there was complete ban on filling up fresh posts--­Petitioner having qualified competitive examination and secured first position, a valuable right had accrued to him of which he could not be deprived by Government for no just cause---If right had vested in due course of time to any citizen, he could not be deprived of same later on---Authority in case had no legal justification to deny petitioner' the relief claimed by him---Personal right of petitioner having been involved, he had the locus standi---High Court in exercise of its Constitutional jurisdiction directed the Authorities to implement recommendation of Public Service Commission with regard to appointment of petitioner on the recommended post.

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

----Art.199---Constitutional jurisdiction of High Court---Scope- -Writ could not be issued in vacuum---Such was a discretionary relief to be given by Courts based on grounds which were serious, solid, cogent, specific and reasonable---Person approaching Court must have a bona fide claim and direct personal interest in the act which. he challenged before his prayer for judicial review was entertained---Discretionary relief under Constitutional jurisdiction, could only be claimed by a person having a bona fide claim and coming to the Court with clean hands for enforcement of a legal right in a lawful manner---Writ jurisdiction conferred upon High Court .by the Constitution was discretionary in nature, but the right to apply for writ, certainly was not a privilege, on the contrary, it was of most valuable right that could be conferred upon a citizen.

Ruhul Amin for Petitioner.

Ms Musarrat Hilali, A.A.-G. for Respondent.

Date of hearing: 25th September, 2003.

2004 P L C (C.S.) 864

[Peshawar High Court]

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

Maj. (Retd.) ABDUL SALAM

Versus

GOVERNMENT and others

Writ Petition No.608 of 2003, decided on 27th January, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Enforcement of contract‑‑‑Services of petitioner were retained under agreement arrived at between petitioner and Government and said agreement was in the form of a contract between petitioner and the Government providing contractual appointment of petitioner‑‑‑Such a contract could not be enforced through Constitutional petition‑‑‑Resolving of controversy, whether the status of petitioner was contractual, temporary or, regular, involved determination of factual facts particularly with reference to various orders/notifications of Government and the agreement in that regard‑‑‑Constitutional petition, in circumstances was not maintainable‑‑­Petitioner, however, could approach the competent forums for redress of his grievances, if law so permitted.

Q.M. Anwar for Petitioner.

Sardar Shaukat Hayat, A.A.‑G. for respondents Nos. 1 to 3.

S. Sardar Hussain for Respondents Nos. 4 and 5.

Asif Shah for Respondent No.6.

Date of hearing: 15th January, 2004.

2004 P L C (C.S.) 884

[Punjab Subordinate Judicial Service Tribunal]

Before Justices Muhammad Akhtar Shabbir; Chairman, Mian Hamid Farooq and Sh. Abdur Rashid, Members

GHULAM ABBAS KHOKHAR

Versus

LAHORE HIGH COURT, LAHORE through Registrar and another

Service Appeals Nos.35 and 53 of.2002, decided on 29th January, 2004

(a) Civil service-----

--------Adverse remarks in A.C.R.‑‑‑Validity‑‑‑In absence of any allegation Officer or Countersigning Officer about their mala fides and their own reputations, their assessment as‑to performance of their subordinates would be accepted.

F.Q. Matiullah Khan Alizai v. Chief Secretary; Government of N.‑W.F.P. and 5 others 1994 SCMR 722. and Lahore High Court through Registrar v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 rel.

(b) Punjab Subordinate Judiciary Service Tribunal, Act (XII of 1991)‑‑‑

‑‑‑S.4‑‑‑Punjab Estacode; Vol. I, Instruction. No. 36‑‑‑Appeal‑‑‑Adverse remarks recorded in A.C.R. of Judicial Officer with regard to his integrity ‑‑‑Expunction of‑‑‑Dismissal of representation by Administrative Committee of High Court‑‑‑Validity‑‑‑Reporting Officer had made such remarks in detail levelling clear allegations of corruption and inefficiency‑‑‑Appellant had been advised time and again, but had failed to improve himself‑‑‑Reporting Officer had scrutinized work of appellant keeping closely an eye on his conduct, and work‑‑‑Adverse remarks recorded by Reporting Officer had been endorsed. by Countersigning Officer‑‑‑No allegation had been made against Reporting Officer or Countersigning Officer about their, malafides and reputation‑‑­Administrative Committee of High Court was not bound to assign reasons while rejecting representation of appellant‑‑‑Appellant when confronted with such remarks could not rebut same‑‑Service Tribunal dismissed appeal.

F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.‑W.F.P. and 5 others 1994 SCMR 722 and Lahore High. Court through Registrar v. ‑Muhammad Jahangir Khan Goraya 1999 SCMR 2117 rel.

(c) Civil service‑‑‑

‑‑‑‑‑Annual Confidential Report‑‑‑Evaluation of Subordinate Officer by Reporting Officer or Countersigning Officer‑‑‑Validity‑‑‑Subjective and objective evaluation‑‑‑Distinction‑‑‑Interference with such evaluation by Service Tribunal or Court‑‑‑Scope‑‑‑Principles stated.

Evaluation of a subordinate ‑ by a Reporting Officer or Countersigning Officer is a matter of subjective assessment and not an objective evaluation.' Service Tribunal or the Court as a rule can neither substitute the view recorded by Reporting Officer or Countersigning Officer nor will interfere with such evaluation.

An impartial and unambiguous evaluation based on credible information, personal observations and reports of Inspecting Judges falls within the ambit of an objective evaluation. In other words, an evaluation can be termed as objective, if it is unambiguous, impartial, un‑biased, result of careful consideration, based on credible information, personal observation of Reporting Officer or Countersigning Officer and reports of the inspection Judges. It is not necessary that it must be based on tangible material like complaints in writing; resolutions of Bar Associations, transfer applications and assets etc.

Inspector General of Police Punjab, Lahore v. Rana Altaf Majid 1994 SCMR 1348 and Shaukat Javed Farooqi Under Secretary Civil. Secretariat Lahore v. District and Sessions Judge Lahore and another 1999 SCMR 2141 fol.

(d) Civil service--------

‑‑‑‑Annual Confidential Report‑‑‑Adverse remarks with regard to integrity of an Officer‑‑‑Proof‑‑‑Such adverse remarks would be made on the basis of his reputation‑‑‑Such remarks, if were required to be supported with tangible material and instances of corruption, then there would be no difference between ACR and Enquiry Report under Efficiency and Discipline Rules.

(e) Civil service--------

‑‑‑‑Adverse remarks in A.C.R. of Subordinate Judicial Officer Representation of Administrative Committee of High Court for expunction of adverse remarks‑‑‑Mode of decision by Administrative Committee outland.

The representation of a Judicial Officer when placed before the Administrative Committee, it is always thoroughly examined by a Sub­ Committee constituted by the Administrative Committee and on the basis of report of Sub‑Committee as well as taking into consideration the allegations levelled by the Reporting Officer, the final order is passed by the Administrative Committee. The Administrative Committee of High Court. consists of seven Senior Judges including the Chief Justice of High Court and the said Committee is never required to assign reasons while rejecting the representation of a Judicial Officer.

Muhammad Rashid Bhatti and Muhammad Farooq Chishti for Appellant (in S.As. Nos.53 and 35 of 2002).

Azam Rasool for Respondents.

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2004 P L C (C.S.) 183

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman, Iftakhar-ul-Islam, Member-I and Mrs. Syeda Tahira Safdar, Member-II

Syed AKBAR SHAH and 4 others

Versus

GOVERNMENT OF BALOCHISTAN through MEMBER, BOARD OF REVENUE, BALOCHISTAN, QUETTA and 15 others

Second Appeal No. 1 of 1994, decided on 3rd July, 2003.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979-----

----R.3---Balochistan Service Tribunals Act (V of 1974), S.4--­Appointment and promotion---Civil servants in the present case were working as Sub-Inspectors in Excise and Taxation Department, while as per Balochistan Excise and Taxation Department (Grades 1 to 15) Service Rules, 1982, Government had decided in 1984 that recruitment of Excise and Taxation Inspectors would be made in proportion of 25% by initial recruitment, 65% by promotion on basis of seniority-cum ­fitness from Sub-Inspectors having five years' experience, while remaining 10% by selection on merits amongst members of service holding post of Sub-Inspectors with outstanding record---Authority without considering said Rules appointed respondents/opposing civil servants as direct recruits on posts included in promotion quota and appellants/civil servants, who were eligible for promotion were ignored and were not even considered for promotion which was seriously unjustified act---Civil servants though could not claim their promotion on higher posts as a matter of right, but when a quota was fixed for promotion under Rules, it was their right to be considered first for the same and Authorities were bound to consider eligibility of civil servants for said-promotion ---No explanation had come on record from the side of Authorities showing the reason for which Authorities had exceeded the fixed quota and utilized same for direct recruitment of opposing civil servants which had shown gross negligence on part of Authorities and violation of Rules---Conduct of Authorities was highly objectionable as it had not only created hardship, mentally and financially for civil servants, but also had created dis heartedness in them, which was unfortunate--­Appointment of respondents/opposing civil servants, were declared to have been made in excess of quota and Authorities were directed to consider case of civil servants who had been deprived of their right of promotion---Was further directed that quota fixed for promotion should be exhausted first, and thereafter, quota for initial appointment should be utilized and thus case of civil servants be placed before Departmental Selection Board for consideration of their promotion.

H. Shakil Ahmad, Advocate.

Syed Ayaz Zahoor, Advocate.

M. Ishaq Notazai, Advocate.

M. Sulahuddin Mengal, A.-G.

Date of hearing: 22nd May, 2003.

2004 P L C (C.S.) 732

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman and 2 Members

Dr. AKHTAR HAMEED KHAN

Versus

GOVERNMENT OF BALOCHISTAN and others

Service Appeal No. 100 of 2000, decided on 4th September, 2003.

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992‑‑‑--

‑‑‑‑Rr.2, 3(c), 4 & 6‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Removal from service‑‑‑Appeal‑‑‑Civil servant who applied for three years extraordinary leave without pay, was removed from service after charge‑sheeting him and holding inquiry against him on allegation that he wrote a letter to a Japanese company wherein he recommended to said company for availing services of three firms in Pakistan in which his wife was a partner‑‑‑In two inquiries held against the civil servant, Inquiry Officers recommended that inquiry proceedings against the civil servant be dropped and that he should be exonerated from charges against him as the said charges could not be established‑‑‑On said recommendations, Departmental proceedings were dropped against civil servant by Authorized Officer and extraordinary leave was granted to him‑‑‑Subsequently a show‑cause notice was issued to civil servant in respect of same charges, and Authorised Officer withdrew order exonerating civil servant from said charges‑‑‑Leave granted to civil servant was withdrawn and he was directed to report to the Department and thereafter civil servant was removed from service‑‑‑On same allegation, a criminal case was registered against civil servant, but he was acquitted from the charges by competent Court‑‑‑Even if civil servant had written a letter to Japanese company recommending to deal with firms in which his wife was partner, said act of civil servant would not constitute an offence under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992‑‑‑In earlier two inquiries civil servant was exonerated from the charges against him as allegations alleged against him were not established‑‑‑Nothing was on record to indicate as to how previous proceedings held by Inquiry Officers in which civil servant was exonerated were void and withdrawal order was issued by incompetent officer‑‑‑Subsequent third inquiry held against civil servant was illegal void and against the Rules because civil servant had been exonerated in earlier two inquiry proceedings and no ground had come on record for re‑opening the matter when no illegality or irregularity had been pointed out in two earlier inquiries‑‑‑Civil servant, in appeal, had prayed that order of his removal from service be declared null and void and that his application for resignation be accepted‑‑‑Order removing civil servant from service was set aside and case was remanded to the Authority to consider whether his resignation be accepted or he be reinstated in service.

H. Shakil Ahmed for Appellant.

Ghulam Mustafa Mengal, A.A.‑G. for respondents.

Date of hearing: 20th March, 2003.

2004 P. L C (C. S.) 765

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman and 2 Members

ABDUL KHALIQ

Versus

GOVERNMENT OF BALOCHISTAN

Service Appeal No. 1 of 1999, decided on 4th September, 2003.

Balochistan Civil Servants Act (IX of 1974)‑‑‑--

‑‑‑‑S.8‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Balochistan Forest Department (Grade 1 to 15) Service Rules, 1983‑‑Rr.3(3), 5 & 7‑‑‑Seniority‑‑‑Entitlement‑‑‑Appeal‑‑‑Appellants and respondent were serving as Deputy Rangers, Wildlife in Forest Department‑‑‑Respondent resigned from his service and his resignation was accepted‑‑‑Subsequently representation made by respondent against his resignation, was accepted and he was reinstated in service after more year from the acceptance of his resignation‑‑‑In seniority list issued by Department, appellants were placed junior to the said respondent and appellants being aggrieved from the same had filed appeal‑‑‑After acceptance of resignation of respondent he being no more in service, there was no question for recalling his resignation and reinstating him in service‑‑‑Even if respondent was inducted in service, it could not have been done with retrospective effect placing him senior to the appellants‑‑‑At the most his appointment could have been made afresh one‑‑‑Appointment of respondent as Deputy Ranger being against Rr. 3(3), 5 & 7(1) of Balochistan Forest Department (Grade 1 to 15) Service Rules, 1983 was without jurisdiction, coram non judice and without legal effect‑‑‑Allowing appeal, appellants were placed senior to the respondent‑‑‑Since appointment of respondent after acceptance of his resignation was ab initio void, and against Service Rules, was same without any legal effect‑‑‑Case was remanded to re‑consider the appointment of respondent whether he had been, reinstated in service‑ legally or otherwise‑‑‑Impugned seniority list was ordered to be corrected by placing names of appellants at proper place.

Nurul Haq v. Islamic Republic of Pakistan through Secretary, Establishment Division and another PLD 1984 SC 75 ref.

Malik Sher Muhammad for Appellant.

Ghulam Mustafa Mengal, A.A.‑G. and Malik Manzoor Ahmed for respondent.

Date of hearing: 20th March, 2003.

2004 P L C (C. S.) 776

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman and 2 Members

RASHID AHMED BALOCH

Versus

GOVERNMENT OF BALOCHISTAN

Service Appeal No.54 of 2001, decided on 4th September, 2003.

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992‑‑‑--

‑‑‑‑Rr.2(1)(b), 4(b)‑iv, 5(1) & 7(8)‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Appellant was dismissed from service after charge‑sheeting him and holding inquiry against him on allegation of misconduct‑‑‑Appellant at the relevant time was serving as "Acting Superintending Engineer" (B‑19) and the Authorised Officer in his case was Chief Secretary, who was only competent to issue charge‑sheet to appellant, whereas charge‑sheet was issued by Secretary who was not authorised under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 to issue charge‑sheet‑‑­Inquiry Officer had to be an officer senior to him, but in the case. of appellant Inquiry Officer was an Officer who himself was holding post of Acting Superintending Engineer‑‑Since inquiry had been conducted by an incompetent officer, the entire proceedings were liable to be vitiated‑‑­Order regarding dismissal of appellant based upon proceedings be incompetent officer was set aside and appellant was reinstated in service‑‑‑Matter was remanded to Department , for proceeding against appellant strictly in accordance with Rules, if so required.

Malik Manzoor and M.A. Chishti for Appellant.

Ghulam Mustafa Mengal, A.A.‑G., for Respondent.

Date of hearing: 3rd July, 2002.

2004 P L C (C.S.) 267

[Subordinate Judiciary Service Tribunal Punjab]

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

MUHAMMAD MASUD UMAR KHAN

Versus

THE LAHORE HIGH COURT, LAHORE and another

Service Appeal No.96 of 2001, heard on 25th July, 2003.

Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S.5---Punjab Civil Servants Act (VIII of 1974), S.12---Compulsory retirement---Civil servant serving as Additional District and Sessions Judge, was compulsorily retired from service after issuing him show­ cause-notice on allegation of adverse remarks in some of his A.C.Rs--­Remarks in certain A.C.Rs of civil servant were not treated as adverse, but were treated as advisory---Civil servant, during the period of service in which alleged adverse remarks were given against him, was promoted as Senior Civil Judge and then as Additional District and Sessions Judge which would mean that said report was not found to be an impediment in the way of promotion of civil servant---With regard to observations made against civil servant by Appellate Court concerning bail cancellation applications it had been confirmed by Authority on a representation of civil servant that same were also treated as advisory in nature and not adverse--Services of civil servant, in circumstances, could not be dispensed with in terms of S.12 of Punjab Civil Servants Act, 1974--Order of compulsory retirement of civil servant was set aside, in circumstances.

Principal, Government Girls College, Thana Malakand Agency (now at Saidu Sharif, Swat) v. Mrs. Bilquis Begum 2003 PLC (C.S.) 187 ref.

Saeed Ansari for Appellant.

Malik Muhammad Azam Rasool for Respondent No. 1.

Nayyar Iqbal Ghauri for Respondent No.2, Date of hearing: 25th July, 2003.

2004 P L C (C.S.) 390

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman and Ch. Muhammad Sarwar, Member‑I

Mst. NAZIA ANJUM and another

versus

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

Appeals Nos.2425 and 2442' of 1999, decided on 28th January, 2002

Civil service‑‑‑

‑‑‑‑ Removal from service‑‑‑Reason for removal from service as given in the show‑cause notice was that the appointment was false, while in the removal order reason for removal was stated to be the submission of wrong domicile and delayed Medical Certificate by the civil servant‑‑‑, Reason of removal of another civil servant as given in show‑cause notice was that her appointment was fake, while in ‑the order of removal of service it was stated that her result of B.A., B.Ed. 'was declared subsequent to her selection as Elementary .English Teacher‑‑‑Different reasons, in circumstances, were given for removal of civil servants ,in show‑cause notices issued to them and in the orders of their removal‑‑­Both civil servants possessed requisite qualifications for appointment as Elementary English Teacher‑‑‑Submission of Domicile Certificate, and B.A., B.Ed. degree, etc. which otherwise were correct and were not proved to be tampered with, though late and after their appointment would not equip the Authority to take drastic action‑‑‑Reasons of removal of civil servants from service being not valid, order of their removal was set aside and they were ordered to be reinstated in ,service.

Pervaiz Inayat Malik and Muhammad Aslam for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondents.

Date of hearing: 21st January, 2002.

2004 P L C (C.S.) 392

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑I

ASIF JAVED and others

versus

SUPERINTENDENT OF POLICE, KASUR and others

Appeals Nos. 1141 to 1146 and 1473 of 2001, decided on 28th May, 2002.

(a) Police Rules, 1934‑‑‑

‑‑‑‑Rr.13.1 & 13.8‑‑‑Out of turn promotion‑‑‑Civil servants serving as constables were granted out of turn promotion to the rank of officiating head constables in their own pay and scale for their excellent performance‑‑‑Civil servants subsequently having been reverted to their substantive rank of constables, they had challenged their reversion contending that they had been granted out of turn promotion in accordance with policy promulgated by Inspector‑General of Police; that principle of locus poenitentiae was attracted in their case as order of their promotion had already been acted upon; that they had been subjected to discrimination and that they had been condemned unheard because no notice was served upon them before‑ passing the reversion order‑‑‑Contentions of civil servants were repelled because no Police Authority had arbitrary powers to grant out of turn promotion‑‑‑When a police official had performed some extraordinary act, he could be rewarded with cash or other material award; but , no Police Authority could be allowed to disturb the seniority of his colleagues because seniority was a vested right‑‑‑Policy letter whereby out of turn promotion was granted to civil servants subsequently was withdrawn‑‑‑Even otherwise any such letter could not supersede oT even substitute the substantive legislation available in form of Police Rules, 1934, which did not allow any out of turn promotion‑‑‑Illegal order once passed would not become irrevocable and a closed transaction‑‑‑No perpetual right could be derived on the basis of such an order‑‑‑Public Authority which could pass an order was empowered to rescind it‑‑‑Principle of locus poenitentiae as claimed by civil servants, was not attracted in their case, in circumstances‑‑‑Contention that civil servants had been condemned unheard as no show‑cause notice was issued to them before reverting them, was repelled because civil servants who were not entitled to out of turn promotion, could not seek protection of principle of natural justice‑­‑Civil servants had also not been subjected to discrimination‑‑‑In absence of any legal sanction in promoting civil servants out of turn, civil servants were rightly reverted.

PLD 1992 SC 207; 2000 SCMR 207 and 1998 SCMR 882 ref.

(b) Natural justice, principles of‑‑‑

‑‑‑‑Applicability‑‑‑Principles of natural justice could not be deemed to be of universal nature‑‑‑One had to establish that he had vested right to defend action contemplated against him before invoking principles of natural justice‑‑‑Where a claimant had no entitlement, he could not seek the protection of principles of natural justice.

Ch. Manzoor Hussain, District Attorney and Barkat Masih, Assistant for Respondents.

Date of hearing: 13th May, 2002.

2004 P L C (C.S.) 403

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman

MUHAMMAD ASHRAF

EXECUTIVE DISTRICT OFFICER (REVENUE), PAKPATTAN and others.

Appeal No. 1174 of 2002, decided on 10th September, 2002.

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

‑‑‑‑RA(b)(v)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Dismissal from service without holding inquiry‑‑‑Appeal to Service Tribunal‑‑‑Major penalty of dismissal from service was imposed on civil servant after issuing him show‑cause notice and charge‑sheeting him, but without holding enquiry against him on certain allegations‑‑‑First allegation against civil servant was that Patwari working under him had embezzled amount with his connivance or at least he was responsible for said embezzlement; second allegation against civil servant was with regard to his indifferent and arrogant attitude towards his officers and third allegation was his absence from duty ‑‑‑Validity‑‑‑Patwari's case had ended prior to issuance of show‑cause notice to civil servant and Patwari had returned alleged embezzled amount and he was imposed minor penalty of stoppage of increments for two years‑‑‑While the second charge against civil servant which was based on factual plane, should have been decided through a regular enquiry by examining witnesses, which was not done‑‑‑No proper adjudication in circumstances could have been made‑‑‑Absence of civil servant being for seven days, would not warrant imposition of major penalty of dismissal from service‑‑‑Order imposing said penalty was set‑aside and same was converted into stoppage of increment for three years‑‑‑Civil servant was reinstated in service.

Dr. Ehsan‑ul‑Haq Khan for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent

Date of hearing: 4th September, 2002.

2004 P L C (C.S.) 415

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

MUHAMMAD SIDDIQUE

versus

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

Appeal No.2393 of 2002, decided on 8th August, 2002.

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

‑‑‑‑R.4(1)(b)(iv)‑‑‑Dismissal from service‑‑‑Civil servant serving as A.S.‑I. Police was dismissed from service after holding inquiry against him on allegation of receiving illegal gratification‑‑‑Inquiry was initiated on a complaint of a poor Tan whose wife and children were abducted‑‑­Complainant had alleged that he went to police station to get a case registered for said abduction, but he demanded bribe from him and that complainant had to sell his household articles and two bulls to make the payment of demanded bribe to civil servant in connection with the recovery of his wife and children‑‑‑Inquiry was properly held against the A.S.‑I. by a DSP Police‑‑‑Civil servant was granted time and opportunity to join enquiry proceedings by DSP and notices were properly served upon him, but he did not attend the inquiry proceedings which were concluded on merits in the light of available record­-Accused Official also did not appear before the Authority despite notice which had been received by his family‑‑‑Civil servant being a member of disciplined force, could not be absent at his whim‑‑‑Allegation on basis of which he was dismissed from service having fully been proved, order of his dismissal being proper could not be interfered with.

2002 SCMR 805; PLJ 2002 Tr.C. (Services) (sic) 161; PLJ 2003 Tr.C. (Services) 1 ref.

Pervaiz Inayat Malik for Appellant.

Malik Muhammad Yasin, District Attorney and Muhammad Yousaf, IL, DR for Respondents.

Date of hearing: 22nd July, 2002.

2004 P L C (C.S.) 446

[Punjab Service Tribunal]

Before Justice (Recd.) Riaz Kayani, Chairman, ABDUL HAMEED

versus

SECRETARY GOVERNMENT OF THE PUNJAB, AGRICULTURE

DEPARTMENT, LAHORE and others

Appeal No.604 of 2003 decided on 2nd June, 2003.

(a) Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Civil servant was inducted in service as Water Management Officer in B.S‑17 on ad hoc basis‑‑‑Tenure of ad hoc appointment was extended by Authorities from time to time and civil servant continued to work for about 14 years‑‑‑On closure of one of the Projects, certain posts were abolished and service of civil servant was unceremoniously terminated with immediate effect practising rank discrimination because some of civil servants, who were also appointed on ad hoc basis, but were junior in service to civil servant, were retained violating principles of equity‑‑‑Either principle of last come first go should have been applied or all ad hoc appointees had to meet the same fate which was meted out to civil servant‑‑‑Civil servant admittedly ranked senior to other, civil servant who had been retained‑‑‑Order terminating service of civil servant was set aside with direction to Authority to take him back in service and that civil servant would continue in same capacity with all benefits.

(b) Civil service‑‑‑

‑‑‑‑ Ad hoc appointment‑‑‑Status‑‑‑Ad hoc appointee had to remain in office either for a specific period or till regular appointee would take his place‑‑‑Ad hoc appointment would not confer any right on any incumbent to continue endlessly.

Rao Javed‑ul‑Haq Khan for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Muhammad Ashraf, Superintendent, Department Representative for Respondent No.3.

Muhammad Naseem Akhtar, Deputy Director Agriculture, Jhang, Departmental Representative.

Date of hearing: 22nd May, 2003.

2004 P L C (C.S.) 463

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman and Sardar Alam Khan, Member‑I

TANVEER AHMAD and others

versus

DISTRICT EDUCATION OFFICER (M), SHEIKHUPURA and others

Appeals Nos. 1260 of 2001 and 383 of 2000, decided on 18th May, 2002.

Civil service‑‑

‑‑‑‑ Removal from service‑‑‑Civil servants, who had requisite qualifications, were inducted as P.T.C. teachers and they served for about three years, but were removed from service simply on the ground that their appointments were "bogus"‑‑‑No enquiry was held before their removal from service and in case of one civil servant even show‑cause notice was also not issued‑‑‑Bogus, fraudulent or forged appointment letter is that which is manipulated by forging signatures of the Appointing Authority or with connivance of Appointing Authority or by manipulation of record or by any other conceivable method, but no such detail was provided and Authority could not explain as to how appointments of civil servants were to be termed as "bogus"‑‑‑Charges brought against civil servants were on an absolute factual plinth which could only be resolved through a regular enquiry which was not held‑‑­Civil servants, in circumstances, had made out a case for interference‑‑­Order passed against civil, servants was set aside and they were reinstated in service with further direction to the Authority to hold de novo enquiry in accordance with law.

Gohar Rehman v. Health Department 2001 SCMR 1128 ref.

Dr. Ehsan‑ul‑Haq Khan for Appellants.

Khadim Hussain Sindhu, District Attorney and Allah Din Khan, Litigation Officer, Departmental Representative for Respondent No A.

Date of hearing: 13th May, 2002.

2004 P L C (C.S.) 470

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman and Ch. Muhammad Sarwar, Member‑I

MUHAMMAD RAFIQUE and 37 others

versus

DIRECTOR OF EDUCATION and others

Appeals Nos. 1556, 1589 to 1592, 1596 to 1599, 1743 to 1753, 1782, 1801, 1802, 1854, 1928, 1931, 1940, 1969, 1970, 1985, 2004, 2011, 2054, 2055, 2753 and 3648 of 1999 and 183, 853 and 3440 of 2000, decided on 11th February, 2002.

Civil service‑‑‑

‑‑‑‑ Removal from service‑‑‑Civil servants who were duly appointed as P.T.C. Teachers by District Recruitment Committee and had requisite qualifications, served for a number of years, but were removed from service abruptly without issuing them any show‑cause notice and without providing them opportunity of being heard, simply on the ground that their names were not included in the merit list and that they were appointed on political basis‑‑‑Assertions in such orders of removal were by way of cyclostyled orders signed in a mechanical manner and civil servants were not provided with chance to explain their position before the Authority in utter violation of rule of natural justice‑‑‑Question whether contents of appointment letters were correct or not or whether civil servants were appointed by putting pressure on Appointing Authority through political clout, was a matter which had to be resolved through a regular enquiry‑‑‑Having worked for a number of years without any complaint, civil servants had been vested with certain rights which at least extended to a right ‑ of show‑cause notice and an opportunity of hearing before Authority‑‑‑Orders of removal of civil servants passed by Authority were set aside and they were ordered to be reinstated in service.

2001 SCMR 1128 ref.

Ch.Muhammad Rafique Warraich, Malik Iftikhar Anwar, Ch.Tariq Javed, Zahid Ijaz Khan, Dr. Ehsan‑ul‑Haq, Ghulam Rasul Ch., Mian Muhammad Ashraf, Mian Bilal Bashir and S. Manzoor Hussain for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondents.

Date of hearing: 4th February, 2002.

2004 P L C (C.S.) 486

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

Syed HUSNAIN AAMER

versus

TEHSIL MUNICIPAL OFFICER, T.M.A., NAROWAL

Appeal No.2460 of 2002, decided on 15th July, 2003.

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

----S.3---Dismissal from service---Civil servant was dismissed, from service after holding inquiry against him on allegations of corruption, theft, misappropriation of fund, absence during his suspension and that his very appointment was irregular and against the prevailing rules--­Inquiry proceedings against civil servant were validly conducted and sufficient opportunity was given to civil servant in course of inquiry proceedings to defend .himself---Witnesses recorded their statements in the presence of civil servant---Civil servant, in circumstances, could not say that inquiry was conducted against him behind his back and that he was not associated with the same---Allegations of corruption, theft and misappropriation of fund were fully proved against civil servant---Civil servant though was initially acquitted in criminal case against him, but said acquittal was not on merits and criminal proceedings were also ordered to be restarted by Additional Sessions Judge-Contention of civil servant that when he was initially acquitted by Trial Court, then departmental proceedings could not be continued against him, was repelled in circumstances---Allegation against civil servant was that his very appointment was irregular and was made against prevailing rules--­Appointment of civil servant was made because 'his father, was. Chief Officer of the Municipal Committee otherwise civil servant being Matriculate 3rd Division; would have definitely been out if a proper competition was held to recruit civil servant as a Tax Clerk---Civil servant had not been able to quote even single 'instance in support of his bald allegation that Inquiry Officer or Authority was personally biased against him---No injustice having been done to civil servant, he was rightly dismissed from service.

PLD 2002 SC 13 and 1996 SCMR 1349, ref.

Muhammad Hanif Niazi for Appellant.

Rana Muhammad Yasin, District Attorney and Pervaiz Inayat Malik for Respondent. .

Date of hearing: 1st July, 2003.

2004 P L C (C. S.) 505

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. AZHAR IQBAL

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another

Appeal No.663 of 2003, decided on 2nd October, 2003.

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

----Rr.3, 4, 6 & 7---Removal from service---Civil servant was removed from service after charge-sheeting him and holding inquiry against him on allegations of his omission/commission in purchasing goods, which amounted to corruption and inefficiency and that he purchased goods at higher price than price prevalent in the market and also purchased certain goods without obtaining approval of the competent authorities--­Purchase Committee though comprised of co-ordinator alongwith three members, but civil servant being a member of said Committee very well knew that purchases were not sanctioned by the competent authorities--­Civil servant should have raised objection in the Committee meeting or on noting on file that such purchases were beyond competence of the Committee---Had said note been written by civil servant he being member of the Committee, deceitful intention on part of either the co­ordinator or any of the members including civil servant would have been numbed and huge loss would have been saved---Glaring fact that disputed purchases were made without authority and at exorbitant rates, could not be lost sight of---Signing of table of bid price by civil servant alongwith its co-ordinator and other member, had made civil servant responsible for such purchases and was liable under law---Charges against civil servant, in circumstances, had been fully proved---Argument of civil servant that he was one of the members of Committee and was acting under influence of its co-ordinator could not be a good defence for his exoneration from charges, but it could be a mitigating circumstance when considering the quantum of penalty imposed---Major penalty of removal from service was altered to penalty of one stage lower in time scale to run for four years---Loss of amount occurred due to unauthorized and at higher rate purchase, was apportioned equally to all members of the Committee.

Perviaz Inayat Malik for Appellant.

Khadim Hussain Sindhu, District Attorney, Muhammad Younas, Section Officer, L&DD Department, Dr. Arshad Mehmood, V.O. L&DD Department and Shahid Razaq, Litigation Assistant, L&DD Department for Respondents.

Date of hearing: 16th September, 2003.

2004 P L C (C.S.) 524

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-II, ABDUL REHMAN ZULFIQAR

Versus

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

Appeal No.2712 of 2002, decided on 6th February, 2003.

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

----Rr.3, 4 & 7---Dismissal from servile on allegation of misconduct--­Civil servant was dismissed from service after serving him show-cause notice, but without holding inquiry against him on allegation of misconduct---Allegations against accused were that he remained wilfully absent from duty; that he did not comply with relieving orders after his transfer; that he did not hand over valuable articles of school in spite of his transfer and that he used political pressure for cancellation of his transfer---Facts regarding alleged misconduct of civil servant were controversial and to resolve controversy about his wilful absence, regular inquiry could not have been dispensed with---Substantial opportunity was not given to civil servant to defend himself and he was not given even personal hearing before, passing dismissal order against him by the Authority---Allegations against accused were vague and non-specific--­Case was remanded to Authority for fresh proceedings against civil servant including regular inquiry on specific allegations---Order of dismissal passed against civil servant was set aside and he was reinstated to face fresh proceedings.

2000 SCMR 1868 ref.

Pervaiz Inayat Malik for Appellant.

Rauf Ahmad Insari, Litigation Officer D.R and Rana Muhammad Yaseen, District Attorney for Respondents.

Date of hearing: 6th February, 2003.

2004 P L C (C.S.) 549

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I and Muhammad Sarfraz Khan Jhawri, Member-II

Dr. ZAHEER-UD-DIN KHAN

Versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB and others

Appeal No. 1971 of 2002, decided on 30th April, 2003.

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

----S.7---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.8---Punjab Service Tribunals Act (IX of 1974), S.4--­Seniority; determination of---Appeal before Service Tribunal---Civil servant who initially was appointed as Lecturer in 1977, was selected as Assistant Professor in 1984 and finally was promoted as Associate Professor in accordance with seniority list against 70% quota of promotion through notification in 1990---Sound principle for determination of seniority had been enshrined in S.7 of Punjab Civil Servants Act, 1974 and R.8(2) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and according to said provisions of law seniority was to be determined from the dates of regular appointment of the direct selectees and dates of promotions of promotees and principle contained in said provisions of law was upheld by Supreme Court in its judgment reported as 1986 SCMR 898---Service Tribunal was not competent to lay any different principles for determination o seniority between the direct recruits and promotees---Promotees were rather to take precedence in seniority over direct recruits in terms of judgment of Supreme Court reported as 1990 SCMR 1623.-­Opposing/directly recruited Associate Professors who were appointed on recommendations of the Public Service Commission in 1995-96, did not exist at the time of promotion of civil servant in 1990 as Associate Professor anal thus could not be made senior to civil servant-- -Seniority was ,a vested right---Seniority of civil servant with effect from 1990 when he was promoted as Associate Professor stood determined in year 1990 and same could not be altered after 12 years---Reversal of seniority of civil servant was against principles of natural justice as he .was not given any personal hearing by concerned Authority before ordering alteration in seniority---Ex parte judgment passed against civil servant which was not judgment in rem was not applicable in case of civil servant---Order whereby seniority ,of civil servant was altered, was set aside.

1999 SCMR 1869; 1996 SCMR 1145; 1986 SCMR 898 and 1990 SCMR 1623 ref.

(b) Civil servant----

---Seniority---Seniority of a civil servant is a vested right.

Dr. Hameed.Ayaz and Rao Hashim Ali Khan for Appellant.

Rana Muhammad Yasin, District Attorney for Government.

Bhutta for Respondent No.56

Dr. Ehsan-ul-Haque for other Respondents.

Date of hearing: 16th April, 2003.

2004 P L C (C.S.) 580

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman, MUHAMMAD LATIF

versus

SECRETARY (SCHOOL EDUCATION), GOVERNMENT OF THE PUNJAB, LAHORE and others

Appeal No. 3069 of 2002, decided on 19th May, 2003.

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

----S.3(l)(e)---Removal from service---Civil servant was removed from service after issuing him show-cause notice and personally hearing him on the allegation that he was appointed out of merits on political basis--­Appointments on required posts were to be made after interviewing candidates who applied in response to advertisement by District Recruiting Committee, but, in the present case, appointment of civil servant was not in sequel to any advertisement as his name was not in the list of candidates who applied in time, but he, by using political clout, submitted ante dated application and got the appointment---Civil servant could be more qualified, but in order to make his appointment transparent, he had to compete, with the others---No injustice, in circumstances, had been done in case of civil servant as he was removed from service after providing him opportunity of personal hearing.

Dr. Ehsan-ul-Haque Khan for Appellant.

Khadim Hussain Sindhu for Respondent No. 1.

Sardar Ali, District Education Officer (M-EE), Sheikhupura, Departmental Representative for Respondent No.4.

Date of hearing: 14th May, 2003.

2004 P L C (C.S.) 650

[Punjab Service Tribunal]

Before Nasir Javed, Member

Mst. AFZAALA TABASSAM

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), NAROWAL and 2 others

Appeal No. 2091 of 2002 decided on 3rd June, 2003.

Civil service‑‑‑

‑‑‑‑Removal from service and cancellation of promotion‑‑‑Civil servant was appointed as P.T.C. Teacher on recommendation of District Recruitment Committee and subsequently was promoted to post of EST in Grade 9‑‑‑Civil, servant was removed from service and her promotion order was cancelled after about four years of her appointment without issuing her shoal‑cause notice and also without conducting regular inquiry against her‑‑‑Validity‑‑‑Authority must have looked into the matter through a regular inquiry as to whether appointment order as well as promotion orders of civil servant were genuinely issued by competent authorities‑‑‑Civil servant was also deprived of her right to file departmental appeal/representation as according to record, delegation of powers in respect of appointment of Appellate Authority had not been granted by Government to any other officer for the purpose‑‑‑If Appellate Authority did not exist at the time of filing of departmental appeal, civil servant was not to be blamed and she would not be refused to exercise her Constitutional and fundamental rights to prefer an appeal before Authority appointed for the purpose‑‑‑Orders passed against civil servant were set aside and s‑he was reinstated in service with immediate effect and her case was remanded to competent authority to hold a full ­fledged inquiry in respect of genuineness of, original as well as the order by which promotion of ,civil servant was withdrawn.

Pervaiz Inayat Malik for Appellant.

Mansoor Hussain Bhatti, D.A. for Respondents.

Date of hearing: 3rd June, 2003.

2004 P L C (C S.) 663

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman

MUHAMMAD ATTIQUR REHMAN QAMAR

Versus

ADMINISTRATION JUDGE through Registrar, Lahore High Court, Lahore and another

Appeal No. 297, of 2003, decided on 10th June, 2003.

Civil Service---

-----Promotion---Civil servant on two occasions was considered alongwith others for promotion on regular basis to the post of Stenographer in B.S. 15 but was declared unfit for promotion being inefficient for said post---Contention of civil servant that Departmental Promotion Committee had exceeded its power to order shorthand test and interview was repelled because Departmental Promotion Committee had power to evolve a criteria based on equity and justice to determine the fitness of a civil servant to a higher post particularly when the qualification of all contesting candidates was equal Shorthand test would resolve inherent strong point and merit of civil servant—No exception could be taken to procedure adopted by Authority.

Pervaiz Inyat Malik for Appellant.

Khadim Hussain Sindhu for Respondent No.2.

Malik Muhammad Azam Rasool for Respondent No.1

Date of hearing: 2nd June, 2003.

2004 P L C (C.S.) 668

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman

INAYATULLAH MALIK

Versus

GOVERNOR OF THE PUNJAB, and others

Appeal No. 1871 of 2002 dismissed on 9th April, 2003.

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

‑‑‑‑Rr. 3, 4(1)(b)(ii) & 5‑‑‑Compulsory retirement‑‑‑Civil servant who was serving as Sub‑Divisional Officer and was incharge of construction work, was imposed major penalty of compulsory retirement after charge­ sheeting him and holding inquiry against him on certain allegations‑‑‑One of the major allegations against him was that due to his poor management/planning, progress of construction work remained very slow and than despite written as well as verbal instructions, execution of work was not reasonably accelerated to bring it to safe limits and that cross 'band' constructed under his supervision was damaged during flood‑‑­Findings of Inquiry Officer with respect to said charge was based upon common sense and was appreciated‑‑Inquiry was conducted by Chief Engineer‑ who was an expert in that .field‑‑‑Report of Inquiry Officer had to be accepted being based on reasons acceptable to reasonable and prudent man‑‑‑Allegations against civil servant, having been proved and civil servant having caused huge loss to Government due to his poor management/planning, penalty of compulsory retirement was rightly imposed on him.

Rao Javed‑ul‑Haq Khan for Appellant.

Khadim Hussain Sindhu, District Attorney.

Muhammad Basit, Assistant, Departmental Representative.

Date of hearing: 9th April, 2003.

2004 P L C (C.S.) 688

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. YASMIN RASHID

Versus

CHIEF SECRETARY, GOVERMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE

Appeal No.467 of 2003, decided on 26th June, 2003.

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

‑‑‑‑Ss.2(b) & 3(b)‑‑‑West Pakistan Government Servants (Conduct) Rules, 1966, Rr.5‑B & 25(b)‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service after charge‑sheeting and holding inquiry against her on allegation of misconduct‑‑‑Charges against civil servant were that; she participated in a token hunger strike against Government Policies; instigated participants of hunger strike for starting country‑wide agitation against the Government Policies; instigated doctors and teachers to participate in agitational processions; made a statement during the hunger strike to observe country‑wide boycott of teaching in the Medical and Educational Institutions on scheduled date and creating law and order situation in teaching institutions and disturb the peaceful academic atmosphere‑‑‑Inquiry Officer examined only one witness who was a police officer, but civil servant was not allowed a chance to cross ­examine him‑‑‑Inquiry Officer had not given note at the conclusion of the enquiry that civil servant was allowed opportunity to cross‑examine witness but she allegedly refused to do so‑‑‑Civil servant admitted her participation in the assembly on relevant date, making a speech and observing hunger strike, but instigation the participants at the time of hunger strike for starting country‑wide agitation against Government Policies and other allegations against civil servant had not been proved through oral evidence‑‑‑Witnesses had not stated or clarified as to what were the anti‑Government slogans shouted by civil servant in an enthusiastic manner and no detail whatsoever was given about anti­ Government slogans‑‑‑Freedom of association, freedom of assembly and freedom of speech were fundamental rights which had been granted under the Constitution and such rights had to be liberally construed unless and until restrictions were placed on rational grounds relating to public welfare‑‑‑Allegations on basis of which civil servant was dismissed having not been proved against her, order of her dismissal was set aside and she was ordered to be re‑instated in service.

Government of N.‑W.F.P. through the Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104; 2003 PSC 61; Intisar Shamim Ahmad and another v. Secretary, Labour and Manpower, Government of Punjab Lahore and 2 others 1997 PLC (C.S.) 860 and Kameshwar Prasad and another v. The State of Bihar and another AIR 1962 SC 1166 ref.

(b) Words and phrases‑‑‑--

‑‑‑‑'Instigate', 'agitate' and 'instigation'‑‑‑Meanings explained.

(c) Evidence-----

‑‑‑‑Any statement or document intended to be used against accused, he/she must be confronted with the same so as to get an answer whether the contents were admitted or denied.

Mian Bilal Bashir for Appellant.

Khadim Hussain Sindhu, District Attorney and Dr. Sajjad‑ul-­Hassan, Director Law, Health Department, Departmental Representative.

Date of hearing: 23rd June, 2003.

2004 P L C (C.S.) 753

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑II

BADAR MUNIR ALAM

Versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, LAHORE

Appeal No.2607 of 1999 decided on 29th October, 2002.

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

‑‑‑‑S.2(1)(b)(ii)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Civil servant, determination of‑‑‑Appeal, maintainability of‑‑‑Appellant was appointed on contract and his services were terminated after a period of one month and twenty days only on serious charges of fraud and cheating‑‑‑Appellant who was appointed on contract and his contract having bean terminated because of cheating on his part only after few weeks of his appointment, could not be termed as `civil servant'‑‑‑Appeal filed by appellant against his termination was not maintainable in terms of S.2(1)(b)(ii) of Punjab Civil Servants Act, 1974.

Dr. Ehsan‑ul‑Haque Khan for appellant.

Nemo for Respondent.

Date of hearing: 23rd October 2002.

2004 P L C (C.S.) 762

[Punjab Service Tribunal]

Before Shafqat Ali Hijazi, Member

Sh. MUHAMMAD UMER and others

Versus

SUPERINTENDING ENGINEER, HIGHWAY CIRCLE, LAHORE and others

Appeals Nos. 2194, 2195 of 2001, 150 of 2002 and 299 of 2002, decided on 20th September, 2002.

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

‑‑‑‑R.4(1)(b)(iv)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Dismissal from service‑‑‑Appeal against‑‑‑Appellants against whom criminal cases were registered were tried by Summary Military Court and were awarded different punishments‑ ‑‑Appellants filed Constitutional petitions against their conviction orders‑‑‑During pendency of said Constitutional petitions, respondent Authority on basis of conviction, of appellant, proceeded against appellant and after issuing them show-cause notice in jail, dismissed appellants, from service carrying out Ex parte proceedings against them because they could not reply the show‑cause notice against them‑‑‑High Court accepting Constitutional petitions filed by appellants against their conviction, acquitted them holding that alleged offences against appellants having been committed beyond three years, trial of appellant by Summary Military Court was violation of Army Act ‑‑‑After said acquittal appellants filed Departmental appeals for their re‑instatement in service, but same having been dismissed; appellants had filed appeals before Service Tribunal‑‑‑Very ground on which appellant were dismissed from service having been declared unlawful by High Court against which no appeal had been filed by respondent Authority order of High Court had ­attained finality‑‑‑After final order of High Court, grounds of dismissal of appellants, having been cancelled, their dismissal order from service, would not stand‑Order, dismissing appellants from service, were set aside and they were ordered to be reinstated in ,service Intervening period was to be treated as leave of the kind due to appellants.

Dr. Ehsan‑ul‑Haque Khan for appellant.

Muhammad Aslam Awais, Distt, Attorney for Respondent.

Date of hearing: 18th September, 2002.

2004 P L C (C. S.) 978

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I, TAJ MUHAMMAD QURESHI, POOL OFFICER (RETD.) EX‑MCL CITY DISTRICT

GOVERNMENT, LAHORE

Versus

CITY DISTRICT GOVERNMENT, LAHORE through DISTRICT NAZIM, TOWN HALL, LAHORE and 2 others

Appeal No.699 of 2003, decided on 21st November, 2003.

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

‑‑‑‑‑Ss.3 & 10‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Appellant:, was dismissed from service after charge‑sheering him on certain allegations‑‑­Allegations though were very serious and an inquiry was also held according to which allegations were proved against him, but he having reached the age of superannuation was retired from service before service of charge‑sheet and before orders dismissing him from service were passed against him‑‑‑Retired employee of Corporation could not be dismissed as he was already out of service‑‑‑Punjab Removal from Service (Special Powers) Ordinance, 2000 would apply to existing personnel in Government and Corporation service and it was nowhere indicated in the said Ordinance that its provisions would also be applicable to those who had ceased to be in Government service or in Corporation service‑‑‑Accepting appeal order dismissing appellant from service was set aside.

1997 SCMR 343 ref.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin, District Attorney for Respondents.

Date of hearing: 13th November, 2003.

2004 P L C (C.S.) 988

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

ANSAR PERVAIZ and another

Versus

DISTRICT CO‑ORDINATION OFFICER, NAROWAL and 3 others

Appeals Nos.841 and 842 of 2003, decided on 27th October, 2003.

Civil service‑‑‑

‑‑‑‑ Removal from service‑‑‑Employees who were appointed as Dispensers against leave vacancies were kept serving for about 14/15 years‑‑‑ Employees were removed from service after serving upon them show‑cause notice on the ground that they having been appointed against leave vacancies, their services were liable to termination‑‑‑Employees though were appointed against leave vacancies and their services were liable to termination, but in that case, action should have been taken at the appropriate time after expiry of leave period‑‑‑Employees having been kept on serving for 14/15 years, they could not be removed from service arbitrarily‑‑‑Employees had concealed the fact, which they should have brought to the notice of concerned Authority, that their appointments were temporary and against leave vacancy, so that at the appropriate time action could have been taken to get their appointment regularized‑‑‑Appeals filed by employees were partly allowed to the extent that punishment of removal from service was converted into that of compulsory retirement w.e.f. the date the impugned orders of removal from services were passed against employees.

Pervaiz Inayat Malik for Appellants.

Rana Muhammad Yasin, District Attorney for Respondents.

Muhammad Akhtar Khan, L.O. on behalf of Respondent No.2.

Date of hearing: 27th October, 2003.

2004 P L C (C.S.) 1053

[Punjab Service Tribunal]

Before Mr. Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD ASLAM and another

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others

Appeal Nos. 1726 and 1727 of 2003, decided on 2‑12‑2003.

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

‑‑‑‑Ss.3 & 10‑‑‑Removal from service‑‑‑Appeal‑‑‑Appellants were removed from service after issuing them show‑cause notice, charge‑sheeting them and holding inquiry against them on certain allegations‑‑­Two prosecution witnesses were examined in inquiry proceedings against appellants to prove allegations against them‑‑‑Statements of said witnesses in the Enquiry Report were recorded and full opportunity was extended to appellants to cross‑examine said witnesses, which appellants had availed‑‑‑Not only the statement of appellants alongwith other appellants were recorded in detail, but each appellant was given a chance to cross‑examine other appellants‑‑‑Accused/appellants. were also given a chance to produce evidence, oral, or documentary in defence, which they declined and in token of its correctness, signed the order‑sheet‑‑­Allegations against appellants had fully been proved by evidence on record and no discrimination was practised against them‑‑‑Appeal brought by appellants was without merit, penalty of removal from service, however, was altered to compulsory retirement as the Authority had not been able to prove as to which of the two appellants was bribed, but it had certainly proved their connivance to manipulate an illegal order in appointment of one appellant.

Pervaiz Inayat Malik for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondents.

Miss Shama Zia, Law Officer, Education Department, Departmental Representative for Respondents.

Date of hearing: 18th November, 2003.

2004 P L C (C.S.) 94

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman and Muhammad Iqbal Kazi, Member, Mst. SHAMIM FATIMA

Versus

INSPECTOR-GENERAL OF SINDH POLICE and others

Appeal No.387 of 1999, decided on 28th August, 2001.

Civil service---

----Promotion---Civil servant was directly appointed as Lady Head Constable---Lady passed out usual Training Course and was promoted to the rank of Assistant Sub-Inspector and after passing required course was confirmed in the said rank and was also admitted to list `E' alongwith her other colleagues---Civil servant, after about one year from her confirmation in rank of Assistant Sub-Inspector, was demoted with retrospective effect---Departmental appeal against said demotion was rejected by the Appellate Authority---Evidence on record had fully established that she was promoted in accordance with settled procedure, rules, and on the basis of merits---Order of demotion of civil servant passed by Authority concerned in flagrant violation of principles of natural justice, equity and fair play, could not sustain being null and void ab initio---Authorities were directed to restore the status of civil servant conferred as lady Assistant Sub-Inspector from the date she was confirmed to that rank.

1990 SCMR 1414 ref.

Ansari Abdul Lateef for Appellant.

Muhammad Qasim Mirjat, A.A.-G. for the Official Respondents.

Date of hearing: 20th July, 2001.

2004 P L C (C.S.) 319

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza and Nur Ahmad Shah, Members

ATEEQ AHMED KHANZADA

Versus

THE SECRETARY EDUCATION

Appeal No. 340 of 1999, decided on 11th April, 2003.

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

‑‑‑‑S.4‑‑‑Appeal maintainability of‑‑‑Appeal was objected to by the Authority contending that appeal was not maintainable as prior to invoking the jurisdiction of Service Tribunal no departmental appeal was filed by appellant which was a condition precedent under S.4 of Sindh Service Tribunals Act, 1973‑‑‑Validity‑‑‑Though it was mandatory requirement of law that filing of Departmental appeal against original order was a condition precedent for invoking jurisdiction of Service Tribunal but it was not necessary that original impugned order must be in writing‑‑‑An order for the purpose of Service Tribunals Act could have many forms‑‑‑Such order could be a general order or it could be a .particular order directed against an individual and same could be a policy decision or it could be a decision of a particular, grievance or an order refusing to redress a grievance‑‑‑All such orders would affect the terms and conditions of service of civil servant and would qualify as Departmental orders ex facie, issued by the Authority within the Department empowered to do so‑‑‑Fact that no written order was passed by Department which prejudiced a civil servant, could not deprive civil servant for his right of filing appeal before Service Tribunal.

Muhammad Asar v. Islamic Republic of Pakistan 1987 PLC (C.S.) 432 and Muhammad Arshad Saeed, D.I.‑G. Police v. Government of Pakistan and others 1994 SCMR 1033 ref.

(b) Civil service‑‑‑

‑‑‑‑ Promotion, entitlement to‑‑‑Civil servant who joined Education Department as a graduate teacher, improved his academic qualification and obtained M.A. (Economics) IInd Division; B.Ed in IIIrd Division; and M. Ed in (B) Grade‑‑‑Civil servant was not considered to be promoted to post of Subject Specialist/Lecturer Higher Secondary School despite being qualified and eligible for the said post on the pretext that he did not possess B.Ed. Degree in IInd Division‑‑‑Civil servant possessed M. Ed. Decree which was higher in status than B. Ed. Degree‑­‑Civil servant, in circumstances, deserved to be considered for promotion to post of Subject Specialist.

M.M. Aqil Awan for Appellant.

Muhammad Qasim Mirjat, Asstt. A.G. for the Official Respondent.

Date of hearing: 12th November, 2002.

2004 P L C (C.S.) 340

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman

Dr. ASIF ALI KHOKHAR

versus

CHIEF SECRETARY and another

Appeal No.51 of 2002, decided on 15th July, 2003.

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

‑‑‑‑RA(1)(a)(ii)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Withholding of increments was ordered against civil servant serving as Medico‑legal Officer after issuing him show‑cause notice on allegation that Medico‑legal Certificate issued by him after examination of the injured was declared as incorrect by the Medical Board‑‑‑Medical Board constituted at the instance of opposite‑party allegedly had remarked that injury suffered by injured was self‑inflicted, but civil servant deliberately had not mentioned the said fact in Medico‑legal Certificate‑‑‑Medical Board was constituted after 1$ days of issuance of Medical Certificate by civil servant and civil servant was not called on to join/participate in meeting of Medical Board to explain his view‑point‑‑‑Civil servant admittedly had stated in certificate that fracture was on little finger of right hand of injured‑‑‑Medical Board in. its remarks had nowhere stated that there was no fracture as stated by civil servant‑‑‑Board had simply remarked that from the case history it appeared that injury sustained by injured was self­-suffered‑‑‑Medico‑legal Officer had no business to determine said nature of injury and it was for the. Court concerned to determine whether injury suffered by any of injured was self‑suffered and for arriving at such a conclusion, the Court had to examine concerned Doctor‑‑‑No mala fides was found on the part of civil servant and nothing was on record to indicate if civil servant had deliberately omitted to mention in Medical Certificate that injury of person of injured was self‑inflicted‑‑‑Civil servant after examining injured had given his expert opinion‑‑‑Penalty imposed upon civil servant was neither legal nor proper nor justified‑‑‑Order imposing penalty of civil servant was set aside, in circumstances.

Ghulam Ali Khokhar for Appellant.

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

Date of hearing: 26th June, 2003.

2004 P L C (C.S.) 353

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman.

MUHAMMAD ALI CHANNAR and others

versus

GOVERNMENT OF SINDH and others

Appeals Nos.285 to 287 of 2001, decided on 15th July, 2003.

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.3(b), 4(1)(b)(iv), 5 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Misconduct‑‑‑Dismissal from service on allegation of misconduct‑‑‑Holding of inquiry‑‑‑Civil servants were dismissed from service after issuing them show‑cause notices, but without holding inquiry against them on allegation of misconduct‑‑‑Allegation against civil servants was that they sold Government wheat in open market without authorization‑‑‑Contention of civil servants was that in view of nature of allegation against them, Authority was not justified to dispense with regular inquiry in their case and that awarding major penalty to them by adopting a summary procedure was not warranted by law and same was liable to be set aside‑‑‑Validity‑‑‑Question as to whether a regular enquiry was to be held in a case of misconduct against an accused civil servant or not, would depend on facts of each case‑‑­Authorized Officer had discretion to decide whether in a disciplinary proceedings against a civil servant in response to his reply to the charge­sheet, a regular inquiry should be held or not‑‑‑Such discretion was not controlled by any precondition or guideline, but was to be exercised fairly and reasonably and not arbitrarily or capriciously‑‑‑If charge against civil servant was based on disputed question of fact, a civil servant could not be denied a regular inquiry as same could not be resolved without recording evidence and providing opportunity to parties to, cross‑examine witnesses‑‑‑Civil servants had admitted in clear terms that they ‑had sold wheat in an open market due to some compelling circumstances but the same was not believable‑‑‑Authorised Officer, in circumstances, had committed no illegality or irregularity in dispensing with regular inquiry.

1989 PLC (C.S.) 414; 1995 PLC (C.S.) 795; 1997 SCMR 1543; 2002 SCMR 71; 2003 PLC (C.S.) 7 and Nawab Khan and another v. Government of Pakistan through Ministry of Defence, Rawalpindi and others PLD 1994 SC 22 ref.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.3(b), 4(1)(h)(iv), 5 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Major penalty of dismissal from service‑‑‑Conversion into reduction in rank‑‑‑Major penalty of dismissal from service was awarded to civil servants on allegation that they had sold Government wheat without obtaining 'prior permission from Higher Authorities‑‑‑Civil servants though sold the wheat without permission, but had not misappropriated amount so received by them, but same was deposited in Government Treasury‑‑‑Present case was not of fraud, forgery, embezzlement or misappropriation as total cost of wheat sold by civil servants had been deposited by them in Government Treasury‑‑‑No ulterior motive was behind sale of said wheat in the open market; of the most it was case of inefficiency and negligence‑‑‑Punishment should always be commensurate with the guilt established against accused‑‑‑No charge of embezzlement having been ‑proved against civil servants penalty of dismissal from service was too harsh especially when their co-­civil servants charged with similar allegation was treated differently‑‑­Order of dismissal from service passed against civil servants being discriminatory, penalty of dismissal from service was converted into "reduction in rank for period of two years" which would meet the ends of justice.

Shabbir Ahmed Awan for Appellants.

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

Date of hearing: 23rd April, 2003.

JUDGMENT

Through this common judgment, we intend to dispose of these three appeals as common questions of facts and law are involved.

1. Facts forming the background of these appeals, briefly stated, are that appellants Muhammad Ali Channar, Assistant Food Controller/Incharge Kandiaro P.R. Centre. Shahmir Solongi and Ghazanfar Gli Pathan, Food Inspector/Incharge Moro and Mellrabpur P.R. Centres, respectively, were served with show‑cause notice dated 21‑4‑2001 issued by the Additional Director Food/Authorized Officer, alleging therein that they without authorization sold Government wheat in open Market and after knowing constitution of Committee they deposited its cost in Government Treasury and that they have put the Government in great financial loss. In their respective replies, appellants explained their position, which were not found satisfactory. They were served with final show‑cause notice dated 22‑5‑2001, which too they replied. Ultimately, by separate orders dated 11/12‑7‑2001, they were awarded major penalty of 'Dismissal from Service' by the Deputy l Director Food, Sukkur Region, Sukkur. Feeling aggrieved, they preferred departmental appeal (s) to the Director Food. Government of Sindh, Karachi. On getting no response within stipulated period of 90 days, they have preferred the instant appeals before this Tribunal.

2. In support of appeals, learned counsel for the appellants mainly contended that wheat was sold in the open market by the appellants at prescribed Government rate with the verbal permission of the Deputy Director 'Food as the wheat stock lying in the stores was being weevilzed. Its entire cost was deposited in Government Treasury, thus the question of misappropriation or even temporary misappropriation does not arise. He submitted that Inspecting Officers time and 'again reported to the high‑ups to dispose off the wheat lying at the Godowns to avoid further loss but no timely action was taken. Further, he' stated that although the members of the Enquiry Committee constituted by the Government in their report dated 14‑4‑2001 reported that there was no shortage of wheat stock in the Godowns and that Centre Incharges 'sold Government wheat in open market and credited total costs in Government, Treasury on the basis of permits and challans issued by the District Food Controller, Nausharo Feroze, yet instead of dropping the matter on the basis of enquiry report, appellants were proceeded with departmentally under the Efficiency and Discipline Rules. He forcefully argued that in view of the nature of allegation, which the appellants denied vehemently, the department was not justified to dispense with the regular enquiry. He urged that awarding major penalty to the appellants by adopting a summary procedure was not warranted by law and is liable to be set aside. In support of his contentions, he relied upon, 1) 1989‑PLC (C.S.)‑414, ii) 1995‑PLC (C. S.) 795, iii) 1997 SCMR 1543 iv) 2002 SCMR 71, and v) 2003 PLC C.S.) 7), Lastty, he contended that the impugned orders dismissing appellants from service are discriminatory as their co‑civil servant Haji rayaz Ahmed Memon charged with similar allegations has been reverted while the appellants have been awarded major penalty of dismissal from service.

3. In rebuttal, learned Assistant Advocate‑General argued that appellants in their statements before Enquiry Committee so also in their replies to the show‑cause notice(s) have admitted the sale of Government wheat in open Market. Therefore, in view of admitted facts there was no necessity of ordering/conducting regular enquiry. Next, he submitted that their act of selling Government wheat without permission of Authorities concerned was against the law and the, policy of the Food Department which amounts to misconduct, they were rightly awarded major penalty and the same in the circumstances of the case calls for no interference by this Tribunal.

4. We have considered the above submissions, perused the material/documents placed on the record and have gone through the case-­law cited at the bar. There is no denial of the. fact that appellants had sold the Government wheat in open market. In this regard, the explanation offered by the appellants that a huge stock of Government wheat lying in the procurement centres was being weevilzed and such intimations were given to the higher authorities time and again and that the Inspecting Officers after physical verification of the stock lying in the godowns supported the appellants plea and they in their reports remarked that if the wheat stocks are not cleared, the Government would sustain heavy financial loss. Therefore, in order to save the Government from financial loss some wheat bags were sold by them in an open market at the Government rate of Rs.850 and deposited the entire amount in the Treasury through challans duly signed by the District Food Controller, Naushahro Feroze. 13e that as it may, the fact remains that why the' appellants had not obtained the permission from the concerned authorities and for what reasons they did not inform the concerned quarters about selling of Government wheat in an open market. Their contention that verbal permission was obtained by them from the Deputy Director Food, has no substances. In official matters, verbal permission in such‑like cases, has no legal sanctity. Besides, explanation so offered in the absence of any convicting proof is hardly believable. Contention that no regular enquiry was conducted and the appellants were not afforded opportunity to rebut the allegations, therefore, major penalty awarded to them is not sustainable, has no substance. In view of the material on the record coupled with appellants admission, no regular enquiry was necessary. It is well‑settled principle of law that the question, as to whether a regular enquiry is to be held in a case of misconduct against and accused civil servant/employee or not, will depend on the facts of each case. In the case of Nawab Khan and another v. Government of Pakistan through Ministry of Defence Rawalpindi and others, PLD 1994 SC 22, the Honourable Supreme Court after 'referring/relying number of reported cases on the subject, observed that; an authorized officer bas discretion to decide, whether in a disciplinary proceeding against a civil servant in response to his reply to the charge sheet, a regular enquiry should be held or not. The above discretion is' not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object not to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full‑fledged enquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross examine the witnesses. In the instant case, as observed earlier, the appellants in their statements before the Enquiry Committee as well as in their replies to the show‑cause notice so also in their memo. of appeals have admitted in clear terms that they had sold the Government wheat in an open Market. Their explanation that it was due to some compelling circumstances, is not believable. In these circumstances, the Authorized Officer had committed no illegality or irregularity in dispensing with the regular enquiry.

5. It appears that during tenure of appellants service, it was the first charge of inefficiency and negligence proved against them. It is not a case of fraud, forgery or permanent embezzlement/misappropriation, as the total cost of wheat has already been deposited with Government Treasury. It also appears that there was no ulterior motive behind the sale of Government wheat in an open Market. On the contrary, it is case of inefficiency and negligence. Punishment shall always be commensurate to the guilt established. Taking all the aspects of the three appeals into consideration, we are of the considered opinion that except the fact that appellant had sold Government wheat without obtaining prior permission from the higher authorities and had acted in negligent manner, no other charge of embezzlement has been proved against them. Viewed in this context, the penalty of dismissal from service would seem to be a bit too harsh, coupled with the fact that their co‑civil servant Haji Fayyaz Ahmed Memon charged with similar allegations was treated differently. It is absolutely discrimination. The impugned order (s) being discriminatory are not good in the eye of law and justice.

6. For the aforesaid reasons, we are of the considered view that the penalty imposed upon the appellants is too harsh. Accordingly, the penalty in the shape of dismissal from service is converted to that of "Reduction in Rank for a period of two years". Which will meet the ends of justice. With the above modification in the penalty, the appeals stand disposed off. There will be no order as to costs.

Announced in open Court.

Given under our hands and seal of the Tribunal, this 15th day of July, 2003.

H.B.T./131/KST Order accordingly:

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2004 P L C (C.S.) 1

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman, WAPDA House, Lahore

Versus

ABBAS ALI MALANO and another

Civil Petitions Nos. 1452, 1453 and 1454 of 2002, decided on 2nd April, 2003.

(On appeal from the judgment dated 6-6-2002 of the Federal Service Tribunal, Karachi, passed in Service Appeals Nos. 103(K) to 105(K) of 1999).

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

----Art. 212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Service Tribunals Act (LXX of 1973), S.4---Limitation---Condonation---Three petitions for leave to appeal against common judgment passed by Service Tribunal in three appeals ---Limitation---Condonation of delay---Tribunal sent one copy of impugned judgment to one petitioner, who after it: receipt filed petition within time---Remaining two petitions were file after receipt of certified copies of impugned judgment ---Explanation seemed to be reasonable---Supreme Court condoned delay in filing petitions.

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Termination o services of ad hoc appointees on ground of being violative of law-­Petitioners were appointed on ad hoc basis for period of six months on recommendations of, Placement Bureau subject to qualifying examination --- Petitioners , could not qualify examination, thus, their services were terminated, but such order was not implemented and they were sent for specialized training course for evaluating their performance --- Services of appointees were terminated with change of Government treating them as political appointees --- Constitutional petitions filed by appointees against termination order were allowed by High Court- --Authority did not press their petitions before Supreme Court after grant of leave to appeal leaving judgment of High Court in field alone --- Appointees resultantly were reinstated in service on terms and conditions mentioned in their initial order of appointment subject to qualifying examination., which was never held --- Appointees in order to get their services regularized Approached High Court, which advised Authority to organize examination --- Authority again, with change of Government, terminated services of appointees terming them to have been appointed in violation of the rules laid down in Human Rights' case --- Service Tribunal set aside such order---Validity --- Case of appointees did not, fall within any of the categories laid down in Human Rights' case---.None of such appointees was lacking requisite qualification or had been appointed by Incompetent Authority --- Authority had never organized examination and finalized their selection and regularization till passing of final termination order --- Impugned order. showed that appointees had been discriminated against other employees, who had been appointed in ' similar manner on ad hoc basis, but had been subsequently confirmed and regularized --- Non-holding of examination/interview by Authority amounted to waiver and appointees should have been notified as -confirmed --- Appointees had served for eleven years and, thus, vested right of being confirmed had accrued to their--Supreme Court dismissed petitions and refused leave to appeal.

Abdul Jabbar Memon and others 1996 S C M R 1349; Sheikh Mudassar -Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others 1991 PLC (C.S.) 1047 and The Regional Commissioner of Income-tax, Central Region, Lahore and others v. Zaffar Hussain and others PLD 1992 SC 869 ref.

(c) Civil service---

---- Ad hoc appointment subject to passing qualifying examination --- Non­ holding of examination/interview by Authority would amount to waiver.

(d) Civil service---

---- Irregular appointment on temporary basis --- Termination of services--­Where Authority itself was responsible for making such appointment, but subsequently took a turn and terminated their services on ground of same having, been made in violation of the rules---Supreme Court did not appreciate such conduct, particularly when appointees fulfilled requisite qualifications.

Secretary to Government of N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Petitioners (in all C.Ps.).

Hafiz S.A. Rehman, Advocate, Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.P. No. 1453 of 2002).

Respondents in person (in C. Ps. Nos. 1451 and 1454 of 2002).

Date of hearing: 2nd April, 2003.

2004 P L C (C.S.) 21

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD RIAZ, EX-CONSTABLE No.716C

Versus

INSPECTOR-GENERAL OF PUNJAB POLICE

Civil Petition for Leave to Appeal No.413-L of 2000, decided on 27th January, 2003.

(On appeal from the judgment dated 21-12-1999 passed by the learned Punjab Service Tribunal, Lahore).

Constitution of Pakistan (1973)---

----Art.212(3)---Service Tribunal by means of the impugned order had dismissed the appeal of the petitioner not only being barred by time but also on merits on account of his unexplained continued long absence from duty---Record of petitioner was replete with red entries showing unauthorized continued absence, for which he had been fined many 'a times---Accused was also earlier dismissed from service, but was subsequently reinstated---Punjab Service Tribunal was right in holding that the petitioner did not have any interest in the Government service particularly so when it was a disciplinary force---Case of petitioner did not involve a substantial question of law of public importance as envisaged by Art. 212(3) of the Constitution--- -Leave to appeal was refused to petitioner accordingly.

Mian Ghulam Rasool, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 27th January, 2003.

2004 P L C (C.S.) 25

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ

FEDERAL BANK FOR COOPERATIVES, ISLAMABAD

Versus

EHSAN MUHAMMAD

Civil Petition for Leave to Appeal No.82 of 2003, decided on 15th September, 2003.

(On appeal from the judgment dated 5-11-2002 passed by the Federal Service Tribunal, Islamabad, in Appeal No.1155(R)-CE of 2001).

(a) Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989-----

----Regln. 9(i)(b)(c)--Determination of total qualifying service of employee of Bank for granting pensionary benefits---ford "organization" as used in Regln. 9(i)(c) of Federal Bank for Cooperatives Employees Pension and Gratuity, Regulations, 1989--­Scope--Suclp, clause would be attracted only in the case of persons, who had rendered pensionable service in any autonomous or semi-autonomous body of the Government---Employees having rendered pensionable service with Government before joining Bank had been specifically dealt wish by Regln. 9(i)(b) of Regulations, 1989---Extending scope of word "organization" to a Division or Ministry of Federal Government, thus, 'would only make a mockery of principles of interpretation of statutes.

(b) Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989-----

----Regln. 9(i)(b)(c)---Service Tribunals Act (LXX of 1973), S.4--­Constitution of Pakistan (1973), Art.212(3)---Determination of total qualifying service of employee of Bank for granting pensionary benefits---Respondent while working in Cabinet Division of Federal Government applied to join Bank, which selected him after conducting test/interview---Bank rejected respondent's request to count his previous service put in Cabinet Division for determining pension due to him—­service Tribunal, accepted respondent's appeal on the ground that his case was covered by Regln. 9(i)(c) of Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989---Validity--­Respondent had never been in service of any autonomous or ,semi­autonomous body prior to his taking up employment with Bank---Record showed that respondent had not joined Bank through proper channel--­Case of respondent, thus, vas riot covered by Regln. 9(i)(b) or 9(i)(c) of Regulations, 1989---Service Tribunal had wrongly, interpreted and applied provisions of Regln. 9(i)(c) of Regulations, 1989---Such error, if left uncorrected, could lead to serious implications in future vis-a-vis calculation of qualifying service, which could have implications in all such future cases---Question concerning spending of public money would be a question of public importance---Service Tribunal had acted illegally in allowing respondent's appeal---Supreme Court accepted appeal and set aside impugned judgment.

Baber Gul and another v. Sohail Ahmad Sheikh and others 2002 581: S.A.M. Wahdi v. Federation of Pakistan through Secretary, Finance Division, Islamabad and others 2002 SCMR 876 and Syed Abdul Qadir Shah v. Government of Sindh through Secretary, Communication and Works Department, Government of Sindh, Karachi and others 2002 SCMR 904 distinguished.

(c) Interpretation of statutes-----

----Where a situation is specifically dealt with by a provision of law, then any general provision relating to same subject would not be attracted in cases specifically catered for.

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

----Arts. 185(3) & 212(3)---Petition for leave to appeal---Question of public importance---Scope---Question concerning spending of public money would be a question of public importance.

Malik Muhammad Nawaz, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Respondent.

Date of hearing: 8th September, 2003.

2004 P L C (C.S.) 34

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Tanvir Ahmed Khan, JJ

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

Versus

QAMAR HUSSAIN BHATTI and others

Civil Appeals Nos.766 and 1432 of 1997, decided on 14th October, 2003.

(On appeal from the judgments/orders dated 13-3-1996 and 17-11-1996 passed by Federal Service Tribunal in Service Appeal No.501(R)1995 and Service Appeal No.449(R)/1996).

(a) Civil service---

--Advance increments---Entitlement, when a vested right---Primary school teacher had joined service, containing condition of grant of advance increments if acquired higher educational qualification other than the one which had been prescribed for the post---Incentive of availing advance increments on account of possessing higher qualification other than the one prescribed for the post of Trained Matriculate Teacher being a favourable condition, had come to vest in the teacher as a right---Teacher belonging to the class of "Matric Trained Teachers" who was not entitled for the incentive of advance increments, on the date of his appointment, was issued his appointment letter containing a 'clause to the effect that "terms and conditions of the service of the appointee will be the same as are applicable to other Government servants of the category"---Effect---Both the appointees, though were serving in lower cadre but they belonged to the category of the same persons like "trained graduate teachers" to whom incentive of advance increments had been allowed vide a Government memorandum, as such following the principle of, equal protection of law enshrined in Art.25 of the Constitution of Pakistan (1973): amongst the persons who belonged to the same class, the second appointee, in view of the fact that all other Government Teachers were also­ enjoying the same benefit, was also entitled to the benefit of advance increments.

I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 ref.

Zulfiqar-ul-Husnain v. Oil and Gas Development 2003 SCMR 1115 distinguished.

(b) Judgment----

---"Judgment in rem" and "judgment in personam"---Distinction.

Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Muhammad Sohail v. Government of N.-W.F.P. 1996 PLC (C.S.) 364; Black's Law Dictionary, Sixth Edn. and Principles and Digest of the Law of Evidence by Monir, p. 563 quoted.

Hafiz S.A. Rehman, Deputy Attorney-General and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Respondent in person.

Ali Sher, Section Officer (on Court's Notice).

Date of hearing: 9th September, 2003.

2004 P L C (C.S) 47

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

WAPDA through Chairman and others

Versus

M.M. CHANDIO, EX-CHIEF ENGINEER, WAPDA

Civil Petition for Leave to Appeal No.655 of 2003, decided on 27th May, 2003.

(On appeal from the judgment dated 27-1-2003 in Appeal No.366(R)CS/2001 passed by the Federal Service Tribunal, Islamabad).

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

----R.12---Constitution of Pakistan (1973), Art. 212(3)---Removal from service---Re-instatement---Civil servant was promoted from post of Sub­ Divisional Officer to the post of Chief Engineer but subsequently he was demoted---Appeal filed by civil servant against his demotion was allowed by the Service Tribunal---During pendency of appeal an explanation was called from the civil servant which was replied by him and after hearing him, he was exonerated of the charges stated in the letter of the Authority---Authorities subsequently re-opened the case and imposer major penalty of removal from service on, the civil servant in exercise of power under R.12 of ,Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---Record revealed and counsel for Authorities had also conceded that civil servant was not given any hearing nor any ground was communicated to him in the, show­ cause notice for taking action against him for his removal from service after his earlier exoneration---Petition for leave to appeal filed by Authorities against order of Service Tribunal whereby appeal filed by civil servant was allowed, was dismissed and leave to appeal was declined as no substantial question of law of public importance was involved therein.

Muhammad Younus v. Secretary, Ministry of Communication and others 1993 SCMR 122 and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani 1996 SCMR 248 ref.

C.M. Ishaq, Advocate Supreme Court and Mahmood Qureshi, Advocate-on-Record (absent) for Petitioners.

Sh. Riazul Haq, Advocate Supreme Court arid M.A. Zaidi, Advocate-or-Record for Respondent.

Date of hearing: 27th May, 2003.

2004 P L C (C.S.) 55

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

Syed ALI SHAH BUKHARI

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and another

Civil Petition No. 1188 of 2002, decided on 25th September, 2003.

(On appeal from the judgment dated 3-6-2002 in Appeal No.134 of 2002 passed by the Punjab Service Tribunal, Lahore).

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

----S.3---Constitution of Pakistan (1973), Art. 212(3)---Civil servant, a Deputy District Attorney', was compulsorily retired from service on the complaint/charge that while he was posted as such in the Court of Additional District Judge, he took Rs.3,52,000 as bribe from a litigant in the name of the Presiding Officer and thereby was guilty of misconduct and corruption within the meaning of S.3(b)(c) of the Punjab Removal from Service (Special Powers) Ordinance, 2000---Competent Authority had ordered for initiation of enquiry against the accused civil servant under the Ordinance and he was supplied statement of allegations---Civil servant submitted his written defence to the Enquiry Officer denying such allegation--- Enquiry Officer, however, conducted detailed enquiry, examined the witnesses from both sides, and concluded that the accused civil servant was guilty of charges and recommended his compulsory retirement to the Competent Authority---Copy of the said report alongwith show-cause notice was supplied to the civil servant--­Competent Authority after compliance of S.3(2) of the Ordinance imposed penalty of compulsory retirement upon the civil servant with all pensionary benefits---Civil servant made representation, which was rejected against which he filed appeal before the Service Tribunal which was dismissed---Complainant had moved the Anti-Corruption Establishment against the civil servant but he alongwith witnesses resiled under pressure and hoped that the amount of bribe taken by the accused civil servant would be returned to him when the Anti-Corruption Establishment not only dropped the proceedings but also recommended for initiation of proceedings against the complainant under S.182, P.P.C.---Here the accused civil servant played clever as instead of returning bribe amount, coercion was practiced to browbeat the complainant on which complainant revived his grievance ---Effect--­Investigation or the inquiry conducted by the Anti-Corruption Establishment which was dropped could not be equated with an enquiry held subsequently under law---Rule of double jeopardy thus would not be applicable to the proceedings which did not end with the final finding holding the accused civil servant to be not guilty of the charge by the Competent Authority under the law in force---Enquiry proceedings conducted by the Anti-Corruption Establishment against the accused civil servant were independent from the enquiry ordered by the Competent Authority under S.3, Punjab Removal from Service (Special Powers) Ordinance, 2000, there could be, therefore, no double jeopardy in the present case---Supreme Court observed that Service Tribunal had addressed to all the pleas of the civil servant correctly in accordance with law and that there was no legal or factual infirmity in the impugned orders passed by the Authorities who, on the contrary had taken a lenient view of compulsory retiring the accused civil servant, blessed him with all benefits, when charge of taking bribe in the name of Judicial Officer was an act which called for severe punishment against the accused civil servant---Petition for leave to appeal against the orders of the Service Tribunal was dismissed by the Supreme Court.

Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774 and Muhammad Ayub v. The Chairman, Electricity Board, WAPDA Peshawar and another PLD 1987 SC 195 ref.

Hafiz S.A. Rehman Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 25th September, 2003.

2004 P L C (C.S.) 62

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Tanvir Ahmed Khan, JJ

MUHAMMAD RAHIM KHAN

Versus

CHIEF SECRETARY, N.-W.F.P. and others

Civil Appeal No.446 of 1999, decided on 6th October, 2003.

(On appeal from judgment dated 14-4-1998 passed by N.-W.F.P. Service Tribunal, Peshawar in Appeal No.696 of 1996).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.4---Constitution of Pakistan (1973), Art.212---Promotion---Appeal to Service Tribunal---Competence---When a civil servant was eligible for promotion to the next higher grade but had been ignored and other ineligible candidates were promoted, his appeal to the Service Tribunal would be competent---Eligibility for promotion of approved persons could be subjected to scrutiny by Service Tribunal, as the same related to the terms and conditions of a civil servant---Service Tribunal, in the present case, without examining in depth the proposition namely as to whether the civil servant was ignored by the Selection Board on the ground that he was not fit for promotion or he was not eligible, for the reasons mentioned in the minutes of the Board, had rejected the appeal filed by the civil servant summarily, Supreme Court, in the interest of justice, set aside the judgment of Service Tribunal with the direction to call for complete record of the case from the Department and in presence of, the same, re-examine the case of civil servant, after providing proper opportunity of hearing to both the parties, in accordance with law, independently without being influenced in any manner from the observations made in the Supreme Court judgment.

Abdul Ghafoor v. National Highway Authority 2002 SCMR 574 and Zafar-ullah-Baloch v. Government of Balochistan 2002 SCMR 1056 ref.

Appellant in Person.

Sardar Shaukat Hayat, Addl. A.-G., N.-W.F.P. for Respondents Nos. 1 to 4.

Shah Abdur Rashid, Senior Advocate Supreme Court for Respondent No.5.

Date of hearing: 12th September, 2003.

2004 P L C (C.S.) 67

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ

KASHIF AFTAB KHAN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE

Civil Petition for Leave to Appeal No.4044-L of 2001, heard on 18th September, 2003.

(On appeal from the judgment/order of the Punjab Service Tribunal, Lahore, dated 26-10-2001, passed in Appeal No.2337 of 2000).

Police Rules, 1934---

----R.12.8---Punjab Police (Efficiency and Discipline) Rules, 1975, Rr. 4(b), 5 & 6---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art.212(3)---Discharge from service during probation period on ground of misconduct without holding regular inquiry---Service Tribunal dismissed appeal filed by civil servant--­Validity---Civil servant had only few months' service as Police Inspector, when his conduct was reported to be extremely unsatisfactory---Show-cause notice had been served on civil servant and his reply thereto had been duly considered---Civil servant had beer discharged from service after hearing him in person---Such was not at action under Punjab Police (Efficiency and Discipline) Rules,1975, but was straightaway order of discharge from service in terms of R.12.8 of Police Rules, 1934---Tribunal after considering factual and legal aspect; of the case had rightly dismissed the appeal---Supreme Court dismissed petition and refused leave to appeal.

Ijaz Ahmad Dar v. Director-General, Pakistan Rangers PLD 2003 SC 913 rel.

Abdul Hafeez Cheema, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 18th September, 2003.

2004 P L C (C.S.) 73

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SHAHID KHATTAK, TAXATION OFFICER, MUNICIPAL CORPORATION, PESHAWAR

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, L.G. & R.D. Department, Civil Secretariat, Peshawar and 25 others

Civil Appeal No. 1565 of 1997, decided on 21st April, 2003.

(On appeal from the judgment dated 22-7-1996 of the Peshawar High Court, Peshawar passed in Writ Petition No.969 of 1994).

(a) West Pakistan Local Councils and Municipal Committees Service Rules, 1963------

----North-West Frontier Province Local Government Ordinance (IV of 1979), Ss.46 & 47---North-West- Frontier Province Local Councils (Provincial Unified Group of Functionaries) Service Rules, 1981--­North-West Frontier Province Local Council Servants Service Rules, 1980---Cons-titution of Pakistan (1973), Art.185(3)---Seniority---Supreme Court granted leave to appeal to consider questions as to whether petitioner by virtue of his initial appointment in BPS-16 on 3-5-1979, was to be considered 'senior among Local Council Service (Provincial Unified Group of Functionaries) Officers; and whether after transfer and absorption in IRDP Officers in Local Council Service (Provincial Unified Group of Functionaries), Officers holding post in BPS-16 prior in time would stand senior in combined seniority list.

(b) West Pakistan Local Councils and Municipal Committees Service Rules, 1963-----

----North-West Frontier Province Local Government Ordinance (IV of 1979), Ss.46 & 47---North-West Frontier Province Local Councils (Provincial Unified, Group of Functionaries) Service, Rules 1981--­North-West Frontier Province Local Council Servants Service Rules, 1980---Seniority---Claim for seniority by appellant from date of his initial appointment (i.e. 3-5-1979) as Social Welfare Officer (BS-16) in Municipal Corporation after his absorption on 15-7-1985 in Local Council Service (Provincial Unified Group of Functionaries) ---Validity--­Initial appointment of appellant was against sole post of Social Welfare Officer, which had not been created in any other Local Council, thus, same was not provincial cadre post---Appellant's seniority in Final Seniority List of employees of BS-16 of Local Council Service (Provincial Unified Group of Functionaries) issued on 7-1-1988 had been determined on basis of his absorption from 15-7-1985 and not from date of his initial appointment as he was not holding provincial cadre post--­IRDP Officers were transferred and absorbed on 13-6-1984 in Local Council Service (Provincial Unified Group of Functionaries), while appellant was absorbed in such service on 15-7-1985---Such Final Seniority List was correctly reflected in Combined Revised List issued on 23-9-1990 having been prepared by Department in pursuance of judgments of High Court and Supreme Court---No exception could be taken to such Combined Revised List.

Jehanzeb Rahim, Advocate Supreme Court for Appellant.

Adam Khan Jadoon, Advocate Supreme Court for Respondent No. 1.

Raja M. Ibrahim Satti, Advocate Supreme Court for Respondents Nos.9, 11 and 12.

Date of hearing: 21st April, 2003.

2004 P L C (C.S.) 82

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and others

Versus

SHAHZAD FAROOQ MALIK and another

Civil Petitions Nos. 140 and 141 of 2003, heard on 15th April, 2003.

(On appeal from the judgment dated 18-11-2002 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.562(R)CE/2002 and 688(L)/CE-2000, respectively).

(a) Pakistan International Airlines Corporation Act (XIX of 1956)-----

----S.10(2)---General Clauses Act (X of 1897), S.21--Power of Authority to remove employee from service---Scope---No adverse action could be taken against employee without observing principles of natural justice---Corporation could remove its employee, if appointed in violation of rules, but such action could be taken, when no decisive step had been taken in pursuance of appointment---Vested rights would accrue to employee, who after appointment was confirmed in service---Such rights of employee could not be interfered with only on the ground that he had been irregularly appointed by Corporation, unless there were other allegations against him in view of principle of locus poenitentiae.

Director, Social Welfare, N.-W.F.P. v. Sadullah Khan 1996 SCMR 1350; P.I.A.C. v. Nasir Jamal Malik and others 2001 SCMR 934; Abdul Hafeez Abbasi and others v. Managing Director, P.I.A.C. and others 2002 SCMR 1034 and Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom PLD 1991 SC 973 ref.

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

----S.16---Power to appoint includes power to suspend or dismiss--­Scope---Authority has power to undo act done by it, but such provision would be subject to relevant laws and rules and would be applicable only in such cases, where under relevant law or rules, a different intention does not appear.

(c) Pakistan International Airlines Corporation Act (XIX of 1956)-----

----S. 10(2)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.25---Termination of service---Authority terminated respondents from service, but allowed to continue in service other employees, who were similarly appointed---Service Tribunal set aside such order being discriminatory---Validity---Tribunal had rightly interfered with termination order of respondent in view of Art. 25 of the Constitution---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Yawar Ali, Advocate Supreme Court for Petitioners (in both Petitions).

M. Jaffar Hashmi, Advocate Supreme Court for Respondents (in both Petitions).

Date of hearing: 15th April, 2003.

2004 P L C (C. S.) 90

[Supreme Court of Pakistan]

Before Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ABDUL WAHID

Versus

THE GENERAL MANAGER and others

Civil Petition for Leave to Appeal No.3254-L of 2002, decided on 14th April, 2003.

(On appeal from the judgment dated 2-7-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1687 of 1999).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1985-----

----Rr.4, 6 & 7---Punjab Service; Tribunals Act (IX of 1974), S.4-­Constitution of Pakistan (1973), Art. 212(3)---Recovery of amount of stolen medicines---Charge of theft of medicines from store---Authorised Officer on basis of report of Inquiry Committee recommended for major penalty, but Authority imposed penalty of recovery of amount as value of stolen medicines recoverable from salary of civil servant to the extent of one-third of his salary---Service Tribunal maintained such penalty it appeal filed by civil servant---Validity---Such penalty did nor commensurate with guilt of civil servant, who had been found involved fully in pilferage of medicines by independent Inquiry Committee Inquiry had been conducted by providing full opportunity to civil servant to put up his case and cross-examine witnesses---Authority after holding civil servant as guilty had retained him in service so as to enable him to repeat his illegal activities in paying back penalty---Even ordinary person of normal prudence would not retain such-like person in service after finding him implicated in theft---No justification was shown for leniency shown by authority in awarding such penalty---Conduct displayed by civil servant as custodian of public property did not deserve sympathy---Supreme Court dismissed petition and refused leave to appeal with directions to Authority to dismiss civil servant from service.

(b) Administration of justice---

---- Offence relating to individuals---Offences against society---Concept of punishment---Principles.

One of the concepts of punishing an offender is to deter other mischief-mongers from committing offences in order to bring harmony and peace in society. Courts of law while administering justice it offences relating to individuals take into consideration reformatory concept of punishment, but in offences against society, no sympathy car be shown to wrong-doer as leniency shown means a message to the alike minds that they can also get away, if they are caught. Persons committing such offences should be snubbed at the very outset and be dealt with iron hands at appropriate time, otherwise this malady would plague the whole society.

Muhammad Asghar Khadim, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

A.H. Masood, Advocate Supreme Court with Dr. Sabiha Khurshid, D.G. Health Services and Faiz Ali Khan; G.M. Stores for Respondents.

Date of hearing: 14 April, 2003.

2004 P L C (C.S.) 99

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH through Secretary, Home Department and others

Versus

ABDUL JABBAR and others

Civil Petition No.556-K of 2001, decided on 30th. November, 2001.

(On appeal from the judgment dated 5-7-2001 passed by the High Court of Sindh, Hyderabad Circuit in C.P. No.D-191 of 1996).

Constitution of Pakistan (1973)-----

----Arts. 185(3) & 199---Civil service---Appointments against advertised posts---Petitioners qualified written test and interview and were recommended by Selection Committee---Authority made appointments on the basis of list approved by Government as per direction of higher Authorities, thus, deprived petitioners having legitimate expectation for appointment---High Court accepted Constitutional petition with direction to respondents to issue appointment letter to petitioners---Petition for leave to appeal was dismissed against judgment of the High Court.

Senior Superintendent of Police and others v. Makhdoom Ayaz Ahmed Siddiqui C.P. No.771-K of 2001 ref.

Suleman Habibullah, Addl. A.-G. and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Date of hearing: 30th November, 2001.

2004 P L C (C.S.) 104

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MAQBOOL AHMAD and another

Versus

CHIEF EXECUTIVE FAISALABAD ELECTRIC SUPPLY COMPANY and another

Civil Petitions, for Leave to Appeal Nos. 2290-L and 2296-L of 2001, decided on 10th June, 2003.

(On appeal from the judgment dated 10-5-2001 passed by the Federal Service Tribunal, Lahore in Appeal No.8940-L of 1999).

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

----R.4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4--­Constitution of Pakistan (1973), Art. 212(3)---Penalty of reduction in rank enhanced later on to dismissal from service and recovery of alleged loss---Service Tribunal converted penalty of dismissal from service into reduction in rank and set aside penalty of recovery of alleged loss except amount already paid by civil servant---Service Tribunal found that civil servant was not alleged to be responsible for misappropriating material, but was charged to be negligent in ensuring safe custody of material and exercising proper control over his subordinates---Penalty of dismissal from service, thus, was harsh and did not commensurate with alleged misconduct---Civil servant had been treated discriminately on account of letting off other officials facing identical accusation---Show-cause notice proposing enhancement of penalty did not show any reason for enhancement nor such reason was given in the order of dismissal from service---Civil servant could not point out any illegality in judgment of Service Tribunal refusing to him refund of amount already paid by him to make good loss suffered by the Department and in refusing payment of salary payable to him for period starting with date of his dismissal and ending with date of reinstatement---Supreme Court dismissed petition and refused leave to appeal.

Mian Mahmood Hussain, Advocate Supreme Court and Faiz-ur­-Rehman, Advocate-on-Record for Petitioners.

Abdul Rehman Madni, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Respondents.

Date of hearing: 10th June, 2003.

2004 P L C (C.S) 115

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

SENIOR SUPERINTENDENT OF POLICE, GOVERNMENT OF SINDH, HYDERABAD and others

Versus

IQBAL AHMAD and another

Civil Petitions for Leave to Appeal Nos. 662-K and 663-K of 2001 decided on 28th November, 2001.

(On appeal from the judgment of. the Sindh Service Tribunal, at Karachi, dated 12-6-2001, passed-in Appeals Nos.99 and 100 of 1999).

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

----R.4(b)(iv)---Sindh Service Tribunals Act (XV of 1973), S.4--­Constitution of Pakistan (1973), Art. 212(3)---Dismissal of Civil Servant, a police official, from service for involvement and arrest in criminal case---Departmental appeal to Deputy Inspector-General of Police was dismissed in June July, 1997---Civil servant after his acquittal through judgment dated 30-4-1998 produced its copy before Inspector ­General of Police, who dismissed his review application in February/March, 1999---Service 'Tribunal accepted appeal of civil servant---Validity---Police Authorities had not given weight to acquittal order of civil servant passed by Court of competent jurisdiction--­Impugned judgment was well-reasoned and in accordance with principles laid by Supreme Court---Leave to appeal was refused.

Suleman Habibullah, Addl. A.-G., Sindh and Akhlaq A Siddiqui, Advocate-on-Record for Petitioners.

Date of hearing: 28th November, 2001.

2004 P L C (C.S.) 130

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

Engineer JAMEEL AHMED MALIK

Versus

PAKISTAN ORDINANCE FACTORIES BOARD, WAH CANTT Through Chairman and others

Civil Appeals Nos. 1505, 1506 of 1997, 971 of 1998 and Civil Petition No.249 of 1997, decided on 10th September, 2003.

(On appeal from the judgments dated 12-3-1996, 24-3-1996, 8-12-1996 and 30-1-1997 of Federal Service Tribunal, Islamabad passed in Appeals Nos.344(R)/95, 385(R)/95, 531(R)/96 and 205(R)/96 respectively).

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

----Art. 19---Freedom of speech/expression and press---Essential requirements of democracy---Democracy cannot survive without such freedom---Such right is not absolute, but reasonable restrictions can be imposed upon the same on reasonable grounds---Reasonable classification is always permissible in law.

Zaheeruddin and others v. The State and others 1993 SCMR 1718 rel.

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

----Rr. 2(4) & 4(1)(b)(ii)---Government Servants (Conduct) Rules, 1964., Rr. 22 & 29---Compulsory retirement from service---Charge against civil servant was that he addressed press conference and issued pamphlets criticizing his administration and talked about latest happening in New World Order and geopolitical situation, and addressed letters to higher Authorities including the President and the Prime Minister of the country in disregard of normal procedure in that regard---Civil servant did not deny such facts, rather, asserted that whatever was stated therein was correct---Validity---Not within realm of permissible limits of freedom of speech expression for a Government servant to discuss about latest happening in New World Order and geopolitical situation---Such conduct of civil servant would be in violation of Rr.22 & 29 of Government Servants (Conduct) Rules, 1964 and misconduct within meaning of R.2(4) of 'Government Servants (Efficiency and Discipline) Rules, 1973---Such charge stood squarely proved against the civil servant.

(c) Government Servants (Conduct) Rules, 1964-----

----Rr. 22 & 29---Constitution of Pakistan (1973), Art. 19---Restriction on freedom of speech of Government servants---Essential in interest of public order---Reasons stated.

In order to maintain the proper discipline in public servants and efficiency in administration, it is necessary to place certain restrictions on the freedom of the speech of Government servants, which are essential in the interest of public order, otherwise there would be chaos, anarchy and maladministration in every department, as its employees would not only criticize each other publicly, but would frustrate every policy framed for the interest of general public.

(d) Government Servants (Conduct) Rules, 1964-----

----Rr. 22 & 29---Govetnment Servants (Efficiency Discipline) Rules, 1913, R. 2(4)---Government servant prohibited from taking part in politics, participating in functions of political parties, supporting students agitations, discussing politics in offices/clubs/ restaurants and other public places---Action could be taken against defaulting servants under Government Servants (Conduct) Rules, 1964 and Government Servants (Efficiency and Discipline) Rules, 1973.

(e) Civil service----

----Annual Confidential Report---Duty of Reporting Officer and Countersigning Officer stated.

Annual Confidential Reports play pivotal role in service career of an employee. It is a duty of Reporting Officer as well as Countersigning Officer to see that the reports shall not reflect undue generosity or harshness and be as objective and circumspect as possible.

General Standing Instructions about `Performance Evaluation Reports' by Nabi Bux Khoso, Director-General (PPARC) Management Services Division ref.

(f) Words and phrases-----

----"Circumspect"---Meaning.

F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.

(g) Words and phrases---

----"Objective"---Meaning.

F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.

(h) Civil service-----

----- Annual Confidential Report---Advisory remarks recorded in ACR--­Effect---Advisory remarks are meant for improvement, which can neither I be taken as stigma nor be treated as adverse.

Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 rel.

(i) Civil service-----

---- Annual Confidential Report with "Average" entries---Not adverse--­No representation/appeal is maintainable against "Average ACRs".

Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Ilahi Khan Leghari and another 1992 SrMR 1427 and Federation of Pakistan through the Secretary. Health Division v. Dr. Najmul Ghani Khan PLD 1995 SC 556 rel.

(j) Civil service---

----Annual Confidential Report---Adverse remarks---Non-recording of adverse remarks by Reporting Officers and Countersigning Officers against corrupt and inefficient officers---Contributory factor towards corruption and inefficiency---Supreme Court emphasized on elimination of such tendency.

The experience has shown that there is growing inclination among Reporting Officers/Countersigning Officers recording Adverse Remarks, even against corrupt and inefficient officers for some reasons. One can be that they do not want to displease anybody. Secondly, they also feel highly embarrassed when they are called upon to substantiate their adverse remarks. This lack on the part of higher authorities is a contributory factor towards corruption and inefficiency and must be eliminated to help the system work smoothly. Such officers must exercise restraint to act upon on the basis of discredited information, but at the same time, they shall canvass in objective way the true picture about the real performance of concerned officer.

(k) Civil service------

----Annual Confidential Report---Evidentiary value---Conflict between reports of Reporting Officer and Countersigning Officer---Procedure to be followed stated.

Reports of Reporting Officer and Countersigning Officers, unless contrary is proved by a strong piece of evidence, must be accepted as true and having legal and moral sanction behind it. Acceptance of such reports shall be a rule and rejection an exception. In case of conflict between the reports of Reporting Officer and Countersigning Officer, the entire record/personal file be thoroughly scrutinized and weighed keeping in view the intrinsic value of the material available on record for evaluating the correctness and propriety of the remarks recorded in ACR. The remarks of higher authority, as a rule, command more respect and cannot be equated with that of Reporting Officers.

Petitioner in person.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Nasir Saeed Sh., Advocate Supreme Court (Standing Counsel for Respondents (in C.As. Nos. 1506 of 1997, 971 of 1998 and C.P. No. 249 of 1997).

Date of hearing: 2nd May, 2003.

2004 P L C (C.S.) 149

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHAFAULLAH KHAN NIAZI through Legal Heirs

Versus

DEPUTY DIRECTOR, FOOD DEPARTMENT, MULTAN and another

Civil Petition No. 1628 of 2002, decided on 6th October, 2003.

(On appeal from the order dated 29-7-2002 in Appeal No. 140 of 1994 passed by Punjab Service Tribunal, Lahore).

Constitution of Pakistan (1973)-----

----Art. 212(3)----Civil service---Imposition of major penalty by the Authority when the authorized officer had not recommended the same---after having issued notice for personal hearing to the civil servant had given just and sound reasons its order for disagreeing with the authorized officer after considering the relevant documents and defence of the civil servant---Validity---Authority was competent to differ with the proposed recommendation of authorized order and could impose major penalty, which in its opinion was considered to be legal in view of the evidence on record---Petition for leave to appeal was dismissed.

Mukhtar Ahmad Bhatti v. Director Food, Punjab and others 1992 SCMR 1864; Qazi Khalilur Rehman and others v. Secretary, Ministry of Railways and others 1994 PLC (C.S.) 713 and Sh. Abdul Waheed v. Chief Secretary, Punjab 1985 PLC (C.S.) 886 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th October, 2003.

2004 P L C (C.S.) 154

[Supreme Court of Pakistan]

Present: Irshad Hassan Khan, CJ., Ch. Muhammad Arif and Munir A. Sheikh, JJ

STATE PETROLEUM REFINING AND PETROCHEMICAL CORPORATION LIMITED

Versus

LATEEF SIDDIQUI and 2 others

Civil Petitions Nos. 348-K and '355-K of.2001 decided on 1st August, 2001.

(On appeal from judgment dated 14-3-2001 passed by the Federal Service Tribunal, Islamabad in Appeal No.771(K) of 1999).

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

---S.4---Constitution of Pakistan (1973), Art. 212(3)---Converting order of dismissal from service, into compulsory retirement---Jurisdiction of Service Tribunal---Scope---Contention of petitioner-Corporation was that in, absence of any provision in its Service Rules for imposing penalty of "compulsory retirement from service" upon any of its employees, Service Tribunal had exceeded its jurisdiction while converting order of respondent-employee's "dismissal from service" into "compulsory retirement" ---Contention of respondent-employee was that. Tribunal had erred in imposing major penalty of "compulsory retirement" in absence of evidence as to his guilt on record; and that Tribunal without setting aside. order of dismissal from service could not convert the same into any other penalty without establishing any nexus with proposed punishment---Supreme Court granted leave to appeal to consider such pleas of parties.

Qamarul Islam Abbas, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Petitioner (in C.P. No.348-K of 2001):

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondents (in C.P. No.348-K of 2001).

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.355-K of 2001).

Qamarul Islam Abbas, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Respondents (in C. P. No. 355-K of 2001).

Date of hearing: 1st August, 2001.

2004 P L C (C.S) 157

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ

TANVIR AHMED

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE

Civil Petition for Leave to Appeal No. 1154/L of 1999, decided on 3rd July, 2002.

(On appeal from the judgment dated 1-4-1999 of the Punjab Service Tribunal, Lahore, passed in Appeal No.477 of 1995).

(a) Civil service-----

----Move-over---Move-over of a civil servant from one scale to another would not tantamount to promotion as move-over was only awarded to an incumbent after reaching the maximum of his substantive scale.

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

----R.4(1)(b)(i)---Fundamental Rules, F.R.29---Constitution of Pakistan (1973), Art. 212(3)---Penalty of reduction to initial stage---Infliction of---Conversion of petition into appeal---Civil servant who had been serving as a Lecturer in English in Education Department for the last 20 years, was proceeded against for tampering with original seniority- list and was also charged for certain acts of omission and commission and was inflicted punishment of reduction to a lower stage without specifying period of said punishment---Charge against civil servant though was serious in nature, but punishment of reduction to a lower stage inflicted on him without specifying period of punishment, appeared to be violative of F.R. 29 which had provided that if a Government servant, on account of misconduct or inefficiency, was reduced to a lower grade or post or to a lower stage in his time scale, Authority ordering such reduction would state period for which it would remain effective---Petition for leave to appeal was converted into appeal by the Supreme Court and allowing the same, judgment of Service Tribunal was modified restricting punishment inflicted upon civil servant for a period of four years which would meet the ends of justice.

Hafiz Tariq Nasim, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Muhammad Sharif Butt, Advocate Supreme Court for Respondent.

Date of hearing: 3rd July, 2002.

2004 P L C (C.S) 163

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

NAZAKAT ALI

Versus

WAPDA through Manager and others

Civil Petition No.3005-L of 2000, decided on 3rd April, 2003.

(On appeal from the judgment/order dated 26-10-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No. 668(L) of 1998).

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

----SA(1)(a)---Constitution of Pakistan (1973). Art. 212(3)---Appeal--­Limitation---Condonation of delay---Grievance petition against termination order dated 11-11-1993 filed before National Industrial Relations Commission on 20-7-1995 was dismissed on 9-9-1997 with observations that only Service Tribunal was appropriate forum for redressal of appellant's grievance---Appellant, instead of-approaching Service Tribunal, again approached the Full Bench of the Commission which dismissed his appeal on 15-5-1998---Appellant had not filed in time departmental appeal---Appeal before Service Tribunal, held, was not competent in view of provisions of S, 4(1)(a) of Service Tribunals Act, 1973.

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

----S.14---Exclusion of time spent in seeking remedy before wrong forum---Entitlement---Party would not be entitled to condonation of delay, unless he proved that he had been seeking remedy before wrong forum in good faith.

(c) Administration of justice

---Law would support vigilant and not indolent.

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

----S.3---Limitation, if once allowed to commence, could not be stopped.

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Appeal--- Condonation of delay---Such question being question of fact was within exclusive jurisdiction of Service Tribunal---Discretion concerning condonation of delay, if once exercised by Tribunal, could not be disturbed by Supreme Court without any justification.

Syed Ali Hasan kizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Water and Power Development Authority v. Abdur Rashid Dar 1990 SCMR 1513 and Sher Bahadar v. Government of N.-W.F.P. 1990 SCMR 1519 rel.

Ras Tariq Chaudhry, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Faizur Rahman, Advocate Supreme Court and A.H. Masud, Advocate-on-Record for Respondents.

Date of hearing: 3rd April, 2003.

2004 P L C, (C.S.) 166

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

MUHAMMAD YOUSAF KHAN

Versus

HABIB BANK LIMITED through President and others

Civil Petition No. 1687-L of 2001, decided on 27th March, 2003.

(On appeal from the judgment dated - 15-4-2001 of the Federal Service Tribunal, Lahore, passed in Appeal No.27-L of 1999).

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----

----S.O. 15(4)---Charge of misappropriation arid embezzlement--­Challenging charge-sheet at premature stage---Validity---Proper course for petitioner would be to contest charge-sheet by leading credible evidence showing that such allegations were false and concocted.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of I968)-----

----S.O. 15(4)---Charge of embezzlement and fraud---Service of charge ­sheet---Starting point of limitation---Period of thirty days as prescribed in S. O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing, Orders) Ordinance, 1968 would reckon from of knowledge---When embezzlement and fraud was detected during course of proceedings or at some subsequent stage, then S.O. 15(4) of Ordinance, 1968 would not constitute a bar against service of charge-sheet on score of delay---Provisions 'of S.0..15(4) of Ordinance, 1968 could not be interpreted in such a manner as to allow a delinquent to go scot-free after thirty days as such interpretation would neither be logical nor reasonable---Minor delay, if any, could be ignored in view of serious nature of allegations.

(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----

----S.O. 15(4)---Service Tribunals Act (LXX of 197.3), Ss.. 2-A & 4--­Constitution of Pakistan (1973); Art. 212(3)---Dismissal from service--­Charge of misappropriation and embezzlement---Belated charge-sheet--­Effect---Undertaking to repay embezzled amount was given by petitioner on 4-7-1994, 10-7-1994 and 27-8-1994---Charge-sheet in such circumstances issued on 24-10-1994 could not be labeled as belated, one---Such admissions were got exhibited before Labour Court and were in the knowledge of petitioner, but he had not challenged their authenticity or genuineness before Service Tribunal---Such charges had been proved up to the hilt against petitioner, thus, disentitling him to remain in service---No injustice had been done with petitioner as all mandatory formalities envisaged by relevant Rules were adhered to--­Concurrent findings of fact recorded by Bank as well as Service Tribunal could not be reversed without sufficient justification--.­Supreme Court dismissed petition and refused leave to, appeal.

Muhammad Zaman Qureshi, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Petitioner.

M. Iqbal Khan, Advocate Supreme Court and. Ch. Talib Hussain, Advocate-on-Record for Respondents.

Date of hearing: 27th March, 2003.

2004 P L C (C.S.) 177

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

COMMISSIONER, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION

Versus

Dr. JAMAL BUTT and 3 others

Civil Petitions Nos. 119-L to 122-L of 2003, decided on 26th March, 2003.

(On appeal from the judgment dated 26-11-2002 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 1818, 1819, 1857 and 1904 of 2002)

(a) Civil service-----

---- Corruption and malpractice---Civil servants (doctors by profession) made prescription under duress, influence and fear of their immediate boss---Civil servant did not show moral courage to resist such unlawful practice, but preferred to save their employment by facilitating malpractice and corruption---Such was a classic example of erosion of moral values in elite class.

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

----S.4---Jurisdiction of Service Tribunal to modify penalty imposed by Competent Authority---Scope---Tribunal is competent to modify penalty of dismissal from service to that of removal from service---Service Tribunal is competent to examine as to whether imposed penalty does commensurate with gravity of offence or not---Service Tribunal can take into consideration mitigating circumstances.

Faizur Rahman, Advocate Supreme Court for Petitioner (in C. P. No. 119-L of 2003).

Nemo for Respondent (in C. P. No. 119-L of 2003).

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent No.1 (in C.P. No. 120-L of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Respondent No.2 (in C.P. No. 121-L of 2003).

Sh. Masud Akhtar, Advocate-on-Record for Respondent No.4 (in C. P. No. 122-L of 2003).

Date of hearing: 26th March, 2003.

2004 P L C (C.S.) 180

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ZIAULLAH KHAN NIAZI

Versus

THE CHAIRMAN, PAKISTAN RED CRESCENT SOCIETY

Civil Petitions Nos.4155-L of 2002 and 333-L of 2003, deeded on 18th April, 2003.

(For leave to appeal from judgment dated 15-11-2002 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1700 of 2002).

(a) Pat1stan Red Crescent Society Act (XV of 1920)-----

--Preamble, S.7 & First Sched.---Object and aims of Pakistan Red Crescert Society Act, 1920.

As mentioned in General Principles of Society, its object and principal aims include prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of Armed Forces in times of war in accordance with spirit and conditions of Geneva Conference and Treaties of Red Cross to which Pakistan has given its adhesion.

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

----S.4---Punjab Civil Servants Act (VIII of 1974), S.2(1)(b) --- Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), Ss.2, 9 & 10---Pakistan Red Crescent Society Act (XV of 1920), Ss.5 & 7--­Constitution of Pakistan (1973), Art. 212(3)---Appeal- Employee of Punjab Branch of Pakistan Red Crescent Society---Removal from service under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appeal of such employee was accepted by Service Tribunal---Validity---Society could not be treated as a person performing functions in connection with affairs of the Province---Employees of such Society, thus, could not be treated as civil servants of Province of the Punjab---Such employee could not invoke jurisdiction of Service Tribunal merely for being employed in Provincial Branch of Society---Impugned judgment was suffering from jurisdictional defect--­Supreme Court accepted appeal and set aside impugned judgment.

Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner (in C.P. No. 4155-L of 2002) and for Respondent (in C.P. No.333-L of 2003).

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhter, Advocate-on-Record -for Respondent (in C.P. 4155-L of 2003 and for Petitioner (in C.P. No.333-L of 2003).

Date of hearing: 18th March, 2003.

2004 P L C (C.S.) 191

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ISLAMIA UNIVERSITY, BAHAWALPUR

Versus

MUHAMMAD HAMEED BHATTI and another

Civil Appeals Nos.2782 and 2783 of 2001, decided on 27th February, 2003.

(On appeal from the judgment dated 22-2-2001 of the Lahore High .Court, Bahawalpur Bench, Bahawalpur, in Civil Revisions Nos.305-D and 306-D of 1993).

(a) Islamia University of Bahawalpur Act (IV of 1975)-----

----Preamble---Islamia University of Bahawalpur Employees (Pension) Statute, 1979, Chap. II--Islamia University of Bahawalpur Officers (Appointment) Statute, 1977-, Chap. VIII ---ESTACODE, p.309, Condition No.26---Constitution of Pakistan (1973), Art. 185(3)---Pension and move-over, grant of---Right of person re-employed in University--­Leave to appeal was granted to consider, whether re-employment would constitute a bar for grant of pension, move-over and ancillary benefits in view of relevant provisions as contained in Islamia ;University of Bahawalpur Act, 1975 and Islamia University of Bahawalpur Employees (Pension) Act, 1979, whether provisions as contained in Islamia University of Bahawalpur Act, 1975, and Islamia Bahawalpur Employees (Pension) Statute, 1979 could be Instruction, No. 26 published in ESTACODE at p.309 providing that a person re-employed could take all benefits of service and pension, whether High Court had ignored relevant provisions of Islamia University of Bahawalpur Officers (Appointment) Statute, 1977 and resultantly exact nature of service of respondents could not be determined having a substantial bearing to set the controversy at naught.

(b) Islamia University of Bahawalpur Act (IV of 1975)-----

-----Preamble---Islamia University of Bahawalpur Employees (Pension) Statute, 1979, Chap. II,---Islamia University of Bahawalpur Officers (Appointment) Statute, 1977, Chap. VIII---Specific Relief Act (I of 1877), S.42----Constitution of Pakistan (1973), Art. 185(3)---Pensionary benefits and move-over---Entitlement--Plaintiffs after securing premature retirement from another. University joined defendant ­University, which denied them pensionary benefits and approved move­over---Trial Court decreed declaratory suits filed by plaintiffs, which decrees were upheld by Appellate Court -and in revision by the High Court---Validity---Plaintiffs had not been re-employed, rather their appointment was made through initial recruitment method and had been confirmed in their posts after completion of probationary period--­Plaintiffs after attaining superannuation were appointed on contract basis] in view of their meritorious services---Such contract service on their re­employment was after superannuation ---Earlier period of service prior to their retirement, thus, could not be termed as contract employment disentitling them to pensionary benefits-- -Pensionary benefits in such situation ,could not be denied under law to employees already enjoying pensionary 'benefits from previous Department--Plaintiffs after their initial recruitment had rendered service with defendant for more than 10 years, thus, were entitled to pensionary benefits according to Islamia University of Bahawalpur Employees (Pension) Statute, 1979---Denial of move-over as approved by Committee of defendant-University was without any justification---Plaintiffs after their retirement had been undergoing continuous agony for last 13 years---Defendant-University had deprived plaintiffs of their hard-earned benefits for such a long period, which could not be termed as fair on its part---Supreme Court dismissed appeals with direction to defendant-University to pay forthwith Rs. 50,000 as costs to each plaintiff.

(c) Practice and procedure---

---- Whatever is not prohibited is deemed to be permitted.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Mian Fazal Mehmood Fazli, Senior Advocate Supreme Court for Respondents.

Syed Shabbar Raza Rizvi, A.-G., Punjab and Imtiaz Ahmed, Advocate Supreme Court.

Date of hearing: 27th February, 2003.

2004 P L C (S.C.) 198

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

KHALIQ DAD

Versus

INSPECTOR-GENERAL OF POLICE and 2 others

Civil Petition No. 1058-L of 2000, decided on 4th March, 2003.

(On appeal from the judgment/order dated 11-2-2000 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4012 of 1997).

(a) Civil service---

---- Disciplinary proceedings and criminal proceedings ---Differentia--­Acquittal from criminal case---Effect---Both such proceedings are not interdependent and can be initiated simultaneously and brought to logical end separately with different conclusions---Criminal proceedings do not constitute a bar for initiation of disciplinary proceedings under relevant Efficiency and Discipline Rules---Acquittal in criminal case would have no bearing on disciplinary action.

Arif Ghafoor v. Managing Director PLD 2002 SC 13; Dy. I.-G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177; Muhammad Izharul Ahsan Qureshi v. P.I.A.C. 1994 SCMR 1608; Nawaz Khan v. Federal Government 1996 SCMR 315 rel.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975-----

----Rr. 4, 6 & 7---Dismissal from service---Misconduct---Non-holding of regular inquiry due to overwhelming evidence shown in show cause---No prejudice had been caused to civil servant since he had been afforded proper opportunity of hearing---Findings of Competent Authority were duly concurred by Appellate and Revisional Authorities and affirmed by Service Tribunal---No justification to differ with such findings---No illegality or infirmity in impugned judgment was found---No question of law of public importance was involved---Supreme Court dismissed petition and declined leave to appeal.

Muhammad Hussain Awan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th March, 2003.

2004 P L C (C.S.) 236

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

Ch. SHABBIR HUSSAIN and others

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE, and others

Civil Appeal No.8 of 2002 with Criminal Original No.49 of 2002, Civil Appeals Nos.633, 634, 173 of 2002, 1447 of-1998, 1621, 1622 of 1999, 336 to 338 of 2002, 1004, 1005, 1187, 1188 of 2002 and 13 of 2000, decided on 4th December, 2003.

(On appeal from the judgments dated 4-10-2001, 7-3-2002, 13-9-2001, 16-5-1997, 5-3-1999, 5-10-2000, 1-11-2001 and 13-12-1999 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in Service Appeals Nos.3 of 2001, 46 of 1999, 90 of 2001, 17 of 2001, 4 of 1995, 7 and 8 of 1997, 3 of 2000, 54 , 32, 29, 30, 27 and 28 of 2001 and 10 of 1999 respectively).

(a) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991).-----

----S.5---Constitution of Pakistan (1973), Art.212(3)---Adverse entry in Annual Confidential Report---Effect---Contention raised by the Judicial Officer was that adverse entry in his Annual Confidential Report was not based upon any material against him and it was further contented that the representation against the adverse remarks was heard by seven Judges of High Court constituting the Administration Committee, while appeal was heard by three Judges, who could not have decided against the decision of the Administration Committee, therefore, the appeal lost its significance---Judicial officer also contended that the Annual Confidential Report pertaining to the perm from 1-1-1999 to 31-12-1999 was completed in September, 2000 and adverse remarks were communicated to him after a delay of more than 1 year and thus the adverse entry could not be taken into consideration---Leave to appeal was granted by Supreme Court to consider the 'contentions of the Judicial Officer.

Chief Secretary, Government of Punjab, Lahore and .2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 othersl996 SCMR 256; Rana Abdul Ghaffar Khan v. Tile Punjab Government 1989 SCMR 1238 and Syed Tathir Hussain Shiraai v. The Government of the Punjab and others 1990 SCMR 15.10 ref.

(b) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider whether or not formalities, as laid down by Supreme Court in the case titled Noor Elahi v. Director, Civilian Personnel, reported as 1997 SCMR 1949 were observed.

Inspector-General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid 1994 SCMR 1348 ref.

(c) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S.5---Constitution of Pakistan (1973), Art.212(3)--- Leave to appeal was granted by Supreme Court to consider whether it was open to Service Tribunal to accept appeal of Judicial Officers relating to adverse remarks recorded by inspection Judge of the High Court/Countersigning Officer in the facts and circumstances of the case; Whether the judgment was in conflict with the guidelines laid down by Supreme Court regarding recording of Annual Confidential Reports in number of reported cases by. the Supreme Court; whether the judgment was in conformity- with the decisions of Supreme Court in cases titled Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar reported as 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others reported as 1996 SCMR 256 and whether the decision rendered by the Administration Committee comprising of seven Judges of the High Court including the Chief justice was liable to interference by the Tribunal comprising of three Judges of the same Court.

Chief Secretary Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256; Noor. Elahi v. Director, Civilian Personnel 1997 SCMR 1749 and Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 ref.

(d) Judge---

----Integrity and character of Judicial Officers---Principles---Although all civil servants are. bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in. this trait of character in view of the sacred, and sensitive nature of their duties and the pivotal position which justice occupies in Islam---Islam also enjoins that those who perform the function of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances---Judicial Officers are expected to guard their reputation jealously and Reporting Officers/.Countersigning Officers are obliged to assess their conduct after careful consideration and. without being led away by any prejudice or bias.

Holy Qur'an: Sura 4, Verse 135 ref.

(e) Establishment Manual---

----Vol. 1, Instruction No.2---Punjab ESTACODE, Vol. I, Instruction No.2---Delay in writing of Annual Confidential Reports and conveying of adverse remarks whether can vitiate the adverse remarks---Such question is not res integra---Instruction No.2 of the Establishment Manual, Vo1.I, which is in pari materia with the Instruction No.2 of Punjab ESTACODE, Vol. I, is directory in nature---In view of pre­occupation of District and Sessions Judges and Judges of the High Court with ever increasing of judicial work, delay in initiating Annual Confidential Reports of some of Judicial Officers and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question.

Syed Tathir Hussain Shirazi v. Governor of the Punjab and others 1990 SCMR 1510; Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986.SC 684; Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Service Tribunal and 2 others C. P.L.A. No. 1170 of 1998 and Lahore High Court, Lahore through its Registrar v K.M. Sohel 2001 PLC (C.S.) 1253 rel.

(f) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)-----

----S.5---Establishment Manual, Vo1.I, Instruction No.2---Punjab ESTACODE, Vol. I, Instruction No.2---Adverse remarks in Annual Confidential Reports, recording of---Procedure---Contention of Judicial officers was that such entries in their Annual Confidential Reports were not based on tangible evidence---Validity---Evaluation could be termed as objective if it was unambiguous, impartial, unbiased, result of careful consideration and was based on credible information, personal observation of Reporting Officer or Countersigning Officer and reports of the Inspection Judges and it was not necessary that it must be based on tangible material like complaints in writing, resolutions of Bar Associations, transfer applications and assets etc.---Adverse remarks. with regard to integrity of an officer could be made on the basis of his reputation and if the same were required to be supported with tangible material and instances of corruption then there would be no difference between an Annual Confidential Report and Inquiry Report under the Efficiency and Discipline Rules---Adverse remarks in the present cases, were either recorded by Inspection Judges of the High Court as Reporting Officer or endorsed by them as Countersigning Officer and in some cases the Reporting Officers/Countersigning Officers - had scrutinized the work of the Judicial Officers and closely watched their conduct as Inspection Judges, Appellate Authorities and Judicial Heads of the Districts where they were posted, therefore, the adverse remarks were based on credible information, personal observation and the process of inspection---Adverse remarks related to the integrity of the Judicial Officers and were neither vague nor sketchy and there was also nothing on the record to suggest that the integrity and reputation of the Reporting Officers/Countersigning Officers was spot above board and they -had recorded the adverse remarks on, account of bias, prejudice, ill-will or rancour against the Judicial Officers---Subordinate Judiciary. Service Tribunal had rightly dismissed the appeals filed by the Judicial Officers.

Chief Secretary, Government of Punjab, Lahore and 2 .others v. Muhammad Saeed Zafar 1999 SCMR 1587; Ch.. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256; Rana Abdul Ghaffar Khan v. The Punjab Government 1989 SCMR 1238; Syed Tathir Hussain Shirazi v. Governor of the Punjab and others 1990 SCMR 1510; Inspector-General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid 1994 SCMR 1348; Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 .others 1997 SCMR 1749; Government of the Punjab and gnother v. Ehsanul Haq Sethi PLD 1986 SC 684; Aslam Warraich and others v. Secretary, Planning and Development Division 1991 SCMR 2330; Principal, Government College Thana, Malakand v. Mrs. Bilquis Begum 2003 PLC (C.S.) 187; Pakistan Television Corporation v. S. Ahtramullah 1987 SCMR 753; Pakistan v. R.S. Roopchand PLD 1967 SC 47; Kh. Saeedul Hassan v. Government of the Punjab through Chief Secretary, Lahore 1994 PLC (C.S.) 113;' Lahore High Court, Lahore through Registrar v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117; Shaukat Javed Farooqi v. District and Sessions Judge, Lahore and another 1999 SCMR 2141; Muhammad Zafar Qureshi v. Government of the Punjab and 2 others C.P.L:A. No. 1529-L of 1996; Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Service Tribunal and 2 others .C.P.L.A. No.1770 of 1998; Lahore High Court, Lahore through its Registrar v. K.M. Sohel 2001 PLC (C.S.) 1253; Ch. Muhammad Hanif v. Lahore High Court. Lahore C.P.L.A. No.2102-L of 1999; Ghulam Mustafa Shahzad v. Lahore High Court, Lahore through its Registrar C.Ps.L.A. Nos.2780 to 2782-L of 2001; Province of the Punjab v. Sardar Noor Ilahi Khan Leghari 1992 SCMR 1427; Khawaja Saeed-ul­ Hassan v. Government of the Punjab 1994 SCMR 1815; Sirajuddin Qureshi v. Administration Committee of,Sindh High Court 1985 PLC (C.S.) 704 and F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 ref.

(g) Mala fides---

--- Allegation of mala fides---Onus to prove---Such allegation can be easily made than proved---Allegation of. mala fides requires proof of a high order owing to its serious nature and the burden of proof lies heavily on the person who makes it.

Federation of Pakistan. v. Saeed Ahmed Khan PLD 1974 SC 151 rel.

(h) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)-----

----S.5---Subordinate Judiciary Service Tribunals ---Composition--­Object---Contention of Judicial Officers was that as the Subordinate Judiciary Service Tribunal consisted of three Judges of the High Court who were junior to the members of Administration Committee of the High Court, therefore, the Subordinate Judiciary Service Tribunal could not interfere with the observations of the Administration Committee--­Validity---Subordinate Judiciary Service Tribunals are established under Punjab Subordinate Judiciary Service Tribunals Act, 1991, which is a manifestation of separation of the Judiciary from the Executive and a symbol of independence of judiciary---Mere fact that two appeals before Supreme Court have been filed by High Court through its Registrar against acceptance of the appeals preferred by a Judicial officer was sufficient for holding that composition of the Tribunal was unexceptionable---Contention of the Judicial Officers had no force and was illusory.

(i) Punjab 'Subordinate Judiciary Service Tribunals Act (XII of 1991)------

----S.S---Rejection of representations---Scope---Where the representations were rejected by the order based on detailed reasons recorded by the sub-committees constituted by the Administration Committee, such rejection could not be called `a simple ritualistic rejection'.

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

(j) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)----

----S.5---Establishment Manual, Vol., I, Instruction No.2---Punjab ESTACODE, Vol. I, Instructions Nos.2 & 6,5---Adverse remarks in Annual Confidential Report---Reputation of Judicial Officer---Contention of the Judicial Officer was that he had mentioned maintaining a car in his declaration of assets---Judicial Officer further contended that the Inspection Judge had recorded the remarks with a delay after his retirement---Subordinate Judiciary Service Tribunal allowed the appeal of the Judicial Officer and expunged the remarks made by the Inspection Judge---Validity---Adverse remarks were made by the Judge of the High Court/Inspection Judge as Countersigning Officer were inviolable and the judgment of the Service Tribunal was not sustainable---Mere fact that the Judicial Officer had mentioned the car being maintained by him in the declaration of assets was not enough for expunction of the remarks---Allegation of bias made by the Judicial Officer against the Countersigning Officer having not been established was unfounded--- Adverse remarks recorded by the Countersigning Officer after his retirement could not be eliminated as Instruction No:65 of Punjab ESTACODE, Vol. I has- provided that the officer proceeding on retirement should be asked to write the requisite Annual Confidential Reports before his retirement---Such instruction was directory and not mandatory---Judgment passed by the Service Tribunal was set aside and' appeal by the Judicial Officer was dismissed.

Ch. Fazal Hussain, Malik Muhammad Qayyum, Shaukat Ali Mehr, Advocates Supreme Court and. M.A. Qureshi, Advocate-on-­Record (absent) for Appellants (in C.As.8 with Cr.0.49, 633, 634 and 173 of 2002).

Tallat Farooq Sheikh, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record (absent) for Appellant (in C.A. No. 1447 of 1998).

Malik Muhammad Azam Rasool, . Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate-on-Record for Appellant (in C. As. Nos. 1621 and 1622 of 1999).

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant (in C.As. Nos.336 to 338 of 2002):

Khawaja. Ibrar Majal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant (in C.As. Nos. 1004 and 1005 of 2002).

Malik Muhammad Qayyum, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Appellant (in C.As. Nos.1187 and 1188; of 2002).

Sh. Zameer Hussain, Advocate Supreme Court with 'M.S. Khattak, Advocate-on-Record for Appellant (in C.A. 13 of 2000).

Malik Azam Rasool, Advocate - Supreme Court with Rao Muhammad Yousaf Khan, Advocate-on-Record and Nazar Hussain, Deputy Registrar, Lahore High Court, Lahore for Respondents.

Respondent in person (in C.As. Not. 1621 and 1622 of 1999).

Dates of hearing: 6th, 7th, 8th and 10th October, 2003.

2004 P L C (C.S.) 301

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Hamid Ali Mirza and Faqir Muhammad Khokhai, JJ

COLLECTOR, CUSTOMS AND CENTRAL EXCISE, PESHAWAR and 2 others

Versus

ABDUL WAHEED and 7 others

Civil Petitions Nos.2318 to 2323, 2371 and 2545 of 2002, decided on 6th November, 2003.

(On appeal from the judgment dated 9-9-2002 in Appeals Nos.475(P) of 1999, 49(P)CS to 53(P)CS, 59(P)CS' and 82(P)CS of 2000 passed by the Federal Service Tribunal, Islamabad).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Service of ad hoc appointees, termination of--Political appointments --- Non7COMpliance of procedure for appointment---Lapses on the part of Appointing Authorities---Services of civil servants were terminated for the reason that they were not appointed on merits rather the appointments were made due to political and external pressures---Termination order was set aside by Service Tribunal and the civil servants were reinstated on the ground that the Appointing Authority, at no stage, had applied its independent mind at the time of initial appointment and carried out the directives of other Authorities---Plea raised by the Authorities was that the appointments of civil servants were made without observing prescribed procedure for appointment and they were no more required being ad hoc appointees---Validity---Appointments of civil servants were made by Competent Authority---If prescribed procedure was not followed by the concerned Authority, they civil servants could not be blamed for what was to be performed and done by the Competent Authority---Competent Authorities should be held responsible and liable for the lapse on their part---Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being over-age---Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family---Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities---Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law---Authorities had terminated the services of civil servants without any just and legal cause---Leave to appeal was refused.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 PLC (C.S.) 1027 and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines and others 2002 SCMR 1034 ref.

Hafiz S.A. Rehman, D.A.-G. for Petitioners.

Nemo for Respondents (in Civil Petition No.2318 of 2002).

Khushdil Khan, Advocate Supreme Court for Respondents (in Civil Petitions Nos.2319, 2321, 2322 and 2323 of 2002).

Nemo for Respondents (in Civil Petitions Nos.2320, 2371 and 2545 of 2002).

Date of hearing: 6th November, 2003

2004 P LC (C.S.) 312

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and another

Versus

NOOR JAMAL, EX-EXECUTIVE ENGINEER

Civil Appeal No. 838-L of 2000, decided on 20th October, 2003.

(On appeal from the judgment dated 3-7-1999 of the Federal Service Tribunal, Islamabad, passed in Appeal No.244-L of 1999).

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

----Art.185(3)---Leave to appeal was granted by the Supreme Court to consider whether judgment of Service Tribunal was sustainable as the main judgment written by its Member appeared to be based on reactionary approach rather than the legal one for not filing the parawise comments; that whether the inquiry report which was quite in detail and wherein the civil servant fully participated, could be brushed aside by the. Tribunal as no reference was made to it in the judgment made by the Tribunal and that whether the civil servant in view of the charges against him was entitled to reinstatement in service with all consequential benefits.

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

----Rr.2(4), 3(b) & 6---Service Tribunals Act (LXX of 1973), S.4--­Reinstatement---Imposing of major penalty---Failure to conduct proper inquiry---Civil servant was dismissed from service on the charge of misconduct ---Fact-finding inquiry proceedings pertaining to two charges against the civil servant were conducted by the Department and on the basis of such inquiry report major penalty of dismissal from service was awarded---Civil servant, on the contrary, was exonerated in the inquiry conducted by Federal Investigation . Agency as there was no material available against him---Service Tribunal allowed the appeal and the civil servant was reinstated in the service---Validity---In case of awarding major penalty, a proper inquiry was to be conducted in accordance with R.6 of Government Servants (Efficiency and Discipline) Rules, 1973, wherein a delinquent officer was to be provided an opportunity of defence and personal hearing after issuing him show-cause notice and obtaining his reply thereto and if the charges were proved in the regular inquiry, he was to be penalized---Judgment passed by the Service Tribunal was based on valid reasons and was in consonance with the law laid down by Supreme Court---Neither there was misreading or non­ reading of material evidence, nor misconstruction of facts or law was involved in the judgment of the Service Tribunal, appeal was dismissed by the Supreme Court.

Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Malik Azam Rasool, Advocate Supreme Court for Respondent.

Date of hearing: 20th January, 2003.

2004 P L C (C.S.) 328

[Supreme Court of Pakistan]

Before Sh. Riaz Ahmad, CJ, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and another

versus

NOOR JAMAL, EX‑EXECUTIVE ENGINEER

Civil Appeal No.838‑L of 2000, decided on 20th October, 2003.

(On appeal from the judgment dated 3‑7‑1999 of the Federal Service Tribunal, Islamabad, passed in Appeal No.244‑L of 1999).

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

‑‑‑‑Art.185(3)‑‑‑Leave to appeal was granted .by the Supreme Court to consider whether judgment of Service Tribunal was sustainable as the main judgment written by its Member appeared to be based on reactionary approach rather than the legal one for not filing the parawise comments; that whether the inquiry report which was quite in detail and wherein the civil servant fully participated, could be brushed aside by the Tribunal as no reference was made to it in the judgment made by the Tribunal and that whether the civil servant in view of the charges against him was entitled to reinstatement in' service with all consequential benefits.

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

‑‑‑‑Rr.2(4), 3(b) & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Reinstatement‑‑‑Imposing of major penalty‑‑‑Failure to conduct proper inquiry‑‑‑Civil servant was dismissed from service on the charge of misconduct ‑‑‑Fact finding inquiry proceedings pertaining to two charges against the civil servant were conducted by the Department and on the basis of such inquiry report major penalty of dismissal from service was awarded‑‑‑Civil servant; on the contrary, was exonerated in the inquiry conducted by Federal Investigation Agency as' there was no material available against him‑‑‑Service Tribunal allowed the appeal and the civil servant was re‑instated in the service‑‑‑Validity‑‑‑In case of awarding major penalty, a proper inquiry was 4o be conducted in accordance with R.6 of Government Servants (Efficiency and Discipline) Rules, 1973; wherein a delinquent officer was to be provided ‑an opportunity of defence and personal hearing after issuing him show‑cause novice and obtaining his reply thereto and if the charges were proved in the regular inquiry, he was to be penalized‑‑‑Judgment ,passed ,by the Service Tribunal was based on valid reasons and was in consonance with the law laid down by Supreme Court‑‑‑Neither there was misreading or non­reading of material evidence, nor misconstruction of facts or law was involved in the judgment of the Service Tribunal, appeal was dismissed by the Supreme Court.

Jan Muhammad v. General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Inspector‑General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Malik Azam Rasool, Advocate Supreme Court for Respondent.

Date of hearing: 20th January, 2003.

2004 P L C (C.S.) 344

[Supreme Court of Pakistan]

Before Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director, PIAC, Head Office Karachi Airport, Karachi

versus

Ms. SHAISTA NAHEED

Civil Petition No.918 of 2003, decided on 3rd November, 2003.

(On appeal from the judgment dated 17‑3‑2003 of the Federal Service Tribunal, Islamabad, passed in Appeal.No.411 (R)CE/2002).

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

‑‑‑‑S.II, C1.75 (h), (ah) & (aj)‑‑‑Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5 & 8 [as amended by Removal From Service (Special Powers) Ordinance. (V of 2001)]‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Removal from service‑‑‑Proper inquiry, non‑conducting .of‑‑‑Employee was exonerated in departmental inquiry conducted against her under Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑Second inquiry was conducted under the provisions of Removal from Service (Special Powers) Ordinance, 2000, and the employee was dismissed from service‑‑‑Service Tribunal allowed the appeal filed by the employee and reinstated her in service with back benefits‑‑‑Plea raised by the Pakistan International Airlines Corporation was that the employee was rightly dismissed from service as there was no bar on conducting the second inquiry under the provisions of Removal from Service (Special Powers) Ordinance, 2000‑‑‑Validity‑‑‑On failure of first inquiry, second inquiry was initiated under the Removal from Service .. (Special Powers) Ordinance, 2000‑‑‑Such action was unjustified and it showed that the employer was bent upon to remove the employee from service in any case‑‑‑In case of charge of misconduct, under S.5 of Removal from Service (Special Powers) Ordinance, 2000, a full‑fledged inquiry was to be conducted, which had not been done in the case‑‑‑In case of awarding major penalty. a proper inquiry was to be conducted in accordance with law wherein a full opportunity of defence was to be provided ‑‑‑ Judgment passed by Service Tribunal was based on valid and sound reasons and was in consonance with the law laid down by Supreme Court‑‑­Neither there was misreading or non‑reading of material evidence nor misconstruction of facts and law‑‑‑No question of general public importance, as contemplated under Art.212(3) of the Constitution was involved in the case‑‑‑Leave to appeal was refused.

Inspector‑General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.

Qalb‑e‑Hussain Shah, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Respondent in person.

Date of hearing: 3rd November, 2003.

2004 P L C (C.S.)361

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

THE PROVINCE OF PUNJAB through, Secretary Education Department, Lahore and others

versus

Mst. SARWARI BEGUM

Civil Petition No.879‑L of 2001, decided on 6th May, 2003.

(On appeal from the judgment dated 30‑1‑2001 of the Lahore High Court, Lahore, passed in I.C.A. No.435 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.185(3) & 212‑‑‑Non‑implementation of summary for appointment of civil servant approved by Competent Authority on merits‑‑‑High Court accepted Constitutional petition of civil servant directing the Authority not to make appointment for extraneous considerations by ignoring merits as determined by Competent Authority, and that such summary could not be kept pending on the basis of bureaucratic bottle‑necks created by the Authority‑‑‑Validity‑‑‑Case of the authority was not that no such summary had even been prepared‑‑­Approval of summary had not been challenged‑‑‑No question of terms and conditions of service ousting Constitutional jurisdiction of High Court was involved in the matter‑‑‑Findings of High Court being well based did not warrant any interference‑‑‑No question of law of public importance was involved 'in the matter‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Haji Ghulam Rasool and others v. Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376 ref.

Muhammad Sharif Butt, Advocate Supreme Court and Rao M. Yousaf, Advocate‑on‑Record (absent) for Petitioners.

Respondent in person.

Date of hearing: 6th May, 2003.

2004 P L C (C.S.) 367

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ .

THE PROVINCE OF PUNJAB through, The Secretary Education (EE), Government of the Punjab, Lahore and others

versus

LIAQAT ALI

Civil Petition No.3456‑L of 2001, decided on 5th May, 2003.

(On appeal from the judgment dated 21‑8‑2001 of the Punjab Service Tribunal, Lahore passed in appeal No.3060 of 2000).

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

‑‑‑‑R.4(1)(b)(v)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service after six years on ground of misconduct and appointment being against rules ‑‑‑Service Tribunal set aside such order in appeal filed by the civil servant‑‑‑Validity‑‑‑Authenticity of documents on basis whereof appointment was made, had been confirmed by appointing authority‑‑‑Charges against civil servant could not be substantiated on the basis of worth of credence documentary evidence‑‑‑Non‑production of inquiry report before Service Tribunal, in spite of its various directions would give rise to the presumption that no such inquiry had even been conducted‑‑‑Non‑mentioning of name of civil servant in the Dispatch Register would have no bearing on merits of the case‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Petitioners.

Tanvir Ahmed, Advocate‑on‑Record for Respondent.

Date of hearing: 5th May, 2003.

2004 P LC (C.S.) 371

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

Mst. SAMINA NAZEER

versus

DISTRICT EDUCATION OFFICER (W), KHANEWAL and others

Civil Petition No.4012‑L of 2001, decided on 14th May, 2003.

(On appeal from the judgment dated 31‑10‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.3592 of 1999).

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

‑‑‑‑Rr.4(1)(b)(iv) & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Termination of service without holding regular inquiry‑‑‑Validity‑‑‑Civil servant's name was not included in the merit list of selected candidates‑‑­Transfer order and joining report of civil servant were fake and fabricated ‑‑‑Factum of fraud and forgery being a question of fact had been determined by authority on the basis of relevant record and affirmed by Service Tribunal after perusing entire record would not warrant any interference‑‑‑Competent Authority could dispense with holding of regular inquiry under R.6 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑Allegations levelled against civil servant had been proved on basis of documentary evidence, thus, regular inquiry was not necessary‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Ch. M.S. Shad, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 14th May, 2003.

2064 P L C (C.S.) 378

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

COLLECTOR, CUSTOMS AND CENTRAL EXCISE PESHAWAR and 2 others

versus

ABDUL WAHEED and 6 others

Civil Petitions Nos‑.2318 to 2323, 2371 and 2545 of 2002, decided on 6th November, 2003.

(On appeal from the judgment dated 9‑9,2002 in Appeals Nos. 475(P) of 1999, 49(P)CS to, 53(P)CS, 59(P)CS and 82(P)CS of 2000 passed by the Federal Service Tribunal, Islamabad).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Service of ad hoc appointees, termination of‑‑‑Political appointments‑‑‑Non‑compliance of procedure for appointment‑‑‑Lapses on the part of appointing Authorities‑‑‑Services of civil servants were terminated for the reason that they were not appointed on merits rather the appointments were made due to political and external pressures‑‑‑Termination order was set aside by Service Tribunal and the civil servants were reinstated on the ground that the appointing Authority, at no stage, had applied its independent mind at‑the time of initial appointment and carried out the directives of other Authorities‑‑‑Plea raised by the Authorities was that the appointments of civil servants were made without observing prescribed procedure for appointment and they were no more required being ad‑hoc appointees‑‑‑Validity‑‑‑Appointments of civil servants were made by Competent Authority‑‑‑If prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority‑‑‑Competent Authorities should be held responsible and liable for the lapse on their part‑‑‑Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage‑‑‑Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family‑‑‑Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law‑‑‑Authorities had terminated the services of civil servants without any just and legal cause‑‑‑Leave to appeal was refused.

Secretary to Government of N.‑W.TP. Zakat/Social Welfare Department v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor‑General of Pakistan and others 2002 PLC (C.S.) 1027 and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines and others 2002 SCMR 1034 ref.

Hafiz S.A. Rehman, D.A.‑G. for Petitioners.

Nemo for Respondents (in C.P. No.2318 of 2002).

Khushdil Khan, Advocate Supreme Court for Respondents (in C.Ps. Nos.2319, 2321, 2322 and 2323 of 2002).

Nemo for Respondents (in C.Ps. Nos.2320, 2371 and 2545 of 2002).

Date of hearing: 6th November, 2003.

2004 P L C (C.S.) 385

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ

PROVINCE OF PUNJAB through the Chief Engineer, Highway Department and others

versus

PERVAIZ IQBAL.

Civil Appeal No. 497 of 1999, decided on 30th September, 2003.

(On appeal from the judgment dated 26‑i1‑1997 of the Punjab Service Tribunal, Lahore, passed in Appeal No.285 of 1974).

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

‑‑‑‑Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of Authorities that basic educational qualification for the post in dispute was matriculation with science and under para.5 of Notification dated 8‑10‑1991, an officer was qualified for the grant of increments on his improving prescribed qualification i.e. passing B.Sc., as matriculation with Science was the prescribed qualification and not B.A., as such, even under the notification, the grant of two increments was not permissible which aspect of the case did not receive consideration by the Service Tribunal.

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

‑‑‑‑S.4‑‑‑Advance increment, withdrawal of.‑‑Retrospective effect of circular letter‑‑‑Civil servant was appointed as Divisional Head Draftsman in Punjab Highways Department‑‑‑Basic qualification for the post was matriculation with science‑‑‑Two advance increments vide Notification dated 1‑8‑1991, were to be allowed to the civil servants on improvement of their qualification‑‑‑Civil servant passed his B.A. examination and he was given two increments vide order dated 15‑11‑1992‑‑‑Subsequently the Authorities had withdrawn the increments on the basis of clarification of Finance Department regarding nature of the qualification to be improved by the civil servants‑‑‑Service Tribunal allowed the appeal filed by the civil servant and the order for withdrawal of increments was set aside‑‑‑Validity‑‑‑Decision for withdrawal of such advance increments was made pursuant to new sub para added in the circular which sub‑para. was not available in the original circular whereby two advance increments were granted to the civil servant on account of higher qualifications which he acquired‑‑‑Circular letter could not be equated to that of a legitimate piece of legislation and the same could not have its retrospective effect‑‑‑Civil servant was not entitled to get two advance increments after the date of issuance of the circular with new added sub‑para. which had no effect on the increments for the period prior to issuance of the clarification‑‑‑Advance increments already given to the civil servant could not be. withdrawn retrospectively‑‑­Supreme Court directed that no deduction would be made from the pay of the civil servant already paid prior to the date of issuance of the amended circular‑‑‑Appeal was disposed of accordingly.

Mrs. Afshan Ghazanfer, A.A.‑G. and Rao Muhammad Yusuf Khan, Advocate‑on‑Record (absent) for Appellants.

Respondent in person.

Date of hearing: 30th September, 2003.

2004 P L C (C.S.) 389

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD AKRAM MALIK

Versus

DIRECTOR OF EDUCATION and others

Civil Petition No.875‑L of 2000, decided on 20th March, 2003.

(On appeal from the judgment dated 17‑2‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1558 of 1997).

Civil service‑‑‑

‑‑‑‑ Promotion on basis of order passed by Senior Minister‑‑‑Validity‑‑­Such order having been passed in violation of prescribed procedure, merit and seniority, would be ab initio void having no legal sanctity whatsoever‑‑‑Such order was not to be implemented being illegal and unlawful by Authorities concerned.

M.A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th March, 2003.

2004 P L C (C . S .) 401

[Supreme Court of Pakistan]

Present Javed Iqbal and Faqir Muhammad Khokhar, JJ

THE CHIEF SECRETARY, GOVERNMENT OF PTJNJAB, LAHORE and others

versus

NAZIR AHMAD SABIR

Civil. Petition No.3646‑L of 2002, decided on 18th March, 2003.

(For leave to appeal from judgment dated 21‑8‑2002 passed by. the Punjab Service Tribunal, Lahore in Appeal No. 1841 of 2001).

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

‑‑‑‑Rr.3(a) & 4(1)(b)(iv)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Removal from service‑‑‑Wilful absence‑‑Civil servant absented from duty after filing application for early retirement from service‑‑‑Inquiry Officer recommended for his retirement by treating period of his absence as extraordinary leave without pay‑‑‑Authority imposed penalty of removal from service‑‑‑Service Tribunal accepted appeal of civil servant by allowing him to retire from service from date of removal from service‑‑‑Contention of Authority was that Tribunal was not justified to convert penalty of removal from service into retirement ‑‑‑Validity‑‑­Inquiry Officer had also recommended for retirement of civil servant, from service by treating his period of absence as extraordinary leave without pay ‑‑‑Application of civil servant seeking early retirement had not at all been decided by Authorities‑‑‑Tribunal had rightly passed impugned judgment‑‑‑No substantial question of law of pubic importance having been raised, Supreme Court dismissed petition.

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

‑‑‑‑Art.212(3)‑‑‑Leave to appeal, grant of‑‑‑Condition precedent‑‑­Raising any substantial question of law of public importance was‑, sine qua non for grant of leave to appeal under Art.212(3) of the Constitution.

Aziz Ahmed Chughtai, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 18th March, 2003.

2004 P L C (C.S.) 405

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and others

versus

MUHAMMAD AFZAL KHAN

Civil Petition No.3305‑L of 2001, decided on 22nd May, 2003.

(On appeal from the judgment dated 15‑8‑2001 of the Punjab Service Tribunal, Lahore passed in Appeal No. 1425 of 1999).

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

‑‑‑‑Rr. 4(1)(a)(b) & 18‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Minor penalty of censure imposed by Authorised Officer was substituted by Revisional Authority (Secretary to Government of the ‑Punjab, Agricultural Department) with major penalty of reduction in time scale by two stages‑‑‑Service Tribunal set aside order of Revisional Authority‑‑‑Contention of Department was that order of Authorize' Officer could not be treated as sacrosanct, but could be reversed or altered by Government while exercising revisional jurisdiction‑‑‑Supreme Court granted leave to appeal to consider such contention and also the question, whether the Secretary could simultaneously exercise powers of Appellate as well as Revisional Authority, and if so, whether same would be in the interest of justice, fair play and equity.

Miss Salma Malik, Assistant A.‑G., Punjab M. Akbar, Tarer, A.A.‑G. and Aziz Ahmad Chughtai, Advocate‑on‑Record for Petitioners.

Respondent in person.

Date of hearing: 22nd May, 2003.

2004 P L C (C.S) 407

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ZI.A‑UL‑ISLAM HASHMI

versus

DEPUTY INSPECTOR and others

Civil Petition No.642‑L of 2002, decided on 2nd January, 2003.

(On appeal from the judgment dated 4‑1‑2002 passed by the Punjab Service Tribunal, Lahore, in Appeal No.3226 of 2000).

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

‑‑‑‑Rr.4(1)(b) & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Compulsory retirement‑‑‑Charge of using stolen non‑custom paid car displaying thereon fake registration number‑‑‑Such penalty imposed by Authority was upheld by Service Tribunal‑‑Validity‑‑‑Car had been spotted by Traffic Magistrate carrying a Police Sticker and blue revolving light commonly used by police‑‑‑Registration, chassis and engine number of car were found to be .fake‑‑‑No mala fides on the part of Magistrate in such matter‑‑‑Driver of car had disclosed that same belonged to civil servant (Police Inspector)‑‑‑Such major 'penalty had rightly been awarded to civil servant‑‑‑Holding of regular inquiry was not necessary in view of peculiar facts and circumstances of case‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Khadim, Advocate. Supreme Court for petitioner.

Nemo for Respondents.

Date of hearing: 2nd January, 2003.

2004 P L C (C.S.)413

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

RIASAT ALI

versus

PRINCIPAL, GOVERNMENT TECHNICAL TRAINING CENTRE, SAHIWAL and another

Civil Petition for Leave to Appeal No.487‑L of 1998, decided on 18th April, 2002.

(On appeal from the judgment dated 16‑2‑1998 of the Punjab Service Tribunal, Lahore, passed in Appeal No.66 of 1995).

Civil service‑‑‑

‑‑‑‑ Acquittal of civil servant from criminal case would not be a bar for departmental proceedings‑‑‑Both proceedings, criminal as well as departmental, can go side by side.

Deputy Inspector‑General of Police, Lahore and others v. Aneesur Rehman Khan PLD‑ 1985 SC ‑ 134; Mir Nawaz Khan v. Federation of Pakistan through Secretary, ‑ Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 and Muhammad Ayub v. Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195 rel.

Petitioner in person.

Nemo for Respondents

Date of hearing: 18th April, 2002.

2004 P L C (C. S.) 418

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ'

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

versus

ABDUL GHAFOOR and others

Civil Appeal No. 1582 of 2000, decided on 24th May, 2002

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

‑‑‑‑Ss.. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Contractual employees of Pakistan International Airlines Corporation‑‑­Termination of service‑‑‑Supreme Court granted leave to appeal to consider as to whether S.2‑A of Service Tribunals Act, 1973 would be applicable to such employees, and that which provision .of law would govern removal/termination of such employees.

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

‑‑‑‑Ss. 2‑A. & 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Contractual employee of Pakistan International Airlines Corporation‑‑­Order of termination of service of such employee not passed by Competent Authority‑‑‑Service Tribunal accepted appeal of employee, which judgment was upheld by Supreme Court.

Qamarul Islam Abbas, Advocate Supreme Court for Appellant.

Respondent No. 1 in person.

Date of hearing: 24th May, 2002.

2004 P L C (C.S.) 420

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

MUHAMMAD ZAKIR KHAN

versus

GOVERNMENT OF SINDH and others

Civil Petition for Leave to Appeal No.471‑K of 2002, decided on 10th December, 2003.

(On appeal from the judgment of Sindh Service Tribunal, Karachi dated 28‑2‑2002 passed in Appeal No.358 of 1998).

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

‑‑‑‑Rr.6‑A & 7(1)‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.12(a)(b)‑‑‑Sindh Civil Servants Act (XV of 1973), Ss. 8 & 24‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Seniority‑‑‑Protection of service of petitioner rendered in a Statutory Body coordinating with the Local Government Department ' of the Province in the matter of seniority‑‑‑Petitioner, employee of a statutory body, had opted for permanent absorption in the Government Department provided his service rendered in the statutory body was counted towards seniority etc. in terms of R.12(a), Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975‑‑‑Petitioner was appointed by transfer in the Government Department accordingly until further orders by a notification‑‑‑Validity‑‑‑Case of the petitioner was covered by R.12(b), Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 which stipulated that after appointment by transfer on the request of appointee, he shall rank junior to all other. persons appointed before him on regular basis‑‑‑Case of the petitioner, having not been duly considered by the appropriate Departmental Promotion Committee at the time of his appointment by transfer, benefit of R.12(a), Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 could not be extended to him‑‑‑For the purpose of assigning ante‑dated seniority to the petitioner and for his absorption a summary should have been submitted to the Chief Minister, who might be competent to relax the. Rules in larger public interest‑‑‑Case of the petitioner, however, would not fall within the domain of a "hardship case" ‑‑‑Seniority being not a vested right of a civil servant at Sr. No. 1 did not confer any vested right on him to invoke the doctrine of locus poenitentiae as power of rescission or recall of the earlier order ,was always available to the Authority passing an earlier order‑‑‑Principles.

In the present case the petitioner was not serving as civil servant in any Government Department or organization authorizing his appointment by transfer without any due process. He was serving in a statutory body coordinating with the Local Government’ Department and, thus, could not be said to be a civil servant. Rule 6‑A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 categorically postulated that for the purposes of selection for appointment by promotion or transfer to posts in grade 18 bearing special pay and allowance and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board. Furthermore, Rule 7(1) stipulated that appointment by promotion or transfer to posts in grades 1 and 2 shall be made by the Appointing Authority on merit whereas appointment by promotion and transfer to hosts in grades 3 to 18 without special pay other than the posts in which Provincial Selection Board has been constituted under Rule 6‑A, shall be made on the recommendation of the appropriate Departmental Promotion Committee. While the petitioner specifically pleaded that his appointment in Karachi Development Authority was made on the recommendation of appropriate Selection Board, it was neither pleaded, nor urged at the bar that this process was adopted while inducting him in Education Department, as required by the above said Rules. Again mandatory requirement of Rule 8 is to the effect that persons who possessed "such" qualifications and fulfilled the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or Provincial Selection Board, as the case may be. Case of the petitioner was not duly considered by the appropriate Departmental Promotion Committee at the time of his appointment by transfer. Benefit of Rule 12(a) of the Sindh Civil Servants (Probation. Confirmation and Seniority) Rules, 1975 could not be extended to him.

Department, as required by the above said Rules. Again mandatory requirement of Rule 8 is to the effect that persons who possessed "such" qualifications and fulfilled the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or Provincial Selection Board, as the case may be. Case of the petitioner was not duly considered by the appropriate Departmental Promotion Committee at the time of his appointment by transfer. Benefit of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 could not be extended to him.

In present case the petitioner had opted to accept the regular appointment on permanent footing in Education Department, the department was not bound to accept the condition as regards the counting of past services rendered in Karachi Development Authority by the petitioner. Services of the petitioner were not essentially required by the Education Department for absorption by way of transfer from Karachi Development Authority, as no exceptional grounds had been shown to exist on the face of record. Even otherwise, assuming that the department required his services in the exigencies of public interest, it was within the competence of the Chief Minister to approve of his induction and to extend the benefit of the provisions contained in Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 after exercising his plenary powers by relaxing the Rules. The Education Minister was not legally competent to exercise such powers on behalf of the Chief Minister to whom even the case was not referred for ex post facto approval or for exercise of discretion in terms of section 24 of the Sindh Civil Servants Act, 1973 as a hardship case.

For the purpose of assigning ante‑dated seniority to the petitioner' and for his absorption a summary should have been submitted to the Chief Minister, who might be competent to relax the Rules in larger public interest. The case of the petitioner would not fall within the domain of a "hardship case". .

Apart from section 21 of the General Clauses Act, 1897, power of rescission or recall of the earlier order is always available to the Authority passing an earlier order.

Seniority is not a vested right of the civil servants under the Sindh Civil Servants Act 1973, thus, placement of the petitioner in the provisional seniority list at Serial No. l did not confer .any vested right on him to invoke the doctrine of locus poenitentiae.

Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207; Pakistan v. Muhammad Himayatullah PLD. 1969 SC 407; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director‑General v. Muhammad Abdul Latif 2003 SCMR 410 and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 ref.

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

‑‑‑‑S.21‑‑‑Locus poenitentiae, principle of‑‑‑Power of rescission or recall of the earlier order is always available to the Authority passing that order.

(c ) Sindh Civil Servants Act (XV of 1973)‑‑‑

‑‑‑‑S.8‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Seniority‑‑‑Seniority being not a vested right of civil servant under Sindh Civil Servants Act, 1973, placement of a civil servant in the provisional seniority list at Sr. No. l would not confer any vested right on him to invoke the doctrine of locus poenitentiae.

Pakistan v. Muhammad Himayatullah PLD969 SC 407; Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director General v. Muhammad Abdul Latif 2003 SCMR 410 and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 ref.

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

‑‑‑‑S.23‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Petitioner was required to file appeal within thirty days whereas he had wasted time unnecessarily in making second appeal/ representation to the Department for referring his case to the Services and General Administration Department for consultation with the Provincial Law Department/Advocate‑General, which was turned down‑‑‑Effect‑‑‑No scope for repeated appeals/representations was available to the civil servant and the period of limitation could not be extended by repeated representations‑‑‑Appeal of civil servant was rightly held time barred by the Service Tribunal.

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

‑‑‑‑Art. 212(3)‑‑‑Appeal to Service Tribunal‑‑‑Service Tribunal having elaborately dealt with 'the pros and cons of the case of the petitioner in juxtaposition to the case of opponent civil servant, complete justice had been done and there was no ground for interference by the Supreme Court in exercise of the jurisdiction under Art. 212(3) of the Constitution‑‑‑Petition for leave to appeal was dismissed.

Manzoor Ali Khan; Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos. l to 5 and 7 to 18.

Naraindas C. Motiani, Advocate Supreme Court/Advocate‑on Record for Respondent No.6.

Date of hearing: 24th October, 2003.

2004 P L C (C.S.) 435

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

JAVED IQBAL QAMAR

versus

PAKISTAN TELECOMMUNICATION CO. LTD through its Chairman, Islamabad and another

Civil Petition No.2472‑L of 2002, decided on 2nd April, 2003.

(On appeal from the judgment dated 7‑8‑2000 of the Federal Service Tribunal, passed in Appeal No. 1924(L) of 1998).

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

‑‑‑‑Rr. 4(1)(b)(iv) & 6‑‑‑Dismissal from service without holding regular inquiry‑‑‑Validity‑‑‑Such penalty could be imposed in absence of regular inquiry, which could be dispensed with by competent authority, if circumstances so justified.

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

‑‑‑‑Rr. 4(1)(b)(iv), 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art. 212(3)‑1Dismissal from service‑‑­Charge of wilful absence from duty for 15 years‑‑‑Non‑holding of regular inquiry‑‑‑Such penalty imposed by authority was upheld by Service Tribunal‑‑‑Validity‑‑‑Civil servant had been sanctioned one month ex‑Pakistan leave, but he had submitted joining report after expiry of 15 years‑‑‑Civil servant had remained abroad unauthorizedly‑‑‑No plausible justification could be furnished for such a long wilful absence‑‑‑Civil servant had approached Tribunal after six years of passing of departmental order without making application for condonation of such inordinate delay‑‑‑Appeal before Tribunal was hopelessly time‑barred‑‑‑Findings of Tribunal being well‑based did not call for any interference‑‑‑Supreme Court dismissed petition‑ and refused leave to appeal.

Mian Mahmood Hussain, Advocate Supreme Court and Faizur Rehman, Advocate‑on‑Record for Petitioner.

Muhammad Din Ghorsi, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd April, 2003.

2004 P L C (C.S.) 443

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

ABDUL REHMAN

versus

THE FORCE COMMANDER AIRPORT SECUIRTY FORCE, KARACHI and 3 others

Civil Petition No. 1006‑L of 2001, decided on 3rd June, 2003.

(On appeal from the judgment dated 9‑2‑2001 of the Federal Service Tribunal passed in Appeal No.34(L) of 1999).

Airport Security Force Act (LXXVII of 1975)‑‑‑

‑‑‑‑‑S.7‑A(1)(4)‑‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.2 & 5‑‑­Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employee of Airport Security Force‑‑‑Compulsory retirement from service‑‑‑Appeal to Service Tribunal by such employee was dismissed for want of jurisdiction‑‑‑Validity‑‑‑Service Tribunal had ceased to have jurisdiction in disciplinary matters of such employees after insertion of S.7‑A(4) in the Airport Security Force Act, 1975‑‑‑No appeal would be entertainable before Service Tribunal in respect of orders like one challenged in appeal passed by an‑ officer of Airport Security Force authorized under Pakistan Army Act, 1952‑‑­Service Tribunal had rightly dismissed appeal for want of jurisdiction‑‑­Supreme Court dismissed petition and refused leave to appeal.

Gul Muhammad v. The Force Commander 1999 SCMR 2935; Wali Ahmed Khan v. Karachi Development Authority 2000 PLC (C.S.) 806 and Force Commander, A.S.F. v. Muhammad Rashid 1996 SCMR 1614 fol.

Mian Mahmood Hussain, Advocate Supreme Court and Faiz‑ur­Rehman, Advocate‑on‑Record (absent) for petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 2003.

2004 P L C (C.S.) 449

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

ABDUL QAYYUM KHAN and others

versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY LIMITED and others

Civil Petitions Nos. 1728‑L and 1729‑L of 2000, decided on 26th August, 2003.

(On appeal from the judgment dated 15‑5‑2000 of the Federal Service Tribunal, Lahore, passed in Appeals No.730(L) to 764 (L) of 1998).

Pakistan Telecommunication (Re‑organization) Act (XVII of 1996)‑‑‑

‑‑‑‑S.2(t) & 35(2)‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A, 4 & 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Work charge/daily wages employees of Pakistan Telecommunication Authority working as such for more than six years‑‑‑Refusal of Authority to regularize service of such employees‑‑‑Supreme Court granted leave to appeal to consider, inter alia, the question, whether regularization of such employees depended on whims and wishes of Authority or some comprehensive policy was required to be formulated, as various similarly placed employees had been regularized by Authority in violation of well recognized principle i.e. first come first serve and first come last go.

Zahirullah and 13 others v. Chairman WAPDA Lahore and others 2000 SCMR 826; Pakistan Railways through General Manager v. Ghulam Rasool 1997 SCMR 1581 and Muhammad Asim and others v. Pakistan Telecommunication and others 1997 PLC (CS) 1131 ref.

Petitioners in Person.

Naeem Bokhari Advocate Supreme Court and Ch. M. Khalid Farooq Advocate Supreme Court for Respondent. 1.

Ch. Muhammad Din Gorsi, Advocate Supreme Court for Respondent No.3.

Date of hearing: 6th June. 2003.

2004 P L C (C.S.) 461

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

Syed JAVED IQBAL SHAH

versus

THE SECRETARY EDUCATION and others

Civil Petition No.3392‑L of 2001, decided on 5th May, 2003.

(On appeal from the judgment dated 30‑8‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.309 of 2001).

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

‑‑‑‑Ss. 3(1)(e), 5, 8, & 10‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Illegal and out of merit appointment‑‑‑Removal from service‑‑‑Such penalty imposed by Authority was upheld by Service Tribunal‑‑‑Validity‑‑‑Civil servant was at Serial No.6&, while there were 58 vacancies‑‑‑Civil servant, thus, could not have been appointed d»e to non‑availability of any vacancy‑‑‑Appointment of civil servant was ab initio illegal and void for having been procured with collusion and connivance of concerned officials‑‑‑‑Appointment against non‑existing vacancy was so apparent on record, that same hardly needed any inquiry‑‑‑Enquiry could be dispensed with, if circumstances so justified‑‑‑Illegal and out of merit appointment being question of fact had been determined by Department and affirmed by Tribunal‑‑‑No question of law of public importance being involved, Supreme Court dismissed petition and refused leave to appeal.

Ch. Tariq Javed, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th May, 2003.

2004 P L C (C.S.) 468

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

RAZI UDDIN

versus

MEMBER‑II, PUNJAB SERVICE TRIBUNAL, LAHORE and others

Civil Petition No.377‑.L of 2001, decided on 5th May, 2003.

(On appeal from the judgment dated 19‑12‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1916 of 2000).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal‑‑­Condonation of delay‑‑‑Departmental appeal of civil servant was time­barred‑‑‑Case was decided on 27‑11‑1994, copy whereof was received by civil servant on 4‑12‑1994‑‑‑Appeal was filed on 1‑7‑2000 without any plausible justification‑‑‑Service Tribunal dismissed appeal being time­barred while observing that if original order was presumed to be illegal or void, even then there was no escape from prescribed period of limitation‑‑‑Validity‑‑‑Findings of Tribunal being well founded did not warrant any interference‑‑‑Such was a case of individual grievance‑‑‑No question of law of public importance vas involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

1994 SCMR 1033 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th May, 2003.

2004 P L C (C.S.) 483

[Supreme Court of Pakistan]

Present: Khalil-ur-Rahman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

SECRETARY HEALTH, GOVERNMENT OF PUNJAB and others

versus

Dr. SHAHZAD ALI BUKHARI

Civil Petition for Leave to Appeal No.2511-L of 2001, decided on 11th June, 2003.

(On appeal from the judgment dated 17-5-2001 passed by the Punjab Service Tribunal, Lahore in Appeal No.3351 of 1999).

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

----Rr.4(1)(a), 5 & 6---Constitution of Pakistan (1973), Art. 212(3)--­Minor penalty of stoppage of increment for one year---Absence from duty without sanctioned leave---Service Tribunal set aside such penalty for having been imposed without conducting proper inquiry and remanded case to authority for taking up disciplinary proceedings afresh---Validity---Civil servant had left his duty without waiting for sanctioning of his application for grant of five years extraordinary leave---Nothing was available on record to establish that civil servant had been relieved from duty by Competent Authority in accordance with law or he had left duty after sanctioning of leave applied by him---Such allegation did not warrant any detailed inquiry or examination and cross-examination of witnesses etc.---Service Tribunal had erred in law to set aside such penalty- --Supreme Court allowed appeal and set aside the impugned judgment.

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

----S.4---Appeal---Limitai:on---Impugned order imposing penalty on civil servant was passed on 7-7-1993---Appeal before Service Tribunal was filed in year 1999---Maintainability---Letter, of Department dated 4-11-1999 sent to civil servant had reference to his application dated 13-9-1999 submitted to Secretary Health---Nothing was available on record to show that such application had even been sent to Secretary or received by him---Such application could not be treated as departmental appeal as same had been submitted more than six years after passing of impugned order---Civil servant could not establish filing of departmental appeal, which had remained pending for more than six years---If departmental appeal be presumed to have been filed within prescribed period in year 1993, then there was no reason as to why civil servant did not approach Service Tribunal after his appeal had remained unanswered for 90 days---Appeal before Tribunal was not maintainable being barred by time.

Ms. Yasmeen Sehgal, A.A:-G. for Petitioner.

M. Jaffari Hashm, Advocate Supreme Court for Respondents.

Date of hearing: 11th June, 2003.

2004 P L C (C.S.) 491

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

GOVERNMENT OF THE PUNJAB through the Secretary Education and others

versus

FAQIR HUSSAIN and 5 others

Civil Petition Leave to Appeal Nos.3229-L to 3235-L of 2002, decided on 11th April, 2003.

(On appeal from the judgment dated 13-7-2001 passed by the Punjab Service Tribunal, Lahore in Appeal No.2335, 2284, 2285, 2286; 2287 2288 and 2289 of 2001.)

Civil service---

---- Advance increment---Elementary School Teachers in Punjab--­Advance increment on acquiring/possessing higher qualifications--­Eligibility as per prevalent policy---Teachers possessing qualification of B.A/B.Sc (2nd Divn). plus prescribed professional training would be placed in-BS-14 with 1/3rd in Selection Grade BS-15---.Teachers not. possessing such higher qualification would get existing pay scale with Selection Grade---Such teachers, in view of upgradation of their pay scales w.e.f. 8t5-1998, would not be entitled to advance increment granted from time to time as same would amount to double benefit not admissible under any canon of interpretation---Pay of such teachers would be refixed in accordance with existing pay scales.

Aziz Ahmad Chughtai, Advocate Supreme Court for Petitioners (in all Cases).

Ch. Ghulam Qadir, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Respondents (in C.P. No.3229-L of 200?).

Q.M: Saleem, Senior Advocate Supreme Court and 'Tanvir Ahmad, Advocate-on-Record for Respondents (in C.Ps.. Nos.3230, 3232, 3234 and 3235-L of 2002).

Date of hearing: 21h February, 2003.

2004 P L C (C.S.) 503

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ABAD ALI

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and others

Civil Petition No.852-L of 2000, decided on 27th February, 2003.

(On appeal from. the judgment dated 19-4-1994 of the Punjab Service Tribunal, Lahore, passed in Appeal No.18 of 1993).

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

----Rr. 4(1)(b)(iv), 5 & 6---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Charge of procurement of appointment on basis of forged and fake Matriculation result card, which too was removed by civil servant prior to its verification----Penalty of dismissal from service imposed by authority was upheld by Service Tribunal---Plea of civil servant was that such false case had been manipulated by Superintendent of the office, who on demanding amount of loan taken from him was annoyed and nourished grudge against him which resulted into his dismissal from service---Validity---Such plea was an after-thought and fabricated as no evidence had been led to substantiate the same---Neither receipt showing payment of loan had been produced nor mentioned that before whom same had been paid---No malice had been alleged against Inquiry Officer, Authorized Officer and Competent Authority, who could not have been influenced by said office Superintendent being a little fry in the organization---Authority had imposed such penalty after considering inquiry report and recommendation of Authorized Officer---Civil servant had no case on merit---Petition for leave to appeal was filed with delay of 2130 days, which could not be condoned in absence of any plausible justification--­Supreme Court dismissed petition being barred by time and meritless.

Rana Liaqat Ali Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2003.

2004 P L C (C.S.) 513

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD AZAM JAVED

Versus

GOVERNMENT OF PUNJAB through Home Secretary, Lahore and another

Civil Petition for Leave to Appeal No.442/L of 2002, decided on 10th March, 2003.

(On appeal from the order dated 1-1-2002 of the Punjab Service Tribunal, Lahore, passed upon Civil Miscellaneous No. 1347 of 2001 in Appeal No. 1939 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal of appeal for non-prosecution---Plea of civil servant seeking restoration of appeal was that he had to appear before Service Tribunal, therefore, he had restrained his lawyer from appearing on relevant date; and that civil servant could not appear as he was busy in his professional duties--­Service Tribunal refused to restore appeal---Validity---When civil servant, according to his own showing, was busy in his professional duties, then why he had restrained his lawyer from appearing before Service Tribunal---Tribunal had passed impugned order after considering all aspects of the case---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 10th March, 2003.

2004 P L C (C.S.) 523

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

BILQEES AKHTAR

Versus

DIRECTOR PUBLIC INSTRUCTIONS (EE) PUNJAB, LAHORE and another

Civil Petition No.256 of 2003, decided on 30th September, 2003.

(On appeal from the judgment dated 23-12-2002 in Appeal No.2106 of 2002 passed by Punjab Service Tribunal, Lahore).

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

-----S.4---Appeal---Condonation of delay---Impugned order was passed on 13-12-2000---Appeal was filed on 29-8-2002---Service Tribunal dismissed appeal being barred by time.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 30th September, 2003.

2004 P L C (C.S.) 527

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

Mian GHULAM MUSTAFA and another

Versus

CHIEF CONSERVATOR OF FOREST PUNJAB and others

Civil Petitions No.3213-L and 3214-L of 2001, decided on 19th February, 2003.

(On appeal from the judgment/order dated 29-8-2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos. 1516 and 1517 of 2000).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal---Power of review---Deletion of name of respondent (main rival in appeal) from array of respondents at request of appellant's counsel---Tribunal dismissed appeal as no relief could be granted to appellant against deleted respondent---Contention of appellant that such deletion was due to inadvertent omission, which could have been rectified by Tribunal by reviewing its order by exercising inherent jurisdiction---Validity---Such was not a case of rectification simplicitor--­Such order could not be rectified without reviewing same---Power of review could not be exercised by way of discretion, unless conferred by statute---No power of review was conferred upon Service Tribunal--­Such order was free from any ambiguity and indicative of the fact that such deletion was sought in a categorical manner and accordingly his name had been got deleted---Same was a gesture of goodwill shown by the appellant in favour of the respondent for reason best known to him, which could not be equated with that of an inadvertent omission--­Findings of Tribunal being unexceptionable did not call for any interference---Supreme Court dismissed petition and refused leave to appeal.

(b) Review---

---- Power of review cannot be exercised by way of discretion, unless conferred upon a forum by some law or statute.

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

----Ss. 3 & 4---Exercise of power of review by Service Tribunal--­Scope---No such power is conferred upon Service Tribunal as no such provision is available in the Punjab Service Tribunals Act, 1974.

Sh. Masood Akhtar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 19th February, 2003.

2004 P L C (C.S.) 541

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

MUHAMMAD MAQSOOD AHMED

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others

Civil Petition No.2392 of 2002, decided on 14th April, 2003.

(On appeal from the judgment dated 9-5-2002 of the Punjab Subordinate Judiciary Service Tribunal, Lahore passed in Service Appeal No. 63 of 1999).

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

----R.4(1)(b)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.4---Constitution of Pakistan (1973), Art. 212(3)---Absence from duty---Penalty of removal from service imposed by authority was converted by Service Tribunal into that of compulsory retirement---Contention of civil servant was that in view of unblemished service record as observed by Tribunal, he deserved lenient treatment, but substitution of major penalty with another major penalty was contrary to such findings; that as apparent from impugned judgment; Tribunal was under influence of the fact that he had obtained ex-Pakistan leave for going to Canada to attend marriage, but instead of going there, he had gone to America, which was not part of charge-sheet, thus, exercise of discretion as to quantum of penalty had adversely affected to his prejudice; that he had sought extension of leave on medical ground supported by medical certificate sent from abroad, which under the rules, could not be disallowed, unless same was proved to be incorrect after reference of matter to a Medical Board; and that ex-Pakistan leave did not specify country of visit and due to delayed departure, he could not reach Canada to participate in marriage, which he participated at its ultimate destiny i.e. America, but Service Tribunal had not given finding in that respect---Supreme Court granted leave to appeal to consider such contention.

Malik Muhammad Qayyum, Advocate Supreme Court for Petitioner.

Malik Azam Rasool, Advocate Supreme Court for Respondents.

Date of hearing: 14th April, 2003.

2004 P L C (C.S.) 547

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

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

Versus

Rana FAYYAZ AHMAD

Civil Petition for Leave to Appeal No.2977/L of 2002, decided on 10th April, 2003.

(On appeal from the judgment dated 10-6-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2772 of 2001).

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

----R.4(1)(a)---Constitution of Pakistan (1973), Art. 212(3)---Charge of making fake and bogus appointments of teachers resulting in loss to public exchequer on account of salaries---Minor penalty of stoppage of increment for two years and recovery of amount of salaries disbursed to the said teacher---Allegation against the civil servant was that he had appointed such teachers beyond his competence---Service Tribunal reduced penalty of stoppage of increment from two years to one year and set aside penalty of recovery---Validity---Such teacher had applied for post of P.T.C. teacher on general quota and on teachers' sons' seats--­Teacher being at Serial No.1 on teachers' sons' seats and at serial No.8 on general list had been illegally ignored by the Recruitment Committee---Director of Education on representation of such teacher had directed civil servant to regularize his appointment---Adjustment of such teacher had been directed by Chief Minister and Governor also---Appeal of such teacher against his removal from service had also been set aside through different order by Service Tribunal---Service Tribunal had rightly concluded that civil servant had acted beyond his competence and had not condoned his such act---No illegality had been committed by Service Tribunal in waiving recovery of amount as removal of such teacher had been set aside---No point of law of general public importance being involved Supreme Court dismissed petition and refused leave to appeal.

Muhammad Riaz Lone, Advocate Supreme Court with Rao Muhammad Yusuf Khan Advocate-on-Record for petitioners.

Nemo of Respondent.

Date of hearing: 10th April, 2003.

2004 P L C (C.S.) 556

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

ZAKA ULLAH BAJWA

versus

CHIEF SECRETARY, PUNJAB and other

Civil Petition No. 2267-Lof 2001, decided on 11th June, 2003.

(On appeal from the judgment dated 12-5-2001 of the Punjab Service Tribunal passed in Appeal No.2566 of 2000).

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

----R.4(1)(b)(iv)---Punjab Service. Tribunals Act (IX of 1974), S.4--­Removal from service---Service Tribunal maintained such penalty after finding that out of seven charges, only one charge of two days absence from duty had been proved against civil servant---Plea of civil servant was that such penalty did not commensurate with the nature of charge---Validity---Service Tribunal before upholding order of departmental authority should have gone into all aspects of case inclusive of question of quantum of penalty by application of judicial mind to facts of case­-Such exercise had not been undertaken, particularly when only one charge had been proved---Supreme Court partly accepted appeal and remanded case to Tribunal for purpose of deciding whether such major penalty was legally justified in the facts and circumstances of case.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner, Miss Yasmin Sehgal, Assistant Advocate-General Punjab for Respondents.

Date of hearing: 11th June, 2003.

2004 P L C (C.S.) 558

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SAEED ANWAR

versus

DISTRICT EDUCATION OFFICER (M), BAHAWALNAGAR and others

Civil Petition No. 3190-L of 2001, decided on 17th January, 2003.

(On appeal from the judgment dated 7-8-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 2675 of 1999).

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

----Rr. 4 (1)(b), 6 & 7---Constitution of Pakistan (1973), Art. 212(3)--­Termination of service---Appointment as PTC teacher obtained on basis of bogus PTC and CT certificates---Service Tribunal dismissed appeal against such penalty---Validity----Record showed that civil servant had been issued proper show-cause notice, which he had replied while submitting his PTC certificate having been tampered with by someone else---Both certificates after proper verification had been found bogus--­In view of such verification, question of any inquiry or further probe would not arise---All mandatory formalities as envisaged under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 had been complied with and no prejudice had been caused to civil servant--­Impugned judgment did not warrant interference---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Bashir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Aziz Ahmed Chughtai, Advocate Supreme Court and Muhammad Aslam for Respondents.

Date of hearing: 17th January, 2003.

2004 P L C (C.S.) 563

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD NAVEED

versus

SUPERINTENDENT OF POLICE, SADDAR DIVISION, LAHORE and others

Civil Petition No. 1395-.L of 2001, decided on 17th April, 2003.

(On appeal from the judgment, dated 28-2-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 2137 of 1998).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975---

----S. 4(1)(b)---Punjab Service Tribunals Act (IX of 1974), S. 4--­Constitution of Pakistan (1973), Art. 212(3)---Removal from service--­Recovery of stolen car from possession of Assistant Sub-Inspector--­Registration of criminal case under S.397, P.P.C., and initiation of disciplinary proceedings against civil servant---Penalty imposed by competent authority was upheld by Service Tribunal in appeal filed by civil servant in spite of his judicial acquittal in the criminal case--­Validity ---Acquittal in criminal case would not constitute a bar to initiate further disciplinary proceedings being independent in nature---Such acquittal of civil servant was not on merits, but was due to non-­production of prosecution evidence---Civil servant could not justify retention of, stolen car, thus, same had been returned to its original owner by the Magistrate--No evidence on record with regard to enmity between civil servant and police officials, who had recovered stolen car from his possession---Competent authority was quite justified to believe report of Inquiry Officer even in presence of judicial acquittal---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Dy. I.G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman, E.B. WAPDA PLD 1987 SC 195; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177 and Arif Ghafoor v. Managing Director PLD 2002 SC 13 rel.

(b) Civil Services-----

----Disciplinary proceedings against civil servant, initiation of---Acquittal in criminal case---Effect---Such acquittal would not constitute a bar to initiate further disciplinary proceedings against civil servant same being independent in nature.

Dy. I.G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman, E.B. WAPDA PLD 1987 SC 195; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556 and Talib Hussain v. Anar Gul Khan 1993 SCMR 2177 and Arif Ghafoor v. Managing Director PLD 2002 SC 13 rel.

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th April, 2003.

2004 P L C (C.S.) 569

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

SENIOR SUPERINTENDENT OF POLICE, DADU and others

versus

Makhdoom AYAZ AHMED SIDDIQUI

.Civil Petition No. 771-K of 2001, decided on 28-11-2001.

(On appeal from the order, dated 3-7-2001 passed by Sindh Services Tribunal, Karachi in Appeal No. 44 of 1998).

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

----R. 4---Constitution of Pakistan (1973), .Art. 212(3)---Removal from service---Service Tribunal accepted appeal of civil servant and reinstated him in service---Validity---Services of other colleagues of civil servant had been terminated and their orders of reinstatement passed by Service Tribunal had been maintained by Supreme Court---Case of civil servant was one of such cases---Supreme Court dismissed petition filed by authority and refused leave to appeal.

Amjad Ail and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125 distinguished.

Suleman Habibullah, Additional Advocate-General and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent in Person.

Date of hearing: 28th November, 2001.

2004 P L C (C.S.) 572

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

TASNEEM AKHTAR

versus

GOVERNMENT OF PAKISTAN and 2 others

Civil Petition No 2996 of 2003, decided on 19th November, 2003.

(On appeal from the judgment, dated 7-10-2003 of Lahore High Court, Rawalpindi Bench passed in ICA No. 6 of 2003).

Pakistan Allocation Rules, 1993---

----Constitution of Pakistan (1973), Art. 185(3)---Allocation of residential quarter---Out of turn allocation---Pre-conditions---Petitioner being Government servant was allocated a residential quarter out of turn--­Order of authorities allocating the quarter was set aside by High Court­--High Court directed the authorities to make the allocations strictly in accordance with rules---Validity---Allotment could be made out of turn under the provisions of Pakistan Allocation Rules, 1993 but the conditions required for such allotment were not fulfilled by the petitioner---Such out of turn allotment could be made in case of hardship which was not the case of the petitioner---Order of out of turn allotment of quarter to the petitioner by the authorities was against the provisions of Pakistan Allocation Rules, 1993---Direction of High Court, to allot the quarter as per seniority list for allotment, was in terms of the Rules and was not open to any exception---Leave to appeal was refused.

Muhammad Munir Paracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 19th November, 2003.

2004 P L C (C.S.) 579

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

NASIRA ABDUL GHANI

versus

EDO (EDU) and others

Civil Petition No. 1633 of 2003, decided on 24th November; 2003.

(On appeal from the judgment, dated 12-3-2003 passed by the Punjab Service Tribunal in Service Appeal No.513 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal against transfer---Service Tribunal accepted appeal ---Factum of non-providing opportunity of hearing to respondent by Tribunal not denied by appellant---Supreme Court accepted appeal, set aside impugned judgment, resultantly appeal would be deemed to be pending before Tribunal for its decision after affording opportunity of hearing to parties.

Pervaiz Inayat Malik, Advocate Supreme Court and Mr. Tanvir Ahmed, Advocate-on-Record for, Petitioner.

Ch. Muhstaq Masood, Advocate Supreme Court for Respondent No.4.

Khalid Yaseen Khan, EDO Narowal for Respondent No. 1.

Syed Iftikhar Hussain Najam, Prof. Director Admn. for Respondent No. 3.

Date of hearing: 24th November, 2003.

2004 P L C (C.S.) 582

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

TARIQ MEHMOOD

versus

GOVERNMENT OF PUNJAB and others

Civil Petition No.2872-L of 2001, decided on 13th May, 2003.

(On appeal from the judgment, dated 2-7-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 20 of 1999).

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

----S.17---Constitution of Pakistan (1973), Art. 212(3)---Leave for higher study---Sanction of Chief Minister---Civil -servant applied for leave without pay for higher studies which was refused by the authorities--­Civil servant absented himself from duty; resultantly he was dismissed from service---Appeal filed by the civil servant was also dismissed by Service Tribunal---Plea raised by the civil servant was that he acquired admission in University for higher education and the period spent by the civil servant in the University was treated as study leave by the Chief Minister of the Province---Validity---Order passed by the Chief Minister was made on extraneous and political considerations which was not in accordance with law---Such order of the Chief Minister being an unlawful order could not be implemented---Chief Minister had no unfettered or unbridled powers to grant leave in oblivion of the leave rules and without giving proper relaxation which exercise was never undertaken by the office of the Chief Minister thus the order was ab initio void. having no legal sanctity of law---Leave could only be sanctioned in accordance with leave rules and by following the prescribed procedure which was not adopted in the present case---Civil servant took admission in University without permission of his department which was mandatory---Civil servant failed to acquire the higher qualification from the University and the object for which he remained absent for more than ten years could not be achieved ---Factum of wilful absence amounting to misconduct had been proved---All contentions agitated before Supreme Court were dilated upon and considered by Service Tribunal and the conclusion being well based did not call for any interference---No injustice had been done to the civil servant---Leave to appeal was refused.

Ehsan Ullah Lilla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Miss Yasmin Sehgal, A.A.-G., and Rao M: Yusuf Khan, Advocate-on-Record for Respondents.

Date of hearing: 13th May, 2003.

2004 P L C (C.S.) 595

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamdd Ail Mirza, JJ

DEPUTY DIRECTOR SOCIAL WELFARE, SUKKUR DIVISION, SUKKUR and another

versus

MUHAMMAD LAIQUE

Civil Appeal Leave to Appeal No. 850-K of 2001 decided. on 26th February, 2002.

(On appeal from the judgment of Sindh Service Tribunal, dated 4-9-2001 passed in Appeal No.229 of 2000).

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

----Rr. 4(1)(b)(ii) & 4-A---Sindh Service Tribunals (Procedure) Rules, 1974, Rr. 23(c) & 24---Sindh Service Tribunal Act (XV of 1973, S. 4--­Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service---Appeal of civil servant was accepted by Division Bench of Service Tribunal consisting of its Chairman and a single Member--­Contention of authority was that case of civil servant entailing major penalty was required to be heard by Full Bench of the Service Tribunal consisting of its Chairman and two Members---Validity---Rule 24 of Sindh Service Tribunals (Procedure) Rules, 1974 provided for exceptional circumstances, when a Member of Tribunal for any reason was not able to sit on the Bench---Nothing was on record to indicate circumstances under which appeal had been heard by Chairman and a single Member of Tribunal---Such exceptional situation must be spelt out from record rather than accepting same on erroneous assumptions---Supreme Court accepted appeal, set aside impugned judgment and remanded case' to Tribunal for fresh decision.

Suleman Habibullah, Additional Advocate-General and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

M.L. Shahani, Advocate Supreme Court for Respondent.

Date of hearing: 26th February, 2002.

2004 P L C (C.S.) 598

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

ABDUL RAUF

versus

CHAIRMAN, ADBP, HEAD OFFICE ISLAMABAD and 2 others

Civil Appeal No. 1208 of 2001, decided on 18th March, 2003.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 10-2-2001 passed in Appeal No. 2087(R) of 1999) .

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

----S.4---Constitution of Pakistan (1973), Art.212 (3)---Dismissal from service---Civil servant contended that against punishment of dismissal from service he preferred appeal before Service Tribunal but it was dismissed in view of majority opinion of two members of the Service Tribunal---Civil servant further contended that as far as he was concerned, he was also found inefficient in performing the duty, therefore, at the best he was also entitled for the same treatment which was imposed on the other civil servant---Civil servant also contended that in view of nature of his job, he could not be held responsible for sanction of loan on fake applications, as such punishment whatsoever had been awarded by the department as maintained by Service Tribunal did not commensurate to the gravity of the charge---Validity---Leave to appeal was granted by Supreme Court to consider the contentions raised by the civil servant.

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

----S.4---Dismissal from service---Principle of equal treatment--­Applicability---Penalty of dismissal from service awarded to one of the civil servants was converted into reduction in three stages and his promotion was stopped for three years---Grievance of the present civil servant was that he had not been equally treated by the Service Tribunal as his dismissal order was maintained---Validity---Service Tribunal without distinguishing the case of the present civil servant on facts, who was placed in similar situation, treated him differently---Even authorities could not differentiate between the case of the present civil servant on merits and that of his other colleague---Supreme Court, in the light of principle of equal treatment before the law, had found the present civil servant entitled to the same relief which was given to the other civil servant---Supreme Court converted the major penalty of the present civil servant of dismissal from service into the punishment as awarded to the other civil servant---Supreme Court directed the authorities to reinstate the civil servant in service without back-benefits-- .Appeal was allowed accordingly.

Abdul Rashid Await, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents:

Date of hearing: 18th March, 2003.

2004 P L C (C.S.) 609

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD AMJAD

versus

SUPERINTENDENT OF POLICE and others

Civil Petition No-883-L of 2000, decided on 27th February, 2003.

(On appeal from the judgment dated 16-2-2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No.902 of 1996).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 4(1)(b), 6 & 7---Constitution of Pakistan (1973), Art. 213(3)--­Removal from service---Misconduct---Attempt by Police Constable to commit unnatural offence during odd hours of night with accused kept in Police Station on physical remand---Civil servant on complaint of accused admitted his guilt before S.H.O. and tendered apology--­Competent authority imposed penalty of removal from service on civil servant after finding unsatisfactory his oral and written explanations given in response to show-cause notice---Service Tribunal dismissed appeal of civil servant, observing that his such act had brought bad name to the department- --Contention of civil servant was that the case was false and he had been found guilty without holding regular inquiry--­Validity---Such action had been initiated at victims' report, wherein comprehensive inquiry had been made---Competent authority had afforded proper opportunity of hearing to civil servant---Question of false implication in such a- heinous offence would not arise in- absence of any ill-will or malice, which had not been alleged against S.H.O. or competent authority---Civil servant should be thankful to his stars that no criminal case had been registered against him---Civil servant had earned 47 bad entries, which were indicative of his conduct---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Fazal Abbas Bukhari, Advocate Supreme Court and Sheikh Salah-ud-Din, Advocate-on-Record for Petitioner:

Nemo for Respondents

Date of hearing: 27th February, 2003.

2004 P L C (C.S.) 612

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SQN. LDR. FAROOQ JANJUA

versus

SECRETARY, M/O DEFENCE and others

Civil Appeals Nos. 1504 of 1999, 1762 and 1763 of 2001, decided on 4th ,June, 2003..

(On appeal from the order, dated 20-3-1999 of the Federal Service Tribunal Islamabad in Appeal No. 694(R) of 1998 and 21-6-2000 of Federal Service Tribunal, Karachi in Appeal No. 503(K) and 776 (K) of 1998).

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

----Art. 212(3)---ESTACO DE (1989), SI.No.106---Leave to appeal was granted by Supreme Court to consider; whether or not the civil servant was entitled to the grant of seniority from the date on which he started officiating against the post on transfer to Civil Aviation Authority from Pakistan Air Force.

Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185 and S.M. Farooq and others v. Muhammad Yar Khan and others 1999 SCMR 1039 ref.

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

----Art.212(3)---ESTACODE (1989), S1.No.106---Leave to appeal was granted by Supreme Court to consider; whether the appeal of the civil servant before Service Tribunal was maintainable when firstly, no departmental appeal/representation against the order impugned before the Service Tribunal was filed and secondly his earlier appeal was dismissed, by the Tribunal and no appeal was filed there against which, as such, had attained finality; whether seniority of the civil servant was to be reckoned from the date he was employed on contract basis or from the date he was absorbed; whether contract period of the service of the civil servant could be counted for his retrospective promotion; and whether the civil servant after his promotion to higher pay group could be reverted back to lower pay group without affording him any opportunity of hearing.

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

----S. 4---ESTACODE (1989), S1.No.106---Seniority, fixation of--­Induction of officers from armed forces in civil departments--Civil servant being officer in Pakistan Air Force went on deputation in Civil Aviation Authority---After his retirement from Pakistan Air Force, the civil servant was deemed to be inducted in the Authority---Grievance of the civil servant was that his seniority was to be fixed from the date when he joined the Authority on deputation and not from the date when he was permanently inducted---Appeal filed by the civil servant before Service Tribunal was dismissed---Plea raised by the civil servant was that the policy contained in provision at SI.No.106 of, ESTACODE, 1989, would be applicable to Army Officer who was sent on deputation in civil department and was subsequently absorbed on permanent basis--­Validity---Service Tribunal had rightly taken the view that the provision at SI.No.106 of ESTACODE, 1989, was applicable only to those Army Officers who were inducted on permanent basis in the civil department prior to the promulgation of Induction Policy 1980---Civil servant was not entitled to the grant of seniority from the date of joining of Civil Aviation Authority on deputation---Supreme Court declined to interfere with the seniority fixed by authorities---Appeal was dismissed.

Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185 and S.M. Farooq and others v. Muhammad Yar Khan and others 1999 SCMR 1039 distinguished.

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

----S. 4---ESTACODE (1989), S1.No.106---Seniority, fixation of--­Induction of officers from armed forces in civil departments---Civil servant being officer in Pakistan Air Force went on deputation in Civil Aviation Authority---After his retirement from Pakistan Air Force, the civil servant was absorbed on contract basis but later on he was made permanent---Plea raised by the civil servant was that his seniority should have been fixed from the date when he was inducted on contract basis--­Validity---Civil servant voluntarily accepted the offer of appointment on contract basis and subsequently on representation he was absorbed on permanent basis---Period of contract of the civil servant, despite having been treated as part of regular service, could not entitle him to seniority over `the employees who were appointed on permanent basis during the period when the civil servant was on contract---Regular appointment from retrospective date with the grant of pay and allowances to the civil servant would not make him senior to his colleagues who joined service on permanent basis before he joined---Supreme Court declined to interfere with the judgment passed by the Service Tribunal---Appeal was dismissed.

Hafiz Tariq Nasim, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (C. A.No.1504 of 1999).

Sardar Muhammad Aslam, D.A-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 2 (C. A.No.1504 of 1999).

Sh. Iftikhar Ahmed, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents Nos.3, 5, 8, 9, 15, 17, 19, 20, 22, 31, 32 and 34 (C. A.No.1504 of 1999).

Appellant in person (C.As.Nos. 1762 and 1763 of 2001).

Sardar Muhammad Aslant, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. l (C. As. Nos. 1762 and 1763 of 2001).

Manzoor Ali Khan, Advocate Supreme Court far Respondent No.4 (C.As.Nos. 1762 and 1763 of 2001).

Date of hearing: 4th June, 2003

2004 P L C (C.S.) 624

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Ch. MUHAMMAD KHAN

versus

WATER AND POWER DEVELOMPENT AUTHORITY through Chairman and 3 others

Civil Petition No. 1500-L of 2000, decided on 27th February, 2003.

(On appeal from the judgment dated 1-5-2000 passed by, the Punjab Service Tribunal, Lahore, in Appeal No.738 of 1995).

(a) Civil service---

---- Pay for work against higher, post---Claim preferred by retired employee of WAPDA under its policy decision, dated 30-11-1991--­Validity---Authority through such policy decision had intended to extend financial benefits ' to its employee for period they had actually worked against higher post---Held; retired employees of WAPDA were not excluded from purview of such policy decision.

(b) Executive Order---

---- Executive authorities have power to issue instructions or take policy decisions retrospectively, which are beneficial in nature.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582 fol.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Abdur Rehman Madni, Advocate Supreme Court for Respondents.

Date of Itearin : 27th February, 2003.

2004 P L C (C.S.) 630

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

SHALIMAR RECORDING AND BROADCASTING CO. LTD. through General‑Manager and another

versus

TARIQ MAHMOOD and another

Civil Petition No. 1972 of 2002, decided on 17th February, 2003.

(On appeal from the judgment dated 12‑10‑2002 of Federal Service Tribunal, Islamabad passed in Appeal No.341(R)/CE of 2000) .

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Company's Employees Service Rules, 8.5.16‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Abolition of posts‑‑‑Failure to accommodate the employee‑‑‑Service of employee was terminated on the ground that the post on which he was working had been abolished‑‑‑No misconduct was attributed to the employee rather good, work done by him was acknowledged by the employer‑‑‑Service Tribunal allowed the appeal and directed the employer to reinstate the employee in service‑‑‑Validity‑‑‑No genuine steps were taken to accommodate the employee by the employer in view of the provisions of 8.5.16 of Company's Employees Service Rules‑‑As to how many posts in the same group and pay scale were available when the post was abolished was neither disclosed before the Supreme Court nor any information regarding lower vacant post then existed, was laid before the Supreme Court‑‑‑Employer even failed to disclose the number of posts‑‑‑All necessary information was also not placed before the Service Tribunal‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

S. Naeem Bokhari, Advocate Supreme Court and Mehr Khan Malik Advocate‑on‑Record for Petitioners (In Civil Petition No. 1972 of 2002) .

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. I (In Civil Petition No. 1972 of 2002).

Date of hearing: 17th February, 2003.

2004 P L C (C.S.) 633

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

FAQEER HUSSAIN

Versus

INSPECTOR‑GENERAL POLICE and others

Civil Petition No. 671‑L of 2001, decided on 8th May, 2003.

(On appeal from the judgment, dated 13‑11‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 2478 of 1999).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑--

‑‑‑‑Rr. 4(1)(b), 5 & 6‑‑‑Circular No. 2661‑2706/DISC‑1, dated 21‑12‑1995, Para. 9(1)(v)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Misconduct‑‑­Compulsory retirement from service‑‑‑Wilful absence from duty‑‑­Service Tribunal maintained such penalty‑‑‑Validity‑‑‑Civil servant had kept himself disassociated from disciplinary proceedings deliberately, though competent Authority had made every possible effort to get show­ cause notice served upon him, but in vain‑‑‑Inquiry Officer had found civil servant guilty of such charge ‑‑‑Factum of wilful absence amounting to misconduct had been proved‑‑‑Dismissal of civil servant from service on two different occasions on account of wilful absence indicated that he was least interested in service‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑--

‑‑‑‑Rr. 4(1)(b), 5 & 6‑‑‑Circular No. 2661‑2706/DISC‑1, dated 21‑12‑1995, Para. 9(1)(v)‑‑‑Major penalty, imposition of‑‑‑Regular inquiry could be dispensed with in view of provisions of R. 5 of Punjab Police (Efficiency and Discipline) Rules, 1975.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th May, 2003.

2004 P L C (C.S.) 638

[Supreme Court of Pakistan]

Preset: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

MIRZA KHAN

Versus

SUPERINTENDENT OF POLICE and others

Civil Petition No. 1778‑L of 1999, decided on 12th December, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 30‑8‑1999 passed in Appeal No.366 of 1996).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑-

‑‑‑‑Rr. 4(1)(b), 6 & 7‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Dismissal from service‑‑‑Charge against civil servant was of being present in Tanga carrying stolen WAPDA wire‑‑‑Civil servant in his reply admitted such fact‑‑Authority without holding regular inquiry imposed penalty of dismissal from, service upon civil servant‑‑‑Service Tribunal dismissed, appeal of civil servant‑‑‑Validity‑‑‑Show‑cause notice had expressly conveyed to civil servant that holding of regular inquiry was not found necessary in the circumstances‑‑‑Same was a case of raising inferences from admitted facts‑‑‑Decision of Departmental Authority to such effect did not suffer from any legal infirmity‑‑‑Pure question of fact involved had been decided by Authority and Service Tribunal‑‑‑No question of law of public importance was involved, rather same was a case of individual grievance‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Province of Punjab through Additional Chief Secretary, Government of Punjab and another 2000 SCMR 1321 and Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 distinguished.

(b) Civil Service‑‑‑

‑‑‑‑Disciplinary proceedings‑Holding‑of regular inquiry, necessity of‑‑­Each case has to be decided on its own merits by Departmental Authority to come to a conclusion, whether regular inquiry should be held or not‑‑­Once regular inquiry is not found necessary, then only requirement of relevant rule would be that decision to such effect should be conveyed to civil servant, who is being proceeded against.

Muhammad Yawar Ali, Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record Inspector (Legal) for Petitioner.

Tariq Aziz for Respondent.

Date of hearing: 12th December, 2002.

2004 P L C (C. S.) 644

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

Malik MUHAMMAD SHAFI and another

Versus

SENIOR MOST STAFF OFFICER, IRRIGATION, BAHAWALPUR and others

Civil Petitions Nos. 2828‑L and 2848‑L of 2000, decided on 2nd April, 2003.

(On. appeal from, the judgment, dated 26‑9‑2000 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 221 of 1992 and 870 of 1996).

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

‑‑‑--S. 7‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8‑‑‑Seniority list‑‑Transferee department after transfer of respondent therein on 4‑3‑1980 prepared seniority list in year 1986 showing him senior to appellants‑‑‑Competent authority on direction of Service Tribunal re‑considered seniority list and confirmed same on 22‑4‑1992‑‑‑Tribunal dismissed appeals filed against order, dated 22‑4‑1992‑‑‑Validity‑‑‑Appellants ought to have challenged orders, dated 4‑3‑1980 and 22‑9‑1981 within time‑‑‑Such order could not be interfered with in appeal against order, dated 22‑4‑1992, which had affirmed seniority list earlier circulated‑‑‑Contesting parties stood already promoted‑‑‑Controversy was, thus, more or less academic and no substantial question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Mian Mahmood Hussain, Advocate Supreme Court and Faiz‑ur-­Rehman, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd April, 2003.

2004 P L C (C.S.) 646

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MEHRULLAH and another

Versus

MANAGING DIECTOR, SUI SOUTHERN AS CO. LIMITED, KARACHI

Civil Petitions for Leave to Appeal No. 600‑K and 601‑K of 2002 decided on 19th July, 2002.

(On appeal from judgment, dated 17‑5‑2002, passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 646, 647, 649, 749 and 750 (K)(CE) of 2000).

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

‑‑‑‑R. 4(1)(b)(iv)‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑­Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of service‑‑­Appointment of civil servant was temporary in nature‑‑‑Appeal before Service Tribunal with delay of 453 days‑‑‑No explanation in application for condonation of such delay‑‑‑Service Tribunal dismissed appeal as hopelessly time‑barred‑‑‑Validity‑‑‑No illegality, irregularity, misreading or non‑reading of material was available on record‑‑‑No question of general public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Muhammad Muzaffarul Haq, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 19th July, 2002.

2004 P L C (C.S.) 648

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

MUHAMMAD QASIM

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB and others

Civil Petition for Leave to Appeal No.395 of 2003, decided on 8th January, 2004.

(On appeal from the judgment/order of the Punjab Service Tribunal, Lahore, dated 22‑1‑2003, passed in Appeal No.2377 of 2002).

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

‑‑‑‑Rr. 4, 6 & 7‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Reduction in rank‑‑‑Failure of Police Inspector to arrest accused involved in murder case‑‑‑Dismissal of appeal by Service Tribunal‑‑­Validity‑‑‑Authority had proceeded against civil servant in accordance with law by providing him proper opportunity to defend his case‑‑­Inquiry Officer had found civil servant guilty, thus, he was reverted to the post of Sub‑Inspector‑‑‑Civil servant had shown lethargy and sluggishness, for which he had been rightly punished‑‑‑Departmental appeal was barred by time‑‑‑Impugned judgment was well‑reasoned and based on proper appreciation of entire material produced before Tribunal‑‑‑No misreading or non‑reading of material or misconstruction of law was involved‑‑‑Substantial question of public importance had not been made out‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Maqbul Ilahi Malik, Senior Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Ms. Afshan Ghazanfar, A.A.‑G. with Zafar Iqbal, Inspector Legal for Respondents.

Date of hearing: 8th January, 2004.

2004 P L C (C.S.) 653

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

ABDUL RAZZAQ

Versus

SECRETARY GOVERNMENT OF PAKISTAN and others

Civil Petition No. 1528‑L of 2001, decided on 29th April, 2003.

(On appeal from the order, dated 26‑3‑2001 of the Lahore High Court, Lahore, passed in W.P. No. 21445 of 2000).

(a) Civil service‑‑‑

‑‑‑‑Appointments during ban and without proper advertisement‑‑­Appellate Authority in appeal filed by petitioners (non‑selected candidates) declared such appointments as illegal and directed authority to make appointments after lifting of ban and by making proper advertisement‑‑‑Validity‑‑‑Appellate Authority had not granted any specific relief to petitioners for their consideration for appointment‑‑­Petitioners by merely applying for such posts would not get a vested right to insist upon undertaking of process of selection even during ban‑‑‑Petitioners could take a chance as and when ban was lifted and posts were advertised‑‑‑Judgment of High Court dismissing Constitutional petition, was upheld by Supreme Court for having no grievance to be redressed at such stage.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Vested right‑‑‑High Court in absence of any injury to vested right of petitioner could not interfere.

Mian Muhammad Nawaz, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record, for Petitioner.

Nemo for Respondent.

Date of hearing: 29th April, 2003.

2004 P L C (C.S.) 658

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

RIAZ AHMAD

Versus

GOVERNMENT OF PUNJAB and others

Civil Petition No. 2390‑L of 2001, decided on 20th January, 2003.

(On appeal from the judgment, dated 31‑5‑2001 passed by the Public Service Tribunal, Lahore, in Appeal No. 1106 of 1999).

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

‑‑‑‑S. 4‑‑‑General Clauses Act (X of 1897), S. 20‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal‑‑‑Teachers in Institute of the­ Blinds‑‑‑Enhancement of pay scale of teachers by placing them in BS‑14 as against existing BS‑10 through Notification, dated 1‑4‑1986 of Finance Department subject to stoppage of existing special pay at the rate of 10% of substantive pay‑‑‑Civil servant as per revised pay scale continued to draw his salary‑‑‑Appeal of civil servant in year 1999 against such stoppage of special pay and for grant of selection grade was dismissed by Service Tribunal‑‑‑Validity,‑‑‑Civil servant had not impleaded Finance Department as party to the proceedings‑‑‑Civil servant could not be permitted at the time of superannuation to contend that he was entitled to emoluments of BS‑14 and was not subject to any, such condition‑‑‑Civil servant, in absence of any rules or instructions of Government entitling him to grant of selection grade, could not take benefit of service rules applicable to different classes of Government servants‑‑‑Appeal against Notification, dated 1‑4‑1986 filed in year 1949 had rightly been dismissed by Tribunal as being time‑barred‑-‑Supreme­ Court dismissed petition in circumstances.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Chairman; Selection Committee/Principal, King Edward Medical College, Lahore and 2 others 1997 SCMR 15 distinguished.

Petitioner to person.

Nemo for Respondents.

Date of hearing: 20th January, 2003.

2004 P L C (C.S) 661

[Supreme court of Pakistan ]

Present :Javed Iqbal and Karamat Nazir Bhandari, JJ

SHAMSHAD KAUSAR

Versus

PROVINCE OF PUNJAB AND OTHER

Civil petition No.3369-L of 2000, decided, on 2nd May 2003.

(On appeal from the judgment dated 29-8-2001 of the Punjab service tribunal, Lahore high court Lahore passed in appeal No.39 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)---termination of service ---charge of procurement of PTC Teacher appointment on basis of forged and fake PTC result card---order of termination of service of civil servant was upheld by service tribunal ---validity---record showed that civil servant had failed four subjects---authenticity of answer sheets produced by registrar examination could not be doubted ,which remained in safe custody letter of appointment of civil servant indicated that by interpolation her name was got inserted in a single appointment letter concerning other candidate---charge against civil servant had been proved to the hilt---civil servant had not been ousted from service due to animosity ,malice or ill–will of officer against whom allegation of embezzlement of her salaries had been made which appeared to be afterthought and could not be substantiated by evidence---factum of foregery being question of had been determined on basis of sound and concrete evidence–fining of fact recorded by department and affirmed by service tribunal could not be reversed in absence of any justification--- No question of law of public importance was involved ---supreme court dismissed petition for leave to appeal.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Finding of fact recorded by department and affirmed by Service Tribunal‑‑‑Validity‑‑­Such finding could not be reversed by Supreme Court without any justification.

Mushtaq Ali Tahirkheli, Advocate Supreme Court and Mahmud‑ul‑Islam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd May, 2003.

2004 P L C (C.S.) 665

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD HUSSAIN

Versus

SENIOR SUPERINTENDENT OF POLICE and 2 others

Civil Petition No. 955‑L of 2001, decided on 27th May, 2003.

(On appeal from the judgment, dated 22‑1‑2001 of the Punjab Service Tribunal, Lahore, passed to Appeal No.845(L) of 1999).

(a) Civil service‑‑‑--

‑‑‑‑Leave Preparatory to Retirement (LPR)‑‑‑Main object of such leave is to provide a fair opportunity to an employee to make necessary preparation for retirement.

(b) Civil service‑‑‑

‑‑‑‑ Leave Preparatory to Retirement (LPR) granted on ground of ailment after rendering 30 years service‑‑‑Civil servant after three months applied for cancellation of remaining LPR and his reinstatement in service‑‑‑Authority refused such request of civil servant, but Service Tribunal reinstated him in service‑‑‑Validity‑‑‑LPR applied for after rendering 30 years service could be obtained after 25 years of qualifying service‑‑‑Civil servant stood retired after attaining age of superannuation, thus, he could not be reinstated in violation of policy of Punjab Government circulated through Letter No.F‑SR‑III‑60‑79‑1, dated 6‑7‑1981‑‑‑Triubnal had ignored the difference between LPR and medical leave and prevalent policy‑‑‑Supreme Court set aside impugned judgment being illegal.

(c) Civil service‑‑‑--

‑‑‑‑Leave Preparatory to Retirement (LPR) and medical leave‑‑­Distinction‑‑‑Both are two different kinds of leave and one cannot be substituted with the other having different object and purpose‑‑‑Main object of LPR is to provide a fair opportunity to an employee to make necessary preparation for retirement.

(d) Civil service‑‑‑

‑‑‑‑Reinstatement in service after retirement on attaining age of superannuation‑ ‑‑Scope‑‑‑Civil servant cannot be reinstated in service after attaining such age.

Irshad Ahmad Qureshi, Advocate Supreme Court and Faiz‑ur­-Rehman, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 27th May, 2003.

2004 P L C (C.S.) 673

[Supreme Court of Pakistan]

Present: Khalil‑ur‑Rahman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

NUSRAT Bibi and others

Versus

PROVINCE OF PUNJAB through Secretary Education and others

Civil Petition for Leave to Appeals Nos. 521‑L to 524‑L and 542‑L of 2003, decided on 22nd May, 2003.

(On appeal from the judgment, dated 2‑1‑2003 passed by the Punjab Service Tribunal, Lahore in Service Appeals No.1978, 1.979, 1989, 2063 and 2027 of 2000).

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

‑‑‑‑Ss. 3(1)(e), 5, 8 & 10‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Removal from service‑‑‑Procurement of service as P.T.C. teachers on basis of bogus and fake appointment orders‑‑‑Authority imposed such penalty on failure of civil servants to show their appointments to be genuine and legal‑‑‑Service Tribunal upheld such penalty‑‑‑Validity‑‑‑Findings of fact recorded by Service Tribunal were supported by material available on record‑‑‑No question of law of public importance being involved, Supreme Court dismissed petition and refused leave to appeal.

Malik Noor Muhammad Awan, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate‑on‑Record for Petitioners.

Muhammad Furqan, D.E.O. and Mukhtar Ahmad, Clerk for Respondents.

Date of hearing: 22nd may, 2003.

2004 P L C (C. S.) 675

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD ASLAM

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, and others

Civil Petition No. 418‑L of 2001, decided on 26th May, 2003.

(On appeal from the judgment. dated 7‑12‑2000 of the Punjab Service Tribunal passed in Appeal No. 1293 of 1997).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑--

‑‑‑‑Rr. 3(b), 4(1)(b) & 6‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Dismissal from service‑‑‑Wilful absence‑7 ‑Non‑holding of regular inquiry‑‑‑Such penalty imposed by authority was upheld by Service Tribunal‑‑‑Validity‑‑‑Such being a case of wilful absence simpliciter, wherein no controversial fact justifying a thorough probe was involved‑­Civil servant could not substantiate his ailment by producing any worthy of credence documentary evidence‑‑ ‑Civil servant had remained on leave unauthorizedly, which certainly amounted to wilful absence amounting to misconduct‑‑‑Such question of fact had rightly been determined by authority and findings whereof had been affirmed by Service Tribunal‑‑‑Such findings could not be upset in absence of sufficient justification‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑--

‑‑‑‑R. 6(3)‑‑‑Regular inquiry‑‑‑Scope‑‑‑Regular inquiry can be dispensed with under R. 6(3) of Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑Holding of inquiry in each and every case not necessary, but same depends upon circumstances of the case.

Sh. Khizar Hayat, Advocate Supreme Court and Mahmood‑ul­-Islam, Advocate‑on‑Record for petitioner.

Nemo for Respondents.

Date of hearing: 26th May, 2003.

2004 P L C (C. S.) 680

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHARIF and others

Versus

DIRECTOR OF EDUCATION ELEMENTARY SCHOOL and others

Civil Petitions Nos.6‑L, 128‑L, 130‑L and 232‑L of 2001, decided on 17th March, 2003.

(On appeal from the judgment dated 29‑11‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.24 of 2000, 3528, 3531, 3536 of 1999).

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

‑‑‑‑Rr.4(1)(b), 5 & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Removal from service‑‑‑Non‑holding of inquiry‑‑‑Effect‑‑‑Appointment of Class‑IV servant, after 3 years, was alleged not to have been made on merits and by Competent Authority‑‑‑Authority imposed penalty after affording only opportunity of personal hearing to civil servant‑‑‑Service Tribunal upheld such penalty in appeal of civil servant ‑‑‑Validity‑‑­Record showed that civil servant had been appointed by District Education Officer on recommendations of Recruitment Committee functioning at the relevant time‑‑‑Nothing on record showed that such officer was not the Appointing Authority at relevant time‑‑‑Civil servant could not be penalized for improper constitution of Recruitment Committee as its constitution squarely fell within domain of department‑‑‑Subsequent re‑constitution of Recruitment Committee would have no bearing on appointment of civil servant made on recommendations of a validly constituted Recruitment Committee‑‑‑No criteria whatsoever had been fixed for selection of post of Class‑IV civil servant‑‑‑No inquiry had been conducted in the charges leveled in show­ cause notice to the effect that civil servant was uneducated, over age and his name was not appearing in merit list‑‑‑Civil servant had been removed from service in a haphazard and mechanical manner without application of mind and scrutiny of relevant record‑‑‑Holding of inquiry was inevitable to determine as to whether recommendations of appointment of civil servant was made by Recruitment Committee or otherwise‑‑‑Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service from date of his removal from service without back‑benefits.

Muhammad Ramzan Ch. Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for, Petitioner (in C.P. No.6‑L of 2001).

Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court for Petitioner (in C. P. No. 128‑L of 2001).

Tariq Zulfiqar Ahmad Choudhry, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner (in C.P. No. 130‑L of 2001).

Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court for Petitioner (in C.P. No.232‑L of 2001).

Miss Salma Malik, A.A.‑G. Punjab and Mrs. Sufoora Sayed, D.E.O. Vehari (F) for Respondents (in all above cases).

Date of hearing: 17th Mach, 2003.

2004 P L C (C.S.) 684

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

ZILLE HASNAIN

Versus

ADDITIONAL SUPERINTENDENT OF POLICE, RAWALPINDI and others

Civil Petition No.2549‑L of 2000, decided on 15th April, 2003.

(On appeal from the judgment dated 22‑6‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1327 of 1996).

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

‑‑‑‑R.6(3)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service‑‑‑Acquittal in criminal case‑‑‑Criminal charge and departmental proceedings‑‑‑Scope‑‑‑Criminal case of dacoity on gun point was registered against civil servant and on the same facts departmental proceedings were also initiated against him‑‑‑Civil servant was acquitted by the Trial Court from the criminal case while departmental authorities dismissed him from service‑‑‑Dismissal order was maintained by Service Tribunal‑‑‑Plea raised by the civil servant was that after acquittal in criminal case he should have been reinstated in service‑‑‑Validity‑‑‑Objects of prosecution on criminal charge and departmental proceedings were entirely different, one related to the enforcement of criminal liability and the other was concerned with service discipline‑‑‑Acquittal on criminal charge had no bearing on disciplinary proceedings‑‑‑Acquittal of civil servant in criminal case did not have any substantial bearing on the initiation of disciplinary action and its result‑‑‑Serious charge of decoity on gun point had been levelled against the civil servant which was supported by complainant and other prosecution witnesses before Inquiry Officer‑‑‑Necessary formalities as envisaged under Punjab Police (Efficiency and Discipline) Rules, 1975, had been complied with by affording opportunity of hearing to civil servant at highest departmental level‑‑‑ Performance of civil servant was not assessed as 'satisfactory' and the subjective assessment of department regarding his eligibility qua retention of civil servant in service could not be questioned‑‑‑No injustice had been done to civil servant‑‑‑Conclusion arrived at by Service Tribunal being well based did not warrant any interference .and no question of law of public importance was involved in the matter‑‑‑Leave to appeal was refused.

Amir Abdullah v. Superintendent of Police 1989 SCMR 333; Deputy Inspector General of Police v. Anis‑ur‑Rehman Khan PLD 1985 SC 134; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Nawaz Khan v. Federal Government 1996 SCMR 315 and Arif Ghafoor v. Managing Director PLD 2002 SC 13 ref.

Tanvir Ahmad, Advocate‑on‑Record for petitioner.

Nemo for Respondent.

Date of hearing: 15th April, 2003.

2004 P L C (C.S.) 687

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

SHABBIR AHMED

Versus

DEPUTY DIRECTOR (ADMN), DIRECTORATE OF EDUCATION (SE), BAHAWALPUR and others

Civil Petition No.1682‑L of 2001, decided on 28th April, 2003.

(On appeal from the judgment dated 24‑4‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2184 of 1996).

Punjab Service Tribunals Act (VIII of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of service‑‑‑Illegal appointment‑‑‑Civil servant at the time of appointment was at serial No. 42 of the merit list while only ten vacancies were available‑‑‑Civil servant could not have been appointed but he manoeuvred his appointment by exerting political influence and with the connivance of corrupt elements of the Education Department‑‑­Authorities terminated the services of the civil servant and the order passed by the authorities was maintained by Service Tribunal‑‑‑Validity‑‑‑Civil servant could not have been appointed when he was at serial No.42 of the merit list against ten available vacancies‑‑‑Civil servant and usurped the rights of those who secured better merit position‑‑‑No injustice had been done to the civil servant and the conclusion arrived at by the Service Tribunal being well based did not warrant any interference‑‑No question of law of public importance was involved in the matter‑‑‑Leave to appeal was refused.

Muhammad Ozair Chughtai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for petitioner.

Nemo for Respondent.

Date of hearing: 28th April, 2003.

2004 P L C (C.S.) 705

[Supreme Court or Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Dr. IMTIAZ ELLAHI PIRACHA

Versus

GOVERNMENT OF PUNJAB and others

Civil Petition No.484 of 2003, decided on 4th June, 2003

(On appeal from the judgment dated 9‑1‑2003 of the Punjab Service Tribunal, passed in Appeal No.2617 of 2002).

(a) Public Functionaries‑‑‑‑

‑‑‑‑ Order passed by pubic functionaries‑‑‑Principles‑‑‑Public functionaries are not supposed to pass order in arbitrary and capricious manner or in a fashion which may bring the result of victimization.

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

‑-‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Transfer‑‑‑Non­compliance of transfer policy‑‑‑Grievance of civil servant was that he was transferred before completion of normal period‑‑‑Transfer order was maintained by Service Tribunal‑‑‑Validity‑‑‑Civil servant could not claim posting at a particular station or at the place of his choice‑‑‑Competent authority under S.9 of Punjab Civil Servants Act, 1974, was empowered to transfer any civil servant from one place to another at anytime in exigencies of service or on administrative ground‑‑‑Civil servant having been transferred on administrative ground, such order was not in violation of the transfer policy‑‑‑Supreme Court declined to take any exception to the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

Muhammad Aslam Uns, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 4th June, 2003.

2004 P L C (C.S.) 707

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, CJ, Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

CHAIRMAN, CENTRAL BOARD OF FILM CENSORS, ISLAMABAD and another

Versus

S. MUHAMMAD ALI SHAH

Civil Petition No.318 of 2003, decided on 15th April, 2003.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 14‑1‑2003 passed in Appeal No. 108 (P) CS of 2001).

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

‑‑‑‑S. 13‑‑‑Compulsory retirement‑‑‑Pre‑conditions‑‑‑If competent authority finds that an employee has completed 20 years of service qualifying for pension and other benefits of service and should be retired in public interest, the authority can pass an appropriate order after following the procedure provided in S.13(2) of Civil Servants Act, 1973‑‑‑Satisfaction of the authority regarding efficiency and performance of an employee is not to be substituted by the Court or Tribunal with its own opinion on the basi6 of analysis of record.

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

‑‑‑‑S. 13‑‑‑Establishment Division, Office Memorandum, dated, 27‑7‑2000‑‑‑Compulsory retirement‑‑‑Efficiency and performance of civil servant‑‑‑Determination‑‑‑Competent authority being dissatisfied with the efficiency and performance of the civil servant issued notice under S.13 of Civil Servants Act, 1973, and retired him from service‑‑­Service Tribunal found that the guidelines of Establishment Division in Office Order, dated, 27‑7‑2000, were not complied with and reinstated the civil servant in service‑‑‑Validity‑‑‑Procedure for exercise of power under S.13 of Civil Servants Act, 1973, was entirely independent of the procedure provided for regular inquiry in case of departmental action against an officer‑ ‑‑Competent authority if had found itself satisfied that the case of a civil servant was covered under instructions contained in Establishment Division, Office Memorandum dated 27‑7‑2000, could pass an order under S.13 of Civil Servants Act, 1973‑‑‑Civil servant failed to show that the power was not exercised by the competent authority in public interest or that the Service Tribunal was justified to substitute the opinion of competent authority with its own opinion after assessment of service record of the civil servant‑‑‑Order of retirement of the civil servant was not suffering from any legal defect and judgment passed by the Service Tribunal was‑set aside.

Sardar Muhammad Aslam, D.A.‑G. and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Sh. Riazul Haq Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 15th April, 2003.

2004 P L C (C.S.) 724

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman, PIAC, Karachi Airport, Karachi

Versus

SAJID MAHMOOD ANSARI and others

Civil Petitions Nos. 643 and. 644 of 2002, decided on 23rd January, 2003.

(On appeal from the judgment dated 8‑2‑2002 of Federal Service Tribunal, Islamabad passed in Appeals Nos.357 & 359(R)CE of 2001).

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

‑‑‑‑S.9‑‑‑Promotion‑‑‑No body can ask for promotion as a right and giving or refusal of promotion is a matter which is within exclusive domain of the Government/executive authority‑‑‑Promotion depends upon many factors such as competency, availability of posts and antecedents of the civil servants etc.‑‑‑Direction given by Service Tribunal to promote the civil servants was set aside‑‑‑Supreme Court directed the authorities to consider the promotion of the civil servants from the date their juniors were promoted‑‑‑Appeal was disposed of accordingly.

Sardar Muhammad Aslam, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for petitioners. (In. both petitions).

Raja Muhammad Asghar, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1 (In both petitions).

Date of hearing: 23rd January, 2003.

2004 P L C (C.S.) 725

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, CJ, Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

RIZWAN ASHRAF

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and another

Civil Petition No.577 of 2003, decided on 21st April, 2003.

(On appeal from the judgment of Federal Service Tribunal Islamabad, dated 8‑3‑2003 passed in Appeal No.783‑R /CE/of 2001).

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

‑‑‑‑S.5‑‑‑Removal form service‑‑‑Misconduct‑‑‑Quantum of penalty‑‑­Civil servant was alleged to have stolen medicines‑‑‑Plea raised by the civil servant was that he was entitled to the medicines and he had drawn the medicines as per procedure‑‑‑Inquiry committee observed that unauthorized use of medicines was common practice and the civil servant instead of taking pain of following the proper procedure for getting the medicines from the hospital as per entitlement, obtained the same from the store with the help of his colleagues and did not as such commit theft of medicines‑‑‑Officials who arranged medicines for the civil servant in unauthorized manner were not proceeded against‑‑‑Inquiry Committee recommended for minor penalty which aspect of the matter was not taken into consideration by the competent authority and also by Service Tribunal‑‑‑Validity‑‑‑Penalty of removal from service was excessive and was not in proportion to the nature of misconduct‑‑‑Supreme Court in the light of recommendation of Inquiry Committee while upholding the charge of misconduct, converted the penalty of removal from service into penalty of one step lower in pay scale.

Roy Muhammad Nawaz Kharal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for petitioner.

Malik Muhammad Nawaz Advocate Supreme Court for Respondents.

Date of hearing: 21st April, 2003.

2004 P L C (C.S.) 728

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD IQBAL WATTOO and another

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE

Civil Petition No. 958‑L and 959‑L of 2001, decided on 4th June, 2003.

(On appeal from the judgment dated 18‑1‑2001 passed by Federal Service Tribunal, in Appeals Nos. 1045‑L and 1046‑L of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal-----Maintainability‑‑‑Departmental appeal barred by limitation ‑‑‑Effect‑‑­Grievance of civil servants was that they were not given benefits according to the pay scales revised in the year 1991‑‑‑Departmental appeal was filed in the year 2000, and thereafter appeal before Service Tribunal was filed which was dismissed being barred by limitation­--servants failed to furnish any plausible justification for inordinate delay in approaching the departmental authorities‑‑‑ civil servants went into deep slumber and woke up after a decade‑‑‑ Case of civil servants was an example of laxity and casual approach‑­ departmental appeal was barred by time, the appeal before Service Tribunal could not be in time‑‑‑No application for condonation of delay was filed before the Service Tribunal‑‑‑Civil servants also failed to point out formula qua fixation of pay which was adopted in favour of their other colleagues by depriving them (the petitioners) from proper fixation of their pay‑‑‑Civil servants had no case on merits warranting interference in the judgment of Service Tribunal as the same was well based‑‑‑Leave to appeal was refused.

Petitioners in person

Nemo for Respondent (in both matters).

Date of hearing: 4th June, 2003.

2004 P L C (C.S.) 730

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

AHMED ALI (A.S.I.)

Versus

DEPUTY INSPECTOR GENERAL OF POLICE, LAHORE and others

Civil Petition No. 1959‑L of 2000, decided on 23rd April, 2003.

(On appeal from the judgment dated 17‑6‑2000 passed by Punjab Service Tribunal, in A.No.926 of 1995).

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

‑‑‑‑‑S.8‑‑‑Constitution of Pakistan (1973), Arts. 25 & 212(3)‑‑­Promotion‑‑‑Relaxation in upper age limit‑‑‑Discrimination, plea of‑‑­Applicability‑‑‑Grievance of civil servant was that he was refused relaxation in upper age limit whereby he was not promoted‑‑­Departmental representation as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that he had been discriminated as civil servants junior to him were granted such relaxation and were promoted‑‑‑Validity‑‑‑Matter concerning relaxation in upper age limit exclusively fell within the jurisdictional domain and competency of the authorities who could not be compelled to act in a particular manner to grant the relaxation‑‑‑Relaxation could be granted in hardship cases but the case of the civil servant did not fall within such category in view of blemished and unsatisfactory record of his service‑‑­Authorities had granted relaxation to those civil servants who were having unblemished record of service, therefore, the plea of discrimination was without merit‑‑‑Civil servant had no legal right to demand such relaxation‑‑‑Authorities had not exercised the discretion in a capricious or arbitrary manner warranting any interference‑‑‑Judgment passed by Punjab Service Tribunal being well based and free from‑.any illegality could not be reversed without any cogent reasoning which was lacking in the case‑‑‑Leave to appeal was refused.

Ehsan Ullah Lilla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for petitioner.

Nemo for Respondents.

Date of hearing: 23rd April, 2003.

2004 P L C (C.S.) 740

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD AKRAM

Versus

ABDUL GHAFOOR

Civil Petitions Nos. 3564 and 3565‑L of 2001, decided on 25th April, 2003.

(On appeal from the judgment dated 10‑10‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos. 1495 of 2000, 1503 of 2000).

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

‑‑‑‑S.4‑‑‑Power of Service Tribunal to remand case in appeal filed against departmental order‑‑‑Scope‑‑‑Service Tribunal being appellate forum could confirm set aside or modify impugned order or remand case subject to lawful justification.

Gohar Masood v. Secretary, Health Department 2001 SCMR 1128; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22 and Federation of Pakistan v. Rais Khan 1993 SCMR 609 rel.

Pervez Inayat Malik, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for petitioners (in both cases).

Nemo for Respondents.

Date of hearing: 25th April, 2003.

2004 P L C (C.S.) 744

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

Syed ZAFAR IQBAL

Versus

COMMANDANT, PUNJAB CONSTABULARY, FAROOQABAD, DISTRICT SHEIKHUPURA and another

Civil Petition No.2909‑L, of 2002, decided on 12th June, 2003.

(On appeal from the judgment dated 11‑6‑2002 passed by Punjab Service Tribunal, Lahore, in A. No.72 of 2001).

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

‑‑‑‑S.17‑‑‑Revised Leave Rules, 1980, R.20(2)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Absence without leave‑‑‑Compulsory retirement from service‑‑‑Plea of medical leave‑‑‑Authenticity of medical certificate‑‑‑Reference to Medical Board‑‑‑Failure to hold regular inquiry‑‑‑Civil servant remained outdoor patient for couple of days and nothing more than that was placed on record on the basis of which his absence of 79 days could be justified‑‑‑Civil servant neither adopted the proper procedure for leave nor he submitted application to competent authority for grant of leave‑‑Medical certificate produced by the civil servant in support of his abstract for 79 days was not accepted by the authorities and without holding any regular inquiry, the authorities dismissed him from service, by retiring him compulsorily‑‑‑Order of dismissal was maintained by Service Tribunal‑‑‑Contention of the civil servant was that he remained under medical treatment due to his ailment and the authorities could have referred him to Medical Board‑‑‑Civil servant further contended that no regular inquiry was conducted by the authorities before passing the order of dismissal‑‑‑Validity‑‑‑Genuineness and authenticity of medical certificates were not above board as the same ‑were not signed by the concerned Medical Superintendent and were sent to the department after one month when the period of rest was over and the civil servant could not have been referred for opinion to the Medical Board‑‑‑Civil servant remained absent and factum of absence had been proved on the basis of official record‑‑‑In absence of any factual controversy, holding of regular inquiry had rightly been dispensed with and no prejudice had been caused to the civil servant‑‑‑No `automatic process' existed to get leave sanctioned but the procedure as contemplated in Revised Leave Rules, 1980, must be followed to get the leave sanctioned‑‑‑Leave availed without getting the same sanctioned would be equated to that of willful absence amounting to misconduct‑‑‑Case of the civil servant was not covered under the provisions of R.20(2) of Revised Leave Rules, 1980‑‑­Conclusion arrived at by the Service Tribunal being free from any legal infirmity or ambiguity did not warrant interference‑‑‑Leave to appeal was refused.

Muhammad Saleem Akhtar v. Director Food 1987 SCMR 829 ref.

S.M. Zubair, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for petitioner.

Sohail Dar, A.A.‑G. Punjab, for Respondents.

Date of hearing: 12th June, 2003.

2004 P L C (C.S.) 748

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Falak Sher, JJ

GENERAL MANAGER (RETAIL) PSO and others

Versus

Syed FAIZ ALI JILANI

Civil Petition No.2973‑L of 2001, decided on 24th April, 2003.

(On appeal from the judgment dated 6‑7‑2001 of the Federal Service Tribunal passed in Appeal No.329(L) CE‑2000).

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

‑‑‑‑Rr. 3 & 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service on basis of two charges‑‑‑Service Tribunal found first charge as not proved, while penalty imposed was found to be disproportionate to the nature of second charge, thus, converted such penalty into stoppage of one increment‑‑‑Validity‑‑‑Tribunal, after scanning entire record had found as a matter of fact that first charge had not been proved‑‑‑Such finding of fact did not suffer from any illegality rendering same as without lawful authority‑‑‑Nature of second charge did not justify such major penalty, which had rightly been modified, so that civil servant may mend himself‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Sheikh Anwar‑ul‑Haq, Advocate Supreme Court for petitioners.

Mian Mehmood Hasan, Advocate Supreme Court alongwith Faizur Rehman, Advocate‑on‑Record for Respondent.

Date of hearing: 24th April, 2003.

2004 P L C (C.S.) 750

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

WAPDA through Chairman

Versus

MUHAMMAD IJAZ RABBANI and 2 others

Civil Petitions Nos.86 and 87 of 2003, decided on 3rd March, 2003.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 8‑11‑2002 passed in Service Appeals No.58 (L)CS 2001 and 59 (L) CS 2001 respectively).

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

‑‑‑‑R. 5‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Reinstatement in service‑‑‑Show‑cause notice not containing allegation of any act of commission or omission‑‑­Effect‑‑‑Departmental proceedings were initiated against civil servants on the ground that they having undertaken the exercise of prototype testing, issued inspection certificate in respect of the total consignment whereas they were supposed to issue certificate only to the extent of quantity of electric meters already manufactured ‑‑‑Show‑cause notices did not contain any allegation of favour or dis favour for any consideration or commission or omission of any act in violation of the mandate given to the civil servants:‑‑Concerned authorities in the department, who were responsible to verify the specification and proper functioning of the electric meters at the time of delivery of supply of the consignment, did not point out any defect in the specification or functioning of the meters‑‑‑Service Tribunal allowed the appeals filed by the civil servants and they were reinstated in service with back benefits Negligence of the concerned authorities could not be shifted to the‑civil servants who had issued certificate with inspection report‑‑‑Service Tribunal having reviewed the matter in detail had rightly come to the conclusion that the civil servants had committed no wrong and Supreme Court declined to interfere in the finding of fact‑‑‑Leave to appeal was refused.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for petitioner.

Malik M. Azam Rasul, Advocate Supreme Court and Ch. Muhammad Akram Advocate‑on‑Record for Respondent No. 1 (in both cases).

Date of hearing: 3rd March, 2003.

2004 P L C (C.S) 755

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

GHULAM YASIN

Versus

INSPECTOR‑GENERAL OF POLICE PUNJAB, LAHORE and others

Civil Petition No.3783‑L of 2002, decided on 26th May,2003.

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

‑‑‑R.6(3)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Acquittal m criminal case‑‑‑Criminal charge and departmental proceedings‑‑‑Scope and effect entirely different‑ ‑‑Criminal case was registered against civil servant and on the same facts departmental proceedings were also initiated against him‑‑‑Civil servant was by the Trial Court from the criminal case while departmental authorities dismissed him from service‑‑‑Dismissal order was maintained by Service Tribunal‑‑‑Plea raised by the civil servant was that after acquittal in criminal case no further departmental inquiry could have been initiated‑‑­Validity‑‑‑Objects of prosecution or, criminal charge and departmental proceedings were entirely different; one related to the enforcement of criminal liability and the other was concerned with service discipline‑‑‑Acquittal on criminal charge had no bearing on disciplinary proceedings‑‑‑Acquittal in criminal case did not constitute a bar for initiation of disciplinary action‑‑‑No jurisdictional flaw or legal error was pointed out by the civil servant in the judgment passed by the Service Tribunal‑‑Leave to appeal was refused.

Amir Abdullah v. Superintendent of Police 1989 SCMR 333; Deputy Inspector General of Police v. Anis‑ur‑Rehman Khan PLD 1985 SC 134; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Nawaz Khan v. Federal Government 1996 SCMR 315 and Arif Ghafoor v. Managing Director PLD 2002 SC 13 ref.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑--

‑‑‑‑R.6(3)‑‑‑Punjab Service Tribunal Act (IX of 1974), S.4‑‑‑Wilful absence‑‑‑Proof‑‑‑Interference by Supreme Court ‑‑‑Factum of wilful absence being question of fact was determined by Police department and determination whereof had been upheld by the Service Tribunal‑‑­Effect‑‑‑Supreme Court declined to upset such determination in absence of any concrete reasoning.

Muhammad Azim v. Chief Engineer 1991 SCMR 255; Muhammad Binyamin v. WAPDA 1991 SCMR 383; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005 and Muhammad Jaffar Toor v. Superintending Engineer 1989 SCMR 1470 ref.

A.G. Tariq Chaudhry, Advocate Supreme Court and M. A. Qureshi, Advocate‑on‑Record for petitioner (absent).

Nemo for Respondent.

Date of hearing: 26th May, 2003.

2004 P L C (C.S.) 758

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

Major (R) NISAR ALI

Versus

PAKISTAN ATOMIC ENERGY COMMISSION and another

Civil Petition No.2533‑L of 2000, decided on 1st April, 2003.

(On appeal from the judgment dated 2‑9‑2000 passed by Federal Service Tribunal, in A. No. 369(L) of 1998).

(a) Civil Service‑‑‑

‑‑‑‑"Contractual service and "regular service" ‑‑‑Distinction‑‑‑Contractual appointment is for a specific period and cannot be equated to that of regular appointment‑‑‑Contractual appointment and regular appointment are neither synonymous nor interchangeable terms‑‑­Contractual appointment is subject to the terms and conditions as enumerated in the contract executed between the employer and the employee while regular appointment is subject to service laws and rules governing the service and the question of its. applicability depends upon the terms and conditions of the appointment‑‑‑Employees who are appointed on contract basis are entirely a distinct class and they do not belong to any integrated service‑‑‑Line of distinction is to be drawn between service under the rules and contract service.

Ghulam Sarwar v. Pakistan PLD 1962 SC 142 ref.

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

‑‑‑‑S.4‑‑‑Establishment Division O.M. No.8/8/90‑A‑B‑2, dated 27.1.1990‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority, fixation of‑‑‑Counting of service on contract basis towards regular one‑‑­Grievance of civil servant was that his period of service on contract basis had not been counted towards his service when converted on regular basis‑‑‑Validity‑‑‑Contractual appointment was not a regular appointment and the period of service rendered on contract basis could not be equaled to that of regular service‑‑‑Contract service of the civil servant was not counted towards regular service due to the then prevalent policy‑‑‑Civil servant had accepted the terms and conditions of his contractual appointment and therefore, the question of his appointment on regular basis did not arise‑‑‑Acceptance by civil servant amounted to exercise of his option which once exercised was to be considered as final in view of the policy as enumerated in Establishment Division O.M. No.8/8/90‑A­-B‑2, dated 27.1.1990‑‑‑Conclusion arrived at by the Service, Tribunal being well based did not call for any interference‑‑‑No question of law of public importance having been involved in the matter, leave to appeal was refused.

Sh. Masood Akhtar, Advocate‑on‑Record for petitioner.

Nemo for Respondent.

Date of hearing: 1st April, 2003.

2004 P L C (C.S.) 771

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

ABDUL WALI

Versus

WAPDA through Chairman and others

Civil Appeal No.831 of 2002, decided on 23rd January, 2004.

(On appeal from judgment dated 10‑12‑2001 of the Federal Service Tribunal, passed in Appeal No.285(P)/C.S of 2000).

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

‑‑‑‑R. 4(1)(b)‑‑‑Civil Service Regulations, Art.471‑A‑‑‑Pakistan Water and Power Development Authority Employees Pension Rules, 1977, R.7(2)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Fresh initiation of disciplinary proceedings for imposing penalty on employee after his retirement from service on attaining age of superannuation ‑‑‑Penalty of compulsory retirement from service earlier imposed on employee was set aside by Service Tribunal with the observations that authority would be at liberty to proceed against him in accordance with law‑‑‑Authority after retirement of employee from service on attaining age of superannuation issued him charge‑sheet stating that if allegations were established, then he would be liable to one or more major or minor penalties as mentioned in R.4 of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑‑Validity‑‑‑None of such penalties could be imposed through an administrative order with retrospective effect‑‑‑Article 471‑A of Civil Service Regulations and Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, provide that employee of WAPDA could not be proceeded against after retirement from service‑‑­Supreme Court accepted appeal and set aside impugned judgment to the extent of granting permission to authority to take fresh disciplinary proceedings against employee.

(b) Civil service‑‑‑

‑‑‑‑Initiation of disciplinary proceedings against civil servant after retirement from service‑‑‑Validity‑‑‑Disciplinary proceedings could not be taken against civil servant for imposition of major or minor penalty as contemplated in Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978 after he had already retired from service on attaining age of superannuation.

(c) Civil service‑‑‑--

‑‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Retired civil servant‑‑Taking action against retired civil servant for withholding or otherwise of pensionary benefits or recovery therefrom, question of‑‑­Supreme Court would examine such question in some appropriate case.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Appellant.

Muhammad Munir Paracha, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 23rd January, 2004.

2004 P L C (C.S.) 781

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Javed Iqbal, JJ

FAUZIA SIDDIQUE QURESHI

Versus

SECRETARY, MINISTRY OF EDUCATION, ISLAMABAD and others

Civil Petitions Nos. 2197 of 2001 and 614 of 2003, decided on 7th October, 2003.

(On appeal from the judgment dated 30‑4‑2001 of the Federal Service Tribunal, Islamabad passed in Appeal No.760(R)CS of 2000 and dated 14‑5-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in I.C.A. No.47 of 2002).

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

‑‑‑‑S.4‑‑‑Successive representations before Departmental Authorities‑‑­Effect‑‑‑Such representations could not have been made and the Competent Authority was not bound to dispose of all such representations.

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3) ‑‑‑ Termination of service‑‑‑Absence from service‑‑‑Concurrent findings of fact by Departmental Authority and Service Tribunal‑‑‑Service of the civil servant was terminated on the ground of her absence from duty‑‑­Departmental representation as well as appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑Determination regarding factum of willful absence made by the Department had been affirmed by the Service Tribunal and the same could not be reversed without sufficient lawful justification‑‑‑Supreme Court does not ordinarily interfere with concurrent findings of fact given by Departmental Authority and Service Tribunal‑‑‑Civil servant failed to point out any such lawful justification for interference by, Supreme Court‑‑‑No question of law of public importance having been involved in the matter, leave to appeal was refused.

Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005; Faiz Ahmad v. Deputy Postmaster General, Lahore 1991 SCMR 368 and Muhammad Binyamin v. WAPDA 1991 SCMR 383 ref.

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

‑‑‑‑Art.212(2)‑‑‑Service Tribunals Act (LXX of 1973), S.6‑‑‑‑Matters relating to terms and conditions of service‑‑‑Jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Upon establishment of Service Tribunal, no other Court had jurisdiction in service matters covered by Service Tribunal‑‑‑Jurisdiction of High Court was also ousted with regard to all such matters which fell within the jurisdictional domain of Service Tribunal.

Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943 and. The Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 ref.

M. Siddique Qureshi (father, with permission) for Petitioner.

Nemo for Respondents.

Date of hearing: 7th October, 2003.

2004 P L C (C.S.) 784

[Supreme Court of Pakistan]

Present: Javed Iqbal and Khalil‑ur‑Rehman Ramday, JJ

AMIR SHAHBAZ, DIRECTOR WORKS AND SERVICE DEPARTMENT, GOVERNMENT OF N.‑W.F.P., DISTRICY SHANGLA, SWAT

Versus

GOVERNMENT OF N.‑W.F.P. through Chief Secretary and others

Civil Petition No. 311‑P of 2001, decided on 21st October, 2003.

(On appeal from the judgment dated 12‑6‑2001 of N.‑W.F.P. Service Tribunal, Peshawar, passed in Service Appeal No.2198 of 1999).

North‑West Frontier Province (Efficiency and Discipline) Rules, 1973---

‑‑‑‑R.7‑A‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Constitution of Pakistan (1973), Arts. 13 & 212(3)‑‑­Annual increments, stoppage of‑‑‑Successive departmental inquiries—­Principle of double jeopardy‑‑‑Applicability‑‑‑Concurrent findings of fact by Departmental Authority and Service Tribunal‑‑‑Civil servant remained associated with construction of bridge as Sub‑Divisional Officer‑‑‑Certain technical defects were noticed in the construction of bridge and departmental inquiry was initiated‑‑ ‑Civil servant was though found innocent and was exonerated by the Inquiry Officer, yet the Authorized Officer imposed penalty of stoppage of one increment on him‑‑‑Matter was reopened, one year later, and second inquiry was initiated by the Authorities but the second charge‑sheet was dropped ‑for certain reasons‑‑‑Once again during third inquiry a new charge‑sheet alongwith statement of allegations was issued to the civil servant wherein the same charges were reproduced‑‑‑Authorities, as a result of third inquiry, imposed stoppage of three increments on the civil servant‑‑­Penalty imposed by the Authorities was maintained by the Service Tribunal‑‑‑Plea raised by the civil servant was that imposing of penalty for the second time amounted to double jeopardy‑‑‑Validity‑‑‑Civil servant, as a result of comprehensive inquiry, was held responsible for not following the skew and alignment correctly which could have not only played a havoc with the users of the bridge but also spoke a volume about the technical know‑how, efficiency and professional skill of the civil servant‑‑‑Successive inquiries could have been held to unveil the reality‑‑‑Authorities had awarded minor punishment of stoppage of three increments which did not commensurate with . the gravity of the charges‑‑‑Penalty could have been increased by the Competent Authority while exercising powers as conferred upon it under R.7‑A of North ­West Frontier Province (Efficiency and Discipline) Rules, 1973, which had been enacted to meet such sort of eventualities and the same could not be equated with the double jeopardy‑‑Civil servant was never exonerated in any inquiry and no injustice had been done to him‑‑­Supreme Court declined to declare the entire disciplinary proceedings null and void due to some procedural lapses as Supreme Court ordinarily refuses to interfere with the‑concurrent findings of fact given by Departmental Authority and Service Tribunal‑‑‑Leave to appeal was refused.

Shaukat Hussain Gillani v. Abdul Rehman Abbas PLD 1992 SC 369; Muhammad Yousaf v. Government of Pakistan 1992 SCMR 1748; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Muhammad Binyamin v. Water and Power Development Authority 1991 SCMR 383; Faiz Ahmad v. Deputy Postmaster, General; Lahore 1991 SCMR 368; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907 and Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005 ref.

Abdul Hakeem Khan Kundi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 21st October, 2003.

2004 P L C (C.S.) 789

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

HOUSE BUILDING FINANCE CORPORATION and another

Versus

SHAHID HASSAN KHAN

Civil Petition No.254‑K of 2003, decided on 23rd December, 2003.

(On appeal from the judgment dated 7‑3‑2003 of the Federal Service Tribunal at Karachi passed in Appeal No. 1025‑K of 1999).

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

‑‑‑‑S.5(1)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Misconduct‑‑­Dismissal from service‑‑‑Service Tribunal modifying the order of dismissal of civil servant into compulsory retirement in exercise of powers under S.5(1), Service Tribunals Act, 1973‑‑‑Validity‑‑‑Employee had served the Department for a period of 32 years, as such, the punishment of dismissal from service was harsh and instead order for compulsory retirement would have met the ends of justice‑‑‑Petition for leave to appeal against the judgment of the Service Tribunal was dismissed by the Supreme Court.

Water and Power Development Authority v. Sh. Zulfiqar Ali PLD 1988 SC 693; WAPDA, Lahore and 2 others v. Manzoor Ahmad Arif 1994 SCMR 1042 and M. Naseem Akhtar v. H.B.F.C., Nawabshah Appeal No. 1055 (K) of 1999 distinguished.

M. M. Aqil Awan, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate‑on‑Record for Petitioners.

Respondent in person.

Date of hearing: 23rd December, 2003.

2004 P L C (C.S.) 792

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

MUHAMMAD RASHEED, STENOGRAPHER and others

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF COMMERCE, NATIONAL TARIFF COMMISSION, through Chairman, Islamabad and others

Civil Petitions for Leave to Appeal Nos. 1231 to 1242 of 2003, decided on 10th December, 2003.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 20‑3‑2003, passed in Appeals Nos.69(R)CS to 80(R)CS of 2002).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Civil Service Regulations, Regln.371‑‑‑Constitution of Pakistan (1973), Arts.25 & 212(3)‑‑‑Employees of National Tariff Commission‑‑­Benefit of pension and G.P. Funds‑‑‑Entitlement‑‑‑Dismissal of appeal by Service Tribunal‑‑‑Contention of petitioners was that Tribunal had not granted them equitable relief, thus, they had been discriminated as employees of other Departments of Government had been allowed such benefit under orders of Supreme Court; and Tribunal while passing impugned judgment had not agreed with interpretation of law made in its other judgment finding National Tariff Commission to be an attached Department of Ministry of Commerce and not a corporate body, which judgment had attained finality having not been challenged‑‑‑Supreme Court granted leave to appeal to consider such contention.

Divisional Superintendent, P.W. R. Karachi v. Bashir Ahmed PLD 1973 SC 589; Ahmad Khan v. Secretary to Government 1997 SCMR 1477 and Secretary, Railways Board v. Muhammad Zubair Rana PLD 2000 SC 61 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th December, 2003.

2004 P L C (C.S.) 794

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

SALEEM ULLAH KHAN

versus.

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

Civil Petition No.41 of 2004, decided on 26th January, 2004.

(On appeal from the judgment dated 8‑1‑2004 of the Federal Service Tribunal, Islamabad, passed in Appeal No.1439(R)/CS of 2003).

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 10‑‑‑Police Service of Pakistan (Composition., Cadre and Seniority) Rules,' 1985‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Transfer and posting of civil servant as Officer on Special Duty (O.S.D.)‑‑‑Service Tribunal dismissed appeal of civil servant‑‑‑Contention of civil servant was that his transfer as O.S.D, for indefinite period was harmful for his future career; that he wanted to work to justify his drawing of salary and allowances; that many senior officers posted as O.S.D. were awaiting their further posting since long; and he ought to have been posted against a cadre post in terms of R.9((l) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985‑‑‑Validity ‑Posting of senior officers as O.S.D. for interminable period without assigning to them responsibilities was a pathetic state of affairs‑‑Federal Government must properly address such issue‑‑‑Supreme Court dismissed petition and refused leave to appeal with directions to Government to forthwith review cases of all such officers in order to consider suitability for their further postings and. also to evolve a policy for periodic review of such cases.

Syed Niaz Hussain Shah Bukhari, Technicia (Process) v. Oil and Gas Development Corporation Limited, Islamabad 2003 SCMR 228 and Syed Ajmal Hussain Bokhari v. Commissioner, Rawalpindi 1997 PLC (C.S.) 754 ref.

Petitioner in person.

Makhdoom Ali Khan, Attorney‑General for Pakistan, Aslam Sanjrani, Additional Secretary, Establishment Division and Hafiz S.A. Rehman, D.A.‑G. for Respondents.

Date of hearing: 26th January, 2004.

2004 P L C (C.S.) 796

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

HABIB BANK LIMITED and others

versus

MAHMOOD ALI KHAN and others

Civil Petitions for Leave to Appeal Nos.1583 to 15$5, 1956, 1957 and 1990 of 2003, decided on 27th October, 2003.

(On appeal from the judgment dated 17‑7‑2003 in Appeals Nos.93(R)CE, 103(R)CE and 104(R)CE of 2003 passed by the Federal Service Tribunal, Islamabad).

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

‑‑‑‑Ss. 3, 4, 7, 8, 9 & 10‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Charge of misconduct‑‑‑Dismissal/removal/termination of services of Bank employees after issuing them charge‑sheet and holding inquiry Service Tribunal set aside penalty and ordered reinstatement of employees in service with direction to Bank to hold fresh proceedings against them under Removal from Service (Special Powers) Ordinance. 2000‑‑‑Supreme Court granted leave to appeal to` amine as to whether Service Tribunal had failed to appreciate that there was no requirement under principle of natural justice that person who was given charge­sheet/statement of allegations, full opportunity of hearing in domestic enquiry and thereafter issued show‑cause notice, would also be entitled to personal hearing before finally deciding matter under Removal from Service (Special Powers) Ordinance, 2000; whether Service Tribunal had erred in law by ordering reinstatement and holding de novo enquiry proceedings, when commission of acts of misconduct stood proved; whether orders of dismissal/removal/termination and prior to its suspension, charge‑sheet, show‑cause notice and proceedings before Enquiry Committee had been done and passed by incompetent authority and whether employees had not been given reasonable opportunity of hearing before' final order of dismissal/removal/termination‑‑‑Supreme Court directed the Bank to reinstate employees in the meanwhile in terms of impugned judgment.

Dawood Cotton Mills Ltd. v. Guftar Shah and others PLD 1981 SC 225,_ Sarfraz v. General Manager (Leaf) Pakistan Tobacco Company Ltd. and others 1988 SCMR 1352; Maqbool Elahi v. Province of Punjab and others 1997 PLC (C.S) 1146; WAPDA through, Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Abdul Aziz Khan v. The Postmaster General, Southern Punjab 2000 PSC 1248 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation and others 2002 SCMR 1034 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and M.‑S. Khattak, Advocate‑on‑Record for Petitioners (in Civil Petitions Nos. 1583 to 1585 of 2003.)

Amir Alam Khan, Senior Advocate Supreme Court for Petitioners (in Civil Petitions Nos. 1956 and 1957 of 2003.)

Amtr Alam Khan, Senior Advocate Supreme Court for Respondent (in Civil Petition N9.1583 of 2003.)

Ch. Ghulam Qadir, Advocate Supreme Court for Respondents (in Civil Petitions Nos.1584 and 1585 of 2003) and for Petitioner (in Civil Petition No. 1990 of 2003.)

Nemo for Respondents (in other Civil Petitions.)

Date of hearing: 27th October, 2003.

2004 P L C (C. S.) 802

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry‑and Rana Bhagwandas, JJ

ARSHAD JAMAL

versus

N.‑W.F.P. FOREST DEVELOPMENT CORPORATION and others

Civil Appeal No. 177 of 1998, decided on 4th December 2003.

(On appeal from the judgment/order dated 25‑11‑1997 passed by Peshawar High Court, Peshawar tit Writ Petition No‑422 of 1997).

Civil Service-----

‑‑‑Removal from service of employee of a statutory Corporation in the absence of statutory rules notified in the official Gazette by the said Corporation‑‑‑Validity‑‑‑Such employee had a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement‑‑­Authorities, in the present case, had passed an order influenced mainly by the fact that the appointment of the employee was illegal, ab initio, void and against the rules‑‑‑Was incumbent upon Authorities that before passing order of termination/removal of employee, he should have been issued show‑cause notice and an opportunity of hearing granted and thereafter well‑considered order should have been passed‑‑‑Supreme Court declared the order of removal from service of the employee by the Corporation to be illegal and without legal authority and set aside the same.

Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation and others 2002 SCMR 1034 ref.

Abdul Samad Khan, Advocate Supreme Court for Appellants.

Syed Mir Muhammad, Advocate Supreme Court for Respondents Nos. I and 2.

M. Bilal, Senior Advocate Supreme Court for Respondent No.3.

Date of hearing: 4th December, 2003.

2004 P L C (C. S.) 805

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD ZAHOOR ABBASI

versus

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

Civil Petition No.430 of 2003, decided on 9th October, 2003.

(On appeal from the judgment dated 10‑2‑2003 of `the Punjab Service Tribunal, Lahore Camp, Rawalpindi passed in Service Appeal ‑No: '1748 of 2002).

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

‑‑‑‑Art.212(3)‑‑‑New plea, raising of‑‑‑Point of law‑‑‑Point that rule was ultra vires was not urged before Service Tribunal‑‑‑Validity‑‑‑Such point should not have been normally permitted to be raised in Supreme Court but the same being question of law was allowed to be urged, by the Supreme Court.

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

‑‑‑‑S.18‑‑‑Punjab Civil Services (Pension) Rules, 1963, R.1.8(a)‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Misconduct‑‑‑Penalty of withholding of pension ‑‑‑Vires of R.1.8 of Punjab Civil Services (Pension) Rules, 1963‑‑‑Authorities withheld 60% of pension of the Civil servant tinder R.1.8 (a) of Punjab Civil Services (Pension) Rules, 1963 on the charge of misconduct‑‑‑Service Tribunal allowed appeal filed by the civil servant and reduced the penalty from 60% to 10%‑‑‑Contention of the` civil servant was that pension could only be denied in cases of removal and dismissal from service on a charge of indiscipline otherwise the civil servant had to be paid full pension‑‑‑Civil servant further contended that the provision of R.1.8 of Punjab Civil Services (Pension] Rules, 1963, was ultra vires of S.18 of Punjab Civil Servants Act, 1974‑‑‑Validity‑‑‑Such interpretation of the Rule would have been acceptable if the words "as may be prescribed" were not there in R.I.8(a)(1) of Punjab Civil Services (Pension) Rules, 1963, thus the provision of law was a healthy one ,and was‑ meant to ensure good conduct on the part of a civil servant during service or even after it‑‑­Civil servant on completion of service was entitled to pension provided he had been found of good conduct during the service‑‑‑Dismissed or removed civil servant being guilty of misconduct had no claim to pension under R.1.8(a)(3) of Punjab Civil Services (Pension) Rules, 1963‑‑­Provision of R:1.8 of Punjab Civil Services (Pension) Rules, 1963, being not ultra vires of S.18 of Punjab Civil Servants Act, 1974, Supreme Court declined to ‑interfere with the judgment ‑passed by Service Tribunal‑‑‑Leave to appeal was refused.

Malik Ehsan‑ul‑Haq v. Government of the Punjab through Chief Secretary and 3 others 1994 PLC (C.S.) 454 and Syed Munir Hussain Shah v. Secretary, Livestock Dairy and Development Department, Government of the. Punjab and 2 others 1995 PLC (C:S.) 943 distinguished.

Ch. Afrasiab Khan, Advocate Supreme Court with Ch. Akhter Ali, Advocate‑on‑Record for Petitioner.

Khalid Mehmood Sindhu, Section Officer and Iqbal Ahmad Javed, Assistant Secretary, Education for` Respondents.

Date of hearing: 9th October, 2003.

2004 P L C (C.S.) 809

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Syed MUHAMMAD IQBAL JAFRI

versus

REGISTRAR, LAHORE HIGH, COURT, LAHORE

Civil Petition No. 432‑L of 2003, decided on 1st December, 2003.

(On appeal from the judgment dated 31‑1‑2003 of the Punjab Subordinate Judiciary Service Tribunal, Lahore, passed in Appeal No.23 of 2000).

(a) Civil service‑‑‑

‑‑‑‑ Acquittal of civil servant in criminal trial‑‑‑Departmental proceedings, initiation of‑‑‑Scope‑‑‑No bar to proceed departmentally against any civil servant even after his acquittal, as departmental disciplinary proceedings are entirely different from those of the criminal proceedings on criminal charge‑‑‑Both the proceedings are neither co­extensive nor inter‑connected‑‑‑Judicial trial is not a substitute for departmental inquiry as it relates to the enforcement of criminal liability whereas the departmental proceedings are concerned with the service discipline and good order‑‑‑Scope and law applicable in both proceedings are different from each other, thus Competent Authority was vested with the discretion to initiate the departmental inquiry through an Inquiry Officer without being influenced by the decision of the acquittal.

The Deputy Inspector‑General of Police, Lahore and others v. Anis‑ur‑Rehman Khan PLD 1985 SC 134 and Amir Abdulrah v. Superintendent of Police and others 1989 SCMR 333 ref.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Arts.13 & 212(3)‑‑‑Dismissal from service‑‑‑Acquittal of civil servant in criminal trial‑‑‑Doctrine of double jeopardy‑‑‑Applicability‑‑‑Civil servant being judicial officer was arrested abroad on the allegation of drug trafficking‑‑‑Trial Court in the foreign country convicted the civil servant but on appeal he was acquitted on benefit of doubt‑‑‑Civil servant, on his return to Pakistan, was departmentally proceeded against and he was dismissed from service‑‑‑Punjab Subordinate Judiciary Service Tribunal maintained the order of dismissal and dismissed the appeal filed by the civil servant‑‑‑Plea raised by the civil servant was that dismissal from service on the same charge after his acquittal by criminal Court amounted to double jeopardy which was against the spirit of Art. 13 of the Constitution‑‑‑Validity‑‑‑Mere acquittal of the civil servant on benefit of doubt from Court‑ of Appeal in foreign country, the serious charge of drug trafficking and being apprehended at foreign airport by Customs Officials could not be brushed aside easily‑‑‑Supreme Court observed that such act of the civil servant had not only impaired the image of Pakistan Judiciary but had given bad name and reputation to the country and the nation‑‑‑Civil servant had also earned adverse reports in two Annual Confidential Reports whereby he was reported to be corrupt‑‑­Judgment passed by the Service Tribunal was based on valid and sound reasons and was in consonance with the settled law‑‑‑No misreading and non‑reading of material evidence or misconstruction of facts and law was found‑‑‑No substantial legal question of public importance was involved warranting interference by Supreme Court‑‑‑Leave to appeal was refused.

Talib H. Rizvi, Senior Advocate Supreme Court for Petitioner.

Date of hearing: 1st December, 2003.

2004 P L C (C.S.) 817

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

Dr. OMAR ALI KHAN

versus

Dr. KHALID ATAULLAH MUFTI and others

Civil Appeal No.29 of 2003, decided on 21st January, 2004.

(On appeal from judgment dated 13‑8‑2002 of the N.‑W.F.P. Service Tribunal. Peshawar, passed in Appeal No. 174 of 1989).

North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑S. 4‑‑‑Civil Procedure Code (V " of 1908), Ss. 12(2) & 151; ‑­‑ Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Recall of earlier order by Service Tribunal affecting, seniority of non‑party to appeal‑ ‑ Tribunal modified its earlier judgment by giving effect to the judgment of Supreme Court dated 12‑5‑1990 directing the authority to issue, revised seniority list by assigning the appellant seniority from such date‑‑‑Validity‑‑‑Appellant could not be senior 'to the respondent, who had been promoted on regular basis earlier on 6‑2‑1990‑‑‑Other respondent had been promoted from 8‑1‑1991, thus; appellant would be placed senior to him‑‑‑Earlier judgment of Tribunal had affected rights of both the respondents without impleading or providing them any, opportunity of hearing‑‑‑Tribunal had done substantial justice between parties‑‑‑Supreme Court dismissed the appeal.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M. A.. Zaidi Advocate‑on‑Record f Appellate.

Samiullah Jan, Advocate Supreme Court for Respondents Nos. l and 2.

Jehanzeb Rahim, Advocate‑General, N.‑W.F.P. for Respondents Nos. 3 to 5.

Date of hearing: 21st.January, 2004.

2004 P L C (C.S.) 821

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

Messrs SUI NORTHERN GAS PIPELINES LTD.

versus

Malik MURAWAT HUSSAIN

Civil Appeal No.309 of 1999, decided on 17th December, 2003.

(On appeal from the judgment of the. Federal Service Tribunal dated 12‑11‑1997 passed in Appeal No.428(L).of 1997).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Limitation Act (X of 1908), Ss.5 & 14.‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Condonation of delay‑‑‑Pursuing remedy vigilantly‑‑‑Appeal before Departmental Authorities barred by limitation‑‑‑Non‑deciding of appeal by Departmental Authorities‑‑­Contention of the Authorities was that Service Tribunal had wrongly condoned delay in filing appeal before them as the departmental appeal before the Authorities filed by the civil servant was barred by time‑‑‑. Validity‑‑‑As departmental appeal filed by the civil servant was not disposed of by any order in writing holding the same as barred by time, the question of condonation or otherwise in filing departmental appeal did not arise‑‑‑Service Tribunal did not commit any illegality in condoning the delay because the civil servant had been pursuing his remedy vigilantly from pillar to post but was not given the relief‑‑­Supreme Court observed that‑the conduct of Authorities was not above board‑ ‑‑Government functionaries were the noblest litigants but in the present case the Authorities had not given fair treatment to the civil servant‑‑‑Appeal was dismissed.

N.‑W.F.P. Public Service Commission v. Samiullah Khan 1999 SCMR 2786 ref.

Salim Baig, Advocate Supreme Court for Appellant.

S. Ishtiaq Haider, Advocate Supreme Court for Respondent.

Date of hearing: 17th December, 2003.

2004 P L C (C.S.) 840

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

KHURRAM ASLAM KHAN

versus

ISLAMIC REPUBLIC OF PAKISTAN and others

Civil Petition No. 1081‑L of 2000, decided on 19th March, 2003.

(On appeal from the judgment dated 6‑4‑2000 of Federal Service Tribunal passed in Appeal No.359(L) of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973); Art. 212(3)‑‑‑Appeal‑‑­Maintainability‑‑‑ Limitation‑‑‑Repeated departmental representations ‑‑‑­Civil servant was appointed as Deputy Central Intelligence Officer and he joined as such‑‑‑Later on after about five years he made departmental representation for his appointment as Deputy Assistant Director from the date of his initial appointment‑‑ ‑Civil servant made repeated departmental representations in that respect and being unsuccessful lastly filed appeal before Service Tribunal which was dismissed by the Tribunal being time‑barred‑‑‑Validity‑‑‑Civil servant should have approached the Service Tribunal within the stipulated period of thirty days as provided under SA(1) of Service Tribunals Act, 1973, which could not be done for more than ten years and thus the appeal filed before Service Tribunal was barred by time‑‑‑Device of successive and repeated representations could not extend the prescribed time limit‑‑­Civil Servant himself having accepted the post of Deputy Central Intelligence Officer without making any protest, could not ask for the appointment of Deputy Assistant Director and that too without any legal or moral justification‑‑‑No illegality had been committed by Service Tribunal while rejecting the appeal as time‑barred‑‑‑Conclusion arrived at by Service Tribunal being well based and in accordance with law, did not warrant any interference‑‑‑Leave to appeal was refused.

Petitioner in person.

Danishwar Malik, Dy. Attorney‑General and Rao M. Yousaf Khan Advocate‑on‑Record for Respondents 1 to 3.

Date of hearing:. 19th March, 2003.

2004 P L C (C.S.) 848

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

KHUSHI MUHAMMAD

versus

DEPUTY INSPECTOR‑GENERAL OF POLICE, GUJRANWALA RANGE, GUJRANWALA and others

Civil Petition No. 1827‑L of 2000, decided on 1st April, 2003.

(On appeal from the judgment dated 23‑5‑2000 passed by Punjab Service Tribunal Lahore, in Appeal No.553 of 1992).

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

‑‑‑‑R.6(3)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑ ‑Non‑holding of regular inquiry‑‑ ‑Civil servant was dismissed from service on the charge of misconduct‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that he 'was dismissed, without any regular inquiry conducted by the authorities‑‑‑Validity‑‑‑At first instance preliminary inquiry was conducted and statement of witnesses were recorded‑‑‑Civil servant deliberately kept himself disassociated from the initial proceedings and responded to show‑cause notice, reply to which was found unsatisfactory‑‑‑Authority was ‑not obliged to conduct regular inquiry in each and every case which could be dispensed with by the competent authority .under R.6(3) of Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑All the mandatory formalities had been completed and no injustice had been done to the civil servant whose service record was not satisfactory‑‑‑Plea raised by the civil servant was dilated upon and decided in a comprehensive manner by the Service Tribunal‑‑‑Judgment passed by the Service Tribunal being well based did not call for any interference‑‑Leave to appeal was refused.

Petitioner In Person.

Nemo for Respondent. .

Date of hearing: 1st April, 2003..

2004 P L C (C.S.) 856

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

ZULFIQAR ALI

Versus

DISTRICT HEALTH OFFICER, OKARA and another

Civil Petition No.2875‑L of 2001, decided on 30th April, 2003.

(On appeal from the judgment dated 29‑6‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1187 of 2000).

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

‑‑‑‑R.6(3)‑‑‑Non‑holding of regular inquiry‑‑‑Scope‑‑‑Regular inquiry can be dispensed with under R.6(3) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999‑‑‑Regular inquiry should be held, where controversial facts or ticklish questions are involved, which cannot be resolved without having recourse to regular inquiry.

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

‑‑‑‑Rr. 4(1)(b) & 6(3)‑‑‑Removal from service‑‑‑Appointment secured on basis of fake Matriculation certificate‑‑‑Non‑holding of regular inquiry‑‑­Dismissal of appeal by Service Tribunal‑‑‑Validity‑‑‑Tribunal had decided question of fraud in a comprehensive manner after considering report of Board of Intermediate and Secondary Education and providing full opportunity to civil servant to defend himself to prove that such certificate was not fake‑‑‑Civil servant had failed to do so‑‑‑No controversial facts or ticklish questions necessitating holding of regular inquiry were involved in such matter‑‑‑Supreme Court dismissed petition.

Millat Tractors Limited v. Punjab Labour Court No.3 1996 SCMR 883 distinguished.

Muhammad Zaman Qureshi Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for represented.

Date of hearing: 30th April, 2003.

2004 P L C (C.S.) 867

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sardar Muhammad Raza Khan, JJ

Syed IMAM SHAH and others

Versus

GOVERNMENT OF N.‑W.F.P. and others

Civil Petition No. 1365 of 2003, decided on 17th December, 2003.

(On appeal from the judgment dated 27‑5‑2003 of the Peshawar High Court, Peshawar, passed in W.P. No.430 of 2001).

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

‑‑‑‑S. 27‑‑‑Fresh appointments in. deviation of prevalent practice‑‑Jurisdiction of University Authorities under S.27 of University of Peshawar Act, 1974‑‑‑Scope‑‑‑Section 27 of University of Peshawar Act, 1974 did not provide that no appointment could be made in deviation of the prevalent practice and the approval of the Chancellor was a must to that effect.

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

‑‑‑‑Ss. 13 & 27‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Constitutional jurisdiction of High Court‑‑‑Service matter‑‑‑Aggrieved person‑‑‑Equating term "prescribed qualification" with term "terms and conditions of service" ‑‑‑Fresh appointments in deviation of prevalent practice‑‑‑Grievance of petitioners was that vacancies of Superintendents should have been filled by way of promotion instead of initial recruitment/direct appointments by ignoring the prevalent practice which had attained the status of rules which could not have been ignored‑‑­ Appointments made by the Authorities were assailed by the petitioners before High Court in its Constitutional petition which was dismissed by High Court‑‑Validity‑‑‑Question of terms and conditions could have arisen after the appointments were made and besides that no terms and conditions had either been violated or formulated afresh giving rise to any cause of grievance to the petitioners ‑‑‑Vice‑Chancellor was fully competent to make such appointments‑‑‑No fresh statute was ever framed by the Vice‑Chancellor without having the prior approval of the Chancellor‑‑‑High Court set the controversy at naught after having taken into consideration all the relevant laws, statutes, and rules made thereunder‑‑‑Conclusion as arrived at by the High Court being unexceptionable did not admit interference‑‑‑Competent Authority could abandon the previous practice by evolving a new method of selection in consonance with the provisions as laid down by University of Peshawar Act, 1974 and University statutes‑‑‑Leave to appeal was refused.

Province of West Pakistan v. Muhammad Akhtar PLD 1962 SC 428; Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC (Pak.) 45; Government of West Pakistan v. Fatehullah Khan PLD 1960 SC (Pak.) 105 and Manzur Ahmad v. Province of West Paktstar PLD 1961 SC 166 ref.

(c) Words and phrases‑‑‑

‑‑‑‑"Practice"‑‑‑Defined‑‑‑Necessary ingredients enlisted.

Following are the essential ingredients of expression "practice"

Uniformity; Continuity; Succession of acts of similar kind; Customs or usage; Customarily performance of act; Certain degree of regularity; Course of action and Mechanism for the enforcement of legal rights‑‑‑Word `practice' can be considered as mode of proceedings by which a legal right is enforced.

State v. Randall, Mo., 248 SW.2d 860, 863.; Mclure. v. E. a. Blackshere Co., D.C.Md., 231 F.Supp. 678, 682; Guenther v. Morehead, D.Clowa, 272 F.Supp.721, 727; West v. Sun Cab. Co. 1 154 A. 100, 103, 160 Md.476; Me‑Comb v. C.A. Swanson and Sons, D.C. Neb., 77 F.Supp.716, 734; Phillips v City of Bend, 234 P.2d 572., 57", 192 Or.143; Laughlin v. Washington State Bar Association 176 P.2d 301, 309, 26 Wash.2d 914; State v. Blackwell, 13 S.E.2d 433. 434, 196 SC 313; Public Utility Dist. No.1 of Okanogan County v. Department of Public Service, 150 P.2d 709, 715, 21 Wash. 2d 201; Missouri‑Kansas ­Taxas R.Co. of Texas v. Ashlock, Tex. Civ. Appl, 136 S.W.2d 943, 944; Well Lamont Corps. v. Bowles Em.App., 149 F.2d 364, 366; Deatley v. Grand Fraternity, 78 A. 874, 875, 2 Boyee, 'Del. 267; U.S.Shipping Board Emergency Fleet‑Corps. v. Levensaler, 290 F.297, 300, 53 App. D.C.322; Cates v. Heffernon, 18 So.2d 11, 14, 15, 154 F1a.422;.King v. Schumacher, 89 P.2d 466, 472, 32 CA 2d 172; Skinner v. City of Eustis, 2 So.2d 116, 117, 135 ALR 359, 147 Fla. 22; Bascom v. District Court of Cerro Gordo County, 1 N.W.2d 220, 222, 231 Iowa 360; People v. Clark, 119 NE 329, 331, 283 111. 221; Hoffman v. Paradis, 102 N.E.253, 254, 259 111. 111; Fleischman v. Walker, 91 111. 318, 321; Butler v. Young, C.C.Ohio, 4 Fed‑.Cas.916, 917; Rev. St.C. 45, 10, Smith‑Hurd Stats, c.45, 10; State of Seraikella v. The Union of India, 1951 SCR 474, 1951 SCJ 425; AIR 1951 SC 253; AIR 1957 SC 444 and AIR 1958 SC 72 ref.

(d) Words and phrases‑‑­

‑‑‑‑"Rule"‑‑‑Defined.

Schuettler v. Maurer 46 A.2d 586, 588, 159 Pa. Super. 110; West Moreland County Com'rs, 38 A.2d 709, 710, 155 Pa.Super.138; Watts v Holland, 56 Tex.54, 60; South Florida R.Co. v. Rhodes, 5 So.633, 635, 25 Fla 40, 3 LRA 733, 23 Am.St.Rep.506, Citing Webster Schaufele v. Central of Georgia Ry. Co. 65 S.C.E. 708, 710, 6 Ga‑App.660; Krebs v. Hoctor, 120 N.W.199, 200, 83 Neb.690; City of Los Angeles v. Gager, 102 P.17, 18, 10 Ca1.App. 378; Atlantic Coast Line R.Co.v. State, 74 So.595, 601, 73 F1a.609; Borough of Belmar v. Prior, 79‑A. 1032, 1033, 81 N.G.L. 254; PLD 1962 Kar. 505; Mir Muhammad Sharif v. AJ&K Government PLD 1986 SC (AJ&K) 87, Federation of Pakistan v. Maj. (Retd.) Wazir Ahmad 1991 SCMR 2284 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

(e) Words and phrases‑‑‑

‑‑‑‑"Practice" and "rule"‑‑‑..Connotation‑‑‑In view of difference between their ingredients, components and characteristics, '"practice" and "rule" are not interchangeable terms‑‑‑Even by efflux of time the "practice" cannot attain the status of "rule"‑‑‑" Practice" has no binding element being not static and subject to change having no consequences unless some mala fides is established for deviation‑‑‑ "Rules" on the other hand are framed by Competent Authority in exercise of powers conferred under some statutes; law, legislation or enactment having binding effect which cannot be violated/deviated unless otherwise provided.

(f) University of Peshawar Act (II of 1974)‑‑‑--

‑‑‑‑S. 13‑‑‑Powers and authority of Vice‑Chancellor ‑‑‑Scope‑‑­Legislation in its wisdom has assigned sufficient powers and authority to the Vice‑Chancellor enabling him to deal with all sorts of eventualities to run the University in befitting manner.

Shah Abdul Rashid, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners.

Sardar Khan, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 9th September, 2003.

2004 P L C (C.S.) 881

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary and Rana Bhagwandas, JJ

GOVERNMENT OF THE PUNJAB and others

Versus

MUHAMMAD ZAFAR BHATTI and others

Civil Appeal No.1532 of 1998, decided on 2nd December, 2003.

(On appeal from judgment of Lahore High Court, Lahore dated 14‑11‑1997 passed in Writ Petition No.3372 of 1994).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Constitutional petition before High Court was not barred under Art.212 of the Constitution; whether Punjab Service Tribunal had exclusive jurisdiction in respect of matters agitated in the Constitutional petition; whether amendment made through the notification was illegal and ineffective in law; whether, the Government was competent to revise or review recruitment policies through amendment in Service Rules; and whether any vested right existed with regard to promotion and any amendment in the rules could be challenged on the ground of adverse effects on the promotions in future.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Vires of amendment in rules regarding promotion‑‑‑Jurisdiction of High Court under Art. 10 of the Constitution‑‑‑Amendment made by the Authorities in rules regarding promotion, was assailed before High Court under Art.199 of the Constitution, by the civil servants‑‑‑High Court declared the amendment as ultra vires of the vested right of the civil servants‑‑­Plea raised by the Authorities was that under Art.212 of the Constitution, the jurisdiction of High Court was barred as the matter pertained to terms and conditions of service‑‑‑Validity‑‑‑Remedy for the civil servants was to file appeal before Service Tribunal and jurisdiction of High Court in such matter was barred‑‑‑Judgment passed by the High Court was set aside‑‑‑Appeal was allowed.

Iqan Ahmad Khurram v. Government of Pakistan PLD 1980 SC 153; Muhammad Insha Ullah, v. Chief Conservator of Forest (P&E) PLD 1988 SC 155 and Khalid Mahmood Wattoo v. Government of Punjab 1998 S C M R 2280 ref.

S.Shabbar Raza Rizvi, Advocate‑General. Punjab for Appellants.

M.A. Zaidi; Advocate‑on‑Record for Respondents Nos. 1 to 4

Respondents Nos. 5 to 44 : Ex parte

Date of hearing: 2nd December, 2003

2004 P L C (C.S.) 892

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

GOVERNMENT OF N.‑W.F.P. through Secretary, Forest Department, Peshawar and others

Versus

MUHAMMAD TUFAIL KHAN

Civil Petition No.459‑P of 2001, decided on 28th October, 2003.

(On appeal from the judgment of the N.‑W.F.P. Service Tribunal, Peshawar dated 22‑9‑2001 passed in Service Appeal No.37P of 1998).

North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑------

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts.18 & 212(3)-----Reinstatement in service with back‑benefits‑‑‑Political appointment‑‑­Constitutional guarantees, safeguarding of‑‑‑Civil servant was selected on political dictation‑‑‑Neither any advertisement was made to fill the vacancy nor any interview was held ‑‑‑Codal formalities for the appointment of the post were flagrantly violated ‑‑‑ Effect ‑‑‑ Such‑like ­entrants in civil service could not be countenanced as it might genera frustration and despondency among all persons who were having excellent merit but every time they were bypassed through such‑like back door entries on political interference‑‑‑Everybody who matters in the functioning of the society has always propagated for the adoption of transparency and merit in appointments which are cardinal principle of good governance‑‑‑When it comes to actual practice, such principles blatantly ignored‑‑‑Courts are duty bound to uphold the Constitution, mandate and to keep up the salutary principles of rule of law‑‑‑In 'order to uphold such principles, it has been stated time and again by the superior Courts that all appointments are to be made after due publicity in a transparent manner after inviting applications through Press from all those who are eligible, deserving and desirous‑‑‑Inspite of all these directions, such salutary principles are being frustrated with impunity Such malady which has plagued the whole society has to be arrested with iron hands and the principles of merit have to be safeguarded, other, case it would be too late to be corrected‑‑‑Service Tribunal, who, accepting the appeal of the civil servant had not at all adverted to such aspects‑‑­Same Service Tribunal had earlier dismissed the appeals filed by the similarly appointed civil servant whose services were terminated alongwith the present civil servant through, the same order‑‑‑Supreme Court converted the petition for leave to appeal into appeal and judgment passed by the Service Tribunal was set aside‑‑‑Appeal was allowed.

Abdul Jabbar Memon's case 1996 SCMR 1349; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Mushtaq Ahmed Mohal v. Lahore High Court 1997 SCMR 1043; Obaidullah v. Habibullah PLD 1997 SC 835 and Abdul Rashid v. Riazuddin 1995 SCMR 999 rel.

Imtiaz Ali, Addl. A.‑G., N.‑W.F.P. for Petitioners.

Muhammad Asif Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Respondent.

Date of hearing: 28th October, 2003.

2004 P L C (C.S.) 896

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, and Rana Bhagwandas, JJ

MUHAMMAD IQBAL CHAUDHRY and another

Versus

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

Civil Petitions Nos.3837‑L and 3840‑L of 2002, decided on 23rd February, 2004.

(On appeal from the judgment/order dated 13‑9‑2002 passed by Federal Service Tribunal in Appeals Nos.1748(I) and 1540(I) of 1998).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Judgment passed by Service Tribunal‑‑‑Non‑speaking order‑‑‑Although pleadings of the parties had been reproduced through and through but the contentions of the parties and points on which they were resting their cases were not .taken into consideration at all by the Service Tribunal‑‑‑Effect‑‑‑Forums seized with the judicial matters are required to pass such a speaking judgment that it should give impression to readers that the legal, and factual aspects of the case which were raised before it for the purpose of decision, had been considered and decided in the light of recognized principles of law on the subject instead of disposing of in ‑slipshod manner‑‑‑In the instant case both the sides stated that instead of allowing the petition to remain pending on the file of Supreme Court, if leave was granted, the case be remanded to Service Tribunal for fresh decision after providing opportunity of hearing to all concerned‑‑‑Petition for leave to appeal was converted into appeal and the case was remanded to Service Tribunal for decision afresh‑‑‑Appeal was allowed.

Malik Muhammad Qayyum, Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on­-Record (absent) for Petitioners (in both Cases).

Hafiz S.A. Rehman, Dy. A.‑G. for Respondent No. 1.

Maqbool Sadiq, Advocate Supreme Court, and Mehmood‑ul­-Islam, Advocate‑on‑Record (absent) for Respondents Nos. 2 and 3.

Date of hearing: 23rd February, 2004.

2004 P L C (C.S.) 902

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

GHULAM HUSSAIN

versus

UNION COUNCIL KHOKHRAPAR through Secretary Union Council and another

. Civil Petition No.467 of 2004, decided on 3rd March, 2004.

(On appeal from the order dated 11‑2‑2004 of the High Court of Sindh, Circuit Bench, Hyderabad passed in C.P. No.D‑264 of 2003).

Constitution of Pakistan (1973)‑‑‑

‑‑‑Arts. 185(3) & 212(3)‑‑‑Petition for leave to appeal to Supreme Court‑‑‑Scope‑‑‑Petition for direction to High Court for early disposal of case‑‑‑Maintainability of such petition‑‑‑Petition was pending before High Court and no order of any sort had been passed so far‑‑‑Petition for leave to appeal was maintainable under Art. 185(3) of the Constitution only against any judgment, decree, order or sentence of High Court‑‑‑No substantial question of public importance within the contemplation of Art.212(3) of the Constitution was made out to justify grant of leave‑‑­Petition was dismissed.

Abdul Rahim Kazi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 3rd March, 2004. .

2004 P L C (C.S.) 903

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

Dr. GHULAM MOHYUDDIN

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary Government of Punjab and another

Civil Petition No. 1736‑L of 2000, decided on 31st March, 2003.

(On appeal from the judgment dated 29‑5‑2000 of the Punjab Service Tribunal Lahore, passed in Appeal No. 946 of 1997).

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

‑‑‑‑Rr. 3(a), 4, 5, 6‑.‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Removal from service‑‑‑Wilful absence‑‑‑Ex parte disciplinary proceedings‑‑‑Dismissal of appeal by Service Tribunal ‑‑‑Validity‑‑­Appeal before Tribunal filed about 15 years after dismissal of departmental representation being hopelessly time‑barred was rightly dismissed‑‑‑Various notices had been issued to civil servant, but all in vain and as a last resort a proclamation was got published in newspaper‑‑‑Nothing else could have been done by department‑‑‑Civil servant‑had reported for duty after four years of expiry of his deputation period‑‑‑Such period had rightly been considered as wilful absence amounting to misconduct‑‑‑Such apparent careless, callous and indifferent approach of civil servant and his lack of interest to rejoin duty would hardly need any elucidation or proble‑‑‑No question of law of public importance was involved‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Petitioner in Person.

Respondents not represented.

Date of hearing: 31st March, 2003.

2004 P L C (C.S.) 905

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussian Shah and Abdul Hameed Dogar, JJ

PAKISTAN STEEL FABRICATING COMPANY LIMITED and another

versus

MUHAMMAD KALEEMUDDIN and 3 others

Civil Petitions for Leave to Appeal Nos.233‑K to 236‑K of 2003, decided on 12th February, 2004.

(On appeal from judgment dated 27‑2‑2003, passed by. the Federal Service Tribunal, Islamabad, in Appeals Nos.239, 354, 363 and 376(K)(CE) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Termination of service without issuance of show‑cause notice or holding of enquiry‑‑‑Service Tribunal accepted appeal of civil servant reinstating him in service with back‑benefits‑‑‑Validity‑‑‑Neither management had paid any amount to civil servant nor their case was that they had made any payment‑‑‑Tribunal had given findings of fact on issues agitated before it‑‑‑Impugned judgment was well‑reasoned and based on law laid down by Supreme Court‑‑‑No question of law of general public importance being involved in the case, Supreme Court dismissed petition and refused leave to appeal.

Civil Petitions for Leave to Appeals Nos.217‑K to 219‑K, 59‑K to 145‑K, 152‑K to 205‑K and 220‑K to 265‑K of 2002 distinguished.

M.G. Dastgir, Advocate Supreme Court with Raja Sher Muhammad Khan, Advocate‑on‑Record for Petitioners.

Respondents (in person) (in C.Ps.233‑K and 236‑K of 2003)

Date of hearing: 12th February, 2004.

2004 P L C (C.S.) 908

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD. and others

versus

RAHAT‑E‑ALAM and others

Civil Petitions Nos.69‑L to 91‑L of 2004, decided on 9th February 2004.

(On appeal from judgment dated 4‑11‑2003 of the Federal Service Tribunal, Lahore passed in Appeals Nos.596(L)CS/2002 to 618(L)CS/2002).

Pakistan Telecommunication Corporation Act (XVIII of 1991)‑‑‑

‑‑‑‑S. 20‑‑‑General Clauses Act (X of 1897), S.21 ‑‑‑ Constitution of Pakistan (1973), Art.212(3)‑‑‑Grant of selection grade to' Telephone Operators First notification dated 16‑5‑1995 issued by Board , with approval of Federal Government granted BS‑11 to Operators holding BS‑R to 11‑‑‑Second notification dated 22‑5‑1997 granted BS‑11 only to Operators of Overseas Division (Gateway)‑‑‑Second notification was not issued in the manner to which first notification had been issued‑‑­Supreme Court 'granted leave to appeal to consider as to what would be the legal status of both such notifications and whether both of them had been issued by competent authority in exercise of powers conferred under S.20 of Pakistan Telecommunication Corporation Act, 1991; whether second notification had been issued by competent authority in exercise of its power to create separate clause in respect of Telephone Operators working in Gateway Exchanges; whether discrimination had not been caused between Telephone Operators, who were working in Inland Exchanges and those who were working in Gateway Exchanges; whether first notification, which had created a right in favour of Operators of Inland Exchanges legally could be withdrawn after its implementation by issuing a separate second notification; and what would be the effect, of contradictory decisions of Tribunal pointed out by petitioner.

Gorsi Muhammad Din Ch. Advocate Supreme ‑Court and Mehmood‑ul‑Islam, Advocate‑on‑Record for Petitioners (in all cases).

Abdul Wahid Ch. Advocate Supreme Court and Ch. Mehdi Khan Mehtab for Respondent (In C.P. No.69‑L/2004 only).

Date of hearing: 9th February, 2004.

2004 P L C (C.S.)919

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Khalil‑ur‑Rahman Ramday, JJ

ABDUL JALIL

versus

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

Civil Appeal No. 1283 of 2003, decided on 19th April, 2004.

(On appeal from judgment/order, dated 18‑2‑2003, passed by the Punjab Service Tribunal, Lahore in Appeal No. 2659 of 2002).

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

‑‑‑‑S. 12(1) ‑‑Punjab Civil Servants (Efficiency and Discipline), Rules, 1999, Rr. 3 & 4‑‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Compulsory' retirement from service‑‑‑Charges of inefficiency, corruption and misconduct‑‑‑Service Tribunal dismissed appeal of civil servant‑‑‑Authority admitted to have reinstated some Officers by accepting their representations, but contended that had civil servant waited for decision of his representation by competent authority, his case too would have been decided on merits‑‑‑Authority did not object to acceptance of appeal‑‑‑Supreme Court accepted appeal, set aside impugned judgment and remanded case to competent authority with direction to decide pending representation/ appeal of civil servant or: merits.

Akhtar Masood Khan, Advocate Supreme Court for Appellant.

Ms. Afshan Ghazanfar, A.A.G. for Respondent No. 1.

Nadeem Aslam Ch..D.S Home Department with Adil Rasheed Under Secretary for Respondents Nos. 2 and 3.

Date of hearing: 19th April 2004.

2004 P L C (C.S.) 955

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

Mst. SAFIA BAN

Versus

EDO (EDU) and another

Civil Petition No. 1803‑L of 2003, decided on 25th November, 2003.

(On appeal from the judgment dated 12‑5‑2003 passed by the Punjab Service Tribunal in 372 of 2003).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Premature retirement from service at civil servant's request‑‑‑Civil servant after acceptance of her request for premature retirement prayed for change of her date of retirement, so as to complete her service according to her date of birth‑‑‑Department rejected such application‑‑‑Service Tribunal dismissed appeal filed by civil servant‑‑‑Validity‑‑‑Civil servant had already been retired from service‑‑‑Tribunal had not committed any illegality in dismissing appeal‑‑‑No question of public importance was involved‑‑‑ Supreme Court dismissed petition and refused leave to appeal.

Zafar Iqbal Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 25th November, 2003.

2004 P L C (C.S.) 962

[Supreme Court of Pakistan]

Present: Nazirn Hussain Siddiqui and Abdul Hameed Dogar, JJ

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and another

Versus

MUHAMMAD RAFIQUE SIDDIQUI

Civil Petition fto.58‑K of 2002 decided, on 28th February, 2002.

(On appeal from the judgment dated 4‑10‑2001 of Sindh Service Tribunal, Karachi passed in Appeal No. 165 of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Petition for leave to appeal by Government‑‑­Delay of 38 days‑‑‑Plea for condonation of delay was that instructions from concerned authority for filing appeal were not received in time‑‑­Validity‑‑‑Government could not be treated differently from ordinary litigant on question of limitation‑‑‑Completion of formalities would not be a sufficient ground for condoning such delay‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Federation of Pakistan v. Jamaluddin and others 1996 SGMR 727; Central Board of Revenue v. Raja Industries 1998 SCMR 307 and Pakistan Coast Guards v. Shareef Ahmed 2000 SCJ 586 rel.

Suleman Habibullah Addl. A.G Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for petitioners.

Nemo for Respondent.

Date of hearing: 28th February, 2002.

2004 P L C (C. S.) 992

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

C. As. Nos. 15 to 47 of 2002

PAKISTAN STATE OIL COMPANY LTD.

Versus

M. AKRAM KHAN and others

(On appeal from the judgment dated 14‑6‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos.18(P)/98,21(P)/98, 22(P)/98, 31).

C.As. Nos. 203 to 207 of 2002

PAKISTAN STATE OIL CO. LTD. and others

Versus

MUNAWAR A. SHEIKH and others

(On appeal from the order dated 1‑3‑2001 of the Federal Service Tribunal, Islamabad passed in Service Appeals Nos.646(K), 2500(K), 2552(K) of 1997, 270(K) and 1138(K) of 1998).

C.A. No.744‑L of 2001

NAEEMULLAH BHATTI

Versus

GOVERNMENT OF PAKISTAN and others

(On appeal from the judgment dated 20‑1‑2001 of the Federal Service Tribunal, Lahore passed in Service Appeal No. 1436(L) of 1998).

C. P. No. 1828 of 2001

IKRAM ULLAH

Versus

PAKISTAN STATE OIL and others

(On appeal from the order dated 14‑6‑2001 of the Federal Service Tribunal, Islamabad passed in Service Appeal No.282(P) of 1999).

C. Ps. Nos. 1829 & 1830 of 2001

AMJAD NASIR KHAN and another

Versus

GOVERNMENT OF PAKISTAN and others

(On appeal from the order dated 28‑4‑2001 of the Federal Service Tribunal, Lahore Branch, Lahore passed in Appeals Nos.1511 and 1512(L) of 1998).

C.P. No. 598‑L of 2001

SALEEMULLAH KHAN

Versus

FEDERATION OF PAKISTAN and others

(On appeal from the order dated 7‑2‑2001 of the Federal Service Tribunal, Lahore Branch, Lahore passed in Appeal No. 1864(L) of 1998).

Civil Appeals Nos. 15 to 47, 203 to 207 of 2002 and Civil Petitions No.744‑L, 1828 to 1830 and 598‑L of 2001, decided on 17th March, 2004.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art. 212 (3)‑‑­Employees of Corporation controlled by Government‑‑‑Contract of employment regulating terms and conditions of service‑‑‑Dismissal from service without issuing show‑cause notice, assigning any reason or holding any inquiry‑‑‑Employees initially sought their remedy by way of filing suit and Constitutional petition before High Court and lastly resorted to remedy under S. 2‑A of Service Tribunals Act, 1973‑‑­Service Tribunal, after condoning delay, accepted appeals by reinstating employees in service with back‑benefits‑‑‑Validity‑‑‑Contract of employment provided for pension, gratuity, leave, age of superannuation, termination simpliciter and dismissal from service, house rent allowance, conveyance allowance, travel and transfer allowances, provident fund, gratuity and medical matters‑‑‑Employees would be governed by clause relating to dismissal from service provided in such contract itself, whereby right of receiving show cause and reply thereof had been given‑‑‑Action of Corporation violating principles of natural justice would be without lawful authority and of no legal effect‑‑­Tribunal had rightly condoned delay in circumstances‑‑‑Supreme Court dismissed appeal while maintaining impugned judgment with observations that Corporation, if wanted to proceed against employees, would issue to them meaningful show‑cause notice, providing them an opportunity to defend and personal hearing in accordance with law.

Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others PLD 2001 SC 980; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; Pakistan and others v. Public at Large and others PLD 1987 SC Shariat Appellate Bench 304; Syed Aftab Ahmed and others v. K.E.S.C and others 1999 SCMR 197 and Managing Director Sui Surthern Gas Co. Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

(b) Natural justice, principles of‑‑‑

‑‑‑‑Judicial or administrative proceedings‑‑‑Principle of natural justice is attracted in the proceedings, whether judicial or administrative, if same results in affecting person or property or other rights of the party concerned.

(c) Master and servant‑‑‑

‑‑‑‑ Natural justice, principles of‑‑‑Applicability‑‑‑Action of employer violating such principles would be without lawful authority and of no legal effect.

Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232 and Pakistan and others v. Public at Large anted others (PLD 1987 SC/Shariat Appellate Bench 304 fol.

(d) Master and servant‑‑‑

‑‑‑‑Trainee or probationer‑‑‑Termination of service on ground of malafides in law or fact‑‑‑Effect‑‑‑Employee whether trainee or probationer would be entitled to show‑cause notice not on basis of principles of natural justice, but on the ground that employer had abused power vested in him.

Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others PLD 2001 SC 980 fol.

Muhammad Siddiq Mirza, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Appellants (in C.As. Nos. 15 to 47 of 2002).

A.H. Gillani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents (in C.As. Nos. 15 to 31, 34 and 47 of 2002).

Malik Noor Muhammad Awan, Advocate Supreme Court and Mehr Khan Mailk, Advocate‑on‑Record for Respondents (in C.As. Nos. 32 and 33 of 2002).

Ghulam Mahmood Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent (in C.A. No.35 of 2002).

Abdul Hafeez Lakhoo, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondent (in C.As. Nos.36 to 46 of 2002).

Raja Haq Nawaz, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellants (in C.As. Nos.203 to 207 of 2002).

Ch. Akhtar Ali, Advocate‑on‑Record for Respondents (in C.As.Nos.203 to 305 of 2002).

Respondents for Ex parte (in C.As. Nos.204, 206 and 207 of 2002).

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.744, 1828 to 1830 of 2001).

Talat Farooq Sheikh, Advocate Supreme Court for Petitioners (in C.P. No.598‑L of 2001).

Sh. Anwarul Haq, Advocate Supreme Court for Respondent (in C.Ps. Nos.744‑L, 1828 to 1830 and 598‑L of 2001).

Date of hearing: 19th February, 2004.

2004 P L C (C. S.) 1014

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD H.ANIF BUKHARI and another

Versus

PRESIDENT, NATIONAL BANK OF PAISTAN HEAD OFFICE, KARACHI and others

Civil Appeals Nos.1298 and 1309 of 2000, decided on 22nd March, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 31‑5‑1999, passed in Appeals Nos.327(R) and 340(R) of 1999).

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

‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Arts.25, 187 & 212(3)‑‑­Appeals against same departmental order by appellant and respondent‑‑­Condonation of delay‑‑‑Service Tribunal dismissed appellant's appeal on ground of limitation, but accepted respondent's appeal after condoning delay‑‑‑Validity‑‑‑Decision of cases on merits is to be always encouraged instead of non‑suiting litigants on technical reasons including ground of limitation‑‑‑Supreme Court condoned delay, set aside impugned judgment in the interest of justice, equity, fair play and in view of the provisions of the Constitution, and remanded case to Tribunal for its fresh decision on merits.

Muhammad Yaqub v. Pakistan Petroleum Limited 2000 SCMR 830; Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abadoned Properties Organization, Islamabad 2001 PLC (C.S.) 358 and Pakistan Steel Mills Corporation (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal 2004 SCMR 100 ref.

Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 and National Bank of Pakistan v. Alam Hussain C.P. No. 1759 of 2002 fol.

(b) Administration of justice‑‑‑

‑‑‑ Decision of cases on merits always to be encouraged instead of non­-suiting litigants on technical reason including ground of limitation.

Managing Director, SSGC Ltd. v: Ghulam Abbas PLD 2003 SC 724 and National Bank of Pakistan v. Alain Hussain C.P. No. 1759 of 2002 fol.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in both cases).

Kh. M. Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents Nos.3‑5, 7‑8.

Date of hearing: 22nd March 2004.

2004 P L C (C.S.) 1027

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

PROVINCE OF PUNJAB, through SECRETARY EDUCATION, CIVIL SECRETARIAT, LAHORE and others

Versus

SHAMSHAD BEGUM

Civil Petition No. 2534‑L of 2000, decided 28th March, 2003.

(On appeal from the judgment dated 19‑9‑2000 of the Lahore High Court, Lahore, passed in W.P. No. 21985 of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Constitutional jurisdiction of High Court‑‑‑Matter pertaining to terms and conditions of service‑‑‑Constitutional petition filed by civil servant regarding her appointment was allowed by High Court‑‑‑Plea raised ',by the authorities was that the matter concerned terms and conditions ' of service of civil servant and adequate and efficacious remedy was available before Service Tribunal constituted under Art. 212 of the Constitution which could be approached‑‑‑Validity‑‑‑Constitutional jurisdiction of High Court under Art.199 of the Constitution could only be invoked in exceptional circumstances and the same were lacking in the present case‑‑‑High Court had no jurisdiction to dilate upon anal decide such service matters‑‑‑Supreme Court converted the petition for leave to appeal into appeal and order passed by the High Court was set aside‑‑‑Supreme Court remanded the matter to the authorities for decision on merits‑‑‑Appeal was allowed.

Raja Abdul Rahman, A.A.G. Punjab and Mian Abdul Qayyum Anjum, Advocate‑on‑Record for Petitioners.

C.M. Aslam, Advocate Supreme Court for Respondent.

Date of hearing: 28th March, 2003.

2004 P L C (C. S.) 1044

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

KHALIL AHMAD SIDDIQUI

Versus

PAKISTAN, through Secretary Interior, Islamabad and 5 others

Civil Petition No. 114‑P of 2003, decided on 18th April, 2003.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 11‑12‑2002 passed in W.P. No. 1268 of 2001).

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

‑‑‑‑R.12‑A‑‑‑Constitution of Pakistan (1973), Arts.185(3), 199 & 212‑‑­Constitutional jurisdiction of High Court‑‑‑Controversial question of fact‑‑‑Date of birth, correction of‑‑‑Matter relating to terms and conditions of service‑‑‑Retrospective effect of provisions of R. 12‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑­Civil servant without any proof in support of his claim sought correction of his date of birth simply on the basis of oral assertion that his date of birth given in the Secondary School Certificate was not correct and such correction was sought at the end of his service career‑‑‑Departmental authorities declined the correction and the order passed by the authorities was maintained by High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑Rule applied in cases in which the date of birth of the Government servant was corrected before the promulgation of R. 12‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, would have no retrospective effect‑‑‑Request of the civil servant was turned down by the authorities being without any foundation and the operation of R.12‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 would not be excluded‑‑‑Controversial question of fact raised by the civil servant could not be adjudicated by High Court in exercise of Constitutional jurisdiction‑‑‑Matter relating to correctness or otherwise of the date of birth in the service record being purely a question of fact, the same could not be determined without recording of evidence and detailed scrutiny of facts and, such exercise could not be undertaken in Constitutional jurisdiction‑‑‑In the matters connected with the terms and conditions of service of civil servant, the jurisdiction of High Court was ousted under Art. 212 of the Constitution‑‑‑Leave to appeal was refused.

Government of Balochistan through Secretary S&GAD, Quetta v. Marjan Khan 2003 PLC (C.S.) 245 and Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562 ref.

Khushdil Khan, Advocate Supreme Court and Zahoor Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nasir Saeed Sheikh, Advocate Supreme Court for Respondents.

Date of hearing: 18th April, 2003.

2004 P L C (C.S.) 1059

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD ARSHAD

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE, SPECIAL BRANCH, PUNJAB, LAHORE and others

Civil Petition No.2034‑L of 2000, decided on 31st March, 2003.

(On appeal from the judgment, dated 12‑6‑2000 of the Punjab Service Tribunal, Lahore passed in Appeal No. 696/93).

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

‑‑‑‑R.6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Malice and animosity, plea of‑‑‑Wilful absence amounting to misconduct‑‑‑Question of fact‑‑‑Civil servant was dismissed from service on the charge of misconduct‑‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that his dismissal from service was because of malice and animosity, as he refused to hand, over official motor cycle to the son of Deputy Inspector General Police‑‑‑Validity‑‑‑Civil servant failed to substantiate the plea of malice or enmity by leading any evidence which otherwise did not appeal to logic and reason‑‑‑How a son of Deputy Inspector General Police having plenty of conveyance at his exclusive disposal could make such a demand from the civil servant‑‑‑Service record of the civil servant was highly depressive and his performance was never assessed satisfactory and upto the mark‑‑‑Civil servant remained absent on 27 different occasions for 59 days and also earned 12 bad entries during his service of short tenure‑‑‑Wilful absence amounting to misconduct being question of fact had rightly been determined by the department duly affirmed by Service Tribunal and the same did not warrant any interference by Supreme Court‑‑‑Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 31st March, 2003.

2004 P L C (C.S.) 1084

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

NOOK BADSHAH KHATTAK

Versus

GOVERNMENT OF N.‑W.F.P. and others

Civil Petition No. 1167 of 2003, decided on 8th January, 2004.

(On appeal from the order/judgment dated 14‑1‑2003 and 17‑4‑2003 of the Peshawar High Court, Peshawar, passed in W.P. No.810 of 2002).

(a) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)‑‑‑

‑‑‑‑Ss.4, 5, 8 & 11[as amended by Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance (XXXII of 2001)]‑‑‑North‑West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000), S.3‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Removal from service‑‑‑Constitutional jurisdiction of High Court under Art.199 of the Constitution‑‑‑Matter relating to terms and conditions of service‑‑‑Petitioner was dismissed from service on the basis of notification issued under S:3 of, North‑West Frontier Province Removal from Service (Special Powers) Ordinance, 2000‑‑‑Notification was assailed by the petitioner before High Court in its Constitutional jurisdiction but without success‑‑‑Plea raised by the petitioner before Supreme Court was that he was not a civil servant, therefore, he could not invoke the jurisdiction of Service Tribunal‑‑‑Validity‑-‑Petitioner had the status of civil servant, under the provisions of Ss.4, 5, 8 and 11 of Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001‑‑‑Constitutional jurisdiction of High Court could not be invoked in' view of the provisions as contained in Art.212 of the Constitution by virtue of which exclusive jurisdiction in. such‑like cases had been conferred upon the Service Tribunal‑‑‑High Court had no jurisdiction to dilate upon and decide the controversy relating to the terms and conditions of service as the same fell within the domain of Service Tribunal‑‑‑No question of law of public importance was involved in the matter persuading the Supreme Court to interfere in the judgment passed by High Court‑‑‑Leave to appeal was refused.

M. Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22; Iqan Ahmed Khurram v. Government of Pakistan PLD 1980 SC 153; The Controller, Central Excise and Land Customs v. Aslam Ali Shah PLD 1985 SC 83; The Superintendent of Police, Headquarters, Lahore v. Muhammad Latif PLD 1988 SC 387; Abdul Wahab Khan v. Government of the Punjab PLD 1989 SC 508; Abdul Bari v. Government of Pakistan PLD 1981 SC 290 and I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 ref.

(b) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)‑‑‑

‑‑‑‑Ss.8 & 11‑‑‑Employee of Population Welfare Programme‑‑‑Status‑‑­Provisions of Ss.8 and 11 of the Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983‑‑‑Distinction‑‑‑Both the provisions of law are neither dependent on each other nor synonymous or interchangeable having their own significance, import and scope‑‑‑Beside that the language, in which both the sections have been couched, is quite simple, plain and being free from any ambiguity does not call for any scholarly or far‑fetched interpretation, on the basis whereof it can be inferred that such employees are not Provincial Civil Servants.

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

‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Service Tribunal, establishment of‑‑‑Effect‑‑‑Upon establishment of Service Tribunal, under Art.212 of the Constitution and S.6 of Service Tribunals Act; 1973, no other Court had jurisdiction in service matters covered by the Service Tribunals Act, 1973‑‑‑Orders of Departmental Authority, even though without jurisdiction or mala fide could be challenged only before Service Tribunal and the jurisdiction of Civil Courts including High Court was specifically ousted.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Ajaib Khan v. State 1983 SCMR 22; Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943, Amanul Mulk v. N.‑W.F.P. PLD 1981 Pesh. 1 ref.

Fazal Ellahi Siddiqi, Advocate Supreme Court and Ejaz Muhammad Khan Advocate‑on‑Record for Petitioner.

Jehanzaib Rahim A.G., N.‑W.F.P. for Respondents.

Date of hearing: 8th January, 2004.

2004 P L C (C.S.) 1107

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary, Mian Muhammad Ajmal and Khalil‑ur‑Rehman Ramday, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and another

Versus

MASOOD AHMAD

Civil Petition No.3119‑L of 2003, decided on 16th February, 2004.

(On appeal from the judgment/order. dated 16‑10‑2003 passed by Punjab Service Tribunal, Lahore in Appeal No.616 of 2003).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 21.2(3)‑‑‑Compulsory retirement‑‑‑Findings of fact‑‑‑Inquiry Officer in his report had not specifically stated about involvement of civil servant in purchase of equipment at higher price, therefore, he did not make any recommendation‑‑‑Authorized Officer recommended only minor penalty for the reasons that the civil servant being in his capacity of Accounts Assistant failed to deduct income tax from the contractors‑‑‑Competent Authority did not agree with the Authorized Officer and compulsorily retired the civil servant‑‑‑Service Tribunal allowed the appeal and the civil servant was reinstated in service‑‑‑Validity‑‑‑Allegations against the civil servant raised in the show‑cause notice had not been proved‑‑­Service Tribunal after, inquiry. concluded that the civil servant was not involved in the purchase of equipment at higher prices resulting into excess payment to the contractors‑‑‑Findings recorded by the Service Tribunal were in consonance with the report of the Inquiry Officer as well as recommendations of the Authorized Officer‑‑‑No illegality had been committed by the Service Tribunal in accepting the appeal‑‑‑Leave to appeal was refused.

Muhammad Anwar Ghuman, Advocate Supreme Court and Muhammad Younus, S.O. for Petitioners.

Nemo for Respondent.

Date of hearing: 16th February, 2004.

2004 P L C (C.S.) 1128

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ABDUL WAJID KHAN and others

Versus

CENTRAL BOARD OF DIRECTORS, STATE BANK OF PAKISTAN and others

Civil Petitions Nos. 1482 and 1505 to 1509 of 2002, decided on 23rd October, 2003.

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

‑‑‑‑Rr. 4, 5 & 6‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Dismissal from service‑‑‑Charge of embezzlement of prize bonds‑‑­Inquiry report showed that civil servants holding responsible posts at relevant time had issued certificates regarding destruction of defective prize bonds, though same were neither defaced nor punched nor taken to incinerator for destruction as required under the rules‑‑‑Record showed that order of dismissal of civil servants had been issued with approval of Governor State Bank of Pakistan‑‑‑Inquiry conducted against civil servants did not suffer from any defect or infirmity‑‑‑All employees involved were not similarly placed and penalties had been imposed upon them keeping in view their status and role‑‑‑Judgment of Service Tribunal dismissing appeal of civil servants was unexceptionable‑‑­Supreme Court dismissed petitions and refused leave to appeal.

Muhammad Munir Paracha, Advocate Supreme Court and Mr. Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Shah Abdul Rashid Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Abrar Hasan, Advocate Supreme Court Raja Abdul Gafoor, Advocate‑on‑Record for Respondents. "

Date of hearing: 23rd October, 2003.

2004 P L C (C.S.) 1142

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Dr. AZIM‑UR‑REHMAN KHAN MEO

Versus

GOVERNMENT OF SINDH and another

Civil Appeal No. 1866 of 2000, decided on 12th April, 2004.

(On appeal from the judgment of the High Court of Sindh at Karachi, dated 27‑1‑2000 passed in Constitution Petition No.D‑1005 of 1999).

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

‑‑‑‑Arts. 212(3) & 199‑‑‑Civil service‑‑‑Appointment‑‑‑Terms and conditions‑‑‑Jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court, inter alia, to consider the questions, as to whether the Constitutional jurisdiction of High Court could be exercised when the nature of the appointment by itself was in dispute, as the terms and conditions of service flow from the nature of the appointment; whether in case of writ of quo warranto challenging the legal authority of holder of public office, it was essential for the employee to have a locus standi to file a writ and whether the employee was guilty of misconduct by using the documents of the Service and General Administration Department without permission by the concerned authority.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Principles governing writ of quo warranto.

Under Article 199 of the Constitution all the reliefs obtainable under it are purely discretionary and on the principles governing writs of quo warranto the relief under Art.199(2)(b)(ii) is particularly so. Quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the relator. No precise rule can be laid down for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto. All the circumstances of the case taken together must govern the discretion of the Court. The discretion has to be exercised in accordance with judicial principles. The writ is not to issue as a matter of course on sheer technicalities on a doctrinaire approach.

Grant of relief in writ jurisdiction irrespective of its kind, is discretionary which is required to be exercised judiciously but the High Court would be fully competent while exercising such discretion to test the bona fides of the relator to see if he has come with clean hands.

In. case it is determined that the petitioner had approached the Court with ulterior motive, mala fide intention and as an instrument of others, the relief can be declined.

In respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub‑clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a .public office by a person without having any lawful authority.

Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996; Aziz‑ur‑Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236; Hari Shankar v. Sukhdeo Prasad AIR 1954 All. 227; M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and M.U.A. Khan v. M. Sultan 1981 SCMR 74 ref.

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

‑‑‑‑Arts. 199 & 212(3)‑‑‑Constitutional petition under Art.199 of the Constitution‑‑‑Civil service‑‑‑Removal from public office‑‑‑Issuance of writ of quo warranto‑‑‑Scope‑‑‑High Court cannot issue writ in the nature of quo warranto by removing a person from public office‑‑­Incumbent, in the present case did not suffer from any disqualification to hold a public office or to warrant removal from such office because issue of qualification related to terms and conditions of service which aspect of the matter fell exclusively within the jurisdictional domain of Service Tribunal‑‑‑Invocation of Constitutional jurisdiction was not only mala fide but amounted to blackmailing and harassment.

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

‑‑‑‑Arts. 212 & 199‑‑‑Civil service‑‑‑Misconduct‑‑‑Employee of the Provincial Government by taking out record from the office unlawfully, filed Constitutional petition before. High Court alleging that the Government was acting in violation of law and that too not in a case where his rights were not affected‑‑‑Such action, ex facie amounted to misconduct on his part‑‑‑Supreme Court directed the Chief Secretary of the Provincial Government to initiate disciplinary action against the employee for grave misconduct which shall be finalized within a period of two months, report whereof be sent to the Registrar of Supreme Court to be placed before the Judges of the Supreme Court for their perusal and information.

M.M. Aqil Awan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Appellant.

Qazi Khalid Ali Additional Advocate‑General, Sindh for Respondent No. 1.

Manzoor Ali Khan, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 12th April, 2004.

2004 P L C (C.S.) 1148

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

HABIB BANK LIMITED through Attorneys

Versus

MUHAMMAD ABDUL SAMAD KHAN and another

Civil Petitions for Leave to Appeal Nos.134 and 1341 of 2003, decided on 27th May, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 14‑4‑2003, passed in Appeals Nos.201(P) CE, 494(P)CE and 203(P)CE of 2001).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Bank employees‑‑‑Relevant notification by the competent authority was not produced‑‑‑Actions taken by the department as well as the penalties imposed upon the employees were mala fide‑‑­Impugned judgment of Service Tribunal was self‑explanatory and was entirely based on the proper appreciation of facts, law and decisions of the Supreme Court, which were quoted in the said judgment‑‑‑No substantial question of law of public importance as envisaged under Art.212(3) of the Constitution being involved in the petitions, same were dismissed.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners (in both petitions).

Shah Abdur Rashid, Senior Advocate Supreme Court and Ejaz Muhammad Khan. Advocate‑on‑Record for Respondents (in both petitions).

Date of hearing: 27th May, 2004.

2004 P L C (C.S.) 1151

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

PAKISTAN AUTOMOBILE CORPORATION LIMITED through Chairman

Versus

MANSOOR-UL‑HAQUE and 2 others

Civil Appeal No.34 of 2001, decided on 6th May, 2004.

(On appeal from judgment dated 6‑10‑2000, passed by the Federal Service Tribunal, Islamabad, in Appeal No.773(K) of 1998).

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

‑‑‑‑S. 2‑A‑‑‑Civil service‑‑‑Lien of the employee of statutory corporation could not be terminated on account of his transfer to subsidiary company of the statutory corporation‑‑‑Such employee though was not‑ a "civil servant" in strict sense but the Constitution ordained that persons placed in the same position shall be treated equally and there should tie no discrimination‑‑‑Contention of the employer statutory corporation that Service Tribunal had no jurisdiction and the employee was not a. civil servant, was misconceived and not acceptable.

Mohsin Ali Hasani v. Government of Pakistan 1990 SCMR 1685; Federal Public Service Commission v. Syed Muhammad Afaq PLD 2002 SC 167 and Province of Punjab v. Ibrar Younas Butt 2004 SCMR 67 not relevant.

Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 and Executive Engineer, Provincial Building Circle, Lahore v. Muzaffar Bil Haq and 2 others 2000 SCMR 656 ref.

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

‑‑‑‑O. XXVII‑A‑‑‑Where in a matter interpretation of the Constitution was not involved as required under O.XXVII‑A. C P.C., notice to the Attorney General, was not necessary.

(c) Civil service‑‑‑

‑‑‑Back‑benefits, award of‑‑‑Where plea of back‑benefits was no supported by documentary evidence to the effect that when employee was out of service, he did not work anywhere to gain financial benefits, benefits were declined to the employee.

Ch Muhammad Jamil, Advocate Supreme Court and Muzaffar Ali Khan Advocate‑on‑Record (absent) for Appellant.

S. Shahanshah Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate‑on‑Record (absent) for Respondent No. 1.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 6th May, 2004.

2004 P L C (C.S.) 1162

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD TARIQ

Versus

UNIVERSITY OF PESHAWAR through VICE‑CHANCELLOR and others

Civil Petition No.3012 of 2003, decided on 18th December, 2003.

(On appeal from the judgment dated 1‑10‑2003 in C.R. No. 109 of 2003 passed by the Peshawar High Court. Branch Registry, D.I. Khan).

(a) Civil Service---

‑‑‑‑Age‑‑‑Date of birth, correction of‑Limitation‑‑‑Plea of civil servant with regard to wrong entry of date of birth, when raised after remaining in service for a long period, would not carry any weight‑‑‑Civil servant could not make application for change in his date of birth after two years of joining service‑‑‑Authenticity of date of birth recorded in documents, when civil servant joined service, could not be challenged belatedly.

Ghulam Haider v. Director of Education, Lahore 1971 SCMR 325; Muhammad Boota v. WAPDA and others 1994 SCMR 957; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633; Syed Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494 and Union of India and others v. Mrs. Saraj Bala AIR 1996 SC 1000 rel.

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

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 212‑‑-Suit by civil servant for correction of date of birth‑‑‑‑Maintainability‑‑‑Plea raised with regard to age would fall within jurisdiction of Service Tribunal‑‑‑Such suit would not be maintainable in view of bar contained in Art. 212 of the Constitution.

Ghulam Haider v. Director of Education, Lahore 1971 SCMR 325; Muhammad Boota v. WAPDA and others 1994 SCMR 957; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 rel.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th December, 2003.

2004 PLC (C.S.) 1164

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Syed SHAUKAT IQBAL

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB

Civil Review Petition No.268 of 2000 in Civil Petition No.737 of 2000, decided on 28th May, 2004.

(On review from the judgment of this Court, dated 3‑10‑2000 passed in C.P. No.737 of 2000 and on appeal from judgment of the Punjab Service Tribunal, Lahore, dated 1‑3‑2000 passed in Appeals Nos. 1162, 1367, 1368, 1264, 1268, 1369 and 1396 of 1998).

(a) Punjab Civil Services Pension Rules, 1963‑‑‑

‑‑‑‑S. 1.8(a)‑‑‑Scope of R.1.8(a), Punjab Civil Services Pension Rules, 1963‑‑‑Rule 1.8(a) speaks about institution of proceedings and has got no concern with the service notice upon the Civil Servant‑‑‑Only mandatory prerequisite as embodied in R.1.8(a) seems to be that fair opportunity of hearing must be afforded.

Muhammad Said Khan v. Government of West Pakistan PLD 1969 Pesh 147; Sultan Muhammad Naeem Khan v. Chief Secretary to Government of West Pakistan PLD 1969 Pesh. 237; Government of N.‑W.F.P v. Muhammad Said Khan PLD 1973 SC 514; Province of Punjab v. Syed Munir Hussain Shah 1998 SCMR 1326; Malik Ehsanul Haq v. Government of the Punjab 1994 PLC (C.S.) 454; Muhammad Hafeezur Rehman Hashmi v. Secretary, Finance Department 1988 PLC (C.S.) 245; Farooq Ahmed Khan v. Government of Punjab 1996 PLC (C.S.) 817, Syed Munir Hussain Shah v. Secretary, Livestock, Government of the Punjab 1995 PLC (C..S.) 943; Abdul Aziz Virk v. Secretary, Education (Schools) 2001 PLC (C.S.) 661 ref.

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

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXV‑‑‑Review of Supreme Court judgment‑‑‑All the points raised at the time of arguing review petition were dilated upon, discussed and decided in a comprehensive manner‑‑‑Review petition was dismissed.

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

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑Review petition is not competent where neither any new and important matter or evidence has been discovered nor' is any mistake or error apparent on the face of the record‑‑‑Such error may be an error of fact or of law but the same must be self‑evident and floating on surface and not requiring any elaborate discussion or process of ratiocination.

Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claim Commissioner, Lahore 1968 SCMR 1047(2); Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1); Muhammad Akram v. State 1970 SCMR 418 and Nawab Bibi v. Hamida Begum 1968 SCMR 104 ref.

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

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI‑‑‑ Review of Supreme Court judgment‑‑‑Scope‑‑‑if judgment or finding although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of the record.

Zulfikar Ali Bhutto v. State 1979 SCMR 427 ref.

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Ms. Afshan Ghazanfar, A.A.‑G. Punjab for Respondent.

Date of hearing: 28th May, 2004.

2004 P L C (C.S.) 1168

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

MUHAMMAD RIAZ and others

Versus

PROVINCE OF THE PUNJAB through Secretary, Education Department, Punjab,Lahore and others

Civil Petitions for Leave to Appeals Nos.699 and 1352/L of 2003, decided on 10th June, 2004.

(On appeal from judgment, dated 25‑2‑2003, passed by the Punjab Service Tribunal, Lahore in Appeal No.2740 of 2002).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Reduction in lower stage in time scale‑‑‑Fixing of period‑‑‑Service Tribunal had rightly modified the appeal of civil servant and fixed the period of reduction in lower stage in time scale‑‑‑Judgment passed by Service Tribunal did not suffer from misreading or non‑reading of the material available on record‑‑‑No question of general public importance as contemplated under Art.212(3) of the Constitution was involved‑‑‑Leave to appeal was refused.

S.M. Abdul Wahab, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioner (in C.P. No.699 of 2003).

Ch. Aamir Rehman, Addl. A.‑G, Punjab for Petitioners (in C.P. 1352/L of 2003).

Date of hearing: 10th June, 2004.

2004 P L C (C.S.) 1176

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil‑ur‑Rehman Ramday, JJ

NAHEED NUSRAT HASHMI

Versus

SECRETARY EDUCATION (E), GOVERNEMNT OF PUNJAB and others

Civil Petition for Leave to Appeal No.944‑L of 2003, decided on 22nd December, 2003.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 3 & 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Charge of purchase of sub‑standard science material by civil servant‑‑‑Plea raised in reply to show cause notice by civil servant (Deputy District Education Officer) was that Purchase Committee had approved quality and standard of such material; and that all Deputy District Education Officers had purchased articles of same standard and quality from the same firm‑‑­Inquiry Officer was of the view that charge against civil servant stood proved‑‑‑Supreme Court directed Deputy Director, Directorate of Elementary Education, (S) to cause production of relevant record about purchase of material by all Deputy District Officers during same period on next date of hearing.

Sh. Khizar Hayat, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd December, 2003.

2004 P L C (C.S.) 1185

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

Dr. AZAM SARFRAZ

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 4 others

Civil Petition for Leave to Appeal No.343 of 2004, decided on 10th June, 2004.

(On appeal from judgment, dated 8‑12‑2003, passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1890/2002).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service ‑‑‑Remedy‑-Question of jurisdiction‑‑‑Conversion of Federal Department into Provincial Department‑‑‑Service Tribunal, jurisdiction of‑‑‑Civil servant. an employee of Population Welfare Programme which was initially a Federal Department, was dismissed from service‑‑‑Department later on, vide Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001, was converted into a Provincial Department‑‑‑Federal Service Tribunal declined to entertain the appeal of the civil servant for lack of jurisdiction and similar position was taken by Punjab Service Tribunal‑‑‑Contention of the civil servant was that rejection of appeal by Federal as well as Provincial Service Tribunals declining to exercise the power vested in them, had resulted into miscarriage of justice‑‑‑Civil servant further contended that both the Service Tribunals had knocked him out without adjudicating on merits and the conflict decisions of the Tribunals required just fair and equitable decision in accordance with law laid down by Supreme Court‑‑­Validity‑‑‑Leave to appeal was granted by Supreme Court to consider the points raised by the civil servant and also to see whether the findings of both the Service Tribunal on point of jurisdiction were tenable.

Muhammad Bilal, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th June, 2004.

2004 P L C (C.S.) 1187

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ

I.G. HQ FRONTIER CORPS and others

Versus

GHULAM HUSSAIN and others

Civil Appeals Nos. 1541 to 1544 of 2003, decided on 1st June, 2004.

(On appeal against the judgments dated 30th March, 13th April, 15th May and 12th June, 2001 passed by Federal Service Tribunal in Appeals Nos.44(P)CS, 86(P)CS, 120(P)CS and 142(P)CS of 2001).

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

‑‑‑‑Art. 212(3)‑‑‑Civil Servants Act (LXXI of 1973), S.2(b)‑‑‑Service tribunals Act (LXX of 1973), S.2‑A‑‑‑Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3‑‑‑Leave to appeal was granted by Supreme Court to consider; .whether the employees of Frontier Corps were civil servants within the meaning of S.2(b) of Civil Servants Act; 1973; whether as civil servants as such or by virtue of deeming proceedings of S.2‑A of Service Tribunals Act, 1973, they could file appeal in Federal Service Tribunal to call in question the disciplinary action taken against them; and what was the impact of provisions of Removal from Service (Special Powers) Ordinance, 2000, on the employees of Frontier Corps.

(b) Frontier Corps Ordinance (XXVI of 1959)‑‑‑

‑‑‑‑S. 6‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Employees of Frontier Corps‑‑‑Jurisdiction of Service Tribunal, invoking of‑‑‑Scope‑‑­Such employees can invoke the jurisdiction of Service Tribunal for redressal of their grievance.

Federation of Pakistan and others v. Muhammad Nazir 1998 SCMR 1081 rel.

(c) Frontier Corps Ordinance (XXVI of 1959)‑‑‑

‑‑‑‑Preamble, Ss. 6, 8 & 9‑‑‑Frontier Corps, formation of‑‑‑Object and scope‑‑‑Signing of recruitment roll and affirmation‑‑‑Effect‑‑-Frontier Corps is responsible for better protection and administration of external frontiers of Pakistan within the limits or adjoining tribal areas in time of peace, to discharge functions in respect of administration, on the call of Deputy Commissioner of the area within which Headquarters of Frontier Corps are located‑‑‑Employees of Frontier Corps are always subject to the provisions of Frontier Corps. Ordinance, 1959, because after signing the recruitment roll and affirmation, the employees are bound to exhibit discipline of high standard which cannot be achieved unless stringent punishments are provided‑‑‑Otherwise there can be no difference between status of an ordinary civil servant and of civil servant who is member of pares military force--‑Maintenance of discipline cannot be compromised in any case dealing with the matter pertaining to civil servants discharging their duties to non‑military administration because in absence of strict discipline to Governmental organizations the object of good governance cannot be achieved‑‑‑No amount of relaxation in maintaining discipline in para military forces is permissible otherwise it becomes difficult to achieve the object for which such forces are created‑‑‑If an employee of uniform violates discipline, it causes tremendous loss to the credibility of, the force as a whole, therefore, stringent punishments are provided through special statute having strict application on its employees etc.-‑‑So long as the employees of such forces are governed by such special enactments, there would be no difficulty in achieving the object for which the force was formed.

(d) Frontier Corps Ordinance (XXVI of 1959)‑‑

‑‑‑‑Ss. 6, 8 & 9‑‑‑Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss. 3 & 11‑‑‑Employees of Frontier Corps‑-‑Disciplinary proceedings‑‑‑Special law and general law‑‑‑Applicability‑‑‑Employees being aggrieved of their removal from service filed appeal before Service Tribunal, which was allowed by the Tribunal on the ground that after promulgation of Removal from Service (Special Powers) Ordinance, 2000, the proceedings should not have been conducted under the provisions of Frontier Corps Ordinance, 1959‑‑‑Service Tribunal remanded the matter to the authorities with a direction that the proceedings might be initiated afresh under the provisions of Removal from Service (Special Powers) Ordinance, 1959‑‑‑Validity‑‑‑After promulgation of Removal from Service (Special Powers) Ordinance, 2000, which essentially was a general law in its nature and it had impliedly repealed earlier Efficiency and Disciplinary Rules by dint of its S.11 but as far as the provisions relating to maintenance of discipline as contained in Frontier Corps Ordinance, 1959, were concerned they could not be repealed as it was a special law and was applicable to a particular class of civil servants/employee‑‑‑‑Repealing S.11 of Removal from Service (Special Powers) Ordinance, 2000, would not affect its provision as the same was non‑obstante clause as per S.8(2) of Frontier Corps Ordinance, 1959‑‑‑In view of principle for avoiding collision between different statutes, the general law in its nature i.e. Removal from Service (Special Powers) Ordinance, 2000, would give way to special law i.e. Frontier Corps Ordinance, 1959, being earlier in time and special in nature having its peculiar provisions to deal with particular subject, therefore, a general/later law could not impliedly repeal it‑‑‑Even otherwise without specific repeal of Frontier Corps Ordinance, 1959, the Removal from Service (Special Powers) Ordinance, 2000, could not be applied in view of the special features of the former‑‑‑Both the statutes could not co‑exist while dealing with the provisions relating of enforcement of discipline in the force‑‑‑Members of Frontier Corps were governed under the provisions of Frontier Corps Ordinance, 1959, and for limited purposes, status of civil servants was given to them so that they might have remedy before Service Tribunal for the redressal of their grievance in accordance with law‑‑‑Judgment passed by Service Tribunal was set aside and the case was remanded for decision afresh in view of the provisions of Frontier Corps Ordinance, 1959‑‑‑Appeal was allowed.

The State v. Syed Mir Ahmed Shah and another PLD 1970 Quetta 49 rel.

Mrs. Nahida Mehboob Elahi Standing Counsel and Ch. Muhammad Akram, Advocate‑on‑Record for Appellants (in all cases).

Sheikh Riaz‑ul‑Haq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents (in C.As. Nos. 1511 to 1543 of 2003).

Muhammad Munir Piracha, Advocate Supreme Court for Respondent (in C.A. No. 1544 of 2003).

Date of hearing: 1st June, 2004.

2004 P L C (C.S.) 1201

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

THE SECRETARY, LG AND RD and others

Versus

Dr. AMJAD ALI KHAN

Civil Petition No. 1584‑L of 2003, decided on 24th December, 2003.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 27‑3‑2003 passed in Service Appeal No.2255 of 2002).

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

---R.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Reduction in rank‑‑‑Spreading of epidemic of cholera due to contamination of water resulting, into 14 deaths‑‑‑Civil servant, a Medical Officer in Municipal Committee also having additional charge of Officer of Health was charge‑sheeted and awarded punishment‑‑‑Service Tribunal accepted appeal of civil servant and set aside such punishment‑‑‑Validity‑‑­Water supply scheme was under the charge of Public Health Engineering Department which, was responsible for taking water samples‑‑‑Civil servant had nothing to do with water supply scheme‑‑‑Commissioner in his report had totally exonerated Health Department and found Public health Engineering Department responsible‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Dr. M. Mohyuddin Qazi, Advocate Supreme Court and C.M Latif Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 24th December, 2003.

2004 P L C (C.S.) 1207

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ

Dr. MUHAMMAD ARSLAN

Versus

CHANCELLOR, QUAID‑E‑AZAM UNIVERSITY, ISLAMABAD and others

Civil Appeal No.901 of 1999, decided on 27th May, 2004.

(On appeal from the judgment/order, dated 16‑12‑1998 passed by Federal Service Tribunal, Islamabad, in Appeal No. 381(R) of 1998).

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Limitation Act (X of 1908), Ss.5 & 14‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal before Service Tribunal‑‑‑Delay, condonation of‑‑‑Contention of the petitioner was that after retrospective operation of S.2‑A of Service Tribunals Act, 1973, question of limitation' should have been decided by Service Tribunal in the light of special circumstances since provisions of S.4 of Service Tribunals Act, 1973 provided. departmental appeal, only to civil servant and not to a person having fixed term employment to invoke the jurisdiction of Service Tribunal by virtue of S.2‑A of Service Tribunals Act, 1973‑‑‑Petitioner also contended that, he was not seeking reinstatement in service but only arrears for the un‑expired period of his statutory term by four years‑‑­Leave to appeal was granted by Supreme Court to consider the questions raised by the petitioner.

Lt.-Col. (Retd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad Civil Petitions Nos.483 and 658 of 1998 ref.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Appeal before Service Tribunal ‑‑‑Maintainability‑‑­Limitation‑‑‑Change in forum of appeal‑‑‑Effect‑‑‑On account of change in forum, the question of limitation should not be considered seriously because insertion of S.2‑A in Service Tribunals Act, 1973, created confusion about its applicability, therefore, it would be deemed that the aggrieved employee had been diligently pursuing his remedy before the wrong forum‑‑‑If appeal was barred by time, the period of limitation would be extended in the interest of justice‑‑‑Proceedings were instituted by the appellant before Service Tribunal in time and the appellant should not have been non‑suited for such reason‑‑‑Appeal before Service Tribunal was not barred by limitation.

M.D. Sui Southern Gas Co. Ltd. v. Ghulam Abbas and others PLD 2003 SC 724; Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 and Rehmatullah v. Postmaster‑General 2003 SCMR 705 fol.

(c) Quaid‑e‑Azam University Act (XXVIII of 1973)‑‑‑

‑‑‑‑S. 12‑‑‑Service Tribunals Act (LXX of 1973), Ss.2-A & 4‑‑‑Fixed term employment‑‑‑Termination of service before the expiry of term fixed‑‑‑Appellant was appointed as Vice‑Chancellor of Quaid‑e‑Azam University for a period of four years but his services were terminated prior to the completion of the term of employment‑ ‑‑Appellant in Constitutional petition, sought recovery of the salaries of the remaining period‑‑‑During the pendency of Constitutional petition, S.2‑A was inserted in Service Tribunals Act, 1973, and the petition abated‑‑­Appellant invoked jurisdiction of Service Tribunal but the relief claimed by him was declined firstly for the reason that the appeal filed by him was barred by time and secondly because remedy of departmental appeal was not availed by the appellant‑‑‑Validity‑‑‑When a person had been appointed by a competent authority with a condition to retain the post for a specific period, such period became statutory period in terms of S.12 of Quaid‑e‑Azam University Act, 1973‑‑‑Chancellor himself had granted the tenure of four years to appellant to retain the post as Vice-­Chancellor, therefore, before dispensing with his service, the Chancellor had to exercise such powers judiciously and could not have terminated the services of the appellant merely for the reason that another person had to be accommodated at his place‑‑‑Such appointments were to be made in the interest and welfare of the institution, therefore, whenever a change was to be made, the competent authority was required to record certain reasons while dispensing with the service of earlier officer and appointing a new one at his place‑‑‑Authorities were required to exercise the powers fairly, justly and transparently because statutory functionary was not supposed to act arbitrarily and against the canons of natural justice‑‑‑Judgment passed by Service Tribunal was set aside and remaining period of service of the appellant after termination order was credited to complete the tenure of four years‑‑‑Supreme Court directed the authorities to pay the arrears of pay of remaining period to the appellant‑‑‑Appeal was allowed.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar, Ali, Advocate‑on‑Record for Appellant.

Muhammad Munir Piracha, Advocate Supreme Court and Manzoor Sheikh, Registrar, Quaid‑e‑Azam University for Respondents Nos. 1 and 3.

Nemo for Respondent No.2.

Date of hearing: 27th May, 2004.

2004 P L C (C.S.) 1213

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

STATE BANK OF PAKISTAN

Versus

KHYBER ZAMAN and others

Civil Petitions Nos.505 to 556 of 2003, decided on 10th June, 2004.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 24‑1‑2003 passed in Appeals Nos.295 to 335, 339 to 341, 477(R)/CE/2002, 4, 10 to 15(P)/CE/2002).

(a) State Bank of Pakistan Circular No.9, dated, 30‑10‑1997‑‑‑

‑‑‑‑Golden Handshake Scheme‑‑‑Payment of Benevolent Fund Grant‑‑­Principles ‑‑‑Golden Handshake Scheme was totally voluntary in nature and it was optional for the employees of State Bank of Pakistan to accept the same or not‑‑‑Option under Golden Handshake Scheme once exercised was irrevocable and there was no element of inducement or compulsion to the Scheme‑‑‑No other payment was to be made after final payment and Benevolent Fund Grant equivalent to ten years payment whereof was to be made in lump sum‑‑‑Portion of Golden Handshake Scheme could not be stretched to include payment of Benevolent Fund Grant on monthly basis for ten years or till the age of severity years‑‑­Supreme Court could not make any deletion, amendment, addition or insertion in Golden Handshake Scheme when the same was free from any ambiguity and did not call for scholarly interpretation‑‑‑In fact lump sum Benevolent Fund Grant was in lieu of monthly Benevolent Fund Gram for fifteen years which was to be paid under the normal/existing rules.

(b) State Bank of Pakistan Circular No.20, dated, 7‑11‑2000‑‑‑

‑‑‑‑Scope‑‑‑Benevolent Fund Grant‑‑‑Revised rates ‑‑‑Applicability‑‑­Employees of State Bank of Pakistan who had volunteered for Golden Handshake Scheme were not benefited from State Bank of Pakistan Circular No.20, dated 7‑11‑2000, because the Circular could not be given retrospective effect and it could be invoked by only those employees who were entitled to get such Benevolent Fund Grant on 1‑9‑2000, when the employees accepting the Golden Handshake Scheme stood retired w.e.f. 15‑12‑1997‑‑‑Employees who were not in the service of State Bank of Pakistan on the date of issuance of Circular No.20; provisions of the same could not be applied to such employees retrospectively‑‑‑Employees who had obtained Benevolent Fund Grant equivalent to ten years in lump sum had no concern with the Circular No.20.

(c) State Bank of Pakistan Employees Benevolent Fund Regulation‑‑‑

‑‑‑‑Regln. No.8(v)(c)‑‑‑Grant of Benevolent Fund‑‑‑(employees accepting Golden Handshake Scheme‑‑-Effect‑‑‑Employees who opted for Golden Handshake Scheme were to be governed by the terms and conditions enumerated in the Scheme and the provisions of Regln. No.8(v)(c) of State Bank of Pakistan Employees Benevolent Fund Regulation, were applicable in normal course‑‑‑For all those employees who had opted for Golden Handshake Scheme, the existing rules concerning Benevolent Fund had been substituted with lump sum grant equivalent to ten years of Benevolent Fund Grant‑‑‑Both the advantages stipulated in Regln. No.8(v)(c) of State Bank of Pakistan Employees Benevolent Fund Regulation and Golden Handshake Scheme simultaneously could not be claimed‑‑‑Once the option was exercised by an employee of State Bank of Pakistan in favour of Golden Handshake Scheme, he would have no concern whatsoever with the subsequent changes and amendments in the policy/rules qua Benevolent Fund Grant specially after retirement of the employees under Golden Handshake Scheme.

(d) State Bank of Pakistan Circular No.9, dated, 30‑10‑1997‑‑‑

‑‑‑‑Golden Handshake Scheme‑‑‑Expression in addition to normal retirement benefits‑‑‑Applicability‑ ‑Expression cannot be interpreted in the manner to include double benefit, one under the existing rules which provided fifteen years Benevolent Fund Grant on monthly basis plus Benevolent Fund Grant equivalent to ten years in lump sum as embodied in Golden Handshake Scheme.

(e) Interpretation of document‑‑‑

‑‑‑‑Intention of parties, ascertaining of‑‑‑Principles‑‑‑In order to resolve ambiguity and to ascertain the real intention of parties, resort has to be made to the corresponding preceding and/or subsequent, to the execution of the contract document, conduct of the parties and attending circumstances.

Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431; Muhammad Akram v. Muhammad Salim PLD 1964 (W.P.) Lah. 490; Pakistan Tobacco Co. Ltd. v. Pak. Cigarette Labour Union PLD 1977 Kar. 586 and Mehendra Nath Mandal v. Samsuddin AIR 1921 Cal. 146 ref.

(f) State Bank of Pakistan Employees Benevolent Fund Regulations‑‑‑

‑‑‑‑ Regln. No.8(v)(c)‑‑‑State Bank of Pakistan Circular No.9, dated, 30‑10‑1997‑‑‑State Bank of Pakistan Circular No.20 of 7‑11‑2000‑‑­Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Benevolent Fund Grant on monthly basis, entitlement to‑‑‑Retirement under Golden Handshake Scheme‑‑‑Seeking of benefit of State Bank of Pakistan Circular No.20, dated, 7‑11‑2000‑‑­Employees had retired under Golden Handshake Scheme and had received all their dues under the Scheme‑‑‑Four years after the retirement of the employees, State Bank of Pakistan introduced Benevolent Fund Grant under Circular No.20 dated 7‑11‑2000‑‑­Employees claimed to be entitled to such Grant‑‑‑Service Tribunal allowed the appeal and held the employees entitled to the Benevolent Fund Grant under Circular No.20 dated 7‑11‑2000‑‑‑Validity‑‑­Employees stood retired on 19‑10‑1997 and first demand regarding Benevolent Fund Grant on monthly basis for 15 years was made after about four years i.e. 19‑10‑2001 meaning thereby that the policy as enshrined in Golden Handshake Scheme was never challenged at proper moment and no departmental representation challenging the Golden Handshake Scheme regarding Benevolent Fund Grant was made within 30 days‑‑‑Employees could not be allowed to approbate and reprobate after the acceptance of Golden Handshake Scheme in toto without any objection arid after about 48 months the appeal of employees was barred by time‑‑‑Piecemeal relief with gap of four years could not be granted which otherwise was devoid of merits‑‑‑Double benefit as claimed by the employees had neither any rationale nor logic but was half‑hearted attempt made after four, years‑‑‑Such aspect of the matter had not been properly adverted to and discussed by the Service Tribunal, as the appeal being barred by time should have been dismissed‑‑‑Supreme Court converted petition for leave to appeal into appeal and judgment passed by Service Tribunal was set aside‑‑‑Appeal was allowed.

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

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Limitation‑‑‑Principles‑‑‑When appeal before departmental authority is time‑barred, the appeal before Service Tribunal is incompetent.

Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505 and .Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 ref.

Khalid Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner (in all petitions).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents (in C.Ps. Nos.505 to 507, 509 to 544 & 546 to 556 of 2003).

Muhammad Akran6 Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent (in C.P. No.508 of 2003).

Respondent in Person (in C.P. No.545 of 2003).

Date of hearing: 26th February, 2004.

2004 P L C (C. S.) 1225

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ

Maj. (Retd.) TIPU SULTAN KHAN and others

Versus

SHAHZAD HUSSAIN and others

Civil Appeals Nos. 1464 to 1466 of 1999, decided on 23rd April, 2004.

(On appeal from judgment, dated 24‑2‑1999, passed by the Federal Service Tribunal, Islamabad, in Appeal No.296(P) of 1998).

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

‑‑‑‑S. 3(2)‑‑‑Notification S.R.O, 305(I)/85, dated 31‑3‑1985, Ministry of Defence‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Direct induction‑‑‑Quota of Army Officers‑‑‑Civil servant being aggrieved of the induction of Army Officer in the service of Chief Administrator of Surveyor General of Pakistan, preferred appeal before Service Tribunal and the same was allowed by the Tribunal‑‑‑Validity‑‑‑Service Tribunal had rightly observed in the judgment that in present composition of officers in Grade‑19‑‑‑20% quota had not been observed by the Survey of Pakistan in defiance of the directive of the parent Ministry i.e. Ministry of Defence‑‑‑Service Tribunal rightly remanded the case and directed Surveyor General to reduce the number of Army Officers holding the post of. Director to one only and appoint civilian officers in the vacancies according to their selection procedure and the Recruitment Rules for civilians‑‑‑Judgment passed by Service Tribunal was well‑reasoned which had taken into consideration the entire available material and had properly interpreted the rule and Office Memorandum of Establishment Division and thus the judgment was not open to exception‑‑‑Question of general public importance as contemplated under Art.212(3) of the Constitution was not made out‑‑‑Leave to appeal was refused.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellants (in Civil Appeal No. 1464 of 1999).

Nasir Saeed Sheikh Standing Counsel with Ch. Akhtar Ali, Advocate‑on‑Record for Appellants (in Civil Appeal No. 1465 of 1999).

Appellant in person (in Civil Appeal No. 1466 of 1999).

Ali Hassan Gillani, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 23rd April, 2004.

2004 P L C (C.S.) 1228

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

SECRETARY, LABOUR DEPARTMENT, PUNJAB, LAHORE and another

Versus

RAJA MUHAMMAD PASHA JANJUA, LABOUR OFFICER, GOVERNMENT PRINTING PRESS, PUNJAB, LAHORE and others

Civil Petition No. 195‑L of 2003, decided on 20th March, 2003.

(For leave to appeal from judgment dated 22‑10‑2002 passes by the Punjab Service Tribunal, Lahore, in appeal No.403 of 1995).

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

‑‑‑‑S.7‑‑‑Seniority‑‑‑Civil servant duly appointed on regular basis much earlier than others could not be relegated to a junior position.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th March, 2003.

2004 P L C (C.S.) 1230

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUNIR AHMAD

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and others

Civil Petition No.2503-L of 2000, decided on 1st April, 2003.

(On appeal from the order dated 11‑7‑2000 passed by Punjab Service Tribunal, Lahore in A. No.1688 of 2000).

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

‑‑‑-R.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Reduction in pay by one stage‑‑‑Involving innocent person in a false case‑‑‑Civil servant being police official alleged to have involved an innocent person in a false case‑‑‑During departmental inquiry witnesses including the complainant deposed against the civil servant‑‑‑Penalty of reduction in pay by one stage was imposed by the authorities and the same was maintained by the Service Tribunal‑‑‑Plea raised by the civil servant was that the complainant had later on exonerated him‑‑‑Validity‑‑‑Affidavit of the complainant obtained subsequently by the civil servant had no legal sanctity which otherwise could have been procured by a police officer by exerting influence. and pressure‑‑‑Proper opportunity of hearing was afforded by the authorities to the civil servant and already a lenient view had been taken by the authorities‑‑‑Conclusion arrived at by the Service Tribunal being well based did not warrant any interference‑‑‑No question of law of public importance was involved in the matter‑‑‑Leave to appeal was refused.

Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court for petitioner.

Nemo for Respondents.

Date of hearing: 1st April, 2003.

2004 P L C (C.S.) 1232

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

IFTIKHAR MUBEEN ARSHEE

Versus

DEPUTY COMMISSIONER/CHAIRMAN, BOARD OF GOVERNORS KASUR PUBLIC SCHOOL KASUR and others

Civil Petition No. 115‑L of 2000, decided on 20th March, 2003.

(For leave to appeal from judgment dated 18‑10‑1999 passed by the Lahore High Court, Lahore passed in I.C.A. No. 856 of 1999).

Societies Registration Act (XXI of 1860)‑‑‑

‑‑‑‑S. 20‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Employee of a School registered under Societies Registration Act, 1860‑‑‑Termination of services of employee by Deputy Commissioner as an Ex‑Office Chairman of Board of Governors of such School‑‑‑High Court dismissed Constitutional petition on the ground that such School was a non statutory body . and there were no statutory rules of service of its employees‑‑Validity‑‑‑Employees of such School were not governed by any statutory rules of, service‑‑‑Income derived or expenditure incurred by such School did not form part of Provincial Consolidated Fund or public exchequer‑‑‑Merely because Deputy Commissioner of the District was an Ex‑Officio Chairman of Board of Governors of such School could not be a basis for treating same to be a Government Institution ‑‑‑High Court had rightly refused to interfere in the matter‑‑‑Supreme Court dismissed petition in circumstances.

Aitchison College, Lahore through its Principal v. Muhammad Zubair and others PLD 2002 SC 326 and Sabhajit Teweary v. Union of India and others AIR 1975 SC 1329 ref.

Petitioner In‑person.

Talat Farooq, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate‑on‑Record for Respondents.

Date of hearing: 20th March, 2003.

2004 P L C (C.S.) 1240

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

WAPDA

Versus

FIDA HUSSAIN

Civil Petition No.917 of 2003, decided on 1st June, 2004.

(On appeal from the judgment. dated 6‑3‑2003 of the Federal Service Tribunal passed in Appeal No. 1355(R) of 1999).

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

‑‑‑‑S. 17(1‑A)(a)‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement from service‑‑‑Non issuance of show cause notice‑‑‑Principle of audi alterm partem‑‑‑Applicability‑‑‑Failure to file departmental appeal‑‑­Effect‑‑‑Employee was compulsorily retired from service without issuance of any show cause notice and providing any opportunity of hearing by "he authorities‑‑‑Service Tribunal allowed the appeal and order of compulsory retirement was set aside‑‑‑Plea raised by the Authority was that the employee had not filed any departmental appeal, therefore‑ his appeal before the Service Tribunal was not competent‑‑­Contention of the employee was that the reply of the Authority filed in High Court during pendency of his Constitutional petition on the same subject was the decision of the Authority‑‑‑Validity‑‑‑Employee had an inalienable right of hearing and he could not be condemned unheard on the principle of natural justice audi alterm partem without assigning any reason for his retirement from service‑‑‑Authority had taken action under S.17(1‑A)(a) of Pakistan Water and Power Development Authority Act, 1958, whereunder no provision for filing appeal, review or representation had been provided and action of, retirement was not initiated or taken under Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, therefore, filing of appeal was no bar against filing appeal before Service Tribunal‑‑‑Constitutional petition filed by employee before High Court could be treated to be a departmental appeal against the order of compulsory retirement‑‑‑Objections/comments of Water and Power Development . Authority filed in the Constitutional petition could legitimately be deemed to be an order of competent authority on the appeal of dismissal, therefore, there was no legal impediment in filing appeal before Service Tribunal on account of non‑availing of departmental remedy‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal heave to appeal was refused.

Pakistan and others v. Public‑at‑large and others PLD 1987 SC 304; Muhammad Mushtaq Akbar Civil Appeal No.947 of 1999; WAPDA and others v. Shahen Yasrab and others Civil Petition No.1118/L of 2003 and Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 rel.

Muhammad Sharif, Advocate Supreme Court for Petitioner.

Respondent No. 1 (in person).

Date of hearing: 1st June, 2004.

2004 P L C (C.S.) 1243

[Supreme Court of Pakistan]

Present: Jawed Iqbal and Faqir Muhammad Khokhar, JJ

CH. RIAZ AHMAD

Versus

PUNJAB TEXTBOOK BOARD, LAHOREand others

Civil Petition No. 1291‑L of 2000, decided on 18th March, 2003.

(For leave to appeal from judgment dated 29‑3‑2000 passed by the Lahore High Court, Lahore passed in I.C.A. No. 166 of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3)‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Removal from service‑‑‑Such order challenged in earlier Constitutional petition remained upheld upto Supreme Court‑‑‑Petitioner filed second Constitutional petition against such order on the ground that employer had re‑employed his co‑accused, while he continued to have a stigma of removal from service‑‑‑Second Constitutional petition was dismissed by Single Bench and Division Bench of High Court‑‑‑Validity‑‑‑Order of dismissal from service of petitioner had attained finality on account of dismissal of his earlier petition by Supreme Court‑‑‑Petitioner was precluded by principle of res‑judicata from re‑agitating same matter on same plea‑‑‑Petitioner has been heard during course of departmental appeal‑‑‑Supreme Court dismissed petition.

Pakistan through Secretary, National Assembly v. Khondkar Ali Afzal and another PLD 1960 SC 1 fol.

Khondkar Ali Afzal v. Pakistan and another PLD 1959 W.P. Kar. 105 reversed.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 18th March, 2003.

2004 P L C (C.S.) 1245

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

AKBAR ALI CHAUDHRY

Versus

PASSCO through Chairman and 2 others

Civil Appeal No.1576 of 2001, decided on 21st November, 2002.

(On appeal from the judgment dated.3‑11‑2000 passed in the Federal Service Tribunal, Lahore, in Appeal No. 669(L) of 1998).

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

‑-‑‑Rr. 4(1)(b)(ii), 5 & 6‑‑‑Constitution of Pakistan (1973), Art. 212(3) Compulsory retirement from service‑‑‑Charge of ultilizing 95 Kgs Capacity gunny bags for filling of 100 Kgs wheat and excess dispatch of wheat to other Province without approval of competent authority ‑‑‑Explanation of civil servant to show‑cause notice was that his Zone was an open Zone, and he had dispatched excess wheat in good faith as wheat stocks were in serious threat of being deteriorated‑‑­Authority, without holding regular inquiry imposed penalty, which was upheld by Service Tribunal in appeal by Civil Servant‑‑‑Validity‑‑‑Civil Servant had not denied such charges‑‑‑Authority before imposing penalty had not considered or dealt with the explanation of civil servant‑‑‑Such Order suffered from non‑application of mind‑‑‑Impugned judgment of Tribunal also being silent on such aspect of case was not sustainable in law‑‑‑Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service by treating intervening period as leave by the kind due with the observations that Authority might conduct a regular inquiry, if so desired.

Hafiz Tariq Nasim, Advocate Supreme Court and Mahmood‑ul-­Islam, Advocate‑on‑Record for Appellant.

Mian Muhammad Saleem, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record (absent).

Date of hearing: 21st November, 2002.

2004 P L C (C.S.) 1258

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Prof. (R.) NADEEM‑HUSSAIN SAIYID

Versus

GOVERNOR, PROVINCE OF PUNJAB through The Secretary, Services And General Administration Department, Government of Punjab, Lahore and others

Civil Petition No.1990 of 2002, decided on 9th December, 2003.

(On appeal from the judgment dated 1‑10‑2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2711 of 2001).

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

‑‑‑‑S.4(1)‑‑‑Appeal to Service Tribunal ‑‑‑ Limitation ‑‑‑ Mandatory for civil Servant to prefer departmental representation ox appeal to competent authority against order, whether original or appellate, in respect of his terms and conditions of service and wait for a period of 90 days‑‑‑Section 4(1) of Punjab Service Tribunals Act, 1974 does not provide that civil servant should wait till decision of authority concerned on the departmental representation, appeal or revision‑‑‑Any other view would be against the spirit of S.4(1) of the Act, under which civil servant can file appeal against a final order before Tribunal within 30 days of its communication.

Federation of Pakistan v. Muhammad Azim Khan and others 1989 SCMR 1271; Fazal Elahi Siddiqi v. Pakistan through Secretary Establishment Division and 2 others (PLD 1990 SC 692 fol.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muharnmad Khan. Advocate‑on‑Record for Petitioner.

Tariq Mehmood Mirza, S.O. Finance Department, Punjab for Respondent No.3.

Date of hearing: 9th December, 2003.

2004 P L C (C.S) 1261

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

GOVERNMENT OF THE PUNJAB

Versus

Malik MUHAMMAD FEROZE and others

Civil Review Petition No. 254 of 2002 in C.P. No.418 of 2002 decided on 29th September, 2003.

(On appeal from judgment dated 23‑7‑2002 of the Supreme Curt passed in C.P No.418 of 2002).

(a) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O. XXVI, R.2‑‑‑Review petition‑‑‑Delay of 60 days ‑‑‑Condonation of‑‑‑Contention of petitioner was that judgment under review was passed at leave stage in absence of both parties and after coming to know about same, he filed review petition‑‑‑Supreme Court condoned such delay in circumstances.

(b) Civil service‑‑‑

----Annual confidential report (ACR)‑‑‑Adverse remarks‑‑Expunction of‑‑‑Issuance. of charge‑sheet to civil servant for irregularities mentioned in adverse ACR‑‑‑Civil servant contended to have been finally exonerated of such charges including those which were not subject‑matter, of charge sheet‑‑‑Remedy of civil servant was before departmental authority to seek expunction of only ‑those adverse remarks in ACR, about which he was charge‑sheeted and exonerated, but not, others.

M. Zaman Bhatti, Advocate Supreme Court, Rao Muhammad Yusuf Khan, Advocate‑on‑Record with Mohsin Abbas, S.O. for Petitioner.

Respondent In person.

Date of hearing: 29th September, 2003.

2004 P L C (C. S.) 1263

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

DIRECTOR, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTIONS, MULTAN and others

Versus

MONNOWAL TEXTILE MILLS LTD. and others

Civil Petitions for Leave to Appeal No. 1277/L to 1279/L and, 1322/L of 2002, decided on 6th March, 2003.

(On appeal from the judgments dated 18‑2‑2002 and 26‑2‑2002 of the Lahore High Court, Lahore, passed in F.A.Os No.8 to 10 of 2002 and 27 of 2002)

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

‑‑‑‑S.23(1)‑‑‑Constitution of Pakistan (1973), Arts. 25 & 185(3)‑‑­Issuance of notices for increased demand by Institution to employers‑‑­Appellants (employers) took exception to such demand being discriminatory for having been made from employers, who had not approached Courts against earlier demand notices issued under S.23(1) of Provincial Employees' Social Security Institution Ordinance, 1965‑‑­Appeal filed by appellants was accepted by High Court‑‑‑Validity‑‑‑Such act on the part of Institution was certainly violative of Art.25 of the Constitution ‑‑‑High Court had not committed illegality in giving same treatment to appellants (employers) as had been meted out to other employers placed in similar circumstances‑‑‑Supreme Court dismissed petition and refused leave to appeal.

Shamas Textile Mills and others v. Province of: Punjab and 2, others 1999 SCMR 1477 ref.

Ch. Muhammad Mujahid Ahmad, Advocate Supreme Court for Petitioners.

Imtiaz Rashid Saiddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate‑on‑Record for Respondents.

Date of hearing: 6th March, 2003.

2004 P L C (C.S.) 1269

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

BASHIR AHMED and others

Versus

DEPUTY DISTRICT EDUCATION OFFICER (M) and others

Civil Petitions No.3318‑L and 3351‑L to 3356‑L of 2002 decided on 25th February, 2003.

(On appeal from the judgment dated 10‑7‑2002 of the Punjab Service Tribunal, Lahore, passed in A. No. 1680 of 2001).

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

‑‑‑‑Rr. 4(1)(b), 5 & 6‑‑‑Punjab Civil Servants Act (VIII of 1974), S.2‑‑­Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Removal from service‑‑‑Appointment as PTC Teacher gained on basis of bogus order‑‑‑Dismissal of appeal by Service Tribunal ‑‑‑Validity‑‑­District Recruitment Committee had never recruited petitioner Selection List for relevant period did not find mention name of petitioner‑‑‑No legal sanctity could be attached to copy of Selection List produced by petitioner before Tribunal for not being signed by Chairman, District Recruitment Committee‑‑‑Petitioner had been removed from service after scrutiny of entire record and affording him proper opportunity of hearing‑‑‑Petitioner could not prove genuineness of appointment order by adducing cogent and concrete documentary evidence ‑‑‑No perpetual rights could be gained on basis of such illegal order‑‑‑Principle of locus poenitentiae would not apply to such case‑‑­Findings of Tribunal being well based would not warrant interference‑‑­No misconception of law or fact or question of law of public importance was involved‑‑‑Petitioner for having manoeuvred his fake appointment would not fall within definition of "civil servant" stricto senso‑‑‑Major penalty of removal from service could not be imposed on petitioner‑‑‑Supreme Court partly accepted appeal by converting penalty of removal from service into that of termination from service.

Zahoor Ahmad Awan v. The State 1997 SCMR 1543 and 2000 SCMR 907 ref.

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

‑‑‑‑Rr. 4(1)(b)‑‑‑Punjab Civil Servants Act. (VIII of 1974), S.2‑‑­Appointment gained on basis of bogus/fake order‑‑‑Removal from service‑‑‑Validity‑‑‑Such appointee would not fall within definition of "civil servant" stricto senso for not having been appointed in accordance with law, but having manoeuvred his take appointment‑‑‑Major penalty of removal from service, in such circumstances, could not have been imposed on such appointee‑‑‑Such penalty was converted into that of termination from service.

Ahmad Awais Advocate Supreme Court and M.A. Qureshi Advocate‑on‑Record for Petitioners (in all cases)

Syed Shabbar Raza Rizvi, A.G. Punjab for Respondents (in all cases).

Date of hearing: 25th February, 2003.

2004 P L C (C.S.) 1273

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

RAZZAK AHMED MALIK

Versus

GOVERNMENT OF THE PUNJAB and another

Civil Petition No.3178‑L of 2001, decided on 6th June, 2003.

(On appeal from the judgment dated 24‑7‑2001 of the Punjab Service Tribunal Lahore, passed in Appeal No.406 of 2000).

(a) Civil service‑

‑‑‑‑Promotion on current/acting charge basis‑‑-Validity‑‑‑Promotion on such basis cannot be equated to that of regular promotion‑‑‑Promotion on acting charge basis can be made in exigency of service, but same should not be for an indefinite period and does not confer any right of regular promotion on concerned civil servant.

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

‑‑‑‑S.4‑‑‑Appeal or representation‑‑‑Limitation‑‑‑No appellant has, unfettered choice to file a representation/appeal irrespective of time limit.

1998 SCMR 882 fol.

Petitioner in Person.

Nemo for Respondents.

Date of hearing: 6th June, 2003.

2004 P L C (C.S.) 1275

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

GOVERNMENT OF PUNJAB through Secretary Schools, Education Department, Lahore and others

Versus

TAUQEER MAZHAR BUKHARI

Civil Petition No.2204‑L of 2002, decided on 4th June, 2004.

(On appeal from the judgment/order dated 19‑4‑2002 passed by Punjab Service Tribunal, Lahore in Appeal No. 1789 of 2001).

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

‑‑‑‑Rr. 4 & 7‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Failure to conduct regular inquiry‑‑‑Altering of penalty by Service Tribunal‑‑‑Civil servant was a school teacher and was dismissed from service on the charge of facilitating students in examination by unfair means‑‑‑No specific charge of cheating .or copying against any particular student was levelled‑‑‑Neither any answer sheet was taken by the examiner/invigilator nor any action was initiated against any student for cheating or copying‑‑‑No evidence had come on record showing that some undue interference was made by the civil servant‑‑‑Dismissal order passed by the Authorities was altered by Service Tribunal to that of reduction in pay in three stages‑‑‑Validity‑‑‑Regular inquiry should have been conducted to unveil the reality‑‑‑Major penalty of removal from service should have not been imposed being too harsh in view of the nature of allegations which could not be substantiated without adducing any cogent or concrete evidence‑‑‑Service Tribunal had dilated upon all contentions as agitated before Supreme Court in comprehensive manner‑‑‑No question of law of public importance was involved‑‑­Judgment passed by Service Tribunal being well based and free from any illegality did not warrant interference‑‑‑Leave to appeal was refused.

M. Sharif Butt, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 4th June, 2003.

2004 P L C (C.S.) 7

[Supreme Court (AJ&K)]

Present: Chaudhary Muhammad Taj, J

ABDUL SHAKOOR

Versus

Mrs. SHAMIM KHALIL and 5 others

Civil Petition for Leave to Appeal No. 176 of 2003, decided on 5th September, 2003.

(On appeal from the judgment of the High Court dated 9-6-2003 in Writ Petition No.438 of 2002 and 90 of 2003).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977-----

----R. 24---Azad Jammu and Kashmir Civil Servants Act, 1976, S.22--­Relaxation of Rules---Person not civil servant---Applicability---Words "civil servant" do not appear in R.24 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---No Rules can be framed or read against the spirit of parent statute---Such Rules are framed under Azad Jammu and Kashmir Civil Servants Act, 1976, whereunder such powers are exercisable by Government in respect of a civil servant---Government cannot make any relaxation in respect of a person, who is not civil servant.

(b) Interpretation of statutes---

---- No rules can be framed or read against the spirit of parent statute.

(c) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977-----

----R.24---Azad Jammu and Kashmir Civil Servants Act, 1976, S.22--­Relaxation of Rules by Government---Notification must show reasons for exercising such powers in any individual case which are just and equitable, otherwise same would be ultra vires.

(d) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977-----

----R.24---Relaxation of Rules---Proper stage---Notification for relaxation of experience in case of one candidate after commencement of selection process and receipt of applications, for enabling him to appear in competitive examination---Validity---Such notification could not be ­read retrospectively for not having been so provided by law-makers--­Right of such candidate would be considered according to qualifications laid down in the rules existing at relevant time---Such notification could not be taken into consideration after completion of process of selection in respect of receiving applications according to qualifications determined for same.

Kh. Ghulam Muhammad v. Azad Government and 2 others 1995 SCR 162 and Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 ref.

Miss Azra Hafiz: and 10 others v. Israr Hussain Mughal 1997 PLC (C.S.) 297; Muhammad Fayaz and 5 others v. Shah Nawaz Khan and 32 others 1991 PLC (C:S.) 1493; Miss Shamaila Mahmood v. Mukhtar Ahmed and others 1998 PLC (C.S.) 51; J.C. Yadav and others v. State of Haryana and others AIR 1990 SC 857 and Muhammad Mazhar v. Chairman, Federal Public Service Commission and 2 other 1993 CLC 81 rel.

(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-­---

----S.43---Petition for leave to appeal---Contention of petitioner was that point specifically raised in pleadings and at the time of arguments had not been resolved by High Court---Validity---Petitioner had neither filed nor offered to file affidavit in support of his contention---Petitions seemed to have abandoned such point as no resolution was found in this respect in exhaustive judgment passed by High Court---Supreme Court dismissed petition and refused leave to appeal.

Farooq Iqbal Dar v. Azad Government and 3 others 1995 PL (C.S.) 172; J.C. Yadav and others v. State of Haryana and others AIR 1990 SC 857; Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K) 23; Accountant-General and others v. Zaman Hussain Shah 1998 PLC (C.S.) 431; Muhammad Mazhar v. Chairman, Federal Public Service Commission and 2 other 1993 CLC 81; Muhammad Fayaz and 5 others v. Shah Nawaz Khan an 32 others 1999 PLC (C.S.) 1493; Kh. Ghulam Muhammad v. Azad Government and 2 others 1998 PLC (C.S.) 431; Dr. Ahmad Salma Waris v: Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Muhammad Yasin v. Azad Jammu and Kashmir Government and others 2000 YLR 1024; Miss Azra Hafiz and 10 others v. Israr Hussain Mughal 1997 PLC (C.S.) 297 and Miss Shamaila Mahmood v. Mukhtar Ahmed and others 1998 PLC (C.S.) 51 ref.

M. Tabassum Aftab Alvi, Advocate for Petitioner.

Abdul Rashid Abbasi, Advocate for Respondent No.1.

Date of hearing: 1st September, 2003.

2004 P L C (C.S.) 208

[Azad J&K]

Before Ghulam Mustafa Mughal, J

ABDUL SHAKOOR and others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and others

Writ Petitions. Nos.438 of 2002 and 90 of 2003, decided on 9th June, 2003.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)----­

----S.22---Alad Jammu and Kashmir, Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.24---Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, RA --- Azad Jammu and Kashmir Judicial Service Rules, 1999, RA ---Azad Jammu and Kashmir Public Service Commission Act, 1986, S.7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition--­ Appointment on post of Civil Judge---Relaxation of minimum qualification---Candidate in response to the advertisement issued by Public Service Commission whereby applications for various posts, including posts of Civil Judges, were invited, applied for the poet of Civil Judge---Candidate lacked two years' requisite legal practice and he was directed to produce a certificate to that effect from the Competent Authority/Bar Council, flailing which he would not be allowed to participate in the examination---Application of candidate for relaxation of prescribed qualification of two years' legal practice, was accepted by the Government, but his appeal against the other requirement whereby he was asked to produce certificate from the Bar Council, was rejected by Public Service Commission---Candidate, however, was allowed the test, provisionally to appear in the lest and he having been declared successful, was selected for the post of Civil Judge---Opposing candidate challenged process of selection of the candidate alleging that such relaxation and selection of candidate was without jurisdiction and ultra vires of S.22 of Azad Jammu and Kashmir Civil Servants Act, 1976 and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and other rules---Validity---Candidate was a Law Graduate and had his pleadership licence and on basis thereof had claimed experience of his legal practice which was not up to the prescribed standard as at time of filing application for appointment he had experience of legal practice of only eight months--Candidate had contended that he being holder of L.L.M. qualification was exempt from apprenticeship like an ex-judicial officer---Contention was repelled because said relaxation was applicable only for obtaining the licence of Advocacy for High Court and not beyond that and minimum qualification for appointment of Civil Judge could not be relaxed on that ground--­Candidate contended that his service as Tehsil Mufti could be counted in his experience and qualification---Such contention was also repelled because functions of Tehsil Mufti had no nexus with judicial functions--­Recommendation for appointment of candidate on the post of Civil Judge after relaxing minimum qualification being against law, were declared as null and void and Public Service Commission was directed to recommend the opposing candidate who had the required qualification to be appointed at the post instead of the candidate who was not eligible to be appointed on that post.

1999 PLC (C.S:) 1493; 1999 PLC (C.S.) 1007; Kh. Ghulam Muhammad's case 1995 SCR 162; 2001 SCMR 1806; 2000 YLR 1024; 1997 PLC, (C.S.) 297; Rana Tariq Shoukat and 634 others v. Government of Punjab through Secretary, Civil Secretariat Lahore and 2 others 2003 PLC (C.S.) 400; Abdul Haq Mughal v. Muhammad Nusreen Usmani 2002 SCR 146;, Commissioner of Income Tax y. Messrs Adam Jee & Sons PLD 1967 Kar. 184; 1993 SCR 327; 1998 PLC (C.S.) 153; 2002 SCR 128; AIR 1990 SC 857; 1990 PSC 1033; Black's Law Dictionary, p 1172; 1993 CLC 81; 2000 YLR 1011; 1988 SCMR 169; 1996 PLC (C.S.) 155.; 1985 CLC 974; 1985 CLC 1216; 2000 SCMR 367; PLD 1991 SC 546; 2001 SCR 109;1993 CLC 1165; 2002 SCR 329; Dr. Haq Nawaz v. Balochistan P.S.C. through Chairman and 2 others 1996 PLC (C.S.) 872; Dr..Ahmed Suleman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Sheikh Manzoor's case 1995 PLC (C.S.) 59; Mir Abdul Hamid's case 1997 PLC (C.S.) 805; Miss Shamaila Mehmood's case 1998 PLC (C.S.) 51; AIR 1990 SC 851; Arshad Hussain Chaudhry's case 1998 PLC (C.S.) 1229; Muhammad Azam Jamil and, others v. Government of Pakistan and others 1991 PLC. (C.S.) 983; Muhammad Siddique, Advocate v. Farhat Ali Khan and another PLD 1994 Lah. 183; 1995 SCMR 1570 and Miss Hadia Awan's case PLD 1998 Lah. 207 ref.

(b) Civil service ---

--------Appointment---Non-filing of testimonials---Effect---Candidate in exceptional circumstances, could not be deprived of the right of fair competition for appointment merely for non-filing of the testimonials which were available at the time of advertisement, but due to some genuine cause could not be appended with application of candidate and were being produced after obtaining the same from Competent Authority.

Habib-ul-Rehman v. Government of Pakistan and others 1979 SCMR 121 and Dr. Zia Sideman Farooqi v. Punjab Public Service Commission PLD 1994 Lah. 55 ref.

(c) Interpretation of statutes-----

----Rules under an Act---Provisions of the relevant Act would be given effect to and Rules could not defeat the intention of Legislature expressed in the parent statute nor rule-making Authority could clothe itself with the power which was not given to it under the parent Act--­Assuming that the Government had the power to relax the rules, even in such cases relaxation could only be ordered for carrying out the purpose of the Act and in just and equitable manner.

Azad Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339 ref.

(d) Words and phrases---

----Legal practice', 'practice of law', 'in practice' and 'professional'--­Meaning and scope explained.

(e) Interpretation of statutes---

----If a statutory provision was unhappily worded for want of skill and drafting, it would not go, to the root of the matter and would not affect the correct interpretation of law.

(f) Azad Jammu and Kashmir Bar Councils Act, 1995-----

----Ss.19, 20 & 24---Legal practice---When profession was regulated by an enactment, regulations or rules, then practice performed alone in the prescribed manner could be considered as legal practice and such interpretation would advance the intention of Legislature.

M. Tabassum Aftab Alvi and Kh. Muhammad Naseem for Petitioners (in Writ Petition No.438 of 2002).

Raja Muhammad Hanif Khan for Respondents (in Writ Petition No.438 of 2002).

Abdul Rashid Abbasi for Petitioner (in Writ Petition No.90 of Raja Muhammad Hanif Khan and Muhammad Yaqoob Khan Mughal for Respondents (in Writ Petition No.90 of 2003).

2004 P L C (C.S.) 473

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

ZAHEER‑UD‑DIN QURESHI

versus

INSPECTOR‑GENERAL OF POLICE, AJ&K and 2 others

Civil Appeal No.40 of 2003, decided on 11th November, 2003.

(On appeal from the judgment of the Service Tribunal dated 7‑1‑2003 in Service Appeal No.299 of 2001).

(a) Police Rules, 1934‑‑‑

‑‑‑‑Rr.12.14 & 12.18‑‑‑Rapid emotion given to civil servant due to his efficiency and excellent work as recommended by high officials of the Department‑‑‑Such promotion orders were alleged to have been obtained by civil servant in connivance with such high officials‑‑‑Allegation without proof‑‑‑Allegations easy to be made but difficult to be, proved.

(b) Administration of justice‑‑‑

‑‑‑‑Courts of law have to decide cases strictly in accordance with law‑‑‑If some allegations against somebody stand proved, then action had to be taken, but in absence of proof, no action could be taken.

(c) Police Rules, 1934‑‑‑

‑‑‑‑Rr.12.14 & 12.18‑‑‑Rapid promotion‑‑‑Civil servant could not be punished for lapses, if any, committed by high officials of Department in making his rapid promotions.

Secretary to Government of N.‑W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Ahmad Latif Qureshi v. Controller of Examinations, Board of Intermediate and Secondary Education, Lahore and another PLD 1994 Lah. 3 and Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 SCR 95 rel.

Kh. Muhammad Nasim, Advocate for Appellant.

Raza Ali Khan, Advocate for Respondents.

Date of hearing: 7th November, 2003.

2004 P L C (C.S.) 843

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

ABDUL HAQ MUGHAL

versus

MUHAMMAD NASEER USMANI and 2 others

Civil Appeal No.38 of 2001, 4ecided on 2nd November, 2001.

(On appeal from tile judgment of the Service Tribunal dated 18‑12‑2000 in Appeal No.42 of 1998).

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

‑‑‑‑O.XX, R.1‑‑‑Judgment‑‑‑Meaning‑‑‑Judgment is expression of Court's opinion given after due consideration of pleadings of parties and evidence tendered by them for and against their respective pleadings and arguments addressed before the Court or Special. Tribunal performing judicial functions.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.47(3)‑‑‑Civil Procedure Code (V of.1908), O.XX, R.I‑‑‑Appeal to Supreme Court against judgment of Service Tribunal‑‑‑Service Tribunal, had mentioned in detail respective pleadings of parties and points raised for their determination but had not resolved those points‑‑‑No reason had been given in support of the conclusion nor order of Service Tribunal contained evaluation of documentary evidence and discussion thereon‑‑­Judgment of Service Tribunal was no judgment in the eye of law‑‑­Ordinarily, in cases where judgment was found faulty, case was remanded to concerned Court or Tribunal for, fresh hearing and judgment, but order of remand would cause further financial burden to parties as appeal before Service Tribunal was not filed in accordance with law‑‑‑Judgment of Service Tribunal was set aside by Supreme Court, in circumstances.

(c) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S.4‑‑‑Appeal before Service Tribunal‑‑‑No appeal would be competently filed before Service Tribunal under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 unless two conditions were fulfilled: Firstly the party availing .the right of appeal should have availed departmental remedy; secondly that after availing departmental remedy, party should wait for a period of 90 days‑‑‑If the Departmental remedy availed was not decided within period of 90 days, then in next 30 days Appellate jurisdiction of Service Tribunal could be invoked‑‑‑If the Departmental remedy was not availed against order of Authority and appeal was directly filed' before Service Tribunal same was not maintainable because appeal was statutory right which could be availed in accordance with prescribed manner‑‑‑When an act was required to be performed in a particular manner, that act must be performed according to that manner or not at all.

Asif Majeed Khan v. Tahir Ayyub Abbasi and 3 others 1994 PLC (C.S.) 1,514 and Muhammad Bashir Khan and another v. Inspector General of Police and others 1993. PLC (C.S.) 986 ref.

(d) Practice and procedure‑‑‑

‑‑‑‑ When an act was required to be performed in a particular manner, that act must be performed in that manner or not at all.

Asif Majeed Khan v. Tahir Ayyub Abbasi and 3 others 1994 PLC (C.S.) 1514 ref.

M. Tabassum Aftab Alvi, Advocate Supreme Court for Appellant.

Nemo for Respondent No. 1.

Abdul Rashid Karnahi, Assistant Advocate‑General for pro forma Respondents.

Date of hearing: 16th October, 2001.

2004 P L C (C.S) 835

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan CJ., Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

MUHAMMAD JAVAID

versus

SECRETARY HOME and 5 others

Civil Appeal No.200 of 1999 decided on 11th November, 1999.

(On appeal from the judgment of the Service Tribunal dated 7‑9‑1998 is Service Appeal No.851 of 1995).

Azad Jammu and Kashmir Jail Establishment Service Rules, 1983‑‑‑

‑‑‑‑R.8(a)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)‑‑‑Promotion, entitlement to‑‑‑Appeal to Supreme Court‑‑­Appellant was not given notional promotion while respondents were given the same merely on ground that they were promoted to said posts, in their own pay scale‑‑‑No rule existed for promoting a person in a higher grade in his own pay scale‑‑‑Mere fact that respondents were given retrospective promotion because they were holding the posts of Senior Clerks, would not justify to deny the same to appellant‑‑‑If a post was in existence and a civil servant was eligible for promotion, but he was ignored with no fault on his part, his case of notional promotion could be considered‑ ‑‑Respondent had been given retrospective promotion, but same was denied to the appellant‑‑‑Denial to give effect to promotion of appellant, was not legally justified‑‑‑Ordinarily question of ante‑dated promotion was to be considered by Appointing Authority, but in circumstances of the present case where parties had been litigating for quite some time; it would be an exercise in futility to give said direction to Appointing Authority and it would be in the fitness of things if said relief was given to appellant by Supreme Court itself‑‑‑Accepting appeal, the Supreme Court directed that promotion of appellant, would take effect from the date when promotion was given to respondent with retrospective effect.

Sardar Sabir Hussain Khan Abbasi v. Azad Government (Civil Appeal No. 16 of 1999; Professor Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government 1990 MLD 1283; Kabir Ahmad Khan v. Government of Punjab 1990 SCMR 1417 and Saleem Ullah v. Government of Pakistan 1995 SCMR 1865 ref.

Abdul Rashid Abbasi and Bashir Ahmad Mughal, Advocate Supreme Court for Appellant.

Ghulam Mustafa Mughal, Advocate Supreme Court for Respondents No.4 and 5.

Sardar Rafique Mahmood Khan, M. Tabassum Aftab Alvi, Ch. Muhammad Ibrahim Zia and Kh. Shahad Ahmad, Advocates Supreme Court for Respondent.

Date of hearing 2nd November, 1999.

2004 P L C (C.S.) 850

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

TASNEEM YASEEN

Versus

AZAD GOVERNMENT and 11 others

Civil Appeal No.205 of 2000 decided on 8th February, 2002.

(On appeal from the judgment of the Service Tribunal dated 28‑9‑2000 in Service Appeals Nos.67, 68 and 69 of 1997).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S.4‑‑‑Civil service ‑‑‑Seniority‑‑‑Promotion‑‑‑Appeal‑‑‑Limitation‑‑­Period of limitation under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975, would commence from the date of communication of the order to the aggrieved civil servant‑‑ ‑Impugned seniority list was not circulated‑ as was proved from affidavit and evidence of appeal and her witness‑‑‑Limitation against seniority list would commence from date when appellant got knowledge of the same‑‑‑Promotion orders were issued in favour of contesting respondent in furtherance of impugned seniority list, without knowledge of appellant, could be questioned by her from date of knowledge‑‑‑Service Tribunal was not justifier) in dismissing appeal of appellant on ground of limitation‑‑‑Appeal having not been decided on merits, judgment of Service Tribunal was set aside and case was ‑remanded to Service Tribunal for fresh decision in accordance with law.

Inayatulah Chaudhry v. AJ&K Government and others 1990 PLC (C.S) 598; Naseebullah v. Mumtaz Khan and others 1993 SCR 44; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Syed Shaukat Hussain v. Secretary Establishment Division Islamabad and others 1995 PLC (C.S.) 21; Government of Punjab through Secretary Service and others v. Rao Shamsher Ali Shah and others 1992 SCMR 1388 and Ch. Muhammad Zaman v. Azad Government and 4 others 1996 PLC (C.S.) 901 ref.

Abdul Rashid Abbasi, Advocate Supreme Court for Appellant.

Kh. Attaullah Chak, Advocate Supreme Court for Respondent No. 1 and 2, M. Tabassum Aftab Alvi, Advocate Supreme Court for Respondents Nos.7, 8, 9 and 11.

Date of hearing: 10th December, 2001.

2004 P L C (C.S.) 858

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan C.J., and Basharat Ahmad Shaikh, J

ABDUL KHALEEL GANAIE and 14 others

Versus

SABIR HUSSAIN and 6 others

Civil Appeal No. 113 of 1999 decided on 2nd February. 2000.

(On appeal from the judgment of the Service Tribunal dated 17‑1‑1998 in Service Appeal No.83 of 1997).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S.47(3)‑‑‑Petition for leave to appeal‑‑‑Limitation‑‑‑Petition for leave to appeal was time‑barred by 488 days and petitioner could not prove that he came to know about impugned judgment of Service Tribunal only one week prior to filing of petition for leave to appeal‑‑‑Petition for leave to appeal or for that matter appeal filed were hopelessly time ­barred‑‑‑Petitioner having failed to show any sufficient cause for condonation of delay, appeal was dismissed being barred by time.

Tariq Bin Saeed v. Raja Muhammad Razzaq and others [Civil Appeal No.64 of 1999; Sardar Aftab Ahmed and 5 others v. Maj. (Retd.) Muhammad Aftab Ahmed and 3 others 1999 MLD 187; Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter and others 1998 PLC (C.S.) 127 and Umar Hayat v. Azad Govt. of the State of J&K and others 1999 PLC (C.S.) 93 ref.

Ghulam Mustafa Mughal, Advocate Supreme Court for Appellants.

Sardar Rafique Mahmood Khan, Advocate Supreme Court for Respondent No. 1.

Raja Shiraz Kayani, Advocate‑General for Respondents Nos.2 to 4.

Raja Muhammad Hanif Khan, for Respondents No.6 and 7.

Date of hearing: 13th January, 2000.

2004 P L C (C.S.) 897

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J.

Ch. MUHAMMAD DIN KAUSAR

Versus

AJ&K GOVERNMENT and 4 others

Civil Appeal No.53 of 1999, decided on 7th April, 2000.

(On appeal from the judgment of the High Court dated 25‑1‑1999 in Writ Petition No.498 of 1997 and Civil Appeal No.23 of 1998)

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ petition‑‑‑Maintainability‑‑‑Civil service‑‑‑Correction of date of birth‑‑‑According to petitioner his date of birth was 4‑2‑1939, whereas according to the Authorities date of birth of petitioner was 4‑2‑1937‑‑‑Writ petition filed by petitioner for determination of his date of birth as 4‑2‑1939, was dismissed by. High Court on the ground that as the matter pertained to terms and conditions of service, writ petition was not competent‑‑‑Petitioner it his earlier civil suit had admitted that in his Matriculation, Certificate his date of birth was entered as 4‑2‑1937, which was incorrect, but subsequently in writ petition he had taken a divergent stand that according to his Matriculation Certificate, his date of birth was 4‑2‑1939 which was a contradictory, stand which bad rendered subsequent Certificate further doubtful‑‑‑Petitioner having not come to the Court with clean hands his writ petition could have been dismissed on that sole ground‑‑‑Even otherwise correct date of birth of petitioner was complicated question o: fact, which could not be resolved in writ jurisdiction‑‑‑High Court, in circumstances had rightly dismissed writ petition.

Syed Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494 and Muhammad Mushtaq v. Muhammad Fiat Abbasi 1993 CLC 432 ref

Raja Muhammad Hanif Khan, Advocate for Appellant.

Kh. Attaullah, Additional Advocate‑General and Abdur Rashid Abbasi, Advocate for Respondents.

Date of hearing: 5th April, 2000.

2004 P L C (C.S.) 914

[Supreme Court (Azad J&K)]

Present: Sardar Said, Muhammad Khan C.J. and Muhammad Yunus Surakhvi, J

Sardar SABIR HUSSAIN KHAN ABBASI

versus

AZAD GOVERNMENT and another

Civil Appeal No. 16 of 1999 decided on 14th May, 1999.

(On appeal from the judgment of the High Court dated 10‑10‑1998 in Writ Petition No.16 of 1998).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑--

‑‑‑‑S.44‑‑‑Civil service‑‑‑Implementation of order‑‑‑Writ, issuance of‑ ‑‑if a direction was issued by Prime Minister on an appeal or review etc., writ could be issued in appropriate case for the implementation of the same‑‑‑In. appropriate case, writ could be issued in service matters for the implementation of an order passed by a Competent Authority according to the guidelines enumerated therein‑‑After acceptance of review petition by Competent Authority it was the duty bf concerned functionary to implement such order, irrespective of issuance of formal order as relevant appeal rules did not visualize any such formal order after acceptance of appeal or review‑‑‑Finding of High Court that as formal order was not issued in pursuance of the order whereby review petition was accepted, writ could not be issued, was not sustainable.

Miss Shaghufta Maan v. Islamia University Bahawalpur 1995 CLC 1500; Syed Muhammad Saqalin v. Chief Secretary. Government of the Punjab 1981 PLC (C.S.) 651 and Ejaz Ahmad Awan v. Syed Muhammad Manzoor Ali Shah Civil Appeal No. 159 of 1998 ref.

(b) Civil service‑‑‑

‑‑‑‑ Pro forma promotion, claim for‑‑‑If it was shown that civil servant was not promoted when his batch‑mates were promoted without there being any fault on his part, he could claim pro forma promotion, irrespective of the fact whether he was holding the post on acting charge basis or not‑‑‑If the promotion of the civil servant was deferred without any fault on his part, he could be given pro forma promotion irrespective of the fact whether he was holding relevant post on acting charge basis or not.

Ch. Yar Muhammad Durraiana v. Government of the Punjab 1992 PLC (C. S.) 95 and Cr. Muhammad Saleem v. Government of the Punjab 1994 SCMR 517 ref.

Ch. Muhammad Ibrahim Zia, Advocate for appellant.

Raja Shiraz Kayani, Advocate‑General for Respondents.

Date of hearing: 10th May, 1999.

2004 P L C (C.S.) 938

[Supreme Court (Azad J&K)]

Sardar Said Muhammad Khan, C. J. and Khawaja Muhammad Saeed, J

AZAD JAMMU AND KASHMIR BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and another

versus

ABDUR RAUF KHAN and 11 others

Civil Appeal No.38 of 2001 decided on 17th November, 2001.

(On appeal from the judgment of the High Court dated 18‑1‑2001 in Writ Petition No. 402 of 2000).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑

‑‑‑‑R.17‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)‑‑‑Appointment‑‑‑Appeal to Supreme Court‑‑‑Some of respondents who were appointed in B.5, B.8 and B‑12 were given B‑16 and one of the respondents was promoted from B‑5 to B‑11‑‑‑Such posts of higher grades were not advertised and by so doing eligible persons fulfilling requirements of the posts were deprived of contesting same on merits‑‑‑Orders of such appointments were passed by Chairperson of the Board in an arbitrary and unguided manner just to extend undue benefit to the respondent‑appointees‑‑‑Under provisions of S.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1,977 all posts in B‑1 aid above had to be advertised in the newspapers, which being ‑a mandatory requirement, appointments made in violation of said Rule could not be protected under law‑‑‑Said posts having not been advertised, recommendations made, by any Selection Committee and appointments trade in consequence of such recommendations were of no consequence‑‑‑‑Appointments of respondents against upgraded posts were illegal and could not be sustained‑‑­Secretary of Board, in circumstances was justified to cancel appointment orders which were passed in favour of respondents in an arbitrary and unguided manner.

Rashid ` Hussain v. Gul Afsar Khan and 3 others 1999 PLC (C.S.) 1248; Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947; Muhammad Aftab Khan v. District Education Officer and 2 others 2001 PLC (C.S.) 28; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13; Government of Pakistan through Secretary, Ministry of Defence and another v. Gul Zaman and 8 others PLD 1993 SC (AJ&K) 8; Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141 and Rafique Akhtar Chaudhry v. Azad Jammu and Kashmir Government PLD 1982 SC (AJ&K) 124 ref.

Ch. Muhammad Azam Khan, Advocate for appellants.

M. Tabassum Aftab Alvi, Advocate for Respondents.

Date of hearing: 31st October, 2001.

2004 P L C (C.S.) 949

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J. and Khawaja Muhammad Saeed, JJ

KHALIL AHMED AQEEL

versus

MEMBER BOARD OF REVENUE and 3 others

Civil Appeal No. 120 of 2001 decided on 18th January, 2002.

(On appeal from the judgment of the Service Tribunal dated 21‑5‑2001 in Service Appeal No.314 of 1998).

(a) Natural justice, principles of‑‑‑

‑‑‑‑Violation‑‑‑Judicial order determining the liabilities and rights of parties could not be passed at the back of party because that would be violative of universally recognized principle of audi alteram partem‑‑­Principles of natural justice were presumed to be the part of every Statute unless and until it was specifically excluded through a provision contained in relevant Statute.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S.4‑‑‑Appeal to Service Tribunal‑‑‑Maintainability‑‑‑Appeals filed by appellants before Service Tribunal were dismissed on ground that appellants did not implead Selection Committee in the line of respondents whereas appellants had challenged constitution and recommendation of said Selection Committee in their appeals‑‑‑Appeals, in circumstances were dismissed for non‑impleading of necessary party ‑‑‑Validity‑‑­Appellants had grievance about constitution of Selection Committee and the way it conducted its proceedings in formulating its recommendations for the promotion of respondents against vacant post of Girdawar‑‑­Selection Committee, in circumstances, was a necessary party and no order could be passed against Selection Committee without providing it a right of hearing‑‑‑Selection Committee had played an important role as its recommendations were accepted by Competent Authority while passing order of promotion of respondent which had been challenged by appellants‑‑‑Procedure contained in Code of Civil Procedure, 1908 being applicable in proceedings before Service Tribunal, without impleading Selection Committee which was necessary party, appeal before Service Tribunal was not maintainable.

Muhammad Ibrahim v. Custodian of Evacuee Property and others 2000 YLR 2367; Raja Muhammad Ashraf Khan Kayani v. Azad Government and others 1998 PLC (C.S.) 110 and Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and others 1998 PLC (C.S.) 153 ref.

Syed Nazir Hussain Shah Kazmi for Appellant.

M. Tabassum Aftab Alvi and Syed Arshad Gilani, Advocate .for Respondents.

Date of hearing: 16th January, 2002,

2004 P L C (C.S.) 957

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Chaudhary Muhammad Taj, J

AZAD GOVERNMENT and 3 others

Versus

MUHAMMAD MANZOOR TAHIR

Civil Appeal No.92 of 2002 decided on 13th December, 2002.

(On appeal from the judgment of the Service Tribunal dated 20‑2‑2002 in Service Appeal No.508.of 2001).

Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑‑

‑‑‑‑R.8‑‑‑Imposition of major penalty‑‑‑Issuance of show‑cause notice‑‑­If a major penalty had to be imposed upon a civil servant, issuance of show‑cause notice to accused civil servant was a mandatory rule of law.

Muhammad Shafique Mughal v. Accountant General and another 1996 PLC (C.S.) 766 and Hussain Ahmed Islahi v. Azad Govt. and another 1992 SCR 370 ref.

Raja Ibrar Hussain, Advocate‑General for appellants.

Ch. Muhammad Ibrahim Zia, Advocate for Respondent.

Date of hearing: 12th December, 2002.

2004 P L C (C. S.) 964

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

SAGHIR AHMED MUGHAL

Versus

MUNAWAR HUSSAIN and 3 others

Civil Appeal No. 177 of 2000 decided on 15th January, 2001.

(On appeal from the judgment of the High Court dated 28‑6‑2000 in Writ Petition No.632 of 1999).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42‑‑‑Writ petition‑‑‑Scope‑‑‑Observation of High Court‑‑‑High Court had unnecessarily probed into the question as to whether respondent in the writ petition was qualified for being appointed as Assistant Engineer or not‑‑‑High Court had also observed in its judgment passed in writ petition that if concerned Authority wanted to consider appointment of respondent as Assistant Engineer on same post other than the one which was occupied by petitioner it might do so‑‑‑Said observations of High Court which were not only contradictory, but also irrelevant, and were of no legal consequence.

Pir Saleh Shah and 6 others v. The Custodian of Evacuee Property, Pakistan, Lahore and another 1972 SCMR 543 and Muhammad Tufail v. Azad Government and another Civil Appeal No. 14 of 1994 ref.

M. Tabassum Aftab Alvi, Advocate for appellant.

Ghulam Mustafa Mughal, Advocate for Respondent No. 1.

Kh. Attaullah, Addl. A.G. for Respondents Nos.2 and 3.

Date of hearing: 9th January, 2001.

2004 P L C (C.S.) 970

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J, and Muhammad Yunus Surakhvi, J

MUHAMMAD SHAFI BUTT

Versus

PRESIDENTP HABIB BANK LIMITED and 3 others

Civil Appeal No. 139 of 1999 decided on 17th February, 2000.

(On appeal from the Order of the High Court dated 30‑6‑1999 in Writ Petition No.204 of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑Ss. 2‑A & 3‑‑‑Azad Jammu and Kashmir Service Tribunals Act, (XXII of 1975), S.3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.31(2) & Third Sched., Item 14‑‑‑Azad Jammu and Kashmir Council (Adaptation and Validation) Act (V of 1998)‑‑‑Amendment in Service Tribunals Act, 1973‑‑‑Effect‑‑‑After addition of S.2‑A in Service, Tribunals Act, 1973 in Pakistan and adaptation of the same by the Azad Jammu and Kashmir Council (Adaptation and Validation) Act, 1998, contention that civil servant would be governed by Azad Jammu and Kashmir Service Tribunals Act, 1975 was repelled‑‑‑No amendment existed in Service Tribunals Act, 1973 in terms that only a civil servant who was serving, could seek the redressal from Service Tribunal and not the one who had retired.

Sardar Rafique Mahmood Khan, Advocate for Appellant.

Mr. Muhammad Idress Mughal, Advocate for Respondents Nos. 1, 2 & 4.

Date of hearing: 17th February, 2000.

2004 P L C (C.S.) 973

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, and Khawaja Muhammad Saeed, JJ

RAHEELA KHALID

Versus

AZAD GOVERNMENT and 5 others

Civil Appeal No.23 of 2002 decided on 4th July, 2002.

(On appeal from the judgment of the High Court, dated 31‑10‑2001 in Writ Petition No.481 of 2001).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)‑‑‑

‑‑‑‑S.9‑‑‑Transfer‑‑‑Refusal to accept transfer order‑‑‑Effect on seniority‑‑‑Where civil servant had refused to accept his/her transfer order, seniority of said civil servant could not be disturbed merely by his/her refusal to join at other place on account of transfer‑‑‑Under provisions of S.9 of Azad Jammu and Kashmir Civil Servants Act, 1976, a civil servant could be transferred anywhere and if civil servant refused to join place of transfer, he/she would be liable to be proceeded against under Azad Jammu and Kashmir (Efficiency and Discipline) Rules, but his/her seniority could not be disturbed in an unlawful manner.

Azad Government and another v. Zia‑ud‑Din Abdul Hamid and others 1993 SCR 151; Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and .another 1999 PLC (C.S.) 1439; Maj. Shujaat Ali v. Mst. Surayya Begum PLD 1978 SC (AJ&K) 118; Tahir‑un‑Nisa v. Imrana Rafee. and 5 others 1999 PLC (C.S.) 991; Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Govt. and 3 others 1998 SCR 310; Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and another 1999 PLC (C.S.) 69 and Habibullah Ghannaie v. Wajahat Rashid Raig and 3 others 1999 PLC (C.S.) 615 ref.

Mujahid Hussain Naqvi Advocate for appellant.

Raja Ibrar Hussain, Advocate for Respondents.

Date of hearing: 13th June, 2002.

2004 P L C (C.S.) 981

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

ACCOUNTANT GENERAL and another

Versus

CH. MUHAMMAD SULEMAN

Civil Appeal No.78 of 2002 decided on 23rd December, 2002.

(On appeal from the judgment of the High Court dated 15‑2‑2002 in Writ Petition No.69 of 2001).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.47‑A‑‑‑Employees of Supreme Court and High Court‑‑‑Status‑‑­Employees of Supreme Court and High Court of Azad Jammu Kashmir were not Government servants within the meaning of Azad Jammu and Kashmir Civil Servants Act, 1976 or Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑‑Both Supreme Court and High Court under authority of law had got prerogative to make rules for their employees working in their establishment.

(b) Administration of justice‑‑‑

‑‑‑‑ Law never helps those who are negligent in pursuing the remedies available under the relevant law.

Sardar Abdul Raziq Khan, Addl. A.G. for appellants.

Ch. Sakhi Walayat, Advocate for Respondent.

Date of hearing: 16th December, 2002.

2004 P L C (C.S.) 990

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

ABDUL RASHID

Versus

AKMIDC and 3 others

Civil Petition for Leave to Appeal No. 10 of 2002 decided on 6th March, 2002.

(On appeal from the judgment of the Service Tribunal dated 15‑11‑2001 in Service Appeal No.271 of 2000).

Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975)‑‑‑

‑‑‑‑S.4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47‑‑‑Jurisdiction of Service Tribunal‑‑‑Disputes relating to the terms and conditions of civil servant, falling exclusively within the jurisdiction of Service Tribunal‑‑‑Section 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975, provided that civil servant who held a civil post in the service of Azad Jammu and Kashmir or was employed in connection with the affairs of the State, could raise his grievance in respect of the his terms and conditions through the appeal before Service Tribunal‑‑‑Person who was on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government from the Council or the Federation or any Province of Pakistan or Authority and a person who was employed on contract or on work‑charge basis and paid from contingencies, could not invoke Appellate jurisdiction of Service Tribunal‑‑‑Person who was a ' worker' or a "workman" as defined it the Factories Act, 1934 or Workmen's Compensation Act, 1923, also Could not avail the right of appeal before Service Tribunal.

Imdad Ali Malik, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 6th March, 2002.

2004 PLC (C.S.) 1011

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, CJ

Kh. SIAB KHALID

Versus

SECRETARY, FORESTS and 5 others

Civil P.L.A. No.219 of 2002 decided on 9th December, 2002.

(On appeal from the judgment of the Service Tribunal dated 22‑6‑2002 in Appeal No.413 of 2000).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42(12)‑‑‑Petition for leave to appeal‑‑‑Limitation‑‑‑Civil service‑‑­Petition for leave to appeal was barred by limitation of two days for which neither any explanation whatsoever had been furnished, by petitioner nor application for condonation of said delay had been filed by him‑‑‑Petitioner also did not make any verbal request for condonation of said delay‑‑‑Delay of each day had to be explained by party who had been negligent to file petition/appeal beyond the period of limitation‑‑­Petitioner having failed to explain delay in filing petition, petition being barred by limitation was dismissed, in circumstances.

Mehboob and another v. Muzaffar Din 1992 SCR 338; Azad Government of the State of Jammu and Kashmir through its Chief Secretary v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70; Havaldar Retd. Ali Hassain Khan and others v. Muhammad Suleman Khan and others Civil P.L.A. No.215 of 2002 and Vice Chancellor and others v. Raja Fazal Hussain Rabbani 2002 MLD 1209 ref.

Ashfaque Hussain Kiani, Advocate for Petitioner.

Date of hearing: 9th December, 2002.

2004 P L C (C. S.) 1016

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Sarakhvi, C.J and Khawaja Muhammad Saeed, J

MUHAMMAD AYUB

Versus

CHIEF CONSERVATOR OF FORESTS and 4 others

Civil Appeal No. 163 of 2001 decided on 17th October, 2002.

(On appeal from the judgment of the Service Tribunal dated 18‑8‑2001 in Service Appeal No.9 of 2000).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑

‑‑‑‑R.17‑‑‑Appointment‑‑‑Provisions of R.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 being mandatory in nature, after enforcement of such Rules no post in the service of Azad Jammu and Kashmir could be filled in without advertising the same and without allowing the eligible candidates to compete on merits‑‑‑Appointment in the present case, was made without advertising the post in the newspaper and merits of appointee was not determined alongwith other eligible candidates through test and interview of Selection Committee‑‑‑Validity‑‑‑Initial appointment of appointee being illegal, both, Authority concerned and Service Tribunal had rightly held that since said appointment was made against the Rules, providing him opportunity of hearing was not necessary.

Umar Hayat v. Azad Government of the State of Jammu and Kashmir and others 1999 PLC (C.S.) 93; Secretary for Prime Minister Secretariat, Azad Government of the State of Jammu and Kashmir Muzaffarabad and others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155; Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others 1998 SCR 281 and Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad v. The General of Public PLD 1988 SC 645 ref.

Muhammad Yaqoob Khan Mughal, Advocate for Appellant.

Ch. Muhammad Ibrahim Zia, Advocate for Respondent No.5.

Date of hearing: 14th October, 2002.

2004 P L C (C.S.) 1022

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan C.J. and Muhammad Yunus Surakhvi, J

BASHARAT HUSSAIN and 4 others

Versus

MUHAMMAD IMTIAZ KHAN and 3 others

Civil Appeal No.92 of 2000 decided on 17th January, 2000.

(On appeal from the judgment of the Service Tribunal dated 25‑7‑1998 in Service Appeal No.788 of 1994 and Order dated 15‑5‑2000 in Misc. No.24 of 2000).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Vires of Departmental Rules‑‑‑Appeal, competency of‑‑­Civil servant had directly challenged relevant Departmental rules as being discriminatory‑‑‑When civil servant had filed appeal to Service Tribunal, said Rules had not been interpreted to his disadvantage‑‑­Appeal to Service Tribunal challenging Departmental Rules, was not competent‑‑‑Service Tribunal could go into vires of Departmental Rules on the basis that same were discriminatory‑‑‑Service Tribunal could not issue direction under S.5 of Azad Jammu and Kashmir Service Tribunal Act, 1975 for amending the Rules because jurisdiction conferred under R.5 did not postulate any direction to Government for amending Departmental Rules.

Raja Abdul Majid v. Syed Abdul Latif Shah 2000 PLC (C.S.) 161; Khawaja Ghulam Muhammad v. Azad Government 2001 PLC (C.S.) 321; Muhammad Khaliq v. Zaheer Ahmed 2000 PLC (C.S.) 706; Mst. Farooq Bibi v. Abdul Khaliq 1999 CLC 1358 ; Muhammad Sarwar Ahmad v. The University of AJ&K 199$ SCR 350 and Muhammad Imtiaz Khan v. Azad Government of the State of Jammu and Kashmir Civil Appeal No. 18 of 1995 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 47(3)‑‑‑Appeal to Supreme Court‑‑‑Points not raised before Service Tribunal‑‑‑Contention of respondent that points in question which were not raised before Service Tribunal could not be raised before Supreme Court in appeal, was not sustainable because appellants in 'she present case were not impleaded as party before the Service Tribunal.

Mr. M. Tabassum Aftab Alvi, Advocate for Appellants.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

Date of hearing: 11th January, 2001.

2004 P L C (C.S.) 1036

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C. J. and Khawaja Muhammad Saeed, J

ABID HUSSAIN, ASSISTANT EDUCATION OFFICER (MALE) BALUCH CONSTITUENCY‑2 DISTRICT SUDHNUTI

Versus

AJAIB ALI SHAH NAQVI and 3 others

Civil Appeal No. 117 of 2003, decided on 12th March, 2004.

(On appeal from the judgment of the Service Tribunal dated 23‑6‑2003 in Service Appeal No.88 of 2003).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)‑‑‑

‑‑‑‑S.10‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)‑‑‑Transfer‑‑‑Appeal to Supreme Court against judgment of Service Tribunal‑‑‑Civil servant who was performing his duties as Education Officer efficiently and to the satisfaction of Department, was transferred from one place of working to another‑‑‑Member of Legislative Assembly of Constituency concerned obtained sanction of Prime Minister for transfer of civil servant‑‑‑Validity‑‑‑Said Member of Legislative Assembly had no business to recommend the transfer of Government officials‑‑‑Prime Minister, on his recommendation in colourable exercise of his official authority granted sanction without relaxing Government Policy and without mentioning compelling reasons which prevailed with him to grant sanction of transfer contrary to Government . Policy‑‑‑Reason mentioned by Member Legislative Assembly in his recommendations that civil servant did not belong to constituency concerned was contrary to the true facts‑‑‑Service Tribunal, in circumstances had rightly accepted appeal filed by civil servant against his transfer order holding that such order being illegal should not have been enforced.

Sardar Muhammad Azim Zia v. Nazir Ahmed Qadri and others 2003 PLC (C.S.) 887 ref.

Kh. Attaullah Chak, Advocate for Appellant.

Sardar Muhammad Habib Zia, Advocate for Respondent No.1.

Date of hearing: 10th March, 2004.

2004 P L C (C. S.) 1047

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

MUHAMMAD FAZIL, ASSISTANT EDUCATION OFFICER

Versus

KISHWAR SIKANDAR and 6 others

Civil Appeal No. 101 of 2003, decided on 12th December, 2003.

(On appeal from the judgment of the Service Tribunal dated 12‑4‑2003, to Service Appeals Nos.500 and 504 of 2002).

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑No male member to be posted and transferred in female institutions unless it is proved that female member is not available to hold the job.

(b) Civil service‑‑‑

‑‑‑‑ Transfer‑‑‑Government, though has the prerogative to transfer any civil servant from one place to another but at the same time it is desirable that the Government and the concerned Department should also take into consideration a uniform policy for all the Government employees irrespective of their political background.

Mst. Saiqa Bibi v. Secretary Education and others 2002 PLC (C.S.) 797; Kausar Perveen v. Azad Government and 2 others 2002 PLC (C.S.) 1385 and Mst. Niaz Perveen v. Mst. Rukhsana Shaheen and others 1995 SCMR 1844 ref.

Sardar Muhammad Habib Zia, Advocate for Appellant.

M. Tabassum Aftab Alvi, Advocate for Respondents Nos.1 and 2.

Riaz Navid Butt, Additional Advocate‑General for Respondent No.4.

Date of hearing: 4th November, 2003.

2004 P L C (C.S.) 1063

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed and Chaudhary Muhammad Taj, JJ

GULZAR AHMED

Versus

NAVEED AHMED and 5 others

Civil Appeal No.99 of 2002, decided on 8th January, 2004.

(On appeal from the judgment of the High Court dated 9‑5‑2002 in Writ Petition No.526 of 2001).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Art.42‑‑‑Writ petition‑‑‑Civil service‑‑‑Appointment‑‑‑High Court, in the earlier writ petition, had decided the issue wherein the departmental action of appointment had been maintained‑‑‑High Court, in recording fresh finding on another writ petition filed by the contesting respondent, had in fact impliedly reviewed the earlier order of the High Court which was not legally maintainable‑‑ ‑If the respondent had any grievance he should have filed an appeal before the Supreme Court against the order of the High Court as there was no justification to re‑open the whole process‑‑‑Remedy available by the respondent by filing a fresh writ petition being against the recognized practice, judgment obtained by him in his favour could not be maintained.

Mujahid Hussain Naqvi, Advocate for Appellant.

Abdul Rashid Abbasi, Advocate for Respondent No. 1.

Riaz Naveed Butt, Addl. Advocate‑General for Respondent.

Date of hearing: 1st December, 2003.

2004 P L C (C.S.) 1074

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan C.J and Muhammad Yunus Surakhvi, J

SHAHIDA KHADIM

Versus

SECRETARY EDUCATION, AJ&K and 5 others

Civil Appeal No.49 of 2001 decided on 31st December, 2001.

(On appeal from the judgment of the High Court dated 20‑2‑2001 in Writ Petition No. 106 of 2000).

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

‑‑‑‑O.VIII, R.5‑‑‑Written statement‑‑‑Evasive denial‑‑‑Evasive denial, under O.VIII, R.5, C.P.C., would be deemed to be admission, of the averment made in relevant para.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42‑‑‑Appeal to Supreme Court‑‑‑Raising of the point for the firs time in appeal before Supreme Court‑‑‑Point which had not been raised or argued before High Court and neither an v cross‑objections nor any affidavit to said effect was filed by respondent, same could not be allowed for the first time to be raised before Supreme Court.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

‑‑‑‑S.44‑‑‑Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.32(2)‑‑‑Writ petition‑‑‑Dismissal of‑‑‑Writ petition was dismissed on 'ground that only photostat copies of documents had been placed on record by petitioner and that even attested copy of impugned appointment order of respondent was not place4 on record by petitioner‑‑‑Copy of impugned order as provided by R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984, though must be attached by petitioner, but position in the present, case was totally different‑‑­Assertion of petitioner that she stood first in the test and interview in accordance with the merit list, was admitted by respondents themselves‑­‑Even after prior appointment of petitioner, and to existence of said due appointment, subsequent appointment of respondent on same post, was also admitted by respondents‑‑‑Was not necessary on part of petitioner in such situation to attach with writ petition attested copies of said admitted documents.

Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153 ref.

(d) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Ban on appointments‑‑‑Candidate alongwith others appeared in the test and interview, and having stood first on merits was recommended for appointment and was appointed accordingly and joined service as Laboratory Assistant‑‑‑Only two days after .appointment opposing candidate was appointed in place‑‑‑Contention of the Authorities was that ban on appointments was lifted by Prime. Minister and thereafter appointment of opposing candidate was made ‑‑‑Validity‑‑­If at all ban was imposed by Government, same should have been lifted not only for opposing candidate, but for everybody because everybody was equal before law and entitled to equal protection of law‑‑‑Even otherwise ban imposed by Government, could only be relaxed or lifted by Government and not by the Prime Minister‑‑‑Nothing was on record to show that ban was relaxed by Government‑‑‑Appointment of opposing candidate, in circumstances was without any lawful authority and was violative of law.

Malik Khalid Mehmood v. Abdul Majid Butt and 4 others 1997 MLD 2921 and Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92 ref.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Raja Bashir Ahmed Khan, Advocate for Respondent No. 1.

Ch. Muhammad Riaz Alam Advocate for Respondent No.3.

Date of hearing: 27th December, 2001.

2004 P L C (C.S.) 1095

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C. J and Khawaja Muhammad Saeed, J

CHAIRMAN DEVELOPMENT AUTHORITY, MUZAFFARABAD and another

Versus

SAJJAD AHMED SHEIKH and 2 others

Civil Appeal No. 127 of 2003, decided on 12th December, 2003.

(On appeal from the judgment of the High Court dated 31‑3‑2003 in Writ Petition No.78 of 2002).

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Confirmation‑‑‑Civil servants had been appointed subject to approval by the Selection Committee‑‑‑Budget regarding the posts in question showed that it was duly passed by the Government and alongwith the Budget a list of employees of the Department in which the names of the civil servants so appointed were included‑‑‑Effect‑‑‑Held, in circumstances, it could not be said by any stretch of imagination that the civil servants were not confirmed by the Selection Committee.

(b) Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Natural justice, principles of‑‑­Applicability‑‑‑Civil servants were not given. any opportunity before the termination of their services thus violating the principles of audi alteram partem, which was almost of universal application‑‑‑Services of the said employees had been confirmed by the concerned Selection Committee; Budget for the posts of said civil servants had been sanctioned and their names appeared in the list of the Budget‑‑‑Held, in such view of the matter, a valuable right had accrued in favour of civil servants which could not have been snatched away without providing them an opportunity of being heard.

Development Authority Muzaffarabad v. Kh. Maqbool War and others (Civil P.L.A. No. 144 of 2002) and Raja Iqbal Rashid Minhas v. AJ&K Council and 3 others PLD 2002 SC (AJ&K) 1 ref.

Raja Ibrar Hussain, Advocate‑General and Muhammad Yaqub Khan Mughal, Advocate for Appellants.

M Tabassum Aftab Alvi, Advocate for Respondents Nos.1 and 2.

Date of hearing: 9th December, 2003.

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