PLCCS 2005 Judgments

2005 P L C (C.S.) 6

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

NASREEN PERVEZ

Versus

ELECTION COMMISSIONER and another

Appeal No. 16(K)(CS) of 2002, decided on 13th August, 2003.

Civil service---

----Deputation---Parent department---Determination of---Civil servant, who initially was an officer in Grade-17 in the Provincial Information Department, Government of Sindh applied for the post of Director (Public Relations) BPS-19 in the office of Chief Election Commissioner and in open competition was selected against post of Director (Public Relations) in BPS-19 in the office of Chief Election Commissioner--­Civil servant was permanently absorbed in that office and became Officer in BPS-19---During tenure of civil servant with Chief Election Commissioner as Director (Public Relations) she, in consequence of her request was sent on deputation to Government of Sindh where she was posted as Additional Secretary, Population Welfare---No document was on record showing that civil servant had succeeded to said post of Director Public Relations BPS-19 on deputation from Government, of Sindh but Employee had been appointed in open competition---Employee, in circumstances was Officer of Chief Election Commissioner and office of Chief Election Commissioner was her parent department and Civil servant was not on deputation with Chief Election Commissioner---Notification in dispute whereby Election Commission of Pakistan had repatriated civil servant to Provincial Government as her parent Department, was infructuous, ab initio and civil servant was declared to be an Officer of Election Commission which was her parent office/department.

1994 SCMR 2232 ref.

Appellant in person.

Niaz Ahmed Khan, Standing Counsel for Respondent along with D.R. Rashid Muhammad Section Officer.

Date of hearing: 9th July, 2003.

2005 P L C (C.S.) 39

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch Members

RIZWAN MUSTAFA

Versus

M/S. OIL AND GAS DEVELOPMENT COMPANY LIMITED and another

Appeal No.493(K)(CE) of 2000, decided on 27th August, 2003.

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

----Rr. 4(1)(b)(iv), 5 & 6---Service Tribunals Act (LXX of 1973), S. 4--­Dismissal from service---Employee was dismissed from service after charge-sheeting him and holding ex parte inquiry against him on allegation of unauthorized and wilful absence from duty---Inquiry report had clearly shown that inquiry against employee was held in his absence and in ex parte manner and no witness was examined by Inquiry Officer---Despite said lacunas Authorities proceeded to dismiss employee from service which was against principles of law, justice and fair play as no major penalty or punishment could be awarded without holding an independent inquiry with proper opportunity of defence to accused employee---Authorities had not treated employee in humane manner much less in the legal manner---Employee and also his wife were admittedly craving for grant of leave from Authorities, but instead of deciding the leave applications, same were returned unceremoniously and without any decision which had shown that employee who .had rendered more than ten years service with Authorities was meted out manifestly harsh and unjust treatment---No other allegations, like lack of efficiency, negligence or lack of performance, were leveled against employee--­Only guilt of employee for suffering such harsh treatment, was stated to be his applications for leave, which was his right as employee who admittedly was having earned leave at his credit---Even otherwise, medical leave could not be refused to employee unless there were sound and valid grounds for rejecting same---Employee initially was granted casual leave for five clays and was refused extension despite his wife and child were sick for which Medical Certificates were filed by employee, but quite contrary to established norms of justice and fair play, Authorities proceeded to charge-sheet employee and through an ex parte inquiry, inflicted most harsh and cruel punishment of his dismissal from service---Order of dismissal from service was set aside and employee was. ordered to be re-instated in service with all consequential benefits, provided employee had not gainfully served elsewhere during period he remained out of job.

PLD 1979 Lah. 690; PLD 1973 SC 236; PLD 1987 SC 447; 1985 SCMR 1178 and 1986 SCMR 962 ref.

Muhammad Nawaz Shaikh for Appellant.

Khalid Javed for Respondents.

Date of hearing: 20th March, 2003.

2005 P L C (C.S.) 67

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

ABBAS ALI and others

Versus

CHAIRMAN WAPDA and another

Appeals Nos. 103 to 105(K) of 1999, decided on 6th June, 2002.

Civil service---

---- Termination of service--Service of employee was terminated without issuance of show-cause notice and without holding inquiry against him simply on the ground that his appointment was made on the recommendation of Placement Bureau, but nowhere it had come on record that employee was lacking qualification or that he was guilty of misconduct---Other incumbents were regularized by Authority, but employee was thrown out without any charge of misconduct, which had shown that it was a mala fide act on the part of Authority---Order terminating service of employee appeared to be without any justification as fault was on part of the Authority because Authority itself could not conduct required examination at relevant time---Looking to the length of service of employee and considering the fact that employee would not be in a position to apply anywhere else in view of his age factor, order of his termination which was passed in violation of principles of natural justice, was set aside and employee was ordered to be, re-instated in service with all back-benefits, provided employee Would furnish an affidavit with solid proof that he did not work for gain any where for the period he remained out of job.

Sh. Mudassar Ahmed v. Government of Pakistan through Secretary, Establishment, Division and others 1991 PLC (C.S.) 1057; 1999 CLC 2018 and 1996 SCMR 413 ref.

Abdul Ghafoor Mangi for Appellants.

Abbas Haider Jafri with D.R. M. Saleem Jehangir, Dy. Director.

Date of hearing: 14th November, 2001.

2005 P L C (C.S.) 237

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

NASEER AHMED SIDDIQUI

Versus

CHAIRMAN CBR, ISLAMABAD and another

Appeal No. 1559(K) of 1998, decided on 24th April, 2003.

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

‑‑‑‑R.4(1)(a)(ii)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Imposition of minor penalty‑‑‑Appeal‑‑‑Minor penalty of stoppage of three increments with cumulative effect was imposed upon appellant after charge-sheeting him and holding enquiry against him on certain charges‑‑‑Counsel for Authority who was present along with Departmental Representative, at the very outset, had conceded that all charges leveled against appellant had not been proved and that he had no material to support the case of the Authority‑‑‑Charges leveled against appellant on basis of which penalty in question was imposed upon him, having not been proved, order imposing penalty was set aside with direction to the Authority to release all consequential benefits which were withheld as a result of said minor penalty.

Sanaullah Noor Ghori for Appellant.

Khalil Dogar, along with Dr. Junaid Ahmed Memon Assistant Collector Customs for Respondents.

Date of hearing: 24th April, 2003.

2005 P L C (C.S.) 240

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Muhammad Zubair Kidwai, Members

SARDAR AHMED SHAIKH

Versus

CHAIRMAN/FEDERAL SECRETARY MINISTRY OF COMMUNICATION AND RAILWAYS, ISLAMBAD and others

Appeal No. 211(K)CS of 2001, decided on 17th December, 2002.

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

‑‑‑‑Ss.3, 5 & 10‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Major penalty of compulsory retirement from service‑‑‑Penalty of compulsory retirement, was imposed on appellant without holding departmental inquiry against him and without granting him proper personal hearing—­Copy of enquiry proceedings conducted on charges leveled against appellant, was not given to him enabling him to know the reasons for repetition of the same charges in subsequent show‑cause notice while he was exonerated from said charges in the past‑‑‑No tangible and substantial reasons were recorded by Authority for dispensing with inquiry proceedings as stipulated in S.5(4) of Removal from Service (Special Powers) Ordinance, 2000‑‑‑Authority, in circumstances had grossly violated relevant provisions of law‑‑‑Impugned order was not an exhaustive and speaking order‑‑‑Authority had committed legal and procedural errors in disciplinary proceedings conducted against appellant in violation of consistent view that proceedings should be as per law, and free from legal lacuna so as to meet the ends of justice‑‑‑Order of compulsory retirement passed against appellant by the Authority, was set aside and he was ordered to be reinstated in service with effect from date of his ,compulsory retirement with direction to the Authority to initiate fresh disciplinary proceedings against him within specified period.

Manzoorul Haq Solangi for Appellant.

Raja Shams‑uz‑Zaman for Respondents.

Date of hearing 16th December, 2002.

2005 P L C (C.S.) 307

[Federal Service Tribunal]

Before Justice (R.) Amanullah Abbasi, Chairman and Nazar Muhammad Shaikh, Member

Dr. BASHIR AHMED

Versus

MANAGING DIRECTOR PAKISTAN INTERNATIONAL AIRLINES CORPORATION HEAD OFFICE KARACHI AIRPORT and 9 others

Appeal No.872(K)(CE) of 2000, decided on 27th March, 2004.

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.9‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Promotion‑‑­Entitlement‑‑‑Appeal to Service Tribunal‑‑‑Promotion though was not a vested right and allowing promotion or refusing same was the exclusive domain of Government or executive Authority, but Service Tribunal could intervene when substantial defect would be found in proceedings of Promotion Board‑‑‑In the present case Acting Chief Medical Officer was called to assist Promotion Board while conducting interview of Doctors for promotion, while no provision was found in the Departmental Regulations for Acting Chief Medical Officer to participate in Promotion Board‑‑‑Since appointment of Acting Chief Medical Officer, was disputed by some Doctors including appellant who was ignored for promotion, it was not prudent for the Management to allow Acting Chief Medical Officer to participate in proceedings of Promotion Board‑‑­Another infirmity in promotion proceedings was that only ten candidates were interviewed by Promotion Board as against fifteen required to be interviewed‑‑‑Appellant despite being senior was ignored for promotion while his juniors had been promoted; in view of such infirmities, irregularities and illegality proceedings of Promotion Board were set aside with direction to the Authorities to reconvene Promotion Board and to re‑consider candidates for promotion strictly in accordance with provisions of Departmental Personnel Manual.

Muhammad Nawaz Shaikh for Appellant.

Masood Ahmed Khan, for Respondents.

Date of hearing: 31st January, 2004.

2005 P L C (C.S.) 360

[Federal Service Tribunal]

Before Akbar M. Memon and Nazar Muhammad Shaikh, Members

Malik ABDUL RAUF

Versus

THE ENGINEER IN‑CHIEF, BRANCH GHQ, RAWALPINDI and others

Appeal No. 134(K)(C.S) of 2001, decided on 20th February, 2003.

Civil service‑‑‑

‑‑‑‑Selection Grade‑‑‑Grant of‑‑‑Civil servant was refused Selection Grade on the basis of non‑recommendation of his promotion in his ACR for the year 1995 vide letter issued on 18‑1‑2001‑‑‑Subsequently civil servant was promoted vide letter dated 24‑7‑2001 w.e.f. 23‑12‑1999‑‑­Civil servant having been promoted despite bar in his ACR, Authority was directed to consider his case in next meeting of Departmental Selection Committee within specified period in the light of promotion granted to him enabling him to get benefit of Selection Grade.

Sanaullah Noor Ghouri for Appellant.

Niaz A. Khan, Standing Counsel (Official) with Dr. Sarfaraz Ahmed Assistant XEN for (Private) Respondents.

Respondents Nos.5 to 10 called absent.

Date of hearing: 19th February, 2003.

2005 P L C (C.S.) 376

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

IMTIAZ AHMED

Versus

CENTRAL BOARD OF REVENUE and others

Appeal No.368(K)(CS) of 2003, decided on 20th September, 2004.

(a) Civil service‑‑‑

‑‑‑‑Adverse remarks in a training period for less than three months‑‑­Competency‑‑‑Equation of training report with ACR‑‑‑Training report could neither be equated with ACR nor could it be a part of ACR for the reasons that it was not to be countersigned by any Authority higher than the Reporting Officer; that such a report was not to be used for quantification; that it could be used for consideration of promotion of officer concerned i.e. it was discretion of Promotion Committee/Director to consider such a report or not; that training report unlike ACR, was not by any superior officer of the department of trainee officer and that training report had no concern with the, integrity, quality, quantity and output of work done by an officer during his official business‑‑‑Training report was more of report about the performance of an officer while under training rather than a report on conduct of such officer; it could not be said that adverse remarks in a training period for less than three months by a Reporting Officer, would be competent or incompetent.

1985 PLC (C.S.) 432 and 1996 PLC (C.S.) 635 ref.

(b) Civil service‑‑‑

‑‑‑‑Adverse remarks‑‑‑Delay in recording and communicating adverse remarks‑‑‑Effect‑‑‑Delay in recording and., communicating adverse remarks, could not, ipso facto, vitiate such remarks, provided remarks were, not tainted with malice, bias or hostility‑‑‑Unexplained inordinate delay, however, could adversely reflect on adverse remarks‑‑‑Where there was a delay of about two years in recording/communicating adverse remarks to civil servant and absolutely no explanation was forth‑coming from Reporting Officer for said extremely inordinate delay and allegedly there was altercation between Reporting Officer and the civil servant in view of circumstances, belated communication must reflect adversely on adverse remarks.

1995 SCMR 768; 1996 SCMR 256; 1999 SCMR 1587; PLD 1987 SC 271 and 2004 PLC (C.S.) 236 ref.

(c) Civil service‑‑‑

‑‑‑‑Adverse remarks‑‑‑Counselling before recording adverse remarks‑‑­Necessity‑‑‑Counselling before recording adverse remarks, was as important, as personal hearing in a case of adverse action against any officer.

(d) Civil service‑‑‑

‑‑‑Adverse remarks‑‑‑Expunction of adverse remarks‑‑‑Performance Evaluation Report, should be objective, based on some material and should not be personalized‑‑‑Analysis of adverse remarks against civil servant would show that it was a subjective assessment of civil servant which was not based on any objective material from which quality and output of work of civil servant had to be assessed by Reporting Officer‑‑­Remarks against civil servant to the effect "An ambitious officer who can ruthlessly pursue his objective" was a highly personalized remarks‑‑­What were the objectives which ambitious officer ruthlessly pursued, had not been specified‑‑‑Assessment of civil servant made by Reporting Officer was based on peer view‑‑‑Lingering, lasting distaste of alleged altercation between civil servant and Reporting Officer appeared to be reflected in personalized remarks against civil servant‑‑.Extraneous/belated adverse remarks against civil servant were remarks recorded by an indignant officer without counselling civil servant‑‑-Such remarks must not be, allowed to stand in the way of long unblemished career of civil servant for his promotion to higher 'stage‑‑‑Adverse remarks recorded against civil servant were expunged, accordingly.

M.M. Aqil Awan, for Appellant.

S.M. Iqbal Shah, for Respondent No. 1.

Asif Mangi, Standing Counsel for Respondents Nos.2 and 3 with Dr. Waheed Akhtar.

Date of hearing 11th September, 2004.

2005 P L C (C.S.) 417

[Federal Service Tribunal]

Before Justice (R.) Amanullah Abbasi, Chairman and Nazar Muhammad Shaikh, Member

GHULAM MUSTAFA KHAIRATI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and another

Appeal No. 1472(K) of 1998, decided on 16th February, 2004.

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

‑‑‑‑R.15‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A, 4 & 6‑‑­Termination of services‑‑‑Appeal‑‑‑Services of appellant, who was serving in respondent‑Bank as Senior Executive Vice‑President, were terminated on ground that he was involved in criminal charges and. F.I.R., was registered against him and that he was under arrest‑‑‑Services of appellants were terminated without providing him opportunity of personal hearing and without intimating charges/allegations against him‑‑‑Principle of "Master and Servant" was applied to the appellant while terminating his services without any charge‑sheet, show‑cause notice or personal hearing‑‑‑Appellant's termination was because of his arrest in pursuance of F.I.R. which had been quashed by High Court‑‑­Termination of appellant was effected in undue haste and without ascertaining the correct facts which culminated in arrest of appellant‑‑­Respondent‑Bank should have exercised prudence and investigates circumstances which led to arrest of accused and that was all the more necessary as it was admitted on part of respondent‑Bank that Bank had not initiated any, criminal proceedings against appellant nor there was anything adverse against the appellant‑‑‑Under such situation it was incumbent upon respondent‑Bank to go slow on terminating services of appellant‑‑‑Stand taken by respondent‑Bank that services of appellant were not terminated by way of punishment, but had been terminated on basis ‑Master and Servant" relationship, was a shift in its position of and such fluctuation in respondent's stance did not impart credibility to its action against appellant‑‑‑Delay in filing appeal before Service Tribunal was condoned in circumstances of case‑‑‑Circumstances in which appellant was involved in false criminal charges and was subjected to degradation of arrest in F.I.R. which was quashed had proved that appellant was made a victim of a conspiracy and vengeance of a private complainant which made appellant to undergo mental agony and torture‑‑‑Accepting appeal, order terminating services of appellant, was set aside and he was directed to be reinstated in service with all full monetary and other consequential benefits.

PLD 1987 SC 303; Anisa Rehman's case 1994 SCMR 2232; PLD 2000 SC 1828; Salim Mustafa Shaikh v. S.S.G.C. OLD 2001 SC 176; PLC 2002 (C.S.) 526; PLD 2000 Kar. 128; PLD 1974 Kar. 373 2001 IPLC (C.S.) 316; AIR 1957 SC 38; 1999 PLC 508; Muhammad Ramzan v. National Motors 1980 PLC 780; Fazal Dad v. Attock Electric Company 1997 PLC (C.S.) 364; Zeba Mumtaz's case 1999 PLD SC 1106; PLD 1976 SC 195; PLD 2002 SC 101; 2001 SCMR 1227; 2001 SCMR 1561; PLD 2001 SC 514; Adrian Afzal v. Sher Afzal PLD 1969 SC 187; PLD 1984 SC 194; 1981 SCMR 224; Raziuddin's case PLD 1992 SC 531; 2001 PLC (C.S.) 346; 2002 PLC (C.S.) 1050; PLD 2001 SC 176; PLD 19.93 SC 563; Sui Gas Employee's case 2003 PLC (C.S) 796; Abdul Hafeez Abbai's case 2002 SCMR 1034; 2004 SCMR 146; Muhammad Yaqub v. Pakistan Petroleum Limited and another 2000 SCMR 830; Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD .2001 SC 980; Teekam Das M. Haseja, Executive Engineer, WAPDA 2002 SCMR 142; WAPDA v. Muhammad Khalid 1991 SCMR 1765; Syed Ali Hasan Rizvi. 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; Sher Bahadur v. Government N.‑W.F.P. 1990 SCMR'1519 and 2903 PLC (C.S.) 488 ref.

(b) Master and Servant‑‑‑

‑‑‑‑ Principle of "Master and Servant" relationship was absolutely below the human dignity and could not be sustainable‑‑‑Pleadings on basis of "Master and Servant." relationship should be discarded by litigants as said principle insulted the decency of human being.

Muhammad Ashraf v. D.G. Multan Development Authority 2000 PLC (C.S) 796; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and PLD 1994 SC 72 and Sui Gas Employees' case 2003 PLC (C.S.) 796 ref.

Abdul Ghaffor Mangi for Appellant.

Shahid Anwer Bajwa for Respondents.

Date of hearing: 31st January, 2004.

2005 P L C (C.S.) 435

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

MUHAMMAD BUX and 2 others

Versus

D.E. TELEGRAPH, NAWABSHAH

Appeals Nos.984, 985 and 986 (K) of 1998 decided on 23rd January 2003.

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

‑‑‑‑S.2(b)‑‑‑‑Permanent workman‑‑‑Appellants were allegedly appointed as temporary and had worked as such for more than 3 years‑‑­Such employees could not be called as "temporary employees".

2002 PLC (C.S.) 887 and 1996 SCMR 314 ref.

(b) Pakistan Telecommunication Corporation Act (XVIII of 1991)‑‑‑

‑‑‑‑S.8‑‑‑Permanent workman‑‑‑Lineman‑‑‑Nature of work of a lineman was continuous one and without any break‑‑‑Status of such employee was that of permanent.

(c) West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑

‑‑‑‑S.O. 12(3)‑‑‑Pakistan Telecommunication Corporation Act (XVIII of 1991), S.8‑‑‑Linemen of Telecommunication Corporation in the present case were terminated by oral order‑‑‑Contention was that linemen were temporary employees therefore, their oral termination was quite legal‑‑­Validity‑‑‑Standing Order 12(3) clearly made a mention that while terminating the service of such employees explicit reasons should be given in writing‑‑‑Termination order without any reason was set aside in circumstances.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Grievance petition‑ ‑‑Departmental appeal‑‑‑Appellants, immediately on oral termination served grievance notices upon the respondent‑‑‑When nothing was heard from the respondent, appellant filed grievance petitions before Labour Court, where the petitions were abated on account of insertion of section 2‑A, Service Tribunals Act, 1973‑‑­Appellants, thereafter filed appeals before Service Tribunal‑Objection was that the appellants had not filed any Departmental appeal before filing of grievance petitions‑‑‑Validity‑‑‑Appellants in circumstances, had in fact not filed their. Departmental appeals.

(e) Pakistan Telecommunication Corporation Act (XVIII of 1991)‑‑‑

‑‑‑‑S.8(3)‑‑‑Natural justice, principle of-‑‑Oral termination‑‑‑Validity‑‑­Proviso to subsection (3) of section 8 of Pakistan Telecommunication Corporation Act, 1991, provided that affected persons should be given an opportunity of being heard before taking of any action against an employee‑‑‑In the present case no such opportunity was afforded before passing termination order‑‑‑‑Termination order was set aside.

(f) Civil Service‑‑‑

‑‑‑‑Termination‑‑‑Natural justice, principle of ‑‑‑ Appecability ‑‑‑ Services of appellants were terminated orally without any show‑cause notice or affording any chance of personal hearing‑‑‑Validity‑‑‑Such action of respondent was nothing but colorable exercise of powers‑‑‑Once appointments had been made, plea could not be taken that the appointments were made during ban period or that the appointments were made on stop‑gap arrangements‑‑‑Appeals were allowed and the appellants were reinstated in service in the same position from which they were terminated with continuity of service without back‑benefits, as the same had not been claimed.

M.L. Shahani for Appellants.

Abdul Majeed for Respondent.

Date of hearing: 10th December, 2002.

2005 P L C (C. S.) 440

[Federal Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

ABDUL HAMEED

Versus

SECRETARY ZAKAT AND USHR DEPARTMENT, GOVERNMENT PUNJAB and another

Appeal No.2566 of 2003, decided on 4th May, 2004.

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

‑‑‑‑S.9‑‑-Service Tribunals Act (LXX of 1973), S.4‑‑‑Pro forma promotion‑‑‑Entitlement‑‑‑Appeal to Service Tribunal‑‑‑Employee, despite being senior to three co‑employees according to seniority list was not considered for pro forma promotion on regular basis whereas three junior employees were considered and granted pro forma promotion as a result of nepotism‑‑‑Chief Administrator of Department had strongly recommended promotion of employee with the remarks that employee was an extremely honest and hardworking person with qualities of head and heart‑‑‑Nothing was on record against employee and case of employee according to old policy of pro forma promotion was on a much better‑footing than any of the contingencies enumerated in old policy‑‑­Department had admitted more than once that employee was the senior most out of said three incumbents who were given promotion‑‑­Employee, in circumstances was entitled to pro forma promotion from date when his juniors were promoted‑‑‑Employee was allowed pro forma promotion and was also given complete financial benefits from date of his promotion till date of his retirement and further pensionary benefits would also be increased accordingly.

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

‑‑‑‑Ss.7(2) & 8‑‑‑Punjab Service Tribunals Act (IX of 1974), Ss.4 & 5‑‑­Seniority‑‑Effective date of‑‑‑Promotion‑‑‑Grant of‑‑‑Powers of Service Tribunals‑‑‑Seniority would take effect in a post, service or cadre' to which a civil servant was promoted from date of regular appointment to that post as ordained by S.7(2) of Punjab Civil Servants Act, 1974-‑-Promotion was always granted on the basis of seniority‑cum‑fitness formula‑‑‑Service Tribunal could not have jurisdiction to question the decision of Departmental Authority determining the fitness of a person to be promoted, but certainly had the competence to question the legality of an order where eligibility of a civil servant for consideration for promotion was ignored and when juniors to the aggrieved civil servant were promoted‑‑‑Tribunal would further step in and direct for enforcement of legal right of such civil servant.

Muhammad Rahim Khan v. The Chief Secretary, N.W.F.P. and four others, reported in 1999 SCMR 1605 ref.

Ch. Masood Ahmad for Appellant.

Khadim Hussain Sindhu, District Attorney Fakhar Iqbal Ahmad Sheikh, Assistant Secretary Zakat and Ushr Department, Departmental Representative for Respondents.

Date of hearing: 28th April, 2004.

2005 P L C (C.S.) 458

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

Syed AMJAD ALI SAQIB

Versus

NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION and another

Appeal No. 161/(K)(CS) of 2000, decided on 1st September, 2004.

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

‑‑-Rr. 3, 4(1)(a)(ii), 5 & 6‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Penalty of stoppage of one increment for one year‑‑‑Penalty was imposed upon appellant after charge‑sheeting him and holding inquiry against him on charges that he, committed acts of omission and commission, which amounted to inefficiency and misconduct‑‑‑Further allegation was that appellant had fragmentarily violated the provisions of R.157(1)(2) of Federal Treasury Rules; Vol‑I and other financial Regulations‑‑‑Act of appellant in opening cross cheques unauthorisedly, was not‑so, innocuous action or a mere faux pits as it appeared to be, but it was deliberate and conscious act of violation of established practice of the institute and it was not a question of violation of said law but act, of appellant itself amounted to misconduct being conduct prejudicial to good order of service and discipline and also an act unbecoming of an officer and a prudent gentleman.‑‑In opening cross‑ehpques, though there was no mala fides on the part of appellant, but, it could not be said that action of appellant was bona fide as nothing would be deemed to be done in good faith which was not done with due care, attention and caution‑‑‑Appellant did not seem to have acted with due care, caution and attention in resorting to opening the cheques‑‑‑Outer imposing penalty upon appellant, could not be interfered with.‑‑Appeal filed by appellant, was dismissed, in circumstances.

Munawar Hussain, for Appellant.

Asif Mangi Standing Counsel for Respondents.

Date of hearing: 7th May, 2004.

2005 P L C (C.S.) 474

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Hasan Raza Pasha, Members

MUHAMMAD IDRIS KHAN

versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS and others

Appeal No.259(K)CS of 2001, decided on 3rd August, 2004.

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

----Ss.2(b) & 3---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service on account of inefficiency and misconduct---Major penalty of dismissal from service was awarded to appellant on allegation of inefficiency and misconduct---Show-cause notice was issued to appellant by competent Authority and personal hearing was also given to him---Major penalty of dismissal from service was awarded to appellant by competent Authority---Plea of appellant that said official being a contract employee was not competent to act as such had no force---Allegation on basis of which major penalty of dismissal from service was imposed on appellant having fully been proved, appellant was rightly dismissed from service by competent Authority.

Appellant in Person.

M. Ishaq Khan for Respondents.

Date of hearing: 8th June, 2004.

2005 P L C (C.S.) 486

[Federal Service Tribunal]

Before Justice (R) Amanullah Abbasi, Chairman and Akbar M. Memon, Member

MUHAMMAD SALEEM KHAN

versus

THE CHAIRMAN RAILWAY BOARD and 5 others

Appeal No.377(K)(CS) of 2001, decided on 19th May, 2003.

Railway Servants (Efficiency and Discipline) Rules, 1975---

----Rr.3, 4(1)(b)(iii), (5) & (6)---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Major penalty of removal from service was imposed on appellant on complaint of a passenger who alleged that appellant despite receiving amount for reservation of seat in train, did not issue any reservation ticket to him and that appellant had misbehaved with the complainant---Appellant was proceeded against ex parte as he was not given opportunity to explain as to why drastic action should not be taken against him and enquiry had not been conducted in presence of complainant---Complainant had made a candid statement in his letter supported by his affidavit to the effect to Competent Authority that he had lodged his complaint against somebody else and not against the appellant---Appellant, in circumstances had wrongly been held guilty of offence which was not committed by him---Order of removal from service passed against the appellant was set aside and he was directed to be reinstated in same position from which he was removed from service with all back benefits.

Government of Pakistan through Secretary Establishment v. Bashir Ahmed Khan PLD 1985 (SC) 309 ref.

Laeeq A. Jafri for Appellant.

Muhammad Asghar for Respondents.

Date of hearing: 10th May, 2003.

2005 P L C (C.S.) 571

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

MUHAMMAD SARWAR

versus

CHAIRMAN WAPDA and others

Appeal No.1487-L of 1999, decided on 2nd November, 2002.

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

----Rr. 4(1)(b)(iii), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S. 4---Removal from service---Appeal---Appellant was removed from service after charge-sheeting him on allegations of misappropriation of Transformers and misbehaving with a superior officer---Appellant in two criminal cases registered against him for misappropriation or stealing had been discharged by police and a report of Sub-Divisional Officer endorsing police version was on record---Charge of stealing or misappropriation of Transformers, in circumstances, had not been proved against appellant---Charge of stealing/misappropriation of Transformers required detailed inquiry, but no such inquiry was held against him---Appellant could not be held guilty of stealing/misappropriation of Transformers and he could not be given any penalty for charge which was not proved---Charge of misbehaviour with senior officer, was proved against appellant---No inquiry on that charge was required---Competent Authority had correctly held appellant liable for action as he had misbehaved with his senior officer---Since charge of theft/misappropriation was not proved, appellant could not be punished on that charge---As regards charge of misbehaviour though said charge was proved against appellant, but penalty of removal from service imposed upon him on said charge was disproportionate to misconduct committed by him---Removal from service on charge of misbehaviour was a harsh punishment and could not be sustained, but that was not a general rule, every case had to be decided on its own merits/demerits---If misbehaviour was very grievous and heinous, then official at fault could even be dismissed from service---Alleged misbehaviour had not been described; it could therefore be inferred, in circumstances that conduct of appellant was not that which could attract punishment of removal from service---Appeal was partially accepted---Order of removal from service was set aside and instead two annual increments of appellant would be stopped for a period of two years---Appellant was reinstated without back-benefits.

Ch. Riaz Ahmad for Appellant.

Muhammad Iqbal Khokhar for Respondents.

Date of hearing: 2nd November, 2002.

2005 P L C (C.S.) 590

[Federal Service Tribunal]

Before Nazar Mohammad Shaikh and Qazi Muhammad Hussain Siddiqui, Members.

AURANGZAIB TAJ and others

versus

MANAGING DIRECTOR, SINDH ENGINEERING (PVT.) LTD., KARACHI

Appeals Nos.1910(K) to 1917(K); 1919(K) and 1920(K) of 1999, decided on 5th November, 2004.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---Retrenchment/termination of service---Appeal---Limitation---Appellant who initially was appointed as helper in the organization, was promoted as Mechanic---Subsequently his services having been terminated by way of retrenchment, he filed grievance petition against order of his retrenchment which was dismissed by Labour Court---Appeal by appellant against order of Labour Court was also dismissed by Labour Appellate Tribunal---Appellant thereafter filed Constitutional petition before High Court---During pendency of Constitutional petition, Service Tribunals Act, 1973 was amended and S. 2-A was inserted in the said Act bringing all employees of Government controlled/owned Corporations and autonomous bodies within the ambit of Service Tribunals’ jurisdiction in terms of Art. 212 of Constitution---Constitutional petition on account of said amendment was declared as having abated by High Court on 23-10-1998 and appellant approached Service Tribunal through the present appeal which was filed on 28-11-1998---Cause of filing present appeal arose on 10-6-1997 when Service Tribunals Act, 1973 was amended and S. 2-A was inserted therein---Section 6 of Service Tribunals Act, 1973 had provided period of 90 days for filing appeal before Service Tribunal in all pending cases before various Courts, after the amendment in Service Tribunals Act, 1973 abatement of Constitutional petition filed by appellant before High Court was automatic and no order was required to be passed in the pending proceedings---Even when abatement order was passed by High Court, appeal was not filed by appellant before Service Tribunal immediately after that date but was filed after more than 35 days from order of abatement, without filing application for condonation of delay---Appellant had been retrenched strictly in accordance with seniority list wherein he was junior---Appellant in circumstances had rightly been retrenched in accordance with principle of “last in first out”---Service Tribunal was competent to hear appeal, but it was dismissed on merits and on ground of limitation.

1997 SCMR 1128; 1980 SCMR 443; 2001 SCMR 328; PLD 2003 SC 90; 2002 PLC (C.S.) 18 ref.

Nishat Warsi for Appellants.

Latif Saghar for Respondent.

Date of hearing: 5th October, 2004.

2005 P L C (C.S.) 604

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members.

SAJID BASHIR

versus

CIVIL AVIATION AUTHORITY through Chairman

Appeal No. 1467(L) of 1999, decided on 11th September, 2004.

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

----S. 4(1)(b)---Adverse remarks---Appeal---Maintainability of---Adverse remarks recorded in ACR by General Manager, Legal and countersigned by Director General, were challenged by appellant alleging that said adverse remarks were based on motive of the Reporting Officer as appellant had challenged the very appointment of said person as Director Legal by a Constitutional petition---Appellant had also alleged that Countersigning Officer had not applied his independent judicial mind while countersigning the said remarks---Appeal was resisted by Authorities on ground that it was not maintainable under S. 4(b) of Service Tribunals Act, 1973---Validity---Objection of Authorities was misconceived as the appeal was not against order or decision of a Departmental Authority determining the fitness or otherwise of appellant for promotion, but was against adverse remarks recorded in ACR by a reporting officer and countersigned by Countersigning Officer---Appeal against adverse remarks to Service Tribunal was not barred---Reporting Officer was always expected to be stable, fair, impartial and free of bias and malice, but the date recorded by Reporting Officer did not show that he was behaving normally---Adverse remarks had been recorded by Reporting Officer against whom appellant had filed Constitutional petition challenging his very appointment on his post---Report against appellant, in circumstances had been recorded by a person who was biased---Countersigning Officer in his report having written “agree with I.O.” in circumstances had made report in mechanical manner without applying his mind---Countersigning Officer was required to give some reasons for agreeing with Reporting Officer, particularly when it was in his knowledge that appellant had filed Constitutional petition against the Reporting Officer---Even otherwise when appellant was given “high average” report then why he was not found fit for promotion---Adverse entries made in ACR of appellant were liable to be expunged on basis of said admission made by the Authorities that appellant was given high average report.

1999 SCMR 197 ref.

(b) Administration of justice---

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

Hafiz Tariq Nasim for Appellant.

Taffazul H. Rizvi Counsel for Respondent.

Date of hearing: 11th September, 2004.

2005 P L C (C.S.) 614

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman and Rashid Ali Mirza, Member

Syed SHAH SAWAR and others

versus

KARACHI ELECTRIC SUPPLY CORPORATION LIMITED and others

Appeals Nos.583, 584, 606 and 607(K)(CE) of 2000, decided on 18th November, 2004.

Karachi Electric Supply Corporation Disciplinary Rules, 1995---

----Clause 14(b)(d)---Sindh Service Tribunals Act (XV of 1973), S.4---Removal from service---Appeal---Appellants were removed from service after issuing them show-cause notice and holding inquiry against them on allegations of fraud, dishonesty, corruption and gross-misconduct etc.---Accused were not found guilty in first inquiry and were absolved of charges by Inquiry Officer in his report---Despite close of matter on inquiry, appellants were again proceeded departmentally which was clear act of victimization and based on mala fide---Since first inquiry was a regular inquiry, no justification was for holding second inquiry which otherwise was conducted by same Inquiry Officer---Findings recorded in second inquiry were based on mere conjectures and surmises---Not a single piece of evidence had been relied upon while recording the purported findings---Appellants neither were supplied the copy of Enquiry Report nor any final show-cause notice was issued to them nor they were given personal hearing; which was mandatory requirements of law---Penalty of removal from service imposed on appellants, was not justified, in circumstances---Impugned order was set aside and Authorities were directed to reinstate appellants in service with all back-benefits.

AIR 1986 (SC) 995; 2000 SCMR 1743; 1987 SCMR 602; 2002 SCMR 872; 2002 PLC (C.S.) 136; 1985 PLC (C.S.) 279; 1987 SCMR 1562; 2003 SCMR 1126; 1996 SCMR 201; PLD 1994 SC 275; 2004 PLC (C.S.) 1615 and 2004 PLC (C.S.) 1591 ref.

Ch. Rashid Ahmed, for Appellants.

Muhammad Nadeem Junior of Sohail H. K. Rana for Respondents.

Date of hearing: 8th November, 2004.

2005 P L C (C.S.) 845

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ZAFAR REHMAN

Versus

MEMBER (POWER), WAPDA, LAHORE and others

Appeal No. 778(L)(C.S.) of 2003, decided on 7th October, 2004.

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

‑‑‑‑R. 4(1)(b)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Termination of services‑‑‑Appeal‑‑‑Appellant was appointed against the post of Survey Helper on basis of being player of Basket Ball‑‑‑Services of appellant were terminated on ground that he remained absent from duty for more than five years‑‑‑Appellant had claimed that as he had played some Basket Ball matches during alleged period of his absence, it could not be said that he had remained absent from duty‑‑‑Validity‑‑‑Appellant had not placed any documentary evidence to show that during alleged period of his absence from duty he had played any Basket Ball match, but had made only generalized statement in that respect‑‑‑On such vague assertion by appellant, it could not be believed that he had remained present on duty during said period by playing some matches‑‑‑Appellant had conceded that he had never performed duty as Survey Helper during period he was found to be absent from duty‑--Authorities, in circumstances were legally justified to pass impugned order against appellant on account of his wilful absence from duty without any permission‑‑‑Authorities had passed a legal and valid order by which they had refused to treat appellant to be their employee entitled to salary‑‑‑Appeal being meritless, was dismissed, in circumstances.

PLD 1990 SC 666 and 2001 SCJ 130 ref.

Ch. M. Ikram Zahid, for petitioner.

Ch. Rahim‑ud‑Din, for Respondents.

Date of hearing: 7th October, 2004.

2005 P L C (C.S.) 934

[Federal Service Tribunal]

Before Qazi Mohammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD NAEEM and others

Versus

CHAIRMAN, PAKISTAN TELECOMMINICATION COMPANY LTD. and others

Appeal Nos. 358, 359, 409 to 418, 438 to 440, 449 and 452(K)(C) of 2002, decided on 22nd December, 2004.

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

----S. 9---Service Tribunals Act (LXX of 1973), S. 4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant along with other appellants was aggrieved by Notification whereby respondent who were juniors to him were promoted as Assistant Divisional Engineers---Appellant being senior most official, his name was placed at Serial No.28 of seniority list of BPS-1 to BPS-15 and despite that he was not considered for promotion in the first instance as Assistant Engineer and also was denied status and pay of post of Assistant Divisional Engineer (BPS-17) at the relevant time---Private respondents were all junior, but had been promoted as Assistant Engineer and allowed status of Assistant Divisional Engineer (BPS-17)---Appellant, in circumstances had been harmed in the matter of his promotion under 5% reserved quota on basis of equal qualification-Appellant had totally been discriminated against on both counts i.e. 5% as well as 75% quota---Authorities had made a wrong approach whereby they had promoted juniors to exclusion of appellant who was in fact senior to them in all respects---Appeal was accepted with direction that Authorities should prepare final seniority list and to place cases of appellants before D.P.C. and promote appellant from the date from which his juniors had been promoted with all legal benefits.

Munib Ahmed Khan for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 4th December, 2004.

2005 P L C (C.S.) 982

[Federal Service Tribunal Islamabad]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members.

S. JAWED SHARIF

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Managing Director

Appeal No.2458(K) of 1997, decided on 4th December, 2004.

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

------S.4-Karachi Electric Supply Corporation (Conditions of Service) Rules, R.14(b)(c) & (m)---Dismissal from service---Appeal---Appellant was dismissed from service after holding inquiry against him on allegation of misconduct---Disputed "Yellow Page" which was a crucial document against which Electric Meters were allegedly issued by appellant, was not produced by the Authority despite directions were issued in that respect---Appellant suggested that further inquiry be held into the matter of production/filing of said yellow page--Authorities who initially disagreed to proposal of appellant, subsequently agreed to such proposal---Said Yellow Page being crucial document for determination of the guilt or otherwise of appellant about issuing the Meters as alleged by Authorities, to resolve such controversy case was remanded to Authorities for de novo disciplinary inquiry in the matter with special reference to controversy about said Yellow Page---Appellate Tribunal accepting appeal set aside impugned order of dismissal of appellant from service and ordered his re-instatement in service from the date of his dismissal.

Gohar Iqbal, for Appellant.

Abdul Saeed Khan Ghori for Respondent.

Date of hearing: 4th December, 2004.

2005 P L C (C.S.) 1171

[Federal Service Tribunal]

Before Justice (R) Amanullah Abbasi, Chairman and Nazar Muhammad Shaikh, Member

SAEED KHAN MOBEJO

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LIMITED through Chairman and others

Appeal Nos.1878 and 1879(K) of 1998, decided on 8th March, 2004.

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

----Ss. 3-A & 4---Benches of Tribunal-Powers of---Appeal to Tribunal---Provisions of S.3-A of Service Tribunals Act, 1973 had clearly stipulated that all types of cases would be heard by a Bench comprising at least two members which could include the Chairman---Bench of at least two members of Tribunal could hear all types of cases---Contention that since appellant's case involved question of major penalty i.e. dismissal from service, it was required to be heard by a Bench of Tribunal consisting of Chairman and two members, was not correct.

1981 SCMR 402 ref.

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

----Ss. 2-A & 4---Master and Servant, principle of---Applicability---Appeal to Service Tribunal---Authority had contended that it being a Private Limited Company was governed under Companies Ordinance, 1984 and thus was governed by principle of Master and Servant---Contention was repelled as with insertion of S.2-A in Service Tribunals Act, 1973, all employees of Corporation, and autonomous bodies where Government held majority shares or control, the organization would be deemed to be of the civil servants for the purpose of their service matters and Service Tribunal had exclusive jurisdiction under provisions of Service Tribunals Act, 1973 read with Art. 212 of the Constitution to deal with service matters of employees---Fact that Organization was a limited company under Companies Ordinance, 1984 would not confer on its functionaries unfettered powers over its employees and govern them on principle of master and servant relationship---Concept of such relation did not enjoy Constitutional backing or any other law including Islamic tenets---Principle of `Master and Servant' being absolutely below human dignity, would not be maintained.

Muhammad Ashraf v. Director General Multan Development Authority 2000 PLC (C.S.) 796; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Sui Gas Employees's case 2003 PLC (C.S) 796 ref.

(c) Trading Corporation of Pakistan Employees (Efficiency and Discipline) Rules, 1975--------

----R. 4---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal against---Appellant was dismissed from service after charge-sheeting him and holding inquiry against him on certain allegations of irregularities, misconduct and exceeding his powers---Inquiry Committee went into the details of allegations and held appellant guilty of said allegations---Appellant's boycott of inquiry proceedings, would not lend credence to his pleas of innocence---Plea of appellant that Authority's actions were illegal as the functionary of the Authority had not been notified formally as Chairman of the organization, and that he was only asked to look after the charge of the organisation, could not be accepted; as it was far-fetched notion to believe that any official assigned to look after a post could not exercise full authority as without such power, assigned duty could not be performed effectively---Appeal, otherwise being barred by time, was liable to be dismissed.

1989 PLC (C.S.) 307; 1989 PLC (C.S.) 310; 1993 PLC 153; 1989 .PLC (C.S.) 61; 1994 PLC (C.S.) 477; 1994 PLC (C.S.) 480; 2000 PLC (C.S.) 1246; 2000 PLC (C.S.) 1252; 1981 SCMR 402; PLD 1999 Lah. 76; UBL v. Shamim Ahmad Khan PLD 1999 SC 990; PLD 1981 SC 224; Ahsan Akhtar v. UBL in 1988 SCMR 68; 1982 SCMR 582; PLD 1990 SC 692; 1994 SCMR 227; 1995 CLC 461; 1974 SCMR 223; 1983 CLC 1763; 1988 SCMR 1354; PLD 1995 SC 396; 2001 SCMR 1227; 1990 SCMR 1471; 1985 SCMR 1649; 1988 SCMR 1247; 2000 SCMR 753 and PLD 2000 SC 13 ref.

Muhammad Iqbal Chaudhry for Appellant.

Mamnoon Hasan for Respondents.

Date of hearing: 28th January, 2004.

2005 P L C (C.S.) 1225

[Federal Service Tribunal, Islamabad]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD YOUSUF KHAN

Versus

P.I.A. INSTITUTE OF PLANETARIA ASTRONOMY AND COSMOLOGY, KARACHI AIRPORT, through General Manager and others

Appeal No.426(K)(CE) of 2001, decided on 14th December, 2004.

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

----Ss. 3, 4 & 10---Service Tribunals Act (LXX of 1973), S. 4---Removal from service---Appeal---Appellant while on duty, was arrested in a murder case and after five years he was acquitted by Court of competent jurisdiction---After release from jail, appellant approached the Authorities vide his application for allowing him to join his duty, but he was not allowed to do so---Since appellant was arrested while he was on duty and that fact was within the knowledge of Authorities, no action could have been taken against appellant without issuance of notice to him, but no show-cause notice was issued to appellant and he was simply not allowed to join his duty on the ground that it was not possible to allow appellant to join his duty after an interval of five years---Nothing was on record to show that during five years' absence of appellant Authorities had taken any action against him---Proper course for Authorities was to have allowed appellant to join his duties and then Authorities should have issued a show-cause notice to him for taking any disciplinary action against him, either suspending him under S. 4 of removal from Service (Special Powers) Ordinance, 2000 or even not suspending him---Authorities should have also decided whether any inquiry into the matter was to be held or not---No such show-cause notice was issued to appellant and no formal letter of terminating his service was issued to him----Issuance of show-cause notice was mandatory before taking any action against appellant---Allowing appeal impugned order was set aside and case was remanded to the authorities for taking appropriate action in the matter in accordance with law.

PLD 2004 SC 385; 1982 PLC (C.S.) 172; 1996 SCMR 315; 1992 MLD 1280; 1994 SCMR 1608; 1992 PLC 657; 1994 PLC (C.S.) 755; 1999 PLC (C.S.) 25; 2003 PLC (C.S.) 167; 2001 SCMR 789=2001 PLC (C.S.) 725 and 1989 PLC 32 ref.

Obaidullah G. Awan for Appellant.

Masood A. Khan for Respondents.

Date of hearing: 23rd November, 2004.

2005 P L C (C.S.) 1282

[Federal Service Tribunal Islamabad]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members.

AZHAR RASHEED KHAN

Versus

CHIEF EXECUTIVE AND PRIME MINISTER OF PAKISTAN and another

Appeal No.265(K)(C.S.) of 2003, decided on 25th April, 2005.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S. 4---Demotion---Appeal---Appellant was demoted from the post of Superintendent of Police BPS-18 to post of Assistant Superintendent of Police (BPS-17) for a period of three years on allegation that he disobeyed order of his transfer from one Province to another---Appellant did not relinquish charge despite repeated directions of the Authority---Disobeying wilfully repeated directions of the Authority to relinquish the charge, amounted to misconduct---Appellant admittedly having not relinquished charge despite repeated written directions to him, holding of inquiry against appellant was not necessary---Appellant was not provided opportunity of personal hearing---Personal hearing though was almost mandatory whether it had been provided in the statute or not, but in exceptional cases, objection about personal hearing had not been considered to have vitiated disciplinary proceedings against accused civil servant---Allegations of disobedience of lawful orders of Authority against appellant had been proved on the face of record; and personal hearing had not been provided in Removal from Service (Special Powers) Ordinance, 2000 and it was also not sought by the appellant---Appellant having not been prejudiced in any way on that account, plea of appellant that he was not provided personal hearing, could not help him in his defence---Second show-cause notice to appellant was necessary only after holding a regular inquiry under S.3(1)(2) of Removal from Service (Special Powers) Ordinance, 2000---Appellant was rightly held guilty of misconduct by Authorities, but in facts and circumstances of the case, major penalty of demotion awarded to appellant was quite harsh---Penalty of demotion from BS-18 to BS-17, was converted to penalty of withholding of increments for 3 years.

PLD 1994 SC 222; 2004 PLC (C.S.) 1444; 1999 SCMR 1236 and 2004 PLC (C.S.) 799 ref.

M.M. Aqil Awan, for Appellant.

Asif Mangi, Standing Counsel and Dr. Mehboob Alam, S.O. Establishment Division.

Date of hearing: 21st April, 2005.

2005 P L C (C.S.) 1291

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ZULFIQAR ALI KHAN

Versus

CHAIRMAN, PAKISTAN TELECOMUNICATION COMPANY LTD. ISLAMABAD and another

Appeal No.1132(L)(S)/2000, heard on 16th September, 2004.

Civil Servants Act (LXXI of 1973)---

----S. 5---Service Tribunals Act (LXX of 1973), S. 4---Appointment---Appeal to Service Tribunal---Appellant was aggrieved by order of Authority whereby his very appointment was denied alleging that said appointment was obtained by appellant through bogus and fabricated documents---Validity---Plenty of documents were on record to show that a formal appointment order had been issued in favour of appellant and in obedience to that order, appellant had joined the duty---Appellant was transferred from one place of working to another and on his request he was re-transferred to original place of working---In addition to duties of appellant he was selected for Inter-Zone Cricket Championship and order in that regard was duly passed---Appellant had been allowed annual increments and his pay was fixed from time to time and selection grade was granted to him---Name of appellant was entered in seniority list and a Service Book in his favour was also prepared by the Authority---Overwhelming evidence on record showing transfer of appellant from time to time and granting increments in addition to Selection grade, had entitled appellant to at least a show-cause notice before impugned order was passed against him, but he was condemned unheard---Appellant also had not been given an opportunity to explain his status as a lawful employee of the Authority---Since formalities were not observed by the Authority in issuing show-cause notice to appellant and granting him an opportunity to defend himself, principles of "natural justice" and "fair play" had been violated by it---Impugned order of Authority could not be maintained---Service Tribunal accepting appeal, set aside impugned order and appellant was reinstated in service.

Ch. Muhammad Ikram Zahid, for Appellant. Respondent: Ex parte.

Date of hearing: 16th September, 2004.

2005 P L C (C.S.) 1384

[Federal Service Tribunal]

Before: Nazar Muhammad Shaikh and

Abdul Rashid Baloch, Members.

Syed MUZAMMIL HUSSAIN and 2 others

versus

CENTRAL DIRECTORATE OF NATIONAL SAVINGS (CDNS) and others

Appeals Nos.294 to 296 (K)(CS)/2002, decided on 3rd August, 2004.

Removal from Service (Special Powers) Ordinance (XVI1 of 2000)---

---Ss. 3, 5, 6 & 10---Removal from service---Appeal---Major penalty of removal from service, was imposed on appellant after issuing him show-cause notice and holding inquiry against him on allegation that Incharge of National Saving Centre concerned had committed fraud of huge amount with connivance of appellant---Appellant had contended that he was not responsible for the cuttings, over-writings and alterations in question forming basis of commission of embezzlement of amount in question by main accused---Authority did not appoint any person as Authorized Officer in the case which was contravention of relevant law--Imposifion of major penalty of removal of appellant, from service, suffered from irregularity, in circumstances---Inquiry in the case had been conducted in the form of question answer, which could not be approved---Punishment imposed upon appellant on basis of said inquiry, could hardly be maintainable in the eye of law---Statements of witnesses in the case were not obtained under pressure or coercion---Appellant was also charged with concealment of facts relating to commission of fraud by main accused as he failed to inform the Administration or higher Authorities---Plea of appellant was that he did not know about the act of main accused and that' he being his subordinate, it was not possible for him to report against his boss---Fault of appellant, in circumstances would at the most be termed as `negligence', for which a minor penalty would suffice---Appellant had more than 20 years clean record of service---Major penalty of removal from service imposed on appellant, was modified and was converted into minor penalty of stoppage of three increments for three years without cumulative effect.

1999 PLC (CS) 1187; 1994 PLC (CS) 477; 1995 PLC (CS) 32; 1995 PLC (C.S.) 116; 1977 PLC (CS) 657; PLD 1980(SC) 22, 1981 PLC (CS) 277; 1981 PLC (C.S.) 825; 1982 PLC (CS) 249; 1983 PLC (CS) 171; 1986 SCMR 30; PLD 1965 Lah. 279; 1984 PLC (CS) 1397; 1986 PLC (CS) 253; 1986 PLC (C.S.) 308; 2000 PLC (CS) 1285; 1997 ' SCMR 1581; 1988 SCMR 691; SCMR 857; 1996 SCMR 802; 1993 SCMR 1440; 1993 PLC (CS) 1140; 2000 PLC (CS) 857 and 2001 TD (Service) 361 ref.

Sanaullah Noor Ghauri, for Petitioner. Asir Mangi for Respondent.

Date of hearing: 25th February, 2004.

2005 P L C (C.S) 1418

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members.

IRSHAD ALI SHAH and 9 others

Versus

CIVIL AVIATION AUTHORITY through Director, General and 2 others

Criminal Miscellaneous Nos.382 to 391(L) of 1999, decided on 2nd October, 2004.

Civil Servants Act (LXXI of 1973)---

---S. 9---Service Tribunals Act (LXX of 1973), S. 4---Promotion---Criteria for promotion---Appeal to Service Tribunal---Appellants, who were Diploma Holders in Technology and were in P.G.8, claimed promotion in P.G.9---Claim of appellants was refused by the Authority on ground that under rules of service, appellants could not be promoted to P.G.9 as they were not graduate Engineers---Appellants had contended that their promotion in PG.9 and above could not be refused on the ground that they were not Graduate Engineers, as said condition did not exist when appellants had entered into service and that said condition could not be applied retrospectively---Appellants had further contended that in absence of proper regulations, they could not be deprived of their right to get promotion to PG.9 and above---Validity---Authority in Service Regulations, had prescribed criteria for promotion to Engineering Posts of PG.9 and above by enforcing said Regulations---Contention of appellants that Authority had not fixed any criteria for promotion to Engineering Posts of PG.9 and above, was not correct---Appellants were not Graduate Engineers, whereas according to said Regulation Engineering Posts of PG.9 being Selection Posts promotions were to be made on basis of merit and suitability, and could be filled only by Graduate Engineers---Appellants, in circumstances were not eligible for promotion, by selection to Engineering posts of PG.9 and above and it was exclusively within the domain of Authority to decide whether a particular qualification would be considered sufficient for promotion from a particular grade to a higher grade and it was also within the domain of Authority to change promotion policy from time to time and nobody could claim any vested right in that policy---By enforcing said regulation, Authorities had exercised power vested in them and no illegality had been committed by authorities in enforcing said regulations---Being Diploma Holders, appellants could not equate themselves with Graduate Engineers and were not entitled to be considered for selection in PG.9 and above.

PLD 1995 SC 701 ref.

Dr. Abdul Basit for Petitioners.

Taffazul H. Rizvi for Respondents.

Date of hearing: 2nd October, 2004.

2005 P L C (C.S.) 1489

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Hassan Raza Pasha, Members

MUHAMMAD AFZAL

Versus

CHIEF ELECTION COMMISSIONER, ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 2 others

Appeal No.60 (Q) of 2003, decided on 27th July, 2004.

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

----Ss. 2(aa), 3, 5 & 10---Service Tribunals Act (LXX of 1973), S. 4---Dismissal from service---Appeal to Service Tribunal---Appellant was dismissed from service on charges of misconduct, corruption, embezzlement and misappropriation of amount etc.---Serious legal and procedural infirmities appeared in the disciplinary proceedings conducted against appellant---Order of dismissal from service against appellant was issued by Chief Election Commissioner acting as Competent Authority, and order of inquiry along with statement of allegations was issued against appellant by Secretary, Election Commission also in the capacity of Competent Authority---Charge­sheet along with statement of allegations, was required to be issued by Enquiry Officer rather than Competent, Authority--First show-cause notice was issued by Secretary, Election Commission acting as Competent Authority and second show-cause notice was issued by Chief Election Commissioner acting as Competent Authority without realizing that earlier the Secretary Election Commission also had acted as Competent Authority in issuing first show-cause notice---Such involved violation of .Rules , as said rules did not stipulate two Competent Authorities of different levels in dealing with disciplinary proceedings against same officer---Shifting stand and indecision about single Competent Authority had caused serious prejudice to the defence of appellant as contradictory and self-defeating orders appointing different Competent Authorities were issued quoting the same section of Removal from Service (Special Powers) Ordinance, 2000---Complainants against appellant remained untraced and nobody owned complaints against appellant, but Authorities assumed the role of complainants and started probing complaints against appellant suo motu converting them into allegations, which was another' legal and procedural infirmity in disciplinary proceedings---Allegations were not established with tangible evidence, but allegedly were proved on basis of suppositions and presumptions and Enquiry Committee did not probe into said allegations as per prescribed procedure---Authorities had acted as accuser, Judge and executor---Order dismissing appellant from service, was set aside and he was reinstated in service---Authorities had option to conduct fresh disciplinary proceedings against appellant in accordance with law within specified period.

Raja Muhammad Asghar Khan for Appellant.

Khalil ur Rehman Abbasi, Standing Counsel for Respondent with Rashid Muhammad, Section Officer Election Commission as Departmental Representative.

Date of hearing: 27th July, 2004.

2005 P L C (C. S) 1497

[Federal Service Tribunal, Islamabad]

Before Abdur Razzaque and Abdul Rashid Baloch, Members

ASAD ALI SHAH

Versus

SECRETARY, FINANCE DIVISION and others

Appeal No.77(L) (CS) of 2000, decided on 3rd December, 2003.

Civil Servants Act (LXXI of 1973)---

---Ss. 13 & 19---Service Tribunals Act (LXX of 1973), S.4---Retirement---Orderly Allowance/Special Additional Pension---Entitlement---Appeal to Service Tribunal---Appellant was retired from Government service in B-22 on 11-7-1990 on which date Orderly Allowance/Special Additional Pension was part of his emoluments--Appellant was re-employed in same capacity for one year, during which period, appellant was issued a Pension Payment Order on 16-7-1990, but Orderly Allowance, earlier included and being paid to appellant was not made part of said Pension Payment Order---Appellant who was drawing Orderly Allowance/Special Additional Pension at time of his superannuation, denial same to him afterwards, would not be in the interest of good governance and in consonance with principles of natural justice---Appellant was entitled to benefit of said Orderly Allowance which had been allowed to officers who retired from Government service on or before 19-2-1991---Period specified for preference of appeal would not he applicable in case of appellant as financial benefit was involved in his case---Delay, if any in preference of appeal, was condoned---Service Tribunal accepting appeal set aside 'impugned order and directed Authorities to allow Orderly Allowance/Special Additional Pension to appellant w.e.f. 19-2-1991.

S.A.M. Wahidi v. Federation of Pakistan 1999 SCMR 1904; 1994 SCMR 881; 1996 SCMR 1470; 1998 PLC (CS) 694;1996 PLC (CS) 1224 and Hamid Akhtar Niazi v. Sectary Finance 1996 SCMR 1185 ref.

Hafiz Tariq Nasim for appellant.

Javed Aziz Sandhu, Standing Counsel for Respondent with D.Rs. Ali Sher, S.O. and M. Mansoor Shahzad A.A.O., AGPR.

Date of hearing: 7th June, 2003.

2005 P L C (C.S.) 1505

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

GOHRAM KHAN and another

Versus

DEPUTY INSPECTOR GENERAL, PAKISTAN RAILWAYS POLICE, C.P.O. LAHORE and another

Appeals Nos.62 and 63 (K)(CS) of 2002, decided on 19th October, 2004.

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

----Ss.3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant serving as a constable was removed from service after issuing him show-cause notice on allegations of previous eight different punishments to him, being reported highly corrupt and having bad reputation---Appellant was proceeded against without holding a regular inquiry against him---Validity---Major penalty of removal from service imposed upon employee, without holding a regular inquiry on alleged serious acts of misconduct, was not justified---Impugned order of removal of appellant from service, was set aside with direction to reinstate appellant in service to the post he was removed from service with all back-benefits for the period he was not gainfully employed elsewhere for which appellant would file an affidavit before Competent Authority---Authority, however could hold 'de novo' inquiry against appellant strictly in accordance with law within specified period.

1997 PLC (C.S.) 873; 1993 SCMR 683; 1996 PLC (C.S.) 868; PLD 1994 SC 22; 1985 PLC (C.S.) 219; 1990 PLC (C.S.) 745; 1997 SCMR 1543; 1995 PLC (C.S.) 547; 1989 SCMR 1224 and PLD 1973 SC 188 ref.

Sanaullha Noor Ghouri for Appellants.

M. Asghar, for Respondents.

Date of hearing: 16th October, 2004.

2005 P L C (C.S.) 1508

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Qazi Muhammad Hussain Siddiqui, Members

Syed HAMID ALI

Versus

A.G. SINDH and others

Appeal No.137(K)(C.S.) of 2001, decided 16th June, 2004.

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

--------Ss. 3, 5, 6 & 10---Removal from service-Appeal-Statement of allegations against appellant was issued by Authority whereas under Removal from Service (Special Powers) Ordinance, 2000, it should have been issued by the Inquiry Committee---Inquiry Committee, while exonerating appellant of the first two allegations, found him culpable for another allegation and recommended major penalty of compulsory retirement from service---Authority did not accept recommendation of Inquiry Committee and without giving any reasons, enhanced the penalty to remove him from service---Other civil servant, who was also involved in proceedings, was not imposed any penalty, though Inquiry Committee also held him guilty---Prosecution did not involve other staff members in the proceedings of case in inquiry proceedings---Case against appellant, in circumstances needed re-appraisal at the departmental level---Order removing appellant from service was set aside and appellant was reinstated in service with effect from the date of his removal from service---Authority could initiate de novo disciplinary proceedings against appellant based on same allegations within stipulated period.

Sanaullah Noor Ghouri for Appellant.

Asif Mangi, Standing Counsel with Dr. Rasheed Ahmed, A.A.O. for Respondent.

Date of hearing: 16th June, 2004.

2005 P L C (C.S.) 1510

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman and Moazzam Hayat, Member

NOOR MUHAMMAD and 42 others

Versus

PRINCIPAL SECRETARY, MINISTRY OF LAW, JUSTICE AND HUMAN RIGHTS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Appeals Nos.35, 40, 45, 49, 50, 51, 52, 53, 57, 58, 59, 61, 62, 63, 64, 68, 75 to 90, 99 to 104, 120 to 123 and 129(R)(C.S.) of 2004, decided on 10th July, 2004.

Service Tribunals Act (LXX of 1973)---

----Ss. 2(a) & 4---Claim of Special Judicial Allowance by employees of Federal Service Tribunal---Appeal to Service Tribunal---Appellant had prayed for grant of Special Judicial Allowance which was being paid to officers/officials of Supreme Court, Federal Shariat Court and High Courts---Appellants were denied said allowance on the ground that they being civil servants, were not entitled to said allowance---Employees of Supreme Court, Federal Shariat Court and High Court, did not fall within the ambit of definition of `civil servant' as given in S.2(a) of Service Tribunals Act, 1973 because said employees were not in any manner connected with affairs of Federation---Judiciary was definitely an organ of the State; but its main function was to dispense justice and to resolve disputes not only between the citizens, but also between the citizens and the State, between Provincial Governments and between Provincial Governments and Federal Government---Dispute arising out of affairs of Government were resolved by Constitutional Courts---Special status had been given to those Courts by Constitution---Employees appointed by said Courts were employees only of those Courts and were not civil servants---Judicial Allowance was given to employees of Supreme Court by Chief Justice of Pakistan in exercise of powers conferred upon him under R.3 of Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 and employees of Federal Shariat Court were given allowance by Chief Justice of that Court in exercise of powers conferred upon him under R.5 of Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982---No such power had been given to Federal Service Tribunal to settle terms and conditions of its employees---Said facts had clearly proved that employees of Supreme Court, Federal Shariat Court and High Courts were not civil servants whereas employees of Service Tribunal were civil servants---Appellants, in absence of rules of their appointment, and terms and conditions of their appointment, could not claim any special status which had been bestowed upon employees of Supreme Court, Federal Shariat Court and High Courts---Since Judicial Allowance was not a part and parcel of pay of appellants nor any term and condition of their service had been violated by impugned order, present appeal though having every merit in them, were not competent---No direction could be given to respondents on judicial side to grant Special Judicial Allowance to appellants---Their claim, however, could be processed on administrative side.

AIR 1982 SC 879 and 1994 SCMR 1548 ref.

M. Shoaib Shaheen for Appellant.

Javaid Aziz Sandhu for Respondent No.2. with Anwar-ul-Haq, section Officer.

Muhammad Aslam Uns for Respondent No.1 with Farrukh Ali Mughal and Pir Muhammad Ishaq, as Departmental Representatives.

Date of hearing: 10th July, 2004.

2005 P L C (C.S.) 1521

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Qazi Muhammad Hussain Siddiqui, Members

RAFI AHMED

Versus

COLLECTOR OF CUSTOMS (PREVENTIVE), CUSTOM HOUSE, KARACHI and others

Appeal No.460 (K)(CS) of 2002, decided on 16th June, 2004.

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

----Ss. 3 & 10---Government Servants (Efficiency and Discipline) Rules, 1973, R. 4---Penalty of withholding of Annual Increments---Appeal---Penalty imposed under two distinct provisions of law---Validity---Appellant had been imposed minor penalty of withholding of four Annual Increments by combining relevant provisions of Government Servants (Efficiency and Discipline) Rules, 1973 and Removal from Service (Special Powers) Ordinance, 2000---Provisions of two separate and distinct laws had been invoked in the impugned order---Held, in view of such obvious illegality involved in the case, case was remanded to Department for de novo proceedings within a period of three months---Impugned order was set aside and action was to be taken under relevant law.

PLJ 2003 SCJ 510 ref.

Sanaullah Noor Ghauri for Appellant.

Khalil Dogar for Respondents.

Date of hearing: 16th June, 2004.

2005 P L C (C.S.) 1523

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Member

RAHAT ALI SHEIKH

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Wapda House, Lahore and 2 others

Appeal No.662(L) (C.S.) 2004, decided on 17th December, 2004.

(a) Civil service---

----Move-over---Employee serving in BPS-17 was granted move-over in BPS-18---Employee had prayed for grant of regular BPS-18 and thereafter to move-over in BPS-19---Employee, who had already been granted move-over in BPS-18, second move-over could be allowed to him only on his regular promotion in BPS-18---Since employee was not regularly promoted in BPS-18, he was not entitled to move-over in BPS-19.

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

----S.9---Promotion---Promotion was not a vested right of a civil servant, but it was to be granted on certain conditions by Departmental Selection Committee.

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

----S.4---Appeal---Limitation---Appeal was filed after more than six years and four months from passing of impugned order and that too alter appellant was retired from service---Appeal being not competent was dismissed in limine.

Dr. Ehsan-ul-Haque Khan for Appellant.

Date of hearing: 17th December, 2004.

2005 P L C (C.S.) 1525

[Federal Service Tribunal]

Before: Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

IFTIKHAR AHMAD

Versus

SECRETARY MINISTRY OF HEALTH GOVERNMENT OF PAKISTAN

Appeal No.321(K)(C.S.) 2001, decided on 28th November, 2004.

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

----Ss.5, 6, 7 & 11---Service Tribunals Act (LXX of 1973), S.4---Issuance of show-cause notice---Appeal---Appellant was issued a show-cause notice for misconduct based on allegation of misappropriation of certain items---Appellant denied allegations against him and contented that no regular enquiry was held against him---Service Tribunal without adverting to merits of case, remanded the same for reasons that at the time when proceedings were initiated against appellant, Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated which was in force at that time---Enquiry proceedings against appellant, in circumstances had to be taken under Removal from Service (Special Powers) Ordinance, 2000, provisions whereof under S.11 of said Ordinance overrode all other existing laws---Impugned order was set aside with direction to the Authority to initiate disciplinary proceedings against appellant on same allegations and complete the same within specified time in accordance with law giving opportunity to appellant to put up his defence, if he so wished.

Sanaullah Noor Ghauri for Appellant.

Asif Mangi, Standing Counsel for Respondents along with D.R. Dr. Muhammad Azhar Khan Deputy Director J.P.M.C.

Date of hearing: 28th November, 2004.

2005 P L C (C.S.) 1527

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDUL ZAHOOR QURESHI

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD. through Managing Director

Appeal No.1419(K)(CS) of 2001, decided on 10th July, 2004.

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

----Ss. 3, 11 & 12---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Removal from service---Appeal---Appellant was removed from service after serving him with charge-sheet on allegation of receiving illegal gratification, without ordering or conducting regular inquiry against him---Transaction with regard to bribe money, did not take place in view of and in presence of prosecution witness---Alleged confessional statement of appellant, as evident from document, was obtained through coercion and pressure by Army Intelligence Wing---Admitted fact was that before passing removal/dismissal order against appellant, no chance of personal hearing was provided to him--Appellant, in circumstances was deprived of rule of `audi alteram partem (no one could be condemned unheard)---Appellant was not confronted with alleged confessional statement during course of Enquiry through any witness---No witness was examined in presence of appellant and appellant was also deprived of his right of cross-examining witness to elucidate truth---Entire case was quite silent about whereabouts of Currency Notes of alleged bribe as description thereof and de-nomination of each was also not on record and benefit of all those aspects, would go to appellant---Complainant had not lodged any written complaint against appellant---Copy of so-called confession of appellant had shown that in alleged statement of appellant there was no evidence of demand of money; payment of money, purpose for which money was paid and recovery of said money, if any---Whereas show-cause notice alleged that a sum of Rs.2500 had been received as bribe by appellant---All said facts had shown that appellant had been involved falsely---Penalty of removal/dismissal imposed upon appellant, in circumstances was not justified---Impugned order was set aside and Authorities were directed to reinstate appellant in service---Appellant was entitled to full back-benefits from the date of his dismissal till the date of his reinstatement minus whatever amount earned by him during intervening period for which appellant would submit an affidavit before Competent Authority.

2003 PLC (C.S.) 600; PLD 1973 Lah. 188; PLD 1998 (CS) 664; 2002 PLC (C.S.) 259; 1986 PLC (C.S) 419; 2000 SCMR 934; 2003 PLC (C.S.) 365; NLR 1986 TD 63; PLD 2002 SC 667; SBLR 2004 SC 16; Raja Ali Gul Mangi v. Managing Director Pak State Oil Co. Ltd and others 2004 PLC (C.S) 929 and 1996 SCMR 1185 ref.

Sanaullah Noor Ghauri for Appellant.

Hafiz Abdul Baqi for Respondents.

Date of hearing: 1st June, 2004.

2005 P L C (C.S.) 1536

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD KHALIQUE KHAN

Versus

GENERAL MANAGER, SOUTHERN TELECOM REGION-I, HYDERABAD and 3 others

Appeal No.521(K)(CS) of 2001, decided on 28th September, 2004.

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

----Ss.3, 4(1)(b)(ii), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement-Appeal-Punishment of compulsory retirement was imposed upon appellant after issuing him show-cause notice and charge-sheeting him on allegation of theft, mis­appropriation/embezzlement etc., but without holding regular inquiry against him, without giving him' chance of cross-examination of witnesses against him and without furnishing him any opportunity to bring on record his defence---Validity---Preliminary inquiry, if any, could not be equated with regular inquiry---Since very serious allegations of fact have been levelled against appellant, a regular inquiry was mandatory and he should have been provided full opportunity to cross-examine witnesses produced against him and to put his defence---Order of compulsory retirement from service passed against appellant, was set aside and case was remanded to hold proper and regular inquiry against appellant within specified period in accordance with law providing him full opportunity to cross-examine witnesses and to lead his evidence.

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

Sanaullah Noor Ghouri for Appellant.

Niaz Ahmed Khan for Respondents.

Date of hearing: 26th July, 2004.

2005 P L C (C.S) 1539

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Rashid Ali Mirza, Members

ALLAH DINO SOMRO

Versus

CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE and another

Appeal No. 241(K)(C.S.) of 2002, decided on 14th June, 2004.

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

----S. 17(1-A)(a)---Service Tribunals Act (LXX of 1973), S. 4---Pre­mature retirement from service---Appeal---Incident, which had prompted the Authorities to resort to action of premature retirement from service of appellant, was same in which four other officers were involved, but were reinstated in service by Service Tribunal---Perusal of inquiry report had indicated that Inquiry Committee had recommended disciplinary action against appellant under Government Servants (Efficiency and Discipline) Rules, 1973 which was not done by the Authority to deprive appellant of an opportunity to defend allegations which was his inherent right before any adverse action could be taken against him---Impugned order had deprived the appellant of an opportunity to continue in service till the normal age of superannuation which had been cut short by premature retirement which in any case impliedly carried stigma---Claim of appellant that he had unblemished service in the Organization, had not been specifically denied by Authorities in their comments and no incident of any lapse on the part of appellant was produced before Service Tribunal---Impugned order was set aside and appellant was ordered to be reinstated in service with full back-benefits.

2000 PLC (C.S.) 405; 1999 PLC (C.S.) 818; 2003 PLC (C.S.) 7 and 353; 2003 PLC (C.S.) 857; 2003 DD (Services) 247; 2002 PLC (C.S.) 128; 2003 SCMR 1949; 2003 PLC (C.S.) 663; 2003 PLC (C.S.) 1370: Sardar Masood Iqbal Khan v. Chairman WAPDA in Appeal No.374,(L)(C.S.) 2000; 2002 PLC (C.S.) 128; 1986 SCMR 840; Shaikh Abdul Waheed and 2 others v. WAPDA PLD 1988 SC 35; WAPDA v. Sheikh Zulfiqar Ali PLD 1988 SC 693; Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774 and SSGC v. Ghulam Abbas and others 2003 PLC (CS) 796 ref.

Sanaullah Noor Ghouri for Appellant.

Siddique Mirza for Respondents.

Date of hearing: 14th June, 2004.

2005 P L C (C.S) 1544

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ASLAM

Versus

DEPUTY INSPECTOR-GENERAL PAKISTAN RAILWAYS POLICE G.P.O., LAHORE and another

Appeal No.52 (K)(C.S) of 2002, decided on 14th October, 2004.

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

----Ss.3 & 5---Service Tribunals Act (LXX of 1973), S.4---Pakistan Railways Personal Mannual-I, cl.(iv)---Dismissal from service---Appeal against-Appellant was dismissed from service after issuing him show-cause notice, but without holding inquiry against him on certain allegations---No cogent evidence was produced in support of allegations of appellant of having persistent reputation of being corrupt and of ceasing to be an efficient employee---Authorities for proving said two charges relied on six minor punishments, but no detail of such minor punishments had been given in statement of allegations---Said punishments were awarded to appellant previously during a period from 1974 to 1994---As per cl.(iv) of Pakistan Railways Personal Mannual-I, ` minor punishments awarded under Efficiency and Discipline Rules, should be written off, if employees would not commit any irregularity for two years after expiry of punishments---Last punishment awarded to appellant was in 1994 and disciplinary proceedings against him were initiated in Nov. 2001 which meant that minor penalties awarded to appellant had already expired---Minor punishments which appellant had already suffered and which had become a chapter past and closed, could not be used to vex accused twice---Vexing appellant twice would fall within the principle of double jeopardy---Minor punishment awarded to appellant, in circumstances could not be used as a corroborative basis of evidence because appellant was not alleged to have committed any act or omission amounting to misconduct after year 1998 and as such his minor punishments had lost their force.

1989 SCMR 1224 and 2002 PLC (C.S) 738 ref.

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

----Ss. 3, 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty---Holding of inquiry---Appeal to Service Tribunal---No major penalty could be imposed in disciplinary proceedings against employees without holding regular enquiry into serious allegations of fact which were denied by such employees and same needed to be proved by recording of evidence through regular enquiry providing accused/employee full opportunity to cross-examine Departmental witnesses and to bring on record his defence and thereafter also providing opportunity of personal hearing---Allegations of corruption and inefficiency of appellant needed to be proved by means of regular enquiry by providing an opportunity to appellant to cross-examine witnesses and to put up his defence also---That having not been done, Authorities could not go to prove allegations of inefficiency and corruption against appellant---Impugned order was set aside with directions to Authorities to reinstate appellant in service to' the post which he was holding when dismissed from service with all back-benefits for the period he was not gainfully employed elsewhere.

Sanaullah Noor Ghauri for Appellant.

Muhammad Asghar for Respondents.

Date of hearing: 23rd July, 2004.

2005 P L C (C.S.) 1555

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD IQBAL

Versus

GENERAL MANAGER/OPERATIONS PAKISTAN RAILWAYS, LAHORE and 2 others

Appeal No.297 (K)(CS) of 2000, decided on 8th December, 2004.

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

----Ss.3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was charged with misconduct for receiving bribe from a person for giving him undue facilities in performing his legitimate official duties---Major penalty of removal from service was imposed upon appellant on said charge without holding any inquiry into allegation against him---Vigilance Team had not been produced by the Authorities and there was no complaint against appellant for receiving bribe---Photocopy of affidavit of person from whom appellant allegedly had received bribe, had shown that Vigilance Team had forcibly got recorded statement of appellant against co-workers and his colleagues in a false and fabricated case of bribe---Authorities had not rebutted said affidavit---No evidence was on record in support of charges against appellant---Effect---In a case of major penalty where serious allegations were made and same were denied by accused/employee, a regular inquiry into the allegations, was absolutely necessary and a final notice had also to be issued and accused/employee had to be given a chance of personal hearing---Such having not been done in case of the appellant, penalty of removal from service could not be imposed---Impugned order of removal from service, without holding regular inquiry, without issuing final show-cause notice and also without giving appellant an opportunity of hearing, could not be maintained---Impugned order was set aside, appellant was directed to be reinstated in service from date of his removal from service---Authorities were further directed to hold regular inquiry against appellant strictly, in accordance with law providing him full opportunity to cross-examine witnesses, after issuing show-cause notice and also personally hearing him---Back ­benefits would depend upon the result of inquiry which would be held within specified period.

1996 PLC (C.S.) 1; 1981 PLC (C.S.) 125 and 1997 SCMR 1543 ref.

Sanaullah Noor Ghauri for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 8th December, 2004.

2005 P L C (C.S.) 1559

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Abdul Rashid Baloch, Members.

ABDUL MALIK

Versus

PRESIDENT OF PAKISTAN and others

Appeal Nos. 294(K)(CS) to 296(K)(CS) of 2002, decided on 3rd August, 2004.

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

----Ss.3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal against---Appellant was removed from service after charge-sheeting him that during his posting, a fraud had been committed by another employee with his connivance--Imposition of major penalty of removal from service suffered from irregularity as Authority/Director-General did not appoint any person as Authorized Officer which was contravention of relevant law---Inquiry had been conducted in the form of question answer which was, not judicially approved method---Punishment imposed on appellant on basis of such inquiry could hardly be sustainable in the eye of law---Findings of Inquiry Committee were based on hearsay as no direct or indirect evidence was on record to that effect---Main allegation against appellant was that cutting/over-writings and alterations made by appellant had paved the way for accused to commit fraud/embezzlement, causing loss to Government Exchequer---Appellant had also been charged of concealment of facts relating to commission of fraud by accused as he failed to inform Administration or higher Authorities---Appellant had pleaded that he did not know about act of accused and that he being a subordinate it was not possible for him to report against his boss/accused---Fault of appellant at the most could be termed as `negligence' for which a minor penalty would suffice---Appellant had more than 20 years' clean record of service as a low paid subordinate, which also deserved due consideration before imposition of major penalty under given circumstances---As per inquiry report and submission of appellant, he made cuttings/over-writings and alterations in the entries and being not cautious in the discharge of his duty, he could not be completely absolved of his responsibilities---Order imposing major penalty of removal from service, was set aside and he was reinstated in service and penalty of removal from service was modified and converted into minor penalty of stoppage of three increments for three years without cumulative effect.

1999 PLC(C.S.) 1187; 1994 PLC (C.S.) 477; 1995 PLC (C.S.) 32 & 116; 1977 PLC (C.S) 657; PLD 1980 (C.S.) 22; 1981 PLC (C.S.) 277 & 825; 1982 PLC (C.S) 249; 1983 PLC (C.S.) 171; 1986 SCMR 30; PLD 1965 Lah. 279; 1984 PLC (C.S) 1397; 1986 PLC (C.S.) 253 & 308; 2000 PLC (C.S.) 1285; 1997 SCMR 1581; 1988 SCMR 691; 2002 SCMR 857; 1996 SCMR 802; 1993 SCMR 1440; 1993 PLC (C.S.) 1140; 2000 PLC (C.S.) 857 and 2001 TD (Service) 361. ref.

Sanaullah Noor Ghauri for Appellant.

Asif Mangi for Respondents along with Syed Azam Ali Admn. Officer as D.R.

Date of hearing: 25th February, 2004.

2005 P L C (C.S.) 1565

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members.

SHAH NAWAZ and another

Versus

GENERAL MANAGER (OPERATIONS) PAKISTAN RAILWAYS HEADQUARTES OFFICE, LAHORE and another

Appeal Nos.385 and 386 (K) (CS) of 2002, decided on 23rd June, 2004.

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

----Ss. 3, 5, 6 & 10---Dismissal from service---Appeal---Appellant was dismissed from service after issuing show-cause notice to him on allegation of misconduct, breach of discipline and corruption---Petty offence of charging Rs. 30 in excess from certain passenger for which appellant was not even punished, had been used after six years to prove the charge against appellant---If appellant had committed any offence as alleged, why the Authority had slept over same and had not taken any action against appellant and that what forced the Authority to use such an old incident to prove the charge against appellant which had no basis as no incident or event, if any, had taken place after promulgation of Removal from Service (Special Powers) Ordinance, 2000 as had been cited in the charge-sheet---Minor punishments awarded to appellant which had lost their force, the last punishment being in the year 1994 had been used as corroboratory piece of evidence for the incident which had never taken place---Authority had revived the past and closed events to dismiss appellant without resorting to proper procedure and Authority had failed to hold any enquiry even in a case of major penalty---Order of dismissal from service against appellant was set aside and appellant was reinstated in service from date of his dismissal with all back-benefits.

Sanaullah Noor Ghauri for Appellants.

Muhammad Asghar for Respondents.

Date of hearing: 23rd June, 2004.

2005 P L C (C.S.) 1568

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Qazi Muhammad Hussain Siddiqui, Members

ASGHAR ALI

Versus

GENERAL MANAGER PAKISTAN RAILWAYS, RAILWAY HEADQUARTERS OFFICE, LAHORE and others

Appeal No.306(K)(CS) of 2002, decided on 15th June, 2004.

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

----Ss. 3, 5, 6 & 10---Removal from service---Appeal---Appellant was removed from service after charge-sheeting him on allegation of misconduct and corruption, but without holding inquiry against him---Appellant having denied the allegations against him, it was incumbent upon the Authority to hold detailed inquiry to substantiate the charges against him---Appellant having been awarded maximum punishment of removal from service without holding enquiry against him, order of his removal from service was set aside and he was reinstated in service with direction to Authorities to hold de novo enquiry proceedings against him on same allegations within period of six months.

Sanaullah Noor Ghauri for Appellant.

Latif Saghar for Respondents.

Date of hearing: 15th June, 2004.

2005 P L C (C.S.) 1570

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Rashid Ali Mirza, Members

QALANDAR BUX

Versus

GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAYS, HEADQUARTERS OFFICE, LAHORE and another

Appeal No.384(K)(CS) of 2002, decided on 16th June, 2004.

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

-----Ss. 3, 5, 6 & 10---Removal from service---Appeal--,Major penalty of removal from service was imposed upon appellant after issuing him show-cause notice., but without holding regular inquiry against him on serious allegations of stealing, misappropriation and bad reputation Preliminary inquiry report conducted by the Authorities had clearly established that appellant was not involved in theft and Inquiry Committee had exonerated the appellant---Appellant having denied allegations against him, it was mandatory that the Authorities should have held proper, and just regular inquiry to conclusively establish allegations against appellant, but that had not been done---Appellant was not established to be guilty of allegations levelled against him---Legal infirmities in proceedings against appellant had not been rebutted by the Authorities---Authorities had acted with malice and had unjustly penalized the appellant without conclusively proving his guilt---Order removing appellant from service, was set aside and he was ordered to be reinstated in service from date of issuance of impugned order.

2004 SCMR 294; PLJ 2004 TS 1; 1986 PLC (CS) 894; PLJ 2003 TC 231; PLD 2004 SC 441 and 2003 TD Service 247 ref.

Sanaullah Noor Ghouri for Appellant.

Agha Zafir for Respondents.

Date of hearing: 15th June, 2004.

2005 P L C (C.S.) 1574

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Qazi Muhammad Hussain Siddiqui, Members

SOHAIL AHMED SIDDIQUI

Versus

DIRECTOR NICH, KARACHI and another

Appeal No.247(K)(CS) of 2002, decided on 16th June, 2004.

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

------Ss. 3, 5, 6 & 10---Removal from service---Appeal---Appellant was removed from service after issuing him show-cause notice but without holding inquiry against him on allegation of misconduct---Appellant in reply to show-cause notice denied allegations against him---In view of denial of appellant, it was incumbent upon the Authorities to hold a detailed inquiry, but that had not been done---Order removing appellant from service was set aside and he was reinstated in service from the date of his removal from service with direction to the Authority to hold de novo inquiry proceedings based on same allegations in accordance with law within a period of four months.

Sanaullah Noor Ghouri for Appellant.

Asif Mangi, Standing Counsel for Respondent along with Illahi Bux D.D. as D.R.

Date of hearing: 16th June, 2004.

2005 P L C (C.S.) 1114

[Federal Shariat Court]

Before Ch. Ejaz Yousaf C.J., Dr. Fida Muhammad Khan and S.A. Rabbani, JJ

GHULAM SADIQ

Versus

GOVERNEMT OF PAKISTAN

Shariat Misc. Nos. 51/I of 2004 and 12/I of 2005, decided on 7th April, 2005.

Constitution of Pakistan (1973)---

----Art. 203-D---Petition before Federal Shariat Court challenging difference of rates in increase of pension of civil servants---Increase in pension at the rate of 16% was granted by Government to those pensioners who had retired prior to 1994, whereas, 8% increase had been allowed to those pensioners who had retired thereafter---Petitioner had prayed that Finance Division might be directed to grant petitioner increase in pension at the rate of 16% instead of 8% already allowed to him---Term "Pension" denoted to a "grant" after release from service and right of pension would depend upon the statutory. provisions regulating it---Pensioners retired at different dates could not claim increase in pension at a particular rate---Since there was no contract between pensioners and Government regarding terms/conditions relating to the change of rate of pension in future, distinction between old pensioners' andnew pensioners' was not to be undone and each pensioner was entitled to get pension according to his own entitlement under law---Pension was regarded as wealth, inequality in its distribution would not render it un-Islamic nor different rates could be termed as discriminatory---Even otherwise, since petitioner had failed to point out any law, custom or usage which could be violative of Islamic Injunctions and relief claimed in petition being in personam, petition filed by petitioner was not maintainable.

Federation of Pakistan v. I.A. Sherwani and 3 others 2005 SCMR 292 ref.

Petitioner in person.

Sardar Abdul Majeed Khan for Federal Govt. and Shafqat Munir, Malik A.A.-G. Punjab for Respondent.

Date of hearing: 7th April, 2005.

2005 P L C (C.S.) 1001

[Azad J&K High Court]

Before Ghulam Mustafa Mughal, J

NAVEED AHMED

Versus

BOARD OF GOVERNORS, CADET COLLEGE PALLANDRI through Chairman and 5 others

Writ Petition No.271 of 2004, decided on 16th August, 2004.

(a) Cadet College Pallandri/Board of Employees (Efficiency and Discipline) Rules, 1996-----------

----Rr. 3, 4, 5 & 6---Cadet College Pallandri (General Conditions of Service) Rules, 1996, R. 10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Termination of service---Services of petitioner stood terminated on account of his unsatisfactory service, average grade in his ACR's, misconduct and his undisciplined attitude---Petitioner whose service had duly been regulated by the relevant Rules, had not been provided with an opportunity of hearing before passing order of termination of his service-Neither any inquiry had been conducted against petitioner nor he had been associated with any such inquiry---Board of Governors had also not conducted proceedings against petitioner in a rightful manner and all proceedings against him had been conducted on a wrong assumption of facts---Principle of natural justice had been violated in the case---If a civil servant was charged with misconduct, said allegation could not be proved without holding a regular inquiry and removal or dismissal of such civil servant on the bases of summary inquiry, was not maintainable in law---Things must be done in the prescribed manner or not at all---No­body could be allowed to contravene, throw away or violate the Statute or the rules made thereunder in the name of discipline---Petitioner being a confirmed employee, on allegations levelled against him, he could not be removed from service and major penalty could not be imposed on him as visualized by the rules, especially when discriminatory treatment was also noticed from the record---proceedings conducted and order terminating services of petitioner, were declared to have been passed without lawful authority---Setting aside impugned order, petitioner was ordered to be reinstated in service.

Abdul Haq Mughal v. Muhammad Nasem Usmani and 2 others 2004 PLC (C.S.) 843; Syed Mir Muhammad v. N.W.F.P. Government through Chief Secretary PLD 1981 SC 176; 1983 CLC 266; PLD 1978 SC (AJK) 37; Government of Azad Jammu and Kashmir v. Syed Mujahid Hussain Naqvi; PLJ 2001 SC (AJK) 50; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Abdul Harmed Siddique's case 2002 PLC 163; Hussain Ahmed Islahi v. Azad Government and others 1992 SCR 370; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; 1997 PLC (C.S.) 1115; 1996 PLC (C.S.) 901; 2002 PLC (C.S.) 1282; 1996 SCMR 770; 1999 SCMR 123; PLD 1974 SC 393; PLD 1968 SC 47; Muhammad Shafique Mughal's. case 1996 PLC (C.S.) 766 and PLJ 2003 Magazine section 311 ref.

(b) Civil service-----

----Performance of duties in an Islamic State was a trust and duties should be performed in transparent manner---Non-adherance and disregard of rules would cause disrepute and disrespect to the Government and Semi-Government institutions on the one hand and financial loss to such institutions on the other.

Abdul Rasheed Abbasi for petitioner.

Raja Ibrar Hussain A.G. for Respondents Nos. 1, 4, 5 and 6.

M. Tabassum Aftab Alvi for Respondents Nos.2 and 3.

2005 P L C (C.S.) 1048

[Azad J&K High Court]

Before Ghulam Mustafa Mughal, J

DILSHAD KAUSAR

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT (PRIME MINISTER) through Chief Secretary and 2 others

Writ Petition No.286 of 2004, decided on 10th March, 2005.

(a) Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001------

----Ss.2-A & 3---Azad Jammu and Kashmir Rules of Business, 1985---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Appointment---Notification of fresh inquiry---Validity---Petitioner was appointed as .Headmistress (B-17) on recommendation of Public Service Commission---After appointment of petitioner an anonymous application was sent to different Departments of Government alleging therein that petitioner was M.A. (3rd Division) and that she had illegally obtained appointment posing as M.A. History (2nd Division)---Petitioner had claimed that various Authorities like Accountant General, Ehtesab Bureaue and D.P.I. Schools had inquired into the matter and came to the conclusion that application/complaint filed anonymously against petitioner was baseless and false---Subsequently vide impugned Notification issued by Educational Secretariat, competent Authority had directed for fresh inquiry against petitioner on basis of same allegations' and Deputy Secretary Education was appointed as Inquiry Officer who had issued letter for further proceedings---Petitioner had challenged said notification and letter issued by Inquiry Officer alleging; firstly that matter had already been inquired into by different Authorities and complaint against her having been declared false, fresh investigation on anonymous application was without lawful authority; secondly that impugned Notification having not been published in the official Gazette, was violative of law; thirdly that fresh inquiry was being initiated on basis of an anonymous complaint without any proof in respect thereof and fourthly that impugned Notification was without jurisdiction---Validity---Inquiries though had been conducted by some officers, but those officers/Authorities could not be taken at par with Authority envisaged by Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001---Under section 3 of Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001, until powers for an inquiry and final order were delegated to any Authority, same could neither be exercised nor findings returned by such Authority could bind competent Authority on the principle of double jeopardy nor initiation of fresh proceedings could be held violative of law---Competent Authority could not be debarred from performing its statutory duty--Impugned Notification had been issued by competent Authority in the light of procedure contained in Azad Jammu and Kashmir Rules of Business, 1985 which required that a Government Notification would be authenticated by an officer authorized in that behalf and publication of the Notification was not necessary---Contention of petitioner in that respect was repelled--Only those rules, orders, regulations and circulars which had the force of law were required to be published in official Gazette and not such-like Notifications---Petitioner could not prove other contentions like mala fide and lack of jurisdiction, etc.---Writ petition was dismissed in circumstances.

1993 SCR 346; NLR 1993 TD (Services) 313; 1996 SCR 305; Muhammad Tarik Khan 1997 SCR 318; PLD 2004 SC 261; PLD 1978 SC 190 ref.

(b) Delegation of powers---

---Delegator by delegating his powers, would not get denuded of those powers nor delegation would imply a parting with powers by the person who granted delegation---Delegator and delegatee simultaneously or successively, could not exercise the power, however, it could not be accepted that after delegation of powers, delegator was deprived to exercise such powers, which otherwise vested in him under law---Authority once having competently exercised by delegatee, would get exhausted and there would be left no power with delegator to exercise same in same cause.

Haji Muhammad Ismail's case 1987 MLD 2457; PLD 1971 SC 393; Azad Govt. and others v. Mujahid Hussain Naqvi 1996 SCR 305; Tanweer Ahmed Khan's case 1992 MLD 2146; 1982 SCMR 212 and Scientific Adviser to the Ministry of Defence and others v. S. Daniel and others. Civil Appeal Nos. 1210 to 1217 of 1980 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-----

----S. 44---Writ petition---Maintainability---Show-cause notice---Writ petition filed against a show-cause notice was not maintainable---Notice could be challenged in writ jurisdiction when it was shown that same had been issued without jurisdictional competence and in that eventuality a notice could be termed as "act done" or "proceedings taken" within meaning of sub-clause (ii) of clause (a) of subsection (2) of S. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Where absence of jurisdiction was not shown, declaration that notice had been issued without lawful authority, could not be given.

Shaheen Asad's case 2001 PLC (C.S.) 93 ref.

Sardar Muhammad Habib Zia for petitioner.

Raja Mumtaz Hussain Kiani A.A.-G. for Respondents.

2005 P L C (C.S.) 1260

[Azad J&K High Court]

Before Muhammad Reaz Akhtar Chaudry, J

MUHAMMAD SULEMAN, PERSONAL ASSISTANT(R), MIRPUR, AZAD KASHMIR

Versus

ADVOCATE GENERAL, (AJ&K) GOVERNMENT, MUZAFFARABAD. and 6 others

Writ Petition No.102 of 2001, decided on 22nd March, 2002.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)-----

----S. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ Petition---Promotion---Successive move-over---Petitioner at the time of his retirement was in BPS-15, Selection Grade B-16 and move-over B-17-Under provisions of S. 8(1) of Azad Jammu and Kashmir Civil Servants Act, 1976, "Promotion" would mean "Promotion to a post of higher grade of service"---Petitioner was not promoted to the post of higher grade, but he remained on same post, but Selection Grade B-16 was awarded to him which did not come within the ambit of "Promotion"---"Promotion" as per dictionary meaning means "advancement or preferment for honour, dignity or rank"---Petitioner, who remained in same rank of BPS. 15 and simply was given Selection Grade-16, could not be said to have been promoted to any higher rank, but simply financial benefits were given to him---Orders passed by Authority regarding cancellation of move-over and recovery of arrears received by him, were without legal justification and same having been passed without affording petitioner any opportunity of hearing, were not sustainable---Such orders were declared to be without lawful authority.

Mubasharul Haq v. A.K. Government and others PLC 1991 (C.S.) 426 ref.

(b) Words and phrases---

----"Promotion", meaning of---"Promotion" means, "Advancement or preferment for honour, dignity or rank", which means advancement in rank.

Mubasharul Haq v. A.K. Government and others PLC 1991 (C.S.) 426 ref.

Petitioner in person.

Additional Advocate-General for non-Petitioners.

2005 P L C (C.S.) 1478

[Azad J&K High Court]

Before Ghulam Mustafa Mughal, J

RAJA SHAKEEL AHMED

Versus

AZAD GOVERNMENT through Chief Secretary and 3 others

Writ Petition No.251 of 2004, decided on 2nd September, 2004.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction---Scope---Where petitioner in his writ petition had sought issuance of direction to respondent, said direction would be subject to two conditions, Firstly petitioner should be an aggrieved. party; and secondly icon-availability of any other adequate and alternate remedy.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.4---Jurisdiction of Service Tribunal---Exercise of---Requirements---For invoking jurisdiction of Service Tribunal, there should be a final order or an order which at least affected the terms and conditions of civil servant---Order which determined the rights of parties conclusively, was final order, but where further steps were required to be taken in the matter, order could not be treated as final order---Letter in question neither had affected the rights of petitioner in any manner nor had determined controversy finally, rather particulars of petitioner as well as of respondent had been requisitioned by competent Authority for the purpose of further process---Said letter was not a final order, hence was appealable before Service Tribunal.

Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Chaudhry Muhammad Zaman v. Azad Govt. and 4 others 1996 PLC (C.S.) 901; Muhammad Arshad Saeed DIG Police v. Govt. of Pakistan through Secretary Establishment Division, Islamabad and 29 others 1994 SCMR 1033; Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Govt. and others 2000 PLC (S.C.) 247; Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439; Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153; Musa Javed Chauhan v. Secretary, Ministry of Foreign Affairs and 2 others" 1983 PLC (C.S.) 673; I.A. Sharwani's case 1991 SCMR 1041; PLJ 1980 SC (AJK) 5; 1995 PLC (C.S.) 562 and H. M. Rizvi's case PLD 1981 SC 612 'ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.44---Writ Petition---Civil service---Appointment---High Court in exercise of its writ jurisdiction could not direct Selection Board to consider case of petitioner, because respective Selection Board had not been arrayed in line of respondents---Basic appointment of respondent could only be challenged through appropriate proceedings---Petitioner had neither challenged basic order of appointment/promotion nor order of selection grade---Appointment of respondent on current-charge basis had also not been challenged by petitioner---Writ petition to that extent having no merits, was dismissed.

Ejaz Ahmad Awan's case 1999 PLC (C.S.) 1439 ref.

Raja Sadaqat Hussain for Petitioner.

M. Tabassum Aftab Alvi and Noorullah Qureshi for the Respondents.

2005 P L C (C.S.) 24

[Karachi High Court]

Before Rasheed A. Razvi and Zakir Hussain K. Mirza, JJ

NIRMALA BAI and 53 others

Versus

PROVINCE OF SINDH, through Secretary to Government of Sindh, Education Department, Sindh Secretariat, Karachi and 4 others

C.P. No.D-577 of 1995, decided on 5th August, 1997.

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

----S.4---Constitutional of Pakistan (1973), Arts. 199 & 212(2)--­Constitutional petition---Maintainability---Termination of service--­Appointment made in presence of ban imposed by Government--­Cancellation of such appointments after two years through. blanket orders---Non-filing of departmental appeal before approaching High Court---Plea of civil servants was that they were appointed in relaxation of ban, thus, impugned orders were illegal, mala fide, violative of principles of natural justice and without jurisdiction---Validity---Such controversy would fall within scope of terms and conditions of service--­If High Court found appointments of civil servants to be legal, then in view of bar contained in Art.212(2) of the Constitution, High Court would not be competent to grant relief prayed for---If same conclusion was drawn by Service Tribunal, then same would be competent to grant relief to civil servants according to merits of the case---Proper forum for resolution of such controversy was Service Tribunal and not High Court---Due to non-filing of departmental appeal before coming to High Court, Constitutional petitions could not be transferred to Service Tribunal as had been done in Muhammad Anis's case [PLD 1994 SC 539]---High Court dismissed Constitutional petition in limine.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 220; Saddiq Ahmed Khan v. The Secretary Housing Town Planning Government of Sindh Karachi & 2 others 1988 CLC 1877; Pakistan and others v. Public at Large and others PLD 1987 SC 304; S.A. Rizvi v. Islamic Republic of Pakistan Through Secretary Establishment Division and 2 others 1991 MLD 1834; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge Nausheroferoze and others 1994 SCMR 1299; Election Commission of Pakistan v. Jawaid Hashmi PLD 1989 SC 396; Hari Khemo Gawali v. The Deputy Commissioner of Police, Bombay and another 1957 SC India 90; Noor-ul-Amin Bachani and others v. Govt.of Sindh and others 1993 CLC 727; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Leelaram v. Ghulam Ali alias Essa and others 1993 SCMR.932; Yousuf Ali v. Government of Punjab through Secretary Education, Civil Secretariat Lahore and others 1996 PLC (C.S.) 801; Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Army Welfare- Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652; State v. Muhammad Ismail and others 1980 SCMR 268; Province of West Pakistan v. Muhammad Yasin PLD 1964 SC 438; Alnoor Textile Ltd. v. Collector of Customs and another 1990 ALD 356; Muhammad Ibrahim and others v. M.C. Chiniot 1990 ALD 655; Mumtaz Hussain v. District Magistrate 1990 PCr.LJ 1784; Muhammad Ayub v. Custodian of Evacuee Property PLD 1963 Kar. 551; Abdul Bari's case PLD 1981 Kar. 290; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Sharif Memon and 2 others v. Government of Sindh and 2 others 1996 PLC (C.S.) 1174; Muhammad Riaz and others v. Federation of Pakistan rind others PLD 1992 SC 204; Muhammad Younus Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Shafiuddin Deputy Director v. Soorat Khan Ansari 1991 SCMR 116 and Dr. Rashid Anwar v Federation of Pakistan and 7 others 1996 SCMR 1572 ref.

Ghulam Rasool Qureshi, S.A. Shaukat Naqvi, Syed Madad Ali Shah and Muhammad Yousuf Leghari for Petitioners.

Ghulam Nabi Soomro, Addl. A.-G. Sindh for the Respondents.

2005 P L C (C.S.) 54

[Karachi High Court]

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

JOURNALISTS PUBLICATION (PRIVATE) LIMITED

Versus

FEDERATION OF PAKISTAN and others

C. P. No. D-1130 of 1992, decided on 14th June, 2004.

(a) Newspaper Employees (Conditions of Service) Act (LVIII of I 973)---

----Ss.9, 10 & 12---Civil Procedure Code (V of 1908), S.96 & O.XLI--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintainability---Petitioners in their Constitutional petition had assailed the Award of 5th Wage Board on certain grounds---Petitioners before filing the Constitutional petition had filed suit in High Court on the same rounds, but High Court rejected the plaint under O.VII, R.11, C.P.C. holding that suit was barred by S.12 of Newspaper Employees (Conditions of Service) Act, 1973 and S.22 of (Repealed ) Industrial Relations Ordinance, 1969---Grounds on which 5th Wage Award assailed or challenged in the suit were identical and similar to grounds raised in the Constitutional petition ---Order passed in suit High Court had attained finality as petitioners did not assail said order way of appeal as provided by S.96 and Order XLI, C.P.C.---Petition who had failed to assail or challenge adverse order against them allowed said order to attain finality, would not be allowed to It recourse to Constitutional jurisdiction for redressal of their grievance, Constitutional petition filed by petitioner as not maintainable ---Apart from the fact that Constitutional petition, filed by petitioners was maintainable, fact was that almost 14 years had passed since disputed award was pronounced by Wage Board which had been accepted by concerned persons except petitioners and had been acted upon material terms---Setting aside the Award at such belated stage would completely upset and negate actions taken in pursuance thereof.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge Lahore and 20 others PLD 1996 SC 246; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 ref.

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

----Art.199---Constitutional jurisdiction---Scope---Grant of relief in Constitutional jurisdiction of High Court was discretionary and same could be refused if it appeared to High Court that instead of redressing the grievance of petitioner it would create numerous and insurmountable problems and difficulties and place the Government and other connected Agencies/Establishments in a state of confusion which would definitely arise if the relief sought by petitioners was granted---High Court under Art.199 of the Constitution had been given wide discretionary powers and discretion was to be exercised in such a way that mischief and chaos was prevented---Aggrieved party, in exercise, of Constitutional jurisdiction was not entitled to the relief claimed as a matter of right or course---Relief under Constitutional jurisdiction could be provided in accordance with law, equity and good conscience and to foster cause of justice and for the good of public and the country at large---Even where impugned order or action was found to be illegal, High Court could decline to press into service its Constitutional jurisdiction and refuse relief sought for if doing so, instead of advancing cause of justice or public good would defeat the same.

Messrs Kotri Textile Mills Ltd., Dhabeji through Factory Manager versus Union Council, Dhabeji and 2 others PLD 1994 Kar. 71 and Federation of Pakistan and others versus Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 ref.

M.L. Shahani and Rizwan Ahmed Siddiqui for Petitioners.

Sajjad Ali Shah, Standing Counsel.

Khalid Jawed Khan for Respondent No.3.

Date of hearing: 28th April, 2004.

2005 P L C (C.S) 112

[Karachi High Court]

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

TRUSTEES OF PORT OF KARACHI

Versus

MEMBER NIRC and others

C. P. D. No.373 of 2000, decided on 8th November, 2002.

Service Tribunals Act (LXX of 1973)---

----Ss.2-A, 3(2), 4 & 5---Industrial Relations Ordinance (XXIII of 1969), S.22-A(8)(g)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Retirement---Age of employee---Determination---Jurisdiction of Service Tribunal---Civil servant would not be allowed to bypass the jurisdiction of Service Tribunal by adding/raising a ground of violation of fundamental rights in Constitutional petition---If Service Tribunal in exercise of its jurisdiction could deal with the issue of violation of fundamental rights, then it could certainly deal with the issue of unfair labour practice while proceeding with an appeal of a civil servant against violation of his terms and conditions of service---National Industrial Relations Commission, in exercise of its jurisdiction under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, would not have jurisdiction to decide question of date of birth and date of retirement of employee who was a civil servant, as such question of retirement was to be decided solely by the Service Tribunal.

I.A Sherwani's case 1991 SCMR 1041 ref.

Qamar Abbas for Petitioner.

Ch. Rasheed Ahmed for Respondent No.2.

Date of hearing: 11th September, 2002.

2005 P L C (C.S.) 116

[Karachi High Court]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

SUI SOUTHERN GAS COMPANY LIMITED, through Deputy General Manager (IR)

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, OLD COMMISSIONER OFFICE, ABDULLAH HAROON ROAD, KARACHI AND 5 others

Const Petition No.D-1553 of 2003, decided on 12th October, 2004.

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

----Ss.2-A & 4---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Civil servant, determination of---Jurisdiction of National Industrial Relations Commission---Respondents who were employees of petitioner company, which was a Public Limited Company, controlled by Federal Government, were found guilty of certain acts prejudicial to and subversive of discipline---Petitioner company served respondents with charge-sheet and appointed a Committee and respondents were served with Inquiry Notice---Respondents, challenged issuance of said notice in petition filed by them under section 49(4)(e) of Industrial Relations Ordinance, 2000 with National Industrial Relations Commission (Procedure & Function) Regulation, 1973 before National Industrial Relations Commission, which assumed jurisdiction in the matter and required petitioner Company to file comments on said petition and also passed ex-parte order directing petitioner company not to pass final order on charge-sheet issued to respondents---Petitioner Company had challenged the order of National Industrial Relations Commission in Constitutional petition on ground that by virtue of S.2-A of Service Tribunals Act, 1973, respondents being civil servants', Commission had no jurisdiction in the matter and they could file appeal before Service Tribunal under S.4 of Service Tribunals Act, 1973---Petitioner Company had urged that assumption of jurisdiction by National Industrial Relations Commission in the matter was corum-non-judice and only forum was Service Tribunal in respect of a grievance touching terms and conditions of , service---Respondents being employees of company controlled by Federal Government, admittedly werecivil servants' and could not invoke jurisdiction of National Industrial Relations Commission by alleging unfair labour practice on part of petitioner/ employer ---None of allegations of charge-sheet issued to respondents by petitioner attracted unfair labour practice'---Merecharge ­sheeting' or issuing show-cause notice and initiation of proceedings under disciplinary rules against a civil servant, would not furnish him a cause for invoking jurisdiction of a Tribunal or a Court---Civil servant would not have any cause of action to challenge a show-cause notice and inquiry proceedings initiated pursuant to such show-cause notice--­National Industrial Relations Commission, in circumstances had erred in exercise of jurisdiction on application of respondents under S.49(4)(e) of Industrial Relations Ordinance, 2000 for alleged unfair labour practice on part of management of petitioner company---Order of National Industrial Relations Commission passed in illegal exercise of jurisdiction could not be maintained and same was set aside by High Court allowing Constitutional petition filed by petitioner company.

Sui Southern Gas Co. Ltd v. Member National Industrial Relations Commission and anther 2002 PLC 80; Mr. Azhar Jameel v. Federation of Pakistan and others SBLR 2002 Sindh 129; Searle Pakistan Limited v. Full Bench, National Industrial Relations Commission 2002 PLC 87; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; I.A. Sherwani's case 1991 SCMR 1041; Gulzeb Hussain v. Sui Northern, Gas Pieplines Ltd. 2000 SCMR 959; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Malik Nazar Hussain v. National Bank of Pakistan 2004 'SCMR 28; Azher Jameel v. Federation of Pakistan 2002 PLC (C.S.) 718 and Shagufta Begum v. The Income Tax Officer, Circle XI, Zone-B, Lahore PLD 1989 SC 360 ref.

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

----Art.199---Constitutional jurisdiction--Scope---If an order or proceedings were - patently without jurisdiction, High Court could issue writ in exercise of its jurisdiction under Art. 199 of Constitution of Pakistan.

Chairman Central Board of Revenue v. Pak Saudi Fertilizer Ltd. 2001 SCMR 777 ref.

Mahmood Abdul Ghani for Petitioner.

Nemo for Respondents No.1.

Gohar Iqbal for Respondents Nos.2 to 6.

Date of hearing: 30th September, 2004.

2005 P L C (C.S.) 485

[Karachi High Court]

Before Mushir Alam and Gulzar Ahmed, JJ

SAMO

versus

DISTRICT CO-ORDINATION OFFICER, LARKANA and 3 others

Constitutional Petition No.130 of 2004. decided on 17th September, 2004.

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

----Ss.13 & 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Retirement from service---Entitlement to receive retirement benefits---Amount of retirement benefit was not disputed and on retirement, petitioner was entitled for payment of entire amount in lump sum---No justification was to make payment in piecemeal to deprive civil servants who had served Department throughout their lives and pittance was offered to petitioner, which otherwise, was their legitimate due against respondents---Respondents were directed to ensure that entire amount of retirement benefits be paid to petitioner within specified period.

Jai Jai Vishnu for Petitioner.

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

2005 P L C (C.S.) 630

[Karachi High Court]

Before Zia Perwaz, J

COMMODORE SADEED ANVER MALIK KASHIR (RETD.)

versus

BAHRIA FOUNDATION through Chairman and 3 others

Civil Suit No.1016 of 2003, decided on 4th January, 2005.

Damages---

----Breach of contract---Recovery of damages---Contractual service, termination of---Technical breach of contract---Plaintiff agreed to contractual service providing for termination as one of the agreed terms---Grievance of the plaintiff was that his post was re-designated and later on his service was terminated---Plaintiff sought recovery of damages for the termination of his service---Validity---Service of plaintiff was not terminated as a penalty or punishment, nor any disciplinary action was taken against him---No statutory rules had been relied upon by plaintiff---Question of any stigma on the career of plaintiff did not arise---Plaintiff could not turn around and make a grievance of termination of service in pursuance to the agreed terms of the contract---No allegation of misconduct or incompetence had been levelled against plaintiff while terminating the contract, hence question of damages on account of wrongful dismissal from service and mental agony or defamation did not arise---Cases where the employment was under a contract providing for termination of service after service of notice for a stipulated period, either side was at liberty to avail the benefit of the stipulation---Proper notice was not served in the present case---All that the other party was entitled to recover was the amount equal to the salary of notice period---When notice as stipulated was served, the employment came to an end in pursuance to the agreed terms of contract which by itself did not give rise to an action for damages---Mere fact of re-designation of post or change of administrative policy under the circumstances could, at best, be termed as a technical breach of contract---For such breach of contract, High Court awarded a sum of Rs.1000 to plaintiff as nominal damages, in circumstances.

Rasool Bukhsh v. Larkana Municipality and others PLD 1957 Kar. 489; Noorul Hassan v. The Federation of Pakistan and 6 others PLD 1955 Sindh 200; Liaqat Ali Khan v. Secretary to the Government of Pakistan. Ministry of Foreign Affairs and Common Wealth Relation PLD 1958 Kar. 117; The Federation of Pakistan v. Fayyaz Ahmed PLD 1958 (W.P. Lah. 500); Cagle v. Burns and Roe 106 Wn.2d 911. 726 p.2d 434; UBL and others v. Ahsan Akhtar and others 1998 SCMR 68; City School Education Society v. Mrs. Talat Yazdani 2004 PLC 282; Irshad Jahan v. PNSC 1999 CLC 192; Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore PLD 1996 SC 737; Ursulina D Lima and others v. Orient Airways Ltd. and another PLD 1960 (W.P) Kar. 712; Tahir Jahangir and another v. DON Waters 2003 CLC 1699; Mrs. Zahra Zaidi v. Anwar Khan Ghouri 2004 CLC 233; Abdul Qadir v. S.K. Abbas Hussain and 2 others PLD 1997 Kar. 566 and Pakistan International Airlines Corporation v. Syed Ali Raza Rizvi 1996 CLC 627 distinguished.

Nisar A. Mujahid for Plaintiffs.

Nemo for Defendants.

Date of hearing: 16th August, 2004.

2005 P L C (C.S.) 665

[Karachi High Court]

Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

Qazi ABDUL SHAKOOR

versus

HIGH COURT OF SINDH and another

Service Appeal No.9 of 1999, decided on 20th December, 2004.

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

----Rr. 4(1)(b)(iv) & 8---Sindh Service Tribunals Act (XV of 1973), S. 4---Dismissal from service---Appeal against---Appellant who was serving as Reader to a Civil Judge was dismissed from service without holding inquiry against him on ground that he was convicted and sentenced to 9 months R.I. by Summary Military Court---Appellant was convicted and sentenced by Summary Military Court on filing complaint against him on allegation of fraud and misrepresentation without affording him an opportunity of hearing---On filing Constitutional petition in High Court against order of his conviction and sentence passed by Summary Military Court, High Court had declared same as mala fide and without jurisdiction---Appellant’s departmental appeal filed against order of his dismissal from service, having been dismissed, appellant had approached Service Tribunal in appeal praying that since the very foundation of order of his dismissal, namely his conviction and sentence by Summary Military Court, had ceased to exist, order of his dismissal should be set aside---Admittedly since very foundation of order of dismissal of appellant from service which was conviction by Military Court had been declared mala fide, without jurisdiction and of no legal effect, superstructure on said basis would wholly collapse---Impugned order in consequence of acquittal of appellant, would not hold field---Order of dismissal of appellant could not be maintained---Said order was set aside---Appellant, however having already attained age of superannuation, would only be entitled to monetary benefits from date of passing of impugned order in accordance, with law.

Muhammad Sardar v. Senior Member (Estab.) Board of Revenue 1985 SCMR 1062; Azharul Haq v. Director of Food, Punjab 1991 SCMR 209; Muhammad Hussain v. Collector, Central Excise and Land Customs, Rawalpindi 1989 PLC (C.S.) 175; Attaullah Shaikh v. WAPDA 2001 SCMR 269; Ch. Muhammad Azhar’s case PLJ 2003 SC 493 and Zaffar Ullah Khan v. Secretary, Government of Punjab 2004 PLC (C.S.) 1438 ref.

Abrar Bukhari for Appellant.

Ahmad Ali Pirzada, Addl. A.G. for Respondents.

Manzoor Ahmed, Advocate as Amicus Curiae.

Date of hearing: 10th December, 2004.

2005 P L C (C.S.) 946

[Karachi High Court]

Before S. Ali Aslam Jafferi and Muhammad Moosa K. Leghari, JJ

MUHAMMAD SIDDIQUE DETHO

Versus

STATE LIFE INSURANCE CORPORATION and others

C.P. No.D-252 of 2004, decided on 16th March, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Implementation of judgment---Appeal by petitioner was allowed by Service Tribunal and he was ordered to be reinstated in service---Petitioner submitted his joining report on 12-11-2003, but he was not taken on duty on ground that Authorities intended to approach Supreme Court against judgment of Service Tribunal---Petition for Leave to appeal filed by Authorities was dismissed, but despite that petitioner was not allowed to join the duty---Petitioner, who had submitted joining report, could not be blamed and he would be treated and deemed to be on duty w.e.f. 12-11-2003 when he submitted his duty report for the first time after decision of Service Tribunal and he was not allowed to join without any lawful excuse.

Syed Muhammad Saulat Rizvi, for Petitioner.

Abdul Hai Khan Pathan for Respondents.

Date of hearing: 16th March, 2005.

2005 PLC(C.S.)956

[Karachi High Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

ADIL ABDUL JABBAR and others

Versus

CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and another

Civil Petition No. D-947 of 2001, heard on 7th February 2005.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Securities and Exchange Ordinance (XVII of 1969), Ss. 3, 4, 5, 34 & 35---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Termination of service---Civil servant, determination of---Services of petitioners employed as Clerks in Stock Exchange, having been terminated, they filed grievance petition in Labour Court for redress of their grievances, which were allowed by Labour Court and petitioners were directed to be reinstated with back ­benefits---On filing appeal by the Employer against judgment of Labour Court, Labour Appellate Tribunal set aside judgment of Labour Court holding grievance petitions filed by petitioners before Labour Court were not maintainable as petitioners were civil servants in terms of S.2-A of Service Tribunals Act, 1973 and that only Service Tribunal had exclusive jurisdiction to adjudicate matters concerning their terms and conditions of service---Validity---Under provisions of S.2-A of Service Tribunals Act, 1973 only employees of a Corporation established by Federal Government or owned or controlled by it could be treated as civil servants---Stock Exchange or for that matter even Exchange formed and registered under Securities and Exchange Order could not be treated as a Corporation so established---Stock Exchange was not owned by Federal Government and expression "controlled" could not extend to each and every type of control---Service Tribunals Act, 1973 was a law enacted under Art.212 of the Constitution and though Parliament was competent to declare a person to be in service of Pakistan, such person must perform an element of public duty---How a Clerk of a private Stock Exchange could be deemed to be performing such public service---High Court allowed Constitutional petition and in view of enactment of Industrial Relations Ordinance, 2002, directed that appeal be placed before Single Judge of High Court for a decision in accordance with law.

Syed Shoa-un-Nabi for Petitioners.

Muhammad Farooq Ghani for Respondent No2.

Date of hearing: 7th February, 2005.

2005 P L C (C.S.) 1220

[Karachi High Court]

Before Ata-ur-Rehman and Zia Perwaz, JJ

IMTIAZ AHMED SHAH

Versus

PROVINCE OF SINDH and others

Civil Petition Nos. D-1311 of 2003 and D-1312 of 2004, decided on 3rd March, 2005.

Sindh Civil Servants Act (X1V of 1973)---

---S. 9---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Promotion---Petitioner, had sought declaration to the effect that Degree of B.Tech (I-Ions) was Engineering Degree at par with Degree of B.E, B.Sc.(Engg) and that B.Tech (Dons) Sub-Engineers being Engineering Graduates, allocation of 3% promotion quota for them vis-a-vis 30% quota for Engineering Graduates other than B.Tech(Hons) was discriminatory, having no value in the eye of law---Petitioner had sought direction to the Authorities to act upon laws and rules and perform their duty enjoined upon them by law---Question raised in the Constitutional petition related only to terms and conditions of service of petitioner falling squarely within jurisdiction of Service Tribunal---Petitioner could not refer to any case of promotion of any employee during relevant period having similar qualification so as to make out a case on ground of discrimination---Mere assertion of discrimination not Supported by any act of discrimination, would not by itself constitute a ground for entertaining Constitutional petition---Matter which pertained to terms and conditions of service, was hit by provisions of Art. 212 of the Constitution---If the petitioner would approach appropriate forum, his case could be considered on merits with due regard to the fact that matter was being agitated before High Court.

A.D. Shah, for the Petitioner.

Ahmed Pirzada, A.-A.G. for the State.

Date of hearing: 3rd March, 2005.

2005 P L C (C.S.) 1313

[Karachi High Court]

Before Wahid Bux Brohi and Maqbool Baqar, JJ

DHARAM CHAND

Versus

DISTRICT CO-ORDINATION OFFICER, LARKANA and 3 others

Constitutional Petition No.D-20 of 2004, decided on 20th February, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Grant of pension and pensionary benefit---Authority had submitted that Department had received instructions from Government to put up a demand covering pension and pensionary benefit claimed by all the employees of District Government retired upto year2003 for which they were collecting figures and would make due reference which would take sufficient time---Petitioner, who was retired in the month of January, 2002, was facing a lot of financial difficulties while he was also proposing to arrange marriage of his daughter and being hard up, he needed some amount in lump sum to meet his urgent needs---Validity---High Court directed that out of entire claim of petitioner an amount of Rs.7000 per month be paid to petitioner on or before specified date of every Calander month starting from March, 2004 and an amount of Rs.40,000 be also paid to him within specified period.

Jai Jai Veshno Mange Ram for Petitioner.

Muhammad Bachal Tonyo, Addl. A.-G. along with Dileep Kumar on behalf of DCO, Larkana for Respondents.

2005 P L C (C.S.) 1404

[Karachi High Court]

Before Ata-ur-Rehman and Amir Hani Muslim, JJ

Mst. AMNAT

Versus

PROVINCE OF SINDH and others

C.P. No.D-1077 of 1998, C.P. Nos.1162 and 1207 of 1999 and C.P. No. D-558 of 2000, heard on 21st April, 2004.

Civil Servants Act (LXXI of 1973)---

----S.21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Benevolent Fund---Release of---Petitioners had sought directions against respondents for the release of their amount of Benevolent Fund which were denied inordinately by respondents---High Court observed that scheme to immediately disburse Benevolent Fund amount to beneficiaries should be framed by Authorities, in such a manner that it should redress the human sufferings of deprived class---Present Scheme fell much short of that and irregularities in disbursement of Benevolent Fund and inordinate delay in that process had compelled beneficiaries to approach High Court---Accountant General was directed to keep amount of Benevolent Fund under a separate head and transfer same every month to Finance Department---Accountant General Office would also forthwith transfer entire amount of Benevolent Fund with interest accrued thereon to Finance Department and Finance Department on transfer of amount would also keep that sum under a separate head and would invest it in any profit bearing Scheme---Amount kept in Benevolent Fund would not be dealt with in normal budgetary proposal nor would such amount lapse.

Petitioner in person.

Date of hearing: 21st April, 2004.

2005 P L C (C.S.) 1

[Lahore High Court]

Before Syed Zahid Hussain, J

SUHAIL SHAFI

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.8015 of 2004, decided on 22nd November, 2004.

Punjab Extra Assistant Commissioner Recruitment Rules, 1992-----

-----Punjab Provincial Management Service Rules, 2004---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion--­Eligibility---Criteria---Administrative domain---Executive domain--­Petitioners/civil servants were not eligible for promotion to the post of Extra Assistant Commissioner under Punjab Extra Assistant Commissioner Recruitment Rules, 1992 and Punjab Provincial Management Service Rules, 2004---Determination of eligibility and criteria for promotion is essentially an administrative matter which fell within executive domain and policy decision making of the Government---Interference by the Court in such matters was not warranted---Constitutional petition was dismissed in circumstances.

The Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmad Khan PLD 1960 SC (Pak) 81 ref.

Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155 and Falak Sher Khan and another v. Mukhtar Ahmad PLD 1989 SC 262 quoted.

Ch. Muhammad Khalid Farooq for Petitioner.

Fazal-e-Miran Chohan, Addl. A.-G.

Javed Hussain Sial, Litigation Officer along with Zahid Manzoor Section Officer for Respondent No. 1.

Rana Liaqat Ali Superintendent for Respondent No.2.

2005 P L C (C.S.) 4

[Lahore High Court]

Before Mian Saqib Nisar, J

ZAFAR MAHMOOD MALIK

Versus

WATER MANAGEMENT SPECIALIST and 5 others

Writ Petition No. 12249 of 2004, decided on 21st October, 2004.

Constitutional of Pakistan (1973)---

-----Arts. 199 & 9---Civil service---Stoppage of salary on allegation of inefficiency without initiating departmental inquiry against civil servant---Validity---Respondent Officer was neither competent authority nor had power to direct stoppage of salary---Main source of livelihood of a civil servant was his salary, without which he could not sustain his family needs---Such illegal and unlawful action of respondent Officer was a classical case of abuse and misuse of authority and in breach of fundamental right/life of civil servant as enshrined be the Constitution---High Court set aside impugned order being void ab initio and directed immediate payment of salary to civil servant while imposing costs of Rs.25,000 upon respondent Officer to be recoverable from his personal pocket as arrears of land revenue.

Petitioner in person.

Muhammad Sohail Dar, A.A.G.

Muhammad Shafique, Ex-Water Management Coordinator (NDP)/Respondent No.2 in person.

2005 P L C (C.S.) 21

[Lahore High Court]

Before Muhammad Khalid Alvi, J

Syed MAQBOOL HUSSAIN GILLANI

Versus

BOARD OF SECONDARY EDUCATION LAHORE through CHAIRMAN and 2 others

Civil Revision No.276-D of 2001, decided on 17th September, 2003.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), Ss.96 & 115---Suit for declaration---Appeal---Limitation---Petitioner in his suit for declaration had sought correction of his date of birth mentioned in his matriculation certificate---Petitioner had further prayed that respondent/employer be directed to correct his date of birth in petitioner's service record maintained by it---During pendency of suit, petitioner's date of birth was corrected by respondent/Education Department in accordance with law as prayed by petitioner in his suit and prayer of petitioner to that extent having been fructified during pendency of suit, no decree was required to be passed by Trial Court in that regard---Second prayer of petitioner with regard to direction to respondent employer to correct his service record accordingly, appeared to be correct in view of law laid down in judgment of High Court reported as PLC 1997 (CS) 1122---Trial Court decreed suit and respondent employer challenged judgment of Trial Court in time barred appeal which was allowed---Validity---Appeal filed by respondent was time-barred and no plausible reasons to condone such delay was given---High Court allowing revision petition filed by petitioner, set aside judgment and decree passed by Appellate Court below.

PLC 1997 SC 1122 ref.

Syed Kabeer Mehmood and Muhammad Ameen Malik for Petitioner.

Mian Muhammad Ashraf Sial for Respondents Nos. 1 and 2.

Date of hearing: 17th September, 2003.

2005 P L C (C.S.) 34

[Lahore High Court]

Before Rustam Ali Malik, J

MUHAMMAD NADEEM DAR and 12 others

Versus

RIAZ-UL-HASSAN ALVI and another

Crl. Misc. No.87-Q of 2002, decided on 16th June, 2004.

National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---

----Reglns. 20, 31 & 34---Criminal Procedure Code (V of 1898), Ss. 561-A, 200, 202, 204 & 537---Industrial Relations Ordinance (XXIII of 1969), Ss.16/53, 22-A & 22-F---Partition for quashing of proceedings---Proceedings initiated on complaint filed against petitioners under Ss. 16(d)(e) & 53 of Industrial Relations Ordinance, 1969 had been sought to be quashed on the ground that respondent/Senior Member of National Industrial Relations Commission, issued process to petitioners without recording statement of complainant on oath in violation of mandatory provisions of Ss.. 200 to 204, Cr.P.C --­Validity---Industrial Relations Ordinance, 1969, was a special law and National Industrial Relations Commission had framed its own regulations exercising its powers under S. 22-F of Industrial Relations Ordinance, 1969 and method to deal with the complaint had been provided in Chapter VI of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 and in that respect Reglns. Nos. 20 to 31 of said Regulations, were relevant in the case---Apparently S. 200, Cr.P.C. was not applicable to the proceedings of a complaint filed before National Industrial Relations Commission nor under said Regulations it was necessary that before issuing a process to accused, the complainant should be examined on oath---Under Regln. 31 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, though Criminal Procedure Code had been made applicable to proceedings before National Industrial Relations Commission, but provisions of Industrial Relations Ordinance, 1969 and Regulations framed thereunder would take precedence ---Regln. 34 of National Industrial Relations Commission (Procedure, Functions) Regulations, 1973, gave power to National Industrial Relations Commission to curtail examination for expeditious disposal of cases and in exercise of powers under said Regln. 34 said Commission could direct any examination or cross-examination or re-examination to be cut short or to be dispensed with---Respondent/Senior Member in the present case, had acted within his powers to believe affidavit of complainant and to dispense with examination before issuing process to petitioners and in doing so he did not appear to have committed any irregularity---Failure to examine complainant before issuing process to accused, was mere irregularity, curable under S. 537, Cr.P.C.

Ali Muhammad v. Bagh Ali 1977 PCr.LJ 891; Abdul Majid v. Muhammad Mansur Ali and 14 others 1969 PCr.LJ 692; Habib Ullah v. Soomar and others 1991 PCr.LJ 279; Muhammad Irfan v. The State 2001 PCr.LJ 8585; Said Muhammad v. Raja Haq Nawaz 1986 PCr.LJ 1418; Mian Munir Ahmad v. The State 1985 SCMR 257; Shamim v. The State and another PLD 1966 SC 178; Zahid Khalil v. Wajid Ali and an other 1990 PCr.LJ 713 and Mst. Allah Bandi v. Dr. Arshad Malik, C.S.P. District Magistrate, Sargodha and another 1969 PCr. LJ 547 ref.

Chaudhry Ghulam Qadir and Khadim Hussain Tahir for Petitioners.

Muhammad Akram Naveed for Respondent.

Muhammad Akbar Tarar Addl. A.-G. for the State.

Date of hearing: 12th May, 2004.

2005 P L C (C.S.) 48

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD TARIQ

Versus

GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT through Secretary, Lahore and 2 others

W.Ps. Nos.2992, 3608 of 2003 and 5015 of 2002, decided on 9th April, 2004.

Constitution of Pakistan (1973)---

--Art.199---Notification No.FD-PC-2/99, dated 1-8-1991 Government of Punjab, Finance Department---Constitutional petition--­Maintainability---Civil service---Two advance increments, grant of---One of the civil servants was Radiographer while the other was Upper Division Clerk both of them had acquired degree of LLB, during their service in a hospital---Both the civil servants had claimed two advance increments as per provisions of Notification No.FD-PC-2/99, dated the 1-8-1991, Government of Punjab, Finance Department---Authorities denied increment on the ground that the civil servants had not acquired higher qualification in the field in which they were working---Validity--­Both the civil servants were not serving in any department concerning dispensation of justice and acquiring higher qualification by way of degree of Bachelor of Law was not an additional qualification in the relevant field---High Court in exercise of Constitutional jurisdiction declined to interfere with the decision passed by the authorities---Petition was dismissed in circumstances.

Muhammad Ashraf v. Government of Punjab through Secretary Finance Department and 2 others 2002 PLC (C.S.) 873; Muhammad Nasrullah Khan v. Government of the Punjab and others 2004 PLC (C.S.) 32; Federation of Pakistan and others v. Qamar Hussain Bhatti and others 2004 P.L.C (C.S.) 34; Province of Punjab and others. v. Pervaiz Iqbal 2004 SCMR 309; 2003 SCMR 309; 1996 SCMR 273 and Zarif Khan v. Government of the N.-W.F.P. 1996 MLD 833 ref.

Ch. Shakir Ali for Petitioner (in W.P. No.2992 of 2003).

Malik Muhammad Tariq Rajwana for Petitioner (in W.P. 3608 of 2003).

Nemo for Petitioner (in W.P. No.5015 of 2002).

Ch. Saghir Ahmad Standing Counsel for Government of Pakistan.

Muhammad Qasim Khan A.A.-G.

Date of hearing: 17th March, 2004.

2005 P L C (C.S.) 61

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ANWAR

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION FAISALABAD through Chairman and another

Civil Revision No. 1985 of 2003, decided on 24th June, 2004.

Specific Relief Act (I of 1877)---

---S. 42---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 20, 29 & 31---Civil Procedure Code (V of 1908), S. 115---Civil Service---Termination of Service---Suit for declaration--­Maintainability---Plaintiff was non-suited by both the Courts below merely on the ground that he was a civil servant and he had to file an appeal before Service Tribunal against termination of his services--­Validity---Said findings of both Courts below were not in consonance with Punjab Boards of Intermediate and Secondary Education Act, 1976 and law laid down by Superior Courts---Where Courts, had decided the case in violation of law laid down by Superior Courts or in violation of provisions of law, it would be a material irregularity committed by the Courts and High Court had ample jurisdiction to interfere in findings arrived at by both Courts below while exercising its powers under S. 115 of C.P.C.

Zia Farooq Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2002 SCMR 35 and Chairman Board of Intermediate and Secondary Education, Sargodha v. Abdul Rehman 1988 SCMR 1711 ref.

Ch. Muhammad Akram Zahid for Petitioner.

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

2005 P L C (C.S.) 64

[Lahore High Court]

Before Muhammad Muzammal Khan, J

HAVALDAR MIAN RAMZAN

Versus

FEDERAL GOVERNMENT, MINISTRY OF DEFENCE, through Chief of the Army Staff, General Headquarters, Rawalpindi

Writ Petition No. 126 of 2004, decided on. 7th June, 2004

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

----Art.199(3)---Constitutional petition ---Maintainability---Petitioner on certain allegations against him was subjected to Pakistan Army Act, 1952 and was removed from service after a thorough probe/inquiry by the Competent Authority on the basis of report of the Court of inquiry--­Proceedings were competently taken against petitioner providing him full opportunity of hearing---Matter relating, to members of Armed Forces involving terms and conditions of service or in respect of any action taken in relation to member of Armed Forces or a person subject to the Pakistan Army Act, 1952, jurisdiction of High Court was completely' barred under Art. 199(3) of Constitution of Pakistan 1973---Ouster clause in any Statute had to be strictly construed and was to be followed firmly---Constitutional petition by petitioner was not competent---Even otherwise disputed question of fact raised in Constitutional petition could not be set at rest, without recording of evidence and that course was not permissible in Constitutional jurisdiction of High Court---Lawful view formed by competent Authority within the allocated ambit of authority could not be substituted by High Court.

Ex-Lt. Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 and Muhammad Younis Khan 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

(b) Interpretation of Statutes---

---- Ouster clause in the Statute had to be strictly construed and was to be followed firmly.

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

Col. Rtd. Muhammad Akram for Petitioner.

2005 P LC (C. S.) 77

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Brig. (R) MUHAMMAD ARIF

Versus

WAPDA through Chairman, WAPDA House Shahre Quaid-e-Azam, Lahore and another

Writ Petition No.282 of 2001, heard on 3rd March, 2004.

(a) Compulsory Service (Armed Forces) Ordinance (XXIV of 1965)---

----Ss.2(f) & 9---Service Tribunals Act (LXX of 1973), S.4—­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Refusal of employer to reinstate petitioner after rendering compulsory service in Armed Forces Validity---Employee would make application or report to employer within three months of his release from service of Army, but not within three months before such release---Employer had arbitrarily refused petitioner's claim having been made within prescribed time---Enforcement of provision of Compulsory Service (Armed Forces) Ordinance, 1965 was not a matter pertaining to terms and conditions of service attracting jurisdiction of Service Tribunal--­High Court disposed of Constitutional petition with observations that employer, if so advised, would make an application to Manpower Tribunal and would act on its orders to be passed in terms of S.9(3)(a) or (b) of Compulsory Service (Armed Forces) Ordinance, 1965, and in case of failure of employer to do so, petitioner would stand reinstated in service of, employer in terms of S.9(1) w.e.f. the date of institution of Constitutional petition.

(b) Compulsory Service (Armed Forces) Ordinance (XXIV of 1965)-----

----S.9---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability-­Reinstatement of employee after rendering compulsory service in Armed Forces--Enforcement of provision of Compulsory Service (Armed Forces) Ordinance, 1965 was not a matter pertaining to terms and conditions of service attracting jurisdiction of Service Tribunal.

Zaheer Ahmad Qadri for Petitioner.

M. Munir Peracha for Respondents.

Date of hearing: 3rd March, 2004.

2005 P L C (C.S.) 80

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. AFTAB AHMAD MALIK

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY and others

W.P. No.5670 of 2004, decided on 1st July, 2004.

University of Engineering and Technology Lahore Act (V of 1974)---

----Ss. 3(2), 10-A, 24, 29, 31 & 41---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Removal from service---Petitioner was appointed as Chairman of Computer Sciences and Information Technology Department in the University of Engineering and Technology for a period of 3 years to be reckoned w.e.f. 6-8-2001, but he was relieved from duty on 1-4-2004 about 4 months prior to due date and another professor was assigned to look after the duties of the Department of the petitioner---Petitioner had filed Constitutional petition against said order of his premature relieve from duty ---Validity--­Appointment order of petitioner had clearly shown that appointment of petitioner was statutory appointment with fixed term of tenure---Neither the Statute nor the appointment order had made mention of an eventuality or situation in which appointment of petitioner could be cancelled or the term of appointment could be reduced or curtailed--­General principle governing fixed term of statutory appointment were to be kept in view in circumstances---Probe was conducted qua certain allegations against petitioner by a term and when findings /recommendation of said team came before Vice-Chancellor of the University he ordered its placement before Syndicate---Matter came before Syndicate which in its meeting dropped proceedings relating to the probe against petitioner---After having dropped the proceedings against petitioner, no reason or justifiable ground was left for any adverse action ,41 against petitioner---Order relieving petitioner, in circumstances, smacked of colourable exercise of power unwarranted by facts and law---Order passed against petitioner being patently illegal, without lawful authority, was liable to be struck down and quashed--­High Court accepting Constitutional petition of petitioner, declared order relieving petitioner from post of Chairman, Computer Sciences and Information Technology Department as without lawful authority and of no legal effect.

Ala-ud-Din Akhtar v Government of Punjab and another 1982 CLC 515; Khondkar Ali Afzal v Pakistan and another PLD 1959 (W.P.) Kar. 105; The Province of West Pakistan v. Ch. Nazir Hussain PLD 1960 SC (Pak.) 130; Debesh Chandra Das v. Union of India and others AIR 1970 SC 77; Muhammad Rashid v, Collector and others PLD 1978 Lah. 1370; Muhammad Gul Kakar v. Province of Baluchistan 1986 PLC (C.S.) 560; Ghulam Muhammad v. Saeed Ahmad 1986 CLC 1048; Qazi Sharif Hussain v. Chief Settlement Commissioner and others 1984 CLC 1420; Hamidullah and another v. Rai Khurshid Ahmad Khan and others PLD 1958 SC (Pak.) 516; Dr. Bashir Ahmad v. Province of Punjab and others 1992 PLC (C.S.) 306 and Dr. L.P. Agarwal v. Union of India and others AIR 1992 SC 1872 ref.

Muhammad Saleem Sh. for Petitioner.

Sajjad Hussain for Respondents.

Dates of hearing: 23rd, 25th June and 1st July, 2004.

2005 P L C (C.S.) 97

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. AFTAB AHMAD MALIK

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY and others

W. P. No. 11229 of 2004, decided on 22nd July, 2004.

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

----Ss. 2(aa), 3 & 5---Constitution of Pakistan (1973), Arts. 199 & 212--­Constitutional jurisdiction---Scope---Issuance of notice to the employee of University by the Vice-Chancellor of University assailed through Constitutional petition---Petitioner was earlier removed from Chairmanship of Department of Computer Sciences and Information Technology of University and said removal order was assailed by petitioner through Constitutional petition which petition was accepted and order of removal was declared illegal---Petitioner in the present petition had assailed show-cause notice issued to him by Vice-Chancellor of University under Punjab Removal from Service (Special Powers) Ordinance, 2000 on various grounds including that Vice-Chancellor was not competent to issue the show-cause notice and mala fides in issuing the show-cause notice---No order adverse to petitioner was passed except issuance of show-cause notice---Authority had conceded that petitioner was being dealt with under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 and that proceedings against him had been initiated under law---Constitutional petition filed by petitioner against issuance of show-cause notice to him, was not only barred because of bar contained under Art. 212 of the Constitution but also that show-cause notice itself was not assailable when no adverse order had yet been passed against petitioner---Constitutional petition was dismissed being not maintainable.

Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442; Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Munir Ahmed Sheikh v. Federation of Pakistan through Secretary, Establishment Division and another 2002 PLC (C.S.) 394; Mst. Zahida Shama v. Secretary- Education and others PLJ 2002 Lah. 1479; Muhammad Islam Khan v. Chairman, ADBP and others 2003 PLC (C.S.) 654; Ashiq Ali Khan v. Government of the Punjab through Secretary, Irrigation and. Power Department Lahore and 3 others 2003 PLC (C.S.) 1374; Muhammad Ashraf Chaudhry v. Chairman, Central Board of Revenue through Ministry of Finance, Government of Pakistan, Pak Secretariat, Islamabad and another 2001 PLC (C.S) 781; Khuda Bakhsh v. Anwar Hussain, MIC, Kasur and another PLD 1976 Lah. 919; Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others PL.D 1988 SC 670; Badar Zaman v. Government of Pakistan through Secretary; Establishment and another 2003 PLC (C.S.) 1201 and Azai M. Asif Jah Bahadur v. Government of the Punjab through Education Secretary, Lahore and 3 others 2004 PLC (C.S) 292 ref.

Muhammad Saleem Sheikh for Petitioner.

Sajjad Hussain for Petitioner.

Sh. Shahid Waheed for Respondent.

2005 P L C (C.S.) 129

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD NAVEED

Versus

DEPUTY DISTRICT OFFICER (REVENUE) and 4 others

W. P. No. 10536 of 2004, decided on 29th June, 2004.

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

----S. 4---Punjab Civil Servants (Efficiency and Discipline) Rules, (1975), Rr. 5, 6, 7 & 8---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Terms and conditions of service---Petitioner through Constitutional petition had prayed that de novo departmental inquiry and inquiry report be declared illegal and unlawful and proceedings be stopped---Petitioner was a civil servant and matter pertained to the terms and conditions of his service---Jurisdiction to take cognizance was barred under Article 212 of the Constitution read with section 4 of the Service Tribunals Act.

Muhammad Yameen's case PLD 1980 SC 22 rel.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Karachi 290; M. Muhammad Yameen v. Islamic Republic of Pakistan PLD 1980 SC 22 and Muzaffar Hussain v. Supdt: of Police Sialkot 2002 PLC (C.S.) 442 ref.

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

----Art. 199---Constitutional petition---Maintainability---Interlocutory order--- Intermediate stage---Constitutional petition was not maintainable qua the intermediate stage.

Abdul Wahab Khan v. Government of Punjab and others PLD 1989 SC 508 rel.

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

----Art. 199---Show-cause notice/charge-sheet---Constitutional petition was not maintainable against show-cause notice/charge sheet.

Muhammad Fayyaz's case 1994 PLC (C.S.) 697; National Re­rolling Steel Mill's case 1968 SCMR 317(2); Warasat's case 1969 SCMR 154; Mehmood Ali's case 1984 CLC 142; Mst. Shagufta Begum's case PLD 1989 SC 360 and Mir Nabi Bakhsh Khoso's case 2000 SCMR 1017 ref.

Arif Saeed for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. assisted by Muntazar Mehdi for Respondents (on Court's call).

2005 P L C (C.S.) 138

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

Dr. ANJUM SYED

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad and 3 others

F.A.O. No. 153 of 2002, decided on 1st July, 2004.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Words "or" & "and" used in a statute‑‑‑Construction of‑‑‑Duty of Court primarily a ‑to adhere to strict literal interpretation of words used‑‑‑Substitution of conjunctive should not be made without sufficient reason‑‑‑Word "or" would indicate alternative‑‑‑In ordinary use, word "and" is conjunctive and word "or" disjunctive‑‑‑In order to give effect to real intention of Legislature, word "or" can be read in place of "and" and vice versa, if context so provided‑‑‑Principles.

P. v. R. KLR 1993 Civil Cases 336; L.H. Sugar Factory, Pilibhit. v. Moti AIR 1941 Allahabad 243; Food Inspector, Trichur Municipality Trichur. v. Q.D. Paul and another AIR 1965 Kerala 96; Muhammad Sanullah v. Allah Din 1993 MLD 399; M. Idrees. v. The State 1990 PCr.LJ 655; Ishwar Singh Bindra and others v: State of U.P. AIR 1968 Supreme Court 1450; Muhammad Arshad Khan v. J & P Coats Pakistan Ltd. Karachi and 2 others PLD 1977 Kar. 83 and Syed Yakub Shah v. The State PLD 1978 Quetta 158 rel.

(b) Interpretation of statutes‑‑‑

‑‑‑Words used in a statute‑‑‑Construction of‑‑‑Guidelines.

The fundamental principle of construction is that the word used to a Statute must be understood in their ordinary grammatical sense. This will, however, not prevent the Court to depart from the ordinary grammatical meaning of a word, if it appears from the context or a consideration of the other provisions of the Statute that it was not the intention of the Legislature to give it another meaning. Similarly, if the ordinary grammatical meaning of a word results in creating absurdity or anomaly or, rendering the legislation to no effect, then narrower or broader meaning may be given to the word of it may be construed in such a way as to obviate the absurdity or anomaly on the principle that is could not have been the intention of the Legislature to create absurdity or anomaly or to render its enactment of no effect.

Courts are not slaves of words, but their masters. Courts would give words their natural and ordinary meaning in the context in which they found them.

Food Inspector, Trichur Municipality Trichur. v. O.D. Paul and another AIR 1965 Kerala 96 fol.

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

‑‑‑‑S. 7(3)(d) [as added by Federal Public Service Commission (Amendment) Ordinance (XVI of 2001)‑‑‑Appeal‑‑‑Appointment as Professor‑‑‑Posts were advertised on 23‑12‑2001‑‑‑Commission rejected appellant's application for lacking 9 years teaching experience and publications of two research papers as Associate Professor ‑‑‑Validity‑‑­Qualification for a candidate for initial recruitment as Professor was 9 years teaching experience as Assistant Professor with publication of 5 research papers in standard medical Journals‑‑Total experience of not less 12 years as Assistant/Associate Professor was not requirement of the Rules as same was to conflict with condition of 9 years teaching experience as Assistant Professor‑‑‑Qualification. for appointment as Professor for a candidate being Assistant Professor and Associate Professor were not conjunctive, rather disjunctive and separate‑‑­Appellant was appointed as Assistant Professor on 3‑12‑1992, and was made regular on 16‑3‑1994‑‑‑Appellant was author of 11 research papers in relevant subject published in recognized medial journals‑‑‑High Court accepted appeal, set aside impugned order and declared appellant eligible to apply for post of Professor.

Amjad Hameed Ghouri for Appellant.

Ch. Muhammad Tariq D.A.G. and Muhammad Khalil Deputy Director for Respondents.

Date of hearing: 15th June, 2004.

2005 P L C (C.S.) 151

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMED

Versus

GOVERNMENT of Punjab Through, Chief Secretary and 6 others

Writ Petition No.7501 of 2002, heard on 19th April, 2004.

Constitution of Pakistan 1973‑‑‑

‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Allegations of mala fides should be specific‑‑‑Petitioner applied for the post of Patwari with the Authorities but was not selected‑‑‑ Grievance of the petitioner in the Constitutional petition was that although he was better qualified and obtained higher marks in the written test but the Authorities illegally awarded him lesser marks in the interview in order to accommodate other candidates‑‑‑Validity‑‑‑Specific allegations were not leveled by the petitioner against the members of Selection Committee for ousting the petitioner from the selection process by awarding him lesser marks in the interview‑‑Mala fides should be specific‑‑‑General and vague allegation of mala fides is not sufficient for interfering in the selection, process‑‑­Nothing was on record to show that lesser marks were awarded to petitioner with mala fide intention and ulterior motive in order to accommodate other candidates‑‑‑Proper criteria was laid down for grant of marks in the interview by the Authorities‑‑‑Constitutional Petition was dismissed, in circumstances.

Saeed Ahmad's case PLD 1974 SC 151 ref.

Syed Muhammad Raza v. General Manager WAPDA and others 1994 MLD 1647 and AIR 1991 SC 1011 Distinguished.

Mian Ahmed Mehmood for Petitioner.

Syed Hashmat Hussain Naqvi A.A.‑G. and Pir Masood‑ul­-Hasan Chishti for Respondents.

Muhammad Rafique, Head Clerk, Office of DDO. (REV).

Date of hearing: 19th April, 2004.

2005 P L C (C.S.) 154

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

JAMIL AHMED VIRK and another

Versus

SECRETARY EDUCATION GOVERNMENT OF PUNJAB and 8 others

Writ Petition No. 17529 of 2003, decided on 18th May, 2004.

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

‑‑‑‑Arts. 18 & 199‑‑‑Constitutional petition‑‑‑Fundamental rights, violation of‑‑‑Freedom of profession‑‑‑Grievance of the petitioners in Constitutional petition was that respondents were appointed by the Authorities to the posts for which they were not qualified and such action was in violation of terms and regulations provided by the Government for the said appointments‑‑‑Validity‑‑‑Practice of Authorities, of making initial appointments on provisional basis in violation of terms and regulations of appointment and then converting such appointments into regular appointments, was prima facie, violative of fundamental rights provided under Art. 18 of the Constitution which guaranteed every citizen freedom of profession.

Human Right's case 1996 SCMR 1349; Munawar Khan's case 1993 SCMR 1287; Channabasa Bhi's case AIR 1965 SC 1293; Abdur Rashid's case 1995 SCMR 999 and Aziz Ahmad's case 1997 PLC (CS) 356 ref.

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

‑‑‑‑Arts. 2‑A, 4, 5(2), 37 & 38‑‑‑Each and every organ of the State has to function independently, freely without interference by any other organ of the State‑‑‑Said principle along with Arts. 2‑A, 4, 5(2), 37 & 38 of the Constitution lead to a conclusion that each and every organ of the State should remain within its own sphere‑‑‑Superior Court set aside the actions which were not within the domain of the Authorities or amounted to usurping the functions of other organs‑‑‑Action taken by the Authorities in the present case, was not according to the prescribed rules and regulations but was under the influence and direction of private individuals same was not sustainable in the eye of law.

Zahid Akhtar's case 1995 SCMR 530; Ghulam Mohy‑ud‑Din's case PLD 1964 SC 829; Syed Fayyaz Hussain Qadri's case PLD 1972 Lah. 316; Amanullah Khan's case PLD 1990 SC 1092 and Sacm Labour Union's case (1946) 2 All ER 201 ref.

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

‑‑‑‑Arts. 189 & 201‑‑‑Judgment of Supreme Court was binding on each and every organ of the State and the judgment of High Court Was binding op each and every organ of the State by virtue of Art. 201 of the Constitution‑‑‑Supreme Court had on each occasion, declared void the actions of the Authorities which were passed in violation of law, Constitution and amounted to usurpation of authority of other functionaries‑‑‑Non‑observance by the functionaries of such rule as laid down by the Supreme Court was a violation of Art.189 of the Constitution.

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

‑‑‑‑Arts. 4 & 212‑‑‑Service Tribunals Act, (LXX of 1973), S.4‑‑‑Civil service‑‑‑Bar of jurisdiction‑‑‑Legality‑‑‑In spite of the bar contained in Art. 212 of the Constitution read with S. 4 of the Service Tribunals Act, 1973, the Constitutional Court under Art. 199 of the Constitution had ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Art.4 of the Constitution.

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.

Hafiz Abur Rehman Ansari for Petitioners

Muhammad Hanif Khatana Add. A.G. for Respondents Nos. 1 to 3&9.

Rai Tufail Ahmad Kharal, for Respondents No.6 and 8.

Ahmad Raza Malik, for Respondent No.7.

2005 P L C (C.S.) 175

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

Captain (Retd.) WASEEM PASHA TAJAMMAL

Versus

FEDERAL GOVERNMENT, MINISTRY OF DEFENCE through Chief of the Army Staff

Writ Petition No.2864 of 2001, decided on 1st July, 2004.

Pakistan Army Act (XXXIX of 1952)‑‑‑

‑‑‑S. 16‑‑‑Rules of Business 1973, Rr.15 & 15‑A‑‑‑Constitution of Pakistan (1973), Art. 199(3)‑‑‑Constitutional petition‑‑‑Army officer‑‑­Termination of Service‑‑‑Demotion‑‑‑Compulsory retirement and demotion of the petitioner by the Federal Government was challenged in Constitutional petition‑‑‑Validity‑‑‑Article 199(3) of the Constitution had imposed restriction on the High Court that no order could be made under Article 199(1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan‑‑‑Petition was dismissed in circumstances.

Captain Iftikhar Ahmad's case 2001 YLR 2679; Ex‑LT. Col. Anwar Aziz v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi PLD 2001 SC 549; Cap. Syed Jamil Ali Shah 2004 Pak. Crl. L.J. 560 quoted.

Muhammad Akram for Petitioner.

Raja Iftikhar Javed Standing Counsel with Iqbal Hashmi Lt.‑Col. AJAG for Respondent.

Date of hearing: 16th June, 2004.

2005 P L C (C.S.) 192

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. ZAKRIYA TARIQ

Versus

GOVERNMENT OF PUNJAB and others

W. P. No. 6492 of 2004, decided on 25th May, 2004.

(a) University of Lahore Ordinance (LXI of 2002)‑‑‑

‑‑‑‑‑Ss.20 & 41, Sched., R.6(7)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Petitioner was desirous, of being appointed for a post lying vacant with the University, however, Government appointed the respondent for the same‑‑‑Grievance of the petitioner in Constitutional petition was that the power of appointment vested only with the University who was supposed to fill the vacancy by following the procedure laid down in University of Lahore Ordinance, 2002, but on the contrary selection process envisaged by the Ordinance under Cl.7 of R.6 of Schedule to S.41 was violated‑‑‑Objection of the University was that the petition of the petitioner was premature and incompetent because the posting of the respondent was a provisional arrangement which was subject to certain conditions including the approval of Syndicate as provided for in the Ordinance‑‑‑Validity‑‑­Orders and notifications for the appointment of the respondent left no doubt that it was merely a provisional arrangement subject to the approval of the Syndicate‑‑‑Power to make such appointment and posting fell within the powers and duties of Syndicate provided under S.20 of the Ordinance‑‑‑Since, the matter with regard to appointment was yet to be finalized by the Syndicate, no interference was required under Constitutional jurisdiction by the High Court‑‑‑Constitutional petition was dismissed in circumstances.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.114‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Estoppel, principle of‑‑‑Applicability‑‑‑Where the petitioner had herself made an application and requested for appointment to a certain post and consideration of her case by the Government, she was not entitled to raise a plea in the Constitutional petition that the Government had nothing to do with the matter and it was the University alone, which could have initiated the process and made the appointment.

Talat Farooq Sh. for Appellant.

Fazal‑i‑Miran Chohan Addl. A.‑G. for Respondent Nos.1 and 3.

Sh. Shahid Waheed for Respondent No.2.

Khurram Latif Khan Khosa for Respondent No.4.

Date of hearing: 25th May, 2004.

2005 P L C. (C.S.) 199

[Lahore High Court]

Before Syed Jamshed Ali, J

Syed AMJAD ALI SHAH

Versus

FEDERATION OF PAKISTAN; through Ministry for Information and Broadcasting, Islamabad and 5 others

Writ Petition No.4722 of 1998, heard on 2nd June, 2004.

(a) Pakistan Television Corporation Employees Service Rules‑‑‑

‑‑‑‑ Rr.6.01, 6.02, 6.03, 6.04, 4.01 & 4.02‑‑‑Constitution of Pakistan (1973), Arts, 199, 25 & 212‑‑Constitutional‑ petition‑‑‑Appointment‑‑­Procedure‑‑‑If a vacancy is to be filled in, irrespective of the capacity, including contract employment, from amongst the employees of the PTV, all eligible persons are entitled to be considered under R.6.02 of, the Service Rules by the Selection Board as required by R.6.03‑‑­Pakistan Television Service Rules, do not permit the making of any appointment including a contract appointment in secrecy without providing opportunity to compete for the post to other eligible employees of the Pakistan Television‑‑‑Denial of equal opportunity in the matter of public employment violates Art.25 of the Constitution and, therefore, cannot be countenanced‑‑‑Petitioner, in the present case, being the only candidate for the post in‑question and not praying for enforcement of Terms and conditions of his service, bar of Art.212, Constitution was not applicable to his case.

Abdul Jabbar Memon and others 1996 SCMR 1349; Capt, (Retd.) Muhammad Naseem Hijazi Director Finance and Adim Gujranwala v. Province of Punjab and 2 others 2002 SCMR 1720 a Dr. Ahmad Salman Waris. Assistant Professor, Services Hospital Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 ref.

(b) Civil service‑‑‑--

‑‑‑‑Appointment‑‑‑Fact that Pakistan Television was a commercial organization and therefore, free to make contract appointments in disregard of their own Rules and the rule laid down by the Supreme Court, would only project "King can do no wrong" theory which could not be accepted in a society governed by written Constitution.

Faisal Zaman and Aleem Baig Chughtai for Appellant.

Naveed Ashiq Alvi for Respondents Nos.2 to 5.

Irfan Khalil Qureshi for Respondent No.6.

Dates of hearing: 1st and 2nd June, 2004.

2005 P L C (C.S.) 205

[Lahore High Court]

Before Syed Zahid Hussain, J

JEHANZEB KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Education, Civil Secretariat, Lahore and 5 others

Writ Petition No. 18054 of 2003; decided on 16th July, 2004.

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

‑‑‑‑Arts.199 & 212‑‑‑Constitutional petition under Article 199 of the Constitution‑‑‑Maintainability‑‑‑Terms and conditions of service‑‑­Petitioners were appointed on ad hoc basis; their services were terminated and they were re‑inducted in service pursuant to orders of Supreme Court of Pakistan‑‑‑Petitioners who were treated as fresh recruits, claimed to have been regularized with retrospective effect from the date of their induction in service and had contended that period of their termination from service be treated as extraordinary leave Validity‑‑‑Clause(1) of Article 212 of the Constitution visualized Service Tribunals and scope of relevant clauses of Article 212 of the Constitution is all pervasive and extensive with overriding effect‑‑‑Petitioners had earlier approached High Court under Article 199 of the Constitution qua their termination where their petition was held to be hit by the bar contained in Article 212 of the Constitution, as their remedy lay before the Service Tribunal‑‑‑Exclusionary clauses of Article 212 of the Constitution had ousted jurisdiction of High Court.

Muhammad Sarfaraz and 174 others v. Government of Punjab through Secretary, Education Department, Civil Secretariat, Lahore arid others 2001 PLC (C.S.) 1224 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 quoted.

Ahsan Ali Shah v. Chief Secretary. Government of Sindh, New Sindh Secretariats Karachi and 3 others 2000 PLC (C.S.) 643 and Khalil Ahmed Soomro v. Government of, Sindh and others 1994 PLC (C.S.) 201 distinguished.

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

‑‑‑‑Arts. 199, 189 & 190‑‑‑Constitutional petition‑‑‑Binding nature of the judgment/orders of Supreme Court‑‑‑All executive and judicial authorities throughout the country are ordained to act in aid of Supreme Court‑‑‑High Court would get, the order of Supreme Court complied with if same contained direction of absolute nature without more to be done for its implementation‑‑‑Where the matter was of interpretation and a process was to be undertaken and parties had variant approaches as to its true import, writ of mandamus could not be issued lay High Court.

Mahmudul Haque v. The Controlling Authority, S.D.O. (North), Chittagong and another PLD 1963 SC 233 ref.

Dr. A. Basit for Petitioner.

Fazal‑i‑Miran Chohan Addl. A.‑G. with Muhammad Athar Saeed S.O. for Respondents.

Date of hearing: 13th July, 2004.

2005 P L C (C.S.) 216

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

Mst. FARAH ZAHRA

Versus

BOARD OF GOVERNORS OF THE AREA STUDY CENTRE FOR AFRICA AND NORTH AND SOUTH AMERICA, QUAID‑I‑AZAM UNIVERSITY ISLAMABAD through Chairman Vice‑Chancellor and another

Writ Petition No.45 of 2004, decided on 13th July, 2004.

(a) Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989‑--

‑‑‑‑R.21 & Sched.‑‑‑Centres of Excellence Employees Act (XLV of 1975), S.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appointment as Assistant Professor in Area Study Centre, Quaid‑e‑Azam University‑‑Selection Board recommended petitioner for such post, but Board of Governors declared him not eligible on basis of report of Scrutiny Committee for lacking four years experience in relevant field‑‑‑Validity‑‑‑Petitioner had total teaching experience of 8 years i.e. at under graduate level 3 years and, at post‑graduate level 5 years fellowship‑‑‑University of Jaume Castellon, Spain had issued certificate showing petitioner as member of faculty for 4 years‑‑‑Teaching experience at Castellon University was equal to 4 years regular full‑time teaching‑ experience in Pakistan as 4 years throughout stay at such University was not essential for its members‑‑‑E‑mail letter from Director of Castellon University received by Quaid‑e‑Azam University would not be proof to contradict certificate of experience issued by Castellon. University in favour of petitioner‑‑‑Such letter bearing date subsequent to advertisement date for inviting applications for such post had been mala fidely mentioned in report by a member of Scrutiny Committee‑‑‑Such letter on verification had not been found issued by Castellon University‑‑Board of Governors had no authority to scrutinize certificate issued by foreign University or interpret experience in accordance with their own rules or regulations contrary to the Rules of original University‑‑‑If experience of petitioner at Castellon University was excluded, even then she had more than four years experience in relevant field, thus, she should not be disqualified from appointment against such post‑‑‑High Court accepted Constitutional petition in circumstances.

Islamia University, Bahawalpur through Vice‑Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 S.C. 271; Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154; Sadullah v. Deputy Settlement Commissioner, Multan and others 1988 CLC 1198; Sardar Fateh Ali Khan Umrani v. Chief Election Commissioner of Pakistan, Islamabad and 3 others PLD 1999 Quetta 106 and Haq Nawaz and another v. Superintendent Canal Officer and 4 others 1999 SCJ 791 ref.

(b) Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989‑‑‑

‑‑‑‑R.21 & Sched.‑‑‑Teaching experience required for appointment as Assistant Professor in Area Study Centre, Quaid‑e‑Azam University‑‑­Criteria for calculating such experience in Quaid‑e‑Azam University and in foreign University‑‑‑Distinction‑‑‑Work experience in Quaid‑e‑Azam University and Area Study Centre is calculated according to period, during which one is affiliated with concerned institution and not the courses taught or‑work done during such period‑‑‑Candidate in Quaid‑e-­Azam University is expected to be present during his job and then his period for experience is calculated‑‑‑While candidate in foreign University is expected to be present at the start of course, which is to be taught separately before going to next course‑‑‑Credit hours are counted in other Universities, while in Quaid‑e‑Azam University, period is counted‑‑‑Courses are taught in module periods in Castellon University.

(c) Interpretation of statutes‑‑‑--

‑‑‑‑‑Ascertaining intention of law‑makers‑‑‑Duty of Court‑‑‑Court while interpreting any provisions of statute would ascertain intention of law­makers from the words used, which must receive their literal, natural and ordinary meaning‑‑‑Where two constructions were possible, then such construction should be adopted, which was more reasonable or which would ensure a smooth, harmonious working of statute.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope—­Hallmark of such jurisdiction would be to keep functionaries of the State/statutory body within ambit of their authority specified by statute and to check the excess made by‑them under the doctrine of Judicial review.

(e) Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989‑‑‑-

‑‑‑‑R.21 & Sched.‑‑‑Teaching experience required for a post in Quaid‑e-­Azam University‑‑‑Experience certificate issued by foreign University‑‑­Validity‑‑‑Board of Governors of Quaid‑e‑Azam University had no authority to scrutinize such certificate or interpret same in accordance with their own rules or regulations contrary to the Rules of original University.

(f) Interpretation of statutes‑‑‑

‑‑‑‑ Words "or" and "and" used in a statute‑‑‑Meaning.

Maxwell on Interpretation of Statute: Muhammad Arshad Khan v. J&P Coats Pakistan Ltd. Karachi and 2 others PLU 1977 Kar. 83 and Ishwar Singh Bindra and others v. State of U.P. AIR 1968 SC 1450 ref.

Raza Kazim, Syed Javed Jabbar and Riffat Saghir Kureshy for Petitioner.

Zafar‑ullah Khan for Respondents.

Date of hearing: 13th July, 2004.

2005 P L C (C.S.) 227

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Munshi TAHIR ZAHOOR

Versus

ADDITIONAL SECRETARY TO CHIEF MINISTER PUNJAB, LAHORE and 4 others

W.P. 8672 of 2004, decided on 4th June, 2004.

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

‑‑‑‑S.1(2)‑‑‑Politicion whether public servants‑‑‑Under provisions of Punjab Civil Servants Act, 1974 and Rules framed thereunder, the Politicians did not figure anywhere.

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

‑‑‑‑Art. 4‑‑‑General Clauses Act (X of 1897), S. 24‑A‑‑‑Duty and obligation of Public functionaries‑‑‑Public functionaries, were duty bound to act in accordance with law and after applying their own independent mind.

Messrs Airport Support Service's case 1998 SCMR 2268 ref.

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

‑‑‑‑Art. 5(2)‑‑‑Obeying command of Constitution‑‑‑Everybody was bound to obey the command of Constitution, under Art. 5(2), thereof.

Ch. Zahoor Elahi's case PLD 1975 SC 383 ref

(d) Administration of justice‑‑‑

‑‑‑‑ Competent Authority passing order under the directions of its superior, was not sustainable in the eye of law.

Ghulam Mohy‑ud‑din's case PLD 1964 SC 829 ref.

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

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Posting and transfer of civil servant‑‑‑Posting and transfer of a civil servant being a part and parcel of terms and conditions of service, Constitutional petition against the same was not maintainable.

Nazir Hussain, Ex‑Director. v. N.‑W.F.P. through C.S. and others 1992 SCMR 1843; Rana Muhammad Sarwar v. Government of Punjab and other 1990 SCMR 999 and Zahir Akhtar's case PLD 1995 SC 530 ref.

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

‑‑‑‑Arts. 4, 199 & 212‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑­Direction to Public functionaries‑‑‑Jurisdiction of High Court‑‑‑Despite bar as 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.

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.

Syed Zafar Abbas Mashadi for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. assisted by Muntazar Mehdi for Respondents (on Court's call).

2005 P L C (C.S.) 233

[Lahore High Court]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

Mian MUHAMMAD AKBAR

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Food Department, Civil Secretariat, Lahore and 3 others

I.C.A. No.469 of 2004, in W.P. No. 16108 of 2004, decided on 6th October, 2004.

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

‑‑‑‑Ss.7, 8 & 22‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Promotion‑‑‑Petitioner was promoted on the directive of Chief Minister‑‑‑Promotion order was withdrawn by the department‑‑‑Such order was challenged in Constitutional petition in the High Court‑‑‑Constitutional petition was dismissed by the High Court‑‑­Validity‑‑‑List of gradation revealed that six persons were senior to petitioner‑‑‑Chief Executive of the Province had power to redress the personal grievance of the civil servant and had no power to snatch the right of another employee.

Capt. (Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar PLD 1992 SC 184 quoted.

Zahid Akhtar's case PLD 1995 SC 530 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional Jurisdiction‑‑‑Scope –Constitutional jurisdiction is discretionary in character.

Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and Rana Muhammad Arshad v. Additional Commissioner Revenue 1998 SCMR 1462 cited.

(c) Law Reforms Ordinance (XII of 1972)‑‑‑--

‑‑‑‑S.3‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Intra‑Court Appeal and Appeal ‑‑‑Scope‑‑‑Intra‑Court Appeal is not para materia to appeal filed by aggrieved person under section 96, C.P.C.

Dr. A. Basit for Appellant.

2005 P L C (C.S.) 244

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Syed ABDUS SALAM KAZMI

Versus

MANAGING DIRECTOR, WASA, MULTAN and another

Writ Petition No.3778 of 2001, decided on 9th June, 2004.

(a) Punjab Local Council Servants (Efficiency and Discipline) Rules, 1981‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition Pension and gratuity‑‑‑Withholding of‑‑‑Inquiry was initiated during his service wherein petitioner was absolved‑‑‑Petitioner retired on attaining the, age of superanauation and pension was sanctioned to him which he had been getting for previous five years‑‑‑Pension was subsequently stopped to recover loss‑‑‑Validity‑‑‑Inquiry was not concluded during petitioner's stay in service and after five years of his retirement his pension was stopped‑‑‑Such order was against the spirit of law‑‑‑Order was set aside and department was directed to release the pension of the petitioner forthwith from the date it was stopped.

1995 PLC (C.S.) 817; 1983 PLC (C.S.) 832 and PLD 1973 SC 514 quoted.

(b) Civil service‑‑‑

‑‑‑‑Retirement‑‑‑As per Government of the Punjab, Services, General Administration, Information Department Notification No. SO(s) 12-­12/82 dated 17th of September, 1982, civil servants, after retirement, were no longer civil servants and disciplinary proceedings against them stood abated.

1994 PLC (C.S.) 454 quoted.

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

‑‑‑‑S. 2(b)‑‑‑Inquiry‑‑‑Notice‑‑‑Notice issued after four, years of retirement is against the spirit of law.

Ch. Muhammad Ashraf and M.R. Khalid Malik Addl. A.‑G. for Petitioner.

Syed Shahid Hussain and Sabtain Ahmad, Suptt., WASA for Respondents.

Date of hearing: 26th May, 2004.

2005 P L C (C.S.) 271

[Lahore High Court]

Before Mian Saqib Nisar, J

Mst. GHAZALA TARIQ

Versus

FEDERATION OF PAKISTAN through Secretary/Chairman Railway Board and another

Writ Petition No.2197 of 2004, decided on 23rd July, 2004.

Railway Servants (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑Rr.4(1)(b)(iv) & 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Termination of service‑‑‑Death of employee‑‑‑Employee whose services were terminated, challenged termination order before Service Tribunal .in appeal‑‑‑During pendency of appeal, employee having died, his widow moved an application for early hearing of appeal, but said application and even appeal filed by deceased employee was dismissed as abated‑‑‑Widow of deceased employee had filed Constitutional petition against order of Service Tribunal‑‑‑Maintainability of said Constitutional petition had been objected to by the Authority on ground that appeal filed before Service Tribunal having been abated due to death of employee, his legal heirs could not challenge order of dismissal of appeal in Constitutional petition before High Court‑‑‑Authority had failed to establish that any lawful inquiry was conducted against deceased employee, but it had fully been established that employee was condemned unheard as neither he was provided with opportunity of hearing nor any regular inquiry was conducted against him‑‑‑Order terminating service of employee having been, passed in violation of rule of natural justice, same was void and without lawful authority‑‑‑If employee had remained alive, he might have been successful before Service Tribunal‑‑‑Legal heirs of deceased employee could survive cause of action and had to agitate showing that order of termination of deceased employee was illegal and void—On account of termination of service of deceased, his legal heirs would be prejudiced and if order of termination would be done away, they would be entitled to benefits available to the deceased‑‑‑Right of an aggrieved party could not be left in vacuum on the pretext that no forum was available to decide the same‑‑‑Where a wrong had been done and a right had been infringed, there always was a remedy‑‑‑High Court in its Constitutional jurisdiction could grant appropriate relief‑‑‑Order terminating service of employee was declared without jurisdiction and without lawful authority by High Court‑‑‑Right of legal heirs of deceased employee would be considered and they would be paid all requisite dues.

Ch. Muhammad Ashraf for Petitioner.

M. Abbas Mirza for Respondents.

2005 P L C (C.S.) 279

[Lahore High Court]

Before Nasim Sikandar, J

Malik TAHIR MEHMOOD

Versus

CHIEF EXECUTIVE ISLAMABAD ELECTRIC SUPPLY COMPANY ISLAMABAD and another

Writ Petitions Nos.3400, 2401, 3402, 3404, 3405 and 3406 of 2004, decided on 6th December, 2004.

Accommodation Allocation Rules, 2002‑‑‑

‑‑‑‑R.15 (as amended)‑‑‑Civil Servants Act (LXXI of 1973), S.25‑‑­Fundamental Rules, Rr.45 & 45‑A‑‑‑S.R.O. 749(I)/2002 dated 30‑10‑2002‑‑‑Constitution of Pakistan, (1973), Art.199‑‑‑Constitutional petition‑‑‑Retention of accommodation in case of death of allottee‑‑­Rule 15 of Accommodation Allocation Rules, 2002 was declared to be ultra vires of the powers of the President to make rules under S.25, Civil Servants Act, 1973 read with Fundamental Rules, Rr.45 & 45‑A‑‑‑­Reasons detailed.

The petitioners in the present case were employees of the Company. They were related to ex‑employees who, while serving the Company were allotted residential accommodation. These relations had now either retired or had expired. After their death or retirement from service the petitioners who were already living with them as family members applied for allotment of the residential accommodation in their favour which was either refused or was not even responded to.

The petitioners, therefore, had prayed that the respondents may be directed to act according to the amended Rule 20 of the Accommodation Allocation Rules 2002 for allotment of accommodation in the interest of justice.

The prayer made was refused for the following reasons Firstly, the petitioner, after the death of his father was continuously living as an unauthorized occupant. High Court will never interfere for a person who was either a trespasser or an unauthorized occupant of Government accommodation. Secondly, there was no Constitutional guarantee which forced the Government to provide residential accommodation to its employees. Thirdly, an interference by High Court in favour of an unauthorized person or the one who was merely holding over after the right of his predecessor had ceased to exist will convert an official residence into an estate forming part of the assets of a deceased. Once a civil/Government servant in occupation of a Government accommodation dies, after the period prescribed under rules his family severs all connections with that house. The occupation thereafter of Government accommodation by the family of a deceased civil servant is usurpation of the rights of other civil /Government servants. It has been seen that the families of deceased employees keep on occupying accommodations without paying rent for years together till the time a child of late employee manages to get an odd employment with any Government Department. Sympathy and compassion are the words used as screen by those who ought to have enforced the vacation of the premises. These gentlemen, authorities in the Estate Office, would not let the family of their personal tenants even hours after his death if the term of the Tenancy was to expire with his death. All virtues, grace, compassion, sobriety and courtesy are shown only in respect of Government accommodation. Something has seriously gone wrong in the Estate Office. Fourthly, the petitioner has absolutely no right, title or interest in the accommodation which his father enjoyed as a civil /Government servant and which on his death automatically went back to the pool of the Estate Office to be allotted to another civil /Government servant in accordance with their entitlement. The allotment of Government accommodation to the children of deceased civil servants for whatever reason had given rise to the creation of a new class of hereditary rights which were hitherto unknown to a jurisprudence. Also it has become a source of corruption in the concerned offices. To it can be added that sense of deprivation amongst the entitled civil servants to have Government accommodation at their turn. The allotment of a Government quarter to the family of a deceased civil servant on whatever grounds and as a matter of course needs to be disapproved with all force. To be considerate towards a Government servant is a legacy of British Raj when loyalty to realm was expected of every person serving. The payment of salary or compensation to the servant was rather incidental. Now a civil or Government servant opts to serve the public from their taxes. He is governed by a set of laws, rules and regulations which determine his terms and conditions of service. No one is forced to serve if such terms and conditions are not acceptable to him. Unfortunately though the Kings have vanished in the dust of time, the readers of their stories still cherish them by trying to act like them. One of such desires appears to have been translated in rules providing for a quota for the sons/children of a particular class of servants dead or serving. That rule and all other such rules provide for a sham benevolence are negation of the rights of others equally qualified for the job. And, the accommodation built with the money of tax payers is not a charity to be distributed by either an officer of the Government or holder of a political office on the basis of his personal notions of piety and compassion. A compassion ‑shown is legitimate only when it relates to one's personal property and secondly when it does not result in cruelty and injustice to another. For these reasons rule 15 (Retention of Accommodation in case of death of allottee) of the Accommodation Allocation Rules, 2002 for the allotment of residential accommodation to the Federal servants as notified on 30‑10‑2002 vide S.R.O. 749(I)/2002 are held to be ultra vires of the powers of the President to make rules under section 25 of the Civil Servants Act, 1973 read with Fundamental Rules 45 and 45‑A.

On the death of a civil servant or a juristic person his family must part with the Government accommodation after expiry of the prescribed limitation. In case the wife, son or daughter of the late employee is in Government service then he or she must stand in the queue as rest of the employees/civil servants for allotment of accommodation on his or her turn. The fixation of a quota in civil service or other statutory or autonomous bodies for the sons, daughters or family members of the employees has done more harm than good to the system as well as the organizations. Not only that it promotes nepotism but it invariably destroys the discipline of the organization or a department. To quote an example, North‑Western Railways was the best department at the time of partition but finally it is ending up as a continuous burden on the national exchequer. Most disastrous reason being fixation of a high quota for the sons and daughters of the employees and then allotment of official residences by, the department from one generation to the other.

An employee of an organization or a civil servant in occupation of the residential premises provided by the Company or the Government is mere a licensee who has no vested right in that premises after the allottee had retired, expired or had been guilty of violation of any term of the licence. Allowing an employee or a civil servant to remain in official accommodation after death or retirement of the allottee or even on violation of the term of licence, has resulted in creating a new class of hereditary rights which were hitherto unknown to jurisprudence. It needs to be disapproved.

Mst. Altaf Bibi v. Government of Pakistan and others W.P. No.41 of 2003 fol.

Fiaz Ahmed Rana for Appellant.

2005 P L C (C.S.) 292

[Lahore High Court]

Before Sh. Hakim Ali, J

IJAZ AHMAD TAHIR

Versus

AUDIT OFFICER ZAKAT AND USHER DEPARTMENT GOVERNMENT OF THE PUNJAB LAHORE and 2 others

W.P. No. 2108 of 2002/BWP; decided on 11th February, 2004.

(a) Civil Service‑‑‑

‑‑‑‑ Pay, return of‑‑‑Performance of additional duty for Zakat Department by civil servant with permission of parent department‑‑­Payment of "wazeefa" as remuneration to civil servant for additional duty from funds of Zakat Department‑‑‑Direction to civil servant by parent department to pay back such amount for its return to Zakat Department ‑‑‑Validity‑‑‑Zakat Department had authorized parent department to appoint employees for duty to be performed for Zakat Department and pay to them salary from its funds‑‑‑Civil servant not legally bound to work for Zakat Department had worked therefor on meagre pay‑‑‑Person having rendered services for specified purpose could not be ordered to return pay thereof‑‑‑Impugned direction would deprive civil servant ,of his reward for services for no fault of his‑‑‑Rule of locus poenitentiae would apply to such case‑‑‑Impugned demand/claim was, held, to be illegal and unlawful.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 ref.

(b) Master and servant‑‑‑‑

‑‑‑‑ Person having rendered services for a purpose could not be ordered to return remuneration thereof‑‑‑Otherwise such person would be deprived of his service without any fault on his part.

Raja Muhammad Sohail Iftikhar for Petitioner.

Sh. Raees Ahmad for Respondents Nos.1 and 3.

Ahmad Mansoor Chisthi, Assistant Advocate‑General, on behalf of Respondent No.2 along with Abdul Hameed Audit Officer.

2005 P L C (C.S.) 303

[Lahore High Court]

Before Syed Jamshed Ali, J

MOAZAM MIAN and 3 others

Versus

SECRETARY, ENVIRONMENTAL PROTECTION DEPARTMENT, PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others

Writ Petition No.9022 of 2001, heard on 27th September, 2004.

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

‑‑‑‑Arts.199, 25 & 212‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Terms and conditions of service ‑‑‑Jurisdiction‑‑‑Prospects of promotion‑‑­Petitioners were aggrieved of unfairly discriminated treatment without any reasonable basis‑‑‑Such treatment was against equality clause of the Constitution‑‑‑Constitutional petition being riot about the terms and conditions of service but about the prospects of promotion and was not barred under Article 212 of the Constitution.

Dr. Ehsan‑ul‑Haq v. The Province of Punjab and others 1980 SCMR 972 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

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

‑‑‑‑Arts.199 & 25‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Equality clause‑‑‑Equal opportunity in public employment‑‑‑Petitioners were recruited with the same qualifications in the same scale of pay with consolidated seniority, must have equal prospect of promotion Constitutional petition was accepted with the direction that rules shall be amended/clarified accordingly.

Muhammad Hanif Niazi, for Petitioners.

Aamir Rehman, Addl. Advocate‑General with Nawaz Manak, Assistant Director Legal, Environmental Protection Department for Respondents.

Date of hearing: 27th September, 2004.

2005 P L C (C.S.) 329

[Lahore High Court]

Before: Syed Jamshed Ali, J

Syed AMJAD ALI SHAH

Versus

FEDERATION OF PAKISTAN through Ministry for Information and Broadcasting Islamabad and 5 others

Writ Petition No.4722 of 1998, heard on 2nd June, 2004.

Pakistan Television Corporation Limited Employees Service Rules, 1978‑‑‑

‑‑‑‑Rr.6.02 & 6.03‑‑‑Constitution of Pakistan (1973), Arts. 25, 199 & 212‑‑‑Constitutional petition‑‑‑Appointment‑‑‑Equality of citizens‑‑‑If a vacancy was to be filled in, irrespective of capacity, including contract employment, from amongst employees of Pakistan Television, all eligible persons were entitled to be considered under R. 6.02 of Pakistan Television Corporation Limited Employees Service Rules, 1978 and by Selection Board as required by R.6.03 of the said Rules‑‑‑Rules did not permit making of any appointment including a contract appointment in secrecy without providing opportunity to compete for the post to other eligible employees of P.T.V.‑‑Denial of equal opportunity in the matter of public employment, would violate Art. 25 of the Constitution and could not be countenanced‑‑‑Petitioner, in the present case was only a candidate .for the post of Program Producer and he was not enforcing terms and conditions of his service‑‑‑Bar of Art.212 of Constitution was not applicable in the case of petitioner‑‑‑Contention that since appointment had not been made on regular basis, it was not necessary, to adhere to proper procedure, was untenable‑‑‑Fact that P.T.V. was a commercial organization and was free to make contract appointments in disregard to their own rules and the rule laid down by the Supreme Court, only would project "King can do no wrong" theory which could not be accepted in a society governed by written Constitution‑‑­Appointment of respondent made in violation of rules and without adopting proper procedure, was declared as without lawful authority and post occupied by him would be deemed to be vacant and if Authorities were minded to fill said vacancy, procedure prescribed in Service Rules, would be followed.

Abdul Jabbar Memon and others 1996 SCMR 1349; Capt. (Retd.) Muhammad Naseem Hijazi Director Finance and Admin Gujranwala v. Province of Punjab and 2 others 2000 SCMR 1720 = 2000 PLC (C.S.) 1310 and Dr. Ahmad Salman Waris; Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 ref.

Faisal Zaman and Aleem Baig Chughtai for Petitioner.

Naveed Ashiq Alvi for Respondents Nos.2 to 5.

Irfan Khalil, Qureshi for Respondent No.6.

Dates of hearing: 1st and 2nd June, 2004.

2005 P L C (C.S.) 399

[Lahore High Court]

Before Sh. Hakim Ali, J

Mst. AURANGZEB BIBI

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.3298 of 2004 decided on 2nd November, 2004.

Punjab Civil Servants (Pension) Rules, 1963‑‑‑

‑‑‑‑R.4.10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Family pension to widow‑‑‑Audi alteram partem, principle of‑‑‑Applicability‑‑‑Deceased civil servant was survived with two, widows and the pension was being distributed between both of them‑‑-Petitioner was the surviving widow who claimed full family pension after the death of other widow‑‑‑Initially, authorities issued a notification regarding providing full pension to the petitioner but subsequently the notification was withdrawn and the authorities declined to release the full family pension to her‑‑‑Plea raised by the petitioner was that the notification could not be withdrawn without providing opportunity of hearing to her‑‑‑Validity‑‑‑Government was to pay full family pension to a widow if she was a sole or there were two widows‑‑‑Full family pension was to be disbursed in either case from Government exchequer‑‑‑If there‑were two widows, the Government was not to pay full pension to each widow separately; it was the share of the sole widow which was being distributed inter se two widows otherwise from Government exchequer, the same pension was being distributed for one widow only‑‑‑If one of the widows had died, the Government had to pay full pension as it was already paying to two widows by distributing the full into two portions---After the death of one of the widows, the other widow was not demanding more than the amount of full family pension to which she was entitled to get but due to her co-widow the pension was being divided between the two---It was only a matter of correction of pension papers and not a new payment---High Court noted it with concern that price hike and surrounding circumstances required that the widow should be accommodated as far as possible---Government was not to lose anything as the Government was already paying/dividing one family pension between the two widows---Payment of whole family pension to the sole widow was not prohibited under R.4.10 of Punjab Civil Servants (Pension) Rules, 1963---Petitioner who was once allowed to be disbursed the whole pension by the Government, could not be deprived of same without grant of opportunity of hearing and notice to her, as a vested right was created and was granted to her---Subsequent notification was illegal and unlawful and the same was set aside---High Court directed the authorities to pay the whole family pension to the petitioner from the date of death of the other widow---Petition was allowed accordingly.

Athar Rehman Khan for Petitioner.

Malik M.R. Khalid, Addl. A.-G.

Muhammad Shaffi Tahir, A.A.O., D.A.O., Multan.

Mehr Muhammad Awan A.A.O., D.A.O., Attock.

2005 P L C (C.S.) 406

[Lahore High Court]

Before Mian Saqib Nisar and Tanvir Bashir Ansari, JJ

AMANAT ALI ZAHID

Versus

GHAZANFAR ALI and 3 others

I.C.A. No.273 of 2004 in W.P. No.14271 of 2003, decided on 11th November, 2004.

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

‑‑‑‑‑S.23‑‑‑Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, R.3 (v)‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.3 (iii) and (iv)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Relaxation in upper age limit‑‑‑Word `civil servant" as defined in Punjab Civil Servants Act, 1974‑‑-Connotation‑‑‑Respondent being employee of Federal Government sought relaxation in upper age limit for his appointment as Patwari in Provincial Government‑‑‑Authorities did not relax the age limit for the reason that the respondent was not an employee of Provincial Government‑‑‑High Court in exercise of Constitutional jurisdiction allowed the petition and relaxed the upper age limit of the respondent—­Validity. In exercise of the powers conferred by S.23 of Punjab Civil Servants Act, 1974; the Governor of the Punjab promulgated Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules of 1976, pertaining to relaxation in upper age limit relating to appointment in the Provincial Government‑‑‑For the purpose of furthering the purposes and objects of the Punjab Civil Servants Act, 1974, Rules had been framed‑‑-Civil servant was defined in the Punjab. Civil Servants Act, 1974, as a person holding a civil post in connection with the affairs of a Provincial Government‑‑‑For relaxing the age of respondent reference to the West Pakistan Delegation of Powers (Relaxation of Ages Rules, 1961, could not be made as the rules also were applicable in respect of all the services and posts under the Government of West Pakistan‑‑‑Period of continuous employment served by a person in particular service, mentioned in R.3(iii) and (iv) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which were Federal Government services, was an exception to the general rule and that it was the previous service in a provincial‑post only which could be considered to be a ground for relaxation of age‑‑‑Relaxation given to the particular categories of Federal Civil Servants as mentioned in R.3 (iii & iv) of Punjab Civil Servants (Appointment and Conditions of Service) Rules. 1974, would demonstrate that the relaxation did not apply to the entire gamut of Federal Government service which an applicant to a. provincial post might have to his credit‑‑‑Order passed in Constitutional jurisdiction by High Court was set aside and recommendation of the District Recruitment Committee in favor of the appellant was upheld it Intra‑Court Appeal.

Mohammad Ilyas v. Home Secretary 1999 PLC (C.S.),106 rel.

Syed Muhammad Kaleem Ahmed Khursheed for Appellant.

Asif Mahmood Cheema A.A.‑G. and Mian Mahmood Hussain for Respondent No. 1.

Ch. Mansoor Rabbani E.D.O. Sheikhupura.

Date of hearing: 21st October, 2004.

2005 P L C (C.S.) 494

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Engr. MUNIR AHMED

versus

TEVTA through Chairman and another

Writ Petition No. 19099 of 2004, decided on 13th December, 2004.

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

----Arts. 4, 199 & 212---Service Tribunals Act (LXX of 1973), S.4---Constitutional jurisdiction of High Court---Scope---Civil service---Despite bar contained in Art.212 of the Constitution read with S.4 of Service Tribunals Act, 1973, High Court has ample jurisdiction to give direction to public functionaries to act strictly in accordance with law in view of Art.4 of the Constitution, while exercising power under Art.199 of the Constitution.

“H. M. Rizvi and 5 others v. Maqsood Ahmed 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 rel.

(b) Public functionaries---

----Inaction of public functionaries---Effect---No body should be penalized by inaction of public functionaries.

Ahmad Latif Qureshi. v. Controller of Examination, Board of Intermediate, Lahore PLD 1994 Lah. 3. rel.

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

----S.4---Constitution of Pakistan (1973), Art.4---General Clauses Act (X of 1897), S.24-A---Decision of representations of subordinates---Principles---Public functionaries are obliged to decide representations of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Art.4 of the Constitution read with S.24-A of General Clauses Act, 1897.

Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 and Zainyar Khan v. Chief Engineer C.R.B.C. 1998 SCMR 2419 rel.

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

----S.4---Constitution of Pakistan (973), Arts. 199 and 201---Constitutional petition---Departmental representation---Seniority---Direction of High Court---Despite direction of High Court, the authorities did not decide departmental representation of petitioner regarding his seniority---Effect---Direction of High Court was binding on each and every organ of the State by virtue of Art.201 of the Constitution but the authorities failed to decide the representation of petitioner and others in a long standing dispute between the parties till date---Action of the authorities was in derogation of law---High Court directed the petitioner to appeal before the authority on the time and date so fixed---High Court also directed the authorities to decide the representation of petitioner in accordance with law after providing proper hearing to all concerned including the petitioner and any other person---High Court further directed that item in agenda of departmental promotion committee would be held in abeyance till the decision on the representation of the petitioner---Petition was allowed accordingly.

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

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4---Constitutional jurisdiction of High Court---Scope---Civil service---Mala fide act---Non-filing of para-wise comments---Notices were issued to Authorities for filing of report and para-wise comments but they failed to file the same---Effect---Such failure had shown that the Authorities were not exercising their power in good faith and their act was mala fide exercise of power.

Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14 rel.

Salman Mansoor for petitioner

Muhammad Hanif Khatana Acting A.G. for Respondents.

2005 P L C (C.S.) 519

[Lahore High Court]

Before: Ch. Ijaz Ahmad, Syed Jamshed Ali and Syed Zahid Hussain, JJ

Dr. MUHAMMAD SALEEM MALIK

versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Railways/Chairman, Railway Board, Islamabad and 8 others

Writ Petitions Nos.24102 of 1998 and 13371 of 1999, heard on 19th November, 2004.

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

----Arts. 199 & 212---Service Tribunal---Jurisdiction---Bar to the Constitutional jurisdiction of High Court in service matters---Scope---Initiation of disciplinary proceedings---Grievance of civil servant was that the authorities had initiated disciplinary proceedings against him and he was directed to proceed on forced leave---Validity---Not only the terms and conditions of the persons who were or had been in service of Pakistan were provided in Art. 212(1)(a) of the Constitution but it also included disciplinary matters---In matters relating to terms and conditions of service to which the jurisdiction of a Service Tribunal extended, the provisions of Art. 212 of the Constitution operated as a bar to the exercise of Constitutional jurisdiction even though a final order might not have been passed---Merits of action done by the authorities could be examined provided High Court had jurisdiction---Petition was not maintainable on account of bar of Art.212 of the Constitution---Petition was dismissed in circumstances.

Sharaf Faridi Advocate v. Islamic Republic of Pakistan; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Fauzia Siddique Qureshi v. Secretary Ministry of Education, Islamabad 2004 SCMR 521; The State v. Zia-ur-Rehman (PLD 1973 SC 49; Superintending Engineer, Highways Circle Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447; Muhammad Aslam v. Government of the Punjab 2003 PLC (C.S.) 433; Muhammad Ashraf Chatha v. Department of Education 2003 PLC (C.S.) 985 and Muzaffar Hussain and others v. The Superintendent of Police 2002 PLC (C.S.) 442 ref.

Khalid Mehmood Watoo v. Government of Punjab 1998 SCMR 2280 and Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999 rel.

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

----Arts. 199 & 212---Jurisdiction of High Court under Art. 199 of the Constitution---Scope---Civil service---Mala fide order---If order pertains to terms and conditions of service of a person to which the jurisdiction of Service Tribunal is extended, the jurisdiction of High Court is ousted even in case of an order which is mala fide.

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

----Arts. 185 & 212 (3)---Jurisdiction of Supreme Court---Scope---Provisions for leave to appeal under Art.212 (3) of the Constitution are inconsistent with Art.185 of the Constitution---Validity---In cases relating to terms and conditions of civil servants decided by Federal or Provincial Service Tribunal, jurisdiction has been conferred by the Constitution by a separate provision.

Umer Mahmood Kasuri for petitioner.

Yawar Ali Khan, Deputy Attorney General, Irfan Masood Sheikh and Syed Asghar Ali Shah, Section Officer, M. Akram Javed, Suptt. Establishment Division for Respondents.

Date of hearing: 19th November, 2004.

2005 P L C (C.S.) 540

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SALEEM

versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2075 of 2003, decided on 11th November, 2003.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunal Act (LXX of 1973), S. 4---Constitutional petition---Terms and conditions of service---Jurisdiction---Employee’s lien---Employee received golden hand shake---Subsequently employee applied for rejoining the service---Such request was not accepted---Matter pertained to terms and conditions of service---Constitutional petition was not maintainable in circumstances.

M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Abdul Wahab Khan v. Government of Punjab and others PLD 1989 SC 508; United Bank Ltd. v. Shamim Ahmad Khan and others PLD 1999 SC 990 and Muzaffar Hussain v. Superintendent of Police Sialkot 2002 PLC (C.S.) 442 rel.

Syed Sajjad Hussain and others v. Governor of the Punjab, Lahore and 2000 SCMR 657 and Syed Sajjad Hussain v. Secretary Establishment-Division Cabinet Secretariat, Islamabad and 2 others 1996 SCMR 284.

and Syed Sajjad Hussain’s case 1996 SCMR 284 distinguished.

Muhammad Akram Javaid for petitioner.

Muhammad Hanif Khatana Addl. Advocate General along with Tanveer Ahmad Rathor. L.O. for Respondent No.1.

Muhammad Tufail, A.O. for Respondent No.2 with record.

2005 P L C (C.S.) 551

[Lahore High Court]

Before Syed Jamshed Ali, J

MERAJ DIN BHATTI

versus

CHAIRMAN, PUNJAB BOARD OF TECHNICAL EDUCATION, LAHORE and 4 others

Writ Petition No.6163 of 2002, heard on 7th January, 2004.

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

----Jurisdiction---Competent authority---Delegation of powers---Delegatee’s powers to further delegate such powers---Chairman Board of Technical Education had imposed major penalty on the petitioner for his wilful absence from duty---Validity---Competent authority in relation to the petitioner was Secretary of the Board and not the Chairman---Petitioner was punished by incompetent authority---Petitioner’s submission to jurisdiction of an authority did not confer jurisdiction on the said authority if none was possessed by it---Order of removal from service having not been passed by competent authority stood vitiated.

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

----Defect of jurisdiction---Curing the defect of jurisdiction---Original order having not been passed by competent authority stood vitiated---Order passed in appeal did not had the effect of curing the defect of jurisdiction.

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

----Delegation of power---Limitation---A delegatee cannot further delegate his powers.

Zafar Abbas Mashadi Syed for petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 7th January, 2004.

2005 P L C (C.S.) 558

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD SAEED ZAMEER and others

versus

BOARD OF GOVERNORS, Aitchison College through Chairman and 2 others

Writ Petitions Nos. 8862, 8863, 8865 to 8869, 9191, 10323 and 20184 of 2000, 13945 of 2001 and 956 of 2002, heard on 31st January, 2005.

(a) Service Rules and Regulations for the Staff of Aitchison College, Lahore---

----Rr. 16 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Employee of Aitchison College---Termination from service by Sub-Committee of Board of Governors of College---Inclusion of Principal in Sub-committee, who was alleged to bear ill-will and malice against petitioner---Validity---No allegation of mala fide was alleged against other members of Sub-Committee---Such allegation against Principal had not been supported by necessary factual foundation---Not shown that Principal could in any manner influence three members of Sub-Committee---Held: President of Sub-Committee could co-opt any person---Principal was custodian of record and his association had only facilitated proceedings of Sub-Committee---High Court dismissed Constitutional petition in circumstances.

(b) Service Rules and Regulations for the Staff of Aitchison College, Lahore---

----Rr. 16 & 17---Service of employees of Aitchison College---Nature of---Master and Servant---Service of such employees was not governed by statutory rules---Relationship of such employees with their employer was governed by the rule of Master and Servant.

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

----Art. 199---Civil Service---Master and Servant---Discharge or termination or removal from service with or without stigma, order of---Relief of reinstatement, grant of---Scope---In absence of violation of any law or statutory rules, simple order of discharge from service would neither be open to judicial review nor such relief could be granted, where same was made in accord with terms of employment or service rules governing the employment and without any stigma---Situation would be different in case of termination or removal as a penal measure, which involves a stigma and bars future employment.

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; Rizwan Akhtar v. University of the Punjab 2003 PLC (C.S.) 1508; Federation of Pakistan v. Shamsul Huda PLD 1957 Dacca 148; State of Pakistan and another v. Mehrajuddin PLD 1959 SC (Pak.) 147; Lahore Central Co-operative Bank Ltd v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; The Federation of Pakistan v. Ali Ahmad Hussain Shah and another PLD 1955 FC 522; The Chairman, East Pakistan Industrial Development Corporation, Dacca, and another v. Rustom Ali and another PLD 1966 SC 848; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd through its President, Karachi and 2 others 1995 SCMR 453; Habib Bank Ltd and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Arshad Ahmad Khan v. Chairman, Bank of Punjab and others 2001 PLC 207; Razi-ud-Din v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mrs. Zaib Mumtaz v. First Women Bank Ltd and others PLD 1999 SC 1106; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; I.N. Subba Reddy v. Andhra University and others AIR 1976 SC 2049; Russell v. Duke of Norfolk and others 1949 (I) AER. 109; Herring v. Templeman and others 1973 (3) AER 569; Ridge v. Baldwin and others 1963 (2) AER, 66; Vidyodaya University of Ceylon and others v. Silva 1964 (3) AER 865; Page v. Hull University Visitor 1993 (1) AER 97; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC CS 442; Muhammad Sarfraz and 174 others v. Government of Punjab Through Secretary, Education Department, Civil Secretarial Lahore and others 2001 PLC (C.S.) 1224; Rao Faisal Sikandar v. Pakistan International Airlines Corporation through Chairman, Karachi and 4 others 2002 PLC (C.S.) 762; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Abdul Wahab Khan v. Government of Punjab and 3 others PLD 1989 SC 508; Administrative Action (4th Edition) by de Smith; Administrative Law by Bassu (5th Edition); Volume 8 of Halsbury Laws of England; Muhammad Ashraf v. Director General Multan Development Authority, Multan and another 2000 PLC (C.S.) 796; Muhammad Akram v. Farman Bibi PLD 1999 SC 28; 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 Karachi and others 2002 SCMR 1034 ref.

(d) Service Rules and Regulations for the Staff of Aitchison College, Lahore---

----Rr.16 & 17---Punjab Civil Servants Act (VIII of 1974), S.2---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Arts. 199 and 212---Employees of Aitchison College, status of---Taking over control of Board of Governors of College by Education Department of Provincial Government as a Special Institution---Effect---Fact of being employees of an institution declared as Special Institution and under administrative control of Education Department would not change their status from employees of a statutory body into civil servant as defined in Punjab Civil Servants Act, 1974---Such employees would continue to be employees of a statutory body and thus, bar of Art. 212 of the Constitution would not be attracted.

(e) Service Rules and Regulations for the Staff of Aitchison College, Lahore---

----Rr. 16 & 17---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Employee of Aitchison College---Retirement from service on basis of resignation---Petitioner alleged his resignation to be involuntary---Validity---Determination of such fact would involve factual inquiry, which was not possible in Constitutional proceedings---High Court dismissed Constitutional petition in circumstances.

(f) Service Rules and Regulations for the Staff of Aitchison College, Lahore---

----Rr. 16 & 17---Constitution of Pakistan (1973), Art.199---Teacher of Aitchison College---Constitutional petition assailing validity of show-cause notice and letter of warning issued to petitioner---Maintainability---Such action would require resolution of disputed questions of fact, which was beyond the scope of Constitutional proceedings---High Court dismissed Constitutional petition in circumstances.

Ahmad Waheed Khan for Petitioners.

Khawaja Ahmad Tariq Rahim and Amir Rehman, Addl. Advocate General Punjab for Respondents.

Dates of hearing: 4th, 8th, 10th, 18th, November, 14th, December, 2004 and 18th and 31st, January, 2005.

2005 P L C (C.S.) 569

[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.

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

----Rr. 4 & 5---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional Petition---Departmental proceedings---Appellant who was a civil servant assailed departmental proceedings initiated against him through Constitutional petition, which was dismissed by a High Court due to bar of jurisdiction contained in Art. 212 of the Constitution---Appellant filed Intra-Court appeal against said judgment---Validity---In view of non-obstante operation appearing in Art. 212 of Constitution bar of jurisdiction was attracted in the case---Jurisdiction of High Court under Art. 199 of the Constitution stood excluded by operation of Art. 212 even when no final order had been passed in the case.

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 Wahad 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.

2005 P L C (C.S.) 579

[Lahore High Court]

Before: Sh. Hakim Ali, J

Mirza MUHAMMAD ARSHAD and others

versus

E.D.O. (R). LODHRAN and others

Writ Petitions Nos.3698, 3849, 3850 and 4011 of 2004/MN decided on 18th January, 2005.

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

----S. 8---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Promotion---Entitlement---Petitioners had challenged order of Authority whereby respondents were promoted from posts of Patwaris to posts of Kanungos despite being juniors to petitioners and petitioners were ignored and not considered for said promotion---Maintainability of Constitutional petitions was objected to on the ground that matter related to 'terms and conditions' of civil servant, and thus could be decided by Service Tribunal and Constitutional petitions were not maintainable---Validity---Question of eligibility related primarily to terms and conditions of a civil servant, while question of fitness was a subjective evaluation on the basis of objective criteria where substitution of opinion of competent Authority was not possible by Service Tribunal or by a Court---Where there was a question of eligibility, Service Tribunal would have jurisdiction, but in case of question of fitness, it would not lie with Service Tribunal to decide question of fitness of a civil servant to be appointed, promoted or to hold a particular post---When any civil servant challenged the fitness of his rival to hold a post or to be not fit to be appointed in comparison to him, in such an event jurisdiction of High Court would come into operation and applicability of Art. 212 of the Constitution barring jurisdiction of High Court would vanish and could not be made applicable to the case---Petitioners despite being fit to be promoted being seniors had been ignored and juniors had been promoted, their case fell within the confines of determination of fitness and would take away the jurisdiction of Service Tribunal to adjudicate upon that dispute through appeal to be filed by them---High Court would have jurisdiction in the case---Case was thus fit for exercise of jurisdiction conferred upon High Court under Art. 199 of the Constitution.

Superintending Engineer Highways Circle, Multan and others v. Muhammad Khursheed and others 2003 SCMR 1241; Sarfraz Ahmed Hiraja v. WAPDA and others 1999 SCMR 2828; Sajjad Ahmad Javed Bhatti v. The Secretary, Establishment Division and 11 others 1999 SCMR 2186; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145; Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2004 SCMR 35; Province of Punjab v. Shah Muhammad Chaudhry 1997 PLC (C.S.) 412; Government of the Punjab v. Rana Ghulam Sarwar Khan and others 1997 PLC (C.S.) 77; Dr. Naeem Akhtar v. Dr. Ahmad Salman Wasris and others 1995 PLC (C.S.) 34; Abdul Wakeel Malik v. Ashfaq Ahmad Qureshi 1994 PLC (C.S.) 1438; Ateeq Khanzada v. The Secretary Education PLD (C.S.) 319; Muhammad Ahsan-ul-Haq v. Secretary to Government of Pakistan Ministry of Interior, Islamabad and 11 others 1997 PLC (C.S.) 127; M.A. Rafique v. Managing Director (Powers) WAPDA and 7 others 1990 SCMR 927; Muhammad Raees (Azam) v. Government of Balochistan through Chief Secretary, S&GAD). 1995 PLC (C.S.) 151 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

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

----S. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Entitlement---Petitioners despite being senior to respondents, were ignored and respondents were promoted from Patwaris to Kanungos---No cogent reason had been advanced as to why petitioners who were admittedly seniors to some of respondents, were ignored and why juniors were promoted---If the reason was that ACRs or other documents were not completed, so their cases were not considered, then that ground could not be allowed to be made a sole foundation to deprive petitioners from being considered to be promoted, because the duty to fill up ACRs lay with superior officers---Remissness of superior officer could not be made a ground to deprive civil servants of their rights and on that basis their cases could not be ignored from consideration---Before preparation of list for candidates to be considered for promotion, sufficient period for filling and submission of ACRs was to be granted to the officials, if it was not submitted already well in time or had missed due to some reason---Case, in circumstances was fit for exercise of jurisdiction conferred upon High Court under Art. 199 of the Constitution---Impugned order passed by the Authority was declared illegal and unlawful by High Court in exercise of its Constitutional jurisdiction.

Tariq Zulfiqar Ahmad Chaudhry and Iqbal Hussain Pawar Hajwari for Petitioners.

Tahir Mahmood and Muhammad Ramzan Khalid Addl. A.G. for Respondents.

Date of hearing: 27th October, 2004.

2005 P L C (C.S.) 599

[LahoreHigh Court]

Before Syed Zahid Hussain, J

Dr. ZAID MEHMOOD

versus

VICE-CHANCELLOR and others

Writ Petition No.19461 of 2001, decided on 1st February, 2005.

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

----Art. 199---Constitutional petition---Selection of Candidate for appointment---Allegation of bias against respondent Member of Selection Board---Validity---Worth, verity and correctness or otherwise of such allegation was a question of fact dependent upon an enquiry---Such exercise could not be undertaken by High Court nor any definite findings thereon could be recorded in Constitutional jurisdiction.

(b) University of the Punjab Act (IX of 1973)---

----Ss. 11-A, 15 & 26---First Statute of the University of the Punjab, Para. 6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Advertised post of Professor---Non-selection of petitioner by Selection Board---Petitioner alleged that one member of Board (respondent) was biased towards him---Validity---Presence of respondent member in Selection Board was necessary being command of statute---Worth, verity and correctness or otherwise of allegation of bias was a question of fact dependent upon an enquiry---Such exercise could not be undertaken by High Court nor any definite findings could be recorded in Constitutional jurisdiction---High Court could not proceed on basis of mere assumptions, surmises and conjectures; nor would it be expected to intermeddle with administrative field of University and was obliged to assume that University would have acted fairly and justly in performance of its functions, unless shown that its action was tainted with malice or violative of law or principles of natural justice, if so established, only then High Court would interfere in a matter---Petitioner for redressal of his grievance could invoke revisional powers of Chancellor under S.11-A of University of the Punjab Act, 1973---Constitutional petition was dismissed in circumstances.

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

----Art. 199---Judicial review by High Court---Scope---Such power was limited and subject to constraints---High Court could not proceed on basis of mere assumptions, surmises and conjectures.

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

----Art. 199---Constitutional jurisdiction of High Court to interfere with administrative field of statutory body (University)---Scope---High Court would not intermeddle with administrative field of University, unless its action was shown to be tainted with malice, violative of law or principles of natural justice.

Imran Raza Khan for petitioner.

Dr. A. Basit for Respondents.

Date of hearing: 1st February, 2005.

2005 P L C (C.S.) 607

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUSAF ALVI DEPUTY POSTMASTER GENERAL MULTAN

versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD and 8 others

Writ petition No. 6652 of 2004, decided on 17th December, 2004.

(a) Civil service---

----Promotion---Entitlement---Central Selection Board considered case of civil servant for promotion from B.S.19 to 20, but refused to recommend him on ground of his failure to obtain threshold of 70-marks under heading "quality and output of work"---Civil servant had contended that heading "quality and output of work" having been done away with within new formats for drawing said reports, competent Authority had acted without lawful authority in refusing to promote him---Unless and until competent Reporting and Countersigning Officer was to evaluate the quality and quantity of output of a civil servant, it would not at all be possible to make a statement as to fitness of civil servant for further promotion---In earlier format, an officer was to be evaluated separately under several heads---Part-III of new format of Performance Evaluation Instruction for promotion specially called upon Reporting Officer to comment on quantity and quality of output---Contention of civil servant was repelled---In the present case there was not even an allegation that evaluation had not been made by a competent Authority---Civil servant, in the matter of quantity and quality of output of work, was found lagging behind.

Muhammad Zafeer Abbasi v. Government of Pakistan and others 2003 PLC (C.S.) 503 ref.

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

----S.9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Appeal---Competency---While conferring right of appeal upon a civil servant under S. 4 of Service Tribunals Act, 1973, Legislature took care not to provide such a right in the matter of determination of fitness for promotion or appointment, because of consensus of judicial opinion that said matter lay entirely within domain of competent Departmental Authorities and not in Courts.

Syed Aqa Asif Jafferi for petitioner.

2005 P L C (C.S.) 621

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD AZEEM and 5 others

versus

SECRETARY (IRRIGATION AND POWER) GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.10456 of 2003, heard on 21st December, 2004.

West Pakistan Irrigation Engineering Service (Class-I) Rules, 1967---

----R.12---Punjab Civil Services Recruitment, (Relaxation of Upper Age Limit) Rules, 1976, R.3 (v)---Notification No.SOR-III-1-72, dated 14-6-1982---Constitution of Pakistan (1973), Arts. 25 & 199---Constitutional petition---Equal opportunity of public employment---Principle of discrimination---Applicability---Different upper age limits in two departments of same Provincial Government---Grievance of petitioners was that upper age limit for posts of Assistant Executive Engineer /Sub-Divisional Officers in Irrigation and Power Development Department was 25 years while upper age limit for similar post in Communication and Works Department was 30 years with five years general relaxation---Plea raised by the petitioners was that in the matter of public employment they had been differently treated and guarantee of Art.25 of the Constitution was violated---Validity---Equal opportunity in public employment was an integral part of Art. 25 of the Constitution and, therefore, vis-à-vis the candidates for direct appointment as Assistant Executive Engineer in the Communication and Works Department, the petitioner had unfairly been discriminated against---Both the jobs carried equal responsibility and the job description did not furnish a reasonable classification to justify a different treatment to the candidates for appointment as Assistant Executive Engineer in Irrigation and Power Department---Punjab Public Service Commission while rejecting the candidature of the petitioners did not take notice of R.3 (v) of Punjab Civil Services Recruitment, (Relaxation of Upper Age Limit) Rules, 1976, inserted by Notification No.SOR-III-1-72, dated 14-6-1982---Even if public notice did not specify the concession to candidates in Government service, the Punjab Public Service Commission was obliged to take notice of the provision as the question of eligibility of the petitioners for the post in question was required to be determined in accordance with law---Such beneficial dispensation would have been deemed to be part of a public notice inviting applications for recruitment to various posts through Punjab Public Service Commission---Upper age limit of 25 years prescribed under R.12 of West Pakistan Irrigation Engineering Service (Class-I) Rules, 1967, for direct recruitment to the post of Assistant Executive Engineer in Irrigation and Power Department was discriminatory vis-a-vis the upper age limit for the candidates for appointment to similar post in Communication and Works Department---High Court directed that the same should be suitably amended to provide same upper age limit as prescribed for recruitment to the similar post in Communication and Works Department---High Court further directed that such exercise should be completed before sending a requisition to Punjab Public Service Commission for any future recruitment as Assistant Executive Engineer in Irrigation and Power Department---Petition was disposed of accordingly.

Rana Javed Anwar Khan for Appellant.

Aamir Rehman, Addl. A.G. and Abdul Majeed Bhuttar Superintendent P.P.S.C. and Muhammad Aslam Dy. Superintendent I. & P. Deptt. for Respondents.

Date of hearing: 21st December. 2004.

2005 P L C (C.S.) 645

[LahoreHigh Court]

Before: Ch. Ijaz Ahmad, Actg. C.J. and Syed Shabbar Raza Rizvi, J

AHMAD SHAFIQUE ELAHI and 6 others

versus

SHAKEEL ANWAR and 17 others

I.-C.As. Nos. 113, 114 and 115 of 1996, heard on 8th December, 2004.

Civil Service---

----Constitution of Pakistan (1973), Art.150---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Esta Code, para. 3 (d), Recruitment policy---Intra Court Appeal---Official record---Appointment of candidates was disputed on the ground that the authorities had not complied with procedure prescribed in Esta Code under the heading of Recruitment Policy For Federal Service Autonomous Bodies Corporations---Objection was raised to the procedure adopted by the authorities at the time of interview in viva voce---Authorities clarified before Supreme Court that viva voce was not subjective in nature but it was objective and the candidates were judged and assigned various marks against various sections---Details of the marks given to candidates in viva voce was produced in Supreme Court---Matter was remanded to High Court to re-decide Intra-Court Appeal after perusing the original record of department regarding interview---Effect---Result sheet produced by the authorities was a public document which was valid in view of Art.150 of the Constitution, therefore, full credit was to be given to the original record---Result sheet was a valid document even in terms of provisions of Qanun-e-Shahadat, 1984---Judgment passed by High Court, in exercise of Constitutional jurisdiction, was set aside and Division Bench of High Court declined to interfere with the selection made by the authorities---Intra-Court Appeal was dismissed accordingly.

Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145; Mst. Nur Khatoon v. Nur Khan PLD 1956 Lah. 293; Ghaus Muhammad v. The State PLC 1978 Lah. 1235 and Martial Law Administrator v. Muhammad Niaz PLD 1979 SC 921 rel.

Ch. Mushtaq Masood for Appellants.

M. Ilyas Khan for Respondents Nos.2 and 3.

Azeem Sarwar for Respondents Nos. 1, 4, 11 and 17.

Ijaz Feroze for other Respondents.

Date of hearing: 8th December, 2004.

2005 P L C (C.S.) 671

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD ABBAS

versus

GOVERNMENT OF PUNJAB and others

Writ Petition No. 12190 of 2004, decided on 11th March, 2005.

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

----Arts. 199, 189, 190 & 212---Constitutional petition---Civil Service---Services of 831 employees of different categories had been terminated on completion of projects---Termination orders of number of employees were set aside by the Service Tribunal---Such orders of the Tribunal were maintained by the Supreme Court---Provincial Government then proposed through a summary that all 831 employees of projects whose services were terminated earlier may be reinstated which was approved by the Provincial Chief Minister---List of such employees was prepared and appended who were ordered to be reinstated---Name of the petitioners figured in the said list immediately after the name of one I.A. but in the final list, the name of petitioner and I.A. were not included nor they were issued letters of reinstatement---Said I.A. moved the High Court against non-inclusion of his name in the list of reinstated employees through Constitutional petition which was accepted with the direction to reinstate him as ordered by the Chief Minister of the Province---Supreme Court upheld the High Court judgment---Petitioner, in the present case, had made a similar grievance that he was discriminated in the matter and was entitled to similar treatment as others in particular the said I.A.---Validity---Supreme Court in the case of I.A. had not only declined to interfere with the judgment of High Court but had added that department could not “take a somersault to make invidious distinction to treat the employee in a discriminatory manner”---Judgment of High Court had merged into that of Supreme Court, to which sanctity as envisaged by Arts. 189 and 190 of the Constitution was attached and department was bound by the same, and obliged to faithfully act accordingly---Effect of the judgment of Supreme Court could not be eroded or nullified through any executive or administrative instrumentality---Amendment made in the earlier order of the Chief Minister/Government through a later summary could not stand on a higher padestal than a duly issued notification which was subject matter of adjudication by Supreme Court---Order of the Chief Minister whereby 831 employees were to be reinstated inclusive of the petitioner, having been approved and upheld by the Supreme Court, he, could not be denied the right to be reinstated which had accrued to him like others---If the Supreme Court had decided a point of law relating to the terms of service of a civil servant which covered not only the case of the civil servant who litigated, but also of other civil servants, who may not have taken legal proceedings; in such a case, the dictates of justice and rule of good governance demanded that the benefit of the judgment be extended to other civil servants also who may not be parties to the litigation instead of compelling them to approach any legal forum---High Court directed that the petitioner be reinstated into service accordingly.

Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

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

----Art. 189 & 190---Supreme Court judgment---Effect of the Supreme Court judgment cannot be eroded or nullified through any executive or administrative instrumentality.

Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd PLD 1974 SC 180; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

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

----Arts. 2A, 4, 25, 26, 27, 37 & 199---Constitutional petition---Allegation of discrimination by the petitioner---Court to look into the implications thereof---Principles.

While dealing with the case of the type where the petitioner alleges discrimination, the Court cannot overlook the implications thereof. Equal treatment of all similarly situated is the basic principle on which justice rests under the law. If evenhanded justice is not administered it can have many adverse and negative effects on the society. It can cause discontentment and frustration in the social setup. There can be no denial that social justice is an objective, embodied and enshrined in our Constitution. The preamble and Article 2-A i.e. the Objectives Resolution, ordain that principles of equality and social justice as enunciated by Islam shall be fully observed. Article 4 (to be dealt with in accordance with law), Article 25 (Equality before law and equal protection of law), Article 26 (No discrimination in respect of access of to public places), Article 27 (Safeguards against discrimination in services) read with Principles of policy i.e. Article 37 (Principle of social justice and eradication of social evils) all go to show, the great stress laid and envisaged by the Constitution makers. Non-observance of such provisions and principles may amount to negation of Constitutional mandates, dictates of justice and rule of good governance, which should be avoided as far as possible.

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

----Arts. 199 & 212---Civil service---Constitutional petition under Art. 199 of the Constitution---Maintainability---Where the matter pertained to mere implementation of an order of the Government having been merged into judicial determination and pronouncement, objection as to the jurisdiction of High Court due to the implications of Art. 212 of the Constitution could not be upheld or sustained.

Rai Muhammad Tufail Khan for Petitioner.

Ch. Aamir-ur-Rehman Addl. A.G. with Ghulam Sarwar S.O. and Mushstaq Ahmed Asstt. for Respondents.

Date of hearing: 11th March, 2005.

2005 P L C (C.S.) 694

[LahoreHigh Court]

Before: Syed Zahid Hussain, J

Dr. MUJAHID ALI MANSOORI and others

versus

UNIVERSITY OF THE PUNJABand others

Writ Petition No.13654 of 2004, decided on 21st February, 2005.

(a) Civil Service---

----Vacancy in public office, filling of---Principles---Such vacancy must be filled in the prescribed manner and by adhering to laid down conditions/procedure.

(b) Civil service---

----Ad hoc appointments could not extended to indefinite length of period---Regular appointments should be made strictly in accordance with law.

(c) University of the Punjab Act (IX of 1973)---

----Ss.10(1)(ix), 17, 25 & 26---Appointment of Registrar and teaching staff of Punjab University---Method---Appointment of University Teachers and other Officers would be made by Syndicate on recommendations of Selection Board---Registrar being a whole-time officer of University was considered as a category apart from Teachers and other Officers in matter of appointment---Decision to fill up vacancy of post of Registrar i.e. by promotion or direct recruitment, would lie with Vice-Chancellor of University, while power of his appointment vested with Syndicate on terms and conditions to be determined by it.

(d) University of the Punjab Act (IX of 1973)---

----Ss. 17 & 26---Constitution of Pakistan (1973), Art. 199(2)(b)(ii)---Constitutional petition---Writ of quo warranto, issuance of---Post of Registrar of University, vacancy of---Filing of applications in pursuance of advertisement---Appointment on contract basis instead of completing its process initiated on basis of advertisement---Continuation of such contractual arrangement for years---Validity---Syndicate in subsequent meeting while keeping in view efficiency of Registrar had confirmed all anticipatory orders regarding his appointment and subsequent extension in his terms of appointment passed by Vice-Chancellor---Power to make appointment of Registrar vested with Syndicate and for such matter Selection Board would not come in picture---Lacuna in appointment of Registrar, if any, stood removed and ratified with approval and decision of Syndicate i.e. competent authority---Decision of Syndicate did not suffer from any procedural and other legal flaw and infirmity---No justification existed to issue a writ of quo waranto---High Court dismissed Constitutional petition in circumstances.

Abdul Jabbar Memon and others’ case 1996 SCMR 1349; Pakistan Railways through G.M. Lahore and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730 ref.

I.C.A. No.582 of 2000 Distg.

(e) Civil service---

----Illegal appointment---Connotation---Invalidity of appointment may arise not only for want of qualifications, but also from violation of legal provision for appointment.

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

----Art. 199 (2)(b)(ii)---Constitutional petition---Writ of quo warranto, issuance of---Essentials---Disqualification to hold public office must exist not only on date of institution of Constitutional petition, but also at the time of its decision---Object of such writ stated.

The aim and object of a writ in the nature of quo warranto is to pose a question to the person holding public office to show his authority as to under what law he claims to hold such office, and if it is proved that pubic office is being usurped, then the writ may be issued by the Court. In order to succeed in a petition for quo warranto, it is to be shown that such a disqualification to hold a public office must exist and persist not only on the date of institution of the petition, but also at the time of decision by the Court. Writ of quo warranto is not issued, if it is found that the issuance of such a writ will be futile. If the holder of public office is ineligible for appointment to that office and remains ineligible up to the date of the hearing of writ petition, he is undoubtedly a usurper and the principle of futility of writ would not be attracted.

Capt. (Retd) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720; Hari Shankar Prasad v. Sukhdeo Prasad AIR 1954 Allahabad 227; P.L. Lakhanpal v. Ajit Nath Ray. Chief Justice of Inida, New Delhi and others AIR 1975 Delhi 66; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan PLD 1970 SC 98; Sardar Asseff Ahmad Ali v. Mr. Muhammad Khan Junejo and others PLD 1986 Lah 310; Halsbury’s Laws of England, Fourth Edition paragraph No.177 of Volume-1 and Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 rel.

Hafiz Tariq Naseem for petitioners.

Dr. A. Basit for Respondents.

Date of hearing: 21st February, 2005.

2005 P L C (C.S.) 706

[Lahore High Court]

Before Muhammad Nawaz Bhatti, J

SHAHID IQBAL

versus

D.I.G. and others

Writ Petition No. 6868 of 2004, decided on 24th February, 2005.

Civil service---

----Posting on deputation---Petitioner had challenged order of D.I.G. Police whereby petitioner was posted on deputation to Punjab Constabulary---Petitioner had contended that according to seniority list and Notification of I.G. Police, senior most officials were to be deputed to Punjab Constabulary for 2-1/2 years, but petitioner who was junior had been so posted with mala fide intention and that impugned order had been passed in clear violation of Notification of I.G. Police, and same was liable to be quashed---Validity---Petitioner, who was initially enlisted as constable, after qualifying lower school course, was promoted and confirmed as Head Constable, thereafter he qualified Intermediate (H.Cs.) school course---Petitioner, according to seniority was eligible to be deputed/transferred to Punjab Constabulary and he was rightly transferred and posted on deputation to Punjab Constabulary---Order passed by D.I.G. Police being within his jurisdiction and not suffering from any illegality, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Iqbal Hussain Pawar Hajwari for petitioner.

M.R. Khalid Malik, Addl. A.-G.

Muhammad Baqir, Inspector Legal

Muhammad Ramzan, Office Superintendent, Office of D.I.G., D.G. Khan.

2005 P L C (C.S.) 721

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Maulana Qari MUHAMMAD ARIF, SIALVI, DIVISIONAL KHATEEB AUQAF, GUJRANWALA

versus

CHIEF ADMINISTRATOR, AUQAF, PUNJAB, AIWAN-E-AUQAF, LAHORE and 2 others

Writ Petition No. 3494 of 2005, decided on 9th March, 2005.

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

----S. 4---Punjab Civil Servants Act (VIII of 1974), S.9---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts. 199 & 4--- Constitutional petition---Transfer order---Inaction of public functionaries---Petitioner filed representation before the Authority against order of his transfer, but the Authority having not decided same, despite a considerable time had passed, petitioner had to file Constitutional petition against order of his transfer---Held, it was the duty and obligation of public functionaries to decide representation/ appeal of their subordinates without fear, favour, nepotism with reason and within reasonable time as was envisaged by Art.4 of the Constitution and S.24-A, General Clauses Act, 1897---No-body should be penalized by inaction of public functionaries and in case manner of exercising of powers was in violation of law, that would be termed as mala fide---High Court had ample jurisdiction to give direction to public functionaries to act strictly in accordance with law in view of Art. 4 of Constitution while exercising powers under Art.199 of the Constitution---Authority was directed to decide representation/appeal of petitioner in accordance with law after providing proper hearing to parties.

Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate PLD 1994 Lah. 3; Government of West Pakistan and others v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; M/s. Airport Support Service’s case 1998 SCMR 2268; 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.

Muhammad Arif Raja for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents (on Court call).

2005 P L C (C.S.) 731

[LahoreHigh Court]

Before Syed Zahid Hussain, J

SHAMAILA SHAHZADI

versus

CHAIRMAN, TEVTA and 8 others

Writ Petition No.18218 of 2004, decided on 17th March 2005.

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

----Arts. 212 & 199---Constitutional petition---Service Tribunal---Jurisdiction of---Case of direct recruitment/appointment---Petitioner was not blessed with the status of civil servant---Jurisdiction of Service Tribunal could not be invoked in circumstances.

Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 rel.

(b) Technical Education and Vocational Training Authority Ordinance (XXIV of 1999)---

----Ss.10 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recruitment---Standing Operating Procedures, following of---Expression ‘as may be prescribed’ used in S.10 of Technical Education and Vocational Training Authority Ordinance, 1999---Impact---Petitioner was a candidate for the vacancy advertised by the Technical Education and Vocational Training Authority and she stood first in the merit list---Petitioner was denied appointment letter on the ground that under Standing Operating Procedures approved by the Authority, there should have been at least two candidates to be interviewed and there was no second candidate---Authority re-advertised the vacancy and appointed the respondent---Validity---Expression ‘as may be prescribed’ used in S.10 of Technical Education and Vocational Training Authority Ordinance, 1999, had not been defined and it could possibly be construed as having reference to the Regulations laying down procedure for recruitment---Legislature could not be assumed to have intended to vest the Authority beyond Rules/Regulations, with such arbitrary power or conferred such unguided and unbridled discretion to lay down such a procedure or conditions, which could militate against the principles of fairness, rationality and reasonableness---No such intention, which was likely to produce unjust consequences could be imputed to the lawmaker---Candidate like the petitioner who had competed with others and stood on top of merit had every legitimate expectancy to be appointed to the post she had applied for---Petitioner could not be penalized or made to suffer for the reason that there was no covering candidate recommended by the Selection Committee---Such clause of Standing Operating Procedure could not be invoked to deprive the petitioner of the appointment---Competition was open and transparent amongst those who had applied and taken part in the selection process pursuant to public advertisement published in a widely circulated newspaper---Petitioner had been deprived of the appointment to the post applied for by her on untenable grounds and having topped the merit list she was entitled to be appointed---Action of the Authority refusing her the appointment was of no legal effect and the later selection in which respondent was purported to have been appointed was unwarranted by law---High Court was informed that another post of same status was lying vacant in the same district---High Court directed the Authority to consider the adjustment of the respondent as against the vacant post---Petition was allowed accordingly.

(c) Good governance---

----Rule of law and justice---Implementation---Principles---To maintain a practical and humane system of statutory law, at occasions, meeting of certain strict requirements have many a times been excused, overlooked or condoned---To enforce a law in its letter often produces a manifest injustice---Prime object of all systems where rule of law and justice is to prevail, is to ensure justice based on fairness, reasonableness and justness, without any taint.

The Pakistan Barbers' Association (Regd.), Lahore v. Province of Punjab through Directorate of Labour Welfare, Punjab, Lahore and another PLD 1976 Lah. 769 rel.

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

----Art.199---Constitutional petition---Maintainability---Locus standi---Petitioner was a candidate for the vacancies advertised by the Technical Education and Vocational Training Authority and she stood first in the merit list---Petitioner was denied appointment letter on the ground that under Standing Operating Procedures approved by the Authority, there should have been at least two candidates to be interviewed and there was no second candidate---Authority re-advertised the vacancy and appointed the respondent---Plea raised by the Authority was that the petitioner did not acquire any vested right to the appointment---Validity---Plea of the Authority negated the most cherished objective of meritocracy---Petitioner had in the selection topped the merit list and thus earned the right to be appointed---Selection process could not be shelved to deny petitioner the right so acquired, nor new process could be launched---Any person could not be denied the right acquired, simply for the reason that some policy would be infringed---Court was bound to remedy the wrong by redressing the grievance---Petition was maintainable in circumstances.

Muhammad Azeem Sheikh for Petitioner.

Aamir-ur-Rehman Addl. A.-G and Aamir Iqbal Basharat for Respondent No.9.

Date of hearing: 17th March, 2005.

2005 P L C (C.S.) 762

[Lahore High Court]

Before Sh. Hakim Ali, J

HAMMAD NAEEM IQBAL

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, BAHAWALPUR through Chairperson and 2 others

Writ Petition No. 1286 of 2004, decided on 20th May, 2004.

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

‑‑‑‑Ss. 3 & 9‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Transfer on deputation‑‑­Repatriation‑‑‑Petitioner, an Audit Officer of Finance Department of Government of Punjab, was transferred on deputation to Board of Intermediate and Secondary Education‑‑‑Board after about one and half year, by its order of transfer, relieved petitioner from the assignment of duty with immediate effect and petitioner was directed to report to his parent department from where he was transferred‑--Petitioner had challenged such repatriation by filing Constitutional petition‑‑‑Petitioner was a Government servant and Service Rules, Terms and Conditions were applicable to him‑‑‑Even in casts of coram non judice order, High Court could not interfere in Constitutional jurisdiction in view of bar contained in Art. 212 of the Constitution‑‑‑Petitioner having got other alternate, adequate and efficacious remedy before Service Tribunal, Constitutional petition filed by him was not maintainable.

Ghulam Muhammad Malik v. Chief Secretary and others 1998 PLC (C.S.) 888; Dr. Muhammad Munir v. Province of Punjab and others ICA No.669 of 1999 (Lah.) ; Syed Aftab Haider v. Government of Sindh 2002 PLC (C.S.) 1342; Abdul Saeed v. Secretary Education and others 2003 PLC (C.S.) 1468; Alamgir Khan v. Government of N.‑W.F.P. and others 1998 PLC (C.S.) 504; Nisar Abbas, General Manager v. Abdul Rashid Khan PLJ 1999 Lah. 145; Dr. Ahmad Suleman Waris v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Rana Habib‑ur‑Rehman Khan v. Government of the Punjab 2001 PLC (C.S.) 450; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Government of the Punjab and others v. Muhammad Zafar Bhatti and others PLD 2004 SC 317; Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521; Syed Imran Raza Zaidi v. Government of Punjab through S&GAD and 2 others 1996 SCMR 645; Muhammad Yasin Saqib v. Chairman Pakistan Telecommunication Corporation and others 2003 PLC (C.S.) 1105; Mahmood Ahmad v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and 2 others 1966 PLC (C.S.) 15 and Zahid Akhtar v. Government of the Punjab PLD 1995 SC 530 ref.

Malik Muhammad Aslam for petitioner.

Masood Ashraf Sheikh Advocate along with Miss Balqees Akram for Respondents.

Respondent No.2 in person.

2005 P L C (C.S.) 790

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SHAUKAT ALI

Versus

DISTRICT GOVERNMENT through Nazim/Chairman Selection Committee and 4 others

Writ Petition No. 16789 of 2004, decided on 15th December, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contributory negligence, principle of‑‑‑Applicability‑‑‑Notice for recovery of salary received‑‑‑Authorities allowed petitioner to join service and did not secure verification of the documents of the petitioner well in time‑‑‑Nine months after his appointment and performing his duty, the petitioner was terminated on the ground that the documents produced by him at the time of his appointment were bogus‑‑‑Authorities issued notice for recovery of the amount, received by the petitioner as his salary during the period he performed his duties‑‑‑Validity‑‑‑Authorities had taken lot of time regarding verification of the documents‑ of the petitioner‑‑‑No officer/official was sent by the authorities to verify the documents of the petitioner from the concerned university and did not even use modern technology of computer, E‑mail U.M.S.‑‑‑Petitioner had performed the duties as a teacher on account of contributory negligence of the authorities‑‑‑Action of authorities was without lawful authority and the notice for recovery of salary was set aside‑‑‑Petition was allowed accordingly.

Jalaluddin's case PLD 1992 SC 207 rel.

Munir‑ul‑Hassan for Petitioner.

Muhammad Muntazir Mehdi on behalf of Muhammad Hanif Khatana, Acting Advocate General for Respondents.

2005 P L C (C.S.) 792

[Lahore High Court]

Before: Mian Saqib Nisar, J

S. SHAH RUKH, ASSISTANT VICE‑PRESIDENT, NATIONAL BANK OF PAKISTAN

Versus

HAMAYUN AKHTAR ADIL, SENIOR EXECUTIVE VICE­-PRESIDENT NATIONAL BANK OF PAKISTAN and 3 others

Writ Petition No. 5845 of 1981, heard on 19th February, 2004.

Constitution of Pakistan (1973)‑--

---Art.199‑‑Constitutional petition‑‑‑Limitation‑‑‑Implementation of the judgment of High Court‑‑Order of promotion‑‑‑Petitioner was promoted‑‑‑Order of promotion was cancelled after 8 months‑‑‑Petitioner challenged the cancellation order and got the relief---Relief granting order remained under attack till the age of superannuation of the petitioner‑‑‑Petitioner had filed Constitutional petition with a prayer to get himself reinstated‑‑‑Such petition was heard ex parte and prayer was granted by the Court‑‑‑Ex parte order was challenged by the respondent and Supreme "Court set aside the ex parte order and petition for getting reinstated was reheard by the High Court‑‑‑High Court found that since the petitioner had crossed the age of superannuation, he could not be reinstated‑‑‑Respondent had paid all financial benefits to the petitioner‑‑­High Court disposed of the petition with the direction that if full amounts of financial benefits were not paid and petitioner felt dissatisfied he could move appropriate forum and limitation will not block his relief in circumstances.

Chaudhry Riasat Ali for Petitioner.

Khawaja Muhammad Farooq for Respondents.

Date of hearing: 19th February, 2004.

2005 P L C (C.S.) 801

[Lahore High Court]

Before Muhammad Nawaz Bhatti, J

Mst. BUSHRA PERVEEN

Versus

SELECTION/RECRUITMENT COMMITTEE through District Coordination Officer and 3 others

Writ Petition No.6155 of 2004, decided on 8th March, 2005.

Constitution of Pakistan (1973)‑--

‑‑‑‑Art. 199‑‑‑Appoirnment as Educator‑‑Petitioner obtained 60 marks without 10 additional marks on basis of Union Council of School as per recruitment policy‑‑‑Respondent in spite of calculating 10 such additional marks, secured 57 marks‑‑‑Selection Committee gave one mark of interview to petitioner, but gave 5 marks of interview to respondent and issued her appointment letter‑‑‑Such act of authority was alleged to be mala fide depriving petitioner of her valuable rights‑‑‑Authority defended mode of selection adopted by Recuritment Committee to be in accordance with policy of Government‑‑‑Validity‑‑‑Factual controversy involved in such case could not be resolved in Constitutional jurisdiction‑‑‑No other post was available‑‑‑No interference could be made for appointment of petitioner through Constitutional petition‑‑‑High Court dismissed Constitutional petition.

Muhammad Azam v. Senior Superintendent of Police, Lahore 2002 PLC (C.S.) 712 distinguished.

Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Muhammad Younas Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1987 SC 582 and Messrs Ittehad Cargo Service and 2 others v. Messers Syed Tasneem, Husain Naqvi and others PLD 2001 SC 116 rel.

Muhammad Arif Alvi for Petitioner.

M.R. Khalid Malik, Addl. A.G. for Respondents and Mrs. Zubeda Sahar, DEO (W) Khanewal in person along with record.

2005 P L C (C.S.) 811

[Lahore High Court]

Before Iftikhar Hussain Chaudhry, CJ

ALI IFTIKHAR JAFRI and 12 others

Versus

I.‑G. POLICE, PUNJAB and 336 others

Writ Petition No. 16015 of 2004, decided on 18th April, 2005.

(a) Police Rules, 1934‑‑‑

‑‑‑‑R.13.1‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Constitution of Pakistan (1973), Arts. 199 and 212(2) Constitutional petition‑‑‑Maintainability‑‑‑Seniority list‑‑‑Any challenge to seniority list, if founded on applicability or otherwise of a particular rule, would be subject‑matter of appeal before Service Tribunal‑‑‑Constitutional petition would not be competent in view of bar contained in Art. 212(2) of the Constitution.

Muhammad Idrees v. Government of Pakistan through Secretary Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; The State v. Zia‑ur‑Rehman and others PLD 1973 SC 49; Malik Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lahore 49; Federation of Pakistan and others v. Ghulam Mustafa Khar PLD 1989 SC 26; Nabi Bakhsh and another v. The State through Collector, D.I. Khan and others PLD 1991 Peshawar 10; Mst. Bismillah and others v. Muhammad Jabbar and others 1998 SCMR 863; Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263; Noor Jehan v. Federation of Pakistan and others 1997 SCMR 169; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Pakistan International Airlines and others v. F.M. Shamsi PLD 1990 SC 943; The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951; Ashiq Hussain Shah v. Province of Punjab through Collector and 6 others 2003 SCMR 1840; Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521; Khadim Hussain v. Dr. Farzana Chaudhry and others 2001 PLC (C.S.) 1239; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 (C.S.) 442; Qazi M. Asif Jah Bahadur v. Government of Punjab through Education Secretary, Lahore and 3 others 2004 PLC (C.S) 292 ref.

Jamal Khan Jaffar and another v: Rahim Shah and 3 others 1994 SCMR 759; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Muhammad Siddique Ahmed Khan and others v. Pakistan Railways through Financial Advisor and Chief Accounts Officer; Lahore and others 1997 SCMR 1514; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Iftikharullah Khan, Sub‑Divisional Officer and others v. The Secretary, Irrigation and Power Department and 3 others 2002 PLC (C.S.) 720; Inspector General of Police, Punjab, Lahore and others v. Mushtaq Ahmed Waraich and others PLD 1985 SC 159; Imam Bakhsh and 4 others v. Deputy Commissioner Layyah and 16 others 1992 SCMR 365; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Fauzia Siddiq Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521 and Din Muhammad v. Director-­General, Pakistan Post Office, Islamabad and 20 others 2003 SCMR 333 rel.

(b) Police Rules, 1934‑‑‑

‑‑‑‑R.13.1‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212 (2)‑‑‑Constitutional petition‑‑‑Competence‑‑‑Tentative seniority list, issuance of‑‑‑Impugned order being not a final order of the Authority, Constitutional petition was not competent against the same.

Muhammad Idrees v. Government of Pakistan through Secretary Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; Qazi M. Asif Jah Bahadur v. Government of Punjab through Education Secretary, Lahore and 3 others 2004 PLC (C.S.) 292; Khalil‑ur‑Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 and Abdul Wahab Khan v. Government of the Punjab and others 1989 SC 508 fol.

(c) Police Rules, 1934‑‑‑

‑‑‑‑R.13.1‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Constitution of Pakistan (1973), Arts. 199 & 212(2)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Tentative seniority list, issuance of‑‑­Impugned act even if mala fide, ultra vires or coram non judice would fall within ambit of jurisdiction of Service Tribunal‑‑‑Constitutional petition was not maintainable.

Mst. Noor Jehan v. Federation of Pakistan and others (1997 SCMR 169; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (CS) 442 and Khalil‑ur-­Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 fol.

Farooq Zaman Qureshi for Appellants.

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

Irfan Masood Sheikh, for Respondents Nos. 112, 113, 150, 269, 319, 320.

Ali Asghar Chaudhry, for Respondent No. 187.

Malik Mushtaq Ahmed Naunari, for Respondents No.60, 71, 72, 115, 228, 229.

Syed Tayyab Mahmood Chaudhry, for Respondent No. 66.

Syed Afzal Haider, Advocate for Respondents Nos.63, 110, 274, 255, 309.

Ch. Sarfraz Ahmed Tarar, for Respondents Nos.99, 118, 127, 128, 182, 212, 301, 302, 305, 307, 333.

Mr. Saiful Malook, for Applicants in C.M. No.3437 of 2005.

Khalid Adnan, Section Officer and Muhammad Saleem Akhtar, Superintendent, S & GAD.

Date of hearing: 22nd March, 2005.

2005 P L C (C.S.) 833

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD YOUNIS

Versus

ABBAS RAZA and 6 others

Writ Petition No. 3041 of 2005, decided on 4th March 2005.

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

‑‑‑‑Art.199‑‑‑Punjab Office of the Ombudsman Act (X of 1997), S.32‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy, availability of‑‑‑Effect‑‑‑Petitioner had alternative remedy to file representation against the order of Provincial Ombudsman, before appellate authority, the petition was not maintainable.

"WAPDA v. Commissioner, Hazara Division." N.L.R. 1992 S.C.J. 726 rel.

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

‑‑‑‑Arts.199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑-Terms and condition of service‑‑‑Effect‑‑‑Petitioner was a civil servant and matter pertained to temps and conditions of service, therefore, Constitutional petition was not maintainable in view of Art. 212 of the Constitution read with S.4 of Service Tribunals Act, 1973.

M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Abdul Wahab Khan v. Government of Punjab and others PLD 1989 SC 508; United Bank Ltd. v. Shamim Ahmad Khan and others PLD 1999 SC 990; Muzaffar Hussain v. Superintendent of Police Sialkot 2002 PLC (C.S.) 442 rel.

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

‑‑‑‑Arts.199 & 212‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Constitutional petition‑‑-Maintainability‑‑‑Terms and conditions of service‑‑‑Jurisdiction of Service Tribunal‑‑‑Retirement of civil servant‑‑‑Effect‑‑‑Even after retirement the petitioner remained civil servant and he had to avail alternative remedy before Service Tribunal‑‑‑Constitutional petition was not maintainable in circumstances.

Abdul Aziz v. Special Secretary Education (School) Government of Punjab, Lahore 2001 PLC (C.S.) 661 rel.

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

‑‑‑Art.199‑‑‑Punjab Office of the Ombudsman Act (IX of 1997), S.32‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Alternative remedy‑‑­Complaint was lodged against the petitioner before Provincial Ombudsman alleging various allegations of misappropriation of property­‑‑Ombudsman forwarded the complaint to the concerned department‑‑­Petitioner had filed representation against the order of Ombudsman which was pending before the competent authority‑‑‑Validity‑‑­Constitutional jurisdiction was discretionary in character, therefore, it was a good ground not to exercise discretion in favour of the petitioner during pendency of the representation‑‑‑Petitioner had alternative remedy to agitate the matter before the higher Revenue Authorities under Punjab Civil Servants Act, 1974, read with Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑Petitioner remained civil servant even after his retirement and thereafter, the petitioner had to avail alternative remedy before Service Tribunal‑‑‑Constitutional petition was not maintainable‑‑‑Petition was dismissed in circumstances.

"Ch. Tanvir Ahmed Siddiky v. Province of East Pakistan and others" PLD 1968 SC 185; "Nawab Syed Raunaq Ali v. Chief Settlement Committee." PLD 1973 SC 236 and "Rana Muhammad Arshad v. Addl. Commissioner and others" 1998 SCMR 1462 rel.

Ch. Zafar-ullah, for the petitioner.

Muhammad Hanif Khatana, Addl: Advocate‑General on Court's call for Respondents.

2005 P L C (C.S) 836

[Lahore High Court]

Before Abdul Shakoor Paracha, J

Professor Miss RABIA NOOR and another

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Labour, Manpower and Overseas Pakistani Division and 2 others

Writ Petitions Nos. 2344 of 2003 and 558 of 2004, decided on 10th February, 2005.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Locus standi‑‑‑Principles‑‑‑Right to make application under Art. 199 of the Constitution has been given to 'an aggrieved party' and not merely to such person who has been 'injured' by a violation of `right' or 'franchise' or by a threat thereupon‑‑‑Application under Art.199 of the Constitution cannot only be filed by such party who can say that his 'right' has been invaded upon and that he has, therefore, been 'injured' in such sense.

(b) Right‑‑‑

‑‑‑‑Concept‑‑‑Expression 'right' is well‑known concept in jurisprudence and the converse of it is 'injury'.

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

‑‑‑‑Art.199‑‑‑Constitutional Jurisdiction‑‑‑Scope‑‑‑Disputed question of fact‑‑‑Both the parties claimed to have raised funds for the purchase of plot and establishment of college in question‑‑‑Effect‑‑‑Such was a question of fact which could not be adjudicated upon by High Court in exercise of Constitutional jurisdiction.

(d) Emigration Rules, 1979‑‑‑

‑‑‑‑R.2 (gg)‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑­Constitutional petition‑‑‑Overseas Pakistanis' Foundation Girls College‑‑­Employees, status of‑‑‑Petitioner was appointed as Principal of the college and her service was terminated by the Board of Directors of Overseas Pakistanis' Foundation managing the affairs of the college‑‑­Plea raised by the petitioner was that the college was established by Federal Government thus the Board had no concern with the affairs of the college‑‑‑Validity‑‑‑Board was neither a corporate body nor a juristic person competent to employ teachers‑‑‑Establishment of the college by Federal Government having been made in discharge of its Constitutional and/or statutory obligations as a State, teachers appointed by Federal Government in the college were holding the civil post in connection with the affairs of the Federation‑‑‑Petitioner was appointed as Principal, as she was a civil servant, termination of her service was part of the terms and conditions of service‑‑‑Petitioner should voice her grievance before Service Tribunal‑‑‑Constitutional petition was barred under Art. 212 of the Constitution‑‑‑Petition was dismissed accordingly.

Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Dr. Rashid Anwar v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 7 others 1996 SCMR 1572; Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistanis Foundation (OPF), Girls College, Islamabad 1994 SCMR 958 ref.

(e) Words and Phrases‑‑‑

‑‑‑‑Right‑‑‑Concept.

Muhammad Waqar Rana for Petitioner (in W.P. No.2344 of 2003).

Zulfiqar Khalid Maluka, for Petitioner (in W.P. No. 558 of 2004).

Mian Gul Hassan Aurangzeb, for the Respondents.

Shamshadullah Cheema, Standing Counsel of the State.

2005 P L C (C.S.) 842

[Lahore High Court]

Before Syed Jamshed Ali, J

SHAUKAT ALI WAHLA, SUPERINTENDENT, AUQAF, SARGODHA

Versus

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB, LAHORE

W. P. No. 2398 of 2002, heard on 13th October, 2004.

Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑S.5(1)‑‑‑Constitution of Pakistan (1973), Arts. 8, 27 & 199‑‑­Constitutional petition‑‑‑Promotion‑‑‑Discrimination on ground of religion‑‑‑Petitioner, who was an Ahmadi, was promoted as Superintendent in Auqaf Organization, but said order of promotion was recalled on the ground that proviso to S.5(1) of Punjab Waqf Properties Ordinance, 1979, did not permit promotion of a non‑Muslim as an officer‑‑‑Validity‑‑‑Discrimination on the ground of religion alone was prohibited by Art.27 of the Constitution‑‑‑‑Guarantee against discrimination on ground of religion was absolute and not subject to reasonable qualification or restriction‑‑‑Exceptions to said guarantee had been provided by Art.27 of the Constitution itself‑‑­Proviso to S.5(1) of Punjab Waqf Properties Ordinance, 1979, in circumstances was repugnant to Art.27 of the Constitution and was void by virtue of operation of Art.8 of the Constitution.

Malik Muhammad Azam Rasool for Petitioner.

Dilshad A. Khan Raja for Respondent.

Date of hearing: 13th October, 2004.

2005 P L C (C.S.) 847

[Lahore High Court]

Before Muhammad Muzammal Khan, J

Dr. GHAZANFAR MEHDI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 4 others

Writ Petition No.3260 of 2004, heard on 28th February, 2005.

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

‑‑‑‑R.12‑A [inserted vide Notification S.R.O. 521(I)/2000, dated 31‑7‑2000]‑‑‑ Constitution of Pakistan (1973), Arts. 199 & 212‑‑­Constitutional petition‑‑‑ Maintainability‑‑‑Bar of Art.212 of the Constitution‑‑‑Applicability‑‑‑Correction of date of birth‑‑‑Petitioner assailed his retirement notification on the ground that he had got his date of birth corrected in civil suit‑‑‑During the proceedings before civil Courts, the petitioner did not implead his department as a party and only arrayed the Board of Intermediate and Secondary Education as part‑‑­On the basis of decree passed by the. Civil Court, school certificate and National Identity Card of the petitioner were corrected‑‑‑Validity‑‑‑All such documents were prepared at the back of his department and had no binding effect‑‑‑Petitioner was a civil servant whose date of birth related to the terms and conditions of his service but he concealed from High Court his twice approach to Service Tribunal where he claimed change of birth but it was found to be afterthought‑‑‑Deserting his right of appeal before Supreme Court he filed the present Constitutional petition‑‑‑Besides approach to High Court by the petitioner with unclean hands, there was complete ouster of invocation of Constitutional jurisdiction by High Court under Art. 212 of the Constitution‑‑‑No room was left under R. 12‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, for change of date of birth, as the petitioner himself served the Department and continued with the job and was retired on completion of tenure of service‑‑‑Petitioner falsely attempted to delay his formal superannuation‑‑‑High Court, in view of bar contained in Art.212 of the Constitution had no jurisdiction to entertain a Constitutional petition especially after decision by Service Tribunal, against which appeal lay before Supreme Court‑‑‑Petition was dismissed in circumstances.

Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521; Niaz Akbar v. Pakistan Atomic Energy Commission through its Chairman and another 2003 TD (Service) 5; Ch. Muhammad Din Kausar v. AJ&K Government and 4 others 2004 PLC (C.S.) 897 and Khalil Ahmad Siddiqui v. Pakistan, through Secretary Interior, Islamabad and 5 others 2004 PLC (C.S.) 1044 rel.

Rai Muhammad Nawaz Kharal for Petitioner.

Shamshad Ullah Cheema, Standing Council for Respondent No. 1.

Abdul Rahim Bhatti for Respondents Nos. 2 and 4.

Date of hearing: 28th February, 2005.

2005 P L C (C.S.) 851

[Lahore High Court]

Before Ch. Ijaz Ahmed and Muhammad Khalid Alvi, JJ

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

Versus

TARIQ MEHMOOD, PTC TEACHER.

I.‑C.A. No.476 of 2004 in Writ Petition No.10639 of 2004 decided on 9th March, 2005.

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

‑‑‑‑Ss. 2(e), 4 & 21‑‑‑Law Reforms Ordinance (XII of 1972), S. 3(2), Proviso ‑‑‑Intra‑Court Appeal‑‑‑Maintainability‑‑‑Single Judge of High Court having accepted claim of Civil Servant with regard to payment of his salary, department had filed Intra‑Court Appeal against said judgment‑‑‑Salary of Civil Servant was part and parcel of terms and conditions of his service as was evident from S.2(e) of Punjab Civil Servants Act, 1974, Civil Servant had a right of appeal qua withholding of his salary before appellate Authorities by virtue of S. 21 of the said Act and thereafter he had right to file appeal before Service Tribunal by virtue of S.4 thereof‑‑‑Even if Civil Servant failed to avail such statutory remedy, Intra‑Court Appeal would not be maintainable in view of Proviso to S.3(2) of Law Reforms Ordinance, 1972.

Karim Bibi's case PLD 1984 SC 344; Muhammad Abdullah's case PLD 1985 SC 107; M. Jamil Chaudhry v. M. Hanif Chaudhry PLD 1975 Lah. 379; Yusuf Ali Khan v. Muhammad Javed Iqbal Cheema PLD 1975 Lah. 1339 ref.

M. Hanif Khattana, Addl. A.‑G. for Appellants.

2005 P L C (C.S.) 857

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

AHMED MANSOOR

Versus

GOVERNMENT OF PUNJAB through Secretary Housing Urban Development and Public Health Engg. Dept. and 5 others

Writ Petition No. 11532 of 1998, heard on 28th February, 2005.

(a) Gujranwala Development Authority (Appointment and Conditions of Service) Regulation, 1991‑‑‑

‑‑‑‑Regln.22‑‑‑Legislation by adoption/reference‑‑‑Scope‑‑‑Director General and all officers of Gujranwala Development Authority are empowered to exercise the powers and functions presently in force in Faisalabad Development Authority vide notification dated 12‑10‑1991‑‑­Regulations of Faisalabad Development Authority are applicable with regard to exercising powers by Director‑General and officers of Gujranwala Development Authority on the well‑known principle of legislation by adoption/reference which is a valid method under law.

Pakistan International Airlines Corporation's case PLD 1979 Lah. 415 ref.

(b) Gujranwala Development Authority (Appointment and Conditions of Service) Regulation, 1991‑‑‑

‑‑‑‑Regln.22‑‑‑Status of statutory regulations‑‑‑Gujranwala Development Authority adopted Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑By adopting such rules, the Gujranwala Development Authority Regulations, 1991, would not become statutory in nature.

Ch. Abdul Rashid's case PLD 1979 Lah. 803; Zia Ghafoor Piracha's case 2003 PLC (C. S.) 1404; Zia Ghafoor Piracha's case 2004 SCMR 35; Muhammad Anwar Hussain's case 2000 PLC (C.S.) 678; Muhammad Abid Rana's case 2000 PLC (C.S) 1068 and Zia Ghafoor Piracha's 2002 PLC (C.S.) 1571 rel.

(c) Gujranwala Development Authority Regulations, 1991‑‑‑

‑‑‑‑Regin.22‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Principle of master and servant‑‑­Applicability‑‑‑Non‑statutory service rules‑‑‑After completing formalities of departmental inquiry, the petitioner was compulsorily retired from service‑‑‑Validity‑‑‑By mere application/incorporation of Civil Servants Act, 1973 or statutory rules the relationship of master and servant between the employer and employee would not get transformed into statutory relationship‑‑‑Since principle of master and servant relationship was attracted in the case the petition was not 'maintainable‑‑‑Constitutional Petition was dismissed in circumstances.

Anwar Hussain's case PLD 1984 SC 194; Anwar Hussain's case 1992 SCMR 1112; Capt. Rafiq Ahmad Sheikh's case PLD 1992 Kar. 190; Arshad Ahmad's case 2000 PLC (C.S.) 1355; Riaz‑ud‑Din's case PLD 1992 SC 531; Principal Cadet College Kohat's case PLD 1984 SC 170; Anwar Hussain's case PLD 1984 SC 194 and Syed Jamil Ahmad's case 1993 SCMR 346 rel.

Muhammad Farooq Chishti Qureshi for Petitioner.

M. Hanif Khattana Addl. A.G. for Respondents Nos. 1, 4 & 6.

Altaf‑ur‑Rehman for Respondents Nos.2 & 3.

Date of hearing: 28th February, 2005.

2005 P L C (C.S.) 863

[Lahore High Court]

Before Muhammad Nawaz Bhatti, J

Mrs. FAUZIA AMAN ULLAH

Versus

GOVERNMENT OF PUNJAB and other's

Writ Petition No.3612 of 2003, decided on 13th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Appointment on ad hoc basis‑‑‑Petitioner was an ad hoc Lecturer and remained in service from 1996 to 2000 and her service period expired on 30‑6‑2000 and she was terminated‑‑‑Authority invited applications vide advertisement from ad hoc Lecturers and Subject Specialists in the light of judgment of Supreme Court for regularization of their services‑‑‑Said advertisement later on was modified to the effect that ex‑ad hoc Lecturers and ex‑ad hoc Subject Specialists; both male and female whose terms of appointment expired on 30‑6‑2000 and were terminated, but were not petitioners before the Supreme Court were also eligible to apply to Public Service' Commission for regularization of their services‑‑­Petitioner in compliance of said modified advertisement applied for regularization of her service‑‑‑She was duly interviewed, but a rejection letter was sent by Authority to petitioner; firstly on the ground that her services were not terminated on 30‑6‑2000 and secondly her application was not competent as she was not a party before Supreme Court‑‑­Validity‑‑‑Both grounds were baseless in view of said modified advertisement, because under said advertisement ad hoc employees whose services were terminated on 30‑6‑2000 and who were not party to case before Supreme Court, were eligible to apply for regularization of their services‑‑‑Constitutional petition was allowed with direction that case of petitioner be considered for regularization on its own merits and result declared accordingly.

Ch. Muhammad Husain Jahania for Appellant.

Ch. Muhammad Sarwar Bhatti A.A.‑G. and Abdul Razzaq Deputy Director Legal PPSC for Respondents.

Date of hearing: 13th April, 2005.

2005 P L C (C.S.) 908

[Lahore High Court]

Before Syed Jamshed Ali, J

Mian ZIA-UD-DIN

Versus

SECRETARY LOCAL GOVERNMENT

Writ Petition No.7206 of 2004, decided on 5th July, 2004.

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

----Rr.10-A, 10-B & 22---Constitution of Pakistan (1973) Art. 199---Writ of quo warranto, issuance of---Petitioner had sought a direction in the nature of writ of quo warranto against respondent who being a Grade 17 Officer was appointed by Secretary of the Provincial Government as Town Officer which was a post of Grade B.S.-19---Petitioner had not claimed any relief for himself, but had alleged that impugned order of the Secretary appointing the respondent on post of BS-19 was arbitrary and politically motivated---Secretary had contended that arrangement vide impugned order was temporary and had been made in public interest---Validity---Appointment on acting charge basis was contemplated by R.10-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 whereby senior most officer was entitled to be appointed to a post reserved for departmental promotion and that too on recommendation of Departmental Promotion Committee or Provincial Selection Board and under R.10-B of said Rules appointment on current charge basis would also be made on basis of seniority and senior most civil servant would be entitled to be promoted---Even for making ad hoc appointment under R.22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, there was requirement of advertising the vacancy in the newspaper---Impugned order, in circumstances, was not only contrary to Rules, but was also arbitrary---Impugned order was declared as without lawful authority with the result that said post would be deemed to be vacant to be filled in accordance with law applicable and Service Rules.

(b) Administration of justice---

----Rule of law---Public employment was no more bounty of the State or its functionaries---Rule of law was a cherished goal of any civilized society and it would remain illusory if abuse of administrative Authority would continue unabated.

Dr. Sher Bahadur Khan Panee, M.B.B.S., P.M.S., Deputy Inspector-General of Prisons, Northern Range, Peshawar v. The Government of West Pakistan, through the Chief Secretary, West Pakistan Government Lahore and others PLD 1956 Pesh. 77 and Mr. A. R. Azar, Deputy Chief Engineer, West, North-Western Railways, Lahore and others v. The Federation of Pakistan and others PLD 1958 Lah. 185 ref.

Ehsan Sabri for Petitioner.

Abdul Rehman Addl. A.G. with Akbar Ali Khawaja for Respondent No.1.

Ahmad Awais for Respondent No.2.

Date of hearing: 5th July, 2004.

2005 P L C (C.S.) 943

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD SADIQ BASHIR

Versus

PUNJAB SMALL INDUSTRIES CORPORATION and others

Writ Petitions No.2250 of 2003/BWP, decided on 8th April, 2005.

(a) Appeal---

-------When appeal is filed, the whole matter reopens.

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

----S.21---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Locus poenitentiae, principle of---Applicability---Pendency of appeal---Petitioner who had been working in that grade for more than five years was promoted to next grade and thereafter he was demoted to previous grade---Plea raised by petitioner was that he could not be demoted and his promotion could not be withdrawn on the basis of rule of locus poenitentiae---Validity---Order of promotion was under scrutiny before higher office/official of departmental before whom the representation/appeal was filed and pending, therefore, rule of locus poenitentiae was not applicable to , the case---Rule of locus poenitentiae could be invoked when an order had become final or could be treated as having attained finality and the chapter of it was closed due to non-filing of appeal/revision/review/representation, whichever was applicable---Case of petitioner was not of receding of taken steps but it was a case in which it would be presumed that no decisive steps were taken and the order of promotion had not become final---Rule of locus poenitentiae was not applicable and could not be invoked in case of illegal orders---Order passed by Authorities demoting petitioner was not illegal and was not interfered with by High Court in Constitutional jurisdiction---Petition was dismissed in circumstances.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Abdul Haque Indhar and others v. Province; of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907; Dilawar Hussain, anothers v. District Co-ordination Officer, Okara, and others 2004 CLC 324 and Akhtar Mehmood v. The Deputy Commissioner, Gujrat and others 2003 PLC (C.S.) 1146 ref.

(c) Order-----

----Illegal order---Scope---Order which in illegal, unlawful, based on fraud, void ab initio or passed without jurisdiction cannot create any right to be defended.

Shabbir Ahmad Bhutta for Petitioner.

Shamshir Iqbal Chughtai for Respondents.

2005 P L C (C.S.) 959

[Lahore High Court]

Before Ch. Ijaz Ahmed, J

Miss NASEEM LATIF

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Government of the Punjab and 7 others

Writ Petition No.12905 of 2004, decided on 7th March, 2005.

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

----Art. 199---Constitutional jurisdiction of High Court---Substituting findings of forums below---Scope---High Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below, while exercising powers under Art. 199 of the Constitution.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo; PLD 1973. Lah. 600 and Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 rel.

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

-------Art. 199---Constitutional petition---Maintainability---Vested right---Issuance of appointment letter---Non-impleading of necessary party--Effect---Petitioner applied for the post in question and appointment letter was issued to her but another candidate lower in merit list was made to join the service---Petitioner filed complaint before Ombudsman who accepted the same but appellate authority reversed the order passed by the Ombudsman---Plea raised by the petitioner was that after issuance of appointment letter a vested right had accrued in her favour---Validity---Merely issuance of letter to the petitioner to attend ceremony did not create any vested right in her favour---Other candidate was not impleaded as party in the petition, therefore, Constitutional petition was not maintainable---Public functionaries were to act within the framework of the Constitution---High Court directed the Government to constitute a committee to probe into the matter whether any injustice had been done to the petitioner---High Court further directed that if injustice would be found to have been done to the petitioner, she might be accommodated in accordance with law---Petition was disposed of accordingly.

Ramiz-ul-Haq's case PLD 1992 SC 221 and Zahid Akhtar v. Government of Punjab and 2 others PLD 1995 SC 530 rel.

(c) Interpretation of Constitution-----

----Constitution is based upon trichotomy---No body is above the Constitution.

Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 rel.

(d) Mala fide---

----Connotation---In case there is slightest possibility of deviation from the law, then it is termed as mala fide---Where the authority exercises power in such manner, which creates doubts then it is termed as mala fide.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

Ahmad Hussain Shah Bukhari for petitioner.

Muhammad Hanif Khatana, Addl. Advocate, General for Respondents Nos.1 to 3, and 7.

Kh. Muhammad Afzal, Legal Advisor of the Respondents Nos.4 to 6.

Sher Nawaz Shah, for Respondent No.8.

2005 P L C (C.S.) 974

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

JAVED HUSSAIN SHAH

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and others

Writ Petition No.16835 of 2004, heard on 8th April, 2005.

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

----Ss. 7 & 8-A---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rr.8 & 14-A---Constitution of Pakistan (1973), Arts. 199 & 25---Constitutional petition---Out of turn promotion--Principles---Date from which promotion was (Inc, question of---Civil servant was awarded out of turn promotion due to his gallant services---Grievance of civil servant was that authorities had imposed a condition that substantive promotion would be allowed to the civil servant in due course after his seniors would be promoted---Validity---Authority was empowered under S.8-A of Punjab Civil Servants Act, 1974 and R.14-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, to promote civil servant on out of turn basis---Criteria laid down or settled for promotion of civil servant as provided in S.7 of Punjab Civil Servants Act, 1974, and R.8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, was neither attracted nor in conflict with S.8-A of Punjab Civil Servants Act, 1971, and R.14-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 174---Law had provided special treatment, award in shape of promotion and financial aid to a person who performed or exhibited exemplary services and had given extraordinary performance in discharge of his duties---Civil servant was promoted on out of turn basis in exercise of powers conferred by S.8-A of Punjab Civil Servants Act, 1974, as services rendered by him had been admitted by the department--If civil servant was promoted in view of his gallant services, his promotion was due from the date he performed his duties as recognized by R.8-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--High Court had also issued direction in favour of civil servant for such promotion and the order of High Court was upheld by Supreme Court, therefore, no authority was competent to deviate from the law and no option was left with the authority but to promote civil servant from the date of such-like performance in discharge of duties---Act of imposing such condition was not only clear violation of provisions of S.8-A, of Punjab Civil Servants Act, 1974, and R.14-A, of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, but also was clear violation of Art.25 of the Constitution---Condition imposed by authorities on promotion of civil servant was without lawful authority, of no legal effect and the same was set aside---Petition was allowed in circumstances.

Government of Punjab through Secretary (Services) SGA&ID, Lahore and others v. Rao Shamsher Ali Khan, Additional Commissioner Multan and others 1992 SCMR 1388 and NLR 2004 Civil Lah. 294 ref.

(b) Interpretation of statutes---

----Provisions of every part/section of statute are to be construed in their true perspective:

(c) Interpretation of Constitution---

----Fundamental rights---Scope---Constitution has granted/provided fundamental rights to citizens of country and protection provided by the Constitution cannot be violated.

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

----Arts. 199 & 212--Constitutional petition---Maintainability---Out of turn promotion, a matter relating to terms and conditions of service---Validity---Question in the petition related to promotion of civil servant and High Court was to interpret the relevant sections and rules---High Court was competent to interpret such provisions of law in exercise of Constitutional jurisdiction---Question did not fall within the exclusive Jurisdiction of Service Tribunals---Civil servant had the right to be considered for promotion on eligibility and same was his vested right and could be considered by High Court and bar contained in Art.212 of the Constitution was not total---Petition was maintainable in circumstances.

S. Baqir Zaheer Rizvi v. Secretary, Housing and Works Division, Government of Pakistan, Islamabad and others 2000 PLC (C.S,) 1151 rel.

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

----Arts. 199 & 212---Constitutional petition---Maintainability---Service matter---Condition imposed on out of turn promotion---Validity---For such condition, civil servant had no right of appeal before Service Tribunal---Constitutional petition was maintainable before High Court in circumstances.

Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S) 123 rel.

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

----Arts. 199 & 212---Punjab Service Tribunals Act (IX of 1974), S.4---Constitutional jurisdiction---Scope---Service matter---Condition imposed on out of turn promotion was an act of mala, fide---Validity---Condition with regard to substantive promotion of civil servant imposed by department was mala fide---High Court had ample powers to give direction to public functionaries to act in accordance with law in spite of the bar contained in Art.212 of the Constitution read with S.4 of Service Tribunals Act, 1973, and action based on malice was required to be struck down---Constitutional petition before High Court was maintainable in circumstances.

Federation of Pakistan through Secretary Establishment v. Sh. Abdul Aziz PLJ 1998 SC 850 and Ahmed Ali v. D.E.O. (EE-M), Okara PLJ 2002 Lah. 2011 rel.

Syed Muhammad Kaleem Ahmad Khurshid for petitioner.

Rana Naeem Sarwar, Addl. A.-G. and Muhammad Shahryar Sultan, Deputy Secretary Services and Asad Ullah Deputy Secretary Police for Respondents.

Date of hearing: 8th April, 2005.

2005 P L C (C.S) 986

[Lahore High Court]

Before Syed Jamshed Ali, J

NISAR AHMED BUTT and others

Versus

HASAN NAWAZ TARAR, SPECIAL SECRETARY EDUCATION (SCHOOLS), PUNJAB, LAHORE and others

Crl.Org. No. 527/W of 2003 and Writ Petition No.19265 of 2000, decided on 16th June, 2004.

Punjab Education Department (Schools Education) Recruitment Rules, 1987-----

----R.7---Constitution of Pakistan (1973), Art. 199---Antedating of promotion---Entitlement---Contempt of Court---Petition for---Service Tribunal in its decision found the petitioners entitled to be considered in accordance with rules, for antedating of their promotion to BS-18 & 19 under the four tiers formula of Government---Said decision of Service Tribunal having not been implemented by Authorities, petitioners had filed Constitutional petition which was disposed of directing the Authorities to implement judgment of Service Tribunal---Said direction having also not been complied with by Authorities, petitioners had filed contempt application, which was disposed of on the basis of undertaking given by Authorities to the effect that judgment of Service Tribunal would be implemented within one month---Said undertaking having also not been complied with, petitioners had filed present contempt petition---Departmental Authorities, for the first time, had taken the position that in accordance with applicable rules petitioners were not eligible even for promotion as Headmasters because they did not possess M.A./M.Sc. degree which was the requirement of the rules and in circumstances their promotion to BS-18 could not be antedating---Such objection was not taken by Authorities either before Service Tribunal or in earlier Constitutional petition or in the contempt petition---Petitioners were promoted as Headmasters in 1983-1984 in accordance with the rules then in force and present dispute was only regarding their promotion from due date which was 12-12-1990---According to Rules and method of recruitment, M.A./M.Sc. degree was required for promotion to post of Principal and for promotion of petitioners to B.S.-18 said Rules were not attracted---Pro forma promotion of petitioners was not restricted by Rules and they were entitled to antedated promotion in accordance with judgment of Punjab Service Tribunal---Departmental Authorities not only failed to implement judgment of Service Tribunal, but also had failed to comply with direction of High Court rendered in earlier Constitutional petition and also undertaking given by the Authorities---High Court, however ,granted benefit of doubt to the Authorities in mis-interpreting the Rules and declined further action in contempt matter---Authorities had been provided another opportunity to comply with direction of High Court and their own undertaking and to implement judgment of Service Tribunal, accordingly.

Postmaster General Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim PLD 1978 SC 61 ref.

Zafar Iqbal Chohan for petitioners.

Aamir Rehman, Addl. A.-G. and Syed Ashiq Hussain, S.O. Regulation-II, S&GAD and Inayat Ullah Khan, S.O. (S.VI), Education Department for respondents.

Date of hearing: 16th June, 2004.

2005 P L C (C.S.) 993

[Lahore High Court]

Before Syed Jamshed Ali, J

Dr. GHULAM SHABBIR SAQIB, D.H.O.

Versus

GOVERNMENT OF PUNJAB. through Secretary L.G. and R.D. Department and others

Writ Petition No.12455 of 2003, decided on 17th September, 2004.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Posting and transfer---Writ of quo warranto---Posting and transfer of officers including petitioner and respondent, was made in public interest---No public servant had vested right to claim appointment to a particular post---Opinion as to public interest formed by a public functionary, could not be substituted by High Court in exercise of its extraordinary discretionary jurisdiction under Art. 199 of the Constitution.

Rana Bashir Ahmed Kasuri for Petitioner.

Dr. M. Mohy-ud-Din Qazi and Dr. Ehsan-ul-Haque Khan for Respondents Nos.1 and 2.

Aamir Rehman, Addl. A.G. for Respondent No.6.

Date of hearing: 17th September, 2004.

2005 P L C (C.S.) 1193

[Lahore High Court]

Before Sh. Hakim Ali, J

RAFIQUE AHMAD

Versus

DISTRICT EDUCATION OFFICER and another

Writ Petition No.478 of 2003/BWP, decided on 30th March, 2004.

Punjab Civil Services Rules---

----Volume-1, Chapter, VII, Rr.7.2 & 7.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Arrest and conviction of (Civil Servant) petitioner---Entitlement to pay and allowance---Petitioner, who was arrested in criminal case on 13-9-1999, was convicted and sentenced on 1-7-2002 and appeal against order of his conviction and sentence was pending adjudication---Petitioner was suspended from service from the date of his arrest, i.e. 13-9-1999---Petitioner was entitled to grant of pay with allowances which he was drawing immediately before his suspension in accordance with R.7.2 of Punjab Civil Services Rules uptill 1-7-2002 when his conviction was recorded by Additional Sessions Judge---Regarding period commencing thereafter, competent Authority had to decide case of petitioner in accordance with R.7.5 of Punjab Civil Services Rules---Authorities were directed to disburse full pay and allowance for the period ranging from 13-9-1999 to 1-7-2002 to the petitioner and to decide his case for the period thereafter in accordance with R.7.5 of Punjab Civil Services Rules.

Abdul Ghaffar Bhutta for Petitioner.

Ahmed Mansoor Chishti, A.A.-G. along with Muhammad Ayaz

Representative of District Education Officer, Rahimyar Khan for Respondents.

Date of hearing: 30th March, 2004.

2005 P L C (C.S.) 1199

[Lahore High Court]

Before Sardar Muhammad Aslam, J

FARID ULLAH KHAN

Versus

FEDERAL TAX OMBUDSMAN and others

Writ Petition No.1150 of 2005, decided on 25th January, 2005. .

Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----Ss. 9, 14 & 32---Constitution of Pakistan (1973), Arts.199 & 21.2---Constitutional petition---Transfer of Civil servant from one place of working to another by the order of Federal Tax Ombudsman---Petitioner serving as Income Tax Inspector at place P.S. was transferred to another Zone by direction of Federal Tax Ombudsman---Transfer was directed on ground that real brother of petitioner was a practicing Advocate in the District where petitioner was serving---Petitioner had challenged direction of Federal Tax Ombudsman in Constitutional petition before High Court alleging that Federal Tax Ombudsman had no jurisdiction to pass impugned order---Validity---Federal Tax Ombudsman exercised quasi-judicial jurisdiction; maladministration in Central Board of Revenue or any of its establishments could be taken notice of by Federal Tax Ombudsman---Petitioner being a civil servant, direction to transfer him outside his home District was squarely covered by terms and conditions of his service--Article 212 of Constitution had imposed complete bar to entertain Constitutional petition against transfer of civil servant; besides, petitioner had already availed an adequate remedy by filing representation before President of Pakistan under S. 32 of Establishment of Office of Federal Tax Ombudsman, Ordinance, 2000---Even on that ground Constitutional petition was not entertainable.

Rao Javaid-ul-Haque Khan for Petitioner.

Date of hearing: 25th January, 2005.

2005 P L C (C.S.) 1277

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

Mst. ROBINA SHAHEEN

Versus

D.E.O. BAHAWALNAGAR and others

Writ Petition No. 2158 of 2004/BWP decided on 22nd February, 2005.

Constitution of Pakistan (1973)-----

----Arts. 199 & 212---Punjab Service Tribunals Act (IX of 1974), S.4--- Constitutional petition---Prayer for issuing directions to competent authority to promote petitioner being eligible, fit and senior to other civil servants---Validity---High Court in exercise of Constitutional jurisdiction could not issue such direction in view of bar contained in Art. 212 of the Constitution-Principles.

Prayer of the petitioner that direction be issued to authority for promoting her as SV/EST Teacher being eligible, fit and senior in all respects to other respondents. High Court while sitting in Constitutional jurisdiction can hardly grant such relief. It is established principle of law that question of determination of eligibility before determining fitness for promotion is one, which exclusively falls within the phrase "terms and conditions of service" and the same can be agitated only before Service Tribunal, and the jurisdiction of High Court in such-like cases is expressly barred by Art. 212 of the Constitution.

High Court while sitting in Constitutional jurisdiction cannot issue any direction to the Competent Authority to promote petitioner in preference to other persons, who may also stand on equal footing. It is within the jurisdiction of the Competent Authority to determine the eligibility of a civil servant and then to decide whether such civil servant is entitled to promotion or not, because while considering the case of promotion not only seniority, but fitness is also to be considered and the same only be decided by the Competent Authority after considering the service record of a civil servant.

Present Constitutional petition was not maintainable being barred by Art. 212 of the Constitution, thus, same was dismissed in limine.

Mian Abdul Khaliq v. Dr. Zubair Ahmad Siddiqui 1991 SCMR 1129; Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Jamshaid Akhtar Khokhar, for Petitioner.

Syed Shaheen Masood Rizvi, A.A.-G. and Mrs. Shahida Hafeez, DEO (WEE) BWP for Respondent.

2005 P L C (C.S.) 1300

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD MUSHTAQ

Versus

CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

Writ Petition No.5506 of 2005, decided on 3rd June, 2005.

(a) Government College University, Faisalabad Ordinance (LXX of 2002)-----

----S.41---Dismissal of permanent employee---Principle of audi alteram partem---Applicability---Reasonable opportunity of showing cause against and action proposed to be taken against employee has been envisaged under S.41 of Government College University, Faisalabad Ordinance, 2002, which is a recognition of basic principle of natural justice i.e. audi alteram and its applicability.

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

----Scope---principles are integral part of our jurisprudence and legal dispensation---Principle that no man should be condemned unheard is presumed to be embodied in statute in absence of any provision to the contrary.

Commissioner of Income-Tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410 and Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451 ref.

(c) Government College University, Faisalabad Ordinance (LXX of 2002)---

----S.14---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Principle of audi alteram partem---Applicability---Expression pleasure of the Chancellor'---Scope---Petitioner was appointed in the University as Registrar, for a term of three years---Three days after approval of terms and conditions of the appointment of petitioner, notification was issued whereby he was removed from service on the ground that he was to hold the office at the pleasure of the Chancellor---Plea raised by the petitioner was that he was condemned unheard---Validity---Expressionpleasure of the Chancellor' mentioned in the notification did not find support from the contemporaneous law---Rather the expression was contrary to the provisions of S.14 of Government College University, Faisalabad Ordinance, 2002, which envisaged the appointment of the Registrar by following certain procedure and observing a criteria mentioned therein---Appointment though had to be made by the Chancellor, yet it has to be on the recommendations of the Government as recommended by the Committee appointed by Syndicate and headed by Vice-Chancellor and it was not an appointment in the absolute discretion of the Chancellor `at his pleasure'---' Pleasure' of the Chancellor appearing in the notification was to be regarded as otiose, superfluous. and futile being contrary to the statutory law and the law declared by Superior Courts---Any administrative/executive order/instrument that might tend to deprive a person of the right to notice about the proposed action to be taken or opportunity of showing cause to be given, was not only un-Islamic but also unlawful---Notification of the petitioner did not envisage the termination clause; it could reasonably be implied that the petitioner was in normal course entitled to complete his tenure unless curtailed earlier in accordance with law, after notice and opportunity of showing cause---Action against the petitioner was prompted by some allegations and he was summarily removed, although his terms and conditions of appointments were approved three days. before the notification; in such background the notice and opportunity of showing cause was necessary but his services were dispensed with summarily without adhering to and observing the minimum requirement of natural justice---Notification whereby the services of petitioner were dispensed with summarily without any show-cause notice to him was not sustainable in law and was declared as of no legal effect---Petition was allowed accordingly.

Mr. A.R. Azar Deputy Chief Engineer, West North-Western Railway Lahore and others v. The Federation of Pakistan another PLD 1958 Lah. 185; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; The D.F.O. South Kheri and others v. Ram Sanehi Singh AIR 1973 SC 205; Messres Airport Support Services v. The Airport Manager, Quaid-e-Ezam International Airport, Karachi and others 1998 SCMR 2268; Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others 2004 CLC 1104; Zubair Ahmad and another v. Shahid Mirza and 12 others 2004 SCMR 1747; Prof, Dr. Aftab Ahmed Malik v. University of Engineering and Technology Lahore through Registrar and 3 others 2005 PLC (C.S.) 80; Sindh Road Transport Corporation through Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404; Muhammad Aslam Chaichee v. Azad Government of the State of J&K through Chief Secretary and another 1988 PLC (C.S.) 759; Shafqat Mahmood Lodhi v. The Accountant-General West Pakistan Lahore PLD 1968 Lah. 786; Muhammad Saeed Zameer and others v. Board of Governors, Aitchison College through Chairman and 2 others 2005 PLC (C.S.) 558; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury, and 2 others PLD 1961 SC 531; Liaqat Ali Channa and others v. Federation of Pakistan and others 1998 PLC (C.S.) 727; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R. Lahore PLD 1962 SC 142 and Pakistan and others v. Public at large and others PLD 1987 SC 304 ref.

Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Pakistan State Oil Company Ltd. v. M.Akram Khan and others 2004 PLC (C.S.) 992 rel.

Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930 disting.

(d) Good governance---

----Pleasure of rulers---Scope---Islamic Republic of Pakistan and the nation is governed by the Constitution and the laws---Absolute power and authority cannot be arrogated to or exercised by any State functionary.

(e) Master and servant---

----Master and servant, relationship of---Concept of such relationship has undergone a change and the relationship of master and servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice.

Fasasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874 rel.

(f) Government College University, Faisalabad Ordinance (LXX of 2002)---

----S.41---Dismissal or removal from service---Requirement of show-cause notice---Counseling by Principal Secretary to Governor whether a substitute for show-cause notice---Validity---High Court refused to accept such counselling as substitute for show-cause notice for the reason that if there was any complaint against the petitioner and he was facing some allegations for which he was heard by the Principal Secretary, then there was no occasion for issuing notification for approving the terms and conditions of his appointment under S.14 (1) of Government College University, Faisalabad Ordinance, 2002----Such counselling could not be a substitute for a notice or opportunity of showing cause as envisaged by S.41 of Government College University, Faisalabad Ordinance, 2002.

Muhammad Ahsan Bhoon for Petitioner.

Ch. Aamer Rehman, A.A.-G Punjab, Ch. Rafiq Hussain, Mushtaq Ahmed Malik, Khalid Mahmood, Deputy Secretary (Education) and Javed Aslam Bajwa, Deputy Registrar/Advisor for Respondents.

Date of hearing: 30th May, 2005.

2005 P L C (C.S.) 1323

[Lahore High Court]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB through Collector and 3 others

Versus

Mst. PARVEEN AKHTAR

Civil Revision No.64 of 1997, heard on 28th May, 2004.

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

----O.VII & R.2---Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 4 & 10---Civil Servants Act (LXXI of 1973), S. 2---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art. 212---Suit for recovery of salary---Removal from service---Jurisdiction---Plaintiff was sweeper in a School---Defendant did not pay her salary---Plaintiff filed suit for recovery of salary, suit was dismissed by the Trial Court---Appellate Court decreed the suit---Validity---Apparently plaintiff was a civil servant---Salary was "term and condition of service"---Exclusive jurisdiction vested in the Service Tribunal view of Article 212 of the Constitution---Judgment and decree passed by the Appellate Court were set aside and suit was dismissed in circumstances.

Asif Cheema, A.A.-G. for Petitioners.

M. Aslam Riaz for Respondents.

Date of hearing: 28th May, 2004.

2005 P L C (C.S.) 1333

[Lahore High Court]

Before: Mian Saqib Nisar, J

ABDUL RAZZAQ

Versus

D.C.O., and others

W.P. No.15481 of 2004, decided on 21st October, 2004.

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

----S. 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment---Petitioners were employed as teachers at respective schools under contract---Contractual employments of petitioners were still in vogue, when Education Department had advertised certain other posts of different schools in the same district to be filled on the basis of contract---Advertisement in that behalf contained a condition that teacher already on contract, could not apply for said posts---Authority had conceded that if petitioners were prepared to resign, they could be considered for said posts and it was also contended by the Authority that a person in contract could not be permitted to seek re-employment as per his convenience---Had it been bona fide intention of petitioners to improve their position and status by competing for a higher post, bar as contained in advertisement should not have come in their way, but simply for the reason that they by seeking new job, would be conveniently closer to their residences, they should be allowed to contest and if succeeded they would resign from previous job otherwise not same was not permissible---Said scenario would definitely create a predicament, because previous posts, would stand vacant for which new process of recruitment would have to be initiated---Case was not fit for exercise of Constitutional discretion---Held; If petitioners within a week would resign from their jobs, and wanted to participate, there would be no bar in considering their cases.

N.A. Butt for Petitioner.

Muhammad Sohail Dar, Asstt. Advocate-General for Respondents.

Date of hearing: 21st October, 2004.

2005 P L C (C.S.) 1347

[Lahore High Court]

Before: Muhammad Jehangir Arshad, J

NUZHAT JABEEN

Versus

SECRETARY and others

W.P. No.3675 of 2004/BWP, decided on 28th January, 2005.

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

----Art. 199---Constitutional petition---Recruitment/appointment as Educator---Criteria---Recruitment policy duly issued by Government, had laid down eligibility criteria, according to which, in addition to marks for academic/professional qualification, 10 marks were reserved for teaching experience as regular teacher in Government school---Petitioner could not obtain appointment under said policy for having failed to fulfil said eligibility criteria as she had not worked in any Government school---Petitioner had prayed that she having experience of teaching in a school being run by some N.G.O., her said teaching experience should be considered equivalent to teaching in Government School---Validity---Recruitment Policy having been issued by Government, would be deemed to have a force of law and must be construed strictly---High Court while sitting in Constitutional jurisdiction was not supposed either to sit as a policy making agency or to interpret the policy of Government just to provide benefit to an individual---Said policy having been made applicable throughout the Province laying down certain terms and conditions for appointment of educators, High Court was bound to follow same strictly unless same was violative of any provision of Constitution .or for that purpose any law or provision of law---High Court had no jurisdiction to hold that teaching experience of petitioner in some school being run by some N.G.O. be considered or taken as equivalent to teaching in Government School---Petitioner had failed to make out a case for obtaining additional marks on basis of her experience as teacher in Government School---Constitutional petition was dismissed, in circumstances.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction or for that purpose jurisdiction conferred on High Court under Art. 199 of the Constitution was meant for giving legal protection to Government Policy within framework of law and not to defeat the policies of the Government by putting forward an interpretation of its own choice.

Nisar ul Haq v. Tehsil Municipal Administration City through Nazim and 2 others PLD 2002 Lah. 359 and Professor Yamen-ud-Din, Advocate v. Lahore Graveyard Committee and another 2003 CLC 1718 ref.

Tariq Mehmood Khan for Petitioner.

Ahmad Mansoor Chishti, A.A.-G.

Atta Muhammad Suptd. DEO (W.E.)

2005 P L C (C.S.) 1353

[Lahore High Court]

Before Syed Zahid Hussain, J

MUAHMAMD ASAD BUTT and others

Versus

DISTRICT OFFICER POPULATION WELFARE and 2 others

W.Ps. Nos.4980 and 4981 of 2005, decided on 10th May, 2005.

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

----S. 4---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Appointment---petitioners had challenged appointment of respondent alleging that they being graduate having been ignored and instead the respondent who was intermediate, had been selected for the post of Mobilizer---Selection process was undertaken by a three- member Committee and individual marking/assessment made and remarks recorded by Members of said Committee had supported the decision of Appointing Authority for non-selection of the petitioners---Validity---For every selection to a particular post, the job requirements had to be kept in view by Appointing Authority---Post for which petitioners had applied was a Male Mobilizers and it was an object and target oriented job---Function and duty to be performed by a Mobilizer was 'to muster, marshal, organize, initiate and to activate---Petitioners might have better qualifications and thought of themselves to be better qualified, but due to the job requirements, Appointing Authority did not find them suitable and fit for the job---Selection process was carried out in a fair and transparent manner and according to eligibility criteria, Intermediate candidate could also be considered---High Court could not substitute its own assessment and view for that of criteria followed and adopted by Appointing Authority---Contention of petitioners having no real substance was repelled.

Atta Ullah Mehr v. Punjab Government 1983 CLC 2903 and Rao Manzoor ul Haque Khan v. Headmaster, Government High School, Handal, Tehsil and District Kasur and 7 others 2001 PLC (C.S.) 1080 ref.

Ch. Ali Muhammad for Petitioners.

Ch. Aamer Rehman, A.A.-G. Punjab with Shahid Shahood, District Officer (Revenue) Sheikhupura for Respondents.

2005 P L C (C.S.) 1365

[Lahore High Court]

Before Muhammad Nawaz Bhatti, J

RAZIA SALEEMI

Versus

MEDICAL SUPERINTENDENT, NISHTER HOSPITAL, MULTAN and another

Writ Petition No. 1127 of 2005, decided on 30th May, 2005.

Constitution of Pakistan (1973)---

----Arts. 3, 29 & 199---Constitutional petition---Non-payment of salary to the employee---Salary of petitioner was stopped simply on the ground that petitioner could not produce her matriculation certificate---Petitioner had produced original matriculation certificate and a copy thereof was placed on file which had also been handed over 'to the functionary of the employer present in the Court---Service record of petitioner being in custody of Authorities, it was not possible for her to tamper with the same---Even otherwise non-payment of salary to employee by employer was a denial and violation of Articles 3 & 29 of the Constitution---High Court accepting Constitutional petition directed authorities to release total salary as claimed by petitioner.

Sughran Begum v. Metropolitan Corporation of Lahore and others 1996 CLC 472 ref.

Haji Rao Muhammad Shafique for Petitioner.

Syed Hashmat Hussain Naqvi for A.A.-G. and Muhammad Saleem for Respondent.

2005 P L C (C.S.) 1402

[Lahore High Court]

Before Syed Jamshed Ali, J

AYAZ HASSAN

Versus

GOVERNMENT OF THE PUNJAB and 3 others

Writ Petition No. 13666 of 2003, heard on 13th September 2004.

Punjab Civil Servants Act (XIII of 1974)-

----S. 2(2)---Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999), S. 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Regular appointment---Grievance of petitioner was that though he was appointed in the service of Government on the basis of recommendation of Punjab Public Service Commission and was a regular employee, he was not being treated as a regular employee and according to impugned order it had been declared that he was a contract employee---Post against which petitioner was selected and appointed, was duly advertised in the newspaper, process of selection was undertaken and petitioner was selected and appointed to said post---Petitioner was subject to provisions of Punjab Civil Servants Act, 1974---Appointment in the service of Government of Punjab was regular one in accordance with provisions of S.2(2) of the Act---Order of appointment of petitioner though had shown that post for which petitioner was selected, was temporary, but even the temporary nature of post would not convert the petitioner into a contract employee---Allowing Constitutional petition it was declared that petitioner was a regular employee of Government of Punjab holding a permanent post.

Amir Mahmood for petitioner.

Aamir Rehman, Addl. A.G. with Masood Anwar, Asstt. Manager TEVTA and Sher Ali, Senior Research Officer, TEVTA for Respondent.

Date of hearing: 13th September, 2004.

2005 P L C (C.S.) 1409

[Lahore High Court]

Before Syed Jamshed Ali, J

SAGHIR AHMAD NAQI

Versus

GOVERNMENT OF THE PUNJAB through Secretary Home (Prisons) Department, Lahore and another

Writ Petition No. 11290 of 2004, heard on 24th January, 2005.

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

----R. 3(V)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Exclusion of period of service rendered in Government service while computing upper age limit---Petitioner serving as Upper Division Clerk in Accountability Court, applied for the post of Assistant Superintendent Jail---According to public notice, prescribed upper age limit was 25 years with five years general relaxation--At time of filing application for advertised post, petitioner being above 32 years his candidature was rejected---According to R.3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, the period of Government service rendered by petitioner as Upper Division Clerk in Accountability Court, was required to be excluded while computing upper age limit for the post in question which rule stood saved by Recruitment Policy of Government of Punjab dated 5-5-2003---Rule 3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 which had contemplated computation of upper age limit and not relaxation of upper age limit, was beneficial dispensation and was to be interpreted in a manner so as to advance the remedy---Rejection of petitioner's candidature was declared as without lawful authority and Punjab Public Service Commission was directed to consider candidature of petitioner by computing upper age limit in accordance with R.3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 after satisfying itself about the claim of petitioner for continuous earlier Government service.

Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2004 PLC (C.S.) 69 ref.

Muhammad Amjad Pervaiz for Petitioner.

Shahid Saleem, Section Officer, Home Department Punjab.

Liaquat Masih, Superintendent, Punjab Public Service Commission.

Date of hearing: 24th January, 2005.

2005 P L C (C.S.) 1426

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

AZHAR NAZIR

Versus

DISTRICT AND SESSIONS JUDGE, BAHAWALNAGAR

Writ Petition No.3400 of 2002, decided on 22nd June, 2005.

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

----R. 17-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Death of Naib Qasid during employment---Prayer of petitioner to be, appointed in place of his deceased father---Validity---Petitioner having failed on open merit had rightly been ignored for appointment as Naib Qasid being not eligible/fit for such post---Benefit of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 would be available to only one child of a deceased employee---Petitioner's brother had already been given benefit of such rule, which benefit could not be extended to petitioner again---High Court dismissed Constitutional petition in circumstances.

Jamshaid Akhtar Khokhar for Appellant.

Jam Abdul Sattar Gasora, Superintendent along with relevant record.

2005 P L C (C.S.) 1449

[Lahore High Court]

Before Syed Zahid Hussain, J

Hafiz MUKHTAR AHMAD

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.5761 of 2005, decided on 17th May, 2005.

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

----S. 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment---Petitioner who applied for the post of Assistant/Head Clerk through proper channel, pursuant to an advertisement, was selected for the said post and was duly appointed---Petitioner, however was not allowed to join the duty due to alleged ban on recruitment imposed in view of direction of Chief Minister---Selection of petitioner was flawless and was completed much before issuance of alleged letter of ban on recruitment---Rationale behind the directive of Chief Minister was "the complaint that merits were not being strictly followed"---Such was not the allegation qua the selection of petitioner---Once the process of selection was completed, without violating any rule or law, subsequent ban on appointment, could not be invoked retrospectively to nullify such selection and appointment---No allegation was levelled against petitioner that his selection was not on merits or that his appointment was made in violation of any rule/regulation---Case of petitioner stood on a much better footing and on a higher pedestal as not only that he was selected, but he was issued appointment and posting order as well and it was only at the time of joining report that he was confronted with such a ban on recruitment---Interpretation placed by Authorities upon directive of ban on recruitment that recruitment process was suspended, could not be accepted as correct approach inasmuch as if the effect of order was to undo the recruitment already finalized the other fresh appointees who had been selected would also have been given similar treatment, but it was petitioner who had to face such agony and a dilemma---Such an unjust and harsh construction, could not be placed upon directive of ban on recruitment nor invoked against petitioner---Executive/administrative, instruction/instrument, could not be applied retrospectively so as to nullify a completed process and a matter which was past and closed---Refusal of Authorities to allow petitioner to join his duty, was unwarranted and of no legal effect---Petition was accepted accordingly with direction to Authorities to permit the petitioner to join as per letter of his appointment and posting.

Muhammad Ismail and others v. Secretary Education, Government of Punjab and another 2000 PLC (C.S.) 112; Secretary of Government of N.-W.F.P. C & W Department and 3 others v. Jamal Abdul Nasir 2003 PLC (C. S.) 977; Muhammad Qadeer and 10 others v. Government of the Punjab through Secretary, Local Government and Rural Development Department, Civil Secretariat, Lahore and 2 others 1998 PLC (C.S.) 409; Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141; Asghar Ali and another v. Secretary, Local Government and Rural Development Department, Government of Punjab Lahore and 4 others 2000 PLC (C.S.) 366;Muhammad Ayaz Sohail v. Director, Anti-Corruption, Punjab, Lahore and others 2000 PLC (C.S.) 453; Muhammad Naeem Sadiq v. Board of Intermediate and Secondary Education, Gujranwala through Chairman and others 2003 PLC (C.S.) 1309 and Ikramullah Saeed v. Chief Secretary Government N.-W.F.P. Peshawar and 3 others 2004 PLC (C.S.) 626 ref.

Zafar Iqbal Chohan for Petitioner.

Ch. Aamer Rehman A.-G. Punjab for Respondent.

Date of hearing: 17th May, 2005.

2005 P L C (C.S.) 1457

[Lahore High Court]

Before Muhammad Muzammal Khan, J

M.M. KHAN FORMER SECRETARY MEMBER FEDERAL PUBLIC SERVICE COMMISSION

Versus

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION and another

Writ Petition No. 3377 of 2003, decided on 11th May, 2005.

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

----Art. 199 --- Civil Servants Act (LXXI of 1973), S.2---Federal Public Service Commission (Composition and Conditions of Service) Regulations, 1978, Regl. 18---General Clauses Act (X of 1897), S.24---Constitutional petition---Federal Government Employees Housing Foundation---Allotment of plot---Petitioner„ Secretary of Federal Public Service Commission in BS-21---Provisional allocation of plot to petitioner on 27-8-1999---Cancellation of plot on the ground that petitioner being a contractual employee of the Commission was not a civil servant in terms of Civil Servants Act, 1973 and thus was not eligible for allotment---Validity---Petitioner had been elevated to BS-21, Federal Public Service Commission for a tenure of three years through Notification No.11/3/97-E-I, dated 2-2-1997 laying down that after his retirement on 5-11-1999, he would be treated as re-employed on contract basis---Letter dated 17-10-1999 issued by Cabinet Secretariat (Establishment Division) clarified that Rules/Regulations as applicable to other civil servants in BS-21 would govern petitioner---Petitioner irrespective of his posting, had remained in Government service till 5-11-1999 and was a civil servant at relevant time within meaning of Civil Servants Act, 1973---Petitioner while holding office of Secretary continued to be a civil servant in terms of R.18 of Federal Public Service Commission (Composition and Conditions of Service) Regulations, 1978---Plot allotted to petitioner in capacity of Federal Government employee could not be cancelled on mere unfounded assumptions, without hearing him and without giving reasons in support of impugned order---High Court accepted Constitutional petition and declared impugned order to be without lawful authority and of no legal effect.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S.Pune and another PLD 2002 SC 630 rel.

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

----S. 24-A---Exercise of powers under enactments---Essentials--Authority or person exercising/discharging statutory obligations would be expected to act justly, fairly and for advancement of the purposes of enactment through reasons reflecting his state of mind.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Col. Retd.) Ayub Ali Rana v. Dr. Carlite S.Pune and another PLD 2002 SC 630 fol.

M. Saleem for Petitioner.

Malik Muhammad Nawaz for Respondents.

2005 P L C (C.S.) 1486

[Lahore High Court]

Before Maulvi Anwarul Haq and Farrukh Lateef, JJ

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and another

Versus

Dr. MUHAMMAD AFZAL and 5 others

I.C.A. No.125 of 2003 in Writ Petition No.4363 of 2002, decided on 24th February, 2005.

Civil Services Pension Rules---

----Rr. 2.11 & 8---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court appeal---Increase in pension---Liability of Government to share said increase---Increase in pension itself made by the University, was not being paid to employees on the ground that Provincial Government was not sharing said increase---University had enhanced the pension vide order of Vice-Chancellor of University and it was nobody's case that Provincial Government in any manner called upon the University to effect said increase in pension, but that was a decision of the University itself---Since University did not fall within the definition of "Government", Provincial Government was not liable to share enhanced amount, of pension with the University---High Court, in circumstances had rightly directed the University to make payment of increase in pension.

Zain A. Malik for Appellants.

M.R. Khalid Malik, Addl. A.G. with Rukhsana Nadeem Bhutta, Deputy Secretary (P.C.) for Respondents.

Muhammad Amir Bhatti for Respondents Nos.1 to 4.

Dates of hearing: 16th and 24th February, 2005.

2005 P L C (C.S.) 88

[Peshawar High Court]

Before Malik Hamid Saeed and Dost Muhammad Khan, JJ

Dr. SHAHNAZ NADIR

Versus

THE GOVERNMENT OF N.-W.F.P. through Chief Secretary Civil Secretariat, Peshawar and 3 others

W.P. No.1388 of 2003, decided on 2nd June, 2004.

Per Malik Hamid Saeed, J; Dost Muhammad Khan, J. [agreeing]—

(a) North-West Frontier Province Medical Institution Act (XII of 1999)------

----Ss. 6 & 11---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Appointment---Selection process ---Review-Petitioner/ candidate in response to advertisement for appointment as "Senior Registrar Gynaecology and Obstetrics" being qualified and eligible to be appointed on that post applied within time specified in advertisement---Respondent also applied to be appointed on said post but after date specified in advertisement which was entertained and a committee was constituted by Health Secretary headed by him for reviewing the selection process of earlier Committee already legally constituted by Management Committee---Respondent was appointed to said post despite being junior and inexperienced and petitioner who was fully qualified and experienced was ignored---Petitioner in her Constitutional petition had prayed for a declaration that constitution of Review Committee was illegal, void ab initio which smacked of patent favouritism towards respondent who was junior and inexperienced doctor and that it was an act of patent mala fide towards petitioner who was most qualified and senior doctor---Management Committee constituted under S. 11 of North-West Frontier Province Medical Institution Act, 1999, only was empowered to appoint a person in service of Institution concerned as deemed necessary and on such terms as could be prescribed through Selection process to be conducted, by Selection Committee and nowhere to said Act or Rules framed thereunder, Health Secretary was figured or empowered either to become part of Management Committee or to constitute a Selection Committee for the said purpose---Secretary Health, in circumstances could not constitute of his own committee to review the decision or process of Selection Committee, which was duly constituted by Managing Committee of respective Hospital---Constitutional petition by petitioner was accepted to the extent that act of entertaining application of respondent after due date for submission of application ,for the post concerned, constitution of Review Committee by Secretary Health and appointment/selection of respondent against the post concerned to the light of recommendations of Review Committee, were illegal, unlawful and violative of prescribed date for submission of application and were ineffective upon the rights of petitioner who had submitted her application for said post within time--­Authority was directed to exclude from consideration application of respondent or any other candidate submitted after closing date and to declare result of interview conducted by earlier Selection Committee duly constituted.

Per Dost Muhammad Khan, J. [agreeing].

(b) Words and phrases---

------Terminus a quo" and "terminus ad quern" ---Definition and Scope--­Legal term `terminus a quo' was the starting point and the terminating date/point was called terminus ad quern---In view of provisions of S. 9 of General Clauses Act, and general principles regulating the process of time given for commencement of any act/task its terminus ad quem was once fixed, notified, published by Authority for information of general public, then it became functus officio after the date/time at the point of terminus ad quern---Competent Authority fixing such time/period could rescind, extend or curtail same, but such powers could be exercised by it before the point of terminus ad quem, but after the expiry of the time it had no power to do so.

(c) Words and phrases-----

----`Due date', defined.

(d) Appeal/Review-----

----Right of---Right of appeal and review was creation of a Statute and unless such right was expressly conferred, no individual could exercise such right nor any Authority could assume such jurisdiction unless given to it by law.

Abdul Latif Afridi for Appellant.

Qazi Muhammad Anwar for Respondent.

Mir Rehman Khalil for Respondent No.3.

Ariusman Khan A.A.-G.

Date of hearing: 27th May, 2004.

2005 P L C (C.S.) 286

[Peshawar High Court]

Before Malik Hamid Saeed and Muhammad Qaim Jan Khan, JJ

Dr. AHMAD SHAH ARBAB and 2 others

Versus

SECRETARY TO GOVERNMENT OF N.‑W.F.P. HEALTH DEPARTMENT, PESHAWAR and 2 others

Writ petition No. 130 of 2001, decided on 27th October, 2004.

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

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Arts.4, 8, 25, 27 & 199‑‑­Constitutional petition‑‑‑Appointment‑‑‑Petitioner, who in response to advertisement of North‑West Frontier Province Public Service Commission applied for the post, was successful in the test and interview, but could not be recruited due to zonal distribution/adjustment of the seats as per policy of the Government‑‑‑Recruitment Policy issued vide Notification had provided that "The Regional/Zonal quota if not filled will be carried forward till suitable candidates are available from the Region/Zone concerned, no "Substitute" recruitment shall 'be made"‑‑‑For the last so many years, appointments in service were being made by Federal Government and respective Provincial Governments on Zonal quota basis under prescribed policy‑‑‑Said impugned policy was quite in accordance with provisions of Constitution of Pakistan (1973) whereby posts could be reserved for persons belonging to any class or area to secure their adequate representation in service of Pakistan‑‑­Petitioners in the present case were neither at a position to be recruited on open' merits nor on seats reserved for Zone to which they belonged ‑‑‑Petitioners, in circumstances had rightly been dealt with in accordance with law and act of respondents did not amount to violation of Arts.4, 8, 28, 27 of Constitution of Pakistan‑‑‑If seats of Zone concerned had not been filled up because of non‑availability of eligible candidates of that Zone, said posts would again be advertised and on availability of suitable candidates of the Zone, same would be filled‑‑‑No exception, could be taken to recruitment policy in circumstances.

S. Maqsood Kausar for Petitioners.

Pir Liaqat Ali Shah, A.‑A.G. for Respondents.

Date of hearing: 27th October, 2004.

2005 P L C (C.S.) 573

[Peshawar High Court]

Before Nasir-ul-Mulk, C.J. and Dost Muhammad Khan, J

MUHAMMAD NADEEM

versus

DISTRICT OFFICER REVENUE AND ESTATE PESHAWAR and 4 others

Writ Petitions Nos.1345, 1354, 1375 and 1376 of 2004, decided on 30th September, 2004.

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

----S. 10---North-West Frontier Province Service Tribunals Act (I of 1974), S. 4----Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Transfer---Petitioners who were civil servants having been transferred from their present postings, had filed Constitutional petitions against order of their transfer---Validity---Posting and transfer of a civil servant being part of the terms and conditions of service of a civil servant, same would fall within exclusive jurisdiction of Service Tribunal---Jurisdiction of High Court under Art. 199 of the Constitution was excluded by Cl. (2) of Art. 212 of the Constitution in the matters that fell within jurisdiction of Service Tribunal---Jurisdiction of Service Tribunal was defined in S. 4 of North-West Frontier Province Service Tribunal Act, 1974 which extended to orders passed by Departmental Authority in respect of any of the terms and conditions of service of a civil servant with the exception of matters pertaining to fitness of a civil servant to hold a particular post or to be promoted to a higher post and imposition of minor penalties---Section 10 of North-West Frontier Province Civil Servants Act, 1973, pertained to postings and transfers and had provided that every civil servant was liable to serve everywhere within or outside Province---Since posting and transfer of civil servant fall within the terms and conditions of service of a civil servant, it would fall within exclusive jurisdiction of Service Tribunal---Constitutional petitions being not maintainable, were dismissed.

Syed Afzal Ahmad Hydari v. Secretary Defence Production Division, Ministry of Defence Rewalpindi and 3 others 1991 SCMR 477; Miss Rukhsana Ejaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ayaz Anjam v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171; Hafiz Khalid Irshad v. Ahmad Khan Wattoo and others 1997 SCMR 1124; Syed Mazhar Hussain Bukhari v. Secretary Government of Punjab Local Government and Rural Development Department, Lahore and others 1998 SCMR 1948; Wilayat Ali v. Chief Secretary to Government of N.-W.F.P., Peshawar and 3 others 2002 PLC (C.S.) 675 and Muhammad Akram Malik v. Province of Sindh through Chief Secretary, Government of Sindh, Karachi and 23 others 2002 PLC (C.S.) 1037 ref.

Khushdil Khan Momend for Petitioner.

Jehanzeb Rahim A.G, N.-W.F.P. for Respondents.

Date of hearing: 30th September, 2004.

2005 P L C (C.S.) 886

[Peshawar High Court]

Before Talaat Qayum Qureshi and Muhammad Qaim Jan Khan, JJ

Mst. MARGRATE

Versus

EXECUTIVE DISTRICT OFFICER SCHOOLS AND LITERACY DEPARTMENT, DISTRICT CHARSADDA and 4 others

Writ Petition No. 1564 of 2004, decided on 7th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 3, 11, 29 & 199‑‑‑Constitutional petition‑‑‑Withholding/stopping salary of petitioner‑‑‑Petitioner was appointed as sweeper in BPS‑1 on regular basis and was posted at Government Girls School‑‑Petitioner assumed charge of her duties after completing codal formalities and started serving as sweeper there‑‑‑Petitioner had been performing her duties to the utmost satisfaction of Principal of school concerned and the Principal submitted bill of salary of petitioner to District Account, Officer, but bill was returned unpassed‑‑‑Salary of petitioner, in circumstances was withheld/stopped without any lawful justification and the lady and her family members had been deprived of their bread and butter‑‑‑Appointment of petitioner was in accordance with rules and regulations against a regular sanctioned post which was vacant on the day she was appointed‑‑‑Petitioner, who had been performing her duties, was entitled to full emoluments in her grade and pay scale with all admissible allowances as there was no provision, nor concept for service without salary under the law‑‑‑Performance of duties under such circumstances by petitioner also amounted to forced labour without payment of any emoluments which teas forbidden by Art.11 of the Constitution‑‑‑Under Art. 29 of the Constitution authorities were duty bound to act in accordance with Principles of Policy set out in Chapter 2 Part II of the Constitution insofar as they related to their functions‑‑‑Act of authorities stopping the salary of petitioner since her appointment was contrary to Principles of Policy‑‑‑Petitioner was denied her valuable rights of remuneration according to her grade which was also in violation of Art.3 of the Constitution which had cast duty on the State to eliminate all forms of exploitation and gradual fulfilment of fundamental principles for each according to his/her ability and work‑‑­High Court allowing Constitutional petition directed the authorities to Tear salary and medical bills of petitioner from the date of her appointment within period of one month‑‑‑Costs of Rs.10,000 were also imposed upon the authorities.

Khushdil Khan Momand for Petitioner.

Arbab Muhammad Usman, Addl: A.G. along with Mr. Jan Gul, District Accounts Officer Charsadda and Mr. Siraj‑ul‑Haq, Assistant Accountant General for Respondents.

2005 P L C (C.S.) 948

[Peshawar High Court]

Before Fazlur Rehman Khan and Shahzad Akbar Khan, JJ

SARFARAZ KHAN

Versus

TOWN COMMITTEE, NAWANSHEHR through Administrator/Chairman and 3 others

Writ Petition No. 102 of 2001 with C.M.No.222 of 2003 decided on 3rd November, 2004.

North-West Frontier Province Local Council Service Rules, 1980-----

----R.11---Fundamental Rules, R.49---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Additional charge---Claim for remuneration---Petitioner who was promoted as Octroi Superintendent, was asked also to perform duties of office Superintendent in addition to his duties and thereafter by an order was also allowed to hold additional charge of the post of Accountant without any remuneration---Claim of petitioner was that under law, he was entitled to the grant of special pay/allowance for holding additional charges---Validity---Petitioner was neither in the same grade of which he was given additional charge of office Superintendent/Accountant because he was in B.P.S.-6 while the post of office Superintendent/Accountant stood in BPS-11 nor prior or even any subsequent approval of Finance Department was obtained---Besides additional charge of office Superintendent given to petitioner remained with petitioner for more than five and half years in utter violation of F.R.49 for more than six months---After expiry of six months, post automatically stood abolished for which no allowance could be claimed---While allowing petitioner charge of the post of Accountant, it was clearly provided in the order that petitioner would hold said additional charge without any remuneration and while operating said charge he had accepted that condition, but despite that he had come to the Court for relief claimed---Petitioner, in circumstances, was estopped by his conduct to sue the Authorities---Constitutional petition being without any merit, was dismissed.

Vardar Lal Khan Anwar for petitioner.

Abdul Sattar khan for Respondent No 1.

Qari Abdul Rashid, D.A.G. for Respondent No.2.

Date of hearing: 3rd November, 2004.

2005 P L C (C.S.) 964

[Peshawar High Court]

Before Talaat Qayum Qureshi and Salim Khan, JJ

Sahibzada MUHAMMAD ARSHAD

Versus

BANK OF KHYBER through Managing Director and 4 others

Writ Petition No.1282 of 2000, heard on 5th May, 2005.

Bank of Khyber Employees Service Rules, 1998---

----Rr. 12.4, 12.5 & 12.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service--Petitioner was dismissed from service after issuing show-cause notice, but without appointing any Enquiry Officer and conducting enquiry against him and even no reason was given by Authorized Officer for not conducting enquiry---A stigma having been placed on petitioner for misappropriation of huge amount for personal gains when he was charged on such allegations, enquiry as prescribed by Rules, was necessary---If allegations were such that major penalty of dismissal or removal from service was to be recommended then justice demanded that departmental inquiry must have been held---Mere issuance of show-cause notice was not sufficient compliance of legal requirements--Discretion to direct holding of inquiry was not absolute and was to be exercised judiciously on principle for sound reasons---Inquiry must be, held and in exceptional cases it could be dispensed with by order in writing and accused was to be informed of such action and reasonable opportunity was to be given to him to show-cause against dispensation of regular inquiry---Since allegation levelled against petitioner was of serious nature and a stigma of mis-appropriation of huge amount was imposed upon him, Authorized officer should have appointed an Enquiry Officer or Enquiry Committee as per R.12.4 of Bank of Khyber Employees Service Rules, 1998 and petitioner should have been provided an opportunity to cross-. examine witnesses and to produce his defence---Such measures having not been taken in the case; impugned Order of dismissal from service, was set aside, with direction to hold inquiry by appointing Enquiry Officer or Enquiry Committee and give full opportunity to petitioner to cross-examine all witnesses examined by the Bank and to produce his defence strictly in accordance with law.

PLD 1978 SC 393; 1982 SCMR 770; 1996 PLC (C.S) 886; 1995 SCMR 1042; The Deputy Inspector General of Police, Lahore and others v. Anis-ur-Rehmaqn Khan PLD 1985 SC 134; Muhammad Saleem Akhtar v. The Director, Food Punjab Lahore and another 1987 SCMR 829; Deputy Postmaster General (PS), Metropolitan Circle, Karachi and 2 others v. Syed Shamshad Hussain 1990 SCMR 347; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Government of Sindh and others v. Saiful Haq Hashmi and others. 1993 SCMR 956; Javid Akhtar v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others 1991 SCMR 140; Muhammad Sadiq Javed Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Muhammad Iqbal v. Federation of Pakistan through Secretary, Government of Pakistan Parliamentary Affairs Division, Islamabad and another 1995 SCMR 1042; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR (C.S.) 868; Secretary Government of the Punjab through Secretary, Health Deptt. Lahore and others v. Riaz­ul-Haq 1997 SCMR 1552; Dr. Shahbaz Khan and another v. WAPDA through Chairman and 4 othes 2000 SCMR 1453; WAPDA and others v. Sikandar Ali Abro and others 1998 SCMR 137; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Nawab Khan and another v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 ref.

Yahya Afridi for petitioner.

Nisar Ahmad and Nazirullah Qazi and Obaidullah Anwar Addl. A.-G. for Respondents.

Date of hearing: 5th May, 2005.

2005 P L C (C.S.) 1207

[Peshawar High Court]

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

FIDA MUHAMMAD

versus

GOVERNMENT OF N.-W.F.P. through Secretary Local Government and Rural Department Secretarial, Peshawar and 3 others

W.P. No.457 of 2005, decided on 25th May, 2005.

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

----Art. 199---Constitutional jurisdiction, exercise of---Discretionary---Where impugned order was made for valid reasons, then such exercise would be declined.

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

----Art. 199---Constitutional petition---Maintainability---Impugned order void/without jurisdiction and nullity in eyes of law---Constitutional petition would be competent---Mere irregularity in impugned order, if any, would not be sufficient to subject same to scrutiny in exercise of Constitutional jurisdiction.

(c) Civil service---

----Deputation---Repatriation of civil servant to parent department before completion of tenure of deputation---Validity---Law never provided that deputationist should complete tenure for which he was deputed---Competent authority had discretion to repatriate deputationist as and when his services were required by parent department---Civil servant had been treated in accordance with terms and conditions of his appointment, whereby he was bound to serve anywhere in Pakistan and not supposed to work at station of his choice---Civil servant had not been deprived of his legal rights by repatriation---High Court dismissed Constitutional petition filed by civil servant.

Abdul Latif Afridi for Petitioner.

Akhtar Naveed, D.A.-G. for Respondents.

Date of hearing: 25th May, 2005.

2005 P L C (C.S.) 652

[Quetta High Court]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

MUHAMMAD WASAY TAREEN

versus

HON’BLE CHIEF JUSTICE, HIGH COURT OF BALOCHISTAN through Registrar High Court Building Quetta and another

Service Appeal No.1 of 2000, decided on 21st February, 2004.

Balochistan Subordinate Judiciary Service Tribunals Act (VI of 1989)---

----S. 5---Balochistan Civil Servants Act (IX of 1974), S. 5---Ad-hoc appointment---Confirmation of---Appeal to Service Tribunal---Appellant was appointed as District and Sessions Judge on Ad-hoc basis against a vacant post for period of six months or till the time regular appointment was made by Balochistan Public Service Commission---Said period of six months remained extended but after two years of said original appointment, a notification was issued by Authority whereby period of ad-hoc appointment of appellant was not further extended as competent Authority did not find conduct and performance of the appellant satisfactory---No allegation of misconduct or any other charge, however, was levelled against appellant in the notification whereby further extension was not allowed---Said order could not be termed as removal or dismissal from service---Ad hoc appointment would not create any right incumbent to remain in service and order of termination or refusal to extend period further would be unexceptionable notwithstanding incorrectness of reasons therefor---Refusal for extension in ad hoc appointment, not being in consequence of any misconduct so as to call for inquiry, there was no necessity to serve on appellant show-cause notice or give him opportunity to say something against the proposed action---Appeal against said order was not competent as impugned notification could not be termed as order in respect of terms and conditions of his service---Even otherwise no appeal was competent against order of competent Authority determining fitness or otherwise of appellant to be appointed or hold particular post as provided by subsection (b)(1) of S. 5 of Balochistan Subordinate Judiciary Service Tribunal Act, 1989---Appeal filed by appellant was dismissed in circumstances.

PLD 1974 SC 291; PLD 2003 SC 420; 1995 PLC (C.S.) 765; 1993 PLC (C.S.) 243; 1997 SCMR 1552; 1984 SCMR 65; 1997 SCMR 1581; PLD 2001 SC 176; PLD 2001 SC 555; 2002 SCMR 82; PLD 2002 SC 101; 1996 SCMR 413; 1982 SCMR 408; PLD 1982 Lah. 42; 1977 PLC (CST) 80; 1975 PLC (CST) 40; 1997 SCMR 1514; PLD 1974 SC 393; 1990 SCMR 1510; PLD 2003 SC 420; PLD 1971 SC 677; 1994 PLC (C.S.) 1339 and 1995 PLC (C.S.) 938 ref.

M. Aslam Chishti for Appellant.

Raja M. Afsar for Respondents.

Haji Ghulam Mustafa Mengal Addl. A.-G.

Date of hearing: 17th February, 2004.

2005 P L C (C.S.) 679

[Quetta High Court]

Before Raja Fayyaz Ahmed, C.J. and Fazal-ur-Rehman, J

SHAFI MUHAMMAD MUGHAL, SUPERINTENDENT OF POLICE (ACTING CHARGE) PAKISTAN RAILWAYS POLICE, QUETTA

versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 5 others

C.P. No. 254 of 2000, decided on 27th June, 2000.

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

----S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Entitlement---Both petitioner and respondent were considered and examined by Departmental Promotion Committee which, by diligent application of mind of entire service record of both candidates and material available with it, found petitioner to be unfit for promotion to the next higher grade in the light of ‘vigilance report’---No adverse material or report having been found in the case of respondent, Departmental Promotion Committee, in proper and legitimate exercise of authority vested in it, recommended his promotion and petitioner’s case for promotion was deferred---Petitioner had challenged said order of competent Authority in his Constitutional petition---Validity---High Court could not substitute its opinion on merits nor any other possible view could prevail upon determination of ‘fitness’ of promotion by competent Departmental Promotion Committee unless it was shown that it acted arbitrarily or in derogation of rules---None of the conditions warranting interference existed in the present case---Constitutional petition being devoid of force, was dismissed.

PLD 1994 SC 539; 1983 PLC (C.S.) 1265; 1998 SCMR 2280; PLD 1960 SC 1964; 1991 SCMR 1129; PLD 1997 SC 351 and 1991 SCMR 1129 ref.

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

----S. 4---Civil Servants Act (LXXI of 1973), S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Eligibility and suitability for promotion---Determination of---Jurisdiction of Service Tribunal and High Court---Scope---Administrative Courts or Tribunals had exclusive jurisdiction in respect of matters relating to terms and conditions of persons in service of Pakistan including disciplinary matters within meaning of Cl. (1)(c) of Art. 212 of the Constitution---Appropriate Tribunal by virtue of subsection (1) of S. 4 of Service Tribunal Act, 1973, had the exclusive jurisdiction to hear appeal of any civil servant aggrieved by any final order whether original or Appellate made by Departmental Authority in respect of any of the terms and conditions of service provided that where an appeal, review or representation to departmental authority was provided under Civil Servants Act, 1973 or in any rule against any such order, no appeal would lie to a Tribunal unless aggrieved civil servant had preferred an appeal or application for review or representation to such departmental authority---Matter relating to fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade and determination of such question by Departmental Authority, would not fall within the jurisdiction of Tribunal nor a departmental appeal or representation against an order or decision of a Departmental Authority on such questions would lie---Jurisdiction of Service Tribunal stood excluded in relation to matters specified in cl. (b) of proviso to subsection (1) of S. 4 of Service Tribunals Act, 1973---Since the matter related to the fitness and promotion of civil servant to the next higher grade same would not fall within the jurisdiction and domain of Service Tribunal---Petitioner/civil servant, in circumstances could competently invoke Constitutional jurisdiction of High Court.

PLD 1994 SC 539 ref.

M. Aslam Chishti for Petitioner.

K.N. Kohli, Deputy Attorney General and H. Shakeel Ahmed for Respondents Nos.2 to 5.

Choudhary Muhammad Rafique for Respondent No.6.

Date of hearing: 14th June, 2000.

2005 P L C (C.S.) 1180

[Quetta High Court]

Before Mehta K.N. Kohli and Ahmed Khan Lashari, JJ

FOZIA KHANAM

Versus

AISHA SILACHI and 3 others

Civil Petition No. (s) 47 of 2004, decided on 25th February, 2005.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment---Petitioner had called in question order of Authority whereby respondent was appointed on the post in question, alleging impugned order as illegal, void and without jurisdiction---First question which had arisen for examination was as to whether petitioner could claim post in question as matter of right and whether he could invoke equitable jurisdiction of High Court---Mere passing of examination or test would not confer a right on petitioner to claim appointment on said particular post, unless Appointing Authority would pass some order---Petitioner, who was not appointed, had no legal vested right to claim appointment in respect of said particular post---Respondent, who was appointed on post in question, belonged to same area and was resident of place where School concerned was situated, whereas petitioner was residing 25 miles away from that place and was not resident of the area---Authority while appointing respondent on post in question appeared to have given weight to his permanent residence at place where said school was situated---Petitioner could not have been considered for said post, in case candidate from same area/place was available---Respondent, in circumstances, was entitled to have preference over other candidates---In absence of illegality or irregularity or error of jurisdiction, Constitutional petition was not maintainable.

PLC 2003 (C.S.) Page 524 ref.

Muhammad Sadiq Ghuman for Petitioner.

Ikhtiar Khan Marghazani for Respondent.

Abdul Raheem Mengal, Assistant A.-G.

Date of hearing: 12th February, 2005.

2005 P L C (C.S.) 102

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman, Syed Iftikhar-ul-Islam and Mrs. Syeda Tahira Safdar, Members

MIRRA KHAN and others

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary, Agriculture Department, Civil Secretariat, Quetta and others

S.As. Nos.50, 89 of 2001, 6, 7 of 2002 and 66, 68 and 108 of 2003, decided on 29th April, 2004.

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

---Ss.5 & 11---Balochistan Service Tribunals Act (V of 1974), S.4--­Termination of services--Appellants were appointed after completion of all formalities and they after their appointments in various categories had served from 1 to 5 years, but their services were terminated on grounds that they were appointed during ban on appointments and also without fulfilling codel formalities---No show-cause notice was given to appellants nor they were given any opportunity to be heard---No allegation was leveled from side, of respondent to the effect that there was lack of qualification on the part of appellants---Lack of fulfillment, of codel formalities in appointment of appellants could not be attributed to appellants because it was the Authorities who had to observe procedure provided under law and relevant rules---Non-fulfillment of same was the fault of Authorities for which appellants/employees could not be penalized---Authorities must be vigilant enough while making appointments on any vacancy and fulfill all formalities as required by law, so that such sort of situation would not arise, which not only had affected poor incumbents of the posts, but also had affected working of office/Department---Appellants after their appointment, having remained in service for 1 to 5 years, valuable right had 'accrued in their favour---Some of other employees who were terminated, had been reinstated in service---Case of appellants being on same footing, they were also entitled to be reinstated .in service--­Appeals filed by appellants were accepted and they were reinstated in service from date of their termination with all back ­benefits.

1996 SCMR 1350 ref.

S.A.M. Qadri, Advocate.

H. Shakil Ahmed Advocate.

Ayaz Sawati for Advocate.

Muhammad Jamil Advocate.

Bashir Ahmed Zehri Advocate.

Ghulam Mustafa Mengal Additional-Advocate-General.

Date of hearing: 25th September; 2003.

2005 P L C (C.S.) 132

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman and 2 Members

SADIQ ALI

Versus

GOVERNMENT OF BALOCHISTAN and others

Service Appeal No.74 of 1999, decided on 20th May, 2004.

Civil service---

---- Adverse remarks ---Expunction of---Adverse remarks in ACR for the years 1993 to 1994 passed against civil servant were conveyed to civil servant in year 1996 after a period of three years in violation of instructions regarding Annual Confidential Reports which had caused prejudice to civil servant---Relevant instructions serving. as guidelines for performance evaluation of civil servant which were mandatory in nature and had status of Rules, were to be strictly complied with---Even otherwise no specific instance had been quoted as a basis for the adverse remarks against civil servant---Adverse remarks against civil servant, were expunged, in circumstances.

Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749 and The Secretary Government of Punjab v. Ahmad Kamaluddin 1981 SCMR 392 ref.

Malik Sher Muhammad for Appellant.

Ghulam Mustafa Mengal A.A.G. for Respondents.

Date of hearing: 16th October, 2003.

2005 P L C (C.S.) 146

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman and 2 Members

MUHAMMAD SAEED JAMALI

Versus

GOVERNMENT OF BALOCHISTAN

Service Appeal No.79 of 2000, decided on 24th June, 2004.

Government‑Servants (Efficiency and Discipline) Rules, 1992‑‑‑

‑‑‑‑Rr.9(2) & 15‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Minor penalties‑‑‑Imposition of‑‑‑Appeal‑‑‑Minor penalties of censure and withholding of promotion for a period of three years, were imposed on appellant on certain allegations on report of Inquiry Officer‑‑­Appellant was only held responsible by Inquiry Officer for being absent when alleged incident took place‑‑‑Authorised officer on going through inquiry report, exonerated appellant from the charge against him, but notification of exoneration was withdrawn later on and impugned minor penalties were imposed upon appellant by Competent Authority‑‑‑First Proviso to sub‑Rule (2) of R.15 of Government Servants (Efficiency and Discipline) Rules, 1992, embodied that if any order prejudicial to civil servant was passed, same would not be passed, unless he had been given an opportunity of a show‑cause‑‑­Order imposing penalties was passed against appellant without giving him any opportunity of hearing‑‑‑Order passed against appellant in violation of R.15(1)(2) of Government Servants‑(Efficiency and Discipline) Rules, 1992 being against principles of natural justice, was set aside.

Maqsood Ahmad Shah v. Islamic Republic of Pakistan Secretary, Establishment Government of Pakistan and others 1987 SCMR 1562 ref.

Muhammad Aslam Chishti and Malik Manzoor Ahmed for Appellant.

Salahuddin Mengal A.G. for Respondent.

Date of hearing: 6th May, 2004.

2005 P L C (C.S.) 160

[Balochistan Service Tribunal]

Before Mr. Amanullah Khan, Chairman, Muhammad Idrees Baloch, Syeda Tahira Safdar and Syed Ifakhar‑ul‑Islam, Members

QAMAR DIN and others

Versus

SECRETARY, AGRICULTURE, GOVERNMENT OF BALOCHISTAN, QUETTA and others

S.As. Nos.50 to 53, and 87 of 2002, 67, 69, 70 to 74, 87, 90, 104 to 107 and 110 of 2003, decided on 29th April, 2004.

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

---‑‑Ss.11‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑Termination of service‑‑‑Appellants were duly appointed in various categories on different dates and they worked on their respective posts or about 6 years, but their services were terminated on ground that project in which they were appointed had been completed‑‑‑Appointment orders issued in favour of appellants had revealed that appointments of appellants were made by Competent Authority in Agriculture department‑‑‑Appointment of appellants in Agriculture Department tough was purely temporary which could be terminated on month's notice without assigning any reason, but nothing was mentioned in said orders about Project on which appointments of appellants were made—­No mention was made in appointment orders that services of appellants could come to an end on termination of said Project‑‑‑In absence of said condition in appointment orders, it could not be presumed that appellants were initially appointed in respect of some Project‑‑‑Posting after appointment would not affect rights of appellants which had accrued to them during all years of service‑‑‑In view of contents of appointment orders, appellants would be presumed to be appointed in Agriculture department on regular basis and appellants could not be termed as Project employees being temporary one‑‑‑Respondent‑Authorities were of justified in terminating services of appellants by treating them as temporary employees of Project‑‑‑Impugned orders being contrary law and Rules, were of no legal effect and as said orders were void, no limitation would run against them‑‑‑Orders terminating services of appellants, were set aside and they were directed to be reinstated in service from date of their termination with back benefits.

Wazir Zada Fazal‑ur‑Rehman, Advocate.

Ayaz Swati, Advocate.

Kamran Murtaza, Advocate

S.A.M. Qadri Advocate.

Ghulam Mustafa Mengal Addl. Advocate‑General.

Date of hearing: 18th September, 2003.

2005 P L C (C.S.) 181

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman Syed Iftikhar‑ul‑Islam and Syeda Tahira Safdar, Members

Syed SHAMSUDDIN and others

Versus

EXECUTIVE DISTRICT EDUCATION OFFICER, KILLA ABDULLAH AT CHAMAN and others

S. As. Nos. 138 to 194, 194A to 200, 203 and 204 of 2003, decided on 22nd April, 2004.

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

‑‑‑‑Ss.5, 6, 7 & 11‑‑‑Balochistan Service Tribunal Act (V of 1974), S.4‑‑‑Appointment‑‑‑Cancellation of appointment‑‑‑Appellants in pursuance of publication made in newspaper, applied, for posts in Education Department‑‑‑Appellants after clearing written test and interview were appointed in various categories through Notification‑‑­Subsequently appointments of appellants were cancelled through Notification without hearing them and without issuing them one month's notice‑‑‑Appellants, who were duly appointed after written test and interview and who had joined their duties after their appointment, valuable right had accrued in their favour which could not be disturbed except with due process of law‑‑‑One of the terms of appointment letters clearly mentioned that services of appellants could be terminated after issuance of one month's notice, but no such notice was issued by respondent Authorities to appellants before terminating/canceling their services‑‑‑Appellants had been condemned unheard which was neither just nor proper‑‑‑No probation period was mentioned in terms and conditions of services of appellants‑‑‑Authorities could not establish that appointments of appellants were made on contract basis‑‑‑Authorities in canceling appointments of appellants having not acted in accordance with law, order canceling appointments of appellants, were set aside in appeal competently filed by appellants in provided period‑‑‑Appellants were directed to be reinstated in service with all back‑benefits.

Muhammad Qahir Shah Advocate.

Saeed Ahmed Khalid Advocate.

M. Salahuddin Mengal A‑G

Abdul Majeed, Deputy Director (Education).

Nasrullah Khan, EDO (Education) Killa Abdullah.

Abdul Qayyutn, EDO (Education).

Date of hearing: 25th April, 2003.

2005 P L C (C.S.) 333

[Quetta Service Tribunal]

Before Amanullah Khan, Chairman and 2 Member

Syed WALAYAT HUSSAIN

Versus

GOVERNMENT OF BALOCHISTAN and others

Service Appeal No. 10 of 2003, decided on 11th November, 2004.

Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983, S.4(1)(h)‑‑‑Dismissal from service‑‑‑Appellant who was involved in a murder case, was convicted and sentenced to capital punishment up to Supreme Court‑‑‑Appellant was dismissed from service on the basis of judgment passed in said criminal case‑‑‑Death warrants were issued to appellant for execution of death sentence awarded to him, but due to intervention of the notables, a compromise was arrived at between accused and legal heirs of deceased which compromise was accepted and appellant was acquitted of charge on basis of said compromise ‑‑‑Appellant, after release from jail filed application for his reinstatement in service‑and also filed Departmental appeal which was dismissed ‑‑‑Appellant had filed appeal against dismissal of said appeals‑‑‑Appellant who was finally acquitted of charge was reinstated in service, but as criminal case against accused was proved and he was acquitted on basis of compromise, he was not entitled for back‑benefits‑­‑Order of dismissal from service was set aside and he was reinstated in service without‑back‑benefits.

Dr. Muhammad Islam v. Government of N.‑W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 and Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

W.N. Kholi for Appellant.

Muhammad Salahuddin Mengal, A.‑G. for Respondents.

Date of hearing: 9th September, 2004.

2005 P L C (C.S.) 450

[Balochistan Service Tribunal]

Before Amanulah Khan, Chairman

ARBAB LAL MUHAMMAD

Versus

GOVERNMENT OF BALOCHISTAN and others

Service Appeal No. 120 of 2003, decided on 11th November, 2004.

Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000), Ss.3 & 10‑‑‑Dismissal from service‑‑‑Appellant was dismissed from service on ground that he was convicted and sentenced by Accountability Court‑‑‑Appeal filed by appellant against his conviction and sentence was accepted by High Court and he was acquitted of the charge against him‑‑‑Appellant having been honourable acquitted of charge which was sole ground of his dismissal from service, he was entitled to be reinstated in service‑‑‑Basic order which was set aside by High Court not being in field, subsequent orders which had been passed on said basic order would also be set aside‑‑‑No other charge was found against appellant and no departmental proceedings were initiated against him‑‑‑Delay in filing appeal having sufficiently been explained, same was condoned‑‑‑Impugned order of dismissal passed against appellant was set aside and he was directed to be re­instated in service with all back‑benefits.

Dr. Muhammad Aslam v. Government of N.‑W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993; Yousaf Ali v. Muhammad Adam Zia and 2 others PLD 1958 SC 104 and Atta Ullah Sheikh v. Wapda and others 2001 SCMR 269 ref.

Ayaz Sawati and Syed Ayaz Zahoor for Appellant.

Inayatullah Khan Kasi for Respondent.

Date of hearing: 21st October, 2004.

2005 P L C (C.S.) 274

[N.‑W.F.P. Service Tribunal]

Before Abdul Sattar Khan, Chairman and Azmat Hanif Orakzai, Member

Dr. MUHAMMAD ISMAIL, ASSISTANT PROFESSOR, ANATOMY SAIDU MEDICAL COLLEGE, SWAT

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary Health, N.‑W.F.P. Peshawar and 3 others

Appeal No. 179 of 2003, decided on 14th October, 2004.

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

‑‑‑‑S.9‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Promotion‑‑‑Claim for‑‑‑Appeal before Service Tribunal‑‑­Provincial Selection Board recommended respondent and another person for promotion as Associate Professor, while appellant who was eligible for, said promotion was not at all considered‑‑‑Evidence on record had proved that appellant was qualified and had an inalienable right to have been considered for promotion to post in‑question‑‑‑Appellant, in circumstances had made out a case for indulgence of Service Tribunal‑‑­Notification whereby respondent and another person were recommended for promotion ignoring appellant was set aside to the extent of respondent only and case was remanded to Authority for re‑consideration in juxta‑position with respondent strictly in accordance with rules of the Health Department.

PLD 2003 SC 175; 2002 PLC (C.S.) 1071; 1996 SCMR 1297; 2003 PLC (C.S.) 212; 2003 PLC (C.S.) 679; 1999 PLC (C.S.) 1306; 1999 PLC (C.S.) 1309; 2001 PLC (C.S.) 878; Mian Abdul Malik v. Dr. Sabir Zameer Siddique and 4 others 1991 SCMR 1129 and 1997 SCMR 1013 ref.

Ijaz Anwar for Appellant.

Sultan Mehmood Govt. Pleader for Respondent‑Department.

Waqar Ahmad Seth, for Respondent No.4.

2005 P L C (C.S.) 586

[N.-W.F.P. Subordinate Judiciary Service Tribunal]

Before Justice Shahzad Akbar Khan, Chairman and Justice Ijaz-ul-Hassan Khan, Member

Syed KAMAL HUSSAIN SHAH

versus

ADMINISTRATION COMMITTEE PESHAWAR HIGH COURT PESHAWAR through Registrar

Service Tribunal Appeals Nos.4 of 2002, and 3 of 2003 decided on 26th November, 2004.

(a) Interpretation of statutes---

----Special law vis-a-vis general law---Special law is exhaustive of subject it enacted---Special law must be taken as exhaustive in the subject it enacted---Rights not expressly conferred by special law could not be allowed to be spelt out by means of analogy nor could consideration of exigency and convenience unwarranted by terms of statute be called in aid to enlarge the scope of its provisions---If there was a special Act and a general Act, dealing with same matter, special Act would override general Act---Legislature, while enacting a law was expected to be mindful of its earlier legislation and when a subsequent special Law was enacted in a manner somewhat different from the earlier law, difference if any would be regarded as intentional and not unintentional---General provisions would not derogate from special provisions, but latter (special provisions) would derogate from former (general provisions)---To what extent provisions of a Special enactment would override provisions of a general enactment, must depend upon the language of special Act.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129 ref.

(b) North-West Frontier Province Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S.5 (b)(i)---North-West Frontier Province Service Tribunal Act (I of 1974), S. 4(b)(i)---Appeal---Competency of---Appellant had called in question the decision of Administration Committee of High Court, whereby he was superseded and some other Judicial Officers were promoted to the rank of Additional District and Sessions Judges (BPS-19)---Provisions of North-West Frontier Province Subordinate Judiciary Service Tribunal Act, 1991 which was special Act would override provisions of North-West Frontier Province Service Tribunals Act, 1974 which was general Act---Language of S.5(b)(i) of North-West Frontier Province Subordinate Judiciary Service Tribunal Act, 1991, had clearly spelled out intention that no appeal would lie to Service Tribunal against the decision of a Departmental Authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post, whereas prayer of appellant was for promotion to a higher post---Case of appellant was considered by Administration Committee, but he was not found fit for promotion, it was only the fitness of appellant which was determined and not his eligibility---Appeals in view of their subject-matter i.e. soliciting promotion, were not competent before Service Tribunal.

Rustam Khan Kundi for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2004.

2005 P L C (C.S.) 1230

[N.-W.F.P. Service Tribunal]

Before Abdul Sattar Khan, Chairman and Azmat Hanif Orakzai, Member

SHAMSHAD BIBI

versus

GOVERNMENT OF N.-W.F.P. through Secretary (S&L) Department, N.-W.F.P. Peshawar and 3 others

Appeal No.347 of 2004, decided on 4th May, 2005.

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

----S. 4---Civil Service Regulation, Regln. 519---Retirement on medical ground---Reinstatement---Appeal to Service Tribunal---Appellant serving as teacher was allowed to retire from service on medical ground---After regaining health and finding her fit by Doctor, appellant applied for her reinstatement---Appellant was medically examined by a duly constituted Medical Board and was found fit for service---Fitness certificate was issued, but despite that appellant was not reinstated in service---After having been declared fit by a duly constituted Standing Medical Board, appellant was entitled to be reinstated/re-employed into service on the strength of Regln. 519 of Civil Service Regulations and no bar existed to her re-employment---Appellant having made out a case for indulgence of Service Tribunal, appeal of appellant against denial of her reinstatement/re-employment was accepted and appellant was re­employed/reinstated into service---Intervening period was treated as leave of kind due according to rules.

PLD 1994 SC 647 ref.

Ijaz Anwar for Appellant.

Noor Zaman Khan, Additional Government Pleader for Respondents.

2005 P L C (C.S.) 337

[Punjab Service Tribunal]

Before (Retd.) Riaz Kayani, Chairman and Muhammad Afzal, Member‑I

Dr. SABIR ZAMEER SIDDIQUI

Versus

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

Appeal No.2728 of 2003, decided on 5th January, 2004.

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

‑‑‑‑S. 8‑‑‑Punjab Service Tribunals Act (IX of 1974), Ss. 2(b) & 4‑‑‑Pro forma promotion‑‑‑Claim for‑‑‑Appeal‑‑‑Appellant who was ex‑Director on current charge basis, had claimed pro forma promotion to B.S‑19 from the date his junior was so promoted‑‑‑Claim of appellant was rejected on the grounds that promotion including pro forma promotion, could not be claimed as of right by civil servant and that under the Rules promotion was not a vested right‑‑‑Authority further averred that appellant, who had already retired being no more in service, had ceased to be a civil servant and he could not be considered for pro forma promotion as claimed by him‑‑‑Validity‑‑‑In terms of S. 2(b) of Punjab Service Tribunal Act, 1974 a "civil servant" had been defined as a person who holds a civil post in connection with affairs of the Province or who has held a civil post in connection with affairs of Province‑‑‑Appellant had held said civil post before his retirement on superannuation ‑‑‑Case of appellant for promotion to BS‑19 was taken up and was also once placed before Provincial Selection Board‑‑‑Appellant had no control on his retirement on superannuation ‑‑‑Delay caused in granting promotion to appellant had no connection with appellant as he was not responsible for said delay‑‑‑No doubt, ordinarily promotion could not be claimed as a vested right, but when promotion was allowed earlier to, junior and not allowed to senior from same date, then right to be considered for promotion, could not be refused‑‑­Plea of the Authority that appellant, after having retired, could not claim pro forma promotion, was repelled‑‑‑Appeal by appellant was accepted to the extent that he would be considered for grant of pro forma promotion to BS‑19 from the date his junior was promoted.

PLD 1988 SC 36; 1990 SCMR 1321 and PLD 1977 SC 351 ref.

Appellant in person.

Khadim Hussain Sindhu, District Attorney.

Muhammad Saleem Akhtar, Superintendent on behalf of Respondent No.2.

Tanweer Ahmad, Litigation Officer, on behalf of Respondent No.3.

Date of hearing: 5th April, 2004.

2005 P L C (C.S.) 341

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

AMJAD ALI

Versus

THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB S&GAD, CIVIL SECRETARIAT, LAHORE and another

Appeal No.218 of 2004, decided on 8th April, 2004.

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

‑‑‑‑R. 3(1)‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑­Absorption of civil servant in other department after abolishment of parent department‑‑‑Claim for absorption at equivalent stage‑‑­Directorate of Manpower and Training in which civil servant was working having been abolished, civil servant who had become surplus was absorbed in Services and General Administration Department‑‑‑Civil servant who initially was appointed in BS‑5, was promoted in BS‑6 two years of his appointment and thereafter he was promoted in BS‑7‑‑‑Civil servant thereafter was allowed Selection Grade in B.S. 7 with the approval that he would draw his pay in BS‑9 as personal to him; at the time he was declared surplus he was drawing pay in BS‑9‑‑‑After absorption in Services and General Administration Department from his parent department, civil servant was put in B.P.S.‑5‑‑‑Under provisions of R. 3(1) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, pay fixed in absorbed department would not, be less advantageous to what he was immediately drawing in his parent department before the post became surplus and subsequently he was absorbed‑‑‑Civil servant, in circumstances should be endowed same scale and grade which he was getting in the department dissolved before his absorption‑‑‑Basic pay scale, of civil servant at 'time of absorption being BS‑9, any scale lower to said scale, was violation of stipulation causing irreparable lass to civil servant, which required reversal‑‑‑Service Tribunal set aside order reducing scale of civil servant and his claim to allow him absorption in BS‑9, was granted.

Punjab through Secretary Services, Punjab Lahore and four others v. Muhammad Awais Shahid and four others, reported in 1991 SCMR 696 ref.

Azhar Hussain Shamim for Appellant.

Khadim Hussain Sindhu, District Attorney.

Abdul Rauf, Section Officer (SR‑II), Finance Department, Departmental representative.

Akbar Ali, Research Office, on behalf of Respondent No.1 departmental representative.

Date of hearing: 31st March, 2004.

2005 P L C (C.S.) 361

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

HAQ NAWAZ and 2 others

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT, LAHORE and 2 others

Appeals Nos. 182, 183 and 185 of 2004, decided on 19th May, 2004.

Civil service‑‑‑

‑‑‑‑ Advance increments ‑‑‑Entitlement‑‑‑ESTs/Middle School Teachers claimed advance increments on the basis of qualification of B.Ed; their claim was denied by Authorities on the ground that said, teachers stood sufficiently compensated as they had been placed in BPS‑14 through notification on basis of B.A./B.Sc. and they had ceased to be entitled to any further increment on basis of higher qualification‑‑‑Validity‑‑‑Basic circular letter dated 31‑1‑1988 granting advance increments to ESTs being in the field and in operation and having not been withdrawn, ESTs would remain entitled to advance increments on the basis of B.Ed. and M.A./M.Sc.‑-‑No, notification withdrawing earlier notification granting advance increments having been issued so far, advance increments sanctioned through Circular letter dated 31‑1‑1988 do basis of B.Ed. and M.A./M.Sc. remained admissible to ESTs.

Sh. Amir Maftoon for Appellants.

Rana Muhammad Yasin District Attorney Abdur Rashid, Section Officer, for Respondent No.3.

Ahsan Ahmad Bhatti, Law Officer, for Respondents No. 1 and 2.

Date of hearing: 19th May, 2004.

2005 P L C (C.S.) 364

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

Sheikh SAJJAD RIAZ

Versus

SENIOR MEMBER BOARD OF REVENUE/SECRETARY, GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT, LAHORE and another

Appeal No.295 of 2001, decided on 19th April, 2004.

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

‑‑‑‑Ss. 3, 4(1)(b)(iv) & 5‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Appellant serving as Consolidation Officer was dismissed from service after charge‑sheeting him' on allegations of ‑certain illegalities and irregularities in consolidation proceedings‑‑‑Evidence on record though had established that drawbacks were in consolidation proceedings, but main responsibility for those deviations rested with the Patwari, who was reported to have been sentenced on account of forgery and other charges‑-‑Appellant appeared to have done his supervisory work as Consolidation Officer properly, except that he had not been vigilant enough as Supervisory Officer‑‑‑Contention of appellant that Patwari had tampered with record and he had forged signatures of appellant, had not been rebutted by Authorities‑‑‑Proceedings under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 were not properly conducted as ADC (G) could not act as Authorized Officer under said Rules because the Scheme of Authorized Officer did not exist in said Rules‑‑­Examination of contentions of appellant as well of those of respondents had proved that no loss was actually caused by appellant and no ulterior motive could be attributed to him‑‑‑Unfortunately appellant was not involved in any mischief and his past 14 years unblemished service record had also shown that he could not be expected to involve himself in any malpractices ‑‑‑Fact however, remained that appellant had shown some slackness in his supervisory role, but on the basis of such slackness appellant could not have been awarded a major penalty‑‑‑Minor penalty of "censure" was considered sufficient on account of some inefficiency on part of appellant‑‑‑Accepting appeal, penalty of dismissal from service was converted into that of `censure'‑‑‑Appellant was directed to be reinstated accordingly.

Dr. Ehsan‑ul‑Haq Khan for Appellant.

Rana Muhammad Yasin District Attorney and Zahid Iqbal Assistant for Respondent No.1.

Date of hearing: 6th April, 2004.

2005 P L C (C.S.) 447

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

Mrs. ARIFA NADEEM

Versus

DISTRICT NAZIM CITY DISTRICT GOVERNMENT LAHORE and 3 others

Appeal No. 1222 of 2004, decided on 8th September, 2004.

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

‑‑‑‑S.9‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑District Government Rules of Business, 2001, R.16‑‑‑Transfer‑‑‑Challenge to‑‑­Appeal before Service Tribunal‑‑‑Appellant had challenged order of her transfer from post of Principal in the College and was placed at the disposal of Secretary Education for further posting on administrative grounds by District Nazim‑‑‑Appellant had maintained that she had not yet completed her tenure of three years and that she had been transferred mala fide and during ban on transfers‑‑‑Appellant had also claimed that District Nazim, was not competent to transfer appellant under R.16 of District Government Rules of Business, 2001 as according to said Rules of Business, District Nazim was competent to order a transfer only within the District, whereas she had been transferred out of District and only Secretary Education could post appellant anywhere out of District in the Province‑‑‑Transfer in the present case had been made by District Nazi m and riot by Provincial Government which powers were not available to him‑‑‑Placing of services of an Officer at the disposal of Provincial Government would mean transfer out of District‑‑‑Powers of District Nazim being confined to his District only, case was remanded to Secretary Education to take a firm and independent decision on the representation of appellant strictly in accordance with law as well as requisites of Public interest.

Dr. Ehsan‑ul‑Haq for Appellant.

Rana Muhammad Yasin District Attorney for Respondent.

Mahmood Ahmad Qazi for Respondent No.4.

Muhammad Ejaz Chaudhry on behalf of official Respondents.

Date of hearing: 8th September, 2004.

2005 P L C (C.S.) 454

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Syed GHULAM MURTAZA

Versus

SECRETARY GOVERNMENT OF THE PUNJAB EXCISE AND TAXATION DEPARTMENT, LAHORE (AUTHORITY) and 2 others

Appeal No. 1588 of 2004, decided on 10th November, 2004.

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

‑‑‑‑S.9‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Transfer‑‑­Challenge to‑‑‑Appeal to Service Tribunal‑‑‑Appellant had challenged his transfer from place of working M' to place of workingL' on ground of mala fides and against Transfer Policy‑‑‑Appellant was to be retired on reaching age of superannuation only 8 months after passing of transfer order and at, the time his appeal was taken up for hearing approximately 3 months had to pass before appellant reached the age of superannuation ‑‑‑Appellant was transferred as a result of two inquiries on disciplinary grounds against him and it was thought expedient that matter be got inquired at a place other then place "M"‑‑‑Validity‑‑‑If appellant was corrupt as per allegation levelled against him, then by transferring him to new place of working a varied choice would be offered to him to practice his misconduct at that place also which had never been the spirit of law‑‑‑Inquiries on disciplinary grounds could be initiated and completed against appellant at the same, place where he allegedly committed acts of omission and commission‑‑‑Even otherwise appellant having been: suspended, could not have recourse to the record and fear that tampering with documents could take place, was ruled out of consideration‑‑‑Interim action could have been taken against appellant if he would remain posted at place "M"‑‑‑Very fact that appellant had brought appeal against his transfer from place "M" to place "L", had indicated that he desired to lead his post‑retirement life at place IM and Transfer Policy had provided such facility‑‑‑Order of transfer passed by Authority and affirmed by Appellate Authority, was set aside and appellant would serve at place "M" till he attained age of superannuation.

Dr. Ehsan ul Haque Khan for Appellant.

Khadim Hussain Sindhu, District Attorney Hamid Raza for Respondents No.3.

Ijaz Halim Khan Section Officer, Excise and Taxation Department, Department Representative.

Date of hearing: 3rd November, 2004.

2005 P L C (C.S.) 468

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

BASHIR AHMAD GURMANI

versus

SPECIAL SECRETARY (SCHOOLS), EDUCATION DEPARTMENT GOVERNMENT, OF PUNJAB, LAHORE and another

Appeal No.209 of 2004, decided on 10th May, 2004.

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

----S. 8---Punjab Civil Servants, Minimum Length of Service for Promotion Rules, 1989, Sched., Cl.II---Punjab Service Tribunals Act (IX of 1974), S. 4---Pro forma promotion---Entitlement to---Appeal to Service Tribunal---Appellant who was inducted in service as SV teacher in BS-7 and finally was promoted to BS-19 on acting charge basis, had challenged in appeal the order passed by Special Secretary whereby pro forma promotion in B.S.-19 on regular basis was refused to the appellant---Appellant claimed regular promotion in BS-19 as he had requisite qualification and service experience---Punjab Civil Servants Minimum Length of Service for Promotion Rules, 1989, had envisaged 12 years gazetted service in basic Scale 17 for promotion in BS-19 whereas appellant had rendered more than 15 years gazetted service---Authorities did not bother to calculate length of service of appellant for periods in which he was promoted from initial recruitment in BS-7 to BS-15, BS-17 & BS-18 and upto BS-19 on acting charge basis which was about 30 years in total and only confined their calculations of service of appellant rendered by him only in BS-17 and 18---Appellant was ripe for promotion in BS-19 on regular basis when he was promoted in BS-19 on acting charge basis---Juniors to appellant were promoted to BS-19 on regular basis, but case of appellant was not considered on lame pretexts---According to Cl.II of Punjab Civil Servants, Minimum Length of Service for Promotion Rules, 1989, where initial appointment of a person was made to posts in basic pay scale 16 or below one half of service in basic pay scale-16 and 1/4th in basic scale-15 and below would be counted as service in basic pay scale 17 for computing the length of service for the purpose of promotion only in pay scales 18, 19 & 20---When appellant was promoted on acting charge basis in BS-19 was fully eligible to be promoted to said post on regular basis on basis of calculation of period of his past services---Latest policy of pro forma promotion propounded by Executive through circular, could never be given retrospective effect unless it was to be construed beneficial in favour of civil servant---Accepting appeal, appellant was held entitled to pro forma promotion in BS-19 on regular basis.

Asif Nazir Awan, for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Shama Zia, Law Officer, Education Department, Departmental Representative.

Date of hearing: 6th May, 2004.

2005 P L C (C.S.) 490

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD IJAZ UL HAQ, SST

versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), SARGODHA and 3 others

Appeal No.386 of 2004, decided on 9th June, 2004.

Civil service---

----Advance increments---Entitlement---Employee was promoted as S.S.T. in BS-16 on acquiring higher qualification by passing Masters examination in Urdu, employee was allowed three advance increments in accordance with policy of Finance Department, but said increments subsequently were held inadmissible to employee---Earlier M.A. in any subject was made equivalent to qualification of M.A. in Education (M.Ed), but subsequently M.A. in Education was equated to M.Ed. by Institute of Research and Universities in the Punjab---Employee having qualified Masters Degree in Urdu, could not be placed at a higher pedestal in M.A. (Education)---At the time when employee possessed M.A. Urdu, it was qualification in the alternative for being eligible to the post of Secondary School Teacher---Grant of three advance increments, in circumstances, was out of question---Employee, in circumstances was rightly held not entitled to advance increments.

Government of the Punjab through the Secretary Education and others v. Faqeer Hussain and 5 others 2004 PLC (C.S.) 491 ref.

Sheikh Aamir Maftoon for Appellant.

Khadim Hussain Sindhu, District Attorney, Muhammad Saleem Raza, L.O., Tariq Muhammad Mirza, Section Officer (PC), and Muhammad Akram, A.A.-O. Departmental Representatives for Respondents.

2005 P L C (C.S) 498

[PunjabService Tribunal]

Justice (Retd.) Riaz Kayani, Chairman

KHALID SIDDIQUE, EXCISE AND TAXATION OFFICER TRANING CELL, LAHORE

versus

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

Appeal No.1806 of 2003, decided on 29th December, 2003.

Civil service---

----Adverse remarks---Expunction of---Reporting Officer while assessing performance of civil servant for the period from 2-11-1991 to 30-6-1992 awarded him adverse remarks of being rigid, inflexible and lacking ability to appreciate other’s point of view in his Annual Confidential Report---Same Reporting Officer at time of writing next Annual Confidential Report for the period from 1-7-1992 to 28-1-1993, rated civil servant good in same column of Annual Confidential Report relating to his adaptability, understanding and tolerance and rated him for the same characteristics as alert and highly responsible apart from being considerate and cooperative with others---Such abrupt change from “below average” to “good”, was not due to any metamorphosis in the habits of appellant taking place so suddenly, but it clearly reflected that Reporting Officer played a game of pick and choose and same portrayed mala fides on the part of Reporting Officer fairly indicating that remarks were not based on objective evaluation rather same were based on whim and caprice of Reporting Officer---Adverse remarks given in Annual Confidential Report of appellant did not have any semblance of an inquiry whereby a chance was provided to prosecution as well as to defence to prove and disprove allegations respectively---Annual Confidential Report was the objective assessment and evaluation of Reporting Officer about personal qualities, attitudes and proficiency in job of civil servant which was gauged by his work and performance; in other words, civil servant had no chance whatsoever to controvert the assessment made by Reporting Officer through any objective evidence to the contrary---Observation made by Appellate Authority having no backing in law, impugned order had to be struck down for that reason alone---Accepting appeal, adverse remarks given by Reporting Officer and endorsed by Countersigning Officer against appellant, were set aside by Service Tribunal.

Appellant in person.

Khadim Hussain Sindhu, District Attorney, Shafaat Ali, Section Officer (A-1) Excise & Taxation Department, Departmental Representative and S. Jafar Raza Hussain, Law Officer, Departmental Representative for Respondents.

Date of hearing: 23rd December, 2003.

2005 P L C (C.S) 502

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman and Muhammad Afzal, Member-I

FARAH DEEBA

versus

SECRETARY, GOVERNMENT OF THE PUNJAB, LABOUR AND HUMAN RESOURCE DEPARTMENT, LAHORE and 3 others

Appeal No.819 of 2003, decided on 29th April, 2004.

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

----Ss. 3, 5 & 8---Punjab Service Tribunals Act (IX of 1974), S. 4---Removal from service---Appeal---Appellant serving as Principal of a school was removed from service after charge-sheeting her and holding enquiry against her on allegations of tampering with office record, embezzlement and misappropriation of huge amount---Enquiry Officer after close scrutiny of documentary evidence on record and examining witnesses had found that charges against appellant, had fully been proved and Enquiry Officer had recommended imposition of major penalty of removal from service---Appellate Authority taking into consideration enquiry report and after affording hearing to appellant removed her from service---Appellant herself was master mind of forgery and the ugly manner in which manipulation was carried out by appellant, was very shocking and painful as it was unthinkable that a teacher working as Principal would stoop so low to get benefit which was to be given to her in due course of time---Teacher is considered to be embodiment of virtues collected together not only to mould the young students but to shape their future life as role models for their contemporaries---Principal who for little gains, could cross all limits to attain it in a total grotesque manner, would not at all deserve to stay at such a high pedestal---Contention of appellant that Article 13 of Constitution relating to rule of double jeopardy, had been violated, was repelled because said rule was only applicable where a competent Court of law either would acquit or convict accused and thereafter accused could not be tried for the same offence---Said rule/maxim had no application to the number of inquiries so as no order of competent Authority had yet taken field---Appeal filed by appellant against order of her removal from service being devoid of merit, was dismissed.

Sheikh Allah Ditta for Appellant.

Khadim Hussain Sindhu District Attorney and Badar ul Ameer Malik for the Respondents.

Date of hearing: 26th April, 2004.

2005 P L C (C.S.) 516

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

SYED MUSA RAZA, S.S.T., versus

GOVERNMENT OF PUNJAB through Secretary Finance Department, Lahore and 2 others

Appeal No.103 of 2003, decided on 7th July, 2003.

Civil service---

----Grant of advance increments on acquiring higher qualification---Discontinuation of advance increments---Employee was inducted in service as Secondary School Teacher in BS-16 through Public Service Commission possessing qualification of B.Sc./B.Ed---Government vide Notification had granted to a teacher who possessed or acquired Master’s Degree, three advance increments---Employee who acquired M.Ed. qualification was granted three advance increments according to said Notification---Vide another Notification qualification of M.Ed. acquired by employee was considered higher qualification---Increments granted to employee subsequently were not only discontinued, but amount drawn by employee for said increments was asked to be refunded on ground that by a Notification, increments granted to employee would not be admissible on acquiring/possessing qualification for higher pay scales---Said subsequent Notification was applicable to those teachers who were placed in higher scale---Employee was not given additional benefit of placing him in higher scale as he was inducted in service in BS-16---Validity---Employee could not be deprived of advance increments to him---Subsequent Notification having wrongly been applied in the case of employee, order denying financial benefit of three increments granted to employee, was set aside and he was held entitled to advance increments as he had acquired higher qualification of M.Ed.

Appellant in person.

Ameer Tariq Mustafa, Deputy District Attorney and Abdul Rashid, Section Officer, Finance Department, Departmental Representative for Respondent.

Date of hearing: 28th June, 2003.

2005 P L C (C.S.) 524

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

ABDUL HAMEED

versus

SECRETARY ZAKAT AND USHR DEPARTMENT, GOVERNMENT OF THE PUNJAB and another

Appeal No.2566 of 2003, decided on 4th May, 2004.

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

----Ss. 7(2) & 8---Punjab Service Tribunals Act (IX of 1974), S. 4---Pro forma promotion---Grant of---Appeal---Promotions were always to be made on the basis of seniority-cum-fitness formula---Service Tribunal could not have the jurisdiction to question the decision of the departmental Authority determining the fitness of a person to be promoted, but certainly had the competence to question the legality of an order where eligibility of a civil servant for consideration for promotion was ignored and when juniors to the aggrieved civil servant were promoted---Service Tribunal would further step in and direct for the enforcement of the legal right of such civil servant---Appellant despite being senior-most according to seniority list, was not considered for promotion whereas other civil servants, who were juniors to him were promoted to Grade-17 to the detriment of appellant---Representation of appellant addressed to respondent/Administrator, Zakat and Ushr was endorsed by District Zakat Officer to the effect that appellant was an extremely honest and hard-working person with qualities of head and heart and no complaint existed against appellant and he had strongly recommended promotion of appellant---Chairman, District Zakat and Ushr Committee also gave similar good remarks about appellant---Appellant, in circumstances was entitled to pro forma promotion as prayed for by him---Appellant was allowed pro forma promotion with effect from date his juniors were promoted---Appellant would be given complete financial benefits till the date of his retirement and further pensionary benefits would also be increased accordingly.

Muhammad Rahim Khan v. Chief Secretary, N.-W.F.P and 4 others 1999 SCMR 1605 ref.

Ch. Masood, Ahmad for the appellant.

Khadim Hussain Sindhu, District Attorney, Fakhar Iqbal Ahmad Sheikh, Assistant Secretary, Zakat and Ushr Department, Departmental Representatives for Respondents.

Date of hearing: 28th April, 2004.

2005 P L C (C.S.) 538

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-III

RASHIDA QADIR

versus

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

Appeal No.1012 of 1999, decided on 12h December, 2001.

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

----Rr.3 & 4---Pension Rules, 1955, R.1.8---Punjab Service Tribunal Act (IX of 1974), S.4---Removal from service---Appeal---Major penalty of removal from service was imposed on appellant at the time when she stood retired on superannuation---Appellant being no more a civil servant at the time penalty of removal from service was imposed on her, proceedings against her would abate---Case was remanded for fresh proceedings against appellant in terms of R.1.8 of Pension Rules, 1955.

1988 PLC (C.S.) 245; 1997 SCMR 347 and 2000 PLC (C.S.) 864 ref.

Dr. Ehsan-ul-Haque Khan for Appellant.

Miss Shama Zia, Law Officer/D.R. Rana Safdar Ali Asif, Distt, Attorney for Respondents.

Date of hearing: 27th November, 2001.

2005 P L C (C.S.) 542

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member.

Malik ILYAS AHMAD S.D.O. IRRIGATION DEPARTMENT

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB IRRIGATION AND POWER DEPARTMENT and another

Appeal No.1644 of 2000, decided on 20th September, 2000.

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

----Rr. 4(1)(b)(i) & 6---Punjab Service Tribunals Act (IX of 1974), S. 4---Reduction to lower grade---Appeal---Major penalty of reduction to lower grade was imposed upon the appellant after issuing him show-cause notice, charge-sheeting him and holding inquiry against him on allegation of negligence in performing his duties---Appellant who was serving in B.S-17 for the last 19 years, was reduced from BS-17 to BS-11 on allegation of negligence for which he alone was not responsible---Very limited chances of promotion existed in Irrigation Department in which appellant was serving, and reduction to lower grade had deprived him of the only chance of promotion he could avail during his entire service---Penalty awarded to appellant was harsh as compared to his alleged negligence regarding lack of supervision of staff responsible for maintenance of canal bank where breach had occurred---Major penalty of reduction in rank to a lower grade was converted into minor penalty of censure as proposed by Authorized officer.

Masood Ahmad Riaz and Khadim Hussain Khokhar for Appellant.

Muhammad Ashiq Bhatti D.A. for Respondents.

Date of hearing: 20th September, 2000.

2005 P L C (C.S.) 625

[Punjab Service Tribunal]

Present: Justice (Rtd.) Riaz Kayani, Chairman

ABDUL REHMAN SOHAIL, S.V. TEACHER, versus

SECRETARY EDUCATION and 4 others

Civil Miscellaneous Applications Nos. 99 and 101 of 2004 in Appeal No.2631 of 2003, decided on 16th February, 2004.

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

----S.4---Second appeal---Maintainability---Law contemplated one appeal which was resorted to by the appellant and on the directions of Service Tribunal stood decided by department---No second appeal/revision was permissible under the scheme of law pertaining to the terms and conditions of a civil servant other than disciplinary matters.

Zia-ud-Din Kasuri for Appellant.

Muhammad Ramzan, S.D.O. Departmental Representative.

Syed Mazhar Hussain, Assistant. (D.R.).

Khizar Hayat Basal, E.D.O. (Education) Departmental Representative.

Khadim Hussain Khokhar (in C.M.A. No.99 of 2004).

Irshad Ahmad Qureshi (in C.M.A. No.101 of 2004).

Date of hearing: 13th February, 2004.

2005 P L C (C.S.) 643

[Punjab Service Tribunal]

Before Justice (Rtd.) Riaz Kayani, Chairman, Syed GHULAM MURTAZA

versus

SECRETARY EXCISE AND TAXATION, PUNJAB and others

Appeal No. 2331 of 2004, decided on 2nd December, 2004.

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

----Ss.4 & 10---Suspension---Appeal---No material progress had taken place from the date, suspension order was passed---Contention of the Authority that under S.4 of Punjab Removal from Service (Special Powers) Ordinance, 2000, it had powers to continue the suspension without any check was misconceived because when suspension was pending inquiry, an elaborate procedure had been given for the completion of inquiry within a definite period---District Attorney had made a candid statement that inquiry against appellant would be completed up to specified date positively---In case appellant would evade service or refuse to attend inquiry proceedings after having answered the summons, Inquiry Officer’s powers would not be stifled to make him helpless, rather apart from adopting coercive measures, he could proceed against the appellant ex parte---Appellant did not want to press his appeal any further and had sought its withdrawal---Appeal was disposed of as withdrawn.

Dr. Ehsan ul Haque Khan for appellant.

Ijaz Halim Khan, Section Officer, Excise and Taxation Department, Departmental representative.

2005 P L C (C.S.) 714

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

AFTAB GULZAR and another

versus

CHAIRMAN, PUNJAB LOCAL GOVERNMENT BOARD, LAHORE and 2 others

Appeals Nos.285 and 1496 of 2004, heard on 31st January, 2005.

Punjab Local Councils Service (Efficiency and Discipline) Rules, 1990---

----R.4---Punjab Service Tribunals Act (IX of 1974), S.4---Punjab Local Government Ordinance (XIII of 2001), Ss. 2(i)(vi) & 193---Dismissal from service---Jurisdiction of Service Tribunal---Appeal before Service Tribunal---Competency---Proceedings against appellants were initiated under Punjab Local Councils Service (Efficiency and Discipline) Rules, 1990 and penalties of dismissal from service and recovery of amount from them were imposed by the Authority---Employees in service of Local Councils could be public servants entrusted with the job to discharge duties to promote the interest of public, in aid of City Government, but they drew their salaries from exchequer of their respective councils, known as Local Funds and District Provincial Accounts---Employees and members of Local Councils Service unlike Punjab Local Government Ordinance, 1979 which conferred special status upon members of Local Councils service to be civil servants, had not been given said status in Punjab Local Government Ordinance, 2001 applicable to case of appellants---Appellants to all intents and purpose were employees of Local Council---Since action against appellants had not been taken under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, they could not be termed as civil servants---Impugned order was passed against appellants at the time when Punjab Local Government Ordinance, 2001 was in field though proceedings against them could have been initiated earlier---At time of filing appeal before Punjab Service Tribunal, appellants not being civil servants, Tribunal had no jurisdiction in their case---Appeals filed by appellants not being maintainable were dismissed, in circumstances.

Ch. Manzoor Hussain Basra and Dr. Ehsan-ul-Haq for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondent.

Qamar-ul-Haq Siddiqui, Admn Officer, Punjab Local Government Board, Departmental representative.

Qazi Mohy-Uddin for Respondent.

Date of hearing: 31st January, 2005.

2005 P L C (C.S.) 724

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. ZAFAR HUSSAIN IQBAL

versus

GOVERNOR OF THE PUNJAB through Chief Secretary, Government of the Punjab, Lahore and 2 others

Appeal No.2474 of 2003, decided on 17th December, 2003.

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

----Ss. 9 & 21---Punjab Service Tribunals Act (IX of 1974), S.4(1)(a)---Transfer---Appeal---Appellant aggrieved by his transfer from Allama Iqbal Medical College Lahore with immediate effect and posting him as Professor, T.B. & Chest diseases at Quaid-e-Azam Medical College, Bahawalpur against existing vacancy had filed appeal against said transfer---Appellant had filed appeal before Tribunal without first availing remedy of review/representation as envisaged under S.21 of Punjab Civil Servants Act, 1974---Validity---Jurisdiction of Service Tribunal was barred to entertain appeal by virtue of provisions of S.4(1)(a) of Punjab Service Tribunals Act, 1974---Section 21 of Punjab Civil Servants Act, 1974 mandated the making of a representation within 60 days of passing of impugned order to Authority higher to Authority which had passed original order---Said provisions of law read with S.4(1)(a) of Punjab Service Tribunals Act, 1974 placed fetters on powers of Tribunal to entertain any appeal where right of representation/appeal/ review was provided, but same was not availed by appellant---Appellant in the first instance would move a representation to the Governor of Province of Punjab, and if so done, question of limitation would be considered sympathetically---If appellant, after exhausting his right of representation, would feel aggrieved by any adverse order or if representation was not attended to within statutory period, he could avail remedy provided to him under law before appropriate forum.

Dr. Ehsan ul Haq for the Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Dr. Sajjad ul Hassan, Director Law, Health Department, Departmental Representative.

Seleem Sehgal for Respondent No.3.

Date of hearing: 16th December, 2003.

2005 P L C (C.S.) 747

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD JAMIL SALEEMI

Versus

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, GUJRAT and another

Appeal No. 2458 of 2004, decided on 28th December, 2004.

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

‑‑‑‑Ss.3 & 11‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Removal from service‑‑‑Appeal‑‑‑Show‑cause notice asking appellant to show‑cause as to why he should not be proceeded against for wilful absence, was issued to the appellant under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, but order of removal from service was passed against appellant under R.4(iii) of Punjab Local Councils Servants (Services) Rules, 1997‑‑‑Under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, all other rules relating to efficiency and discipline matters having stood abrogated, imposition of penalty of removal from service, fell in the realm of illegality on that score alone.

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

‑‑‑‑S.12‑‑‑Retirement after completing 25 years of qualifying service‑‑­Exercise of option by a civil servant after completing 25 years of qualifying service could not be tampered with and competent Authority had to accede to it.

Dr. Ehsan ul Haq for the Appellant.

Khadim Hussain Sindhu District Attorney.

Javed Iqbal, Court Clerk, TMA Gujrat Departmental representative.

Date of hearing: 27th December, 2004.

2005 P L C (C.S.) 759

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑I

AKMAL HUSSAIN

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and 2 others

Appeal No. 1120 of 2003, decided on 2nd December, 2003.

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

‑‑‑‑Ss.3 & 10‑‑‑Awarding penalty of stoppage of promotion‑‑‑Appeal‑‑­Appellant was proceeded against under Punjab Removal from Service (Special Powers) Ordinance, 2000 and was served with a show‑cause notice containing allegations that while working as Excise and Taxation Officer he was found inefficient as he had not been able to achieve total demand recoverable on account of property tax during financial year concerned including the arrears‑‑‑Reply to show‑cause notice given by the appellant having not been considered satisfactory by the Authority, he was awarded punishment of stoppage of promotion on account of alleged inefficiency‑‑‑Fact was admitted by the Authority that estimated recovery demand for the area where appellant was posted was unrealistic and for that reason recovery targets could not be achieved and demand was reasonably decreased‑‑‑Such fact had supported the contention of appellant that he had already brought situation to the notice of concerned Authority, but no action was taken by the Authority‑‑‑People usually pay property tax towards the end of the financial year, and pace of recovery remains slow in preceding months and on basis of figures during those months, no realistic assessment of achievement of recovery targets could be made‑‑‑Considering all relevant facts of the case appeal was accepted and order awarding penalty of stoppage of promotion, was set aside.

Muhammad Anwer Khokhar for Appellant.

Rana Muhammad Yasin District Attorney and Khalid Siddique for Respondents No.3.

Date of hearing: 2nd December, 2003.

2005 P L C (C.S) 765

[Punjab Service Tribunal]

Before Muhammad Afzal, Member, I

ASIF JAMIL

Versus

CHAIRMAN, PUNJAB TEXT BOOK BOARD and another

Appeal No. 1181 of 2003, decided on 23rd January, 2004.

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

‑‑‑‑Rr.3(b) & 4(1)(b)(iii)(v)‑‑‑Punjab Service Tribunal Act (IX of 1974), S.4‑‑‑Dismissal from service on charge of misconduct‑‑‑Conversion of penalty into compulsory retirement‑‑‑Appeal‑‑‑Appellant was dismissed from service after holding inquiry against him on charge of large scale financial irregularities committed by him‑-‑Serious allegations of financial irregularities including loss caused" to the respondent‑Board were levelled against the, appellant‑‑‑Inquiry Committee looked into the charges against appellant and found that allegations had been proved‑‑­Some contradictions were found in the findings of Inquiry Committee viz. on the one hand Inquiry Committee found 'that financial irregularities were committed by appellant and on the other hand, the Committee concluded that appellant was guilty of inefficiency and misconduct‑‑‑Committee should have worked out exact loss caused by the appellant to respondent Board or it should have waited for final report of the Auditors to determine the exact loss caused by him‑‑­Appellant was not innocent as regards his role‑‑‑Delay in completion of inquiry within stipulated period would not vitiate whole proceedings‑‑­Inquiry Committee had concluded that the appellant was guilty of inefficiency and misconduct; that being so, punishment to be awarded to the appellant should have been awarded in accordance with conclusion of Inquiry Committee‑‑‑Punishment of dismissal from service, was converted into that of compulsory retirement by the Service Tribunal‑‑‑Order of dismissal stood modified accordingly.

Mian Abdul Aziz for Appellant.

Rana Muhammad Yasin District Attorney and Muhammad Arif, Raja for Respondents.

Date of hearing: 14th January, 2004.

2005 P L C (C.S.) 795

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

GHULAM HUSSAIN

Versus

DEPUTY DISTRICT EDUCATION OFFICER (M.E.E) LAHORE CITY, LAHORE and 2 others

Appeal No. 1462 of 2004, decided on 21st December, 2004.

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

‑‑‑‑Ss.3 & 10‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Removal from service‑‑‑Appeal‑‑‑Appellant was appointed P.T.C. teacher, but he did not join duty within prescribed period‑‑‑Appellant after lapse of five months and 12 days produced false adjustment order purportedly issued by District Education Officer who otherwise was not competent to issue any adjustment orders as it was only within competence of Deputy District Education Officer to issue such order‑‑­No entry of such adjustment order was found in any register whatsoever‑‑‑Appellant had secured said bogus adjustment order by giving bribe‑‑‑Appointment having secured appellant through bogus means, mere length of time for which he taught in school, would not equip him with an argument that harsh action of removal from service after teaching for 10/11 long years, muffled the fraud committed earlier‑‑‑Fraud would vitiate most solemn proceedings and passage, of time would not erase the fraud.

Dr. Ehsan ul Haque Khan for Appellant.

Khadim Hussain Sindhu District Attorney and Muhammad Ijaz Chaudhary, for Respondents.

Amir Hafeez Malik, AEO, Office of Dy. DEO(M.E.E) Lahore City, Departmental Representative.

Date of hearing: 14h December, 2004.

2005 P L C (C. S.) 804

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. QAMAR SARWAR RANA

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another

Appeal No. 2939 of 2003, decided on 18th March, 2004.

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

‑‑‑‑Ss.1(3), 3, 9, 10 & 11‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, Rr.3 & 4‑‑‑Dismissal from service‑‑‑Appellant who was dismissed from service filed review petition, but said review petition having not been attended to by the competent Authority, appellant filed appeal before Service Tribunal after expiry of statutory period‑‑‑Disciplinary proceedings against appellant under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 were launched at the time when Punjab Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated‑‑‑Provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 having overriding effect under S.11 of the Ordinance, proceedings against appellant under Punjab Civil Servants (Efficiency and Disciplinary) Rules, 1999 were illegal‑‑­Authority concerned was directed to launch proceedings against appellant under Punjab Removal from Service (Special Powers) Ordinance, 2000 and further that if proceedings had commenced, Authorities would proceed strictly in accordance with law and should be taken to its logical conclusion by speaking order to be passed by Competent Authority.

Dr. Ehsan ul Haq for the Appellant.

Khadim Hussain Sindhu District Attorney for Respondents.

Date of hearing: 18th March, 2004.

2005 P L C (C.S.) 912

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD RIAZ EX-CONSTABLE NO.366, TEHSIL SAHIWAL, DISTRICT SARGODHA

Versus

D.P.O. KHUSHAB and another

Appeal No. 2344 of 2004, decided on 14th February, 2005.

Punjab Civil Servants (Efficiency & Discipline) Rules, 1974---

----R. 4(1)(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was proceeded against on allegation that he remained absent from duty for 10 days---Authority while passing impugned order regarding dismissal of appellant, had also regularized said period of absence treating that period as leave without pay-When absence was treated as leave without pay, then appellant could not be treated as absent and at least he could not be dismissed from service on that ground---If appellant was treated absent, then he could not be treated on leave and if he was to be treated on leave then he could not be treated as absent---Moreover period of alleged absence was not long---Appellant had stated that during period of his absence he became sick and he had submitted medical certificates for that period, but said medical certificates were misplaced---Appellant also had not been given personal hearing while passing impugned order---To be heard in a case was the right of every accused person---Authority could not declare that appellant did not deserve grant of personal hearing---Accepting appeal of appellant, impugned orders were set aside and appellant stood reinstated in service and intervening period would be treated as leave.

1995 P L C (C.S) 1161 ref.

Asif Nazir Awan, for Appellant.

Rana Muhammad Yasin, District Attorney for Respondents.

Date of hearing: 14th February, 2005.

2005 P L C (C.S.) 1015

[Punjab Subordinate Judiciary Service Tribunal, Lahore]

Before Justice Muhammad Akhtar Shabbir, Chairman Justices Mian Hamid Farooq, and Sh. Abdul Rashid, Members

RAJA MUHAMMAD SHAFIQUE JAVAID

Versus

LAHORE HIGH COURT through Registrar

Service Appeal No.51 of 2001, decided on 10th December, 2004.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)-----

----S.5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr.3(b)(c) & 7(1)(6)---Appeal---Judicial Officer---Dismissal from service---Charge against appellant was that he as Duty Judge, entertained suit, entrusted same to his own Court and decreed same ex parte within one month on basis of fictitious report of Process-Server qua refusal of service of summons by defendant---Non-appearance of defendant and her attorney before Inquiry Officer to support allegations---Inquiry Officer on statements of officials of Court found appellant guilty and recommended penalty---Authorised Officer agree with report of Inquiry Officer and imposed penalty---Chief Justice and Judges of High Court directed appellant to appear before another Judge of High Court for personal hearing, who sided with opinion of Inquiry Officer and Authorised Officer by affirming penalty---Validity---Entertainment of suit by appellant as Duty Judge in winter vacation and entrusting same to his own Court in absence of any other Court functioning on relevant date would neither be an offence nor irregularity or illegality---Allegation of defendant that she was not residing at given address, was contrary to record---If Court was competent to pass ex parte decree, then its act of passing of ex parte decree could not be termed as an act of misconduct or corruption---No evidence on record that appellant had secured illegal benefits from plaintiff nor same could be inferred from act of passing of decree within a period of one month---Process-Server had defended his report before Inquiry Officer---Process-Server had been promoted as Bail if after dropping of departmental inquiry against him---Court after report of refusal to receive summons by plaintiff, had ordered substituted service through newspaper---Prosecution witnesses had not levelled allegation of misconduct or corruption against appellant---Defendant, after acceptance of her application for setting aside of decree had withdrawn suit and sold out property to her tenant---Neither complaint had been exhibited nor complainant or her attorney had been examined by Inquiry Officer---Inquiry in such circumstances, would be illegal and on its basis, no punishment could be imposed upon appellant---Disciplinary proceedings had remained pending for more than seven years without any sufficient reasons---Pendency of disciplinary proceedings was also a punishment and appellant had suffered such agony and mental torture for such a long period---Such penalty could not be imposed upon appellant---Service Tribunal accepted appeal, set aside dismissal order and reinstated appellant in judicial service with back benefits.

Muhib All, Chairman, State Life Insurance Corporation of Pakistan and 6 others v. 2003 PLC 316; Monmatha Nath Ghosh. v. Director of Public Instructions Government of West Bengal and others AIR 1958 Calcutta 49; Dadarao Shegoji Tidke v. State of Madhya Pradesh and another AIR 1958 Bombay 204; Abdullah v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others 1994 PLC (C.S.) 111 and Allah Yar v. General Manager, Railways Headquarters Lahore and another 2001 SCMR 256 ref.

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

----R. 3(b)(c)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial Officer---Dismissal from service---Entertainment of suit as Duty Judge and its entrustment to his own Court, charge of---Validity---Such act would neither be an offence nor irregularity nor illegality---Principles illustrated.

(c) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)-----

----S.5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.3(b)(c)---Judicial Officer---Dismissal from service---Passing ex parte decree by the Judicial Officer within a period of one month, charge of---Validity---Passing of ex parte decrees by Presiding Officer was usual in cases of refusal of a party to accept service or failure to appear despite service---Law had not constrained Courts from passing ex parte decree in such circumstances---If Court was competent to pass ex parte decree, then its act of passing ex parte decree could not be termed as an act of misconduct or corruption---Principles illustrated.

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

----Art. 1 (2)---Principles of Qanun-e-Shahadat, 1984---Applicability---Such principles would apply to all executive, judicial or quasi-judicial proceedings---Such principles could not be disregarded especially by Judicial Officer while punishing or prejudicing his subordinate.

(e) Criminal trial---

----Accused would be liable to be acquitted, if case against him was not proved beyond any shadow of doubt in accordance with provisions of Qanun-e-Shahadat, 1984.

(f) Criminal Trial-----

----Innocent person could not be punished, even if along with him ten guilty would be benefited.

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

----R.7(1)---Inquiry proceedings---Non-appearance of complainant in support of allegations and his non-examination by accused---Validity---Allegations would be deemed to have not been proved in accordance with law---Such inquiry would be illegal and on its basis no punishment could be imposed upon accused---Principle illustrated.

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

----R. 3(b)(c)-Misconduct-Judicial Officer not adopting procedure provided in High Court (Lahore) Rules and Orders-Effect---Same would only be an omission and not an act of misconduct.

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

------O.V.R.20(e)----Substituted service---Publication of summons in a newspaper not widely circulated among people but approved for publication by High court---Held Presiding Officer had not committed any illegality.

(j) Civil Service------

--------Corruption allegation of ----Proof-No person without evidence could be declared as corrupt person unless proved by cogent and sufficient evidence.

(k) Civil service----

-----Disciplinary proceedings-Pendency of such proceedings for a period of more than seven years would be a punishment mental agony and torture to civil servant---In absence of time limit for competent authority to give verdict under Efficiency and Discipline Rules agony of civil servant should not prolong for such an indefinite period, in case authority failed to decide matter within reasonable time.

Sh.Muhammad Rafiq Goreja for appellant.

Muhammad Azam Rasool for Respondent.

2005 P L C (C.S.) 1160

[Punjab Service Tribunal]

Before: Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD BOOTA JAVED and another

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT, LAHORE and 2 others

Appeals Nos. 167 and 168 of 2005, decided on 18th April, 2005.

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

----Ss. 3, 5, 6 & 10---Compulsory retirement from service---Appeal---Major penalty of compulsory retirement from service was imposed on appellants after charge-sheeting them for certain acts of misconduct and corruption---Main accused, who was District Health Officer, was awarded minor penalty of withholding of two increments, which was most appropriate penalty in the given circumstances of the case---Major penalty of compulsory retirement imposed on appellants who were lower rank officials not only was discriminatory, but was out of all proportions to the gravity of misconduct alleged against them---Discrimination having been practised, in the matter of imposition of penalty to restore parity, penalties of compulsory retirement imposed on appellants were converted to withholding of two increments---Order of Authority was modified accordingly.

Asif Nazir Awan for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondents.

Ijaz Farrukh, Senior Law Officer, Health Department, Departmental representative.

Date of hearing: 15th April, 2005.

2005 P L C (C.S.) 1187

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

ABDULLAH GONDAL

Versus

DEPUTY DIRECTOR FOOD, RAWALPINDI and another

Appeal No.49 of 2002, decided on 13th May, 2002.

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

----Ss. 3, 5, 6 & 10---Constitution of Pakistan (1973), Arts. 13 & 25---Compulsory retirement---Appeal---Discrimination and applicability of rule of "Double Jeopardy"---Major penalty of compulsory retirement was imposed on appellant after charge-sheeting him and holding inquiry against him on allegations of misconduct, corruption, malpractice, negligence: misappropriation of amount, carelessness, etc.---Out of six charges, five charges related to previous omissions for which appellant had been punished and it had become a closed and past transaction which could not be raked up to impose present major penalty of compulsory retirement---Regarding one charge, only a preliminary inquiry was conducted and no show-cause notice or personal hearing was provided---Co-accused of appellant was also proceeded against under the same charge and exactly same evidence against him was available, but in his case only minor penalty of censure was imposed on him, whereas major penalty of compulsory retirement was imposed upon appellant---Penalty imposed on appellant could be overturned on ground of discrimination---Penalty of compulsory retirement was converted into censure as was done in the case of co-accused---Appellant, who was already tried and was awarded punishment on five charges which related to previous omissions and his said omissions had already been adjudicated upon administratively, fresh action taken against him by compulsory retiring him on said charges, could not be upheld as rule of "Double Jeopardy" was applicable in the case of appellant according to which no one was to be vexed twice for one and same offence---Appeal of appellant was partially accepted and order of Authority regarding five charges which had already been adjudicated upon, was set aside, but on one charge compulsory retirement was converted into censure.

Agha Mumtaz Ali v. Deputy Director Directorate of Intelligence and Investigation Regional Officer Punjab and 2 others 1998 PLC (C.S.) 648 ref.

Asif Nazir Awan for Appellant. Nemo (District Attorney on leave)

Tahir Asif, Assistant for Respondent No.2.

Sahaukat Ali Sian, Storage Officer, on behalf of Respondent No.1.

Date of hearing: 3rd May, 2002.

2005 P L C (C.S.) 1195

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-1

TAHIR AZIZ

Versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another

Appeal No.880 of 2003, decided on 8th July, 2003.

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

----R. 4(1)(b)(iv)---Punjab Service Tribunals Act (IX of 1974), S.4--Removal from service---Appeal---Appellant was removed from service after serving him with a show-cause notice on allegation that there were some adverse entries in his service record and on said ground he was not considered fit for further retention in service---Most of bad entries in service record of appellant were warnings, censures and stoppage of increments mainly because of some incidents of absence from duty---Appellant having already been punished on account of petty offences involving indiscipline, he could not be imposed a major punishment of removal' from service through cumulative impact of such past punishments---Allegations of carelessness etc. against appellant were vague and non-specific---Civil servant could not be punished on the basis of vague and non-specific allegations or any past minor punishment awarded to him---Impugned orders were set aside and appellant stood re-instated accordingly.

Asif Nazir Awan, for Appellant.

Rana Muhammad Yasin, District Attorney for Respondent No. 1

Dilshad Ahmad, Clerk on behalf of Respondent No.2.

Date of hearing: 8th July, 2003.

2005 P L C (CS.) 1197

[Punjab Service Tribunal]

Before Muhammad Sarfraz, Khan Jhawari, Member-II

AZHAR AHMAD

Versus

DISTRICT POLICE OFFICER, PAKPATTAN and others

Appeal No. 1649 of 2003, decided on 17th February, 2004.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2001)-------

------Ss. 3, 5, 6, 7 & 10---Dismissal from service--Appeal---Appellant who was involved in criminal/murder case was arrested and was sent to jail---Show-cause notice was issued to appellant under Punjab Removal from Service (Special Powers) Ordinance, 2000, but appellant, due to confinement in jail and non-availability of any facility, could not submit his reply to show-cause notice and was dismissed from service---Appellant was acquitted from the charge of murder and after his acquittal preferred departmental appeal which having been rejected, appellant had filed service appeal---Validity---No regular inquiry was conducted against appellant and he was not afforded opportunity to defend his case because he was in judicial lock-up---Since, regular inquiry was not conducted which was necessary before awarding major penalty to appellant, impugned orders passed by Departmental Authority were not maintainable---Impugned orders were set aside and appellant was ordered to be reinstated in service accordingly.

Asif Nazir Awan for Appellant.

Javed Iqbal Malik, District Attorney for Respondent.

Date of hearing: 17th February, 2004.

2005 P L C (C.S.) 1210

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

SONEHRA BEGUM

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), RAWALPINDI and another

Appeal No.1863 of 2004, decided on 10th March, 2005.

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

---S. 4---Grant of S.V. grade, withdrawal of---Appeal---Appellant along with others was awarded S.V. grade in B.S.-9 on basis of 50% quota of S.V. Teachers reserved for in service candidates---Order of award of S.V. grade was duly implemented to all intents and purposes, but' was unilaterally withdrawn without any intimation, on verbal direction of the Authority---Appellant on basis of her seniority and qualification being fully eligible to grant of S.V. grade, its unilateral withdrawal without any rhyme or reason, on basis of verbal directions, had caused a great failure of justice and was totally in violation of principles of natural justice---Withdrawal orders were quashed and set aside, in circumstances---Appellant was to continue to work as S.V. teacher and no deduction in the salary would be made from her.

Khawaja Muhammad Arif, Counsel for Appellant.

Khadim Hussain Sindhu, D.A. for Respondent.

Date of hearing: 3rd March, 2005.

2005 P L C (C.S.) 1217

[Punjab Service Tribunal]

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

Qari HASSAN DIN

Versus

DIRECTOR, PUBLIC INSTRCUTIONS (SE) PUNJAB, LAHORE and 2 others

Appeal No.2266 of 2004, decided on 13th April, 2005.

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

----S. 7---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.8(1)(b)---Punjab Service Tribunals Act (IX of 1974), S.4---Denial to award S.S.T. grade---Appeal---Appellant who entered into service as Oriental Teacher in BS-9, and subsequently did his B.A., B.Ed. was denied S.S.T grade B.S.16, but respondent, who had entered into service later to appellant as S.V. in BS-9 was awarded S.S.T. Grade-16---Criteria adopted by the Authority for award of S.S.T. Grade 16 was in direct conflict with S.7 of Punjab Civil Servants Act, 1974 as well as R.8(1)(b) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---When a teacher applied for award of S.S.T. Grade 16 or when Department called applications for award of such grade, concerned teacher had to possess required qualification which was fixed as B.Ed., irrespective of date when he obtained it---In the matter of awarding the grade of S.S.T. touchstone should be in accordance with S.7 of Punjab Civil Servants Act, 1974 and R.8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, i.e. continuous service from date of appointment to a particular grade---Both appellant and respondent entered into service on different dates in BS-9-Whether respondent obtained degree of B.Ed. earlier than appellant was insignificant---Only material date which had to be taken into consideration was when respondent was awarded S.S.T. grade and it had to be seen whether on said date appellant did possess required qualification to make him eligible for seeking award of S.S.T. grade---On relevant date appellant, who possessed said qualifications, was eligible for seeking S.S.T. grade.16---Impugned order passed by the Authority was set aside---Appellant was entitled to be awarded S.S.T. grade-16 from date when respondent was given said grade.

Khawaja Muhammad Arif for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Naimat Ali, Assistant Director, Office of Director Public Instructions (SE) Departmental Representative.

M. Afzaal Azhar, Assistant Education Officer (Lit), Rawalpindi, Departmental Representative.

Date of hearing: 7th April, 2005.

2005 P L C (C.S.) 1243

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Capt. (Retd.) Dr. Malik JAVED TARIQ

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 7 others

Appeal No.1214 of 2004, decided on 3rd November, 2004.

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

----S. 8---Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, R. 14---Punjab Service Tribunals Act (IX of 1974), S. 4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant, despite ranking senior to respondents in BS-18 and having obtained required qualification of Diploma in Public Health, was not considered for. promotion in BS-19 and respondents, despite being juniors to appellant, were promoted in BS-19---Promotion of appellant to BS-19 was to be made on seniority-cum-fitness basis from among Senior Medical Officers under Punjab Health Department (General/Specialist & Miscellaneous Posts) Rules, 1981 and appellant was fully eligible for promotion when Departmental Promotion Committee took up case for consideration of promotion of respondents in BS-19 and promoted them---Appellant was not even considered for promotion to the detriment of his vested right despite nothing adverse was on record against him and nothing by way of penalty was imposed on him in any disciplinary proceedings---Departmental representative could not say anything as to why name of appellant was not considered for promotion when respondents were promoted to BS-19---Service Tribunal accepting appeal set aside impugned order with direction that appellant would be considered for promotion to BS-19 with effect from date when his juniors were considered and promoted to said rank.

Mian Inam ul Haq, for the Appellant.

Khadim Hussain Sindhu, Sajjad ul Hassan, Director Law, Health Department, Departmental Representative District Attorney for Respondent.

Date of hearing: 25th October, 2004.

2005 P L C (C.S.) 1251

[Punjab Service Tribunal]

Before Shafqat Ali Hijazi, Member-IV, JAM MUHAMMAD HAYAT JAVED

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, EXCISE AND

TAXATION, PUNJAB LAHORE and another

Appeal No.756 of 2000, decided on 29th August, 2002.

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

----R. 4(1)(b)(i)---Punjab Service Tribunals Act (IX of 1974), S. 4---Imposition of major penalty of reduction in rank---Appeal---Major penalty of dismissal from service was awarded to appellant after charge-sheeting him and holding inquiry against him on charges of defalcation and embezzlement, but said penalty was reduced to major penalty of reduction in rank in departmental appeal filed by appellant---Record had shown that appellant was charge-sheeted for embezzling amount in complicity with co-accused, but Appellate Authority had itself conceded that appellant could be held responsible only for lack of supervision and inefficiency to detect malpractices of his subordinate---Appellant, in circumstances had been punished for the charge of inefficiency which had not formed a part of the charge-sheet---Impugned order imposing major penalty on appellant, could not be maintained against appellant--Impugned order was set aside and appellant was re-instated in his original rank.

Ch. Parmoon Bashir for Appellant.

Muhammad Aslam Awais, District Attorney with D.R. for Respondent.

Date of hearing: 27th August, 2002.

JUDMGENT

Briefly stated the facts leading to appeal are that the appellant was serving as Excise and Taxation Inspector, Rahaimyar Khan, Proceedings under Punjab Civil Servants (E&D) Rules were initiated against him and he was charge-sheeted on the following allegations:-

"That you in complicity with M/s. M.R. Abbasi, Excise and Taxation Officer Anees Haider, Assistant Excise and Taxation Officer and Hamid Raza Shah, Senior Clerk received 541 cases of registration on account of various motor vehicles along with registration fee/token tax , incorporated particulars of these vehicles in the relevant allotment registered, issued acknowledgement slips but did not deposit the amount so recovered into the Government treasury till the matter was noticed by the Director, Excise and Taxation, Bahawalpur, In this way an amount of Rs.11,30,275 defalcated/embezzled by you."

The appellant submitted reply to the charge, denying the allegations but his plea was not considered satisfactory and after inquiry proceedings he was awarded major penalty of dismissal from service vide order dated 20-4-1999. He preferred departmental appeal. Resultantly, major penalty of dismissal from service was reduced to major penalty of reduction in rank from the post of E&T Inspector to that of Stenographer, the post against which he was originally recruited vide order dated 7-2-2000 which has been impugned in this appeal.

1. Learned Counsel for the appellant argued that the appellant has unblemished record of 25 years service. No Government money was embezzled by him. He did not collected any fee in cash and never incorporated entries in the allotment register. The Inquiry Committee also held the MTC responsible for all the mess and no involvement of the appellant is established in any way. It is further argued that the findings of the Inquiry Committee are contrary to the charge-sheet and limits as findings given pertain to supervision over subordinates while in the charge sheet, there was no charge of lack of supervision, vigilance and in efficiency and the original charge of misconduct has not been proved. Reliance has been made on Punjab Service Tribunal's judgment dated 24-8-2001 in appeal No.712 of 2000 titled Mr. Muhammad Anis Haider v. Director General, Excise and Taxation, Punjab.

2. Learned District Attorney relied upon the written objections submitted by the respondents and argued that as an immediate supervisory officer, the appellant must have known the lapses of his subordinates. It has further been contended that the appellant had connived with the clerk in embezzling the amount which was proved as the level of Inquiry Committee, Authorized Officer and Authority.

3. I have heard the Learned Counsel for the appellant, District Attorney, Departmental Representative and have perused the written objections to the memorandum of appeal submitted by the respondents.

4. Perusal of record shows that appellant was charge-sheeted foil embezzling an amount of Rs.11,30,275 in complicity with his co-accused but the Appellate Authority had himself conceded that the appellant could be held responsible only for lack of supervision and inefficiency to detect mal-practice of his subordinate. In this view of the matter, the appellant has been punished for the charge of inefficiency which had not formed a part of the charge-sheet and thus the impugned order is not sustainable. In the present case, the concerned clerk had been held responsible for collecting cash from the vehicle owners outside the premises of the officer and for embezzling it. It was the duty of the appellant to ensure that Government dues are deposited or not, for which he is responsible A only for his period which is less then 6 months whereas all the irregularities were committed in the last 2-/1/2 years or so. No action seems to have been taken by the department against the officials posted in the previous years.

2005 P L C (C.S) 1298

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

ABDUL RAUF KHAN, EST, GOVERNMENT COMPREHENSIVE HIGH SCHOOL, MULTAN

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), MULTAN and 2 others

Appeal No.2223 of 2004, decided on 3rd May, 2005.

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

----S. 4---Award of S.S.T. Grade---Appeal to Service Tribunal---Appellant in his appeal had impugned order vide which he was not awarded S.S.T. Grade, whereas his junior was allowed the said grade---If an E.S.T. had joined earlier, compared with other E.S.T. and that both E.S.Ts. also obtained qualification of B.Ed., which was pre-requisite for S.S.T. Grade, the one who had joined earlier, would not be deprived of S.S.T. Grade on ground that he had acquired B.Ed. qualification on a later date---One who had acquired B.Ed. qualification in earlier batch could not be given preference over the one who had acquired qualification in later batch as no rule existed for such preference---Appellant who had joined earlier to respondent would be considered for grant of S.S.T. Grade in accordance with his basic seniority and the fact that he had acquired qualification of B.Ed. on later date, would not deprive him of S.S.T. Grade on a date when vacancy was available---Appellant, held was eligible on basis of his B.Ed. qualification, but he was bypassed.

Appellant in person.

Rana Muhammad Yasin, District Attorney for other Respondents.

Muhammad Nishat, Assistant, on behalf for Respondent No.1.

Date of hearing: 3rd May, 2005.

2005 P L C (C.S.) 1314

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

KHALID ALI KHAN

Versus

DISTRICT EDUCATION OFFICER (M.EE) RAWALPINDI and 2 others

Appeal No.376 of 2005, decided on 16th May, 2005.

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

----S. 4---Punjab Civil Servants Act (XIII of 1974), Ss. 3, 4 & 10---Termination of services-Appeal-Services of appellant were terminated without any notice to him on the ground that he failed to improve his professional qualification within prescribed period of three years---Validity---No stipulation was found in advertisement through which appellant applied for the job as S.V. Teacher and secondly in his appointment letter no such condition was imposed that he had to obtain professional qualification within three years of his induction in service---Eleven years of service without blemish put in by appellant could not be terminated with one stroke of pen without giving him a notice and seeking his reasons as to what prevented him from passing professional qualification of Certificate of Training examination---Appellant having made out a case for intercession by Service Tribunal on his behalf, order terminating his service was set aside with direction to reinstate him in service---Period between termination and reinstatement would be treated as extraordinary leave without pay.

Khawaja Muhammad Arif for Appellant.

Khadim Hussain Sindhu, District Attorney, Raja Gulzar Hussain, DEO (M.EE) Rawalpindi, Departmental Representative and M. Tariq, Assistant Officer of DPI(EE) Punjab, Lahore, Departmental Representative for Respondent.

Date hearing: 12th May, 2005.

2005 P L C (C.S.) 1436

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Sheikh GHULAM RASUL

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 5 others

Appeal No.2318 of 2004, decided on 30th April, 2005.

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S. 4---Pro forma promotion---Entitlement---Appeal to Service Tribunal---Promotion in B.S.-18 was granted to the employee after being cleared by Departmental Promotion Committee---Appellant who was considered for said promotion, but was superseded in the year 1991, had challenged promotion of said employee in appeal after 11 years contending that the promotion was brought to his notice almost after 11 years---Appellant who slept over his rights, his assertion that observation of Departmental Promotion Committee in 1991 that he did not possess 2nd Division degree in Masters was void ab initio, could not be given any credence as he had failed to agitate same within period provided under the law and to say that he came to know about grievance after 11 years---It was opposed to common sense and comprehension that a civil servant superseded in 1991 would not know that junior to him was promoted in same selection/promotion process.

Dr. Ehsan ul Haq, counsel for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Qaiser Raza, A.M. TEVTA, Departmental representative.

Aftab Ahmad for Respondent No.6.

Date of hearing: 29th April, 2005.

2005 P L C (C.S.) 1518

[Punjab Service Tribunal]

Present Justice (Retd.) Riaz Kayani, Chairman and Ch. Muhammad Sarwar, Member-I

TANVEER AHMAD, EX-PTC TEACHER

Versus

DEPUTY DISTRICT EDUCATION OFFICER (MALE) and another

Appeal No.611 of 1999, decided on 22nd April, 2002.

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

----R. 4(b)(iv)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal against---Appellant who was appointed as PTC Teacher, was dismissed from service after more than five years of his appointment on ground that his appointment was made without merit and under political pressure and that his appointment was illegal and against government policy---Appellant, who was F.A. PTC, applied for post of P.T.C. in response to advertisement published in newspaper---Appellant was interviewed by Tehsil Recruitment Committee and was placed at Serial No.7 of merit list and was appointed on merits---Appellant was dismissed from service without issuing him show-cause notice and without holding regular inquiry against him---Impugned orders of dismissal from service were passed by Authority who was not competent to pass said orders---Said orders being nullity in the eye of law could not be maintained---Appeal against impugned orders was accepted and same were set aside and appellant was reinstated in service accordingly.

1993 SCMR 603 ref.

Asif Nazir Awan for Appellant.

Khadim Hussain Sindhu District Attorney for Respondents.

Date of hearing: 22nd April, 2002.

2005 P L C (C.S) 1549

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

ZAID SULTAN

Versus

EXECUTIVE DISTRICT OFFICER (AGRICULTURE), MULTAN and another

Appeal No.118 of 2005, decided on 10th May, 2005.

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

----S. 3---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Major penalty of 'dismissal from service was imposed on appellant after serving him with charge-sheet on allegation that his appointment was on divisional cadre and not on district cadre and that Recruitment Committee, who selected him was not authorized to do so---Validity---Appellant could not be blamed with said, act of the Authority as he had nothing to do with the same---Selecting appellant out of district was irregularity committed by Recruitment Committee and Authority who issued appointment orders were to bear the brunt---No allegation existed against appellant that he manipulated a domicile to gain entry in service---Appellant having been inducted in service as far back as 1993, it was too late to commence disciplinary proceedings against him after about 11 years to throw him out of service on ground that his entry in service was doubtful---Appointment of appellant by a wrongly constituted Recruitment Committee was not headache of appellant for which he could not be blamed---Once having admitted that appellant possessed requisite qualifications, he could not be penalized after his putting more than 10 years service without there being any allegation of misconduct---Impugned order passed against appellant was set aside and he was ordered to be reinstated in service with complete back benefits.

Collector Customs and Central Excise Peshawar and two others v. Abdul Waheed and 7 others 2004 SCMR 158 ref.

Asif Nazir Awan for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Taj Din, Superintendent, office of District Officer Agriculture (Extension) Multan, Departmental Representative.

Date of hearing: 10th May, 2005.

2005 P L C (C.S.) 189

[Sindh Service Tribunal]

Before Justice (Red.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member‑I and Nur Ahmad Shah Member‑II

NAZIR AHMED PANHWAR

Versus

GOVERNMENT OF SINDH through CHIEF SECRETARY SINDH, KARACHI and 3 others

Appeal No.26 of 2000, decided on 24th July, 2003

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

‑‑‑‑Ss. 5 & 10‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑­Posting and transfer‑‑‑Absorption‑‑‑Cancellation of‑‑‑Appeal‑‑‑Appellant initially was appointed in Sindh Sugar Corporation and when he was holding the charge of General Manager .of a Sugar Mill, he was transferred and posted as Deputy Secretary, Chief Minister Secretariat, on deputation‑‑‑From there, services of appellant were placed at the disposal of Agriculture Department for his absorption against the Post of Director (Admin) in BS‑19 in Sindh Seed Corporation‑‑‑Absorption having been cancelled appellant had filed appeal against said cancellation‑‑‑Post of Deputy Secretary to which appellant was transferred and posted on deputation, was post of BPS‑18‑‑‑Absorption of appellant who was in BPS‑18, against post of Director (Admin) in BPS‑19 in Sindh Seed Corporation could not be in order‑‑‑Being contrary to rules and principles of good governance, the absorption of appellant was a nullity in the eye of law and could have no legal effect‑‑‑Any right accrued by a void order was illegal and competent, Authority could at any time, undo it.

1992 PLC (C.S.) 1127; 1992 PLC 299; 1992 PLC (C.S.) 162; PLD 1969 SC 407; 2000 PLC (C.S.) 924; 1996 SCMR 1350; 1996 PLC (C. S.) 312.and 2001 PLC (C.S.) 533 ref.

(b) Void order‑‑‑

‑‑‑‑ Any right accrued by a void order, was no less illegal and competent Authority could undo it at anytime.

Ghulam Sarwar Chandio for appellant.

Chaudhary Muhammad Iqbal, A.A.G for Respondents.

Abdul Shabbir Shaikh for Respondent No.3.

Date of hearing: 17th March, 2003.

2005 P L C (C.S.) 203

[Sindh Service Tribunal]

Before Justice (Ret.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza Member‑I and Nur Ahmad Shah, Member‑II

JOHN HAIDER

Versus

DIRECTOR FOOD SINDH APPELLATE AUTHORITY and 2 others

Appeal No.68 of 2002, decided on 4th November, 2003.

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

‑‑‑‑Rr. 5(4)(1)(b)(iv) & 5‑‑‑Sindh Service Tribunal Act (XV of 1973), S. 4‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Appellant was dismissed from service after issuing show‑cause notice on allegation that he being Food Inspector purchased wheat beyond target and from the area other than prescribed centre in violation of Food Department's Policy‑‑‑Order passed against appellant was illegal, ab‑initio null and, void and coram non. judice as Deputy Director who had awarded major penalty of dismissal from service on the appellant had acted in dual capacity of "Authorized Officer" and the "Authority" ‑‑‑Authorized officer was competent to impose minor penalty, but was not competent to impose major penalty‑‑‑Under provisions of R. 5(4)(b) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 it was obligatory upon the Authorized Officer to forward the case to competent Authority along with his recommendation which exercise had not been undertaken‑‑­Order passed against appellant could not be sustained, in circumstances‑‑‑No material with regard to fixation of target of purchase of wheat for appellant had been produced and also nothing was on record to indicate if the appellant had purchased any wheat from other area‑‑‑In absence of any such incriminating material, merely on presumption and assumptions, appellant could not be held guilty‑‑‑Order of dismissal from service passed against appellant was set aside and he was directed to be re‑instated in service.

E.C. Pinto, for Appellant.

Tabassum Ghazanfar, A.‑A.G for Official Respondents.

Date of hearing: 23rd October, 2003.

2005 P L C (C.S.) 224

[Sindh Service Tribunal]

Before Justice (Rtd.) Abduct Ghani Shaikh, Chairman and Nur Ahmad Shah Member‑II

MUHAMMAD SOOMAR CHANDIO

Versus

INSPECTOR GENERAL OF POLICE CENTRAL POLICE OFFICE, SINDH, KARACHI and 2 others

Appeal No.75 of 2002, decided on 28th October, 2003.

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

‑‑‑‑Rr. 3 & 4‑‑‑Sindh Service Tribunal Act (XV of 1973), S. 4‑‑‑Major punishment of forfeiture of approved service for two years‑‑‑Appeal‑‑­Forfeiture of approved service for two years was imposed on appellant after issuing him show‑cause notice on ground that he submitted application for his transfer from Sindh Reserved Police to Regular Police, directly to Home Secretary in violation of rules‑‑‑As name of appellant was not among those Police Officers who were transferred as per Policy from Sindh Reserve Police to Regular Police, he started submitting applications to Authorities concerned for such transfer for his better future prospects‑‑‑Appellant having failed to get his grievance redressed, as a last resort approached highest Authority i.e. Home Secretary‑‑‑Service Conduct Rules being fully applicable to the appellant, he being Government servant, should have observed same in letter and spirit‑‑‑Appellant was definitely guilty of violation of rules in submitting application/appeal to higher Authority directly‑‑‑Act of appellant, however, could fall in the category of "mere irregularity" on his part and dial not amount to public misconduct and no guilty intention was on the part of appellant‑‑‑Keeping in view 14 years unblemished service record and there being first lapse on the part of appellant, punishment awarded to appellant was too harsh and, was not commensurate with the lapse committed by him‑‑‑Taking lenient view of appellant's mistake/lapse, punishment awarded to him was modified/converted to that of `stoppage of increment for one year without cumulative effect'.

Ghularn Sarwar Chandio for Appellant.

Mrs. Tabassum Ghazanfar, A. A.‑G. for Official Respondents.

Date of hearing: 13th August, 2003.

2005 P L C (C.S.) 251

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah Member‑II

NASIR KHAN

Versus

CHIEF SECRETARY TO GOVERNMENT OF SINDH KARACHI and 13 others

Appeal No. 128 of 2000, heard on 30th October, 2003.

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

‑‑‑‑S. 8‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Seniority‑‑­Claim for‑‑‑Appeal‑‑‑Appellant, who was a junior clerk, after passing Revenue Qualifying Examination and completion of mandatory Taluka training was posted to act as Mukhtiarkar on his own pay and scale against the 50% reserved quota of direct recruits‑‑‑Since appellant was not promoted on regular basis to the post of Mukhtiarkar, his name was rightly not included in the seniority list‑‑‑Besides, appellant's position being of junior clerk, he had no locus standi to challenge the said seniority list‑‑‑Appellant having not been discriminated, his appeal was dismissed.

Muhammad Ismail H. Khan for appellant.

Mrs. Tabassum Ghazanfar. A.A.G. for Official Respondents.

Date of hearing: 30th October, 2003.

2005 P L C (C.S.) 256

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah Member‑II

Dr. ASIF JAN

Versus

SECRETARY TO THE GOVERNMENT OF SINDH HEALTH DEPARTMENT and another

Appeal No. 191 of 2002, decided on 28th April, 2004.

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

‑‑‑‑Rr. 4(1)(b)(iii), 5, 6 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Removal from service‑‑‑Appeal to Service Tribunal‑‑­Appellant posted as Medico Legal Officer was removed from service on Allegation that he had issued an incorrect and fabricated medical certificate in respect of injury on a person who was medically examined by appellant‑‑‑Said serious allegation having been denied by appellant, it was imperative duty of the Authority to order for conducting full‑fledged regular inquiry, but instead of adopting a proper and legal course, a short cut procedure was adopted which was neither justified nor could be sustained‑‑‑Medical Board which had declared certificate issued by appellant as incorrect and fabricated had examined disputed injury after two and half months of the incident‑‑‑Possibility that injury in question was healed up, could not be ruled out‑‑‑Appellant was not allowed to participate in the meeting of the Medical Board to explain his position and Medical Board had not supplied copy of its report to appellant, either with show‑cause notice or with final show‑cause notice‑‑­Principles of natural justice had been violated and appellant was deprived of his right to defend himself properly‑‑‑Order of removal from service passed against appellant, otherwise by incompetent Authority, was set aside and appellant was directed to be reinstated in service.

(b) Civil service‑‑‑

----Inquiry proceedings‑‑‑Nature‑‑‑Inquiry proceedings were of judicial nature in which the presence of accused official was a must for the reason that Departmental inquiry was the first stage of judicial proceedings which must be conducted perfectly in accordance with the requirements and dictates of law and not whimsically‑‑‑In case of doubtful proceedings, the benefit would go to the official accused.

Khalid Naved v. Member, Administration and the Chairman, Pakistan Atomic Energy Commission, Islamabad 2000 PLC (C.S.) 857 and Federation of Pakistan v. Muhammad Azam Jawaid 1988 SCMR 158 ref.

M.M. Aqil Awan for appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.‑G. for Official respondents.

Date of hearing: 18th February, 2004.

2005 P L C (C.S.) 263

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Yosuf Ali Mirza, Member‑I and Nur Ahmad Khan, Member‑II

SARDAR AHMED SIYAL

Versus

GOVERNOR OF SINDH, KARACHI and another

Appeal No. 131 of 2002, decided 1st September, 2003.

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

‑‑‑‑Rr. 3, 4(1)(b)(iii), 5, 6 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Removal from service‑‑‑Appeal to Service Tribunal‑‑­Appellant was removed from service on allegations of misconduct after issuing him show‑cause notice, but without holding inquiry against him‑‑‑Even no preliminary/fact finding inquiry was conducted except that a questionnaire was given to him‑‑‑Appellant having vehemently denied allegation against him and having explained his position, it was incumbent upon the Authority to order for conducting regular inquiry as case against the appellant was not of adopting shortest procedure of issuance of show‑cause/final show‑cause notice‑‑‑In order to put a blot on appellant's long unblemished service career of 36 years, Authority had adopted an altogether different method by directing appellant to answer a questionnaire which method was not warranted, by law‑‑‑Ends of justice, in circumstances, would have served if a proper inquiry prescribed in R. 6 of Sindh Civil Servants (Efficiency and Discipline) Rules, was conducted‑‑‑Decision of the Authority to adopt a shorter procedure was wholly unjustified and unsustainable which had rendered order passed against the appellant unlawful and ultra vires‑‑‑Besides, the material placed on record, by no stretch of imagination implicated appellant with charges leveled against him in the show‑cause notice‑‑‑Order of removal from service passed against appellant was set aside and he was reinstated in service.

Shakeel Ahmed v. Commandant 502 Central Workshop E.M.E. Rawalpindi and another 1998 PLC (C.S.) 1338 and Jan Muhammad v. General Manager Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 ref.

(b) Civil service‑‑‑

‑‑‑‑ Holding of regular inquiry‑‑‑Authorised Officer, no doubt had discretion to decide whether in disciplinary proceedings against a civil servant in response to his reply to the charge‑sheet, a regular inquiry should be held or not, but that was to be exercised in exceptional circumstances‑‑‑Said discretion was not controlled by any pre‑condition or guideline, such discretion like all other discretions, was to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny civil servant the right of fair defence‑‑‑If the charge was founded on admitted documents/ facts, no full‑fledged inquiry was required, but if the charge was based on disputed question of fact, civil servant could not be denied regular inquiry as same could not be resolved without recording evidence and providing opportunity to the parties to cross‑examine the witness‑‑‑If findings of fact, in such a matter, were recorded without recording any evidence, same would be based on surmises and conjectures, which would have no evidentiary value as to warrant imposition of any punishment on civil servant.

Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD .1994 SC 222; Deputy Inspector General of Police, Lahore and others v. Anis‑ur­-Rehman Khan PLD 1985 SC 134; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 1440; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S) 869; Basharat Ali v. Director Excise and Taxation, Lahore and others, 1997 SCMR 1543 and The Secretary, Govt, of the Punjab through Secretary, Health Department, Lahore and others v. Riaz‑ur‑Haque, 1997 SCMR 1552 ref.

Appellant in person.

Ch. Muhammad Iqbal, Asst. A.‑G. for Respondents. No.1.

Date of hearing: 3rd July, 2003.

2005 P L C (C.S.) 288

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member‑II

MIR MUHAMMAD

Versus

GOVERNOR SINDH/CHANCELLOR SHAH ABDUL LATIF UNIVERSITY, GOVERNOR HOUSE KARACHI and 3 others

Appeal No. 170 of 2002, decided on 21st June, 2004.

Shah Abdul Latif University Efficiency and Discipline Statutes, 1987‑‑‑--

‑‑‑‑S.5(b)(iii)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Termination of services‑‑‑Appeal‑‑‑Services of appellant were terminated on account of misconduct and indiscipline after charge‑sheeting him‑‑­Appellant was called by Enquiry Committee four times, but he never appeared before the same‑‑‑Enquiry Committee, in such situation had to administer a warning to appellant and after recording a finding to that effect, had to proceed with enquiry ex parte by recording statements of witnesses in support of charges leveled against appellant‑‑‑After evaluating and assessing same, Enquiry Committee was supposed to determine the guilt or otherwise of appellant and submit its recommendations to Syndicate for further needful, but same was not done‑‑‑Neither any warning was administered to appellant nor statements were recorded nor Committee had determined the guilt of appellant‑‑‑Committee had simply referred matter to Syndicate for further. necessary action‑‑‑Matter, in circumstances was remanded for initiation oh fresh disciplinary proceedings against appellant purely in accordance with law after providing every reasonable opportunity to appellant to defend himself‑‑‑Appellant would be reinstated, but he was to remain under suspension during enquiry proceedings.

Mazhar Ali B. Chohan, for Appellant.

Tabassum Ghazanfar, Asst. A.G. for Respondent No. 1.

Shabbir Ahmad Awan, for Respondents Nos.2, 3 and 4.

Date of hearing: 13th April, 2004.

2005 P L C (C.S.) 295

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member‑I and Nur Ahmad Shah, Member‑II

Syed AYAZ HUSSAIN

Versus

CHIEF SECRETARY/APPELLATE AUTHORITY and 3 others

Appeal No. 104 of 2003, decided on 29th June, 2004.

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

‑‑‑‑S.9‑‑‑Sindh Service Tribunals Act (XV of 1973), 5.4‑‑‑Promotion‑‑­Entitlement‑‑‑Appeal before Service Tribunal‑‑‑Respondent, despite being junior to appellant was promoted and appellant was ignored for the sole reason that he earned adverse remarks in his Annual Confidential Report for the relevant year‑‑‑Said adverse remarks communicated to appellant, had already been expunged by Authority concerned during pendency of appeal filed by appellant‑‑‑Very basis on which appellant was deferred by Departmental Promotion Committee, having disappeared, case of appellant was remitted to Departmental Promotion Committee for reconsideration afresh for promotion, in accordance with law.

Rauf Ahmad v. Govt. of Punjab and others, 1984 PLC (C. S.) 207 ref.

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

‑‑‑‑S.9‑‑‑Promotion‑‑‑Effect of adverse remarks‑‑‑On date when meeting of Departmental Promotion Committee was held to consider promotion alleged adverse remarks against employee, were not communicated to employee, but were communicated later on‑‑‑Decision of Departmental Promotion Committee superseding employee for promotion despite being senior to co‑employee who was considered and promoted, was patently wrong, rather illegal and was not in accordance with law‑‑‑If adverse remarks were not communicated or if so communicated, there was no, record of their having been communicated and acknowledged by concerned officer, such adverse remarks should be ignored and could not be taken into consideration to decline promotion.

Muhammad Farooq v. The Province of Punjab and others, PLD 1987 SC 271 ref.

Ansari Abdul Lateef, for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.G. for Respondents.

Date of hearing: 15th June, 2004.

JUDGMENT

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN)--------­Briefly stated, the facts of present appeal are that appellant was appointed as Inspector (B‑14) in Refrigeration and Air‑Conditioning Technology in April, 1990 by Labour and Manpower Department. In a, seniority list as stood on 31‑12‑2000 (circulated in June, 2001) appellant's name was at Serial No.4 while the name of private Respondent No.1 was at Serial No.5. In April 2003, meeting of the Departmental Promotion Committee was convened, which recommended three of appellant's senior so also private Respondent No.4 who was junior to appellant for promotion to the post of Senior Instructor (B‑16) while appellant was ignored. Such notification was issued on 22‑4‑2003, which the appellant challenged in his departmental representation but no final decision, was taken within stipulated period. Hence, this appeal.

1. Heard learned counsel for the parties and perused the record.

2. The sole reason for non‑consideration the appellant's name for promotion was that he earned adverse remarks in his Annual Confidential Report for the year, 2000. The said adverse remarks communicated to the appellant through letter dated 17‑5‑2003, an appellant's representation has already been expunged by Respondent No.3 during the pendency of this appeal as per letter dated 10‑10‑2003 placed on record by official respondents. Therefore, the very basis on which appellant was deferred by the Departmental Promotion Committee, has disappeared. In a case of Rauf Ahmad v. Govt. of Punjab and others, 1984 PLC (C.S.) 207, it has been held that the material on the basis of which officer was superseded when no longer existed, supersession must go.

3. It is pertinent to mention here that meeting of Departmental Promotion Committee was held in the month of April, 2003 and admittedly by that date adverse remarks were not communicated to him which were later communicated through letter dated 17‑5‑2003, therefore, the decision of the Departmental Committee superseding appellant was patently wrong rather illegal and was not in accordance with law. In the case of Muhammad Farooq v. The Province of Punjab and others, PLD 1987 SC 271, it was held that if the adverse remarks, are not communicated or if so communicated, there is no record of their having been communicated and acknowledged by the concerned officer such adverse remarks should be ignored and could not be taken into consideration to decline promotion.

4. For the foregoing reasons, the appeal is accepted and the case is remitted to the Departmental Promotion Committee for the Directorate of Manpower and Training for re‑consideration of appellant's case afresh for promotion to B‑16 in accordance with law and the observations made hereinabove. No order as to costs.

5. Announced in open Court.

H.B.T./29/KST Appeal accepted.

2005 P L C (C.S.) 298

[Sindh Service Tribunal]

Before Justice (Recd.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member‑I and Nur Ahmad Shah, Member‑II.

MUHAMMAD URIS KHASKHELI

Versus

SINDH AGRICULTURE UNIVERSITY and 2 others

Appeal No.237 of, 2002, decided on 24th November, 2003.

Civil Service‑‑‑

‑‑‑‑Age of civil servant‑‑‑Determination of‑‑‑Crux of the matter in the case was the employee's actual date of birth‑‑‑Safest evidence for determining date of birth was an entry in the Municipal or Village Council record or a certificate issued by Primary School, but none of said documents was available to determine age of employee‑‑‑Another source for determination of age was the certificate of employee's passing of Matriculation Examination, but in the case of employee two certificates were issued by the Board of Intermediate and Secondary Education, one showing date of birth as 22‑7‑1942 and other showing his date of birth as 22‑7‑1948 and it was not understandable as to why Board had issued two certificates indicating different dates of birth in less than a week‑‑‑Both employee and Authority had come out with counter documentary evidence in support of their contentions‑‑‑On queries from the University Authorities, the Board of Intermediate and Secondary Education, in their separate communications, had confirmed 22‑7‑1948 as a correct date of birth of employee‑‑‑Birth certificate issued by the said Board earlier had also given 22‑7‑1948 as date in question‑‑­Preponderance of documentary and circumstantial, evidence, had supported claim of employee that his actual date of birth was 22‑7‑1948‑‑‑Said date was held to be correct date of birth of employee.

Abdul Sattar Mughal for appellant.

Syed Haroon Rashid for Respondents.

Date of hearing: 1st July, 2003.

JUDGMENT

NUR AHMAD SHAH (MEMBER‑II).‑‑‑This is an appeal under section 4 of the Sindh Service Tribunal Act, 1973. The facts are: The appellant joined the Sindh Agriculture University (SAU), Tando Jam as Research Investigator in 1974. Promoted as Assistant Engineer in 1975, he remained as such till his appointment as Lecturer (BS‑17), in the same University on 5‑3‑1981. He became Assistant Professor in 1987 and was along with others upgraded as Associate Professor (BS‑19) in 1996. He refused, so he says, to oblige the respondent No.3 (V.C., SAU) to seek premature retirement so that the latter could get his son promoted as. Associate Professor in his place. This, he continues, annoyed the Vice ­Chancellor. On 21‑6‑2001, the appellant was served with a notice for retirement w.e.f. 21‑7‑2002 on his attaining superannuation. His plea for seeking rectification in the date of his birth which, according to him, was 22‑7‑1948, was rejected. His review application before the University Syndicate did not bear fruit. Resultantly he was retired on 21‑7‑2002. Against this, he went in appeal before the Chancellor SAU but it remained undecided within 90 days which gave him a cause for the present appeal. The respondents in their written statement, accuse the appellant with suppression of material facts besides interpolation and forgery in the date of his birth and state that the appeal is an attempt, on his part, to circumvent criminal proceedings pending against him with the Anti‑Corruption Establishment (ACE).

1. Heard Mr. Abdul Sattar Mughal for the appellant and Syed Haroon Rashid for the respondents. Both the counsel have reiterated their position in the memo. of appeal and the written statement respectively. Perused the record.

2. The respondents have questioned the maintainability of the appeal on the ground that the appellant has had his claims against the University cleared and paid. This, they maintain, should close the chapter. The appellant was served with notice for retirement on 21‑6‑2001. He challenged it on 7‑7‑2001 and kept on pursuing the matter with the University authorities. When, however, he failed to get the relief he, on the eve of the expiry of retirement notice viz on 20‑6‑2002 and again on 18‑7‑2002, moved the University authorities for the clearance of his claims. This could not and should not estop him from agitating against what, he felt, was his unjust retirement. The appeal is, therefore, quite in order.

3. The respondent's other objection to the appeal is that rectification of, change of date of birth after two years of an employee's joining the service is not admissible under rule No. 171 of Sindh Civil Services Rule Manual Volumes I and II. The rule is reproduced below:

"Officers competent to alter dates of birth should see that no change in the date of birth which will be to the advantage of the Government servant concerned is allowed unless an application In that behalf is made by the Government servant concerned within two years of the date on which his service book was opened under Sindh Civil Services rule 167. All cases in which applications are made after the period of two years referred to above should be submitted to Government for orders. The date of birth is to be verified with reference to documentary evidence and a certificate into be recorded to that effect stating the nature of the document relied on as required under rule 171. A change in the date of birth should not, therefore, be allowed on the evidence which could be available to a Government servant when he entered Government service and his date of birth was recorded in the service book".

As evidenced in its plain reading, the said rule does not preclude a change in a civil servant's date of birth beyond two years of his induction in service. It merely defines the competence of officers dealing with the matters relating to the alteration in the employee's date of birth. It is, however, not the case of the invocation of the said rule inasmuch as there is no initiative or request from the appellant for seeking alteration in the date of his‑birth. It was only when he was served with the notice for retirement that he intimated the University authorities about what he claimed as his correct date of birth. The rejection of his plea led to this appeal.

1. The crux of the matter is the appellant's actual date of birth. The safest evidence for determining date of birth is an entry in the Municipal or Village Council record or a certificate issued by one's Primary School. None of these documents is available in the instant case. For an employee, like the appellant, an equally important document for age is his seniority list. The appellant is on the teaching staff of the Agriculture University, Tando Jam since 1974 but, strangely enough, no seniority list is available on the record. Even the respondents have failed to produce it along with their written statement or during the course of arguments. The appellant has produced two papers which he claims to be from the seniority list and which indicate his date of birth as 22‑7‑1948. These papers are neither titled nor signed, nor even dated and so, cannot be relied upon.

2. Another source of age manifestation could be the certificate of the appellant's passing the Matriculation Examination. Here the difficulty arises from the existence of the two certificates issued in the name of the appellant by the Board of Intermediate and Secondary Education, Hyderabad. One bearing No.5767 from Book No.58 issued on 3‑8‑1966 gives his, date of birth as 22‑7‑1942. The other which is marked duplicated bearing No.12838 from Book No.129 issued on 9‑8‑1966 gives the date as 22‑7‑1948. It is not understood as to why the Board issued two certificates indicating different dates of birth in less than a week. It, however, owns both the certificates.

3. It is an admitted position that the appellant was initially appointed in the Research Project in 1974 in the Agriculture College, Tando Jam before it was upgraded to the University. He was subsequently appointed as. Lecturer in the Agriculture University in March, 1981 and then selected as Assistant‑Professor (BS‑18) in the same University in November, 1987. In his application for the post of Lecturer in January, 1981 he indicated his date of birth as 22‑7‑1948. The respondents have neither accepted nor denied this application. They have, however, come out with another application for the same post purportedly received by them from the appellant on 18‑8‑1973. The application, it would be important to mention, is addressed to the Principal Agriculture College, Tando Jam meaning thereby that the University had not, till then, come into being: The appellant even according to the respondents, was appointed as Lecturer in March, 1981. Thus, the application dated as it is 18‑8‑1973 cannot be linked with his appointment as Lecturer in 1981.

4. There is no mention of his birth date in the appellant's above application. The Secondary School Certificate which is said to have accompanied the application shows it as 22‑7‑1942. The certificate is not in the prescribed format. It is simply a typed version which is attested p but the date of attestation is not legible. Besides, as mentioned earlier, we have on record another Secondary School Certificate issued in the name of the appellant by the same Board showing him to have been born on 22‑7‑1948. There is, thus, a question mark against 22‑7‑1942 as the appellant's birth date.

5. The appellant was appointed Assistant Professor in November, 1987. He has not produced a copy of his application for the said post. The one produced by the respondents show the appellant to have been born on 22‑7‑1942. It is typed and is not signed by the appellant and so not much credence can be given to it.

6. One of the grounds for serving the appellant with the notice of retirement is the respondent's reliance on his application for the post of Associate Professor. He made the application on 4‑8‑1990 and mentioned 22‑7‑1948 as his birth date. The respondents have also produced a copy of his application dated 4‑8‑1990 and the date of his birth indicated in it is 22‑7‑1942. In fact the two applications are not the exact copies of each other. Written in different hands the applications are ridden with discrepancies in material entries. The appellant submitted another application for the same post of Associate Professor in 1995 and in that, too, he gave 22‑7‑1448 as the date of his birth.

7. It is the case of the respondents that in his ACRs for the year 1983, 1984, 1985, 1986, 1987, 1988 and 1989, the appellant has given the date of his birth as 22‑7‑1942. We had called for the said ACRs in original. On examination, the entries relating to the date of birth were found to be tampered with. An ink removing fluid seems to have been used. The respondent's plea that the date of birth was highlighted for the purpose of enquiry for fraud against the appellant for which they had referred the matter to the Anti‑Corruption Establishment (ACE) seems to be untenable. There is no, indication of the use of highlighter. This suggests the interpolation of age by scrubbing the original entries.

8. The other ground for serving the appellant with the notice for retirement is a certificate issued to him by the Pakistan Engineering Council (PEC). The Council first registered the appellant on 22‑1‑1987 and issued a Certificate No.26724 to this effect, and in it the date of his birth was given as 22‑7‑1942. On his request on 27‑5‑2002, the Council issued him a duplicate Registration Certificate No.79429 altering his date of birth to 22‑7‑1948. In its letter to the Deputy Registrar Agriculture University Tando Jam, the Council explained that the birth date was changed on the basis of documentary evidence produced by the appellant.

9. The old National Identity Card Number (NICN) reflects a card holder's year of birth. The appellant's NIC shows it as 48 in the appropriate space. This substantiates his contention that he was born in 1948. This, in fact, is the year shown in the NICN given in all the appellant's documents produced by the respondents.

10. The applicant passed the Matriculation Examination in 1964 and did B.Sc (Hones) in 1969. If his date of birth is taken as July, 1942, he would matriculate at the age of 22 and graduate when 27. At the date of birth in July, 1948, He would clear matriculation at the age of 16 and graduation at 21 which is normal and therefore, more plausible.

11. The respondents and the appellant have come out with counter ­documentary evidence in support of their contentions. The University authorities charged the appellant to have tampered with the documents relating to his age. They referred the matter to the Police and the ACE, Hyderabad recommending prosecution against the appellant for fraud and forgery.

12. On queries from the University authorities and the ACE Hyderabad, the Board of Intermediate and Secondary Education, Hyderabad, in its separate communications No.BISE/SECRET/PC‑1020 dated 29‑3‑2001 and No.BISE/SECRET/PC‑1530 dated 23‑7‑2001 to the University, and No.BISE/SECRET/PC‑10 to the ACE, confirmed 22‑7‑1948 as a correct date of appellant's birth. The birth certificate No.001628 issued by the Board in November, 1997 also gives 22‑7‑1948 as the date in question. This should have clinched the issue. 'The ACE, Hyderabad in fact, cleared the appellant of any criminal liability.

13. A preponderance of documentary and circumstantial evidence discussed above supports the appellant's claim that the actual date of his birth is 22‑7‑1948. We are, thus, constrained to hold that the appellant's correct date of birth is twenty second July one thousand, nine hundred forty eight (22‑7‑1948). The appeal is, thus, allowed. The impugned order dated 5‑7‑2002 is set aside.

H.B.T./16/KST Appeal allowed

2005 P L C (C.S.) 311

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, and Nur Ahmad Shah Member‑II

ABDUL KAREEM SAHITO

Versus

SAZDA through Director‑General and 3 others

Appeal No. 162 of 2002, decided on 31st March, 2004.

Sindh Arid Zone Development Authority Employees (Efficiency and Discipline) Rules, 1990‑‑‑--

‑‑‑‑Rr. 1(3)(ii), (iii) & 6(4)‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Removal from service‑‑‑Appeal to Service Tribunal ‑‑‑Appellant was removed from service after issuing him show‑cause notice on account of certain serious allegations of misconduct' which although were denied by appellant but no regular inquiry was conducted against him‑‑‑Inquiries referred in original removal order, were fact finding inquiries wherein at no stage appellant was associated which under the law could not be made the basis forawarding major penalty to appellant‑‑‑Besides, neither copies of said inquiry reports were supplied to appellant nor any final show‑cause notice was issued to him, which had vitiated whole departmental proceedings‑‑‑Director‑General in the present case, had acted in dual capacity of Authorized Officer' andAuthority' in violation of Sindh Arid Zone Development Authority Employees (Efficiency and Discipline) Rules, 1990‑‑‑Not only said mandatory Rules were violated while initiating disciplinary proceedings against appellant, but even second/final show‑cause notice was also not issued to appellant while imposing major penalty on him‑‑‑Whole disciplinary proceedings as well as penalty imposed on appellant being illegal, without lawful authority and coram non judice, were not sustainable‑‑‑On merits too, as it appeared from the record nothing adverse was against the appellant‑‑‑Accepting appeal, order of removal from service passed against appellant was set aside and he was directed to be reinstated in service.

PLD 1964 SC 64; 1999 SCMR 1311 and 2002 PLC C.S.) 1349 ref.

Ansari Abdul Lateef for Appellant.

Mrs. Tabassum Ghazanfar A.A.‑G. for Respondents.

Date of hearing: 15th October, 2003.

2005 P L C (C.S.) 321

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza, Member‑I and Nur Ahmad Shah, Mamber‑II

QAMRUDDIN RAZA

Versus

THE PROVINCE OF SINDH through Chief Secretary to Government of Sindh, Karachi and another

Appeal No.56 of 2002, decided on 14th April, 2004.

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

‑‑‑‑S. 9‑‑‑Sindh Service Tribunal Act (XV of 1973), S. 4‑‑‑Sindh Service Tribunal (Procedure) Rules, 1974, R. 25‑‑‑Promotion‑‑‑Entitlement‑‑­Appeal to Service Tribunal‑‑‑Appellant was senior most Prosecuting Deputy Superintendent of Police and three posts of Superintendent of Police to be filled from among the P.D.S.Ps, were lying vacant‑‑‑In order to fill said posts, Inspector General of Police, referred cases of six. P.D.S.Ps to the Governor for consideration of their promotion and name of appellant was on the top of the list‑‑‑Provincial Selection Board recommended name of appellant and two others for their promotion to the post of Superintendent of Police and such summary was floated to the Governor who declined to accord approval for appellant's promotion with the remarks that "Time had passed, not approved" ‑‑‑Name of appellant was twice referred for promotion on basis of seniority‑cum­-fitness, but for no fault of appellant the meeting of Provincial Selection Board was not convened at proper time‑‑‑No impediment was in the way of promotion of appellant except that the summary which was floated to the Governor/competent Authority, was placed before him too late‑‑­Meanwhile appellant was retired from service on attaining the age of superannuation ‑‑‑Governor/competent Authority declined to, accord approval for promotion of appellant solely on the ground that he was retired from service by the time the Summary was placed before the Governor‑‑‑Late meetings of Provincial Selection Committee and late placement of appellant's summary before Governor, were not valid grounds to deprive appellant from being promoted to the rank of Superintendent of Police‑‑‑There must be some plausible and convincing reason for refusal to accord approval‑‑‑Appellant could, not be made to suffer on account of inaction, omission or error on the part of departmental functionaries in late convening the meeting of Provincial Selection Board coupled with late placement of summary before Authority competent to accord approval‑‑­Appellant should have been allowed pro forma promotion from the date his next junior was promoted to entitle him to financial benefits which would have accrued to him if he would have been promoted alongwith his batch‑mates.

[Majority View‑‑‑Noor Ahmad Shah (Member) Dissented)].

Iftikharullah Malhi v. Chief Secretary, Sindh and another 1998 SCMR 736; Haji Ahmed v. Secretary, Establishment Division and others 1998 PLC (C.S) 958; Walayat Ali Mir v. Pakistan International Airlines Corporation 1995 SCMR 650 and M. Umar Khan Muhammad v. Federation of Pakistan and 2 others, PLJ 1997 Tr.C. (Services) 244 ref.

(b) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Civil servant could not claim promotion as a matter of right unless it conformed to the prescribed parameters and was routed through the laid down procedure‑‑‑Besides possessing eligibility, civil, servant should, in normal circumstances, be available to hold a promotion post.

Abdul Ghaffar Khan for appellant.

Mrs. Tabassum Ghazanfar, A.A.‑G. for Official Respondents.

Date of hearing: 7th January, 2004.

2005 P L C (C.S.) 349

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman and Yosuf Ali Mirza, Member‑I

INAYATULLAH

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE ESTATE LANDS, EXCISE AND TAXATION), LARAKANA and 3 others

Appeal No.208 of 2000, decided on 7th May, 2004.

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

‑‑‑‑Rr. 3, 4(1)(b)(iv), 5‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Dismissal from service‑‑‑Appeal‑‑‑Appellant was dismissed from service after issuing him show.‑cause notice, but without holding regular inquiry against him on allegation that claim files of urban and rural landed properties and register of urban properties in his possession were found missing‑‑‑Allegation against appellant was very serious which required thorough probe through impartial and independent inquiry in view of total denial of appellant, but no such exercise was undertaken in the case‑‑‑Appellant, in circumstances was deprived of right to defend himself‑‑‑In view of serious nature of allegation against appellant and his denial thereto regular inquiry could not be dispensed with‑‑‑Initial burden was on the Authority to prove charge against appellant, which could not be done without producing evidence‑‑‑Besides, the first and final show‑cause notices were issued by Deputy Commissioner to appellant in the capacity of `Authorized Officer‑‑‑Deputy Commissioner, legally was not competent to impose/award major penalty of dismissal from service on appellant‑‑‑Such order of dismissal of appellant was nullity in the eye of law, coram non judice and in excess of the powers‑‑All missing files and registers had been traced during pendency of appeal, which had established that earlier exercise of tracing of said missing record was undertaken in a cursory manner‑‑‑Order dismissing appellant from service being opposed to the facts, illegal, ab initio null and void, was set aside and appellant was directed to be reinstated in service with all back and consequential benefits.

Ilahi Bux Kehar for appellant.

Tabassum Ghazanfar, Asstt. A.‑G. and Muhammad Ali Shaikh E. D. O. Revenue for Respondents.

Date of hearing: 7th February, 2004.

2005 P L C (C.S.) 354

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Yosuf Ali Mirza, Member-I and Nur Ahmad Shah, Member‑II

CHANGIAL SHAH

Versus

THE SECRETARY TO GOVERNMENT OF SINDH FOOD DEPARTMENT and another

Appeal No. 14 of 2001, decided on 24th July, 2003.

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

‑‑‑‑Rr. 3, 4(1)(b)(iii) & 5‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Removal from service‑‑‑Appeal‑‑‑Appellant was removed from service after issuing him show‑cause notice and charge‑sheeting him on allegations of misconduct and negligence; but without holding full‑fledged regular inquiry against him‑‑‑Authorized Officer had recommended major penalty of "reduction in rank for a period of, six months" against appellant‑‑‑Authority, however, did not agree with recommendation of Authorised Officer and awarded major penalty of `removal from service'‑‑‑Authority was supposed to act fairly and in a manner which did.‑not violate the principles of natural justice‑‑‑Though both the penalties "reduction in rank" and "removal from service" were major, but penalty of removal from service was more harsh than reduction in rank and if Authority intended to impose penalty harsher than one recommended by Authorised Officer, it had to issue notice to appellant to enable him to explain his point of view, but that was not done in the present case‑‑‑As allegations of serious nature were leveled against appellant it was not a case of adopting summary procedure, but holding of a regular inquiry was necessary‑‑‑Appellant having denied allegations against him, the procedure adopted in holding preliminary enquiry and dispensing with regular inquiry, was not warranted by law and was contrary to law‑‑‑Order removing appellant from service, was set aside in circumstances and appellant was directed to be re‑instated in service.

1990 PLC (C.S.) 313; 1996 SCMR 240; 1997 SCMR 1.543; 2001 SCMR 1566; 2000 PLC (C.S.) 1252; 1992 PLC (C.S.) 1199; Nawab Khan v. Government of Pakistan PLD 1.994 SC 222 and Abdul Qayum v. D.C. Project Management Organization, JS HQ Rawalpindi and 2 others 2003 PLC (C.S.) 353 ref.

M. M. Aqil Awan for Appellant.

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

Date of hearing: 27th May, 2003.

2005 P L C (C. S.) 390

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Yousuf Ali Mirza and Nur Ahmed Shah, Members.

Syed SAHIB SHAH

Versus

GOVERNMENT OF SINDH through Secretary Home Department and others

Appeal No.29 of 2003, decided on 16th August, 2004.

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

‑‑‑‑S.9‑A‑‑‑Sindh Service Tribunal Act (XV of 1973), S.4‑‑‑Police Rules, 1934, R.13.1‑‑Out of turn promotion‑‑‑Entitlement‑‑‑Appeal to Service Tribunal‑‑‑Appellant initially was appointed as Assistant Sub­-Inspector of Police, was promoted as officiating Sub‑inspector of Police and was confirmed as such‑‑‑Subsequently on account of meritorious service/gallantry act performed by the appellant in an encounter in which one notorious dacoit was killed and one Klashnikov along with 50 rounds were recovered, appellant was promoted out of turn to rank of Inspector on temporary basis‑‑‑After about‑one year appellant and others, were reverted to their substantive rank of Sub‑Inspector‑‑‑Appellant was promoted on seniority basis to rank of Inspector‑‑‑Subsequently Authority contended that out of turn promotion of appellant and others was recalled in pursuance of judgment passed by Service Tribunal duly upheld by Supreme Court and that out of turn/accelerated .promotion were in violation of Police Rules, 1934‑‑‑Validity‑‑‑Authority had mis­interpreted judgment relied upon by it as in the said judgment question of out of turn confirmation was under consideration and it was held that out of turn confirmation was not permissible under Rules‑‑‑Promotion and confirmation were entirely two different things which were achieved by satisfaction of different conditions‑‑‑While referring to R.13.1 of Police Rules, 1934, it was observed in the present case, that it dealt with promotion from one rank to another or from one grade to other in same rank in Police force and it was, however, possible as envisaged in R.13.1 of Police Rules, 1934, to make out of turn promotions from the date of performance of gallantry act‑‑‑Large number of police officers/officials were promoted out of turn on account of rendering meritorious service and performance of gallantry act‑‑‑Even otherwise out of turn promotion on basis of gallantry act was also permissible under S.9‑A of Sindh Civil Servants Act, 1973‑‑‑Order reverting appellant to his substantive rank of Sub‑Inspector from rank of Inspector to which he was promoted on account of his meritorious service/gallantry act, was set aside.

Anwar Muhammad v. General Manager Pakistan Railways Lahore and another 1995 PLC (C.S.) 803; Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287; Messrs M.S. Tariq and others v. Government of Sindh and others 1992 PLC (C.S.) 43; Chief Secretary, Government of Punjab. Lahore and others v. Raja Mumtaz Ahmed, Superintendent of Police. CIA Staff. Rawalpindi, 1995 PLC (C.S.) 1140 and 1992 PLC 1029 ref.

Shabir Ahmed Awan for Appellant.

Mrs. Tabasum Ghazanfar, Assistant A.‑G. for Respondents.

Date of hearing: 7th June, 2004.

2005 P L C (C.S.) 395

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman Yousaf Ali Mirza Member (I) and Nur Ahmed Shah, Member (II)

NOOR MUHAMMAD

Versus

SECRETARY, LOCAL GOVERNMENT PUBLIC HEALTH ENGINEERING RURAL GOVERNMENT AND KATCHI ABADIES DEPARTMENT, GOVERNMENT OF SINDH, and 2 others

Appeal No.211 of 2001, decided on 14th November, 2003.

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

‑‑‑S. 9‑‑‑Sindh Service Tribunal: Act (XV of 1973), S. 4‑‑‑Promotion‑‑­Withdrawal of order of promotion‑‑‑Appeal to Service Tribunal‑‑­Appellant had filed appeal challenging order of withdrawal of his promotion by Authority‑‑‑Post of Assistant Director BS‑17 Parks and Recreation Department, District Corporation, was transferred to Advertisement Department with change of nomenclature as Deputy Director, Advertisement BS‑17 and in lieu thereof post of Assistant Director Advertisement Department BS‑16 was transferred to Park and Recreation Department‑‑‑On account of said administrative change, appellant was promoted from the post of Assistant Director, Advertisement BS‑16 to that of Deputy Director Advertisement BS‑17 but subsequently said order of promotion of appellant was cancelled/withdrawn and appellant had filed appeal against said withdrawal‑‑‑Claim of appellant was that his promotion having attained finality, order of promotion could not be withdrawn‑‑‑Local Government Department in the present "case had directed District Municipal Corporation to assign charge of the post of Advertisement Officer BS‑17 to any other officer .of Department holding, the post of BS‑17‑‑Nothing was in the said letter that appellant who was working against the post of BS‑16, could be assigned the, post of Advertisement Officer BS‑17‑‑­Order of promotion of appellant based upon the false, fabricated and manipulated letter of Government was rightly and legally withdrawn through another order‑‑‑Rights which had been acquired in an illegal manner could not be termed to be vested rights to attract the rule of locus poenitentiae.

(b) Locus poenitentiae, principle of‑‑‑

‑‑‑‑Applicability‑‑‑Rule of Locus Poenitentiae would not be applicable in a case in which the basic order was illegal.

The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Ardeshir Cowasjee v. Karachi Building Control Authority (KBCA), 1999 SCMR 2883; Abdul Haque Indhar v. Province of Sindh, 2000 SCMR 907 and Muhammad Hussain Shaikh and others v. University of Sindh and others 2002 PLC (C.S) 696 ref.

Ghulam Mustafa Lakho for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.‑G, for Respondent No. 1.

Shahzad Nawab, for Respondents Nos.2 and 3.

Date of hearing: 27th October, 2003.

2005 P L C (C. S.) 403

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah Member-II

MOHIB K. HABIB

Versus

THE PROVINCE OF SINDH through Chief Secretary, Government of Sindh and another

Appeal No.253 of 2002, decided on 7th May, 2004.

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

‑‑‑‑Rr. 3, 4(1)(b)(iii), 5 & 10‑A‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Removal from service‑‑‑Appeal‑‑‑Appellant along with others was found lacking in maintaining registers, files and other forms in proper shape and was served with a show‑cause notice for misconduct‑‑‑Inquiry Officer held appellant guilty of charges levelled against him and Authorized Officer recommended penalty of reduction in the time scale for a period of two years, but the Governor, invoking R. 10‑A of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 inflicted upon appellant enhanced punishment of removal from service‑‑‑Two of the co‑appellants who too were charged with similar lapses had been reinstated during pendency of appeal‑‑‑Appellant deserved same treatment under the principles of consistency‑‑‑Witnesses were not examined in presence of appellant and appellant was also not allowed opportunity of cross‑examination‑‑‑That had left little justification, if any, for the maintenance of, punishment awarded to appellant and sustainability of said punishment, in view of facts and circumstances of the case, would be contrary to the dictates of justice and equity‑‑‑Order of removal from service passed against appellant was rescinded and he was reinstated in service.

2003 PLC (C.S.) 1252; 1986 SCMR 1875; 2004 PLC (C.S.) 369 and 1995 SCMR 723 ref.

M. L. Shahani for Appellant.

Mrs. Tabassum Ghazanfar, A.A.‑G. for Official Respondents.

Date of hearing: 14th April, 2004.

2005 P L C (C.S.) 411

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member‑II

NOOR ALAM

Versus

INSPECTOR‑GENERAL OF POLICE, SINDH KARACHI and 2 others

Appeal No.235 of 2002, decided on 4th May, 2004.

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

‑‑‑‑Rr. 7(i)(a)(b), 9(b)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Dismissal from service‑‑-Appeal‑‑‑Appellant serving as, constable was dismissed from service after serving him charge-sheet on charge of receiving bribe and registration of false case against a person‑‑‑Appellant was required to submit his reply within 7 days, but Authority, without waiting for the reply of appellant, dismissed him from service on the very next day of service of charge‑sheet on the appellant‑‑‑Appellant, in circumstances was dismissed from service without affording him any opportunity of showing cause and defend himself in purported exercise of powers under R. 9(b) of Sindh Police (Efficiency and Discipline Rules, 1988‑‑‑Provisions of R. 9(b) of Sindh Police (Efficiency and Discipline) Rules, 1988 could be availed only if it was not reasonably practicable to give accused an‑opportunity of showing cause, but in the present case it was practicable to give appellant an opportunity of showing cause as in earlier proceedings against him, he was also served with a show‑cause notice‑‑‑No occasion or justification existed to resort to R. 9(b) of Sindh Police (Efficiency and Discipline) Rules, 1988, when the Authority had neither given any reason nor placed on record any document to show that reasons for invoking said Rule were recorded‑‑Impugned order of dismissal from service passed against appellant, was unwarranted and uncalled for‑‑‑Only one allegation .was mentioned in the show‑cause notice against, appellant, whereas in dismissal order two more allegations had been incorporated‑‑‑Two other constables who were dismissed from service on same charges, had already been exonerated and reinstated in service‑‑‑Case of appellant being identical, he was also entitled to the same relief and treatment‑‑‑Orders dismissing appellant from service, were set aside and he was directed to be reinstated in service.

Zarar Khan v. Government of Sindh and others PLD 1980 SC 310; 1986 PLC (C.S.) 192; Ghulam Hadi Baloch v. Collector of Customs (Preventive) and others 1987 SCMR 602; 1988 PLC (C.S) 867; 19890 PLC (C.S.) 777; 1989 PLC (C.S.) 749; 1993 PLC (C.S.) 308; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR 802; Muhammad Saleem Premi v. Deputy Postmaster General, Lahore and 2 others 1996 PLC (C. S.) 539 and PLD 1958 SC (Pak.) 104 ref.

(b) Practice and procedure‑‑‑

‑‑‑ Once department had decided to adopt one procedure', it could not adopt any other‑‑‑Such switch over of procedure in 'the course of proceedings, Was not permissible.

Zarar Khan v. Government of Sindh and others PLD 1980 SC 310; Ghulam Hadi Baloch v. Collector of Customs (Preventive) and others 1987 SCMR 602 and Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR 802 ref.

Moula Bux Khoso for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A..‑G. for Respondents.

Date of hearing: 13th April, 2004.

2005 P L C (C.S.) 509

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmed Shah, Member-II

ANWAR ALI BALOCH

versus

REGISTRAR, MEHRAN UNIVERSITY OF ENGINEERING AND TECHNOLOGY, JAMSHORO and 2 others

Appeal No.305 of 1999, decided on 26th February, 2004.

(a) University of Sindh Employees (Efficiency and Discipline) Rules, 1961---

----Rr. 3, 4, 5, 7 & 8---Sindh Service Tribunal Act (XV of 1973), S. 4---Fundamental Right, 29---Reversion---Appeal---Appellant serving as Assistant Professor in B-18 was reverted to B-17 after issuing him show-cause notice, charge-sheeting him and holding inquiry against him on the basis of a complaint of student in which it was alleged that appellant being an examiner demanded from him illegal gratification, but on his refusal to pay him said illegal gratification he declared him failed in examination---Appellant was proceeded against departmentally on said complaint---Matter was thoroughly enquired by independent and impartial judicial officer---Appellant had not attributed any ill-will or personal grudge either to complainant or the Inquiry Officer or witnesses---Appellant had not denied that he had not checked papers of complainant---Allegations levelled against appellant had been corroborated by evidence---Fair chance/opportunity to defend was given to appellant during inquiry proceedings which proceedings he joined and he cross-examined the witnesses and no prejudice in any manner was caused to him---All the formalities relating to the inquiry proceedings were complied with in a perfectly valid and legal manner associating him with the same and providing him full chance to appear in his defence---No legal infirmity was found so far as disciplinary procedure was concerned---Department had already taken a very lenient view and appellant was imposed a lesser penalty of reversion---Punishment of reversion to a lower stage without specifying period of punishment, however appeared to be violative of Fundamental Rule. 29---While maintaining order of reversion against appellant, penalty of reversion was modified accordingly by restricting same for a period of four years without cumulative effect---Appeal dismissed.

PLD 1969 Peshawar 147; PLD 1954 Lah. 299; PLD 1981 SC 176; PLJ 1983 Tr.C. (Service)-6; 1983 PLC (C.S.) 266; 1983 PLC (C.S) 473; 1987 PLC (C.S.) 266; 1988 (PLC) (C.S.) 451, 1992 PLC (C.S.) 1000 and Syed Zafar Ali Askari v. Secretary to Government of Sindh, Karachi and another 1987 PLC (C.S.) 854 ref.

(b) Civil service---

----Move over---Move over from one scale to an other would not tantamount to promotion, but it was only awarded to an incumbent after reaching the maximum of his substantive scale.

Ali Sher Habibani for Appellant.

Muhammad Arshad Pathan for Respondents.

Date of hearing: 22nd October, 2003.

2005 P L C (C.S) 533

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-II

SIKANDAR ALI

versus

MANAGING DIRECTOR, SINDH AGRICULTURAL SUPPLY ORGANIZATION and 3 others

Appeal No.308 of 1999, decided on 5th December, 2003.

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

----Rr. 3, 4(1)(b)(IV) & 5---Sindh Service Tribunals Act (XV of 1973), S. 4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and charge sheeting him on allegations of inefficiency, negligence, misconduct and shortages and adulteration of stocks in his charge but no inquiry was held against him---Validity---Charges against appellant derived strength from the admitted facts and documents---Shortages of stock in charge of appellant were fully proved---No useful purpose would have been achieved from a regular inquiry against appellant, in circumstances nor did the facts of case against appellant required examination of any witness---Question of furnishing a copy of the inquiry report or allowing appellant to cross-examine the witnesses would not arise when facts and allegations were admitted by appellant---Charges against appellant having been founded on admitted documents/facts, no full-fledged inquiry was required in his case---Inquiry against appellant was rightly dispensed with and case was rightly dealt with under Sub-rule (3) of rule 5 of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---Appellant was afforded the opportunity of personal hearing both in charge-sheet as well in final show-cause notice and appellant did avail it---Neither any material prejudice was caused to appellant nor dictates of justice were violated---Order of dismissal from service passed against appellant being fully sustainable in law, appeal against said order was dismissed.

1990 SCMR 1701: 1990 PLC (C.S.) 717; 1985 PLC (C.S.) 188; 1985 PLC (C.S.) 366; 1980 SCMR 850; PLD 1971 SC 176; 2002 SCMR 684; 2003 SCMR 41; 2002 SCMR 886 and Nawab Khan and others v. Government of Pakistan PLD 1994 SC 222 ref.

Rasool Bux Unar, for appellant.

Moula Bux Khoso for SASO.

Mrs. Tabassum Ghazanfar, A.A.G for Respondents No.4.

Date of hearing: 2nd September, 2003.

2005 P L C (C.S.) 547

[Sindh Service Tribunal]

Before (Justice (Retd.) Abdul Ghani Shaikh Chairman and Nur Ahmad Shah, Member-II

ABDUL RAHIM RAHOJO

versus

SINDH AGRICULTURE SUPPLIES ORGANIZATION, GOVERNMENT OF SINDH through Managing Director Karachi and 2 others

Appeal No.299 of 1999, decided on 5th December, 2003.

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

----Rr. 3, 4(1)(b)(iv) & 5---Sindh Service Tribunals Act (XV of 1973), S. 4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and charge-sheeting him, but without holding full-fledged inquiry against him on allegations of inefficiency, corruption, misconduct, unlawful practices and shortage of stock under his control---Appellant being a supervisory officer, it was his duty to keep a constant watch on the stocks; he should have made surprise or pre-arranged visits to the godowns to get the stocks periodically checked and verified to prevent any shortage/damage---Since appellant had failed to do so, he was liable to be arraigned for inefficiency and lack of vigilance---Appellant could not get away by merely shifting the responsibility to the Sales Inspector Incharge of the godown---Appellant did not deny the shortages and the loss caused to Government and he also did not deny that said shortages occurred during his stewardship---In reply to charge-sheet, appellant had admitted that there were shortages of huge amount, but he denied his culpability and asserted that Depot Incharge alone was liable for losses---Godown in which stocks were kept, were managed under double lock key system---Appellant had with him one of the keys and the other key remained with Sales Inspector who was incharge of godown---Both appellant and Sales Inspector on whom appellant wanted to shift the responsibility, were jointly and severally responsible for the safe storage of stock---Appellant’s role in shortage and other wrong doings being so evident, that the inquiry, even if it had been held, could have made no difference---Such inquiry would have been, on the contrary, an exercise in futility---Authorised Officer, in circumstances had rightly exercised his discretion of dispensing with inquiry and instead issuing him a show-cause notice---Authorised Officer could do so under sub-rule (3) of R. 5 of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---Case of appellant was not that of ex parte punishment as he was afforded opportunity for personal hearing---Impugned order had met requirements of justice and law and in absence of any apparent fault therein appeal filed against said order was dismissed.

2000 SCMR 1321; 1987 SCMR 1562; 1996 PLC (C.S.) 868; 1997 PLC (C.S.) 817; PLD 1981 SC 176; 2000 PLC (C.S.) 857 and Nawab Khan and others v. Government of Pakistan PLD 1994 SC 222 ref.

Ghulam Sarwar Chandio for Appellant.

Moula Bux Khoso for Respondents Nos. 1 and 3.

Muhammad Qasim Mirjat, A.A.G. for Respondent No.2.

Date of Hearing: 16th October, 2002.

2005 P L C (C.S.) 727

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah. Member-II

Dr. ABDUL LATEEF

versus

MEDICAL SUPERINTENDENT, LYARI GENERAL HOSPITAL and 3 others

Appeal No.248 of 2002, heard on 30th April, 2004.

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

----Rr. 3, 4(1)(b)(iii) & 5---Sindh Service Tribunal Act (XV of 1973), S. 4---Removal from service---Appeal---Appellant posted as Medical Officer, was removed from service after issuing him show-cause notice on allegation that he remained absent from duty unauthorizedly without prior intimation and permission---Appellant had pleaded that his mother became seriously ill and he remained busy in providing her medical treatment---In support of his plea he had produced medical prescriptions, medical test reports, copies of E.C.G.---Leave applied by appellant was neither granted nor refused by the Authority---Record did not indicate that appellant before issuance of show-cause notice was ever required to resume his duties---Imperative duty of department to have inquired about the genuineness or otherwise of ailment of mother of appellant, but instead of doing so, appellant was served with show-cause notice followed by final show-cause notice and finally appellant was removed from service---Any order passed in derogation of the prescribed procedure, would have no legal sanctity in the eye of law---In all proceedings, whether judicial or administrative principles of natural justice had to be observed---Neither prescribed procedure was followed nor principles of natural justice were complied with---Order of removal of appellant from service, was set aside and appellant was directed to be reinstated in service.

Riaz Hussain Baloch for Appellant.

Tabassum Ghanzanafar, Asstt. A.-G. for Respondent.

Date of hearing: 13th April, 2004.

2005 P L C (C.S.) 1042

[Sindh Service Tribunal]

Before: Justice (Retd.) Abdul Ghani Shaikh Chairman, Yousuf Ali Mirza Member-I and Nur Ahmad Shah Member-II

Dr.SYED RIZWAN-UL-HASSAN

Versus

CHAIRMAN, GOVERNING BODY SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION, GOVERNMENT OF SINDH and 2 others

Appeal No.254 of 2002, decided on 31st August, 2004.

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

----S.4---Departmental appeal---If Departmental appeal was addressed to a wrong forum, it was the duty of that Authority to forward the same to proper Appellate Authority.

Rabnawaz Khan v. Secretary Ministry of Defence and another 1984 PLC (C.S.) 485 ref.

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

----R.4(1)(b)(iii)---Sindh Service Tribunals Act (XV of 1973), S.4--Removal from service---Appeal---Appellant was awarded penalty of removal from service on account of availing self-granted leave---Appellant in his applications for grant of two years extraordinary leave had stated that he intended to enter into a contract of job in Saudi Arabia---Appellant for the first time in his departmental appeal took an altogether different plea that he belonged to Shia Community and that he was on the hit list as large number of doctors belonging to Shia Community were murdered and that in order to save his life he had arranged job for himself in Saudi Arabia and then proceeded there---Validity---Person could not be allowed to raise a fresh ground before Appellate forum which had not been pleaded and raised earlier---Appellant, in circumstances was estopped by his conduct to raise a new plea before Appellate forum---Under the law no one could be permitted to approbate and reprobate in same breath---Appellant proceeded on leave without getting leave sanctioned---Such conduct rendered appellant to disciplinary proceedings---Conduct demonstrated by appellant appeared to be contumacious, unauthorized and was deprecated--Leaving Pakistan without sanction of leave ex-Pakistan by competent Authority, appellant was guilty of misconduct---Appeal filed by appellant against order of his removal from service was devoid of any merits---Penalty of removal from service considering being nature of misconduct, was too harsh---Punishment of removal from service, was converted into compulsory retirement.

Muhammad Farooq v. Inspector General of Police, Islamabad and another, 1988 SCMR 477 and Zurghan Shah v. Surgeon General and another 1988 SCMR 540 ref.

(c) Fundamental Rules----

-----R.67-Leave, grant of---Fundamental Rule 67 provided that leave could not be claimed as of right and an application for leave should not be anticipated as grant of leave---Rules, regulation and office procedure provided that, a civil servant requiring leave was supposed to apply formally for it and, as a matter of principle he could not and should not absent himself from office prior to sanction of leave---Mere submitting an application for leave ipso facto could not be construed to be sanction of leave---Prospective presumption had to be based on some legal ground---Civil servant could leave his headquarter/office only with prior approval of competent Authority in order to avoid subsequent complications.

Mumtaz Ali Khan v. Secretary, Ministry of Industries and Production, Islamabad, 2001 PLC (C.S.) 692 ref.

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

----R.4(1)(b)(iii)---Sindh Service Tribunals Act (XV of 1973), S.4---Removal from service---Appeal---Holding of regular inquiry---Appellant who was removed from service for being absent from duty unauthorisedly without getting his leave sanctioned, had contended that no regular inquiry having been conducted, penalty awarded to him had no legal sanctity---Appellant admittedly had gone abroad without prior permission and getting leave sanctioned and remained fugitive from his duties for a considerable long period---No necessity existed, in circumstances to conduct inquiry as holding of inquiry would not have made any difference.

1996 SCMR 201 and 1997 PLC (C.S.) 242 ref.

Mushtaq Hussain Mirza for Appellant.

Khalid Habibullah, for Respondents.

Date of hearing: 3rd August, 2004.

2005 P L C (C.S.) 1081

[Sindh Service Tribunal]

Before Justice (Rtd.) Abbul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-II

MUHIB ALI

Versus

INSPECTOR-GENERAL OF SINDH POLICE, KARACHI and 3 others

Appeal No.118 of 2003, decided on 30th August, 2004.

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

----Rr.3, 4(1)(b)(iv), 5 & 6---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service---Appeal---Reinstatement---Back-benefits---Entitlement---Appellant was dismissed from service on charge of mis­appropriation and embezzlement of Government money---Appellant was also involved in a criminal case arising out of F.I.R. registered against him under Ss.420, 409 & 34, P.P.C.---In appeal filed by appellant against order of his dismissal from service, he was finally ordered to be reinstated in service and order of his reinstatement was upheld upto the Supreme Court---Appellant was also acquitted in criminal case under S.249-A, Cr.P.C.---After reinstatement in service appellant filed an application wherein he requested that amount allegedly recovered from him be returned to him and for declaration to the effect that intervening period was spent by him on duty--Said application having been rejected, appellant had filed appeal---Claim of appellant was that disputed amount was recovered from him fraudulently and per force and that he having been acquitted from criminal charge by competent Court of law and he having been exonerated by Service Tribunal and having been reinstated in service, was entitled to amount forcibly recovered from him---Validity---Appellant had never claimed said amount as his own and he also denied the fact of making such payment and appellant after his acquittal from criminal case and reinstatement in service, had taken U-turn and claimed said amount as his own, while he had earlier disowned it---Appellant, in circumstances had tried to blow hot and cold at the same time---Being Government servant, it was not open to him to approbate and reprobate in the same breath and change his version at his sweet will---Admitted fact required no proof and man could lie, but circumstances, could not---Nothing being on record to indicate that when appellant was out of service, he did not work anywhere to gain financial benefit, appellant could not be allowed back-benefits as claimed by him.

Appellant in person.

Tabassum Ghazanffar, Asstt. A.-G. for Respondents.

Date of hearing: 18th June, 2004.

2005 P L C (C.S.) 1092

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah Member-I

Haji PEER BAKHSH

Versus

UNION COUNCIL BOLHARI, BOLHARI, TALUKA KOTRI, DISTRICT DADU through Nazim and 2 others

Appeal No.287 of 2002, decided on 14th March, 2005.

West Pakistan Civil Servants Pensionary Rules---

----Rr. 2.2, 2.3, 4.1, 4.4, 4.5(2) & 4.6---Sindh Service Tribunals Act (XV of 1973), S.4---Civil service---Pensionary benefits---Claim for---Appeal to Service Tribunal---Appellant had claimed pensionary benefits on plea that he had put in more than 10 years in service---Appellant was appointed when he was fifty years old only as a grace as he was too old for initial appointment to any Government service---Appellant was appointed as helper on 2-4-1988 and his. date of birth was 1927 and in view of said date of birth appellant had reached superannuation before his appointment in 1988---Appointment of appellant, in circumstances itself was vitiated and it was an act of pure grace, if not favouritism and thus his plea of pensionary benefits for a patently improper and irregular appointment, deserved to be discouraged, nay, repulsed---Appellant did not file departmental appeal before approaching Tribunal---Appeal filed by appellant did not conform to the requirement of S.4 of Sindh Service Tribunals Act, 1973---Even otherwise appellant had agitated against his retirement order after about four years, which was obviously time-barred.

1997 SCMR 1477 and 1999 SCMR 255 ref.

Ansari Abdul Latif for Appellant.

Tabasum Ghazanfar, Asstt. A.-G. for Respondent No.3.

Rasool Bux Unar for Respondents Nos. 1 and 2.

Date of hearing: 25th October, 2004.

2005 P L C (C.S.) 1130

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Yosuf Ali Mirza, Member-I and Nur Ahmad Shah, Member-II

MAQSOOD AHMED RIAZ

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and 3 others

Appeal No.77 of 1999, decided on 26th June, 2003.

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

----S.9---Sindh Service Tribunal Act (XV of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Claim of appellant was that he being senior most Assistant Electrical Inspector was ignored while his juniors were promoted, despite the fact that appellant possessed all requisite qualifications for the post of Electric Inspector (B-18)--Case of respondents was that appellant did not fulfil prescribed qualifications for the post of Electric Inspector, (B-18)---Appellant was appointed on basis of 3 years Diploma Engineering as Electric Sub-Inspector, in 1965; subsequently appellant obtained "B. Tech.(Hons) Degree" in Electrical Engineering in year, 1983---Appellant had claimed that 'B Tech.(Hons) Decree' obtained by him had been declared at par with B.Sc. Engineering/B.E. Degree by Supreme Court in its judgment reported as PLD 1995 S.C. 701 and on that basis he was entitled to be promoted to the post of Electric Inspector (B-18)---Office Memorandum issued in pursuance/compliance of said judgment of the Supreme Court, could apply to employees of Departments of Federal Government and not to Provincial Government of Sindh as recruitment rules for Provincial Government were different---Said Office Memorandum had already been challenged by Pakistan Engineering Council before Lahore High Court on the ground that it was within the domain of Council to recognize equalizing of academic degree concerning Engineering and Lahore High Court had suspended the operation of said Office Memorandum-Perusal of record had revealed that Government of Sindh had not treated degree of B. Tech.(Hons) at par with B.Sc. Engineering/B.E. degree---Rules for recruitment to the post of Electric Inspector having not been amended so far, Department was right in saying that appellant being B. Tech(Hons) was not entitled for promotion to the post of Electric Inspector (B-18)---Appeal filed by appellant otherwise being barred by time, was dismissed.

1996 SCMR 850; 1998 SCMR 544 = 1998 PLC (C.S.) 1278; 2001 PLC (C.S.) 542; 2001 PLC (C.S.) 550; Fida Hussin's case PLD 1995 SC 701 and Anwar Muhammad v. General Manager, Pakistan Railways, 1995 SCMR 950 ref.

Abdul Sattar Mughal for Appellant.

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

Ansari Abdul Lateef for Respondent No.3.

Date of hearing: 26th November, 2002.

2005 P L C (C.S.) 1350

[Sindh Service Tribunal]

Before: Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

GHULAM MUSTAFA CHANNA

Versus

SENIOR MEMBER, BOARD OF REVENUE SINDH and another

Appeal No.40 of 2003, decided on 14th December, 2004.

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

---Rr. 3 & 4---Dismissal from service---Embezzlement and forgery, charge of---Non-appearance of civil servant before Inquiry Officer though summoned repeatedly. .Issuance of show-cause notice and final show-cause notice---Civil servant in replies to such notices did not deny such charges, but his plea was that such transaction had taken place with approval of .then Additional Deputy Commissioner---Validity---Where more than one culprit were involved in a malfeasance, then they would be severally and jointly liable for such action---Best course for civil servant was to have appeared before Inquiry Officer and clarified his position---Absence from enquiry proceedings would give rise to adverse inference against civil servant---Alleged charges could be proved or disproved on basis of documentary evidence in absence of regular enquiry---Inquiry Officer found civil servant to be the main culprit--Service Tribunal dismissed appeal of civil servant in circumstances.

(b) Tort-

----Malfeasance---Involvement of more than one culprit in a malfeasance---Effect---All culprits would be liable for such action severally and jointly.

Muhammad Nawaz Shaikh for Appellant.

Tabassum Ghazanfar, A.A.-G. for Respondents.

Date of hearing: 25th October, 2004.

2005 P L C (C.S.) 1356

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh Chairman, Nur Ahmad Shah

Memnber-I and Ashique Hussain Memon Member-II

AFTAB AHMED MEMON

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, HYDERABAD and another

Appeal No.263 of 2001, decided on 3rd January, 2005.

(a) Civil service---

-------Dismissal from service---Non-supplying copy of inquiry report and

final show-cause notice to civil servant---Non-providing personal hearing to civil servant before inflicting such major penalty to explain his defence to findings recorded against him by Inquiry Officer---Validity---Such order would be violative of principle of natural justice, thus, would not be sustainable---Principle illustrated.

Muhammad Firdous v. Secretary, Culture and Tourism Deptt. and others in Appeal No.69 of 1996 ref.

Punjab Road Transport Corporation v. Punjab Labour Appellant Tribunal, Lah: 1975 SCMR 455; Islamabad Club v. Punjab Labour Court No.2. PLD 1980 SC 307 and Mir Muhammad v. Government of N.-W.F.P., PLD 1981 SC 176 rel.

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

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

(c) Sindh Police (Efficiency and Discipline) Rules, 1988---

---Rr. 3 & 4---Dismissal from service---Observations in impugned order regarding general bad reputation of civil servant---Such observations not mentioned in charge-sheet and statement of allegations attached thereto---Validity---Such observations could not be made basis of such major penalty in absence of any solid proof---Impugned order was set aside and appellant was directed to be reinstated in Service.

Ansari Abdul Lateef for Appellant.

Tabassum Ghazanfar, A.A.-G for Official Respondents.

Date of hearing; 13th December, 2004.

2005 P L C (C.S.) 1377

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Nur Ahmad Shah Member-I and Ashique Hussain Memon, Member-II

ALI AKBAR CHANNA

Versus

CHIEF SECRETARY GOVERNMENT OF SINDH and 2 others

Appeal No.328 of 1999, decided on 30th April, 2005.

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

----Rr.5 & 6---Inquiry---Sindh Agricultural Supplies Organization---Civil servant serving as Sub-Sale Inspector (BS-7)---Issuance of show-cause notice by District Agricultural Supplies Officer (DASO)---Validity---For officials of BS-15 or below, DASO was the "Authorised Officer", while Deputy Director was the "Authority" in view of Notification dated 7-4-1991 published in Sindh Government Gazette---Civil servant being in BS-7, DASO had rightly acted as "Authorised Officer" and Deputy Director as an "Authority".

(b) Sindh Civil Servant (Efficiency and Discipline) Rules, 1973---

----R.4---Awarding of major penalty instead of minor penalty proposed in final show-cause notice---Validity---Civil servant much prior to submitting his reply to final show-cause notice had received a letter from Authority rectifying such typographical error/mistake and proposing thereby major penalty to be imposed upon him---Held: No prejudice had been caused to civil servant.

(c) Sindh Civil Servant (Efficiency and Discipline) Rules, 1973---

----Rr.3, 4 & 6---Dismissal from service---Misappropriation of Government stock, charge of---Admission of charge by civil servant---Non-holding of regular enquiry---Validity---Civil servant was guilty of charge of defalcation of stock being custodian and Incharge of Sub-Bulk Depot---Holding of any further inquiry had rightly dispensed with in circumstances---Service Tribunal dismissed appeal of civil servant.

2002 SCMR 684; 2003 SCMR 41 and 2003 SCMR 367 ref.

Ansari Abdul Lateef for Appellant.

Tabassum Ghazanfar, Assist. A.-G. for Respondents Nos. 1 and 2.

Moula Bux Khoso for Respondent No.3.

Date of hearing: 28th February, 2005.

2005 P L C (C.S.) 1395

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Yusuf Ali Mirza and Nur Ahmad Shah, Members

MUHAMMAD WARIS

Versus

SECRETARY TO THE GOVERNMENT OF SINDH, AGRICULTURE, LIVESTOCK AND FISHERIES DEPARTMENT, KARACHI and others

Appeal No. 10 of 2001 decided on 28th April, 2004.

(a) Sindh Civil Servants (Appeal) Rules, 1980---

----R.3(2)---Sindh Service Tribunals Act (XV of 1973), S. 4---Departmental appeal before invoking jurisdiction of Service Tribunal---Filing of a departmental appeal before invoking jurisdiction of Service Tribunal relating to the terms and conditions of service of civil servant concerned, was a condition precedent---Sub-rule (2) of R.3 of Sindh Civil Servants (Appeal) Rules, 1980, had provided that where the order of competent Authority affected more than one civil servant, every civil servant would prefer appeal separately---Appellant before filing present appeal, had challenged seniority list before departmental appellate forum by way of joint appeal along with 10 of his other colleagues---Said departmental appeal in view of sub-rule (2) of R.3 of Sindh Civil Servants (Appeal) Rules, 1980, was not competent---So far second order of promotion was concerned, no mention was made in memo. of appeal, whether it was at all challenged before departmental appellate forum before filing appeal---Said appeal thus, was not legally competent and maintainable.

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

(b) Administration of justice---

----If law provided that a particular thing was to be done in a particular manner/way, it was to be done either in that way or not at all.

Ghulam Sarwar Chandio for Appellant.

Ansari Abdul Lateef for Respondent No.5.

Ghazanfar Tabassum, Asstt. A.G. for Respondents.

Date of hearing: 20th January, 2004.

2005 P L C (C.S.) 1412

[Sindh Subordinate Judiciary Service Tribunal]

Before: Justice Muhammad Moosa, K. Leghari, Chairman and Justice Rehmat Hussain Jafferi, Member, In the matter of: MUHAMMAD SABIR JUDICIAL MAGISTRATE

Service Appeal No. 15 of 1998, decided on 7th May, 2005.

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

---Rr. 4(1)(b)(iii), 4-A(2), 5(4)(b) & Proviso---Sindh Service Tribunals Act (XV of 1973), S.4---Removal from service---Powers of Authority to exercise power of Authorized Officer---Appeal to Service Tribunal---Appellant who was removed from service after issuing him show-cause notice and providing him opportunity of hearing, had challenged order of his removal on ground that Authorized Officer who issued him final show-cause notice, at relevant time was senior PUISNE Judge, but later on he became Chief Justice of High Court and thereafter he exercising powers of Authority, had passed impugned order of removal from service against appellant---Claim of appellant was that one and same person could not exercise powers of Authority and Authorized Officer and could not sit as Judge in his own cause---Validity of contention---Authorized Officer who at time of issuing show-cause notice was senior PUISNE Judge, having become Chief Justice later on, was under .statutory obligation and authority to exercise powers of "Authority" as there was no other Chief Justice who could have jurisdiction to hear the matter---Action of Authority was saved and general rule was not applicable, in circumstances of case, especially when no motive, ill-will, partisan or partiality was alleged and said action of Authority was based on sound principles of law and appellant was also dealt with quite justly and fairly---Even otherwise under Sub-Rule(2) of R.4-A of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, Authority could exercise powers of Authorized Officer and he could give any direction to Authorized Officer as he could deem fit---In absence of any illegality or irregularity, impugned order would not require any interference in appeal.

Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689 ref.

Abrar Bukhari for Appellant.

Ahmed Pirzada A.A.-G for Respondents.

Date of hearing: 2nd April, 2005.

2005 P L C (C.S.) 1430

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

PUSHPA BAI and others

Versus

GOVERNMENT OF SINDH, through Education Secretary, Karachi and others

Appeals Nos.48, 49, 52, 53, 54 and 58 of 2004, decided on 14th December, 2004.

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

---- R.4 --- Stoppage of salary without show-cause notice, inquiry or personal hearing---Authority passed such order after eight years of appointment of civil servant on the ground that his appointment letter during inquiry was found to be bogus---Validity---Bogus, fraudulent or forged appointment letter might be manipulated by forging signatures of Appointing Authority or with his connivance or by manipulation of record or by any other conceivable method---Department did not produce any such detail or copy of inquiry report---In absence of any tangible evidence to show that appointment/posting order was bogus or fake, mere simple word would have no legal value---Authority had not inquired about genuineness /authenticity of appointment order for such a long period and have been paying salary to civil servant from Government exchequer---Instead of dismissing or removing civil servant from service on basis of such allegation, simply stoppage of salary would be a glaring irregularity on the part of authority---Impugned action was not legal/proper, which had caused a grave miscarriage of justice---Service Tribunal accepted appeal and set aside impugned order while observing that authority would be at liberty to hold a full-fledged regular inquiry in respect of genuineness or otherwise of appointment/posting order after affording opportunity of hearing to civil servant.

2000 PLC (C.S) 784 and 2004 SCMR 49 rel.

2004 PLC (C.S) 463; 2004 PLC 125 and Riffat Zohra's Appeals Nos. 285 of 2002 ref.

Moula Bukhsh Khoso for Appellants.

Tabassum Ghazanfar, Asst. A.-G. for Official Respondents.

Date of hearing: 10th November, 2004.

2005 P L C (C. S.) 1443

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

KHAN MUHAMMAD and others

Versus

INSPECTOR GENERAL OF POLICE SINDH AT KARACHI and 9 others

Appeals Nos.289 to 292 of 2002, decided on 7th January, 2005.

Police Rules, 1934---

----R.13.18---Sindh Service Tribunals Act (XV of 1973), S.4---Appeal---Limitation---Promotion of respondent as Inspector after his confirmation as Sub-Inspector ---Order confirming respondent as Sub-Inspector was challenged by appellant in departmental appeal, but was not challenged before Service Tribunal---Subsequent confirmation of appellant as Sub-Inspector, though challenged in departmental appeal, but was not challenged before Service Tribunal by appellant---Appellant by passage Of time having accepted date of confirmation of respondent had lost his right to challenge order of promotion of respondent as Inspector---Respondent on basis of seniority and confirmation had rightly been promoted to post of Inspector---Department had not committed any illegality or irregularity---Service Tribunal dismissed appeal.

Muhammad Ramzan Memon for Apppellant.

Moula Bakhsh Khoso for Respondents Nos.5,7 to 9.

Mrs. Tabasum Ghazanfar, Asstt. A.G. for Official Respondent.

Date of hearing: 10th November, 2004.

2005 P L C (C.S.) 1464

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Nur Ahmad Shah Member-I and Ashique Hussain Memon, Member-II

AJMAL HUSSAIN KHAN and others

Versus

GOVERNMENT OF SINDH and others

Appeals Nos.360, 361, 363 to 379 of 1999, 6 to 22, 27 and 28 of 2000, decided on 7th April, 2005.

(a) Civil service---

----Seniority lists---No finality could be attached to seniority lists liable to be changed from time to time on account of new inductions into services and various grades thereof.

Chaudhry Nazar Muhammad v. Government of Punjab and others 1996 SCMR 68 rel.

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

----Ss.8 & 9---West Pakistan Secretariat (Section Officers) Service Rules, 1962, R.S---Sindh Civil Servants (Appointment; Promotion and Transfer) Rules, 1974, R.3---Posts of Section Officers (BS-17)---Method of recruitment directly and by promotion in ratio of 50: 50---Inter se seniority between direct recruits and promotees vis-a-vis their regular appointment against their respective quotas---Report of Civil Services Commission (1978-79) recommending to discontinue provisions of quota and direct appointment to such posts---Validity---Such report or policy decision could not annul, amend or bypass the provisions of Sindh Civil Servants Act, 1973 or the Rules framed thereunder---Every time when a vacancy became available, then same would be filled in proportion of 50: 50 from each category of promotees and direct recruits---Departmental employees would be eligible for promotion to higher grade only against reserved posts and none else---Appointment/promotion made in excess of reserved quota would be treated as ad hoc and no regular---Seniority of persons appointed/promoted in excess of reserved quota would not be counted from date of their actual appointment/promotion, but would be counted from the date from which they would have been appointed, if quota had been properly followed.

Syed Ali Muqlade Wahidi and Fazal-e-Qadir 1984 PLC (C.S.) 546; 1984 PLC (C.S.) 151; Federation of Pakistan v. Azam Ali and others 1985 SCMR 186; Malik Ghulam Rasool v. Government of Punjab and others 1985 SCMR 1107; Muhammad Nawaz Khan v. Muhammad Ijaz Rashid and others and PLD 1993 SC 10; Nasimul Haque Malik v. Chief Secretary, Sindh and others 1996 PLC (C.S.) 921 ref.

Muhammad Bhai and another v. Islamic Republic of Pakistan PLD 1980 Kar. 166; Federation of Pakistan v. Azam Ali and others 1985 SCMR 386; Malik Ghulam Rasool v. Government of Punjab 1985 SCMR 1107; Muhammad Nawaz Khan v. Muhammad Ijaz Rashid PLD 1993 SC 10 and Nasimul Haque Malik v. Chief Secretary, Sindh and others 1996 PLC (C.S.) 921 fol.

(c) Civil service----

---Seniority list, objection---Mere raising a plea in absence of any mathematical calculation would be no ground to declare impugned seniority as illegal, unjustified and in violation of prescribed ratio.

(d) Civil service---

----Seniority list---Rectification of mistakes in seniority list and declaring same as provisional---Held: Authority competent to rectify such mistakes had committed no wrong.

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

----S.21---Power of rescession or recall of earlier order---Scope---Such power would always be available to authority passing' an earlier order, apart from S.21 of General Clauses Act, 1897.

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

----S. 8---General Clauses Act (X of 1897), S.21---Seniority---Not a vested right of civil servant---Placement of any civil servant in seniority list over and above other civil servants would not confer any vested right on him to invoke doctrine of locus poenitentiae.

Pakistan v. Muhammad Himayatullah Farukhi, PLD 1969 SC 407; Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 and 2004 PLC (C.S.) 420 rel.

Abdul Ghafoor Mangi for Appellant (in Appeals Nos.360, 361 and 363 to 378 of 1999).

M.M. Aqil Awan for Appellant (in Appeal No.379 of 1999).

Appellants presents in person (in Appeal Nos.7 to 22 and 27, 28 of 2000).

Tabassum Ghazanfar, Asstt. A.-G. for Official Respondents.

Khalid Javaid Khan and Abdul Sattar Mughal for some of the Private Respondents.

Date of hearing: 13th January, 2005.

2005 P L C (C. S.) 169

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad and others

Versus

MUHAMMAD UMER MORIO

Civil Petitions Nos.318 and 373‑K of 2002, decided on 1st December, 2004.

(On appeal from the judgment dated 12‑12‑2001 of the Federal Service Tribunal Islamabad passed in Appeal No .24(K)(CS) of 2000).

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

----R. 4(1)(b)(i)‑‑‑Constitution of Pakistan (1973), Art.212‑‑­Misconduct‑‑‑Civil Servant, on leave for Hajj, performed Hajj and where-after, proceeded to Germany and USA; he had not obtained prior permission from the‑concerned Authority for visiting said countries; he had already obtained visa for the said two countries a year before going to Hajj and thus, he had ample time before proceeding to said countries to inform 'the Authorities about such visits and circumstances had revealed that he deliberately did not inform the Authorities for the reasons best known to him‑‑Effect‑‑‑Such ‑conduct of civil servant was a gross misconduct on his part and even on such charge he could be removed/dismissed from service‑‑‑Department was lenient when it had only revered him from BS‑19 to BS‑18‑‑‑When ex‑Pakistan leave was granted an employee could only visit to the country for which said leave was granted; it was not his sweet will to visit other countries‑‑Civil servant in the present case, being a police officer must, have shown by his Conduct that he belonged to a disciplined force of Pakistan‑‑‑Civil servant was guilty of misconduct as teas held by the department‑‑­Supreme Court' converted the petition into appeal and dismissed the same.

(b) Fundamental Rules‑‑‑

‑‑‑‑R.29‑‑‑OM.No.16/18/94‑R.2 dated 9‑9‑‑1998‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Scope and requirements of Fundamental Rule, R.29‑‑‑Fundamental Rule 29 requires that if a Government servant is, on account of misconduct or inefficiency, reduced to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall remain effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent‑‑‑While passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale by the authority, the requirements of FR 29 should be strictly observed‑‑‑Where in a case of misconduct by the civil servant, the authority imposing penalty had failed to specify the period for which such penalty would remain effective, Supreme Court, keeping in view the facts and circumstances of the case, modified the order to the extent that it would remain effective for a period of five years from the date of its passage in the light of FR. 29.

Ch. Tawanger Hussain v. Director, Manpower and Training Punjab and another 1983 PLC (C.S.) 1011; Ajmal Shah v. Government Punjab N.‑W.F.P. PLD 1982 Pesh. 165; Asgharuddin v. Ministry of Communication 1989 PLC (C.S.) 134; Abdul Majid v. WAPDA 1989 PLC (C.S,) 469; Muhammad Arshad v. WAPDA 1993 PLC (C.S.) 1082; Zafar Yasin v. Prime Minister of Pakistan 2002 SCMR 775 and Tanvir Ahmed v. Chief Secretary 2004 SCMR 647 ref.

Syed Zaki Muhammad, D.A.‑G. for Petitioner (for Respondent in C.P. No.373‑K of 2002).

Raja Haq Nawaz; Advocate Supreme Court and Mst. Wajahat Niaz, Advocate‑on‑Record for Respondents (for Petitioners in C. P. N6373‑K of 2002).

Date of hearing: 1st December, 2004

2005 P L C (C. S.) 179

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

REGIONAL COMMISSIONER OF INCOME TAX LAHORE and others

Versus

MUHAMMAD YOUNAS MUGHAL and 7 others

Civil Petitions Nos.469 to 476 of 2004, decided on 4th August, 2004.

(On appeal from the judgment dated 6‑12‑2003 of the Federal Service Tribunal, Islamabad in Appeals Nos. 736 to 743 CS‑2003).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212 (3)‑‑‑Petition for leave to appeal ‑‑‑Condonation of delay‑‑­Return of petition on office objection‑‑‑ Failure to explain delay of each day‑‑‑Petition was filed on the last day of limitation and the same was returned with objection to annex certified copies of grounds of appeal filed before Service Tribunal‑‑‑Petition was re‑filed after 9 days of the expiry of limitation‑‑‑Effect‑‑‑After return of petition in original, the same would not be deemed pending in the office of Supreme Court, therefore, time spent by petitioner in arranging copies of ground of appeal for want of which the petition was returned, would not be excluded for mere reason that the petition, for the first time was filed within time‑‑‑Petitioner at the first instance filed the petition on the last date of limitation and on return, without asking for time or taking an immediate step for removal of defect, filed the same with a delay of 9 days‑‑‑Petitioner was required to explain delay of each day from the date of return of petition to the date of re‑filing but he had neither given any explanation regarding the circumstances under which the petition could not be re‑filed on the same day, nor could give the reason for taking 9 days in re‑filing the same‑‑‑No substantial question of law of general public importance was involved in the case‑‑‑Leave to appeal was refused.

M. Ilyas Sr. Advocate Supreme Court with Muhammad Aslam Chatta, Advocate‑on‑Record for petitioners.

Mehr Khan Malik, Advocate‑on‑Record for Respondent (in C.P No. 469 of 200.4).

Date of hearing: 4th August, 2004.

2005 P L C (C.S.) 197

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

NASEER‑UD‑DIN and another

Versus

SECRETARY FOOD, GOVERNMENT OF PUNJAB, LAHROE and another

Civil Petitions Nos. 113‑L, 2207‑L and 2209‑L of 2003, decided on 8th July, 2004.

(On appeal from the judgment/ order dated 16‑7‑2002 and 13‑12‑2002 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 881, 882 and 846 of 2002).

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

‑---R.2(3)‑‑‑Constitution of Pakistan (1973), Art.212 (3)‑‑‑Authorized officer acting as authority‑‑‑Earlier decision of Supreme Court‑‑­Principle of consistency‑‑‑Applicability‑‑‑Supreme ‑ Court, in an earlier decision had considered the question of, competency of an authorized officer to act as authority at a later stage, on having been appointed as Secretary and had held that in such situation authorized officer could not act as authority at a subsequent stage‑‑‑Supreme Court had remanded the earlier cases to the Government for decision afresh‑‑‑Following the dictum laid down by Supreme Court in earlier cases on an identical question petition was converted into appeal and judgment passed by Service Tribunal was set aside and the case was remanded to Government for decision afresh‑‑Appeal was allowed.

Abdul Wahid Chaudhry, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for petitioners. (in all cases).

Aamir Rehman, Addl: A.‑G. of Respondents.

Date of hearing: 8th July; 2004.

2005 P L C (C.S.) 214

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

DEPUTY DIRECTOR FOOD and others

Versus

MUHAMMAD RAFIQUE KHAN

Civil Petition No.2571‑L of 2003, decided on 4th August, 2004.

(On appeal from the judgment/order dated 14‑7‑2003.passed by Punjab Service Tribunal, Lahore in Appeal No.902 of 2003).

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

‑‑‑R.4 (b) (1)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Constitution of Pakistan (1973), Art.212 (3)‑‑‑Misconduct‑‑‑Non­ cleanliness of wheat godowns and infestation‑‑‑Failure to narrate procedure of fumigation‑‑‑No loss to public exchequer‑‑‑Civil servant was reverted to lower post on the charge that he being in‑charge of wheat godowns could not answer the questions of the Authorities regarding fumigation process and due to unsatisfactory cleanliness infestation in gunjies had been started‑‑‑Order of reversion was set aside by Service Tribunal‑‑‑Validity‑‑‑Such acts of the civil servant were not covered under the definition of ' misconduct' and ' inefficiency' under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999‑‑‑On account of allegations against the civil servant, no loss to public exchequer or the Government had occurred‑‑‑If the civil servant could not answer satisfactorily about the fumigation process etc., he could not be penalized by imposing major penalty‑‑‑On account of non­ cleanliness of godowns and infestation in gunjies no loss had been caused to the Government‑‑‑Service Tribunal was justified to interfere in the order of departmental authorities‑‑‑Leave to appeal was refused.

Raja Abdur Rehman, A.‑A.G. (Punjab) for petitioners.

Nemo for Respondent.

Date of hearing: 4th August, 2004.

2005 P L C (C.S.) 247

[Supreme Court of Pakistan]

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

ABDUL WAHID

Versus

THE GENERAL MANAGER and others

C.P.L.A. No.3254‑L of 2002 decided on 14th April, 2004.

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

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212 (3)‑‑‑Enhancing of penalty‑‑‑Jurisdiction of Supreme Court‑‑‑Embezzlement of official stores‑‑‑Allegation against civil servant was that he had stolen medicines from official store worth Rs.85,703.85‑‑‑After departmental inquiry, penalty of recovery of value of stolen medicines was imposed upon the civil servant‑‑‑Service Tribunal maintained the penalty imposed by the authorities‑‑Validity‑‑‑Supreme Court observed that it was astonishing that the authorities, while admitting the guilt of the civil servant, retained him in service so as to enable him to repeat his illegal activities in paying back the penalty‑‑‑Even an ordinary person of normal prudence would not retain such‑like person in service after he had been found implicated in theft‑‑‑Common complaint of corruption and teeming millions were craving even for a tablet of Disprine while the medicines from Government hospitals and stores were being stolen and mis‑used with impunity‑‑‑Civil servant could not show any justification for the leniency shown by the departmental authority in awarding the punishment‑‑‑Conduct displayed by the civil servant as custodian of public property was not such as to deserve sympathy‑‑‑Supreme Court set aside the penalty imposed on the civil servant and directed the departmental authority to dismiss him from service‑‑‑Leave to appeal was refused.

(b) Crime and punishment‑‑‑

-----Administration of justice‑‑‑Awarding of punishment ‑‑‑Object‑‑­Concept 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 in offences relating to individuals take into consideration reformatory concept of punishment but in offences against society no sympathy can be shown to the wrong doer as the leniency shown sends a massage to the like 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 hand at the appropriate time otherwise such 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: 14th April, 2003.

2005 P L C (C.S.) 261

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

CHIEF SECRETARY GOVERNMENT OF PUNJAB, LAHORE and others

Versus

MUHAMMAD ANIS BUTT and others

Civil Petitions Nos.3773‑L to 3775‑L of 2002, decided on 4th August, 2004.

(On appeal from the judgment/order dated 15‑8‑2002 passed by Punjab Service Tribunal, Lahore in Appeals Nos.836, 1685 and 1742 of 1998).

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

‑‑‑‑S.4‑‑‑Government Servants (Efficiency and Discipline) Rules, 1975, R.6 (3)‑‑‑Building and Roads Department Code, item No. 198‑‑­Constitution of Pakistan (1973), Art.212 (3)‑‑‑Penalty of reduction in time scale‑‑‑Interference in departmental proceedings‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Leave to appeal was granted by Supreme Court to consider, whether Service Tribunal interfered in departmental proceedings, whereby civil servants were found guilty for committing gross negligence and misconduct in advancing material to contractor, contrary to instructions/rules of the department contained in item No.2.98 of Building and Roads Department Code, according to which advances to contractor are prohibited except in some cases i.e. the advances in respect of finished work and advance payment for the work actually executed, etc.

Muhammad Hanif Khatana Advocate Supreme Court and Rao M. Yousaf Khan Advocate‑on‑Record for Petitioners (in all cases).

M. Asghar Khan Rokhari, Advocate Supreme Court and Faiz‑ur-­Rehman, Advocate‑on‑Record for Respondents (in C.P. No.3775 of 2002).

Respondents (in C.Ps. Nos, 3773‑L of 2774‑L of 2002) not represented.

Date of hearing: 4th August, 2004.

2005 P L C (C.S.) 318

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUHAMMAD AMJAD MALIK

Versus

PAKISTAN STATE OIL CO. LTD and others

Civil Petition No. 1184‑L of 2001, decided on 2nd August, 2004.

(On appeal from the judgment/order dated 12‑2‑2001 passed by Federal Service Tribunal, in Appeal No.947(L) of 1998)

Service Tribunals Act (LXX of 1973)‑‑-

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Termination of Service‑‑‑Contract employee‑‑‑Show‑cause notice, non-­issuance of‑‑‑Principle of consistency‑‑‑Applicability‑‑‑Employee was working on contract basis and his services were terminated without issuance of any show‑cause notice‑‑‑Order of termination was maintained by Service Tribunal‑‑‑Plea raised by the, employee was that Supreme Court in its earlier decision had reinstated other employees terminated on similar grounds‑‑‑Validity‑‑‑Services of the employee were governed by clause relating to dismissal as mentioned in the contract of employee itself whereby the right of reply to show‑cause notice, was to be provided‑‑‑Following the dictum laid down in the earlier judgment, Supreme Court converted the petition for leave to appeal into appeal and the judgment passed by Service Tribunal was set aside‑‑ ‑Appeal was allowed.

Civil Appeals Nos.15 to 47 of 2003 Pakistan State Oil Co. Ltd v. M. Akram Khan and other fol.

Mirza Hafeez‑ur‑Rehman, Advocate Supreme Court and Haji M Rafi Siddiqui, Advocate‑on‑Record for petitioner.

Sh. Anwar‑ul‑Haq, Advocate Supreme Court and Tanvir Ahmed Advocate‑on‑Record for Respondents.

Date of hearing: 2nd August, 2004.

2005 P L C (C.S.) 368

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

TARA CHAND and others

Versus

KARACHI WATER AND SEWERAGE BOARD, KARACHI and others

Civil Review Petition No.259 of 2002, Civil Miscellaneous Applications Nos.874 and 875 of 2001 in Civil Appeal No. 1235 of 2000, decided on 14th December, 2004.

(On review against the, judgment of this Court, dated 14‑5‑2002 passed in Civil Appeal No. 1235 of 2000).

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

‑‑‑‑Arts. 185, 188 & 25‑‑‑Supreme Court Rules 1980, O.XXXIII, R.5‑‑­Civil Procedure Code (V of 1908), O.XLI, R.33‑‑‑Review petition‑‑­Civil service‑‑‑Contentions of the petitioner were that neither notice about grant of leave to appeal by the Supreme Court nor that of ex parte order by the Supreme Court was served upon him; that he was one of the petitioners who impugned the departmental orders of retrenchment and termination before the High Court, which were set aside in appeal by the Supreme Court; that the moment he came to know about the decision of the Supreme Court, he had approached the Court and filed Civil Review Petition well within time and‑ that though he was a non‑appealing party in the appeals, yet he was entitled to the same relief on the basis of principle of equality‑‑‑Validity‑‑‑Held, since the services of all such persons were dispensed with by single order, as such, there was no distinction between their case and that of the appellants and was identical on all fours‑‑‑When Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covered not only the case of civil servants who litigated, but also of other civil servants, who might­ have not taken any legal proceedings, the dictates of justice and rule of good governance demand that the benefit of the decision be extended to other, civil servants, who might not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum‑‑­Article 25 of the Constitution was also explicit on the point that all citizens were ‑equal before law and were entitled to equal protection of law.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; Hakim Muhammad Nabi Khan and 2 others v. Warasatullah through Legal Representatives 1987 SCMR 1698; Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 ref.

(b) Judgment in personam‑‑‑

‑‑‑‑Definition.

A judgment determining the rights of persons inter se in or to any money or property in dispute, but not affecting the status of persons or things or determining any interest in property except between the parties. They include all judgment for money.

Normally a judgment binds only those who are parties to it. Such judgments are known as Judgments in personam.

Judgments in personam or inter parties are, those which determine the rights of parties inter se to or in the subject‑matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or un-liquidated demand, but do not affect the status of either persons or things, or make any disposition of property or declare or determine any interest in it except as between the parties litigant. They include all judgments which are not judgments in rem.

A judgment in personam determines the rights of the parties inter se to or in the subject‑matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or un-liquidated demand, but does not affect the status of either persons or things, or make any disposition of property, or declare or determine any interest in it except as between the parties litigant. Judgments in personam include all judgments which are not judgments in rem, but as many judgments in the latter class deal with the status of persons and not of things, the description "Judgment inter parties" is preferable to 'Judgment in personam'.

A judgment against a particular person, as distinguished from a judgment against a thing or a right or status.

The Oxford Companion to Law by Dawid M. Walker; K.J. Atyar's Judicial Dictionary (10th Edn. 1988); Words and Phrases legally defined (Vol. 3 I‑N) and Black's Law Dictionary with pronunciations (6th Edn.) ref.

(c) Judgment in rem‑‑‑

‑‑‑‑Definition.

A legal determination binding not only the parties but all persons. It applies particularly to judgments in Admiralty, declaring the status of a ship, matrimonial causes, grants of probate and administration and condemnation of goods by a competent Court.

A judgment which gives to the successful party possession or declaration of some definite right which right is available against the whole world.

A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from the particular interest in it of a party to the litigation). Apart from the application of the term to persons, it must affect the res in the way of condemnation, forfeiture, declaration of status or title, or order for sale or transfer.

An adjudication pronounced upon the status of some particular thing or subject‑matter, by a Tribunal, having competent authority is judgment in rem. It is founded on a proceeding instituted against or on something or subject‑matter whose status or condition is to be determined or one brought to enforce a right in the thing itself. It operates upon the property. It is a solemn declaration of the status of some person or thing. It is binding upon all persons insofar as their interests in the property are concerned.

The Oxford Companion to Law by Dawid M. Walker; K.J. Aiyar's Judicial Dictionary (10th Edition 1988); Words and Phrases legally defined (Vol. 3 I‑N) and Black's Law Dictionary with pronunciations (6th Edition) quoted.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner (in Civil Review Petition No.259 of 2002).

Ibrar Hussain, Advocate Supreme Court for Respondents (in Civil Review Petition No.259 of 2002).

M. Bilal, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Applicants (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Ibrar Hussain. Advocate Supreme Court for Respondents Nos. 1‑3 (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos.4‑5 (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Date of hearing: 14th December, 2004.

2005 P L C (C.S.) 531

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

CHIEF SECRETARY, GOVERNMENT OF SINDH and others

versus

Al-Haj Professor Syed SIBTE HASAN ZAIDI and others

C.P.L.A. No.441-K of 2004, decided on 18th November, 2004.

Constitution of Pakistan (1973)---

----Art. 212(3)---Service Tribunal having struck down the order of removal from service passed against employee, Government had sought leave to appeal against said judgment of Tribunal---Tribunal had rightly recorded that Enquiry Officer did not reach the place of holding enquiry on the stipulated date and time and without holding enquiry against employee, submitted an adverse report to the Department which was accepted as gospel truth without application of mind to the facts and circumstances of case culminating in imposition of penalty of removal from service on the employee---No question of law of public importance was involved in the case and it was not a fit case in which petition for leave to appeal should have been filed and in all propriety and fairness, the Department should have implemented judgment of Tribunal, instead of entering luxury of uncalled for litigation at State expense.

Anwar Mansoor Khan Advocate-General, Sindh for Petitioners.

Respondent No.1 in person.

Nemo for Respondents No.2 to 5.

Date of hearing: 18th November, 2004.

2005 P L C (C.S.) 554

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

INSPECTOR-GENERAL OF POLICE, SINDH and others

versus

HABIBUR REHMAN ABRO

C.P.L.A. No.760-K of 2002, decided on 10th November, 2004.

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

---- R. 12---Police Rules 1934, R. 16.28---Constitution of Pakistan (1973), Art.212(3)---Police Officer was proceeded against on charge of misconduct; was charge-sheeted and inquiry was held against him and he was found innocent and Senior Superintendent of Police exonerated him---Deputy Inspector-General of Police, while disagreeing with the findings recorded by Senior Superintendent of Police, issued a notice in terms of R.12 of Sindh Police (Efficiency and Discipline) Rules, 1988 to the official to show cause as to why penalty of dismissal from service should not be imposed upon him---Deputy Inspector-General thereafter found the official guilty of charge against him and awarded penalty of forfeiture of two years approved service---After rejection of departmental appeal, official challenged impugned order before Service Tribunal which was struck down vide order impugned in the petition for leave to appeal by the Authority---Tribunal, after comparison of R.16.28 of Police Rules, 1934 with R.12 of Sindh Police (Efficiency and Discipline) Rules, 1988, had recorded a categorical finding that in view of material change in latest Rules, Deputy Inspector-General was not competent to call for record of a decided case and inflict punishment in the case in which it had not been awarded---Appellate or Revisional Authorities under the latest Rules were no longer vested with power to alter a finding of exoneration from charge into a finding of guilt---Deputy Inspector General of Police thus, could not convert a finding of "not guilty" into finding of "guilty" or to alter finding of 'exoneration' into finding of "proved guilty"---No other ground having been urged in support of petition, same being without any merit, was dismissed.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent in Person.

Date of hearing: 10th November, 2004.

2005 P L C (C.S.) 610

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

TASLEEM JAN and others

versus

MUHAMMAD ZAMAN and others

Civil Petitions Nos.600-P to 602-P and 707-P to 709-P of 2004, decided on 31st December, 2004.

(On appeal from the judgment dated 26-5-2004 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos.81 of 2002, 279 of 2003 and 437 of 2002).

Constitution of Pakistan (1973)---

----Arts. 199 & 212---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitutional petition---Civil service---Non-consideration of petitioner for promotion on ground of being ineligible challenged in Constitutional petition in High Court---Validity---Jurisdiction of Service Tribunal would be barred only where matter to be determined was fitness of a civil servant to hold an office---Fitness to hold an office was altogether different from eligibility to hold office---Where fitness of an officer to hold a higher post was a matter of comparative suitability in the light of quantification of performance as a result of subjective decision of competent authority based on objective principles, then same would relate only to his personal competence and performance on the job---Eligibility would relate purely to terms and conditions of service---Any right denied on basis of eligibility or otherwise could be challenged before Service Tribunal---Petitioner in Constitutional petition had asserted point of eligibility, which matter never related to fitness of an officer to hold a higher post---Only Service Tribunal had jurisdiction in such matter and not High Court---Supreme Court accepted appeal and set aside impugned judgment.

Mian Abdul Malik’s case 1991 SCMR 1129 rel.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Petitioners (in Civil Petitions Nos.601-P to 602-P of 2004).

Hafiz Aman, Advocate Supreme Court on behalf of Advocate-General N.-W.F.P. for Petitioners/State (in Civil Petitions Nos.707-P to 709-P of 2004) and for Respondent/State (in Civil Petitions Nos.600-P to 602-P of 2004).

Essa Khan, Advocate Supreme Court with M. Zahoor Qureshi, Advocate-on-Record for Respondent No.1 (in all Civil Petitions).

Nemo for other Respondents.

Date of hearing: 31st December, 2004.

2005 P L C (C.S.) 639

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD ISRARULLAH

versus

ASSISTANT DIRECTOR, MANPOWER and others

Civil Appeal No.115 of 2000, decided on 13th December, 2004.

(On appeal from the judgment of the N.-W.F.P. Service Tribunal, Peshawar dated 15-4-1999 passed in Appeal No.1832 of 1997)

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

----S. 2(1)(h)---Constitution of Pakistan (1973), Art.212(3)---Deputation---Lien of civil servant on permanent post in parent department---Termination---Appointment of civil servant as Instructor-Electrical (BS-14) on contract basis in borrowing department after his initial appointment and confirmation as Store Keeper in parent department---Termination of services of civil servant before his permanent absorption as Instructor---Civil servant claimed his lien on his original post as he had not been permanently absorbed as Instructor---Supreme Court granted leave to appeal to consider such contention in detail in the light of relevant law and precedent cases.

Executive Engineer, Provincial Building Circle v. Muzaffar Bil Haq 2000 SCMR 656 ref.

(b) Civil service---

----Lien of deputationist on his permanent post in parent department---Termination---Services of deputationist could not be terminated as he retained his lien in parent department for not having been confirmed in borrowing department---Principles illustrated.

Executive Engineer, Provincial Building Circle v. Muzaffar Bil Haq 2000 SCMR 656; Syed Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 rel.

Khushdil Khan, Advocate Supreme Court for Appellant.

Hafiz Aman, Advocate Supreme Court for Respondents.

Date of hearing: 13th December, 2004.

2005 P L C (C.S.) 690

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, CJ and Javed Iqbal, J

IFTIKHAR AHMED MALIK

versus

SECRETARY, MINISTRY OF PETROLEUM AND NATURAL RESOURCES and another

Civil Petition No.1970 of 2002, decided on 18th February, 2005.

(On appeal from the judgment dated 17-9-2002 of the Federal Service Tribunal, Islamabad, passed in Appeal No.205 (P) of 1999).

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

----Rr.3, 4, 5 & 6---Government Servants (Conduct) Rules, 1964. R.16---Passport and Visa Manual, 1974---Revised Leave Rules, 1980, Rr.15(1) and 37---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct---Charges against civil servant were of having obtained a passport by concealing his exact position in Government service, unauthorised employment in a foreign company, travelling abroad without proper permission of competent authority and continuing to draw salary simultaneously from foreign company and also from Government without making requisite deduction---Service Tribunal converted such penalty into that of removal from service in appeal filed by civil servant---Validity---Government servant could not obtain passport in his “private capacity”---No “NOC” could be issued to any Government servant to procure a passport in his “private capacity” which amounted to fraud and dishonest distortion of facts---Civil servant had received salary simultaneously from department and foreign company, but had not made requisite deduction deliberately---Civil servant had executed agreement of employment with foreign company without having sanctioned Ex-Pakistan leave of 364 days---Civil servant had availed 230 days leave piecemeal without permission of competent authority---Reality was unveiled by foreign company, when civil servant represented against his termination from company and resultantly matter was brought to the notice of department, which initiated disciplinary proceedings---Comprehensive inquiry had been conducted and civil servant had been afforded proper opportunity of hearing---Charges against civil servant had been established by cogent and concrete evidence---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

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

----Art. 212(3)---Concurrent findings of fact given by Departmental Authority and Service Tribunal---Validity---Supreme Court would not ordinarily interfere with such findings.

Muhammad Binyamin v. WAPDA 1991 SCMR 383; Faiz Ahmad v. Deputy Postmaster General, Lahore 1991 SCMR 368; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005 fol.

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

----Art. 212(3)---Finding of Service Tribunal---Validity---Where no substantial question of law muchless question of law of public importance, was raised in appeal, a finding of Service Tribunal being a finding of fact, would not call for interference by Supreme Court.

Muhammad Azim v. Chief Engineer, Irrigation 1991 SCMR 255 fol.

Hafiz S.A. Rehman, Sr. Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for petitioner.

Ms. Naheeda Mahboob Elahi, DAG and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 18th February, 2005.

2005 P L C (C.S.) 701

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

EXECUTIVE ENGINEER and others

versus

ZAHID SHARIF

C.A. No. 1203 of 2002, decided on 18th September, 2002.

(On appeal from the judgment dated 30-3-2002 passed by Federal Service Tribunal in Appeal No.93 (R) C.S. of 2001).

(a) Civil service---

----Acquittal from criminal case---Initiation of disciplinary proceedings against civil servant---Scope---Acquittal of civil servant from Court would not impose any bar for initiation of disciplinary proceedings as his acquittal would have no bearing on disciplinary proceedings at all.

Arif Ghafoor v. Managing Director PLD 2002 SC 13 fol.

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

----Rr. 3, 4, 5 & 6---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Charges of corruption---Acquittal of civil servant from criminal case---Subsequent dispensation with regular inquiry initiated earlier and following summary procedure at the directions of competent authority---Imposition of penalty by Executive Engineer instead of Superintending Engineer being competent authority---Service Tribunal in appeal set aside penalty and reinstated civil servant in service with back-benefits---Validity---Serious charges of corruption had been levelled against civil servant---Acquittal of civil servant from Court would not impose bar on initiation of disciplinary proceedings---Necessary formalities as envisaged under the Rules had been adhered to and order of dismissal had been passed after affording proper opportunity of hearing to civil servant---Order of dismissal seemed to have been passed by Executive Engineer under some false impression or due to inadvertent omission and on its basis all proceedings conducted in accordance with the Rules could not be declared ab initio void---In view of dispensing with inquiry and following summary procedure at the direction of competent authority, no fresh inquiry could be held as same would cause serious prejudice to civil servant and department would be in an advantageous position to fill in gaps, benefit whereof, if any, should be given to civil servant---Supreme Court accepted appeal and set aside impugned judgment by remanding case to competent authority to decide matter on basis of available evidence without conducting fresh inquiry.

Arif Ghafoor v. Managing Director PLD 2002 SC 13 fol.

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

----R.5(iv)---Dispensing with inquiry through Inquiry Officer---Not informing civil servant about proposed action to be taken in regard to him and grounds of such action---Validity---Only competent authority had power to decide question, whether an inquiry should be held or not---Not mandatory for department to hold an inquiry where same had been dispensed with by Competent Authority---Where Competent Authority had decided not to hold an inquiry, then it would be bound to inform civil servant in writing about such proposed action and its grounds.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Iqbal Khan, Advocate Supreme Court and Muhammad Aziz Chughtai, Advocate-on-Record (absent) for Respondent.

Date of hearing: 18th September, 2002.

2005 P L C (C.S.) 708

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

GENERAL MANAGER PAK ARAB FERTILIZERS LTD. KHANEWAL ROAD, MULTAN

versus

MUHAMMAD AYUB

Civil Appeal No.796 of 2000, decided on 10th February, 2005.

(On appeal from the order dated 11-2-2000 passed by Federal Service Tribunal, Lahore in Appeal No.548-L of 1999).

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

----Ss.2-A & 6---Appeal before Service Tribunal after abatement of writ petition due to insertion of S.2-A in Service Tribunal Act, 1973---Appeal filed on 12-5-1999 was dismissed by Tribunal on the ground that S.6 of Service Tribunal Act, 1973 was operative from 26-9-1973 for a period of 90 days, which thereafter having become inoperative would not be applicable to such appeal---Validity---Section 6 of Service Tribunals Act, 1973 had never become inoperative---Whenever any enactment constituted a forum of appeal in the form of Tribunal for some category of employees, Tribunal stood established for such purpose, thus, under proviso to S.6 of Service Tribunals Act.1973, establishment of Tribunal became operative and so the provisions of S.6 thereof---By insertion of S.2-A in Service Tribunals Act, 1973, Tribunal stood established for all such employees, the description of whom was given therein---Impugned judgment, held, was not in accordance with law.

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

----S.6---Constitution of Pakistan (1973), Art. 199---Abatement of Constitutional petition before High Court after establishment of Service Tribunal---Validity---Causes which abated before any other forum would be suits, appeals or applications---Constitutional petition would never abate as same could not be equated with suits, appeals and applications---Reasons stated.

Section 6 of Service Tribunals Act, 1973 specifically lays down that upon the establishment of the Tribunal, the causes that abate before any other forum would be the suits, appeals or applications. In the present case, the cause which was held to have abated, was a writ petition and not a suit, appeal or application. Under section 6 of Service Tribunals Act, 1973, the writ petitions were never supposed to have abated. The obvious reason is that a writ petition is never provided either under Service Laws or Labour Laws, which both extensively provide for the entire hierarchies of their own. Writ jurisdiction is an independent and extraordinary Constitutional jurisdiction of the High Court and cannot be equated with applications, appeals or suits as described by section 6 above or by the special laws concerned.

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

----Ss. 2-A & 6---Constitution of Pakistan (1973), Art. 199---Civil Procedure Code (V of 1908), S.9---Pendency of suits or Constitutional petition before the High Court at the time of insertion of S.2-A in Service Tribunals Act, 1973---Effect---Intention of legislature by insertion of S.2-A in Service Tribunals Act, 1973 was never to resurrect an already dead cause of action, but was to provide remedy of appeal as well as forum only to such employees, whose cause of action was alive and had not already exhausted remedies available under related law by the time or long before such insertion---Such suits or Constitutional petitions if being availed as a first remedy, would abate after such insertion---Employee after availing all remedies provided under related law and having finally failed to obtain relief in given hierarchy, if opted to file Constitutional petition, then same, in itself, could not be equated with the one filed at the first instance and would not abate---Principles.

There are certain employees, who are or were not given any right of appeal before the Tribunal. They normally resorted either to the Civil Court or preferred writ petitions under Art. 199 of the Constitution as a first remedy. When during the pendency of such civil suits or writ petitions, section 2-A of Service Tribunals Act, 1973 came into existence and a Tribunal was established, such suits or writ petitions being the first remedy availed, would abate and the plaintiffs or petitioners, as the case may be, would have a right under S.6 of Service Tribunals Act, 1973 to resort to Tribunal within 90 days, provided always that they fell within the categories specified by newly-added section 2-A of the Act.

But situation would be altogether different when an employee, after availing all the remedies provided by Service Laws, Labour Laws or any other law relating to them, and having finally failed to obtain any relief in the given hierarchy, opts to further file, if maintainable, a writ petition under Article 199 of the Constitution. Such a writ petition, independent in itself, cannot be equated with the one filed at the first instance and hence cannot abate.

By insertion of section 2-A in the Service Tribunals Act, the legislature provided a regular remedy of appeal as well as forum to those employees only whose cause of action was alive and the remedy had not stood already exhausted by the time or long before the enactment of S.2-A. The intention of legislature by insertion of S. 2-A was never to resurrect a cause of action that had already become dead.

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

----Ss. 2-A and 6---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts. 199 & 212(3)---Constitutional petition before High Court---Dismissal from service---Junior Labour Court dismissed grievance petition of employee, but Labour Court reinstated him in service by accepting his appeal---Constitutional petition filed by employer against such decision had abated due to insertion of S.2-A in Service Tribunals Act, 1973---Service Tribunal dismissed appeal filed by employer---Validity---Parties had already exhausted genuine remedies provided under Labour Laws through last order of Labour Court (Court of Appeal)---Filing of Constitutional petition by employer was, thus, not a regular remedy provided under related laws and being filed in its own independent perspective and being extraneous to relevant hierarchy, could not abate---Employer in essence challenged before Tribunal order of Labour Court (Court of Appeal), whereas orders liable to be challenged before Tribunal were those passed by departmental authority, which was never against employer---Constitutional petition had been wrongly held to have abated---Proper course for employer was to have challenged abatement order before Supreme Court---Dismissal of Constitutional petition by the High Court and subsequent resort to Tribunal both were illegal---Supreme Court dismissed appeal being not maintainable.

Javed Altaf, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for appellant.

Respondent in Person.

Ms. Naheeda Mehboob Elahi, DAG for State.

Date of hearing: 10th February, 2005.

2005 P L C (C.S.) 718

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

SIKANDAR KHAN MALIK and others

versus

PRESIDENT, HABIB BANK LTD and others

Civil Petitions Nos.373 to 375 of 2003, decided on 16th February, 2005.

(On appeal from the judgments dated 26-12-2002 of the Federal Service Tribunal, Islamabad passed in Service Appeals Nos.666-R/98, 687-R/98 & 704-R/98).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 212 (3)---Promotion---Bank employee---Petitioners sought promotion though they had accepted Golden Handshake Scheme---Departmental representation as well as appeal before Service Tribunal were dismissed---Validity---Competent authority of the Bank considered cases of petitioners for promotion but declined to grant relief as they were not found fit for promotion---Question of promotion did not create a vested right in favour of employee---Petitioners having had availed Golden Handshake Scheme they were not entitled to the claimed relief---Service Tribunal had rightly declined relief to petitioners---Leave to appeal was refused.

Hazoor Ul Islam Abbasi v. Federation of Pakistan and others Civil Petition No.606 of 2001 and Zafarullah Baloch v. Government of Balochistan and others 2002 SCMR 1056 rel.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners (in all Cases).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in all Cases).

Date of hearing 16th February, 2005.

2005 P L C (C. S.) 737

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

GOVERNMENT OF N.‑W.F.P. and others

Versus

FARMAN ALI and others

Civil Petitions Nos.366‑P and 369‑P of 2003, decided on 4th March, 2005.

(On appeal from a common judgment, dated 21‑4‑2003 passed by the learned Service Tribunal, N.‑W.F.P., Peshawar in Appeals Nos.150 and 151 of 2002).

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

‑‑‑‑S. 4‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Appeal before Service Tribunal‑‑‑Maintainability‑‑‑Civil servant challenging order of departmental authority on merits‑‑‑Validity‑‑‑Appeal against quantum of punishment in the Provinces of North‑West Frontier ­Province and Balochistan, lies only where the penalty imposed was dismissal from service, removal from service or compulsory retirement‑‑‑In case of no other punishment a civil servant could file appeal challenging quantum of sentence alone‑‑‑Appeal exclusively challenging quantum of punishment was barred and not the appeal on merits of the case challenging the very conviction‑‑‑If holding guilty of a civil servant by departmental authority was accepted and appeal was preferred before Service Tribunal against the quantum of punishment alone, it was clearly barred under the laws applicable to North‑West Frontier Province and Balochistan‑‑No bar existed against challenging the conviction on merits regardless of what punishment had been imposed‑‑Where civil servants had challenged before Service Tribunal the orders of departmental authority both on merits as well as me quantum of sentence, appeal was competent.

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

-‑‑S. 4--‑Appeal before Service Tribunal‑Limitation‑‑Filing of miscellaneous application‑‑Departmental representation was decided pan 27‑7-2001, whereas appeal before Service Tribunal was filed on 11‑3‑2002‑‑‑Civil servants filed application seeking explanation about what had already been given in the order dated 27‑2-2001‑-Effect‑Such explanation could have been asked for even after filing of appeal before Service Tribunal and moreover, it could be asked even through the Tribunal seeking comments of department in writing-‑Appeal before Service Tribunal was time‑bared.

Muhammad Hashim's case 1990 SCMR 1440; Malik Muhammad's case 1992 SCMR 1136 and Khalid Wahid's case 1998 SCMR 1153 ref.

(c) Words and phrases‑--

---‑a' andthe'‑--Applicability‑Article a' is generally used for generalizing the number in plural sense and not particularizing the same as is done by the articlethe'.

Words and Phrases Permanents Edition Vol. 1; U.S. v. Hudson : 65 F.68, 71; First Trust Joint Stock Land Bank of Chicago v. Armstrov. 269 NW, 502, 506, 222 Iowa 425, 107 ALR 873; State v. Martin 30 S.W. 421, 422, 423, 60 Ark. 343, 28 L.R.A. 153; People v. One 1940 Buick Sedan, 162, p.2d, 318, 320, 71, C.A.2d, 160, Sanders, 54 Law J.Q.B. 331, 333; National Union Bank v. Copeland 4 N.E. 794, 795, 141, Mass. 257, 267; Crown Coach Co. v. Public Service Commission 179 S.W.2d, 123, 127, 238, Mo.App.387, Bourland v. First Nat. Bank Bldg. Co. 237 S.W. 681, 683, 152 Ark. 139, Lindley v. Murphy 56 N.E.2d, 832, 838, 387, 111, 506 and Dobbs v. Board of Country Com'rs of Oklahoma Country 257 P.2d 802, 809, 208 Okl. 514 ref.

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

‑‑‑‑S. 4 (1)(b)(i)‑‑‑Reduction to lower stage‑‑‑Use of word a'‑‑‑Effect‑‑­Civil servants were proceeded against departmentally and penalty of reduction to minimum of time scale was imposed‑‑‑Departmental representation was decided on 27.2.2001, whereas appeal before Service Tribunal was filed on 11.3.2002‑‑‑Appeal before Service Tribunal was partly allowed and penalty was converted into stoppage of three increments without cumulative effect‑‑‑Plea raised by the authorities was that penalty to any lower stage and not to only one stage below, could be imposed under S.4 (1)(b)(i) of North‑West Frontier Province Service Tribunals Act, 1974‑‑‑Validity‑‑‑Worda' used in S.4 (1)(b)(i) of North-­West Frontier Province Service Tribunals Act, 1974, denoted the word 'any' and not 'one'‑‑‑If Legislature intended reduction to one low7rstage in time scale, it was not at all difficult for law‑maker to have used the word one' instead ofa' or to have used the article the' instead ofa'‑‑­Using word 'a' for a lower stage in time scale, the intention of Legislature Was never restricted to one lower stage, rather, it was generalized to any lower stage in such time scale availed by civil servant‑‑‑Reduction to minimum of time scale was not unlawful‑‑­Departmental authority had lawfully reduced the civil servants to the lowest stage in time scale and their appeals before Service Tribunal were time‑barred‑‑‑Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal and that of departmental authority was restored‑‑­Appeal was allowed.

The Commandant, 502, E.M.E. Central Workshop, Rawalpindi 1997 SCMR 1471; Zain Yar Khan's case 1998 PLC (C.S.) 1484 and Aslam Javed, Deputy Superintendent, Dry Port, Lahore's case 2000 PLC (C. S.) 1180 ref.

Hafiz Aman, Advocate Supreme Court for Petitioners (in both C.Ps.).

Respondent No. 1 in person (in C.Ps. Nos.366‑P and 369‑P of 2003).

Dates of hearing: 17th and 18th January, 2005.

2005 P L C (C.S.) 750

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Civil Appeals Nos.514 to 536 and 1604/2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad

Versus

SULTAN MAHMOOD and others

(On appeal from the judgment dated 26‑12‑2002 of Federal Service Tribunal passed in Appeals Nos. 428, 31, 32, 419, 420, 421, 422, 423, 430, 436, 438, 439, 446, 447, 457, 844 (R)(CE)/2001, 31, 32, 33, 35, 36, 48, 199 (P)CE/2001 and 22(L)CE/2001 respectively).

Civil Appeals Nos. 1295 to 1304 of 2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellants

Versus

JAVED MUSHTAQ and others‑‑‑Respondents

(On appeal from the judgment dated 2‑6‑2003 of Federal Service Tribunal, Islamabad passed in 266 to 275(L)(CE)/2001).

Civil Appeals Nos. 1355 & 1356 of 2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellants

Versus

GHAZALA NAQVI and others‑‑‑Respondents

(On appeal from the judgment dated 21‑12‑2001 of Federal Service Tribunal, Islamabad passed in Appeals Nos. 491 and 492(R)CE of 2001).

Civil Appeals Nos. 1286 to 1381 of 2004

UTILITY STORES CORPORATION OF PAKISTAN through. Managing Director, Islamabad‑‑‑Appellants

Versus

EHSANULLAH KHAN and others‑‑Respondents

(On appeal from the judgment dated 12‑3‑2004 of Federal Service Tribunal passed in Appeals Nos. 37 to 46, 49 to 72, 113, 117, 118, 120 to 138(P)CE/2001, 433, 434, 437, 440 to 442, 474 to 476, 478 479, 484, 486, 487, 489, 490, 493 to 503, 538, 539, 542, 543, 546 to 548, 551, 654, 672, 673, 890 and 119(R)(CE)/2001 respectively).

In C. M.A. No. 1920/2004 in C. A. No. 1286/2004

UTILITY STORES CORPORATION OF PAKSITAN through Managing Director, Islamabad‑‑‑Appellant

Versus

ZAFAR IQBAL‑‑‑Respondent

Civil Appeals Nos.514 to 536, 1295 to 1304, 1355, 1356, 1604 of 2003 and 1286 to 1381 of 2004 and C.M.A. No.1920 of 2004, decided on 28th March, 2005.

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

‑‑‑‑Ss. 3 & 5‑‑‑Dismissal/removal from service‑‑‑Pre‑conditions‑‑‑When there were no charges of inefficiency, guilty of misconduct, corruption etc. and no inquiry as required under S.3 of Removal from Service Ordinance, 2000, was conducted against civil servant, the provisions of Removal From Service Ordinance, 2000 could not be invoked.

(b) Utility Stores Corporation of Pakistan (Pvt.) Ltd. Service Rules, 1981‑--

‑‑‑‑Rr.4 & 18 (g)-‑‑Removal From Service (Special Powers) Ordinance (XVII of 2000), S.3‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Removal from service‑Principle of audi alteram partem‑‑­Applicability‑‑‑Retrenchment, principle of lifo (last in first out),‑‑‑Utility Stores Corporation of Pakistan (Pvt.) Ltd. removed its employees from service under the provisions of Removal From Service (Special Powers) Ordinance, 2000 without giving any show‑cause notice to them‑‑Order of removal from service was assailed before Service Tribunal under Ss.2‑A and 4 of service Tribunals Act. 1973‑‑‑Service Tribunal allowed appeals filed by the employees and directed the Corporation to reinstate them‑‑‑Plea raised by the Corporation that removal was with the object of retrenchment and no show‑cause notice was required under Utility Stores Corporation of Pakistan (Pvt.) Ltd. Service Rules, 1981‑­-Validity‑‑Corporation failed to prove that retrenchment was necessary--Procedure adopted by the Corporation for removing the employees from service was neither in law nor on facts was justified‑‑Principle of lifo was also pot applied, instead discriminated treatment was given to the employees‑‑‑Although financial difficulties of the Corporation' were argued before the Supreme Court, yet no document to substantiate the contention was referred to‑‑‑Corporation failed to bring necessary amendments in Utility Stores Corporation of Pakistan (Pvt) Ltd. Service Rules, 1981 and present was not a case of termination simpliciter‑‑‑All observations made by Service Tribunal in its judgment held the field and the Corporation could proceed against the employees having complied with the deficiencies pointed out by the Tribunal‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑­Appeal was dismissed.

United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others 2002 PLC (C.S.) 526; Mehreen Zaibun Nisa v Land Commissioner, Multan and others PLD 1975 SC 397; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14; Delhi Transport Corporation v. DTC Mazdoor Congress and others AIR 1991 SC 101; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmed and 3 others 1995 SCMR 1593; Pakistan Railways through General Manager v. Ghulam Rasool 1997 SCMR 1581; Muhammad Ahmed, v. Government of Sindh and another 1999 SCMR 255; Fazal Ilahi and others v. PTC and others 2001 SCMR 768; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Muhammad Janan v. General Manager, Pakistan Mineral Development Corporation (Pvt.) Ltd., Islamabad PLD 2003 SC 156; Aamir Ikram and 10 others v. District Health Officer, Vehari and others PLD 2003 SC 266; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; SME Bank Limited through Kaiser H. Naseem, President v. Mehfooz Elahi Piracha and 2 others 2003 PLC (C.S.) 1282; Nasim Ahmad v. Water and Power Development Authority through Chairman, Lahore and another 2004 SCMR 56; Arshad Jamal v. N.‑W.F.P. Forest Development Corporation and others 2004 SCMR 468; Farast Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874; WAPDA v. Fida Hussain 2004 PLC (CS) 1240; Ghulam Mustafa Khairati v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and another 2005 PLC (CS) 417; Ikram Bari and others v. National Bank of Pakistan through its President & others 2005 SCMR 100 ref.

Malik Akhtar Hussain Awan, Advocate Supreme Court, M. Jaffar Hashmi, Advocate Supreme Court and. Malik Muhammad Nawaz, Advocate Supreme Court for Appellants (in all Cases).

M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos.514 to 536, 1355‑56/2003, 1286 to 1381/2004).

Karam Ilahi Bhatti, Advocate‑on‑Record for Appellants (in C.As. Nos. 1295 to 1304/2003).

Muhammad Akram Sh., Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents (in C.A. No.514/2003).

Muhammad Akram Sh., Senior Advocate Supreme Court, F.K. Butt, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on­-Record for Respondents (in C.As. Nos. 515 to 529, 536, 1295 to 1304 and 1604 of 2003).

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Abdul Aziz Kundi, Advocate‑on‑Record (absent) for Respondents (In C.As. Nos.530 to 532/2003).

Amjad Ali Shah (in person) (in C.A.No.535 of 2003).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Ch. Muhammad Akram, Advocate‑on‑Record for Respondents (In C.As. Nos. 1286, 1289, 1291, 1292, 1294, 1296, 1297, 1299 to 1304, 1375, 1376, 1306 to 1308, 1311 to 1313, 1315, 1317, 1318, 1322, 1328, 1330, 1332, 1333, 1335 to 1339, 1341, 1355, 1357, 1361, 1365, 1367 to 1370 & 1376/2004).

Sadiq Muhammad Warraich, Advocate Supreme Court for Respondents (in C.As. Nos. 1287 to 1290, 1293, 1295, 1298, 1305, 1309, 1310, 1314, 1316, 1319, 1321, 1323 to 1326, 1129, 1331, 1340, 1342 to 1353, 1356, 1362, 1372 to 1374, 1377 to 1381/2004).

Zafar Iqbal (in person) (In C.M.A. No.1920/2004 in C.A. No.1286/2004).

Date of hearing: 28th March, 2005.

2005 P L C (C.S.) 771

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

ASDULLAH MANGI and others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others

Civil Appeals Nos. 1959 to 1962 of 2001, heard on 1st June, 2004.

(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 19‑7‑2001 passed in C.P. Nos.D‑1587, 1588/97, 801, 1420 and 1534 of 1999).

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

--‑Constitution of Pakistan (1973), Arts. 185(3) & 25‑‑‑‑Non‑induction in service of Flight Stewards on completion of training and getting crew uniform‑‑‑Allegation was that petitioners were fully trained Flight Stewards and they received training at the PIA Training Centre, and that, on completion of the training they got PIA crew uniform but were not appointed as Flight Stewards while others who had also got training with them were inducted in service‑‑‑Leave to appeal was granted by the Supreme Court to consider the questions as to whether the petitioners were discriminated by way of violation of Art.25 of the Constitution; whether the impugned letters/orders of not inducting the petitioners in service of Corporation were mala fide, illegal and without lawful authority and whether the Corporation violated the order of Supreme Court passed in various petitions by not appointing the petitioners in service.

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

‑‑‑‑Constitution of Pakistan (1973), Art. 25‑‑‑Contention of the appellants was that they were fully trained Flight Stewards as they had completed the training at the PIA Centre for Flight Stewards and were given crew uniform but had not been inducted in service though others who took training with them had been inducted and thus the appellants had been discriminated against by infringing their Fundamental Right under Art. 25 of the Constitution‑‑‑Validity‑‑-Perusal of "letter of offer for employment" indicated that it was an "offer" simplicitor which could not be equated to that of "appointment"‑‑‑Letter of offer reflected that the appellants were advised to report to the Manager Employment of the Corporation for further action‑‑‑Procedural formalities were completed by the said letter and the same had got no concern with actual appointment‑‑‑"Offer for employment" in the Corporation as Trainee Flight Steward was subject to completion of training and Letter of offer by no stretch of imagination could be considered as an appointment letter‑‑‑Appellants were never appointed as Flight Steward but admittedly they were selected as a Trainee Flight Steward on the basis whereof it could not be inferred that they were in fact appointed as Flight Steward; there was a difference between a "Trainee Flight Steward" and a "Regular Appointee as Flight Steward" and a line of distinction was to be brought between the two‑‑‑Appellants had been informed by means of letter that as a result of review of the relevant record, they could not be inducted as Flight Stewards because their selection was made due to Political pressure at the relevant time which was irregular‑‑‑No vested of legal right whatsoever, in circumstances, had accrued in favour of the appellants, hence the question of its infringement did not arise‑‑‑Supreme Court observed that it was an admitted feature of the case that the appellants had undergone selection procedure and also sent for professional training of Flight Steward and were also paid stipend by the Corporation it would be in the interest of justice, fairplay and equity, if the cases of the appellants were considered on humanitarian grounds as fresh candidates subject to completion of all legal formalities‑‑‑Supreme Court, however, pointed out that no action whatsoever was taken against the functionaries of the Corporation by whom selection of the appellants was made, and huge amount was spent on their training and for making such an irregular and unlawful exercise, merely on the directions of Prime Minister Secretariat, having no legal sanctity behind it‑‑­Principles.

Abdul Jabbar Memon In re: 1996 SCMR 1349 fol.

Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Foundation of an application under Art. 199 of the Constitution is a personal and individual right‑‑‑Principles.

The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can be issued under Art. 199.

Muntizma Committee v. Director K.A. PLD 1992 Kar. 54; Mahmoona v. Ilam Din PLD 1984 Lah. 228; Assam Fisheries Farms and Industries Ltd. v. The Development Commissioner Assam and others AIR 1953 Assam 155 and Mehboob Khan v. Deputy Commissioner Lakhimpur and others AIR 1953 Assam 145 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Civil service‑‑‑Suitability for appointment‑‑‑Assessment‑‑‑Jurisdictional domain of appointing authority‑‑‑Scope‑‑‑Exercise of discretion, whether fair and transparent ‑‑‑Justiciability‑‑‑ Principles‑‑‑Mala fide or colourable action or action taken upon extraneous or irrelevant considerations or upon no ground at all or without proper application of mind of an authority‑‑‑Effect.

Assessment of suitability for appointment being subjective assessment exclusively falls within the jurisdictional domain of appointing authority which cannot be compelled to make any appointment. The exercise of discretion, if it is fair and transparent cannot be justiciable in the absence of any mala fide which though was alleged but could not be substantiated by producing any cogent and concrete evidence.

An action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner.

The State v. Zia‑ur‑Rehman PLD 1973 SC 49 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

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

‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Concept.

"Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.

Gul Khan v. Government of Balochistan PLD 1989 Quetta 8 ref.

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

‑‑‑‑Art. 25‑‑‑Applicability of Art.25 of the Constitution‑‑‑Scope‑‑‑Article 25 of the Constitution would not be applicable to Pakistan International Airlines Corporation since a Corporation being an autonomous corporation cannot be forced to make employment which otherwise is not in the interest of Corporation or has adverse effects on its commercial position.

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

‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Discrimination‑‑‑Bias‑‑‑Powers of Court to administer supposed equity‑‑‑Scope‑‑‑Principles.

Discrimination always involves an element of unfairness and bias and it is in that sense that the expression has to be understood. The factum of bias could not be substantiated by any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not based on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants.

Manjula v. D. P.I. AIR 1952 Orissa 344; Siddiq Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W.P.) Kar. 887; Jeshingbhai Ishwarlal v. Emperor AIR 37 1950 Bom. 363; Bagaram Tuloule v. The State of Bihar AIR 1950 Patna 387; Harnam Singh v. The State of Punjab AIR 1952 Punj. 76 and Badri Prasad v. President, District Board, Mirzapur AIR 1952 All. 681 ref.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑ Petitioner before invocation of Constitutional jurisdiction must show that he had a clear legal right not susceptible to any reasonable doubt or controversy‑‑‑Letter of offer for employment as "Flight Stewards" in the Corporation‑‑‑Question as to whether the training was completed or not, uniforms were provided or not, passing out parade was held or not, applications were moved through back door or not were the questions of fact which could not be determined in Constitutional jurisdiction.

Khairuddin v. Settlement Commissioner 1988 SCMR 988 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Object of proceedings initiated under Art. 199 of the Constitution is the enforcement of a right and not the establishment of legal right and therefore, the right of the incumbent concerned which he seeks to enforce, must not only be clear and complete but simplicitor and there must be an actual infringement of the right.

Kandaswamy and others v. The Deputy Registrar of Cooperative Societies, Coimbatore and another AIR 1954 Mad. 348 ref.

(j) Vested right‑‑‑

‑‑‑‑Exercise of‑‑‑Scope‑‑‑Vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment‑‑‑There is hardly any right which can be so exercised and there must always be occasions at which and circumstances under which they may be exercised‑‑‑Such rights have peculiar characteristics of their own.

Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 ref.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellants (in all cases).

Muhammad Yawar Ali, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 1st June, 2004.

2005 P L C (C.S.) 798

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUHAMMAD YOUNUS TANOLI

Versus

FEDERATION OF PAKISTAN through Secretary Finance and others

Civil Appeal No.40 of 2001, decided on 9th March, 2005.

(On appeal against the judgment, dated 6‑5‑1999 passed by the Federal Service Tribunal, Islamabad in Appeal No.206‑R of 1998).

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

‑‑‑‑S. 4‑‑‑Notification O.M. No.F‑7(I)Imp.1/90‑Vol‑II, dated 7th February, 1991, issued by Finance Division‑‑‑Constitution of Pakistan (1973), Art.212 (3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of civil servant that adverse report was not communicated to him and that in view of the rule laid down by Supreme Court in cases reported as 1994 SCMR 544 and 1997 SCMR 1303 adverse reports could not be handled for the grant of move-over.

Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1994 SCMR 544 and Pakistan Broadcasting Co. through D.G. HQs. and another v. Nasiruddin 1997 SCMR 1303 ref.

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

‑‑‑‑S. 4‑‑‑Notification O.M. No.F‑7(I)Imp.1/90‑Vol‑II, dated, 7th February, 1991 issued by Finance Division‑Move‑over from B‑17 to B‑18‑‑‑One good and one average Annual Confidential Report‑‑‑Civil servant was denied move‑over by the authorities on the ground that he did not earn two good Annual Confidential Reports‑‑‑Appeal was dismissed by Service Tribunal‑‑‑Validity‑‑‑For the purposes of move­-over an average Annual Confidential Report could be treated generally as `good'‑‑‑ Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to grant move‑over to the civil servant from B‑17 to B‑18 from the date when it was due to him‑‑‑Appeal was allowed.

Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1994 SCMR 544; Pakistan Broadcasting Co. through D.G. HQs. and another v. Nasiruddin 1997 SCMR 1303 and Federation of Pakistan through Secretary Health Division v. Dr. Najmul Ghani Khan 1995 PLD SC 556 ref.

Muhammad Anwar v. The Secretary Establishment Division Rawalpindi and 2 others PLD 1992 SC 144 fol.

Rana Manzoor‑ul‑Hassan v. Secretary, M/o Education, Islamabad and others 1995 SCMR 8 distinguished.

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

Mrs. Nahida Mehboob Elahi, D.A.‑G., Mehr Khan Malik, Advocate‑on‑Record Muhammad Hanfi Bhatti, Director Legal, National Saving Centre for Respondents.

Date of hearing; 9th March, 2005.

2005 P L C (C.S.) 806

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

MANAGING DIRECTOR, OIL AND GAS DEVELOPMENT COMPANY LTD.

Versus

Syed NAJMUL HASSAN NAQVI

Civil Appeal No.662 of 2001, decided on 28th February, 2005.

(On appeal from the judgment, dated 23‑6‑2000 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1675(R) of 1999).

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

‑‑‑‑S. 4‑‑‑Civil Procedure Code (V of 1908), S.80 & O.VII, R.11‑‑­Premature appeal‑‑‑Effect‑‑‑Any suit or cause of action which is premature, does not entail dismissal of that cause but it results into rejection under O.VII, R.11 C.P.C. that does not operate as res judicata‑‑‑If appeal before Service Tribunal is premature, it should be returned by Registrar so as to be re‑submitted after maturity of cause of action.

Abdullah Bhai's case PLD 1964 SC 106; Muhammad Usman's case PLD 1983 SC 436; Syed Aftab Ahmed's case 1999 SCMR 197; Pakistan International Airlines Corporation's case 1999 PLC (C.S.) 1539 and Sui Southern Gas Company Limited's case 2003 PLC (C.S.) 796 ref.

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

‑‑‑‑S. 4‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Premature appeal‑‑‑Filing of appeal before expiry of ninety days‑‑‑Penalty of compulsory retirement, setting aside of‑‑‑Civil servant was compulsory retired from service but Service Tribunal allowed appeal and set aside the penalty‑‑‑Plea raised by the authorities was that civil servant had filed appeal after eighty days from filing of departmental representation, thus the appeal was premature the same merited dismissal by Service Tribunal‑‑‑Validity‑‑‑If at the initial stage, by serious omission; the timely return of appeal was avoided and the cause of action was allowed to mature during pendency of appeal and on the fag end of proceedings, the appeal was dismissed on the ground that the initial submission was premature, such volte face if taken by Service Tribunal, could not be endorsed under any canon of justice‑‑‑Premature matters were not bad but simply, premature and must be returned‑‑‑Failure to return the appeal debarred the Tribunal to subsequently jeopardize rights and bona fide claims of civil servants‑‑‑Service Tribunal was required to return the appeal at the very first instance, if such course was not adhered to, then the Tribunal subsequently could not damage the civil servant on the grounds of prematurity of appeal when the same had become mature during the pendency allowed by Service Tribunal itself‑‑‑Service Tribunal had rightly declined to dismiss the appeal on the score of prematurity ‑‑‑Appeal was dismissed.

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

‑‑‑‑S. 4‑‑‑Penalty of compulsory retirement, setting aside of‑‑­Discrimination‑‑‑ Departmental inquiry was initiated against eight officers but the respondent civil servant was only condemned who was compulsory retired from service just 4 days prior to his superannuation‑‑‑Service Tribunal allowed the appeal and set aside the penalty‑‑‑Validity‑‑‑No action was taken against other officers under inquiry on the ground that he was to retire after about four months‑‑‑If such reason could prevail with the authorities with regard to that other officer, it was equally available for the respondent civil servant who was compulsorily retired 4 days before his superannuation ‑‑‑Service Tribunal had rightly concluded that the penalty awarded to respondent civil servant was clearly discriminatory and his retirement was expedited mala fide despite the fact that after 4 days he was to retire on superannuation‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal as tile same was unexceptionable‑‑‑Appeal was dismissed.

Shah Abdul Rasheed, Advocate Supreme Court with Syed Amjad Ali, Dy. Admn. Officer (O.G.D.C.) for Appellant.

Hafiz S.A. Rehman, Advocate Supreme Court for Respondent.

Date of hearing: 28th February, 2005.

2005 P L C (C.S.) 915

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

IKRAM BARI and others

Versus

NATIONAL BANK OF PAKISTAN through President and others

Civil Petitions Nos. 1772, 1789 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909 to 1942, 1944 to 1946, 1991 to 1998, 2002, 2021 to 2080, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2164, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2188 to 2432, 2449 to 2520, 2530 and 2606 of 2003, decided on 21st September, 2004.

(On appeal from the judgment, dated 17-7-2003 of the Federal Service Tribunal, passed in Appeals Nos. 98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466-R/CW/2002)

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

---Ss. 2-A & 4---Termination from service---Godown staff/daily wages employees---Status---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/ loanees---Validity---As the employees were not selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they could be treated to be the employees of the borrowers/loanees---If the salaries of temporary employees / godown staff or the daily wages employees were debited to the borrowers account that would make no difference since for all practical purposes and legal consequences the employees were placed under the administrative control of the bank.

(b) Islamic jurisprudence---

--Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens.

(c) Industrial dispute-----

----Employer and employees---Bargaining strength---Termination from service---Godown staff / daily wages employees---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---No equilibrium of bargaining strength between employer and employees existed---Manner in which the employees had been dealt with by the bank was a fraud on the statute.

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

----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance---Applicability---Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights---Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals---State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.

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

----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Godown staff / daily wages employees---Reinstatement---Back ­benefits, grant of---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---Supreme Court found it difficult to countenance the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act, 1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the door, had no option but to accept and continue with the appointment on whatever conditions it was offered by the bank---Service Tribunal had rightly imposed a condition of three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of employees---Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time---Employees had woken up from deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair and inequitable to grant them monitory back-benefits of service from the dates of their initial appointments---Supreme Court directed the bank to issue appointment letters to the employees and previous service rendered by them with the bank would be counted towards retirement/pensionary benefits---Appeal was allowed.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Federation of Pakistan v. Raees Khan 1993 SCMR 609; Abdul Majeed Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I, v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294; Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Allandino v. Fakir Muhammad and another PLD 1969 SC 582; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C,S.) 25; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212; Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; WAPDA and others v. Khanimullah and others 2000 SCMR 879; Black's Law Dictionary Revised 4th Edit. (1968) p.1518; State Bank of India v. Sliri N. Sundara Money AIR 1976 SC 1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Kar.); Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lah.); Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935; Muhammad Riaz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471; Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337 ref.

(f) Judgment---

----Judgment in rem and judgment in personam---Case-law cited.

Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34; Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145; Pir Bakhsh's case PLD 1983 SC 684; Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567; Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684 rel.

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

---Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Time-barred appeal---Plea of void order---Limitation---Principle---Service Tribunal dismissed the appeal being barred by limitation---Plea raised by the employees was that the order of termination was a void order against which there was no period of limitation---Validity---No rule of universal application was that in all cases of void orders, question of limitation was to be treated a mere technicality and a litigant was entitled to invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay---Supreme Court declined to interfere with the order passed by Service Tribunal---Leave to appeal was refused.

Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and 2 others PLD 1990 SC 692 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882 rel.

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

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Godown staff/daily wages employees---Proceedings before National Industrial Relations Commission---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the Bank yet their salaries were being paid by the borrowers/loanees---Employees had been pursuing their cases before National Industrial Relations Commission and their appeals were dismissed by Service Tribunal being barred by limitation---Validity---Controversy as to the application of S.2-A of Service Tribunals Act, 1973, remained in a state of fluidity for a considerable period of time---Service Tribunal itself had declined to exercise its jurisdiction in old cases and the matter was resolved by Supreme Court---As the termination orders were passed on 2-7-2002, 30-4-2002 and 29-2-2002 and appeals before Service Tribunal were filed on 6-7-2002, 8-6-2002 and 29-4-2002 after filing departmental appeals, the Service Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of the employees as time-barred---Judgment of the Service Tribunal was set aside and the petition for leave to appeal was converted into appeal---Supreme Court reinstated the employees in service with back-benefits from the date of their termination---Appeal was allowed.

Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 rel.

Ch. Ghulam Qadir, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1772, 1789 to 1795, 1839, 1840 to 1843, 1884 to 1896, 1901 and 1910 to 1912/2003).

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174/2003).

Syed Iftihkar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003).

Ehsan-ul-Haq, Ch. Advocate Supreme Court for Petitioners (in C.Ps. Nos.2021 to 2073, 2075, 2076, 2078, 2179 and 2180 of 2003).

Muhammad Akram Sh. Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2168 of 2003).

Kh. Muhammad Farooq, Senior Advocate Supreme Court, Rai Ahmed Nawaz Kharal, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in C.Ps. Nos.2188 to 2425 of 2003 and in all other petitions).

In person (in C.Ps. 2182, 2183 to 2185 and 2330 of 2003).

Date of hearing: 9th March, 2004.

2005 P L C (C.S.) 1056

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD SHOAIB and 2 others

Versus

GOVERNMENT OF N.-W.F.P. through the Collector, D.I. Khan and others

Civil Appeals Nos.1283 to 1285 of 2001, decided on 14th October, 2004.

(On appeal from the judgment dated 13-1-2001 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.1181, 1187 and 1421 of 1997).

Per Sardar Muhammad Raza Khan, J. Javed Iqbal, J. agreeing:---

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether the appointments of civil servants were illegal and void ab initio being against the prescribed rules; and whether the Government having first appointed the civil servants without observing the codal formalities, could subsequently turn around and say that such appointments were illegal.

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

----S. 4---Removal from service---Audi alteram partem, principle of---Applicability---Illegal act of authorities---Effect---Civil servants were appointed in Agriculture Department without any advertisement and test---Civil servants were removed from service without any show-cause notice on the ground that their appointments were illegal and against the prescribed rules---Service Tribunal dismissed the appeal--.Validity---Authorities were bound to issue show-cause notice to the civil servants in that regard---If such notice would have been issued, the civil servants might have come out with the defence that the appointments were not illegal and that the illegality, if at all, had been committed by the department itself for which action the civil servants could not be penalized---Civil servants in circumstances, were condemned unheard and were made to suffer for the illegality committed by the Government itself---Principle of natural justice and audi alteram partem, was violated and non-issuance of notice could not be ignored unless a fair opportunity of representing their point of view had been given to the civil servants at one stage or the other---No such opportunity was given at any stage before termination of service---Supreme Court required that action be taken against those who were guilty of making illegal appointments and deprecated that the same authority committed illegality itself not once but twice; one at the time of appointment and second at the time of removing the civil servants from service---Authority could not be allowed to punish others for the illegal acts of its own---Order of removal from service of civil servants was declared void as well as violative of the principles of natural justice, locus poenitentiae and estoppel---Judgment passed by Service Tribunal was set aside and civil servants were reinstated in service with back benefits---Appeal was accepted.

Mst. Maryam Yunus v. Director of Education PLD 1990 SC 666(e); Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor General of Pakistan 2002 SCMR 1120 and Nisar and 9 others v. Government of N.-W.F.P. and others(Civil Appeals No.616 of 2002) ref.

(c) Good governance---

----Change of administration---Non-endorsing of action of previous administration---Illegal appointments withdrawn by new administration--Effect---Government is perpetual entity---Heads may change but Government does not---Action once taken by one administration is to be followed by the changed administration more particularly when it involves employment of people---Thousands of people are rendered jobless and tens of thousands of families are rendered destitute simply because some subsequent administration did not endorse action of previous administration---People in present times are rendered jobless in order to accommodate certain other people of their own choice as such the same is tantamount to creating false sense of achieving employment levels---Action is required to be taken against those who are guilty of making illegal appointments.

Per Khalil-ur-Rehman Ramday, J. [Minority view]---

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

----S. 4---Removal from service---Illegal appointments---Posts on which the civil servants were. appointed were not advertised and no merit list was prepared---Civil servants were yet on probation when the Government was changed and the civil servants were removed from service---Civil servants did not have outstanding academic career and had a little more than 50% marks in matriculation examination---Appeal against the order of removal was dismissed by Service Tribunal---Validity---Was not believable that in whole of North-West Frontier Province no young man could ever manage to obtain a grade better than the one had by the civil servants who were appointed to the posts in question---Civil servants were not the best available to serve the people, the Province and the country, as such the appointments in question were a serious encroachment upon the rights of the people and the country who consequently stood deprived of their rights and were the sufferers of illegal exercise of appointments of the civil servants---In the process of appointments of the civil servants, another silent sufferer was the victim of atrocity comprising of young men who could well be much better qualified and consequently much more eligible and worthy of holding the posts in question but were deprived of their right because of un-ethical, dishonest and immoral act leading to the appointment of civil servants in secret and clandestine manner---Appointments in question were illegal and unlawful not only .that they had been made in a manner offensive of rules and law on, the subject but also because they had been made in serious violation of the merit and transparency and that the same had deprived people and country of their right to be served by the best---Such appointments had also trampled over the rights of other, better and more qualified persons---Appeals which intended to seek protection of, ill-gotten gains and perpetuation of un-ethical illegality 'deserved to be dismissed so that the Court could not be blamed for encouraging a culture where might was right and where people were permitted to secure benefits through unfair means---Appeal was dismissed.

Administration of justice-----

----Establishment of Courts---Purpose, scope and object---Object of establishment and continued existence of Courts of law is to dispense and foster justice and to right the wrongs---Purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful---It is for such reason that the Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains---Courts have never opted to exercise their powers in aid of injustice or to grant any relief to persons with un-clean hands or for protecting the un-ethical or undeserved benefits.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement. Commissioner, Lahore v. Raja Muhammad Fazil Khan and others 1975 SC 331; Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231; Wall Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Tufail Muhammad and others v. Raja Muhammad Ziaullah and others PLD 1965 SC 269; Khiali Khan v. Haji Nazir and others PLD 1997 SC 304; Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907 and Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 ref.

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

----S. 4---Removal from service---Principle of audi alteram partem--Issuance of show-cause notice---Principles---Civil servants were removed from service for the reason that the appointments were illegal and were made in violation of prescribed rules---Appeal was dismissed by Service Tribunal---Plea raised by the civil servants was that no show-cause notice was issued to them and they were condemned unheard---Validity---Reversing an action taken initially without issuing a show-cause notice was not a principle of universal application---Courts had consistently refused to intervene in such a situation where the concerned person had an opportunity of hearing available to him at the appellate stage and had in fact availed the same---Undoing of such act was also refused where the facts leading to the impugned action were uncontrovertible and admitted and where despite a prior hearing, the results could and would not have been any different--Absence of show-cause notice to the civil servants before they ,were thrown out of service especially when they had been heard at departmental appeal, was not fatal to the act of their dismissal from service at the instance of competent authority---Judgment of Service Tribunal was maintained and order of removal from service was not interfered with--Appeal was dismissed.

S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136; Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669 and Abdul Haq Indhar and others v. Province of Sindh and other 2000 SCMR 907 ref.

Khushdil Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record (absent) for Appellants (in all C.As.).

Imtiaz Ali, Addl. Advocate-General and M.A. Qayyum Mazhar, Advocate-on-Record (absent) for Respondents.

Date of hearing: 2nd October, 2003.

2005 P L C (C.S.) 1085

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

MUHAMMAD WASAY TAREEN

Versus

CHIEF JUSTICE OF BALOCHISTAN through Registrar of High Court of Balochistan, Quetta

Civil Petition No.828 of 2004, decided on 1st December, 2004.

(On appeal from the judgment, dated 21-2-2004 of the Balochistan Subordinate Judiciary Service Tribunal, passed in Service Appeal No.1 of 2000).

(a) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S.5---Constitution of Pakistan (1973), Art.212(3)---Ad hoc appointment---Concept---District and Sessions Judge appointed on ad hoc basis could not become permanent incumbents of the office of District and Sessions Judge by efflux of time---Principles.

The words "ad hoc appointment" as defined by clause (a) of subsection (1) of section 2 of the Balochistan Civil Servants Act No.IX of 1974, mean the appointment of a duly qualified person made otherwise than in accordance with prescribed method of recruitment, pending recruitment in accordance with such method. Such an appointment cannot be equated with regular appointment. It is meant for a particular object. The ad hoc appointment by its very definition, is of a 'qualified person but is not in accordance with rules prescribed for regular appointment for which the recommendation of the Public Service Commission is necessary. There is no rule which can entitle an ad hoc appointee to be confirmed in a vacancy during the subsistence of lien of another person on such vacancy. In some cases, it may continue unless regularized by the competent authority in accordance with law.

By Notification in the present case issued by the Government of Balochistan S&GAD the appointment of the petitioner as District and Sessions Judge (BS-19) was clearly expressed to be on ad hoc basis for a period of six months or till regular selection was made by the Balochistan Public Service Commission, whichever was earlier. His ad hoc appointment was extended from time to time by notifications issued by the High Court of Balochistan by virtue of the powers delegated by the Government. His last extension of ad hoc appointment was to expire on 11-8-1999.

According to the Service Rules the regular appointment against 25% posts of the District and Sessions Judges were to be made by the. initial recruitment on the recommendations of the Balochistan Public Service Commission with association of the Chief Justice. Therefore, it could not be said that the petitioner had become permanent incumbent of the office of District and Sessions Judge by efflux of time.

Ad hoc appointment did not confer on an appointee any right or interest to continuous appointment, seniority or promotion and service of such an appointee could be dispensed with at any moment without assigning any reason.

The ad hoc appointment by its very nature is different from that of appointment on probation.

Even without the issuance of Notification the petitioner would have ceased to hold the post of District and Sessions Judge after 11-8-1999.

Mere continuance of employment of a temporary employee for two years or more in service did not ipso facto convert the appointment into permanent one.

Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Mian Muhammad Afzal and. others v. Government of the Punjab and others 1982 SCMR 408; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Mrs. Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Chief Secretary, Government of the Punjab, Lahore and another v. Abdul Majeed 2001 SCMR 1971; Muhammad Azam Khan and others v. Government of N.-W.F.P. through Chief Secretary, N.-W.F.P. Peshawar and 4 others 1998 SCMR 204; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408; Saifuddin v. Secretary to Government of the Punjab and others 1982 SCMR 877; Farida Khanum v. Federation of Pakistan through Secretary, Education, Islamabad C.P. No.957 of 1999 and Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 12 ref.

Muhammad Siddique Ahmed Khan v. Pakistan Railways 1997 SCMR 1514 distinguished.

(b) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----Ss. 4 & 3---Constitution of Pakistan (1973), Art.212(3)---Service Tribunal---Constitution of Benches---Chief Justice of High Court, being Chairman of the Tribunal was empowered to withdraw the case at any stage of hearing of appeal for entrustment to another Bench of the Tribunal---No prejudice having been, caused by the transfer of the case from one Bench to another, the hyper-technical objection taken by the petitioner to the effect that the judgment was reserved by the Tribunal when the case was ordered to be transferred was overruled.

Section 3(3) of the Balochistan Subordinate Judiciary Service Tribunal Act No.VI of 1989 lays down that the Tribunal consists of a Chairman, being the Chief Justice or Acting Chief Justice of the High Court of Balochistan and two members each of whom is the sitting Judge of the High Court of Balochistan. By virtue of section 4 thereof, the Chairman may, at any stage of hearing of appeal, withdraw , any appeal pending before a Bench and may make it over to another Bench. Admittedly, the appeal of the petitioner was pending before a Bench of the Tribunal. Therefore, the Chief Justice of High Court of Balochistan, being Chairman of the Tribunal, was empowered to withdraw the same for entrustment to another Bench of the Tribunal. Even otherwise, no prejudice was shown to have been caused to anyone by the transfer of the case from one Bench to another. Therefore, the hypertechnical objection taken by the petitioner to the effect that the judgment by the Tribunal was reserved when the case was transferred at a belated stage, was overruled. The impugned judgment of the Tribunal did not suffer from any legal infirmity so as to warrant interference by Supreme Court. Even otherwise case was not fit for grant of leave to appeal.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner.

Salahuddin Khan Mengal, Advocate-General, Balochistan and Raja Muhammad Afsar, Advocate Supreme Court for Respondent.

Date of hearing: 1st December, 2004.

2005 P L C (C.S.) 1095

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

CHAIRMAN, PAKISTAN AGRICULTURAL RESEARCH COUNCIL (PARC), ISLAMABAD and another

Versus

Dr. ABDUL RASHID, SCIENTIFIC OFFICER

Civil Petition for Leave to Appeal No.1858 of 2002, decided on 5th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 10-8-2002, passed in Appeal No.2075(R) of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal before Service Tribunal--Limitation---Civil servant was attending a training course abroad when he was promoted to next grade---Promotion order of civil servant was withdrawn due to his attending the training---Civil servant on his return filed departmental representation and being unsuccessful filed appeal before Service Tribunal---Appeal was accepted by Service Tribunal on the ground that the appeal filed by civil servant was not time-barred for the reason that the orders of promotion and its withdrawal were not conveyed to him---Validity---Judgment of Service Tribunal did not suffer from any illegality or from any misreading of the facts---Authorities failed to point out any illegality in the judgment which was in consonance with the law laid down by Supreme Court---Leave to appeal was refused.

Sh. Riaz-ul-Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

S.M. Abdul Wahab, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 5th October, 2004.

2005 P L C (C.S.) 1110

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raw Khan, JJ

DIRECTOR-GENERAL, NATIONAL SAVINGS, ISLAMABAD and another

Versus

RAHAT ALI SHERWANI, ASSISTANT DIRECTOR, NATIONAL SAVINGS, ISLAMABAD

Civil Petition for Leave to Appeal No.3094 of 2003, decided on 4th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 12-9-2003, passed in Appeal No.462(R)CS of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Promotion to next grade---Fixation of seniority---Promotion of civil servant was deferred many times for the reasons that either disciplinary proceedings were pending against him or he was on deputation and had not earned one good report in his parent department---Finally the case of civil servant was recommended for promotion on 23-1-2002---Recommendation was assailed by civil servant before Service Tribunal for fixation of his seniority---Service Tribunal allowed the appeal to the extent that seniority of civil servant be reckoned from the date when his junior was promoted---Plea raised by the authorities was that Service Tribunal under the provisions of S.4(1)(b) of Service Tribunals Act, 1973, did not have jurisdiction to interfere in the matter of promotions---Validity---Civil servant had earned five good/very good/outstanding Annual Confidential Reports and he had also completed successful training for language course abroad---One official, junior to the civil servant was promoted on the recommendation of Departmental Promotion Committee in its meeting held on 3-8-1992---Judgment passed by Service Tribunal was in accordance with law laid down by Supreme Court and the same was not interfered with---Leave to appeal was refused.

Government of Pakistan v. Hameed Akhtar Niazi PLD 2003 SC 110 distinguished.

Deputy Inspector-General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others 1997 PLC (C.S.) 584 rel.

Nasir Saeed Sheikh, Deputy Attorney-General and Ch. Muhammad Ikram, Advocate-on-Record for Petitioners.

Shah Abdur Rashid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 4th October, 2004.

2005 P L C (C.S.) 1117

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

ABID HASSAN and others

Versus

P.I.A.C. and others

Civil Petitions Nos. 262-K to 265-K of 2004, decided on 14th September, 2004.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 30-1-2004 passed in Appeals Nos.909/K(CE) to 911/K(CE) and 920/K(CE)/2003).

(a) Pakistan International Airline Corporation Flight Operation Manual Transition Training General---

----R. 6 (1)---Administrative Order No.17/2001 (Cockpit Crew Service Rules), dated 17-7-2001---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Selection for foreign training---Discrimination, effect of---Guidelines for selection---Appellants being pilots were initially selected for training of Boeing-777 in U.S.A. but later on they were directed to attend Airbus-310 Technical Course---Appeal filed by the appellants, against the order directing change in course was dismissed by Service Tribunal---Contention of the authorities was that the selection of appellants was probable selection'---Plea raised by the appellants was that they had been discriminated and the provisions as contained in Administrative Order, No.17/2001 (Cockpit Crew Service Rules), dated 17-7-2001, were misinterpreted and misconstrued by Service Tribunal-Validity-.-Appellants were finally selected for training on Boeing-777 in USA and all necessary formalities were completed--Relevant literature of training was made available to the appellants, necessary formalities were completed and the clearance of USA Department of Justice was obtained and reservations were also made to send the appellants to USA for training on Boeing-777, therefore, it was not aprobable selection'---Direction to appellants regarding training of Airbus-310 Technical Course was not in consonance with the Training Policy particularly, the provisions as enumerated in R.6 (1) of Flight Operation Manual Transition Training General, which were mandatory in nature and had binding effect---Pakistan International Airline Corporation could not alter, amend, change or violate the binding effect of the provisions, without reasonable justification which was lacking in the present case---No discretion had been conferred upon the authorities by any statute, enactment, by law or any directive having legal sanctity to violate the Rules, Regulation and Policy to accommodate someone who otherwise could not have been accommodated---Direction to the appellants was designed to deprive them of their valuable vested and substantive right to proceed on training on Boeing-777 which was professionally higher in category, with better technology than Airbus-310 which would result in heavy professional and financial loss to the appellants---As 27 pilots out of 34 had been sent for training on Boeing-777 in USA in accordance with the Training Policy and seniority, the appellants could not be deprived of such training without any reason which would have substantial bearing on their future prospects---Supreme Court noted it with concern that there was need to rescind all discretionary powers in the hands of those enjoying authority in Pakistan International Airline Corporation which should be exercised in accordance with Rules and Regulations having no element of arbitrariness in them---Supreme Court directed that in future such selections must be fair, transparent and in accordance with the Training Policy and not behind screen of secrecy and doubts as the same would be in the interest of Pakistan' International Airline Corporation itself---Whimsical and arbitrary action could' create acute feeling of dismay, despair, despondency and deprivation which could affect the performance of Pakistan International Airline Corporation---Such selection must be made on merit/fitness and seniority---Judgment passed by Service Tribunal was set aside and Supreme Court directed the Authorities to consider the nomination of appellants for training on Boeing-777 at USA in the next training course there---Appeal was allowed.

(b) Plea---

----Contradictory plea---Effect---Authorities had taken contradictory pleas before various forums such as High Court, Service Tribunal, National Assembly and Supreme Court---Supreme Court declined to reconcile such contradictory statements, as the same depicted unfair practice, lack of honesty and straightforwardness.

(c) Administration of Justice---

----Discretionary decisions and arbitrary decisions---Distinction---Discretionary decisions should be made according to rational reasons---In discretionary decisions there be findings of primary facts based on good evidence and the decisions about the facts be made for reasons which serve the purpose of statute in intelligible and reasonable manner---Whereas the actions which do not meet the threshold requirements as mentioned in discretionary decisions are arbitrary, and may be considered a misuse of powers.

A.K. Brohi in his treatise Fundamental Law of Pakistan rel.

(d) Discretion---

----Discretionary power---Pre-conditions---Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reasons, open precedents and fair informal procedure.

Amanullah Khan and others v. Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Government of N.-W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804 rel.

(e) Discretion----

---Exercise of discretion---Principle---Functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.

Amanullah Khan and others v. Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman R.T.A. v. Pakistan Mutual Insurance Company PLD 1991 SC 14; Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 283; Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15; Ramana v. I.A. Authority of India AIR 1979 SC 1628; Dwarka Nath Prasad Atal v. Ram Rati Devi AIR 1980 SC 1992; Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCMR 467 rel.

Raja Qureshi, Advocate Supreme Court and Ali Muhammad Baloch, Advocate Supreme Court for Petitioners (in all Petitions).

Sajid Zahid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent Nos. 1 to 5.

Nemo for Respondents Nos. 6 to 9.

Ms. Nahida Mahboob Elahi, Standing Counsel with Ch. Naseer Ahmed, Advocate Supreme Court for Attorney General.

Date of hearing: 14th September, 2004.

2005 P L C (C.S.) 1155

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

MUHAMMAD ZAHOOR

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and another

C.P.L.A. No.1087-L of 2003, decided on 11th May, 2005.

(On appeal from judgment of Punjab Service Tribunal, dated 10-4-2003 passed in Appeal No.236 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Resignation by Naib Qasid of Court---Acceptance of resignation by Sessions Judge with immediate effect subject to deposit of one month's pay by civil servant---Withdrawal of resignation after 12 days, prayer for---Non-mentioning of reason of withdrawal in departmental appeal and in appeal before Service Tribunal.---Refusal of both forums to grant relief to civil servant for such omission treating his resignation to be voluntary---Validity---Civil servant had not drafted resignation himself---Civil servant in resignation had not asked for its immediate acceptance---Low paid employee servant as Naib Qasid would ordinarily never desire for acceptance of his resignation subject to such condition---In absence of such request, Sessions Judge should have postponed acceptance of resignation for some time as there was no necessity to show haste in its acceptance---Civil servant in departmental appeal alleged his resignation not to be voluntary, but he was forced to do so with threat that otherwise he would be sent to jail---No comparison could be drawn between powers of Sessions Judge qua a Naib Qasid---Departmental Appellate Authority had a legal and moral obligation to probe into such matter as same was a question of survival of a low paid employee---Civil servant had repeated such plea in appeal before Tribunal, which had not cared to analyse such aspect of case---Service record of civil servant was above board---Civil servant for first time had filed before Supreme Court an affidavit disclosing facts due to which Sessions Judge had compelled him to resign from service---Tendering of resignation by civil servant could not be inferred from such facts to be voluntary--Tribunal had erred in law in not granting relief to civil servant---Supreme Court accepted appeal while reinstating civil servant in service without back-benefits with observations that period during he remained out of job would be treated on duty against leave accrued, if any, or leave without pay for purposes of his length of service and future benefits.

Dr. Muhammad Munirul Haq v. Dr. Muhammad Latif Chaudhry 1992 SCMR 2135 and Abraham Reuben v. Karachi Municipality AIR 1929 Sindh 69 rel.

(b) Civil service---

----Resignation, whether voluntary or not---Test.

While determining, whether a person has resigned or has been compelled to resign, the correct test is to find out, whether the acts and conduct of the servant evince an intention to be no longer bound by the contract or whether the conduct of employer amounts to a basic refusal to continue the servant on the agreed terms of the employment.

?

Abraham Reuben v. Karachi Municipality AIR 1929 Sindh 69 fol.

Muhammad Zaman Bhatti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Nadeem Anwar, Junior Clerk, Lahore High Court for Respondent No.1.

Abdul Sattar, English Clerk office of the District and Sessions Judge, Gujranwala for Respondent No.2.

Date of hearing: 11th May, 2005.

2005 P L C (C.S.) 1165

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudliry, Faqir Muhammad Khokhar and Falak Sher, JJ

PROVINCE OF PUNJAB through Secretary, Agriculture, Government of Punjab and others

Versus

ZULFIQAR ALI

Civil Petition No.452-L of 2003, decided on 10th February, 2004.

(On appeal from the judgment, dated 11-11-2002 passed by the Punjab Service Tribunal in Appeal No.585 of 2002).

Civil service---

----Illegal appointment---Termination of service---Imposition of penalty by Appointing Authority responsible for making illegal appointment---Validity---Appointment of an employee, if made illegally, could not be cancelled under Efficiency and Discipline Rules---Instead of taking action against such employee, action must be taken against Appointing Authority for committing a misconduct by making illegal appointment as per his own admission---Principle illustrated.

Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 and Secretary to Government of N.-W.F.P.'s 1996 SCMR 413 fol.

Muhammad Sharif Butt, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 10th February, 2004.

2005 P L C (C.S.) 1184

[Supreme Court of Pakistan]

Present: Nazirn Hussain Siddiqui, C.J., Syed Deedar Hussain Shah and Abdul Ha/need Dogar, JJ

MARGHOOB AHMED

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and 2 others

Civil Petition No.910 of 2002, decided on 8th November, 2004.

(On appeal from the judgment, dated 3-8-2002 of the Federal Service Tribunal, Karachi, passed in Appeal No.1810(K) of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---National Bank of Pakistan Staff Service Rules, 1980, R.37(h)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts. 199 & 212(3)---Employee of National Bank of Pakistan---Dismissal from service---Misconduct, charge of---Filing of departmental appeal on 26-12-1987 against dismissal order dated 1-11-1987---Service of grievance notice upon employer after 503 days and filing of grievance petition 78 days thereafter---Acceptance of grievance petition by Labour Court, but its dismissal by Labour Tribunal---Disposal of Constitutional petition by High Court on 12-10-1998 for having abated due to insertion of S.2-A in Service Tribunals Act, 1973---Appeal before Service Tribunal filed on 4-11-1998 was dismissed as time-barred---Validity---Section 2-A inserted in Service Tribunals Act, 1973 w,e.f. 10-6-1997 had changed forum of appeal---Appeal required to be filed before Service Tribunal within 90 days as stipulated by S.6 of Act, 1973 had been filed with delay of 488 days and with further delay of 22 days after abatement order passed by High Court---Supreme Court refused leave to appeal.

Suleman Habibullah, Advocate Supreme Court for Petitioner.

Syed Haider Ali Pirzada, Advocate Supreme Court, and Abdul Qadir Khan, Advocate Supreme Court for Respondents.

Date of hearing: 8th November, 2004.

2005 P L C (C.S.) 1201

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

AMIR HAMZA

Versus

GOVERNMENT OF BALOCHISTAN and others

Civil Appeal No.1579 of 2004, decided on 21st April, 2005.

(On appeal from the judgment/order dated 25-3-2004 passed by Balochistan Service Tribunal, Quetta in S.A. No.31 of 1999).

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

----R. 14---Recruitment by Government Departments--Provincial, Regional or District quotas---Procedure---Provincial Government, under R.14, Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, has been authorized to make recruitments on Provincial, Regional or District quotas---Government, in pursuance of R.14, has framed policies from time to time, the contents whereof indicate that rotation-wise quota for each Division has been fixed---Such policy having Statutory backing has attained the legal Status and is required to be adhered to in letter and spirit by all the departments of Government including the Board of Revenue, being one of the departments under Rules of Business (1976)---Every department owes a duty to mention in the advertisement about the bifurcation of the posts according to rotation-wise quota of the relevant Division---Non-adherence to such policy can render the appointments so made by the department, illegal in nature.

Faizullah Khan v. Government of Pakistan PLD 1975 SC 291 fol.

S.A.M. Quadri, Advocate-on-Record/Advocate Supreme Court for Appellant.

Salahuddin Mengal, Advocate-General (Balochistan) for Respondents Nos. 1 to 3.

Jamal Khan Mandokhel, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Respondents Nos.4 to 7.

H. Shakeel Hadi, Advocate Supreme Court and Anwar Khan Durrani, Advocate-on-Record (absent) for Respondent No.8.

Respondent No.9: Ex part..

Masood Ahmed, Secretary, S&GAD, Marjan Khan, Senior Member, Board of Revenue, Zahid Kasi, Secretary (Admn.), Board of Revenue, Nasrullah Khan, Assistant Secretary, Board of Revenue and Hamidullah, Assistant, Board of Revenue on Court notice.

Date of hearing: 21st April, 2005.

2005 P L C (C.S.) 1233

[Supreme Court (AJ&K)]

Before: Khawaja Muhammad Saeed and Chaudhary Muhammad Taj, JJ

Civil Appeal No. 147 of 2001

Dr. ABDUL GHAFFAR SULEHRIA

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

(On appeal from the judgment of the Service Tribunal dated 16-7-2001 in Service Appeal No.72 of 2001).

Civil Appeal No.148 of 2001

LADY Dr. RUBINA QAMAR QURESHI, Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

(On appeal from the judgment of the Service Tribunal dated 16-7-2001 in Service Appeal No.71 of 2001)

Civil Appeals Nos. 147 and 148 of 2001, decided on 18th June, 2004.

(a) Azad Jammu and Kashmir Health Department Service Rules, 1984-----

----Sched., Column No. 7, Serial No. 19---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47---Promotion as Senior Dental Surgeon, B-18---Entitlement---Both appellants were inducted in Health Department as Dental Surgeon in B-17 and on basis of 40% formula, both were promoted in selection grade B-18 and were given move-over B-19---In seniority list one was entered at serial No. 11 and other at serial No. 12---Panel containing the names of both appellants and two. respondents was referred to the Selection Board alongwith other Doctors for promotion as Senior Dental Surgeon B-18---Both appellants, despite being senior to respondents, were not approved for said promotion by Selection Board, but the respondents who were entered below in the seniority list to appellant, were recommended and on such recommendation, respondents were promoted---Appeals by appellants before Service Tribunal were dismissed on the ground that both appellants had not passed grading course in Dental Surgery as contained in Serial No. 19, Column No. 7 of Schedule attached with Health Department Service Rules, 1984---Validity---Basic qualification prescribed at Serial No. 23 of relevant Health Department Service Rules; 1984 was graduation in Dental Surgery and registration with Pakistan Medical and Dental Council and both appellants fulfilled said two basic qualifications---Pakistan Medical and Dental Council, in its comments had disclosed that disputed grading course which was conducted by Armed Forces Medical College was internal arrangement of said college and same was not recognized by the Council as a qualification---Even from statement of one of the respondents and Director General Health who appeared as witness, it emerged that said grading course was not necessary for promotion against post of Senior Dental Surgeon B-18---Appellants and respondents were possessing equal qualifications, but appellants being senior as compared to the respondents were entitled to promotion ahead of respondents---As grading or any such course was not recognized and approved by Pakistan Medical and Dental Council, opinion of Selection Board and decision of Service Tribunal were not justified---Case was remanded to Service Tribunal to decide afresh in accordance with law considering points involved in case after providing parties right of hearing.

Azad Govt. of the State of Jammu and Kashmir and others' v. Mujahid Hussain Naqvi and another PLJ 2001 SC (AJ&K) 50; Zahida Mahmood v. Muhammad Sabir Khan and 5 others 2000 YLR 1011; Ch. Walayat Khan and 2 others v. Ch. Muhammad Azam and 12 others 1995 SCR 384; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government and others PLD 1994 SC (AJK) 13 and Beero v. Mst. Said Bi 1992 SCR 286 ref.

(b) Administration of justice---

----Courts established under law were required to decide the dispute between contesting parties by confining themselves to the pleadings of such parties---If on the basis of pleadings of the parties a law having bearing on the case was not referred to or relied upon by the parties, the Courts could apply such law because the litigant public or Advocates may not refer law before the Court, but basically all the Presiding Officers at the Courts were duty bound to apply correct law having bearing on the controversy involved between the litigant parties.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction---Necessary party---Authority which passed impugned order, was necessary party to be arrayed as answering respondent---Azad Kashmir Government, having the status of Authority, in the present case, was impleaded as answering respondent through its Chief Secretary and an effective order could be passed against it and same could be enforced under the writ of law.

Azad Govt. of the State of Jammu and Kashmir and others v. Mujahid Hussain Naqvi and another PLJ 2001 SC (AJK) 50, and Azad Govt. and 3 others v. Genuine Rights Commission AJ&K and others 1999 MLD 268 ref.

Mujahid Hussain Naqvi, Advocate for Appellant (in both Civil Appeals)

Raja Ibrar Hussain, Advocate-General for Respondents Nos.1 and 2 (in both Civil Appeals).

Raja Muhammad Hanif Khan, Advocate for Respondent No.3. (in both Civil Appeals).

Syed Arshad Hussain Gillani, Advocate for Respondent No.4. (in both Civil Appeals).

Date of hearing: 8th March, 2004.

2005 P L C (S.C.) 1247

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

Professor Dr. NIZAKAT BEGUM, AYUB MEDICAL COLLEGE, ABBOTTABAD

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Health and 2 others

Civil Petition No.23-P of 2004, decided on 29th June, 2005.

(On appeal from the judgment dated 27-10-2003 of the N.-W.F.P. Service Tribunal, Peshawar passed in Service Appeal No.651 of 2002).

North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)---

--------Ss. 2(d), 9 & 10---North-West Frontier Province Corporation

Employees (Special Powers) Ordinance (VIII of 1978), S.5---North-West Frontier Province Medical and Health Institutions Reforms Act (XII of 1999), Ss.1(2), 3, 5(2), 10(2) & 15---N.-W.F.P. Government Notification No.SOII-II/3-1599, dated 10-3-2000---Employee of Ayub Medical College and Ayub Teaching Hospital being a "person" within the meaning of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 will have a remedy vide S.10 of the said Ordinance before the Service Tribunal of the Province, therefore, it could not be said that the appeal filed by the said employee was incompetent---Principles.

Nasir Mehfooz, Advocate Supreme Court for Petitioner.

Hamid Farooq Durrani, A.-G., N.-W.F.P. for Respondents.

Date of hearing: 29th June, 2005.

2005 P L C (C.S.) 1264

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

PAKISTAN RED CRESCENT SOCIETY and another

Versus

Syed NAZIR GILLANI

Civil Appeal No.1080 of 1998, decided on 1st June, 2005.

(On appeal from the judgment dated 19-3--1997 of the Lahore High Court, Rawalpindi Bench, passed in I.C.A. No.2 of 1992).

Pakistan Red Crescent Society Act (XV of 1920)---

---Ss. 2, 4 & 5-Pakistan Red Crescent Society (Staff) Service Regulations, 1974---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court by employee of the Society seeking his reinstatement in Society's Service--Maintainability---Legal Character of Pakistan Red Crescent Society---Determination--Society could not be treated as a person performing function in connection with the affairs of the Federation or the Province---Pakistan Red Crescent Society (Staff) Service Regulations, 1974 being non-statutory, employee of the Society would not be legally entitled to the invocation of Constitutional jurisdiction of High Court seeking his reinstatement--- Employee of a Corporation, in the absence of Violation of law or any statutory rules could not press into service the Constitutional jurisdiction of High Court or Civil jurisdiction for seeking relief of reinstatement in service as in the case of such an employee whore protection could not be sought under any statutory instrument or enactment the relationship between the employer and employee was that of a Master and Servant---Remedy for such an employee against wrongful dismissal or termination was to claim damages---Constitutional jurisdiction as conferred upon the High Court under Art.199 of the Constitution could not have been invoked by the employee of the Society.

Muhammad Saleemullah v. Trustees of the Port of Karachi and others PLD 1975 Kar. 758; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Walayat Ali Mir v. P.I.A.C. 1995 SCMR 650; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101; Managing Director, SSGC Ltd., v. Ghulam Abbas PLD 2003 SC 724; I. A Sharwani v. Government of Pakistan 1991 SCMR 1041; Dr. Naveeda Tufail v. Government of the Punjab 2003 SCMR 291; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Anwar Aziz v. Federation of Pakistan PLD 2001 SC 5.49; Tahira Almas v. Islamic Republic of Pakistan PLD 2002 SC 830; Muhammad Nazir Khan v. Mubashar Hasan PLD 1974 Lab. 49 and Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC . 691 distinguished.

Principal Cadet College, Kohat, v. Muhammad Shoab Qureshi PLD 1975 SC 678; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Chairman WAPDA v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. 1995 SCMR 453; Habib Bank Ltd., v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; .Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Muhammad Salimullah v. Trustees of the Port of Karachi PLD 1975 Kar. 758; Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society 2004 SCMR 189; Chairman WAPDA v. Jamil Ahmed 1993 SCMR 346; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others 1990 PLD 197; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Muhammad Mumtaz Javed v. Pakistan through Secretary, Ministry of Communication, Government of Pakistan and 2 others 1988 PLC (C.S.) 705; Mrs. M. N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566: R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146; Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234 and The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 ref.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 16th December, 2004.

2005 P L C (C.S.) 1280

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

Haji NOOR AHMAD

Versus

GOVERNMENT OF PUNJAB and another

Civil Petition No.1623-L of 2003, decided on 29th December, 2004.

(On appeal from the judgment/order dated 2-4-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.1098 of 1998).

Punjab Education Department (Schools Education) Recruitment Rules, 1987-----

----R. 5---Constitution of Pakistan (1973), Art.212(3)---Eligibility for promotion---Third Division Degree in M.A.---Civil servant was denied promotion on the ground that he was not eligible as he had Third Division in M.A.---Contention of civil servant was that requirement of possessing degree at least of 2nd Division in M.A. was meant for those candidates who had applied for initial recruitment against 33 % quota, whereas candidates whose case was covered under 67% of promotion quota, amongst SSTs for the posts of Headmaster/Headmistress, were not required to at least possess 2nd Division in M.A.---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner.

Amir Alam Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th December, 2004.

2005 P L C (C.S.) 1289

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Syed AQLEEM ABBASI JAFARI

Versus

PROVINCE OF PUNJAB through Secretary, Irrigation Department and others

Civil Petition No.1902-L of 2003, decided on 4th August, 2004.

(On appeal from judgment dated 27-6-2003, passed by the Punjab Service Tribunal, Lahore in Appeal No.1858 of 2002).

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

----S. 4--Constitution of Pakistan (1973), Art.212(3)---Reduction in rank and recovery of embezzled amount---Criminal and departmental proceedings---Scope---Regular inquiry, non-holding of---Effect----After issuing show-cause notice and reply by civil servant, penalty of reduction in rank and recovery of embezzled amount was imposed by Authorities and the same was maintained by Service Tribunal---Plea raised by civil servant was that criminal proceedings were also initiated against him and no regular inquiry was held---Validity'--Service Tribunal rightly observed that sufficient documentary evidence was available on record to dispense with regular inquiry---Civil servant was accounts clerk who drew huge amount from bank and kept the same in chest in violation of security rules--Civil servant was afforded opportunity to defend himself before the Inquiry Committee but he absconded---Departmental as well as. criminal proceedings could be taken against delinquent official simultaneously and independently of each other---Recovery of huge amount could not have been planted against civil servant by police--Departmental Authorities had already dealt with the civil servant with leniency---Judgment passed by Service Tribunal did not suffer from any legal infirmity so as to warrant interference by Supreme Court---No substantial question of law of public importance with the contemplation of Art.212(3) of the Constitution was involved---Leave to appeal was refused.

Deputy Inspector-General of Police, Lahore v. Anees-ur-Rehman PLD 1985 SC 134 ref.

Mushtaq Ahmed Qureshi Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th August, 2004.

2005 P L C (C.S.) 1295

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

MUHAMMAD NASEER

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, MULTAN RANGE, MULTAN and another

Civil Petition No.53 of 2004, decided on 11th June, 2004.

(On appeal from the judgment dated 30-10-2003 passed by the Punjab Service Tribunal in Appeal No.1050 of 2003).

Civil service----

----Leave preparatory to retirement (L.P.R.)-Granting of L.P.R. at civil servant's request---Withdrawal or modification of such request---scope---Such request could be recalled by civil servant prior to its acceptance---Such request after its acceptance would attain finality and become a past and closed transaction.

Serial No.7, Chapter No.X of ESTACODE styled as Retirement and Re-Employment rel.

Muhammad Iqbal Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 11th June, 2004.

2005 P L C (C.S.) 1325

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and M. Javed Buttar, JJ

Mian ABDUL QADEER

Versus

GOVERNMENT OF PAKISTAN and others

C.P.L.A. No.1258-L of 2003, decided on 7th December, 2004.

(On appeal from the judgment dated 5-5-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.1657(K)/CE of 2001).

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

-------S. 3---House Building Finance Corporation Service Regulations, 1957, Regln. No.15--- Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Dismissal from service---Fixation of seniority---Misconduct---Civil servant was dismissed from service on the allegation that he being dissatisfied with the seniority list, made repeatedly representations and finally got the list corrected---Authorities, while considering such representations as act of misconduct initiated proceedings and dismissed the civil servant from service under S.3 of Removal from Service (Special Powers) Ordinance, 2000- -Order passed by the authorities was maintained by Service Tribunal---Validity---Merely because civil servant kept on representing against the seniority list and got it restored in year 1998, with effect from the date of his appointment could not lead to the conclusion that he was guilty of gross misconduct, collusion and illegal manipulations---Collusive colleagues of the competent authority were never proceeded against under the Efficiency and Discipline Rules---No evidence surfaced for establishing misconduct and manipulations---No charge of any embezzlement, fraud, corruption and forgery nor the same were ever proved against the civil servant---Revised seniority list issued on 10-2-1990; had attained finality because the civil servant's representation against the same was rejected by Appellate Authority on 2-4-1992, which order was not set aside or modified by any higher competent Executive Authority and was not assailed before any competent judicial forum---Issue of seniority had become past and closed---Judgment passed by Service Tribunal was set aside and the civil servant was reinstated in service---Seniority list of the civil servant would be in accordance with the revised seniority list issued on 10-2-1990 and departmental promotees, who were appointed in the same calendar year in which the civil, servant was appointed directly, would rank senior to him---Appeal was allowed.

Abdul Aziz Khan v. The Postmaster-General, Southern Punjab Circle, Lahore-2000 PSC 1248; Inspector-General of Police, AJ&K and others v. Zaheer-ud-Din Qureshi 2002 PLC (C.S.) 1246; PLD 1987 SC 1; 1991 SCMR 311; Agricultural Development Bank of Pakistan v. Muhammad Anwar Bajwa and others 1994 SCMR 852; Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330; WAPDA v. Muhammad Riaz Butt, Ex. LS-II 1993 SCMR 1134 and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani 1996 SCMR 248 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, Deputy Attorney-General for Pakistan for Respondent No.1.

Hashmat Habib, Advocate Supreme Court with Akram Tariq, Chief Manager, H.B.F.C. for Respondent No.2.

Date of hearing; 7th December, 2004.

2005 P L C (C.S.) 1335

[Supreme Court of Pakistan]

Present; Hamid Ali Mirza, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman

and others

Versus

SAMINA MASOOD and others

Civil Appeals Nos. 1613 to 1617 of 2003 and Civil Petition No.3332 of 2003, decided on 28th June, 2005.

(On Appeal from the judgment dated 22-8-2001 of the High Court of Sindh, Karachi passed in C.Ps. Nos. D-364, D-376, D-392, D-429/1999, D-1618 of 2001 and Lahore High Court, Rawalpindi Bench, Rawalpindi dated 29-10-2003 in W.P. No.901 of 1999, respectively).

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, Regln.25---Constitution of Pakistan (1973), Art.199---Intra-Court appeal---Scope---Vires of Regln.25, Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---When judgments rendered are not in the exercise of original civil jurisdiction but Constitutional jurisdiction, S.3(1), Law Reforms Ordinance, 1972 is not applicable---Provision of S.3(2), Law Reforms Ordinance, 1972 provides that if a judgment by a Single Judge of a High Court is rendered under Art.199(1) of the Constitution, excepting sub-paragrpah (i) of paragraph (b) of the said clause, the appeal shall also lie before a Bench of two or more Judges of the same High Court---Vires of Regulation 25 Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 having been challenged before the High Court in the Constitutional jurisdiction squarely fell under Art.199(1)(c) of the Constitution, hence was appealable through an Intra-Court Appeal before two or more Judges of the same High Court-Principles.

Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 ref.

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

----Regln. 25---Constitution of Pakistan (1973), Arts.25(2) & 199---Constitutional jurisdiction of High Court under Art.199 of the Constitution was invoked to challenge the vires of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 whereunder an Air Hostess was to retire on attaining age of_thirty-five years extended from time to time to forty-five years; whereas, their other colleagues in groups I to IV were to retire on attaining the age of sixty---Such difference in retirement age had been challenged by numerous Air Hostesses before Karachi as well as Lahore High Court on the sole ground that the difference, being a discrimination based on sex, was in utter violation of Art.25(2), of the Constitution---Validity---Air Hostesses were not a group as such, but their nomenclature actually was Cabin Crew, also described as Pursers and senior Pursers and in this description and even in view of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, the Cabin Crew included male Stewards as well as Air Hostesses, performing exactly the same duties and belonging to exactly the same pay groups I to IV---Held, nothing could be a discrimination based on sex better than what has been found in the present case where people similarly placed exactly in the same group were discriminated only for being females---Principles---Supreme Court, while directing that there shall be no discrimination between the retiring ages of female and male Cabin Crew belonging to the same group remarked that if, any member of the Cabin Crew at certain age did not physically fulfil the requirements of the department concerning flying duties, they may, after medical examination, be entrusted any other duties/ground duties in the same pay group.

Government of Balochistan v. Azizullah Menton PLD 1993 SC 341; Asdullah Mangi v. PIAC 2005 SCMR 445 and Miss Shirin Dokht v. Government of Pakistan 1995 PLC (CS) 251 ref.

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

----Regln.. 25---Constitution of Pakistan (1973), Arts.199 & 25---Service Tribunals Act (LXX of 1973), Ss.2-A & 4--- Constitutional jurisdiction of High Court under Art.199 of the Constitution was invoked to challenge the vires of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 whereunder an Air Hostess was to retire on attaining age of thirty-five years extended from time to time to forty-five years; whereas, their other colleagues in groups I to IV were to retire on attaining the age of sixty---Such difference in retirement age had been challenged by numerous Air Hostesses before Karachi as well as Lahore High Courts on the sole ground that the difference, being a discrimination based on sex, was in utter violation of Art.25(2), of the Constitution---Controversy raised by the Airlines was that matter brought by the Air Hostesses before the High Courts, essentially related to terms and conditions of service and hence, in view of S.2-A, Service Tribunals Act, 1973, the remedy of Air Hostesses lay before the Federal Service Tribunal and not before the High Court---Validity---Held, at the time of filing the Constitutional petition no order, whether original or appellate made by Departmental Authority against the Air Hostesses was in field within the contemplation of S.5, Service Tribunals Act, 1973 so as to be challenged before the Service Tribunal---Age of retirement fixed by Regln.25 was a term and condition but the same had not been violated by the Department, had the Department done 'so, the Air Hostesses had the right to challenge the same before the Service Tribunal---No order had been passed by the Departmental Authority or original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being violative of the fundamental rights guaranteed by the Constitution, Air Hostesses could only resort to the High Court under Art.199 of the Constitution---Principles.

Abdul Bari's case PLD 1981 Kar. 290; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Raziuddin v. Chairman PIAC PLD 1992 SC 531; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Syed Asghar Ahmad Naqvi v. Province of Sindh PLC 1996 (C.S.) 803 and Dr. Muhammad Tahir Achakazi v. Government of Balochistan 1999 SCMR 1989 ref.

(d) Judgment-------

--"Judgment in personam" and "judgment in rem"---Distinction---Judgment deciding subjective interest of an individual can be treated as judgment "in personam" while judgment declaring vires of Regulation being a conclusive adjudication was judgment "in rem".

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

Aftab Gul, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Appellant (In CAs. Nos. 1613 to 1617 of 2003).

M. Yawar Ali, Advocate Supreme Court for Petitioners (In C.P. No.3332 of 2003).

Respondent No.2 (in person) (in C.P. No.3332 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 3-6, 9, 10, 12 and 13 (In C.A. No.1613 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1-4, 7, 9 and 10 (In C.A. No.1614 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (In C.A. No.1615 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent (In C.A. No.1616 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 3-7, 8 (In C.A. No.1617 of 2003).

Dates of hearing: 27th and 28th June, 2005.

2005 P L C (C.S.) 1360

[Supreme Court (Azad J&K)]

Present: Khawaja Muhammad Saeed, CJ and Syed Manzoor Hussain Gilani, J

AZAD JAMMU AND KASHMIR UNIVERSITY through Vice-Chancellor, AJ&K University Muzaffarabad and 6 others

Versus

MAJOR (Rtd.) RAFIQUE AHMAD DURRANI, EX SUPERINTENDING ENGINEER, AZAD JAMMU AND KASHMIR UNIVERSITY

Civil Appeal No.167 of 2002, decided on 15th April, 2005.

(On appeal from the judgment of the High Court dated 29-7-2002 in Writ Petition No.558 of 2000).

University of Azad Jammu and Kashmir Employees (Efficiency and Discipline) Statutes, 1988---

----Rr. 2, 16 & 19---University of Azad Jammu and Kashmir Act, 1985, S. 11(3) & 19(x)---Dismissal from service---Appeal to Supreme Court---Respondent was dismissed from service by order of Vice-Chancellor of University after completion of disciplinary proceedings in accordance with University Statutes and the Syndicate of University accorded approval of all steps taken by the Vice-Chancellor in that regard---High Court set aside order of dismissal from service passed by Vice-Chancellor holding that Vice-Chancellor was not vested with powers to dismiss an employee of University in exercise of powers under S.11(3) of University of Azad Jammu and Kashmir Act, 1985, but Syndicate alone could order disciplinary proceedings against respondent---Validity---Under provisions of S.19(x) of University of Azad Jammu and Kashmir Act, 1985, powers vesting in Syndicate stood delegated to Vice-Chancellor and thus he had rightly exercised said powers by following due process of law visualized by University Statutes---Question as to whether Vice-Chancellor could exercise said power as a delegatee under pretext of emergency had lost its significance in view of said legal position---Question of emergency was an objective decision to be taken by Authority vested with such power---Relevant Authority, keeping in view circumstances or eventualities, could decide as to whether any emergency existed in passing an order which had the effect of restoring the normalcy as against emergency---Courts could not substitute their own view as to whether a particular eventuality authorized the relevant Authority to resort to emergency powers or not, unless extraordinary circumstances were shown that Authority had acted with malice or order was otherwise without lawful authority or a wrong conclusion was drawn from circumstances which was not to be justified on any canon of justice and fair play---No such instance was pointed out to hold that powers could not be exercised---Petition before High Court otherwise merited dismissal on ground of laches---Supreme Court accepting appeal, set aside order passed by High Court.

Muhammad Latif v. Assistant Chief of Air Staff (Personnel) and others 2005 SCMR 335; Saleem Akhtar v. Judge Family Court and 2 others 1999 MLD 1679 and Azad Govt. of the State of J&K and others v. Haji Summandar Khan and others 1999 SCR 259 ref.

Farooq Hussain Kashmiri, Advocate for Appellants.

Imdad Ali Malik Advocate for Respondent.

Date of hearing: 17th March, 2005.

2005 P L C (C.S) 1367

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Ahbasi and Mian Shakirullah Jan, JJ

ABDUL HAMEED and others

Versus

MEMBER (REVENUE), BOARD OF REVENUE and others

Civil Appeals Nos.589, 590 and 929 of 2004, decided on 1st June, 2005.

(On appeal from the judgment of Punjab Service Tribunal, dated 1-11-2001 passed in Appeals Nos. 2657 of 2000, 2600 of 2000 and 2612 of 2000 respectively).

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

-----R. 7-A---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 166---Constitution of Pakistan (1973), Arts. 13(a) & 212(3)---Dismissal of civil servants from service who were Naib Tehsildar, Kanungo and Patwari on the ground of misconduct---Charge against the civil servants was that on the basis of an ex parte decree passed by a Civil Judge, they proceeded to sanction the mutation of the land in possession of Public Works Department, and Police Department of the Provincial Government, in favour of decree-holder, without the permission of District Collector, and thereby, with ulterior motives and mala fide intention, caused loss to the Government---Leave to appeal was granted by the Supreme Court inter alia to consider the questions as to whether the petitioners who were subjected to two inquiry proceedings wherein they were exonerated from the charges, could be subjected to de novo inquiry for the third time without recording valid reasons; whether petitioner, who, after show-cause notice was awarded-minor punishment of withholding of two increments which, was not challenged by him, could be proceeded against on "the same allegations again and awarded major penalty in violation of Article 13(a) of the Constitution of the Islamic Republic of Pakistan; whether the petitioners were not bound under section 42 of the West Pakistan Land Revenue Act, 1967 to enter and sanction the mutation in accordance with the judgment and decree of the Court which was not ex parte, and whether any executive instructions regarding the entry and sanctioning of mutation could override statutory provisions; whether the petitioners against whom allegation of corruption or mala fide acts had not been proved at all and admittedly no loss had been caused to the Government, they could be imposed maximum major penalty of dismissal from service or ends of justice would have met by imposing minor penalty as alleged misconduct was entry and sanction of the mutation on the basis of a Court decree without proper approval of the Collector; whether the exoneration of the petitioner twice in the findings of the inquiries from the allegations of sanctioning the mutation in Part Patwar which was corrected in the Part Sarkar which was rejected immediately which was endorsed by the Deputy Commissioner/Collector, was not sufficient to exonerate him from the allegations that such entry in Part Patwar was inadvertent and in routine, thus, would fall within the scope of section 166 of the Land Revenue Act, 1967; whether the endorsement of the two inquiry reports by the Deputy Commissioner/Collector would not amount to waiver of the approval for entry and sanctioning of the mutation which was not even the legal requirement and whether non-compliance of the provisions of Rule 7-A of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 by the Authorized Officer would not vitiate the order of dismissal of the petitioners from service.

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

-----R. 7-A---West Pakistan Land Revenue Act (XVII of 1967), S.42---Dismissal of civil servants from service who were Naib Tehsildar, Kanungo and Patwari on the ground of misconduct---Charge against the civil servants was that on the basis of an ex parte decree passed by a civil Judge, without the permission of District Collector, they proceeded to sanction the mutation of the land in possession of Public Works Department, and Police Department of the Provincial Government, in favour of decree-holder and thereby, with ulterior motives, and mala fide intention, caused loss to the Government---Validity ---Record showed that the Patwari and Kanungo having not taken care to bring the matter to the notice of the concerned Authorities before making the entries in register of mutation, acted negligently and similarly the Naib Tehsildar, in his capacity as sanctioning authority proceeded to sanction the mutation without taking pains in making an inquiry into the matter, acted in an irresponsible manner---Civil servants being careless in performance of their duties were certainly negligent but there was nothing on record to hold them guilty of misconduct---Case of civil servants, therefore, was not that of major penalty but was that of minor penalty for which stoppage of two increments for a period of two years to them, would have sufficiently met the ends of justice---Supreme Court, while converting the major penalty of dismissal from service awarded to the civil servants, into minor penalty of stoppage of increments for two years each modified the judgment of the Service Tribunal and partly allowed the appeals.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Sanction of mutation in implementation of the decree of Civil Court---Procedure elaborated.

(d) Civil service---

----"Misconductand "negligence"---Distinction.

Muhammad Saleem Sheikh, Advocate Supreme Court for Appellants (in all cases).

Mehmood A. Sheikh, Advocate Supreme Court and Rao Muhammad Yousaf, Advocate-on-Record and Zubair Chishti, S.O. for Respondents (in all cases).

Date of hearing: 1st June, 2005.

2005 P L C (C.S.) 1382

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

ANWAR PARVEZ

versus

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

Civil Petition No.37-P of 2004, decided on 24th June, 2005.

(On appeal from the judgment dated 19-12-2003 passed by N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No.502 of 2003).

North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)---

----Ss. 3 & 10---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.2(b)---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement of employee of a statutory body---Appeal of such employee was dismissed by the Service Tribunal on the ground that under S.2(b) of the N.-W.F.P., Civil Servants Act, 1973 he being an employee of the Board of Secondary Education, was not a civil servant---Validity---Compulsory retirement was ordered under S.3, N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 and S.10, thereof, dealing with appeals, had categorically laid down that notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order shall prefer appeal to the Service Tribunal established under N.-W.F.P. Service Tribunals Act, 1974---N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 being the latest special law had provided a forum of appeal to anyone who was proceeded against under the said Ordinance---Appeal therefore, was competent before the Service Tribunal which was wrongly dismissed by the Tribunal---Petition for leave to appeal, after its conversion into appeal by the Supreme Court, was accepted and the case was remanded to the Service Tribunal for decision on merits.

Khushdil Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioner.

Malik Manzoor Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 24th June, 2005.

2005 P L C (C. S) 1389

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

YAQOOB SHAH

Versus

SECRETARY, BOARD OF REVENUE, N.-W.F.P and others

Civil Appeal No. 1290 of 2001, decided on 14th January, 2005.

(On appeal from the judgment dated 23rd February, 2001 in Appeal No.2078 of 1997 passed by the N.-W.F.P. Service Tribunal, Peshawar).

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

----S. 4---Reinstatement---Back-benefits, refusal of---Principle of consistency---Applicability---Civil servant was reinstated in service by Service Tribunal but back-benefits were not awarded to him---Grievance of civil servant was that his other colleagues were reinstated with back­ benefits---Validity---On the basis of principle of consistency, the civil servant was also entitled to the same treatment with regard to back-benefits and thereby he could not be discriminated---Nothing was available on record that the civil servant worked for gain during the period of his removal---On the contrary, the civil servant had prayed his back-benefits even in his appeal before Service Tribunal---Service Tribunal erred in not granting back benefits to the civil servant considering that there was nothing on the conduct of civil servant which warranted his removal from service---Judgment passed by Service Tribunal was modified to the extent that the civil servant was entitled to back-benefits---Appeal was allowed.

Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787 and Pakistan Automobile Corporation Ltd. through Chairman v. Mansoor-ul-Haque and others 2004 SCMR 1308 ref.

S.M. Abul Wahab, Advocate Supreme Court for Petitioner.

M. Bilal, Senior Advocate Supreme Court for Respondents.

Date of hearing: 14th January, 2005.

2005 P L C (C.S.) 1391

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and M. Javed Buttar, JJ

NAZEER AHMED BUTT and others

Versus

PAKISTAN INSURANCE CORPORATION and others

Civil Appeals Nos.2415 to 2425 of 2001, decided on 7th February, 2005.

(On appeal from the judgment dated 9-7-2001 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.81(K) to 86(K) of 1998).

Service Tribunals Act (LXX of 1973)---

---S. 4---Reinstatement in service---Back-benefits, entitlement to--Determining factor---Employees failed to satisfy Supreme Court as to how they were entitled to back-benefits when there was no evidence on record to show that during the period of termination of their services till the date of reinstatement by Service Tribunal they were not engaged in any profitable job---Effect---Employees were rightly not found entitled to back-benefits by Service Tribunal at the time of their reinstatement---Appeal was dismissed.

Raja Sher Muhammad Khan, Advocate Supreme Court for Appellant (in C.A. No.2415 of 2001 also for Respondent in C.A. No.2425 of 2001).

Abdul Mujeeb Perzada, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No.2416 of 2001 to 2419 of 2001).

Mehmood A. Ghani, Advocate Supreme Court for Respondents No. 1. (in C.As. Nos.2415, 2519 of 2001 and also for Appellants C.As. Nos. 2420-2425 of 2001).

Date of hearing: 7th February, 2005.

2005 P L C (C.S.) 1400

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

MUHAMMAD ASLAM SULTAN

Versus

FEDERATION OF PAKISTAN through General Manager, Pakistan Railways, HQRs., Lahore and another

Civil Petition No.2776-L of 2001, decided on 21st December, 2004.

(On appeal from the judgment dated 1-6-2001 of the Federal Service Tribunal, passed in Appeal No. 1077(L) of 1998).

Civil service---

Promotion after retirement, claim for---Validity---Promotion to a retired civil servant from back date could not be granted.

Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi 2003 PLC (C.S.) 212 fol.

S.M. Idrees, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st December, 2004.

2005 P L C (C.S.) 1407

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

NATIONAL BANK OF PAKISTAN and others

Versus

ABDUL BASIT and another

Civil Petition No.2108 of 2002, decided on 29th November, 2004.

(On appeal from the judgment of the Federal Service Tribunal, Lahore dated 17th September, 2002 passed in Appeal No. 1529(L) of 1998).

National Bank of Pakistan Staff Service Rules, 1980---

----R.6, Category-III, Chapter-II---Service Tribunals Act (LXX of 1973), S8.2-A & 4---Constitution of Pakistan (1973), Art. 212 (3)---Termination from service---Principles of natural justice---Applicability---Services of employee were terminated by bank without affording proper opportunity of hearing and no show-cause notice was issued to him---No inquiry was held and the employee remained unaware as to how and why his services were terminated---Service Tribunal allowed appeal filed by the employee and he was reinstated in service---Validity---Employee had more than six years of service at his credit and, therefore, his services could not have been terminated summarily in view of the provisions of R.6, Category-III, Chapter-II, of National Bank of Pakistan Staff Service Rules, 1980---Ever otherwise, the employee could not have been condemned unheard which was in violation of principles of natural justice as well as equity and fair play---No irregularity or illegality could be pointed out by bank in the judgment passed by Service Tribunal which being well-based did not warrant interference of Supreme Court--No question of law of public importance was involved in the petition---Leave to appeal was refused.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Ghulam Qadir, Advocate Supreme Court for Respondents.

Date of hearing: 29th November, 2004.

2005 P L C (C.S.) 1424

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

C.A.1071 of 1998

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan; Islamabad and another

Versus

Syed AFZAL MUHAMMAD FAROOQ and another

C.A.1072 of 1998

Dr. QAMAR-UZ-ZAMAN CH.

Versus

Syed AFZAL MUHAMMAD FAROOQ and others

Civil Appeals Nos. 1071 and 1072 of 1998, decided on 30th June, 2004.

(On appeal from judgment dated 17-4-1998, passed by the High Court of Sindh, Karachi, in Constitution Petition No. 1643 of 1996).

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art. 185---Promotion---Entitlement---Pensionary benefits- Appeal to Supreme Court---Employee who died during pendency of appeal, had instituted Constitutional petition claiming promotion including cancellation of notification in pursuance whereof other employee was promoted to post of Director-General---High Court directed the department to consider question of fitness of deceased employee and the other employee---After death of the employee, his legal heirs had not been joined as party---In absence of legal heirs of deceased employee it would not be fair to dilate upon merits of the case---Leave granting order was rescinded and Appellate Authority was directed to re-consider case of both the employees as per direction of High Court---If late employee was found to be entitled for promotion to the post of Director-General, in accordance with law, then pensionary benefits could be extended to his legal heirs.

Muttaqi Hussain Rizvi v. Province of Sindh PLD 1978 Kar. 703 and Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 ref.

Akhlaq Ahmed Siddiqui, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A. No. 1071 of 1998).

Appellant in person (in C. A. 1072 of 1998).

Respondent No.1 (in C. A. 1071 of 1998) not represented.

Respondent No.2 (in C.A. 1071 of 1998) in person.

Naeem Shah, Pakistan Meteorological Department for Respondents (in C.A. 1072 of 1998).

Date of hearing: 30th June, 2004.

2005 P L C (C.S.) 1429

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, HOME DEPARTEMNT, LAHORE and another

Versus

MUHAMMAD YUNUS BHATTI

Civil Petition No. 1081-L of 2003, decided on 16th May, 2005.

(On appeal from the judgment dated 7-3-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2850 of 2002).

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

----R. 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Service Tribunal had held a detailed inquiry into the reasons which had led to the compulsory retirement and having examined entire record of employee's long service in Police Department, found that grounds which had allegedly led to impugned compulsory retirement were vague, un­specific, bald accusations and not based on record---No exception could be taken to findings recorded by Service Tribunal---In absence of any infirmity in impugned judgment which could have qualified petitioners for grant of leave under Art. 212(3) of the Constitution, petition was dismissed and leave refused.

M.A. Aziz, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 16th May, 2005.

2005 P L C (C.S.) 1434

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUHAMMAD ASIF and another

Versus

DIRECTOR PUBLIC INSTRUCTION PUNJAB and another

Civil Petitions Nos. 1767-L and 1768-L of 2000, decided on 20th December, 2004.

(On appeal from the judgment dated 16-5-2000 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.1858 and 2249 of 1997).

(a) Administration of justice---

----Any person who had not come to the Courts with clean hands, was not entitled to any discretionary relief and even if some procedural illegality was shown to exist in the orders undoing the wrong, the Courts would not intervene to perpetuate a patently unjust, illegal and fraudulent act.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination of services---Service Tribunal found as a fact that appointments of petitioners were made surreptitiously behind the closed doors to oblige petitioners to the prejudice of others who could be equally eligible and might be more qualified than petitioners and who stood deprived of their right to compete for said posts on account of misdeeds of petitioners---Case was not fit where Supreme Court, which was mandated to do complete justice, could interfere in terms of Art. 212(3) of the Constitution.

Ch. Muhammad Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in both petitions).

Nemo for Respondents.

Date of hearing: 20th December, 2004.

2005 P L C (C.S.) 1439

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPER LIMITED/THE CHAIRMAN NATIONAL PRESS TRUST, ISLAMABAD

Versus

Sh. ABDUL MAJEED and another

Civil Petition No. 2680-L of 2004, decided on 11th May, 2005.

(On appeal from the judgment dated 28-7-2004 of the Federal Service Tribunal at Lahore, passed in Appeal No. 411(L) of 1999).

Civil Servants Act (LXXI of 1973)---

----S. 19---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art. 212(3)---Pension, grant of---Service Tribunal granted pension to the employee holding him entitled to it dismissing preliminary objection of employer with regard to limitation on ground that receipt of pension was a continuing cause of action and could be agitated at any time---Employer could not show any illegality in impugned judgment of Tribunal which could have entitled him to grant of leave in terms of Art.212(3) of the Constitution---Petition was dismissed and leave refused---Employee having denied pension to the employee for almost 10 years, and having dragged him into litigation before all kinds of fora, employer was directed to pay Rs.5,000 'to employee as costs.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Sh. Khizar Hayat, Advocate Supreme Court and Ch. Talib Hussin, Advocate-on-Record (absent) for Respondent No. 1.

M. Rafiq Shad, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Respondent No.2.

Nemo for Respondent. No.3.

Date of hearing: 11th May, 2005.

2005 P L C (C.S.) 1441

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

MUHAMMAD MALIK

Versus

ABDUL SHAKOOR MEMON and others

Civil Petitions Nos.2943 of 2004, 115 and 124 of 2005, heard on 28th February, 2005.

(On appeal from the judgment dated 7-11-2004 of the Federal Service Tribunal, Islamabad passed in Appeal No.238(R)CS of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art. 212(3)---Promotion---Entitlement---Respondent who originally was on deputation, was absorbed in the Department on regular basis as Inspector and was promoted as Assistant Director BS-17---Subsequently on issuance of show-cause notice for disciplinary proceedings against him his promotion in B.P.18 was deferred---Petitioner, who otherwise was junior to respondent, was promoted as Deputy Director in BS-18---Appeal filed by respondent was disposed of by Service Tribunal with direction to Departmental Authorities to place his promotion case before appropriate Committee for consideration---Finally Service Tribunal ordered promotion of respondent, against which petitioner and department had filed petition for leave to appeal---Respondent had submitted that he would have no objection if his case was remanded to Departmental Authority for consideration of his promotion in accordance with law, rules and instructions on the subject---Service Tribunal, in peculiar circumstances of case, was not justified to order promotion of respondent and his case was required to be remanded to Departmental Promotion Committee for consideration in accordance with law, rules and instructions---Impugned judgment of Tribunal needed to be modified---Petition for leave to appeal was converted into appeal and same was partly allowed---Competent Departmental Authority would consider and decide afresh case of promotion in accordance with law, rules and instructions within a period of two months.

Mehr Khan Malik M.A. Zaidi and Ch. Akhtar Ali, Advocates-­on-Record for Petitioner.

Abdul Ghafoor Mangi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 28th February, 2005.

2005 P L C (C.S.) 1447

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J. Muhammad Arif and Qazi Muhammad Farooq, JJ

NADEEM AHMED

Versus

PAKISTAN STATE OIL COMPANY LTD. and another

C.P. No.418-K of 2000, heard on 10th January 2001.

Constitution of Pakistan (1973)---

----Art. 212(3)---Termination of service without assigning any reason---Service Tribunal had recorded a finding of fact that appointment of the petitioner was on contract basis---No statutory rules /regulations existed to regulate the terms and conditions of contract service---Appointment letter had expressly provided that service of the petitioner could be terminated without assigning any reason whatsoever with one months' written notice and the petitioner was also given the option to resign from service by giving the company. one month's notice---Question raised in the petition was of individual nature and no substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution was involved warranting interference by the Supreme Court---Petition for leave to appeal was dismissed.

Khawaja Naveed Ahmed Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Petitioner.

Raja Haq Nawaz, Advocate Supreme Court and M.S. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 10th January, 2001.

2005 P L C (C.S.) 1455

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD BOOTA

Versus

DIRECTOR-GENERAL, ORDNANCE SERVICES, GENERAL HEADQUARTERS, RAWALPINDI and others

Civil Petition for Leave to Appeal No.2411(L) of 2000, decided on 8th October, 2004.

(On appeal from the judgment dated 4-7-2000 of the Federal Service Tribunal, Lahore passed in Appeal No.392(L) of 1998).

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

----Rr. 3 & 4---Constitution of Pakistan (1973), Art.212(3)---Discharge from service---Misappropriation of M.T. Stores, charge of---Recovery of stores from a shop of civilian in local market---Dismissal of appeal of civil servant by Service Tribunal---Plea of civil servant was that in fact no misappropriation had taken place as stores confiscated from shop had been returned to its owner---Validity---Civil servant had not raised such plea before Tribunal at the time of hearing of appeal---Such charge had been proved concurrently---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Malik Muhammad Pervaiz Akhtar, Dy. A.-G. for Respondents Nos.1 and 2.

Date of hearing: 8th October, 2004.

2005 P L C (C.S.) 1463

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

EJAZ AHMAD HASHMI and 6 others

Versus

STATE LIFE INSURANCE CORPORATION and another

Civil Petitions Nos,2912-L, 2658-L to 2660-L and 2666-L to 2668-L of 2004, decided on 28th January, 2005.

Constitution of Pakistan (1973)---

----Art. 212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal---Condonation of delay---Plea of one petitioner was that he was informed late about judgment---Plea of other petitioner was that he was mentally disturbed and under high tension due to family circumstances, thus, could not approach Court within time---Validity---No plausible reason had been assigned for condonation of delay---Supreme Court dismissed petitions in circumstances.

Muhammad Ilyas Khan, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioners.

Jehanzeb Khan Bharwana, Advocate-on-Record for Respondents.

Date of hearing: 28th January, 2005.

2005 P L C (C.S.) 1475

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

GHULAM QASIM KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan and another

Civil Petition No. 1547 of 2004, decided on 25th July, 2005.

(On appeal from the judgment dated 16-5-2003 of the Federal Service Tribunal, Islamabad passed in Appeal No.831(R)CS of 2002).

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

---Ss. 3, 5 & 8---Government Servants (Efficiency and Discipline) Rules, 1973---Fundamental Rules, R.29---Service Tribunals Act (LXX of 1973), S.5---Constitution of Pakistan (1973), Art.212(3)---Punishment of reduction to the lowest time scale in BPS-19---Contention of the petitioner was that when the Inquiry Committee had found that the petitioner was not involved in misappropriation or embezzlement, the punishment imposed was unwarranted---Validity---Held, section 3, Removal from Service (Special Powers) Ordinance, 2000 in general and S.3(i)(e) in particular authorized the competent Authority to impose any of the punishments given in S.3(i)(e) as well as Government Servants (Efficiency and Discipline) Rules, 1973---Section 5 read with S.8 of the Ordinance authorized the competent Authority to pass such order on the report and recommendation of the Inquiry Committee or Inquiry Officer, as it might deem proper in accordance with the provisions of the Ordinance---Question as to how such punishments were to be in accord with the provisions of the Ordinance, was fully answered in S.3 of the Ordinance---Competent Authority, therefore, was not bound to follow the report of the Inquiry Officer which, in the very terms of the section, was of recommendatory nature---Recommendations in view of Ss.3, 5 & 8 of the Removal from Service (Special Powers) Ordinance, 2000 could not be construed to be binding upon the competent Authority---Leave to appeal was refused.

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th July, 2005.

2005 P L C (C.S.) 991

[Supreme Court (AJ&K)]

Before Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

CHAUDHARY MUHAMMAD TAJ, DEPUTY CONTROLLER, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MIRPUR (AK)

Versus

TASAWAR HUSSAIN SULEHRIA, RESEARCH OFFICER BOARD OF INTERMEDIATE AND SECONDARY EDUCATION MIRPUR (AK)

Civil Appeal No.32 of 2004, decided on 18th March, 2005.

(On appeal from the judgment of the High Court dated 19-12-2003 in Writ Petition No.47 of 2002).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)------

---S. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Promotion---Appellant was promoted as Deputy Controller on recommendation of Selection Committee, but respondent filed a writ petition challenging appellant's promotion---High Court having accepted said writ petition, appellant had filed appeal to Supreme Court against judgment of High Court in which he raised certain points---Appellant while addressing arguments did not press other points, except that direction of High Court with regard to respondent to consider him for the post of Deputy Controller, was absolutely against law for the reasons that it was not held by High Court that said respondent was eligible to be considered for promotion---Since there was not much dispute regarding contentions of parties, it was held that direction given by High Court in respect of respondent to be considered for the post of Deputy Controller was unwarranted and was not maintainable and was set aside in appeal---Rest of the judgment would remain intact whereby order of promotion had been set aside and same was held to be made by the concerned authorities---Authorities would proceed in accordance with law and consider all those who were eligible for promotion.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant.

Mujahid Hussain Naqvi, Advocate for Respondent No. 1.

Date of hearing: 17th March, 2005.

2005 P L C (C.S.) 997

[Supreme Court (AJ&K)]

Before Khawaja Muhammad Saeed, C.J and Chaudhary Muhammad Taj, J

MAHMOOD AKHTAR

Versus

Syed HASSAN MUJTABA JAFFRI and 8 others

Civil Appeal No.42 of 2004, decided on 4th March, 2005.

(On appeal from judgment of the High Court dated 16-2-2004 in Writ Petition No.16 of 2003).

(a) University of Azad Jammu and Kashmir Service Statutes, 1981 (General Provisions)------

----S. 5(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44---Writ of quo warranto was filed whereby appointment of respondent in the University was challenged on the ground that respondent being not State Subject was not entitled to be appointed---High Court having dismissed writ of quo warranto, appellant had filed appeal to Supreme Court---Contention of appellant was that no person was eligible for appointment to the service of University by direct recruitment unless he was State Subject Class-I as provided under S.5(a) of University of Azad Jammu and Kashmir Service Statutes, 1981 (General Provisions)---Validity---Preference, no doubt, had been given to State Subject holding requisite qualification under provisions of S.5(2) of University of Azad Jammu and Kashmir Service Statutes, 1981 (General Provisions), but in case candidate possessing required qualifications was not available, said condition could be relaxed---Record did not show that any State Subject candidate having the required qualification had contested for the post---Respondent though was not State Subject, but had the required qualifications---Relaxation, in circumstances was not made against law---No illegality having been found in the appointment of respondent order passed by High Court dismissing petition for writ of qua warranto, was maintained in appeal.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ of quo warranto---Grant of---Conditions---Writ of quo warranto could be granted by High Court upon a petition against a person who claimed and usurped an office, inquiring from him by what authority he claimed or usurped the office---Petitioner invoking jurisdiction of High Court must satisfy that the office in question was a public office and was held by respondent without legal authority---Respondent should be clearly shown to be disqualified to hold office in question---Writ of quo warranto would be issued if it was established to the satisfaction of the Court that holder of office was not legally qualified to hold or to remain in the office or some statutory provisions had been violated in making the appointment and his title to office was without any legal warrant or authority---Writ of quo warranto would not be issued unless a clear violation of law or any other rule, having the force of law, was shown to have been committed in the appointment.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Mujahid Hussain Naqvi, Advocate for Respondent No.1.

Farooq Hussain Kashmiri, Advocate for Respondent.

Date of hearing: 1st March, 2005.

2005 P L C (C.S.) 1074

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J and Chaudhary Muhammad Taj, J

CHAIRMAN, PEARL DEVELOPMENT AUTHORITY, RAWALAKOT and others

Versus

TARIQ INQALABI and others

Civil Appeals Nos.107 and 108 of 2003, decided on 16th February, 2005.

(On appeals from the judgment of the High Court dated 6-5-2003 in Writ Petition No.542 of 2001).

Civil service---

----Passing an adverse order and imposition of penalty--Notice for personal hearing--Before passing an adverse order against a person or imposing a penalty, it was essential to give a notice for personal hearing and same could not be dispensed with unless a specific provision was available in the relevant law that services of a civil servant could be terminated without serving any notice upon him.

Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2002 PLC (C.S.) 785; Azad Jammu and Kashmir Government v. Muhammad Siddique Haidri 2000 PLC (C.S.) 714 ref.

Sardar Muhammad Sadiq Khan for Appellant (in Appeal No.107 of 2003).

Raja Muhammad Hanif Khan for Appellant (in Appeal No.108 of 2000).

Kh. Atta Ullah Chak for Respondents Nos.1 to 8 (in both Appeals).

Date of hearing: 8th February, 2005.

2005 P L C (C.S.) 1098

[Supreme Court (AJ&K)]

Before Khawaja Muhammad Saeed, C.J, Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj. JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary at Muzaffarabad and others

Versus

SARDAR MUHAMMAD ASHRAF KHAN and others

Civil Appeal No.45 of 2003, decided on 18th March, 2005.

(On appeal from the judgment of the Service Tribunal dated 18-10-2002 in Service Appeal No.441 of 2001).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----Ss. 3,4, 5, 6 & 7---Appeal before Service Tribunal---Appeal finally could be decided by the whole Tribunal, be it consisting of two Members including the Chairman or more---Chairman, besides being head of the Tribunal was a Member at the same time for the purpose of hearing of the appeal-2-Only exception recognized by law as enshrined in subsection (5) of S.6 of Azad Jammu & Kashmir Service Tribunal Act, 1975, was that if proceedings were conducted by a single Member or the Chairman of the Tribunal, those would not be rendered illegal and ineffective simply for that reasons.

Nighat Yasmin Nizami v. Shaheen Manzoor and 4 others 2001 PLC (C.S.) 963; Arshad and Co. v. Capital Development Authority Islamabad through its Chairman 2000 SCMR 1557; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Abdul Karim v. Kala Khan and another PLD 1987 AJK 139; Al-Khair. Trust of Pakistan and another v. Prof G.J. Preshan Khattak and 4 others 2002 SCR 476; Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab Lahore and 4 others PLD 1979 SC 846; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514; and Jan Muhammad and another v. Home Secretary, Government, of West Pakistan and others PLD 1968 Lah. 1455 ref.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----Ss. 5, 6, 7 & 9---"Proceedings"---Meaning and scope, explained---`Proceedings' were the gradual stages of the case leading to its final disposal e.g. summoning of parties, summoning of the record, interlocutory or interim relief orders, etc.---All steps taken in connection with a case, right from its institution to the final decision, fell within the ambit of word 'proceedings'---Stages preliminary to final judgment, stricto senso, were interlocutory proceedings while the final judgment was the culmination of proceedings followed up by execution proceedings of judgment till its satisfaction in accordance with procedure---Meaning and scope of word "proceedings" elaborated.

Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Yusuf Ali Khan, Bar-at-Law v. Muhammad Javed Iqbal Cheema, Additional District Judge Lyallpur and others PLD 1975 Lah.. 1339; Messrs K.J Lingan and A.V. Mahayalam v. Jt. Commercial Tax Officer AIR 1968 Mad. 76; Firm Ratanchand Darbarilal Saina and others v. Rejendra Kumar Khobchand and others AIR 1970 Madh. Pra.l; Abdul Karim v. Kala Khan and another PLD 1987 AJ&K 139; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Emperor v. Fazlul Rehman and others PLD 1939 Pesh. 52; Jan Muhammad and another v. Home Secretary Government of West Pakistan and others PLD 1968 Lah. 1455 and Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

(c) Interpretation of Statutes---

---Application of law---Principles---Law had to be read and applied as awhole---While applying a provision of law, it would be so interpreted and applied that its compatibility with the other provisions of same law or other laws, was ensured---Provisions of law were not to be read and applied in isolation of each other.

Al-Khair Trust of Pakistan and another v. Professor G.J Preeshan Khattak and 4 others 2002 SCR 476; Raja Muhammad Sohrab v. Azad Govt. and others 2002 PLC (C.S.) 1138 and Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595 ref.

(d) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----Preamble, Ss.6 & 7---Object of Azad Jammu and Kashmir Service Tribunal Act, 1975---Purpose of Azad Jammu and Kashmir Service Tribunal Act, 1975 was the expeditious hearing for decision of service matters relating to civil servants and to achieve that object, Legislature had endured to plug the lacunas by incorporating subsections (1) and (5) in S.6 of the said Act that the Chairman could constitute a Single or Division Bench for hearing appeals under the Act---If proceedings were taken by a single Member only, that would not be rendered illegal and ineffective---Government was obliged under S.7 of Azad Jammu and Kashmir Service Tribunal Act, 1975 to appoint a Chairman or the Member, as the case might be, to hear and finally dispose of appeal if the office of Chairman or the Member was temporarily vacant---All such steps were for achieving the final object, that was, the decision of the case, which was regulated by subsection (2) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975 and under said provision, the conclusion arrived at by a Single Member or the Division Bench would be placed before the Tribunal as a whole who would take the decision in the case, if there were more than two Members of the Tribunal---Under subsection (1) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975, the Chairman was competent to constitute a Single or Division Bench for hearing appeals and 'hearing' would mean the 'hearing only', not the decision---Conclusion arrived at by a Single or Division Bench after hearing was to be placed before Full Bench, who alone was competent to take decision---Judgment of Service Tribunal being contrary to provisions of subsection (2) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975 was set aside by the Supreme Court and case was remanded to Service Tribunal to decide afresh, accordingly.

Raja Muhammad Hanif Khan for Appellants.

M. Tabassum Aftab Alvi for Respondents.

Sardar Rafique Mehmood Khan, Amicus Curaie for Respondent No.2.

Date of hearing: 11th March, 2005.

2005 P L C (C.S.) 1138

[Supreme Court (AJ&K)]

Before: Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

Civil Appeal No.22 of 2002

GULZAMAN AWAN

versus

MUHAMMAD HAYYAT KHAN and 5 others

(On appeal from the judgment of the Service Tribunal dated 14-12-2001 in Service Appeals No.217 and 343 of 1999, and 364 of 2000).

Civil Appeal No.50 of 2002

GHULAM HUSSAIN GANNAI

versus

MUHAMMAD HAYYAT KHAN and 5 others

(On appeal from the judgment of the Service Tribunal dated 14-12-2001 in Service Appeals Nos.217 and 343 of 1999 and 364 of 2000).

Civil Appeals Nos.22 and 50 of 2002, decided on 18th June, 2004.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----Ss.8, 8-A---Promotion---Selection for further promotion in case of a Selection post, was to be made on merits and not on the basis of seniority, whereas in case of non-Selection post; promotion was to be made on basis of seniority-cum-fitness---Promotion to the next higher grade could not be claimed as of right---Whether promotion should be given to a particular civil servant or same should be refused to him appeared to be within exclusive discretionary domain of concerned competent Authority---Person possessing such minimum qualification as was prescribed for a particular post, having unblemished service record and fulfilling other requirements as laid down for next higher post, could claim right for consideration for his promotion which definitely was not equal to right of promotion---Words "Selection on merit or on the basis of seniority-cum-fitness" used in S.8(2)(a)(b) of Azad Jammu and Kashmir Civil Servants Act, 1976, had shown that competent Authority had to consider while assessing merits, experience gained, rectitude and antecedent service record of civil servants---If those were equal in the wisdom of competent Authority, then person having better qualification could claim edge over contesting candidates.

Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303; Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C. S.) 445; Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426; Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109; Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15; Qazi Faizal Haq v. Govt. of N.-W.F.P. through Chief Secretary Peshawar 1987 SCMR 110; Tasneem Yaseen v. Azad Govt. and 11 others 2004 PLC (C.S) 850; Sardar Muhammad v. The Chief Administrator, Auqaf 1989 PLC (C.S.) 262; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (C.S.) 1138; Inhabitants of Singola through Muhammad Hanif and another v. Azad Government and 22 others 2001 YLR 3190; Mst. Farooq Bibi v. Abdul Khalid and 26 others 1999 CLC 1358 and Sh. Ghulam Ahmed v. Government of Azad Jammu and Kashmir PLD 1968 AJK 64 ref.

(b) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----Ss.8, 8-A---Promotion---Sole Judge to determine suitability for promotion to a particular post was the Competent Authority of department and such principle could be interfered with only in a case of proved mala fide i.e. that antecedent service record of parties was ignored and any law on the subject was infringed---Mere academic qualification had not been recognized as sole criteria for determining comparative merits---Competent Authority was required to look into experience, seniority, competence, past service record in addition to rectitude of parties.

(c) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----Ss.8, 8-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47--Promotion---Appeal before Supreme Court---Appellants were promoted as Accountants B-11 ahead of respondent and order of promotion of appellants was never challenged by respondent---Later on a selection grade post was upgraded to B-15 and both appellants were automatically upgraded to B-15---Appellants subsequently were promoted as Superintendent B-16 with retrospective effect and as selection grade Superintendents B-17---Series of said beneficial orders in favour of appellants were never questioned by respondent either before Departmental Authority or before any other forum or Court established by law to resolve disputes between civil servants---Respondent, no doubt was senior to appellants up to B-10, but onwards, appellants were promoted in better grades earlier than the respondent---If a person senior in grade was superseded through promotion by a junior and later on he was also promoted to that grade, junior who was promoted first, would rank senior to that person who even though was senior in lower grade, but was promoted subsequently---Appellants on account of their promotion in B-11 earlier than respondent, which order was. never challenged by him, had become senior to respondent thereafter and were rightly promoted by Departmental Authorities ahead of respondent---Appeals filed by respondent before Service Tribunal were without merits.

Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282 and Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 ref.

(d) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.4---Appeal before Service Tribunal---Maintainability---Availing departmental remedy before invoking appellate jurisdiction of Service Tribunal was a pre-requite---Appeals filed without availing Departmental remedy, were not maintainable.

Abdul Rashid Abbasi, Advocate for Appellant (in Civil Appeal No.22 of 2002).

M. Tabassum Aftab Alvi, Advocate for Respondent No.1. (in Civil Appeal No.22 of 2002).

Riaz Naveed Butt, Addl. A.-G. for Respondents Nos. 2 to 5 (in Civil Appeal No.22 of 2002).

Sardar Muhammad Habib Zia, Advocate for Appellant (in Civil Appeal No.50 of 2002).

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1 (in Civil Appeal No.50 of 2002).

Raja Ibrar Hussain, Advocate-General for Respondent Nos.2 to 5 (in Civil Appeal No.50 of 2002).

Dates of hearing 6th and 7th April, 2004.

JUDMGENT

KHAWAJA MUHAMMAD SAEED, J---Supra titled appeals, with leave of the Court, are directed against the judgment of the Service Tribunal dated 14-12-2001. As the identical questions of law and facts are involved in both, of them, therefore, these are disposed of through this common judgment.

1. The facts giving rise to the present appeals, briefly stated, are that both the appellants were inducted as Junior Clerks in B-5 in the Education Department of Azad Jammu and Kashmir after the induction of private respondent as Junior Clerk B-5 in the same department. They were promoted as Senior. Clerks in B-6 and Head Clerks in B-10 after the promotion of private respondent in B-6 and B-10. In the year 1983, two separate Directorates of Schools and Colleges were established in the Education Department by the Government. The private respondent was posted in the Directorate of Colleges, whereas the appellants were adjusted through posting orders in the Directorate of Schools. A tentative seniority list was prepared of low grade employees of the Education Department serving in college cadre in which the private respondent was shown at serial No.14, posted in Girls College Bagh. In the same way a tentative seniority list for ministerial staff of Education Department serving in school cadre was also drawn in which both the appellant were entered. Gul Zaman Awan, appellant, was entered at serial No.6, whereas Ghulam Hussain Gannai, the other appellant, at serial No.7. All the concerned employees were directed to file their objections, if any, about the correctness of any entry upto 25-7-1985. No person filed any objection about these seniority lists which shows that the parties were satisfied about the entries of both the tentative seniority lists circulated by the Education Department. Therefore, the private respondent was senior to the appellants up to Head Clerk, B-10. On 25-1-1986 the appellants were promoted as Accountant, B-11. Their promotion order was never challenged by the private respondent, therefore, on account of this reason the private respondent was declared junior to the appellants by the departmental authority. The appellants were given Selection Grade B-14 on 25-5-1986. Subsequently the same post was upgraded to B-15 w.e.f. 1-7-1987. Resultantly both the appellants, as holders of the posts, were automatically. upgraded to B-15 w.e.f. 1-7-1987. Thereafter the appellants were promoted as Superintendents B-16 with retrospective effect from 8-4-1992 and as selection grade Superintendents B-17 w.e.f. 1-10-1995. The series of these beneficiary orders in favour of appellants were neither challenged by the private respondent before the departmental authority nor before any forum established by law. Gul Zaman Awan, Appellant, herein, in Civil Appeal 22 of 2002, was lastly promoted as Assistant Director B-17 w.e.f. 25-7-1999 vide notification dated 21-6-2000.

2. Another seniority list of ministerial staff of the Education Department serving in schools and colleges both was circulated in which appellant, Gul Zaman Awan, was shown at serial No.4 and the other appellant at serial No.5, whereas the private respondent was entered at serial No.7. On the basis of promotion of the appellants in B-11 they were placed ahead of private respondent in the seniority. However while circulating this seniority list all the employees were directed to submit their objections, if any, within a period of one month. It was made clear that beyond this period no objection shall be entertained. It was further entered in the closing note of the seniority list that the entries made in this seniority list have been taken from past seniority lists.

3. It is not the case of the private respondent that he challenged the legalities of these entries either before any departmental authority or before any Court established by law. However there is a notification at' page 101 of the paper book which shows that both the appellants filed appeals before the Secretary Education challenging the seniority of Shah Zaman Abbasi, Ghulam Hussain Shah and Nazir Ahmed Mir, who at the relevant time were posted as Head Clerks in various officers of the Education Department. Their appeals were allowed on the ground that they were promoted in B-11 earlier than those persons and also on the ground that they had refused to serve outside the municipal limits of Muzaffarabad city against the post of Accountant B-11. On the basis of result of their appeals, the appellants were entered in the seniority list of ministerial staff of the Education Department ahead of these persons. However no final seniority list was ever prepared by the Education Department.

4. The contesting respondent who was promoted as Head Clerk in B-10 on 21-5-1978 on account of revision of pay scales of the post of Head Clerks got up-gradation of his post from B-10 to B-11 vide notification dated 25-7-1987. He was subsequently awarded Selection Grade B-15 on 14-1-1987 w.e.f. 1-7-1987 and promoted as Superintendent B-16 w.e.f. 25-10-1995, as compared to the appellants who were promoted as Superintendents B-16 w.e.f. 8-4-1992. On 6-7-1999 the private respondent filed first appeal before the Service Tribunal challenging the order dated 12-2-1995, regarding the promotion of the appellants as Superintendents B-16 w.e.f. 8-4-1992. His appeal was entered at serial No.217. He filed second appeal No.343 of 1999 on 30-9-1999, before the Service Tribunal whereby he challenged the notification dated 1-7-1999, regarding the promotion of the appellant, Gul Zaman Awan, as Assistant Director Schools in B-17 on current charge basis. On 18-8-2000 he filed third appeal No.364 of 2000, challenging the notification dated 21-6-2000 regarding the regular promotion of Gul Zaman Awan, as Assistant Director Schools in B-17 w.e.f. 27-7-1999. As the parties to the litigation were the same and dispute listed in the appeals was in respect of promotion and seniority, therefore, the Service Tribunal felt it appropriate to consolidate all the three appeals for joint proceedings. After necessary proceedings as required by law through common judgment dated 14-12-2001, the Service Tribunal accepted all the three appeals of private respondent. The order of promotion of the appellants as Superintendents B-16 dated 12-2-1995 was amended, instead of the appellants the private respondent was promoted from the aforesaid date as Superintendent B-16. The date of promotion of the appellants thus as Superintendent B-16, was changed from 8-10-1992 to 25-10-1995. The order dated 1-7-1999, regarding the promotion of Gul Zaman Awan as Assistant Director Schools B-17 on current charge basis and his permanent promotion as such in B-17 on regular basis, was set aside by holding the private respondent as senior to him. The order of promotion of other appellant as Superintendent B-16 was also amended. He was held entitled to promotion as Superintendent B-16 from 25-10-1995 instead of 8-4-1992 and the private respondent was held entitled to promotion as Superintendent B-16 from 8-4-1992 instead of 25-10-1995. The official respondents Nos.2 to 5 were directed to include the name of private respondent in the panel meant for the consideration of Departmental Selection Board for further promotion. This judgment of the Service Tribunal has been assailed before this Court by the appellants through the present appeals on various grounds.

5. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, Gul Zaman Awan, argued that his client in his written statement had never admitted the seniority of the private respondent beyond B-10, therefore, the judgment of the Service Tribunal is based on misreading and non-reading of record, as such, is not maintainable. According to him in the written statements of his clients, copies of which have been placed at pages 49 to 59 of the paper book, the relevant contents contained in paras. 1 and 4 of the appeal have been denied. If the private respondent in the tentative seniority list was wrongly placed below the appellants, he should have challenged the correctness of the same firstly before the departmental authority and then before the Service Tribunal which at the relevant time was the requirement of section 4 of the Service Tribunals Act, 1975. The reliance was placed upon cases titled Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303 and Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C.S.) 445, wherein it is laid down that the seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. He also relied upon a case titled Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282, wherein the retrospective promotion was not challenged by the appellant within the period of limitation and it was laid down that even a void order adversely affecting the interest of a person should be challenged. within a reasonable time. In this case the relevant petition was dismissed on account of indolent and negligent attitude of the petitioner who had not challenged the retrospective promotion of the respondent within time.

6. It was further argued by the learned counsel for the appellant that private respondent in the seniority list was placed at serial No.7 ahead of his client and one Ghulam Hussain Shah was entitled in the same seniority list at serial No.6. The seniority of Ghulam Hussain Shah was challenged by the appellants and their appeals were allowed and appellants were ordered to be entered ahead of Ghulam Hussain Shah in the seniority list, Ghulam Hussain Shah moved an application before the Service Tribunal in appeal No.217 of 1999 filed by the private respondent for being impleaded as a party. The private respondent before the Service Tribunal admitted Ghulam Hussain Shah senior to him. On account of this reason Ghulam Hussain Shah did not press his application before the Service Tribunal for impleading him in the line of respondents to defend his case of seniority against the private respondent. He further argued that the private respondent after admitting Ghulam Hussain Shah senior to him is not justified in law to claim seniority against the appellants who are already entered ahead of Ghulam Hussain Shah in the same seniority list. According to him, even if the seniority list was void then too there was no justification for the private respondent to sleep over the matter for an indefinite time. According to the learned counsel when this tentative seniority list was circulated among the members of the ministerial staff of Education Department the private respondent should have filed his objections within the period fixed in the foot note of the same list or challenged the result of the appeals decided by the Secretary Education in favour of appellants, against Ghulam Hussain Shah and others who were declared ahead of private respondent in the seniority list but no departmental remedy or appeal before the Service Tribunal was filed by him within the prescribed period of limitation, therefore, the entry of the appellants ahead of the private respondent had attained 'finality which was wrongly ignored by the Service Tribunal while drafting judgment under challenge in the present cases. The indolent attitude of the private respondent was altogether ignored while allowing remedy in his appeal by violating the service laws applicable in the Azad Jammu and Kashmir. In this regard he strenuously argued that despite this fact that question of limitation was specifically raised in the written statements and was pressed in the written arguments but the same was not resolved by the Service Tribunal. The lethargic attitude of the Service Tribunal in this regard cannot be appreciated. According to him in para. 6 of the written statement it was specifically pleaded by the appellants that the private respondent was in know of the promotion of the appellants but he never challenged the same. In support of this assertion an' affidavit was also filed by the appellants but neither any counter-affidavit was filed, by the private respondent nor the assertions of the appellants in the aforementioned para. of written statement was specifically denied by him in his replication.

7. Mr. Abdul Rashid Abbasi, the learned counsel for Gul Zaman Awan, further argued that appeals Nos.217/99 and, 343/99 filed by the private respondent before the Service Tribunal on 6-7-1999 and 30-9-1999 were liable to be dismissed on the ground that before invoking the appellate jurisdiction of the Service Tribunal the private respondent had not availed the departmental remedy as was required by law applicable at the relevant time. He referred his written statement in which this objection was specifically raised by the appellants but the same was not attended to by the Service Tribunal while drafting the judgment under challenge. He also brought to our notice the written arguments which were submitted on behalf of the appellants, by their learned counsel in which this objection was once again pressed. The failure on the part of Service Tribunal to resolve such important legal objection without assigning any reason renders two consolidated judgments as invalid and liable to be set aside. He admitted that private respondent was senior to the appellants upto B-10. However, according to him, the appellants were promoted in B-11 w. e. f. 25-1-1986 as compared to the private respondent who availed this pay scale on 25-5-1986, when post of Head Clerk was upgraded from B-10 to B-11 vide notification dated 25-7-1987. According to him, the private respondent either did not challenge the promotion of the appellants in B-11 before the departmental authority or before the Service Tribunal. Thus by his conduct he waived his seniority. The appellants were also granted selection grade B-14 which order he never challenged before the departmental authority or before the Service Tribunal, therefore, the appellants who were given better grade were rightly promoted as Superintendents B-16 ahead of private respondent. He further argued that the promotion of appellant Gul Zaman Awan on current charge basis against a post in B-17 and then his regular promotion in B-17 against the same post was in accordance with the service laws applicable in this part of the State. Lastly it was argued that the private respondent is not qualified to be promoted in B-16 as he lacks the prescribed length of service in B-11 but the Service Tribunal failed to apply the correct law while allowing relief to the private respondent.

8. Sardar Muhammad Habib Zia, the learned counsel for Ghulam Hussain Gannai, the appellant in Civil Appeal No.50 of 2002, owned the arguments addressed by the learned counsel for Gul Zaman Awan and submitted that appeals Nos.217 and 343 of 1999 were filed without availing the departmental remedy, therefore, these appeals were liable to be dismissed summarily on this ground; whereas the appeal No.364 of 2000 was filed after the prescribed period of limitation without furnishing any valid ground for the condonation of delay. According to him, the assertion of the private respondent that he was not aware of the promotion of appellants in B-11 was not sufficient to bring his appeal within limitation. He should have specifically mentioned in detail the facts and supported the same through an affidavit. On the basis of general pleadings the time fixed by law cannot be relaxed in favour of a negligent party. The reliance was placed upon a case titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 and unreported judgments of this Court in cases titled Muhammad Mushtaq Khan v. Board of Revenue decided on 25-11-1998 and Azad Kashmir Cooperative Bank v. Sardar Muhammad Ashraf Khan, decided on 9-8-2001.

9. Raja Ibrar Hussain, the learned Advocate-General, supported the arguments of Mr. Abdul Rashid Abbasi, and Sardar Muhammad Habib Zia, the learned counsel for the appellants. According to him, the private respondent has waived his right by not availing the departmental remedy against the promotion orders of the appellants in B-11 and other orders passed thereafter, through which the appellants were given further better grades, therefore, the belated appeals filed by him in the Service Tribunal were liable to be dismissed, whereas without any justifiable reason through impugned judgment his appeals were allowed.

10. Conversely Mr. M. Tabassum Aftab Alivi, the learned counsel for the private respondent, argued that the promotion order of the appellants in B-11 was bad in law as in their promotion order the words Hasab Safarish Selection Committee' were not mentioned. He said that only such official acts are respected by the Courts which stood performed in accordance with the scheme laid down by law. It was further submitted that his client had never given his choice for adjusting him in college cadre. at the time when Education Department was bifurcated in schools and colleges cadres. He strenuously opposed that any benefit can be extended to the appellants on the basis of tentative seniority' lists. He further argued that all the seniority lists contained a foot note that any person whose entries are incorrect may file objection within a period fixed therein. There was also a note that if no objections are filed then the same seniority list shall be made absolute but no final seniority list was ever published/issued by the Education Department, therefore, on the basis of the entries recorded in the tentative seniority list the appellants are' wrongly claiming the benefit of seniority over his client. According to him, the official respondents in their written statement admitted the seniority of his client. Even the official, respondents have not specifically denied parasA' and B' of the grounds of appeal. He referred the written statement filed by the official respondents and page 51 of the paper book, the written statement filed by the appellants, and submitted that as material question of fact was not denied in their written statement, therefore, it shall be assumed that the groundsA' and `B' contained in the memorandum of appeal of the appellants in appeal No.217 of 1999 was admitted by the appellants as well as by the official respondents. The reliance was placed upon the following authorities:--

(1) Qurban Hussain v. Mst. Bashir Begum and 6 others (PLD 1986 SC (AJ&K) 109) and

(2) Muhammad Lal v. Mohko and 2 others (PLD 1979 SC (AJ&K) 15).

1. He also relied upon annexure (1), a seniority list in which the name of the private respondent was entered at serial No.23 as against the appellants who are entered at serials Nos.26 and 27, therefore, as his client was ahead of the appellants in the seniority list, therefore, there was no justification to ignore him while promoting the appellants in B-16. While meeting the objection of limitation he argued that his client was sent in college cadre without his consent and during the period the appellants were given promotion in B-11 without considering his merit and without the recommendations of the relevant Selection Board. Therefore, their promotions cannot deprive his client from his seniority who admittedly was senior to them up to B-10. According to him, when the illegal promotions of the appellants came in the knowledge of his client, he after obtaining the copies of the relevant documents, filed appeals in the Service Tribunal. By allowing his appeal it shall be presumed that the Service Tribunal excused the delay in filing appeals before it. Alternatively he argued that in service matters the limitation shall start from the date when order is communicated to the aggrieved civil servant. In this case the orders of promotion of the appellants were never communicated to his client, therefore, limitation cannot commence from the date when such promotions were given to the appellants. The reliance was placed by him on the following authorities which are as under:--

(1) Qazi Faizul Haq v. Govt. of N.-W.F.P. through Chief Secretary Peshawar (1987 SCMR 110);

(2) Tasneem Yaseen v. Azad Govt. and 11 others (2004 PLC (C.S) 850)

(3) Sardar Muhammad v. The Chief Administrator, Auqaf (1989 PLC (C.S.) 262).

1. Lastly he argued that the points which have been raised before this Court were not pressed before the Service Tribunal as the learned counsel for the appellants failed to appear before it for arguments, therefore, the points not argued before the Court below cannot be allowed to be raised for the first time in appeal before this Court. The reliance was placed upon the following authorities:--

(1) Raja Muhammad Sohrab v. AJ&K Govt, and 6 others 2002 PLC (C.S.) 1138;

(2) Inhabitants of Singola through Muhammad Hanif and another v. Azad Government and 22 others 2001 YLR 3190; and

(3) Mst. Farooq Bibi v. Abdul Khalid and 26 others (1999 CLC 1358).

1. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The dispute between the parties is in respect of their seniority and promotion. Admittedly, as is apparent from the facts mentioned in detail in the opening part of this judgment, the parties were inducted in service in the ministerial staff of Education Department. Upto BPS-10, the private respondent was senior to the appellants according to his length of service as he was inducted in service earlier than the appellants and he also got promotion upto this grade ahead of appellants. Before resolving the dispute between the parties, it appears appropriate to have a look of the law, which is applicable in this part of the State. The Azad Jammu and Kashmir Civil Servant Act was enforced in the year 1976. Prior to that Kashmir Civil Service Rules in two volumes were enforced. In the Civil Servants Act, 1976, the word `promotion' has not been defined. However in rule 1, Kashmir Civil Service Rules, volume II, this term was defined in the following words:--

"The appointment of a member of a service or class of service many category or grade to a higher category or grade of such service or class."

Keeping in view this definition, it was laid down in a case titled Sh. Ghulam Ahmed v. Government of Azad Jammu and Kashmir (PLD 1968 AJK 64), that on careful analysis of this definition, it can easily be inferred that what is essential to constitute a promotion is the appointment of a public servant from a lower category or class to a higher category or class of service. Under Civil Servants Act, 1976, as said earlier, the term `promotion' has not been defined. However under sections 8 and 8-A, how promotion is to be made, is given. These provisions being relevant are reproduced below:-

"8. Promotion.--(1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post, for the time being, reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.

(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed.

(i) in the case of a selection post, on the basis of selection on merit; and

(ii) in the case of non-selection post, on the basis of seniority -cum-fitness.

8(A) Out of turn promotion etc.---Notwithstanding anything contained in this Act or any other law for the time being in force or in any contract, or rights claimed or acquired under any judgment of any Court or Tribunal, civil servant who provenly exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out of turn promotion or award or reward in such manner as may be prescribed."

1. From the bare reading of the above referred provisions, it becomes clear that further promotion in case of a selection post, the selection is to be made on merits and not on the basis of seniority, whereas in the case of non-selection post, the promotion is to be made on the basis of seniority-cum-fitness. From the bare reading of the above referred provisions of law, it becomes clear that promotion to the next higher grade cannot be claimed as of right, therefore, whether promotion should be given to a particular civil servant or the same should be refused to him, appears to be within the exclusive discretionary domain of the concerned competent authority. However, a person possessing such minimum qualification as is prescribed for a particular post, having unblemished service record and fulfilling other requirements as laid down for next higher post, can claim right for consideration for his promotion which definitely is not equal to right of promotion. The words used in section 8 subjection (2) clauses (a) and (b) "Selection on merit or on the basis of seniority-cum-fitness" show that the competent authority has to consider while assessing their merit, experience gained, rectitude and antecedent service record. If these are equal in the wisdom of the competent authority, then the person having better qualification can claim edge over the contesting candidates. In 1957 the Government of West Pakistan vide Circulation Letter No.S(R)1-13/57 dated 1-8-1957, laid down following principles to regulate promotion.

"Principles to regulate promotion.---In 1957, the Government of West Pakistan laid down the following principles to regulate promotion:

(1) the principle of promotion from one post to another should be by selection on merit with due regard to seniority, and this principle should be applied uniformly all along the line from the lowest to the highest posts and from one class of service to another;

(2) merit does not mean good service record only. It includes experience, qualifications and suitability for the post or service to which promotion is being made;

(3) the words "with due regard to seniority" imply that while emphasis is to be placed on good service record, qualifications and aptitude for the higher post, the officer's relative seniority in the cadre from which promotion is being made should be given due weight, the greater the disparity in seniority, the greater should be the junior officer's superiority in merit. West Pakistan Circular Letter No.S(R) 1-13./57, dated 1-8-1957."

1. The case-law which we have studied about the promotion shows that the sole Judge to determine the suitability for promotion to a particular post is the competent authority of the department and this principle can be interfered with only in a case of proved mala fide i.e. that the antecedent service record of the parties was ignored and any law on the subject was infringed. The respondent was F.A. as compared to appellants' who are just matric but mere academic qualification has not been recognized sole criteria for determining comparative merits. The competent authority is required to look into, experience, seniority, competence the past service record in addition to rectitude of the parties.

2. In the present case the respondent remained senior to the appellants upto the post of Head Clerk B-10. In the year 1983 two separate directorates for schools and colleges were established. The parties without .their consent were adjusted in different directorates. The appellants were adjusted through posting orders in the directorate of schools while private respondent was posted in the directorate of colleges. Separate tentative seniority list of the ministerial staff of schools and colleges were circulated. We have noticed that in the tentative seniority list prepared for low grade employees of the Education Department serving in college cadre, the 'private respondent was placed at serial No.14 and was shown posted in Govt. Girls College Bagh, whereas in the tentative seniority list for ministerial staff of Education Department serving in school cadre, the appellants were entered at serials Nos.6 and 7 respectively. All the concerned employees were asked to file their objections, if any, about the correctness of any entry upto a definite date. It is not the case of the parties before us that anyone out of them challenged the correctness of the entries recorded in these tentative seniority list. We have noticed that no final seniority list was ever drawn by the department, however, in the aforementioned tentative seniority list the employees, as said earlier, were directed to file their objections if any, upto certain date and it was further laid down in the foot note that in case no objection is filed, the final seniority list shall be drawn in the light of such tentative seniority list. On the record, there is a joint seniority list which was subsequently prepared by the department, in which both the contesting parties were entered at different serial numbers. Undoubtedly the private respondent was shown ahead of the appellants. We have noticed that Shahzaman Abbasi, Ghulam Hussain Shah and Nazir Ahmed Mir, were shown the members of ministerial staff of Education Department, and were entered ahead of the private respondent. All these persons were Head Clerks by rank and were serving, as such, in various offices of Education Department. Both the present appellants challenged their seniority before the competent departmental authority. Their appeals were allowed and they were ordered to be entered ahead of them on the ground that even though aforementioned persons had longer length of service as compared to appellants but the benefit was granted to appellants on the score that they got promotion in B-11 earlier than those persons. Moreover the aforesaid employees had refused to serve outside the municipal limits of Muzaffarabad city in past. On account of this reason even in the joint tentative seniority list which was circulated on 6-8-1992, the appellants were shown much senior to the private respondent. The private respondent never filed his objections about this seniority list thus at this belated stage he cannot be allowed to challenge it on the ground of lack of knowledge. If others got knowledge of this tentative seniority list and contested for their rights before the departmental authority, why this list was concealed from the private respondent. It was for him to explain the cause but the same is missing.

3. Now from the admitted facts it becomes clear, that the appellants were promoted as Accountant B-11 ahead of private respondent. Their order of promotion was never challenged" by the private, respondent. They got the selection grade B-14 on 25-5-1986. Later on a selection grade post was upgraded to B-15 with effect from 1-7-1987, resultantly both the appellants were automatically upgraded to B-15 with effect from 1-7-1987. They were promoted as Superintendents B-16. with retrospective effect from 8-4-1992 and as selection grade Superintendents B-17 with effect from 1-10-1995. The series of these beneficiaries orders in favour of the appellants, were ever questioned by the private respondent either before the departmental authority or before any forum or Court established by law to resolve the dispute between civil servants.

4. From the above referred facts, it becomes clear that no doubt upto B-10 the private respondent was senior to the appellants but onwards the appellants were promoted in better grades earlier than respondent. If a person senior in grade is superseded through promotion by a junior and later on he is also promoted to that grade, the junior who was promoted first, shall rank senior to that person who even though was senior in lower grade but was promoted subsequently. We are fortified by the authority of this Court in a case titled Muhammad Ilyas Khan and 5 others 2002 PLC (C.S.) 1282, wherein it was laid down as under:-

"8. So far as the contention of the learned counsel for the petitioners that under rule 8(1)-B Explanation II of the' Azad Jammu and Kashmir Civil Servants (appointment and Conditions of Service) Rules, 1977, if a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently is concerned there is no cavil with the said principle. However in the present case the appeal was dismissed on the ground that as respondent Sardar Muhammad Hafeez Khan was promoted in the year 1995 with retrospective effect from 1987 and the said order was not challenged by the petitioners, herein, the same has attained finality. It needs hardly any authority that the seniority of a civil servant would be reckoned from the date of his regular promotion. As Sardar Muhammad Hafeez Khan was regularly promoted from the year 1987, his seniority would be reckoned from the said date, irrespective of the fact as to whether the retrospective effect to his promotion from 1987 was legal or not, because that was not challenged by the petitioners and had attained finality "

In a case titled Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439, it was observed as under: --

" ....For instance if two Senior Teachers are serving in same category which has the same pay scale, one who was appointed in the said pay scale earlier would be deemed to be senior to the other and if junior one is promoted to the higher clay scale as being eligible for the promotion after having acquired the requisite training, he would be senior after his promotion, despite the fact that he was junior in the lower pay scale before his promotion "

The other collateral points which agitated by the parties have little bearing on the main controversy, therefore, need not be discussed in this judgment. However two appeals Nos.217 and 343 of 1999 filed by the private respondent before the Service Tribunal were even otherwise not maintainable as these were filed without availing the departmental remedy. At the relevant time section 4 of the Service Tribunals Act, 1975, was as follows:--

"4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:

Provided that:--

(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to higher grade; and

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969:

Provided further that question relating to eligibility, mala fide and Coram Non Judice may be decided by the Tribunal.

(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred:--

(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time scale, to a Tribunal referred to in subsection (3) of section 3; and

(b) in any other case, to a Tribunal referred to in subsection (7) of section 3, and where no such Tribunal is established, to a Tribunal established under subsection (3) of that section."

1. From the language in which this section was couched, it is clear that it was prerequisite to avail the departmental remedy before invoking appellate jurisdiction of the Service Tribunal. The private respondent had filed these appeals without availing the departmental remedy, therefore, these were not maintainable on this ground.

2. In the light of above, we hold that appellants on account of their promotion in B-11 earlier than private respondent, which order was never challenged by him, became senior to him thereafter and were rightly promoted by the departmental authorities ahead of respondent. The appeals filed by private respondent before the Service Tribunal were without merit. The Service Tribunal, therefore, has wrongly allowed his appeal vide judgment under challenge dated 14-12-2001. Therefore, while accepting these appeals, the impugned judgment dated 14-12-2001, is set aside. However keeping in view the peculiar facts of this case no order is passed as to costs.

H.B.T./120/SC(AJ&K) Appeals accepted.

2005 P L C (C.S.) 1212

[Supreme Court (Azad J&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

ABDUL QAYYUM

Versus

DIRECTOR GENERAL, ANTI-CORRUPTION AJK, MUZAFFARABAD and another

Civil Appeal No.129 of 2004, decided on 20th May, 2005.

(On appeal from the judgment of the Service Tribunal dated 22-6-2004 in Service Appeal No.379 of 2003).

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)--Voluntary retirement---Appellant who, himself moved an application for his retirement on ground of domestic problems, was retired from service---Appellant received all his benefits including pension etc. permissible under law---Subsequently appellant filed appeal before Service Tribunal challenging his retirement alleging that application for retirement was moved by him under duress and threat of dire consequences---Appeal filed by appellant having been dismissed by Service Tribunal, he had filed appeal before Supreme Court against judgment of Service Tribunal---Validity---Service Tribunal had dismissed appeal filed by appellant against order of his retirement after proper appreciation of evidence--Contention of appellant that he was forced to submit application for retirement under threats and dire consequences could not be accepted as he could have been breed for moving such application, but not subsequently for receiving emoluments and reporting matter to higher Authorities---Against a written document there must be a very strong oral evidence to disbelieve, which was missing in the case---Party who himself requested and invited an order, alter taking lull benefits, could not turn round and challenge the legality of the order--Appellant's conduct did not allow him to raise question of duress and coercion alter having agreed to a position and then turning round and filing said cause before Service Tribunal---Appeal before Supreme Court against judgment of Service Tribunal being meritless was dismissed.

Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 917, Muhammad Shari!' v. Muhammad Manzoor and others 1993 SCR 92; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; S.M. Mkudam Muhammad v. T. V. Muhammad Sheikh Abdul Kadir and another AIR 1936 Mad. 856; Muhammad Yousul v. The Additional Deputy Commissioner (Collector), Peshawar and others 1972 SCMR 613 and Maharaja Dhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh AIR 1936 Sind 99 ref.

Muhammad Aslam Rathore, Advocate for Appellant

Abdul Rashid Karnahi, Advocate for Respondents.

Imdad Ali Mallick, Advocate for Respondent No.3.

Date of hearing: 13th April, 2005.