PLCCS 2006 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Service Tribunal
Federal Shariat Court
High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Service Tribunal Nwfp
Service Tribunal Punjab
Service Tribunal Sindh
Supreme Court
Supreme Court Azad Kashmir

Federal Service Tribunal

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 251 #

2007 P L C (C.S.) 251

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL QAYYUM

Versus

GUJRANWALA ELECTRIC POWER COMPANY LIMITED through Chief Executive Gujranwala and 3 others

Appeal No.673(L)(C.S.) of 2001, decided on 9th June, 2005.

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

----Ss. 3, 5, 6, 11 & 12-Service Tribunals Act (LXX of 1973), S.4---Awarding penalty of compulsory retirement from service---Appeal against---Letter for explanation was issued to the appellant under Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 wherein charge was levelled against appellant to the effect that he had received illegal gratification from a person for giving him electric connection for his tube-well---Removal from Service (Special Powers) Ordinance, 2000 having come into force at relevant time, department could not proceed against appellant under Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 as the Ordinance had overridden all other disciplinary laws including the said Rules---Action against appellant, was not legal and penalty imposed on him could not be maintained---Department should have proceeded against the appellant under Removal from Service (Special Powers) Ordinance, 2000.

Mian Jaffar Hussain for Appellant.

Muhammad Iqbal Khokhar for Respondents.

Date of hearing: 9th June, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 336 #

2006 P L C (C.S.) 336

[Federal Service Tribunal]

Before Abdur Razzaque and Abdul Rashid Baloch, Members

MUHAMMAD AKBAR SHAHNAWAZ

Versus

MANAGING DIRECTOR, PIAC, KARACHI

Appeal No.875(R)CE/2003 decided on 19th March, 2004.

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Demotion from Pay Group-V to IV---Appeal---Appellant was proceeded against earlier and during course of pendency of said proceedings in which appellant subsequently was acquitted, Department issued charge-sheet, inquiry was held and on recommendation of Inquiry Officer, appellant was imposed penalty of demotion from Pay Group-V to IV, without waiting for result of case pending adjudication with Customs Authorities---No bar though was placed on the Authority to proceed departmently against appellant during pendency of case, but it was in the interest of justice that Authority should have waited for final adjudication thereof---Penalty of demotion had been imposed on appellant prior to his honourable acquittal pertaining to same charge---Former order was passed by competent Authority in consequence of departmental proceedings, whereas later decision was result of acceptance of appeal against said order---Imposition of penalty on appellant as a consequence of determination of guilt on the same charge of which appellant had been acquitted honourably by forum of competent jurisdiction, would hardly be justifiable---Impugned order was set aside and appellant was restored to his original Pay Group-V, with consequential benefits.

1998 PLC (CS) 143; 2000 SCMR 269 and 1989 PLC (CS) 393 ref.

Abdul Hafeez Amjad for Appellant.

Ch. Manzoor Hussain for Respondent.

Date of hearing: 14th January, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 348 #

2006 P L C (C.S.) 348

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members, AFTAB AHMED SOOMRO

Versus

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

Appeal No.973(K)(CE)/2002 decided on 7th July, 2005.

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

----Rr. 4(1)(b)(iv), 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Employee serving as Deputy General Manager, was dismissed from service after holding inquiry against him on the charge of gross negligence which not only was detrimental to the interest of the Authority, but had caused huge financial loss to it---Employee, in two enquiries conducted earlier against him was exonerated, but in third inquiry he was found guilty of charge against him---Result of earlier two inquiries in which employee was exonerated, should have been accepted by the Authorities---Third inquiry being against the fact and principles of natural justice, its findings being contrary to its two earlier inquiry reports, could not be accepted ' especially when Inquiry Officer in the third inquiry was under pressure of fear of former Chairman of the Authority---No need existed to conduct third inquiry when two Inquiry Officers had exonerated the employee---Third inquiry would mean that Authority was adamant to punish the employee---Action on the part of Authority smacked of bias with employee, it was necessary that Authority should have given detailed reasons regarding necessity of conducting third inquiry, but no reasoning had been given---Principles of natural justice had been violated, in circumstance---Impugned order was set aside holding that employee was not guilty of alleged misconduct or gross negligence-Employee was directed to be reinstated in service with all back-benefits.

Abdul Ghafoor Mangi for Appellant.

Shaukat Ali Sheikh for Respondents.

Date of hearing: 11th May, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 373 #

2006 P L C (C.S.) 373

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

GHULAM NABI

Versus

GENERAL MANAGER (OPERATION) and another

Appeal No.34(K)(C.S.) of 2000, decided on 16th April, 2005.

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

----Ss. 3, 5, 6 & 7---Service Tribunals Act, (LXX of 1973), S. 4---Removal from service---Appellant was removed from service on charges of misappropriation and misconduct etc., without holding an inquiry and without giving him opportunity to defend himself---Validity---Where serious allegations of fact were denied by delinquent employee, regular inquiry was absolutely necessary wherein chance had to be given to such employee to meet allegations against him---Agency taking disciplinary action against its employees for imposing major penalty was obliged to issue final show-cause notice and also to provide him an opportunity of personal hearing---No inquiry was held against appellant, no second show-cause notice was issued to him and he was not personally heard---Impugned order of removal of appellant from service, being illegal was set aside---Appellant was reinstated in service with back-benefit for the period he was not gainfully employed elsewhere during intervening period.

1989 SCMR 1224; 1998 PLC (C.S.) 648; 2002 PLC (CS) 738; 1'991 PLC (C.S) 33; 1995 PLC 666; 1985 TD Service 396; 2004 SCMR 316 = 2002 PLC (C.S.) 344; 1984 PLC (C.S.) 610; 1429 PLD 1986 SC 162; PLD 1996 SC 207; 1996 PLC (C.S.) 1539 and 868; 1993 PLC (C.S.) 100; 1989 PLC (C.S.) 7671; 1997 PLC (C.S.) 873; 1993 SCMR 683; PLD 1994 SC 22; 1985 PLC (C.S.) 219 and 245; 1990 PLC (C.S) 745; 1997 SCMR 1543 = 1997 PLC (C.S.) 817; PLD 2002 SC 667; 1980 SCMR 850; 1993 SCMR 603; 1997 SCMR 1543=1997 PLC (C.S.) 817; 2001 PLC (C.S.) 296; 1988 PLC (C.S.) 886; KLR 2004 Labour and Service Cases 201; 1989 SCMR 1224; 2004 PLC (C.S.) 959; KLR Labour and Services Cases 1994 SCMR 2232 and 2004 SC 441 ref.

Muhammad Nawaz Shaikh for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 16th April, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 379 #

2006 P L C (C.S.) 379

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDUL REHMAN SHAH

Versus

CHAIRMAN OF PAKISTAN STEEL, KARACHI

Appeal No.16(K) (CE) 2003, decided on 20th May, 2005.

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

----S. 3-Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant earlier was terminated from service on "No longer required basis" along with other officers---One filing appeal against said termination order, appellant was reinstated in service with full back-benefits---After about more than two years of reinstatement, appellant was removed from service after charge-sheeting him for allegedly. using political pressure/extraneous ground for his appointment---Validity---Appointment of appellant was based on recommendations of selection/interviewing Committee comprising senior officers whose recommendations -were duly approved by competent Authority---No proof for using political pressure by appellant could be produced by prosecution side in support of its claim---Allegation of alleged misconduct against appellant had not been proved and report of Enquiry Officer, was fallacious, arbitrary and was not based on any evidence to prove that appointment of appellant was due to political influence---Appellant had successfully completed his probation period and his appointment was disputed after more than decade, which was not legally tenable---Authority had deliberately and dishonestly alleged using political pressure by appellate---Removal of appellant was pre-planned, illegal and bad in law---Impugned order was outcome of personal vendetta of the Authority---Impugned order was set aside in appeal with direction to respondents to reinstate appellant in service with all back-benefits for the period he was not gainfully employed.

Adnan Karim and Noushaba Haque Solangi for Appellant.

Date of hearing: 19th May, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 392 #

2006 P L C (C.S.) 392

[Federal Service Tribunal]

Before Rashid Ali Mirza and Rashid Mahmood Ansari, Members

MUHAMMAD YAQOOB

Versus

SIDDIQUE AHMED NAYYAR and another

Appeal No.52(K)(CE) of 2003, decided on 10th June, 2005.

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

--Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal against---Disciplinary proceedings against appellant were initiated under Government Servants (Efficiency and Disciplinary) Rules, 1973 and show-cause notice was issued to him at the time when Removal From Service (Special Powers) Ordinance, 2000 had already commenced---After promulgation of Removal From Service (Special Powers) Ordinance, 2000, no disciplinary proceedings could have been initiated against appellant under Government Servants (Efficiency and Disciplinary) Rules, 1973 as Removal From Service (Special Powers) Ordinance, 2000 had over riding effect on all other laws---Impugned order was set aside and appellant was reinstated in service.

2003 SCMR 1718 = 2003 PLC (C.S.) 1304; 2003 PLC (C.S.) 600 and 2004 SBLR 199 ref.

(b) Administration of justice---

----When law had prescribed something to be done in a particular manner, it had to be done in that manner and not in another.

Sanaullah Noor Ghouri for Appellant.

Asif Mangi for Respondents.

Date of hearing: 7th June, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 399 #

2006 P L C (C.S.) 399

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ARIF

Versus

ASSISTANT COMMERCIAL, OFFICER-I, PAKISTAN RAILWAYS, DIVISIONAL OFFICE, SUKKUR and others

Appeal No.338(K)(CS)/2001 decided on 8th December, 2004.

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

----Rr. 4(1)(b)(iv) & 6---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appellant was dismissed from service after charge-sheeting him for gross misconduct and misappropriation of Government cash---Charge-sheet was not issued according to the requirements of R.6(1) of Government Servants (Efficiency & Discipline) Rules, 1973---Appellant was dismissed from service without holding any inquiry into the serious allegations against him and without affording him a reasonable opportunity of showing cause and also an adequate opportunity of defence---Authority could not be allowed to contend that allegations against appellant had been proved--Impugned order was set aside with direction to Authority to reinstate appellant in service---Authority was also directed to conduct de novo enquiry after providing full opportunity of defence to appellant.

Sanaullah Noor Ghauri for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 8th December, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 408 #

2006 P L C (C.S.) 408

[Federal Service Tribunal]

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

SHAKEEL AHMED

Versus

PAKISTAN STEEL MILLS CORPORATION

Appeal No.6(K)(CE) of 2002, decided on 11th November, 2004.

Civil Servants Act (LXXI of 1973)-

----S. 13---Service Tribunal Act (LXX of 1973), S.4---Voluntary premature retirement from service on medical grounds-Entitlement to benefit/reinstatement in service---Appeal to Service Tribunal---Appellant though was fully fit and sound in health, applied for premature retirement on medical ground---Appellant was retired from service and was paid all dues and was relieved from the department---Appellant had alleged that his retirement was not voluntary but he was compelled to accept same due to rumours of retrenchment and down-sizing in the department spread by employer Corporation which amounted to mala fide and mischievous on part of Corporation---Validity---Appellant had, of his own free-will made application for retirement on medical grounds and he was retired on such ground after being examined by a competent Standing Medical Board comprising three senior Medical Officers--- Appellant had never challenged or objected to medical report and had happily accepted voluntary retirement benefits---No evidence was available on record to show that appellant was in any way made to accept said retirement against his own free-will and it could not be said that appellant was retired by mischief or with mala fide intention---Appellant after his retirement remained silent and had never sought withdrawal of his retirement and had belatedly taken plea of reinstatement after about one year of his retirement and it was not fundamental right of appellant to be reinstated in service after voluntary retirement transaction had become a chapter past and closed---Appellant had not shown as to under what law or rule of the Employer Corporation statutory or non-statutory, they were liable to get appellant re-examined in case he had regained fitness after his retirement---Appellant could not be reinstated in service, in circumstances.

1998 PLC (CS) 1121; PLD 1994 SC 647; 2000 PLC (C.S) 667 and 2002 PLC (C.S.) 526 ref.

Khalid Imran for Appellant.

Niaz A. Khan for Respondents.

Date of hearing: 29th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 437 #

2006 P L C (C.S) 437

[Federal Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Muhammad Ayub Shaikh, Member

Prof. MUHAMMAD WALI KHAN

Versus

HAMDARD UNIVERSITY and others

Appeal No.218 of 2002, decided on 25th July, 2005.

(a) Hamdard University Karachi Act (VI of 1992)---

----Ss. 3, 5 & 7---Hamdard University, status of ---Hamdard University though was established by a Provincial enactment i.e. Hamdard University Karachi Act, 1992, but it was absolutely a private institution having no control, share or interest of Government, except that Govern of Sindh, would be the Patron of the University---None of its employee; was a member of civil service of Province nor service of said University had ever been declared to be the service of the Province--Fact that Hamdard University was a Private Institution, further found support from Sindh Private Educational Institution, (Regulation & Control) Ordinance, 2001 wherein it had specifically been mentioned that Hamdard University, etc. were Private Universities.

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

---Ss. 2(aa), 3-E [As inserted by Sindh Service Tribunals (Amendment Act (XXXI of 1994)], 'S.4---"Corporation" and "employees of Corporation"-Definition and status---Definition of term "Corporation" referred to those Corporations/Institutions which were owned or controlled by Government and not privately managed Corporations/Institutions although established/set up by the Provincial enactment---Scheme of Sindh Service Tribunals Act, 1973 and conjunctive reading of S.2(aa) &.3-E of said Act, would show that intention of Legislature was to provide forum to employees of Corporations/Institutions set up or established by Provincial enactment, owned or controlled by Provincial Government and not employees of privately managed Corporation/Institution---Sindh Service Tribunals Act, 1973, was enacted to provide forum to civil servants of the Province for redressal of their grievance concerning terms and conditions of their service---Intention of Legislature as appeared from whole scheme of Sindh Service Tribunals Act, 1973 was clear that only employees of Corporations/Institutions which were being controlled by Government or the Government had any interest/share in them, had been provided forum to approach said Tribunal for redressal of grievances touching the terms and conditions of their service and had been declared as civil servant only for the purpose of filing appeal before Service Tribunal---Present appeals being incompetent and beyond jurisdiction of Service Tribunal, were dismissed.

----If the words of a Statute were ambiguous, the Court would be justified in construing the words in a manner which would make provision purposeful and unambiguous-Definition clause in a statutes was of a declaratory nature though normally definitions provided for in the definition clause .were to be read into provisions of the Act while interpreting the defined terms/words, but if the contents of Provisions of the Act indicated otherwise, definition clause could not override a main provision of the statute---Courts lean towards purposive interpretation of statutes and for that purpose the form was not material, but substance of ' law was, to be seen---Definitions given in a particular statute were declaratory of intention of Legislature, pertaining to connotation and scope of terms and expressions used in a particular enactment---While interpreting provisions of a statute no such construction should be placed which might run counter to the object of law or render a provision of a Statute redundant.

Shaikh Saeed Ahmed and another v. Abdul Wahid, 1990 SCMR 2569; Amin Akhtar Jami v. Jehangir Alam, 1993 MLD 1530 and Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699 ref.

Moula Bukhsh Khoso for Appellant.

A.R. Akhtar for Respondents.

Date of hearing: 7th July, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 446 #

2006 P L C (C.S.) 446

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD SIDDIQUE

Versus

CHAIRMAN/SECRETARY, RAILWAYS, MINISTRY OF COMMUNICATION AND RAILWAY, ISLAMABAD and 2 others

Appeal No.488(K)(C.S.) of 2002 decided on 3rd November, 2004.

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appellant, who served the organization for about 37 years, was never involved throughout his career in any subversive activity, but when he reached at the verge of his retirement, he was removed from service after issuing him show-cause notice on false allegations against him on past and closed transaction with mala fide intention---No enquiry was conducted into the guilt of accused, nor any opportunity of defence was ever provided to him and authorities passed harsh order of removal against appellant arbitrarily, illegally, unlawfully at the stage when appellant was at the verge of his retirement ---Such illegal, unlawful and improper order passed by authorities against appellant was set aside and he was directed to be reinstated in service with all back-benefits.

Abdul Krim Khan for appellant.

Raja Shamsuz Zaman for Respondents.

Date of hearing: 27th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 456 #

2006 P L C (C.S) 456

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

Mr. MUHAMMAD MUNAWAR

Versus

PAKISTAN STEEL through Chairman

Appeal No.4 (K)(CE) of 2002, decided on 2nd June, 2005.

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

---Ss. 3, 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of three stages lower in time scale---Appeal---Penalty of three stages lower in time scale was imposed on appellant on allegation that he obtained appointment on basis of political influence---Appointment of appellant was based on recommendations of Selection/Interviewing Committee comprising Senior- Officers of the department whose recommendations were approved by competent Authority---No proof for using political pressure- by appellant could be produced by prosecution on record---Three inquiries were held against appellant on same charges of obtaining appointment on basis of political influence---In two earlier enquiries appellant was exonerated, but in third enquiry he was penalized---Action of department, in circumstances amounted to double jeopardy as once appellant had been exonerated from the charges then again on same evidence he could not be punished---Very charge-sheet against appellant being illegal and being not sustainable in law, entire action taken on the basis of said illegal charge-sheet stood vitiated and no action detrimental to appellant could be taken against him on basis of uncalled for charge-sheet---Appellant had successfully completed his probation and his appointment was disputed after more than 15 years, which was not legally tenable---Appellant had been deliberately and- dishonestly involved by department for using political pressure and adverse order was pre-planned, which was illegal and bad in law---Decision of competent Authority imposing penalty on appellant, was declared illegal and void ab initio in appeal.

1996 SCMR 413 and 1997 SCMR 15 ref.

Shabbir Ahmed Awan for Appellant.

Pervez Shams A. Memon for Respondents.

Date of hearing: 21st May, 2005.

JUDGEMNT

RASHID ALI MIRZA (MEMBER)---The appellant has filed this appeal under section 4 of the Service Tribunals Act, 1973 challenging the impugned orders dated 9-12-2002 whereby the penalty of reduction to Deputy Manager has been reduced to three stages lower in the time scale on his appeal dated 29-11-2002, hence this appeal praying therein to set aside order dated 9-12-2002 whereby the penalty of reduction to lower pay scale/post has been imposed upon the appellant illegally, mala fide, arbitrarily, without any justification and lawful authority and to grant any other equitable relief(s) deemed appropriate in the circumstances of the case along with costs.

The learned counsel for the appellant has contended that the appellant was originally appointed on contract for one year. Thereafter on his application he was interviewed and regular appointment of Medical Officer was offered to him which was equivalent to Deputy Manager. The learned Counsel further contended that three enquires were held against the appellant on the same charges of obtaining appointment on the basis of political influence. He contended that in two earlier enquires the appellant was exonerated but in the third he was penalized and was reduced in rank but on his reply to show-cause notice the penalty was converted to three stages below in time scale. He has further contended that show caused notice was not issued by the competent authority and the order of the penalty of appointment by the same person as he was not competent to issue two orders. He has further contended that the copy of Enquiry Report was not supplied to the appellant and he was also not personally heard. He has placed reliance on identical judgment of this Tribunal dated 19-7-2004 being appeals Nos.790 to 794 and 796(K)(CE)/2002 as also 1996 SCMR 413 and 1997 SCMR 15. He has further contended that after observing all the required formalities including interview which falsified the contention of the respondent that he obtained the appointment by using political/external influence as at the time of appointment of the appellant on regular basis in the year 1985 there was no recommendation of any party for his appointment nor there was political Government. He has contended that before imposing major penalty of reduction to lower post the appellant was not afforded an opportunity of personal hearing as required under law and the appellant has been condemned unheard which is not warranted by law. He further contended that even otherwise, the impugned order is also not sustainable in law as the appellant was appointed after observing all the formalities as regular employee with, effect from 4-2-1985 whereas the Removal from Service (Special Powers) Ordinance 2000 became applicable with effect from 27-5-2000, as such, the entire action taken on the basis of above said Ordinance is ipso facto illegal and without lawful authority. He contended that even otherwise, no inquiry, as required under the law, was conducted against the appellant and the Inquiry Officer himself acted as prosecutor by putting indiscriminating questions to the appellant as well as management witness in order to improve the evidence against the appellant, which is also not warranted by law. The action of the respondents also amounts to double jeopardy as once the appellant has been exonerated from the charges then again on the same evidence he cannot be punished as has been the position in the present case, which vitiates the entire proceedings. He contended that the appellant having been appointed regularly on the recommendations of the Interview/Selection Committee and duly approved by the competent authority cannot be said to have got the appointment in Pakistan Steel by using extraneous influence and, as such, the very charge sheet being illegal is not sustainable in law. He contended that when the charge sheet itself is not in accordance with law, the entire action taken on the basis of illegal charge sheet stands vitiated and no action detrimental to the appellant can be taken against him on the basis of uncalled for charge sheet. He contended that at the time when the appellant was appointed there was no political government and there was Martial Law in the country and, as such, using of question of political influence at all doesn't arise, which also makes the allegations false, frivolous and self-made. He contended that under the terms of National Security Council all appointments were scrutinized and the persons so appointed were terminated on 1-2-2000 and the Appellant's case after scrutiny was cleared and the present action appears to be an after thought of the management to do away with the services of the appellant for the reasons at least not known to the appellant in which they also failed to bring any evidence against the appellant regarding the alleged misconduct. He contended that the impugned order being illegal, contrary to law, unlawful and without lawful authority and being based on surmises and conjectures of the Inquiry Officer is not sustainable in law and is liable to be quashed. He further contended that the competent authority has itself reduced the punishment from reduction in rank to stoppage of three increments for which no time has been specified which renders the impugned order as illegal and not sustainable in law apart from the fact that the authority imposing penalty has itself considered the punishment as unjustified.
The respondent in their parawise comments stated that the action against the appellant was in accordance with law. They stated that clear misconduct is imputed with the appellant, which fell in the ambit of definition of the Ordinance 2000. They stated that the exoneration of the appellant by Enquiry Officer/Committee had not completely absolved him from the liability of misconduct/charges on his part. The Enquiry Officer had sent his report to the Authority, who did not agree with the said report and ordered for de novo enquiry. All that was within the competence of authority as the involvement of the appellant was glaring and documented with proof. They stated that after holding de novo enquiry the truth emerged on scanario when the appellant was found guilty of the charges. They stated that the appointment of the appellant was on retainership basis, but that was behind political consideration. They stated that the appellant routed his application dated 11-12-1983 for employment is Steel Mills through Mr. Mir Ali Ahmed Talpur the then Defence Minister of Pakistan was thus exerted political influence is seeking employment in violation of the rules and procedure. They have stated that personal hearing was afforded to the appellant as is evident for Annexure-"A". They stated that the process of enquiry was launched in accordance with requisite procedure, which the appellant never questioned during enquiry. They further stated that the definition of double jeopardy is quite distinguishable and imports no bearing in the case of appellant. They stated that the exoneration of appellant was subject to final order by the authority which orders were never passed; therefore, theory of double jeopardy will not stand with. They stated that the appellant got introduction on political consideration which is a matter of record. The charges are firm and proved.
We have heard both the learned counsel for the parties and have also gone through the relevant record.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 465 #

2006 P L C (C.S.) 465

[Federal Service Tribunal]

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

MUHAMMAD FAROOQ

Versus

FEDERATION OF PAKISTAN

Appeal No.1643(K)(CE) 2001, decided on 28th April, 2005.

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

----Ss. 2(b), 3, 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of reduction to a lower post---Appeal---Appellant while serving as Deputy General Manager in the organization, was reduced to post of Manager on allegation of misconduct after holding inquiry against him---Main allegation against the appellant was that he set up a decorated office without any official requirement, without any authority and without any sanction of competent Authority---Inquiry was held against appellant, providing him opportunity to defend himself, in which he was found guilty of charge against him---Validity---Setting up a decorated office, without any authority fell within ambit of misconduct, though petty one---Action of appellant, in all probability, could have been justified and bona fide, but it was done without any proper permission or required sanction from the competent Authority---Appellant, in circumstances was rightly found guilty of misconduct, a conduct unbecoming of an officer and gentleman as defined under S.2(b) of Removal from Service (Special Powers) Ordinance, 2000, but penalty of reduction in rank imposed on him was too harsh, because action of appellant though lacked care and caution, but it could not be positively mala fide---Disputed office was not used by appellant for his personal bedroom, but for all practical purposes used for official purposes as conference room---By setting up an additional office, appellant had not gained materially or otherwise and he had also not caused any loss, wrongful or otherwise to the organization---Taking lenient view, penalty of reduction in rank was converted to withholding of his two increments for a period of two years---Organization was directed to restore appellant to his original position of Deputy General Manager, accordingly.

Abdul Ghafoor Mangi for Appellant.

Moin Azhar Siddiqui for Respondent.

Date of hearing: 27th April, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 472 #

2006 P L C (C.S.) 472

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ANWAR

Versus

COMMANDAR PAKISTAN FLEET, PNSC HAIDER and others

Appeal No.163(K) of 1999, decided on 31st January, 2005.

Civil service---

----A.C.R---Vitiation of A.C.R---A.C.R would be vitiated if it was not recorded by a Competent Authority; if it was for less than a period of three months; if it was not objective and was based on highly unwarranted/personalized remarks; if it was not recorded within prescribed time; if it was not communicated to concerned person within prescribed time or was communicated with inordinate and unexplained delay; if person against whom adverse remarks were written was not counselled about his defects and for removing same and it was biased, mala fide or prejudiced---A.C.R's. of employee, in the present case, containing adverse remarks, could not be thrown out on unproved allegations levelled by him against officer concerned--Nothing was on record against other three higher officers whose opinion/reports, must prevail in the matter as no allegation of any bias, mala fide and prejudice was against them.

1999 SCMR 819=1999 PLC (C.S) 409 ref.

Sultan Ahmed, for Appellant.

Asif Mangi, Standing Counsel for Respondent.

Date of hearing: 18th October, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 487 #

2006 P L C (C.S.) 487

[Federal Service Tribunal]

Before Abdul Ghani Shaikh (Retd.) Chairman, Nur Ahmad Shah, Member-I and Ashique Hussain Memon, Member-II, HAIDER SHAH

Versus

INSPECTOR GENERAL OF POLICE, KARACHI and 2 others

Appeal No.157 of 2001, decided on 7th March, 2005.

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

----Rr. 4(1)(b)(iv), 5 & 6---Sindh Service Tribunals Act (XV of 1973), S. 4---Dismissal from service---Appeal---Appellant was proceeded departmentally on allegation that he and his companion snatched purse of one lady containing Rs.500 and demanded more money from her and that he also committed rape with her forcibly---Appellant was dismissed by serving him with show-cause notice followed by final show-cause notice---Appellant was dismissed from service without holding regular inquiry---In view of seriousness of allegations against appellant, regular inquiry was very much necessary but a short-cut method of show-cause notice followed by a final show-cause notice was adopted---Penalty of dismissal imposed on appellant was not maintainable---With the consent of parties, impugned orders were set aside and matter was remanded for conducting regular inquiry in accordance with law after issuing show-cause notice---Appellant was reinstated in service for the purpose of facing inquiry which was to be conducted within specified period.

Irfan Mir Halepoto for Appellant.

Mrs. Tabasum Ghazanfar Asstt. A.G. for Respondents.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 489 #

2006 P L C (C.S) 489

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

JOSEPH PRASHAD and 6 others

Versus

CHAIRMAN, NATIONAL PRESS TRUST, ISLAMABAD and others

Appeals Nos.645 to 649, 667(L) of 1998 and 364(L) (CE) of 2001, decided on 7th October, 2004.

Civil Procedure Code (V of 1908)---

----S. 19---Service Tribunals Act (LXX of 1973), S. 4---Pensionary benefits---Claim for---Limitation---Appeal to Service Tribunal---Appellants had prayed that a direction be issued to authorities for re-calculating their dues in their presence---Request made by appellants was harmless, as if allowed it would not cause any loss to authorities in any manner---Authorities were directed to consider claim of appellants---Objection raised by authorities with regard to limitation was not maintainable as appellants having made claims for their pensionary benefits etc., their right to get whatever was due to them on account of their pensionary benefits, could not be sacrificed at the altar of limitation---For such-like dues an aggrieved civil servant had a continuing cause of action and for continuing cause of action there was no fixed period of limitation---Cases were remanded for fresh decision, after making calculation in the presence of appellants.

Ch. M. Ikram Zahid for Appellant (Appeal No.364 (L) (CE/2001).

Appellants in person in Appeals Nos. 645 to 649 and 667 (L)/1998)

Muhammad Rafique Shad for Respondents.

Date of hearing: 7th October, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 497 #

2006 P L C (C.S.) 497

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

NASEER AHMAD BALOUCH

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 3 others

Appeal No.84(L) of 1999, decided on 7th February, 2003.

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

----S. 17---Service Tribunals Act (LXX of 1973), S.4---Pay---Entitlement---Appeal---Limitation---Employer was not expected to raise plea of limitation in matter of pay---Employer, particularly when it was Government or Government owned Corporation, was always very benevolent towards employees---When an employee claimed pay at enhanced rate after inclusion of increments in his pay, then he had a continuing cause of action---Where there was claim for enhanced pay or for arrears of pay, employee had always a continuing cause of action and his appeal could not be treated as time-barred---Each and every case had to be decided on its own merits---In case of an employee who was given a clear cut final order that for specific reasons his claim to pay was not tenable, period of limitation would start running from date when that specific order was passed---Such could be a case in which plea of limitation could be taken---In present case, long leave granted to appellant not being without pay, but being with half pay, employers were not justified in saying that appellant was not entitled to annual increments---Said increments would have formed part of his pay till such time he remained in service---Appellant having sustained loss in pay every month, he could not be sacrificed on the altar of limitation---Objection of employer that appeal was time-barred, was repelled, in circumstances.

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

----S. 17---Service Tribunals Act (LXX of 1973), S.4---Appeal---Competency---Objection of employer was that appeal was not competent as appellant had not filed a departmental appeal--Validity---Appellant in his appeal had alleged that he was not granted increments when his salary slip was issued---Salary slip was original order by which increments were refused---Representation of appellant to Deputy General Manager against that, had acquired status of departmental appeal---Objection of employer was without any basis---Appeal was competent in circumstances.

----Annual increments, entitlement to---Civil servant was entitled to earn annual increments during period of leave sanctioned to him---Employee, in the present case, had been allowed leave by competent Authority on half pay which it was not an extraordinary leave without pay---Employee, in circumstances was entitled to annual increments for the period he remained on leave.

2002 PLC (C.S.) 53 ref.

Khadim Hussain Khokhar for Appellant.

Kh. Abdul Rashid for Respondents.

Date of hearing: 7th February, 2003.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 558 #

2006 P L C (C.S.) 558

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

UMER FAROOQ and others

Versus

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

Appeals Nos.1062(K) and 1063(K) of 1999, decided on 24th October, 2005.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Pakistan Steel Officers Services Rules and Regulation, 1989, Rr.2.25, 2.33 & 2.34---Promotion---Entitlement---Appeal to Service Tribunal---According to seniority list, name of appellant was at serial No.26 while name of other appellant was at serial No.16---Departmental Promotion Committee, considered 38 Deputy General Managers out of which it recommended names of 19 Deputy General Managers/other respondents for promotion to posts of General Managers---Criteria for selection, inter alia was ACR's grading of past five years and minimum 70% marks were required for qualifying for promotion to the post of General Manager---Both appellants were not recommended for promotion as they secured less than 70% marks---Appellants had assailed selection of other respondents on the main ground that ignoring the appellants for promotion on the basis of quantification was illegal as quantification was not provided in Pakistan Steel Officers Service Rules and Regulations, 1989---Main grievance of appellants, in circumstances was about the quantification---Quantification though had not been prescribed in Pakistan Steel Officers Service Rules and Regulations, 1989, but its adoption was also not barred in the Rules---A.C.R.'s were important component for determining fitness of employee for promotion---Undoing the promotion of respondents, who were promoted, which had not been challenged before Service Tribunal for a period of 11 months, would not be justified---Consideration of promotion of the appellants, after their retirement, would also not be justified---Relief prayed for by the appellants, could not be granted in circumstances.

PLD 1983 SC 385; 1991 SCMR 1129; 1996 TD (Service) 338; 1991 PLC (C.S.) 975; 1995 SCMR 650; 1998 SCMR 208; 1999 PLC (C.S.) 587; 1997 PLC (C.S.) 1207; 1998 SCMR 2009 = 1998 PLC (C.S.) 1457 and Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Training Walton, Lahore and others 2003 PLC (C.S.) 212 ref.

Sana Ullah Noor Ghorui for Appellants.

Junaid Saddiqui, for Respondents Nos. 1 to 5, 6, 7, 9, 11, 12, 18, 19, 21 to 24.

Date of hearing: 5th October, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 582 #

2006 P L C (C.S.) 582

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Hasan Raza Pasha, Members

ASIF AMIN

Versus

CHAIRMAN, PTCL HEADQUARTERS, ISLAMABAD

Appeal No. 1152(R)C.E. of 2003, decided on 23rd November, 2004.

Civil service---

----Exemption from examination---Claim for---Authority vide its .order dated 24-11-2000 prescribed qualifications C.A.(Inter), ICMA(Inter) M.B.A. (Final) and M.Com(Finance/Accounts) for the purpose of exemption of P.T.C.L. employees from P.T.C.L. Accounts Service Examination (Part-I & II) for the post of Accountant---Said order subsequently was withdrawn by the Authority vide its letter dated 27-2-2001, whereby qualification of M. Coin. (Finance/Accounts) was treated as withdrawn---Employee in the case, acquired qualification of M.Com. from the University---According to earlier order, employee along with others was selected as eligible candidate for exemption being M.Com., but later on due to subsequent order whereby earlier order was withdrawn, his name was excluded, while some officials were granted said exemption---Employee had assailed subsequent order contending that qualification of M.Com. was equivalent to Master's degree---No evidence was available to the effect that that terms and conditions of service of employee had been violated and no vested right had been created in favour of employee---Powers of rescission, were always available to the Authority which could pass order competently---Employee was excluded from exemption and when his departmental representation was not responded, he did not file any appeal before the Service Tribunal then---Employee was supposed to agitate issue of withdrawal of earlier order before Service Tribunal after his departmental representation remained unresponded---Appeal filed by employee, was hit by limitation---Authority had to follow qualifications specifically prescribed in its rules and regulations and if any degree was certified as equivalent to one of the approved qualifications, it would not mean that any weightage had to be assigned to it while considering people for promotion, recruitment or move over.

1999 SCMR 819; 2004 SCMR 49; 2001 PLC (C.S.) 157; 2000 PLC (C.S.) 520; 1999 PLC (C.S.) 1306; 1986 PLC (C.S.) 666; PLD 2003 SC 143; 2004 PLC (C.S) 392 and 2000 SCMR 907 ref.

Sh. Riazul Haq for Appellant.

Nadeem Hasan for Respondent.

Date of hearing: 12th November, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 604 #

2006PLC(C.S.)604

[Federal Service Tribunal]

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

MUHAMMAD SIDDIQ KHAN ALVI SPO and others

Versus

MEMBER (CUSTOMS) CENTRAL BOARD OF REVENUE, (REVENUE DIVISION) GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Appeals Nos. 338(K)(CS), 349(K)(CS), 350(K)(CS), 351(K)(C.S.) and 352(K)(C.S.) of 2002, decided on 5th May, 2005.

(a) Civil service---

----Disciplinary proceedings---Fact-finding enquiry was made instead of regular enquiry---Effect---No major punishment could be imposed on basis of fact-finding enquiry.

2003 PLC (CS) 353; 1985 PLC (CS) 519; 2003 PLC (CS) 365; PLD 2004 SC 441 and 2003 I'D (Service 247 rel.

(b) Civil service---

----Disciplinary proceedings---Enquiry in question and answer form---'Not permissible in law.

1993 SCMR 1440 rel

----Rr. 3 & 4---Fundamental Rules, R.29---Penalty of reduction to lower stage in time scale by three stages---Period for which such penalty to remain effective not mentioned in impugned order---Validity---Mentioning of such period was mandatory and not directory---Service Tribunal set aside impugned order and restored civil servant to his original position prior to date of impugned order with all back-benefits.

1995 PLC (CS) 462; PLD 1982 Pesh. 165 and 2004 PLC (CS) 157 rel.

Sanaullah Noor Ghauri for Appellants.

Khalil Dogar for Respondents.

Date of hearing: 28th April, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 617 #

2006 P L C (C.S.) 617

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD AFTAB ALI KHAN

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chairman and another

Appeal No.258(K)(C.S.) of 2004, decided on 5th April, 2006.

Civil Servants Act (LXXI of 1973)---

----S. 19---Service Tribunals Act (LXX of 1973), S.4---Pension, stopping of---Appeal---Appellant, after his retirement from service under voluntary retirement scheme, was drawing his pension, but same was stopped without any notice to the appellant on allegations that residential quarter allotted to him had been sub-let by him and that certain amount pertaining to rent and utilities was outstanding against him---Validity--Authorities, had a right to recover any amount outstanding against a retired employee, but that could be done only after issuing a show-cause notice to him and giving him opportunity to defend action against him---Pension of appellant could not have been stopped without issuing him any show-cause notice---Impugned order was set aside with direction to release pension of appellant---Authorities could take action against appellant after issuing proper show-cause notice.

2004 SCMR 656 ref.

Irfanullah G. Ali for Appellant.

Abdul Majeed for Respondents along with Departmental Representative Khalid Rasheed.

Abdul Majeed for Respondents.

Date of hearing: 5th April, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 627 #

2006 P L C (C.S.) 627

[Federal Service Tribunal, Islamabad]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD SADDIQ

Versus

DEPUTY INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE, LAHORE and another

Civil Appeal No.228(K)(C.S.) of 2002 decided on 14th September, 2005.

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

----Ss. 3(l)(a)(b) & (c)(iii) & 5---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after serving him with show-cause notice on allegations of inefficiency, misconduct and corruption---No inquiry was held against appellant, but no reason had been assigned in the show-cause notice for dispensing with regular inquiry, despite denial of serious allegations of fact by appellant---Authority had not stated that penalty had been imposed upon appellant after personal hearing---Such grave and serious infirmities in the disciplinary proceedings, had vitiated action against appellant---Impugned order of removal from service passed against appellant could not be maintained---Case was remanded to the Authority with a direction to reinstate appellant and hold de novo disciplinary proceedings against him on same allegations/charges within specified period.

1984 PLC (C.S) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222; 1985 PLC (C.S.) 245; 1982 SCMR 770 and 1997 SCMR 1552 and 2004 SCMR 316 = 2004 PLC (C.S.) 344 ref.

Sanaullah Noor Ghauri for Appellant.

Muhammad Asghar for Respondent.

Date of hearing: 13th September, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 638 #

2006 P L C (C.S.) 638

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NABI BUX

Versus

DEPUTY INSPECTOR-GENERAL PAKISTAN RAILWAYS POLICE, LAHORE and another

Appeal No.229(K)(C.S.) of 2002, decided on 14th September, 2005.

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

----Ss. 3(1)(a)(b) & (c)(iii), 5 .& 11---Service Tribunal Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after issuing him show-cause notice, but without holding any inquiry against him on charges of inefficiency, misconduct and corruption---Regular inquiry against appellant was dispensed with, without assigning any reason in that respect and despite denial of serious allegation of fact by appellant, penalty was imposed upon him without affording him opportunity of personal hearing---Such grave and serious infirmities in disciplinary proceedings against appellant had vitiated said proceedings---No major penalty could be imposed upon an employee without holding regular inquiry against him and without hearing him---Impugned order of removal from service passed against appellant, could not be maintained, in circumstances---Case was remanded with direction to Authority to reinstate appellant and hold de novo disciplinary proceedings against him on same charges within specified period.

1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222; 1985 PLC (C.S.) 245; 1982 SCMR 770 and 1997 SCMR 1552 ref.

Sanaullah Noor Ghauri for Appellant.

Muhammad Asghar for Respondents.

Date of hearing: 13th September, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 645 #

2006 P L C (C.S.) 645

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

KHADIM HUSSAIN

Versus

DEPUTY INSPECTOR-GENERAL RAILWAYS and another.

Civil Petition No.373(K) CS of 2003, decided on 18th October, 2005.

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

----Ss. 3(1)(a)(b), (c)(iii) & 5---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement from service---Appeal---Appellant was compulsorily retired from service after issuing him show-cause notice on allegations of inefficiency, misconduct and corruption---Minor punishment already undergone by appellant, could not be used for imposing major punishment of compulsory retirement on him as that would amount to vexing appellant twice for the acts of omission and commission for which he had already been punished---Allegation against appellant was that he had bad reputation, but Authorities were not firm about the reputation of corruption of the appellant---Such allegation needed to be proved by means of a regular departmental inquiry, giving appellant full chance to defend himself, but that had not been done---No evidence had been brought on record by Authorities to show that earlier minor punishments were awarded to appellant in connection with the acts of corruption etc.---Order of compulsory retirement of appellant on basis of allegations mentioned in show-cause notice, was null and void and for that reason bar of limitation, would not be attracted to the case of appellant even if delay was not covered up by the period of ailment of appellant's wife---Impugned order of compulsory retirement of appellant from service, was set aside and he was ordered to be reinstated in service accordingly.

1989 SCMR 1224 ref.

Sanaullah Noor Ghouri for Appellant.

Amanul Haq for Respondent.

Date of hearing: 24th September, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 654 #

2006 P L C (C.S.) 654

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ASIM

Versus

GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAYS HEADQUARTERS OFFICE,LAHORE and 2 others

Appeal No.364(K)(CS) of 2002, decided on 17th October, 2005.

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

----Ss. 3 & 5(4)---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of dismissal from service---Appeal---Appellant was dismissed from service on allegation of misconduct after issuing show-cause notice---Notice stated that formal inquiry was not needed---Appellant was never provided the details of available documentary evidence to enable him to rebut the same---Said notice, in circumstances suffered from a legal infirmity and penalty imposed upon appellant, could not be upheld---Competent Authority had dispensed with a formal inquiry by passing a mechanical order and did not pass a speaking order containing reasons---Appellant should not have been condemned on the strength of a mechanical order, especially when he had rendered unblemished 18 years service---Impugned order passed in violation of Rules and principles of law established by Supreme Court, was set aside with direction to .reinstate appellant in his original position from the date of issuance of impugned order with all back-benefits for the period he was not gainfully employed elsewhere.

1997 SCMR 1543; 1993 SCMR 603; PLD 1994 SC 222; 2003 SCMR 104; 1997 SCMR 1543 = 1997 PLC (C.S.) 817; PLD 1981 SC 176; 1987 PLC (CS) 528; 1990 PLC (C.S.) 835; 1986 PLC (C.S.) 419; 2002 SCMR 1034 = 2002 PLC (C.S.) 1083; 2001 SCJ 218; 2003 PLC (C.S) 353 and 2004 PLC (C.S.) 959 ref.

Sanaullah Noor Ghauri for Appellant.

D.R. Afsar Imam for Respondents.

Date of hearing: 5th October, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 661 #

2006 P L C (C.S.) 661

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members-II

JAVED IQBAL AWAN

Versus

ZARA1 TARAQIATI BANK LTD. and 2 others

Civil Appeal No.1606(K) CE of 2001, decided on 1st September, 2005.

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

----Rr.3, 4(1)(b)(i) & 5---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of reduction by one stage in scale---Appeal---Penalty of reduction by one stage in his own scale for a period of two years was imposed upon appellant after serving upon him show-cause notice and holding inquiry against him on certain allegations of inefficiency, negligence and misconduct etc.---Inquiry report failed to show that witnesses had been examined in the inquiry and when and at what place their statements were recorded---Appellant, in circumstances was prejudiced in his defence by not giving him a chance of cross-examining the witnesses---Truth of allegations against appellant could not have been established without giving him a fair chance of cross-examining witnesses produced by Authorities against him---Such having not been done, appellant could not have been punished on the basis of one-sided inquiry---Impugned order passed against appellant was set aside and case was remanded to authorities to hold de novo proceedings on same charges giving appellant full and fair opportunity of cross-examining witnesses and to allow him to put his defence.

1989 SCMR 551; 1993 SCMR 1440 and 1997 SCMR 1543 ref.

Abdul Sattar Mughal for Appellant.

Sanaullah Noor Ghouri for Respondents.

Date of hearing: 1st June, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 675 #

2006 P L C (C.S.) 675

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NISAR AHMED QURESHI and others

Versus

CHAIRMAN, PAKISTAN STEEL BIN QASIM, KARACHI and another

Appeals Nos.315(K)(CE), 438(K)(CE), 897(K)(CE) of 2002, decided on 1st June, 2005.

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

----Ss. 11 & 12---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4---Departure from prevalent law---Applicability of statute---After departmental proceedings, penalty of reduction to one stage lower in time scale was imposed upon the civil servant---Plea raised by the civil servant was that after promulgation of Removal from Service (Special Powers) Ordinance, '2000, proceedings were to be conducted under the ' newly-enacted law which had overriding effect---Validity---Disciplinary proceedings against the civil servant were not taken under the prevalent Removal from Service (Special Powers) Ordinance, 2000, and had been wrongly/illegally taken under the Pakistan Steel Officer' Service Rules and Regulations---Such proceedings stood vitiated being null and void---Illegal departure from the prevalent law of land and misapplication of law had caused prejudice to the civil servant in defending himself---Order passed by authorities was set aside and the matter was remanded for de novo proceedings against the civil servant in accordance with law---Appeal was allowed accordingly.

2003 PLC (C.S) 1304 = 2003 SCMR 1718; 2003 PLC (C.S.) 600 and 2004 SBLR 199 rel.

Sanaullh Noor Ghouri for Appellants.

Masood A. Khan for Respondents.

Date of hearing: 19th May, 2005

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 685 #

2006 P L C (C.S.) 685

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

GHULAM MUSTAFA

Versus

THE INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE, C.P.O. LAHORE and 2 others

Appeal No. 283(K) (C.S.) of 2001, decided on 21st April, 2005.

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

----R.4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Forfeiture of three years approved service---Awarding of such punishment by Authorized Officer was patently illegal---Principles.

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

----S.4---Appeal---Condonation of delay---Departmental appeal had not been rejected on ground of delay---Respondent to such effect had not raised objection in written comments---Appeal had been admitted on no objection by counsel for respondent---Two punishments imposed upon civil servant were illegal and void for not conducting disciplinary proceedings in accordance with law---Service Tribunal condoned delay in filing of appeal.

----R.4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Compulsory retirement and forfeiture of three years approved service---Charges of inefficiency, misconduct and corruption on basis of bad reputation, previous punishment of censure, average working reported in ACRs of previous years---Validity---Major penalty of compulsory retirement on stale minor punishments, which had lost their force, would amount to "double jeopardy" and vexing civil servant twice---Imposing major penalty without resorting to disciplinary inquiry and without giving a chance to civil servant to defend himself would be absolutely illegal---No civil servant could be punished without any cogent and convincing evidence against him of any charge of corruption or inefficiency---No evidence existed in proof of charges of corruption or bad reputation against civil servant---Service Tribunal accepted appeal and set aside impugned order with observations that respondent, if desired, could initiate fresh inquiry against civil servant on charges of inefficiency or corruption.

1995 PLC (C.S.) 547; 1989 SCMR 1224, PLD 1973 CS 188; 2004 PLC (C.S.) 959; 2004 PLC (C.S.) 1583; 1998 PLC (C.S.) 648; 2002 PLC (C.S.) 738; 1991 PLC (C.S) 33; 1995 PLC (C.S.) 666; PLD 1962 SC 144; 1994 SCMR 544; 1995 PLC (C.S.) 39; 1998 PLC (C.S.) 947; PLD 1995 SC 556; 1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222; 1985 PLC (C.S.) 245; 2004 SCMR 316 = 2004 PLC (C.S.) 344; 2004 SCMR 1662 and KLR 2004 L&SC 230. ref.

Sanaullah Noor Ghouri for Appellant.

Ch. M. Latif Saghar for Respondents.

Date of hearing: 16th April, 2005.

2006 P L C.(C.S.) 734

[Federal Service Tribunal]

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

SALAHUDDIN

Versus

REGIONAL DEPUTY POSTMATER GENERAL, HYDERABAD SINDH and 2 others

Appeal No. 125(K)(C.S.) of 2002, decided on 16th April, 2005.

(a) Civil service---

---Duty of civil servant---Not to obey any illegal order of his superiors.

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

---Rr.3, 4, 5 & 6---Dismissal of civil servant from service---Misconduct---Delay of four years in passing impugned order after giving personal hearing to civil servant---Validity---Such delay had not caused any prejudice to civil servant---Misconduct had been proved against civil servant who could not be exonerated---Service Tribunal converted impugned punishment into compulsory retirement from service in circumstances.

Sanaullah Noor Ghauri for Appellant.

Asif Hussain Mangi, Standing Counsel for the Respondents.

Date of hearing: 15th April, 2005.

2006 P L C (C.S.) 993

[Federal Service Tribunal]

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

AHMED BARCH

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI

Appeal No.427(K)(CE) of 2000, decided on 5th May, 2004.

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

---S.4---Appeal---Limitation---Aggrieved civil servant, under provisions of S.4 of Service Tribunals Act, 1973, could come to Service Tribunal within 120 days from the date of departmental appeal or within 30 days of Appellate Order---Appellant, in the present case, had filed appeal before Service Tribunal, 22 days after Appellate Order was passed---Appellant's departmental appeal was rejected on merits and the ground of limitation was not raised in said Appellate Order---Appeal filed by appellant before Service Tribunal within thirty days of Appellate Order, was strictly within four corners of S.4(1) of Service Tribunals Act, 1973 and was not hit by limitation---If departmental appeal had been rejected on merits and not on limitation, Service Tribunal had to decide appeal on merits and could not reject the same as time-barred.

1995 PLC (C.S.) 803 and 1999 PLC (C.S.) 1458 ref.

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

----S.O.12---Termination of service---Employee, who was arrested in a criminal case against him, was served a show-cause notice in jail after more than five months of his arrest which notice was responded by employee through Jail Authorities wherein employee requested for extraordinary leave for one year---Employer did not accede to request of employee for one year's leave and instead sanctioned two months leave to enable him to secure bail with remarks that in case he failed his services would be terminated---Employers did not take any action after expiry of two months and finally terminated his services one year, three months and five days after the arrest of employee---As employee was arrested in connection with a murder case, it was uncertain as to ultimate outcome of criminal proceedings against him---Employers waited for release of employee for fifteen months and five days which was reasonable time as employers could not wait for employee indefinitely---Employers thereafter terminated services of employee on principle of termination simplicator and that action of employers was strictly in accordance with relevant law i.e. Standing Order 12(1) of West Pakistan Industrial' and Commercial Employment (Standing Orders) Ordinance, 1968---Service of employee having legally been terminated, order terminating his services could not be interfered with.

Pakistan Cycle Industrial Co-operative Society Ltd., v. Muhammad Sarwar Butt and 2 others 1982 SCMR 950; Gul Ahmed Textile Mills Ltd., v. Presiding Officer, Sindh Labour Court No. IV and another PLD 1978 Kar. 35; 1992 SCMR 950; 2003 PLC (C.S.) 167; 1994 PLC(C.S.) 765; 1996 SCMR 273; 2002 PLC (C.S.) 526; 1998 PLC (C.S.) 800; NLR 1995 TD (Labour) 172; Muhammad Arshad Saeed, DIG Police v. Government of Pakistan 1994 PLC (C.S.) 755; Dr. Anwar Ali Sahto and others v. S.S.G.C. 2002 PLC (C.S.) 526; Fazal Siddiqui v. Pakistan through Secretary,, Establishment Division PLD 1990 SC 692; 1990 SCMR 1440; 1992 SCMR 1136; PLD 1977 SC 397; Chairman, PIAC v. Nash)) Malik PLD 1990 SC 951; 1991 PLC (C.S.) 508 and 1987 PLC 210 ref.

Ashraf H. Rizvi for Appellant.

Masood A. Khan for Respondent.

Date of hearing: 6th April, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1001 #

2006 P L C (C.S.) 1001

[Federal Service Tribunal]

Before Abdul Razzaque and Abdul Rashid Baloch Members

TANVEER AHMED and 315 others

Versus

NATIONAL BANK OF PAKISTAN through President, I.I. Chundrigar Road, Head Officer, Karachi

Appeals Nos.98(Q)CW to 122(Q)CW 479(R)CW to 513(R)CW, 520(R)CW to 547(R)CW, 557(R)CW, 559(12)CW, 560(R)CW, 837(R)CW, 838(R)CW, 866(R)CW to 873(R)CW, 1020(R)CW to 1024(R)CW, 1026(R)CW to 1029(R)CW, 1031(R)CW, 1032(R)CW, 1067(R)CW to 1074(R)CW, 1076(R)CW to 1079(R)CW, 1083(R)CW to 1092(R)CW, 1094(R)CW to 1097(R)CW, 1100(R)CW to 1105(R)CW, 1107(R)CW to 1125(R)CW, 1127(R)CW to 1130(R)CW, 1134(R)CW, 1136(R)CW, 1140(R)CW to 1151(R)CW, 1163(R)CW to 1165(R)CW, 1194(R)CW, 1196(R)CW, 1200(R)CW, 1202(R)CW, 1203(R)CW, 1209(R)CW to 1229(R)CW, 1240(R)CW to 1254(R)CW, 1270(R)CW, 1271(R)CW, 1318(R)CW, 1319(R)CW, 1416(R)CW to 1422(R)CW, 1435(R)CW, 1462(R)CW to 1464(R)CW, 1466(R)CW 548(R)CW to 556(R)CW, 558(R)CW, 861(R)CW, 862(R)CW, 865(R)CW, 1003(R)CW to 1006(R)CW, 1013(R)CW, to 1015(R)CW, 1025(R)CW, 1030(R)CW, 1038(R)CW, 1041(R)CW, 1075(R)CW, 1089(12)CW, 1093(R)CW, 1098(R)CW, 1099(R)CW, 1106(R)CW, I126(R)CW, 1131(R)CW to 1133(R)CW, 1166(R)CW to 1169(R)CW, 1184(R)CW, 1185(R)CW, 1195(R)CW, 1201(R)CW, 1204(R)CW, 1230(R)CW to 1232(R)CW, 1255(R)CW to 1262(R)CW, 1424(R)CW to 1427(R)CW, 1437(R)CW to 1453(R)CW and 1465(R)CW of 2002, decided on 17th July, 2003.

National Bank of Pakistan Staff Service Rules, 1980---

----R.6---Civil Servants Act (LXXI of 1973), S.11---Service Tribunals Act (LXX of 1973), S.4---Regularization of service---Termination of service---Appeal---Limitation---Appeals filed by appellants fell in two broad categories: in the first category, appellants had prayed that Bank be directed to regularize their services and second category was of those appellants whose services had been terminated by the-Bank and prayer of said appellants was that they be reinstated in service---Notwithstanding terms and conditions given in letters of appointment of Godown Staff in the present case, it had been settled that having been appointed by the Bank and having performed duties of permanent nature on a continuous basis for long years and despite short artificial breaks, Godown Staff would be treated permanent employees within the meaning of R.6 category-III, Chapter-II of National Bank of Pakistan Staff Service Rules, 1980---Daily wages employees having worked for long years on a continuous basis on jobs of permanent nature to the satisfaction of the Bank, had acquired the status of permanent employees---While Godown Staff practically worked on a continuous basis, often on regular clerical jobs in Bank branches, breaks in their services were introduced artificially to be able to say that said staff had not worked on continuous/permanent basis---Appellants had no choice but to accept unfair terms because of their weak bargaining position---Appeals filed for regularization by Godown Staff and daily wages employees, were accepted---Bank was directed to regularize services of appellants who had completed three years service with breaks of not more than 15 days between any two consecutive appointments---Most of the appellants had filed appeals against orders of their termination, with considerable delay and reasons given in application for condonation of said delay, were not sufficient to condone delay---Appeals having been filed in haste, were not properly documented---Such time-barred appeals were dismissed---Some of the appeals which were filed within time, were accepted, orders terminating services of the appellants, were set aside and they were reinstated in service.

1996 SCMR 1185; 1996 SCMR 1145; 1996 SCMR 218; 2001 SCMR 1935; PLD 1980 SC 323; 1990 SCMR 1539; 2000 SCMR 879; PLD 1980 SC 323; 1990 SCMR 1539; 2000 SCMR 879; 1977 SCMR 599; 1979 SCMR 367; 2000 PLC (C.S.) 1109; 1998 SCMR 822; 1993 SCMR 609; PLD 1970 Quetta 115; Abdul Majid Sheikh v. Munshaffe Ahmed PLD 1965 SC 208; 1999 SCMR 197; Muhammad Afzal v. KESC 1999 SCMR 92 and Syed Aftab Ahmed v. KESC 1999 SCMR 197 ref.

Ch. Ghulam Qadir for Appellants (in Appeals Nos.1020 to 1032 and 1083 to 1102(R)CW of 2002).

M. Shaoib Shaheen for Appellants (in all other appeals).

Muhammad Farooq for Respondent (in Appeals Nos.1255, 1440 and 1447(R)CW of 2002).

Sardar Riaz Karim for Respondent (in Appeals Nos.1422 and 1438(R)CW of 2002).

Khawaja Muhammad Farooq for Respondent (in all other Appeals).

Date of hearing: 22nd, February, 2003.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1019 #

2006 P L C (C.S.) 1019

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Muhammad Zubair Kidwai, Members

SHEERIN WALL

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and

another

Appeal No.171(P)CS of 2000, decided on 5th August, 2004.

Pakistan Water and Power Development Authority Employees (Efficiency and

Discipline) Rules, 1978---

----R 5(iv)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal against---Appellant was served with a letter calling for explanation holding him responsible for various acts of omission and commission--- Said letter was based on report of inquiry wherein several instances of irregularities with regard to maintenance of account of store material and stock account were mentioned---Appellant replied to the charge sheet and gave in detail his point of view, but the Authority did not accept reply of appellant without assigning any reason---If the Authority had not agreed with point of view of appellant, Authority should have given some plausible reasons for not agreeing with appellant's explanation, but that had not been done---Denial by appellant of allegations made against him had made the facts disputed and disputed facts could only have been resolved by holding a regular inquiry wherein appellant was to be given full opportunity to explain his position---Inquiry officer/Committee was to determine what was the truth and what were actual facts, but appellant's point of view was dismissed summarily---Appellant was not fully associated with the preliminary inquiry and his statement was simply recorded and statements of witnesses against him were recorded in his absence---Appellant was dismissed from service on the very day the personal hearing was given to him and it appeared that personal hearing was given to appellant just to complete a formality and was not meaningful---Action against appellant, in circumstances was taken without holding regular hearing or giving a meaningful personal hearing---No irregularity was noticed in maintenance of stock for the period when appellant was incharge of store and stock taking of store was conducted---Nature of charges levelled against appellant were of such type that prima facie negligence of other officials like Senior Store Keeper, Accounts Officers and Junior Store Keepers, could not be ruled out, but they all were treated very leniently or were allowed to go unpunished , which had shown discrimination and arbitrariness on part of the Authorities towards appellant---Impugned order passed against appellant was set aside and he was ordered to be re-instated in service with all back benefits from date he was dismissed from service.

Sh. Riaz ul Haq for Appellants.

Sajjad Afzal Cheema for Respondents.

Date of hearing: 27th July, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1035 #

2006 P L C (C.S.) 1035

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman, Akbar M. Memon and Barkat Ali Baloch, Members

Ch. MUHAMMAD ASLAM

Versus

CHAIRMAN, PAKISTAN STEEL MILLS and 4 others

Appeal No.842(K)CE of 2000, decided on 12th September, 2003.

Per Akbar M. Memon, Member---[Minority view]

1983 PLC (C.S.) 901; 2002 PLC (C.S.) 1541; 1997 PLC (C.S.) 817 = 1997 SCMR 1543; 2003 PLC (C.S.) 353; 1996 PLC(CS)868; PLD 1994 (SC) 275; 1997 T.D. Service 247; 2001 T.D. Service 361; 2002 SCMR 433; 1993 SCMR 1440; 1987 SCMR 1774; 1999 T.D. Service B5 2002 PLC (C.S.) 1480; 2002 PLC (C.S.) 785; 1991 PLC (C.S.) 181; 2000 SCMR 71; PLD 1971 Karachi 625 and 1992 PLC (C.S.) 685 ref.

Per Barkat Ali Baloch, Member and Amanullah Abbasi, Chairman, agreeing---[Majority view]

Civil Servants Act (LXXI of 1973)---

----Ss.12, 13---Service Tribunals Act (LXX of 1973), S.3-A(2)(b)---Government 'Servants (Efficiency and Discipline) Rules, 1973, Rr.3, 4 (1)(b)(1), 5 & 6---Demotion to lower rank and voluntary retirement---Appeal---Appellant in his appeal had challenged two orders; one whereby he was demoted from Grade-V to Grade-IV and second whereby Authorities had accepted option of appellant under Voluntary Retirement Scheme---Appellant was reversed/demoted from Grade-V to Grade-IV after issuing as many as 17 show-cause notices and holding inquiry against him on different allegations of subversion of discipline, misconduct and numerous other allegations---Appellant admittedly had taken part in inquiry proceedings, he was provided copy of statement of prosecutor and he had never complained about not providing him an opportunity of defence in his Departmental appeal---Those facts had shown that formal inquiry into allegations against appellant was held providing him opportunity of defence and it could not, in circumstances, be said that appellant was not given any opportunity of defence or that no formal inquiry was held against him---No injustice or discrimination had been caused to appellant in taking action against him---Allegations levelled against appellant had fully been proved---Appeal against impugned order was rejected, in circumstances---Regarding grievance of acceptance of Voluntary Retirement Scheme, appellant had alleged that he had not at all opted for such retirement and that option form in respect of Voluntary Retirement Scheme was bogus one and was not signed by him---Appellant had also alleged mala fide of Authority in that respect---Question needing further probe, it was ordered that proper inquiry be made in that respect within specified period---Appellant was reinstated in service in demoted Grade-IV to participate in said inquiry.

Sanaullah Noor Ghauri for Appellant.

Zahid Hamid for Respondents.

Date of hearing: 18th April, 2003.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1053 #

2006 P L C (C.S.) 1053

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

FAREED ALAM KHAN

Versus

CONTROLLER GENERAL OF PAKISTAN and others

Appeal No.201(K)(CS)/2002, decided on 17th April, 2006.

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

----R. 4(I)(b)(i)---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of reduction to three lower stages in time scale---Appeal against--Major -penalty of reduction to three lower stages in time scale was imposed on appellant after serving him with show-cause notice and holding inquiry against him on allegation of inefficiency and misconduct---Appellant had not disputed the tampering with data fed in computer on date, at the time and place as alleged, but findings on that point in affirmative must adversely reflect on alleged role of principal accused, who was the interested party and was responsible for mischief of alleged tampering, but he had gone un-scathed and appellant who was small fry, was punished---If no action was taken against principal accused, what could be the basis of taking action against appellant who was alleged to have collaborated with principal accused---No ocular evidence of tampering with computer data was against anyone of the three persons including appellant alleged in the incident---What had been proved against appellant, did not amount to anything more than negligence, but for that he had been discriminated against as the one around whom the entire episode revolved, had absolutely gone unscathed, which was not just---Warning by the competent Authority to appellant to be careful in future, would satisfy the ends of justice---Impugned order was set aside and stage in time scale of appellant would be restored with all back-benefits.

Zamiruddin Ahmed for Appellant.

Asif Mangi, Standing Counsel for Respondents.

Date of hearing: 16th February, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1060 #

2006 P L C (C.S.) 1060

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

BARKAT ALI

Versus

ASSISTANT DIRECTOR REGIONAL PASSPORT and others

Appeal No.1039(K) of 1999, decided on 31st January, 2005.

Civil Servants Act (LXXI of 1973)---

----S. 5---Service Tribunals Act (LXX of 1973), S.4---Appointment---Appeal to Service Tribunal-Appellant had resigned from the post of UDC and after some time he requested for appointment and he was offered post of L.D.C. which he accepted without any objection---Appellant continued to serve on said post, drew salary and allowances of L.D.C. and had never objected to the seniority list of L.D.C.'s---As appointment of appellant as L.D.C. was fresh one he could not be allowed to jump over to senior post of U.D.C. surpassing other L.D.Cs. senior to him---Appellant was never appointed against post of U.D.C., but was allowed to draw salary in his own pay and scale against post of U.D.C.---Tribunal could not exercise the powers of appointing Authority to appoint appellant as U.D.C. which was the function of Department after due process and formalities of law and considering the case of other officials relating to seniority.

Zamiruddin Ahmed for Appellant.

Asif Hussain Mangi S.C., D.R. Messrs Ghulam Mustafa, Assistant Director Passport Larkana and Ghulam Mustafa Shaikh Assistant Director Passport Karachi for respondents.

Date of hearing: 21st December, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1081 #

2006 P L C (C.S.) 1081

[Federal Service Tribunal]

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

ABDUL GHAFFAR MIAN

Versus

GOVERNMENT OF PAKISTAN, CABINET SECRETARIAT, ESTABLISHMENT DIVISION through Secretary to Government of Pakistan, Islamabad and 6 others

Appeal No.307(L)CS of 2001, decided on 9th'August, 2004.

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

----S.22(2)---Civil Servants (Appeal) Rules, 1977, R.4(1)---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant, who met all conditions prescribed for promotion to BPS-20 in Promotion Policy, had been superseded and respondents, who were junior to him, were promoted without indicating any solid reason for his supersession---Appellant during his 23 years service before his supersession, had held 'important and critical Secretarial as well as field positions/assignments in Provincial and Federal Governments. and he enjoyed unblemished record of service---Appellant was never communicated any adverse remarks or counselled about any lapse or deficiency in performance of his duties---Overall quantification score of appellant was 88 whereas score for quality and out-put of work and integrity, both moral and intellectual was 74,77 & 78 respectively---Minimum bench marks for promotion to BPS-20 were 70 marks in overall quantification score and same for quality and output of work and integrity---Other requirements as prescribed in Promotion Policy were also fulfilled by appellant---Respondent Authority had alleged that appellant had earned a large number of average reports which compared him unfavourably with private respondents who had been promoted---Further allegation was that appellant did not enjoy reputation of a clean officer in the department---Validity---Appellant, despite average reports, was promoted to BPS-19 in 1997 and average reports were not adverse reports---Such average reports, in circumstances should not create any impediment in the way of promotion of appellant to higher post of BPS-20 when his overall quantification score admittedly was more than private respondents who were promoted---No stigma was attached to reputations of appellant and no evidence to that effect was discernible either from his ACR's or any other adverse communication available on record---Appellant had never been communicated any remarks regarding his reputation being not a clean officer--No evidence was on record to show that appellant had a bad reputation--Justice had not been done to appellant and Central Selection Board had itself ignored its own paradigm to select "the very best from amongst the best"---Appellant had requisite seniority, quantification score par excellence, variety of experience---Despite meeting all requirements as laid down in Promotion Policy, appellant had been superseded--Appellant undoubtedly being the best out of the lot, was dropped for no rhyme or reason---Authority was directed that appellant be promoted with effect from date his juniors were promoted---Since appellant had suffered for none of his fault, he would also be entitled to consequential benefits effective from date his juniors were promoted.

PLD 2003 SC 175; 2001 SCMR 1446; PLD 2003 SC 110; 2003 PLC (C.S.) 212; 2001 PLC (C.S.) 157; 2002 SCJ 93; 2001 UC 610; NIR Civil Lahore 559; 1999 TD (Service) 62; 1990 SCMR 927; 1990 SCMR 1321; 2003 PLC (C.S.) 503; 2001 PLC (C.S.) 878; 1995 SCMR 650; 2002 PLC (C.S.) 1002; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Rahim Khan v. The Chief Secretary N.-W.F.P. and 4 others 1999 SCMR 1605; Government of Pakistan v. Hamid Akhtar Niazi 2003 TD (Services), 89; Dr. M. Yousaf v. Government of Punjab the Punjab Service Tribunal 2002 PLC (C.S.) 1071 and Khalid Mehmood v. Secretary Government of Sindh 2002 TD (Service) 69 ref.

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

----S.9---Promotion to BPS-20---Criteria for promotion to a post in BPS-20, detailed.?

----S.9---Promotion---Considerations for---Integrity, quantification of---Considerations for promotion to a higher position, depended not only on seniority, but also on other factors such as competence, availability of posts and antecedents which were also taken into consideration---Integrity was also quantified in terms of marks---Minimum benchmark for integrity was 70 marks for qualifying a Government servant for consideration for promotion to BPS-20 Post---Integrity could not be quantified in terms of marks as it should always carry 100 marks as same should be 100%---If it fell short of that level, it could be safely presumed that integrity of that particular civil servant was questionable to the extent of shortfall from maximum of 100 marks or 100%.?

C.M. Sarwar for Appellant.

Javed Aziz Sindhu for Respondents along with Mehboob Alam Section Officer, Establishment Division as Departmental Representative.

Date of hearing: 28th July, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1108 #

2006 P L C (C.S.) 1108

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

DR. MUHAMMAD JAVAID ASIF

Versus

CHAIRMAN AND DEAN, FEDERAL POST GRADUATE MEDICAL INSTITUTE (FPGMI) SHEIKH ZAYED POST GRADUATE MEDICAL INSTITUTE), LAHORE and 3 others

Appeal No.653(L)(C.S.) of 2000, decided on 28th September, 2004.

Civil Servants Act (LXXI of 1973)---

----Ss.8 & 9---Service Tribunals Act (LXX of 1973), S.4(b)---Promotion and seniority---Entitlement---Appeal, limitation for---Appellant along with respondents was considered by Departmental Promotion and Selection Committee for promotion to post of Assistant Professor, but was not found eligible and fit to be appointed against said post---Authorities, in circumstances were fully justified in making appointment of respondents against said posts taking into consideration their qualifications and experiences etc.---Seniority and promotion were not vested right of a civil servant and it was the prerogative of Authorities to decide competence of appellant to fill in post of Assistant Professor---Authorities having not exceeded their jurisdiction in making appointments of respondents, appointment orders issued by them in favour of respondents could not be labelled as void, but were perfectly legal and valid---Appellant having been considered and not found fit for promotion, could not file appeal before Service Tribunal in view of S.4(b) of Service Tribunals Act, 1973---Appeal filed by appellant otherwise being hopelessly time-barred, was dismissed.

Raja Jehanzeb Akhtar or Appellant.

Irshad Ali for Respondents Nos. 1 and 2.

M. Saleem Chaudhry for the Respondent No.4.

Date of hearing: 28th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1112 #

2006 P L C (C.S.) 1112

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ALI GOHAR SAITHO and 2 others

Versus

DIRECTOR-GENERAL, PAKISTAN POST OFFICE, ISLAMAMBAD, and 2 others

Appeals Nos. 319(K)(C.S.), 320 (K) (C.S.) and 323(K)(CS) of 2002, decided on 13th September, 2004.

Civil service---

----Change of cadre---Employees working in BS-9 were promoted to BS-11 and were re-designated as Assistant Superintendent---Subsequently Authorities abolished post of BS-11 and employees were accommodated against the post of A.P.M. Counter---Representation of employees to Authorities praying that they be adjusted against post of Assistant Superintendent Post Office was rejected by Authorities---Employees had complained that change of their cadre was made without obtaining any option from them and without providing them any opportunity of personal hearing---In another order passed in another case, order of Authorities regarding change of cadre passed without obtaining any option from employees or without providing them opportunity of being heard, was set aside by Service Tribunal and Authorities were directed either to adjust employees in their original cadre against vacant posts or provide employees opportunity of personal hearing of option for the purpose of change of cadre.

Shams-uz-Zaman and others v. Director-General, Pakistan Post Office Department, Islamabad and others Appeal Nos. 1371(L)/99 and others and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Sanaullah Noor Ghouri for Appellants.

Asif Mange, Standing Counsel with Dr. Tufail Ahmed for the Respondents.

Date of hearing: 9th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1115 #

2006 P L C (C.S.) 1115

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

CH. MUHAMMAD ASLAM

Versus

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

Appeal No.4(L) (C.S.) of 2004, decided on 11th September, 2004.

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

----Ss.1(3)(4), 2(c), 3, 11 & 12---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty---Appeal against---Appellant was directed to pay amount as penalty vide order dated 27-9-2003 passed under provisions of Removal from Service, (Special Powers) Ordinance, 2000, whereas appellant had already retired in the year 1996---Removal from Service (Special Powers) Ordinance, 2000, would not be applicable to appellant as he had retired from service long before promulgation of the said Ordinance---Removal from Service (Special Powers) Ordinance, 2000, had come into force in May, 2000 having no retrospective effect---Proceedings under said law could not be taken against appellant who had retired much earlier than its enforcement---For a cause of action accrued on a particular date, proceedings had to be taken under the law in force at that time---Knowledge as to cause of action was relevant only for the purpose of reckoning limitation---If respondent-Authorities had come to know about misconduct of appellant, such knowledge could be relevant for purpose of fixing period of limitation for starting legal proceedings and date of knowledge was not relevant for applicability of law under which proceedings were to be taken---Proceedings had to be taken under the law which was applicable on date on which cause of action had actually arisen---Impugned order not passed under correct law, was set aside, in circumstances.

2003 PLC (C.S.) 645 ref.

Sheikh Abdul Hameed for appellant.

Umar Sharif for the Respondents.

Date of hearing: 11th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1119 #

2006 P L C (C.S.) 1119

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

BASHIR AHMAD

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 57 others

Appeal No.583(L)/(C.S.) of 2000, decided on 8th September, 2004.

Civil Servants Act (LXXI of 1973)---

----S.22---Service Tribunals Act (LXX of 1973), S.4---Selection grade---Claim for---Right of appeal---Appellant in his appeal had prayed for grant of Selection Grade in BPS-16 to himself and pro forma respondents---Validity---Appellant could not pray for grant of relief to pro forma respondents---Rules required that every aggrieved employee should file his own appeal---Pro forma respondents should have filed independent appeals---If the prayer made by appellant for grant of relief to pro forma respondents besides himself was allowed, then rules framed under Service Tribunals Act, 1973 would be rendered ineffective---Prayer of appellant in appeal was generalized in nature---Such a prayer could not be made---Appellant was required to give specific date from which he wanted relief---Appellant had stated that employees evenly placed with him including pro forma respondents were entitled to benefit of judgment of Service Tribunal---Legal position that benefit of judgment of Service Tribunal and judgment of apex Court had to be extended to non-litigating employees evenly placed with successful litigants could not be denied---If pro forma respondents found that appellant had been given a certain treatment under the light of present judgment, they could approach respondent Authority for same relief.

Nazeer Ahmad Quraishee for Appellant.

Jalil-ur-Rehman, Deputy Director T.P.S. as departmental reposesentatine for Respondents.

Date of hearing: 8th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1121 #

2006 P L C (C.S.) 1121

[Federal Service Tribunal]

Before Abdur Razzaque and Abdul Rashid Baloch, Members

ATTA MUHAMMAD

Versus

NATIONAL BANK OF PAKISTAN through President, Karachi and others

Appeal No.l422(R)CW of 2002, decided on 11th September, 2004.

Civil Servants Act (LXXI of 1973)---

----S.13---Service Tribunals Act (LXX of 1973), S.4---Golden Handshake Scheme---Retirement---Increase in pay---Entitlement---Appeal to Service Tribunal---Appellant opted for Golden Handshake Scheme, but his option was not accepted and he continued to serve till his dismissal from service as a result of disciplinary proceedings against him---Appellant's appeal against order of his dismissal from service having been dismissed by Service Tribunal, appellant had filed petition before Supreme Court which was pending adjudication---Appellant had claimed that his option for retirement under Golden Handshake Scheme was not accepted and he continued to be in service and he was entitled to increase in pay announced for employees till his dismissal from service---Validity---Option of appellant for retirement under Golden Handshake Scheme had not been accepted and he continued to remain in service till his dismissal from service---Option of Appellant had become legally inoperative and appellant was not debarred from benefits of increase in pay scale---Appellant was entitled to first increase in pay scale announced during period in which he was in service, but he was not entitled to second increase in pay scale which had become effective after dismissal of appellant from service---Second increase in pay scale was not admissible to appellant as he was no longer in service at that time.

M. Shoaib Shaheen for Appellant.

Sardar Riaz Kareem for Respondents.

Date of hearing: 21st July, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1124 #

2006 P L C (C.S.) 1124

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD FAROOQ SIDDIQUI

Versus

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

Appeal No.692(L) (C.S.)/2003 decided on 24th September, 2004.

(a) Civil service---

----Move-over---Entitlement---Move-over claimed by employee w.e.f. 1-12-1988 was denied to him on the ground that penalty of withholding of increments for five years had been imposed upon him on 27-6-1991---Validity---Penalty imposed upon employee on 27-6-1991 was not relevant as his claim was for grant of move-over w.e.f. 1-12-1988 when penalty imposed on him was not in existence---Such penalty was no bar in considering the claim of employee for grant of move-over w.e.f. 1-12-1988---Move-over was also denied to employee on ground that another penalty of withholding of five increments was imposed on him---Said penalty admittedly was set aside on the very date from which employee had claimed move-over---Punishment/penalty which was set aside would not remain part of his service record and Authority should treat record of employee upto 1-12-1986 to be without any penalty---Authority was directed to decide claim of employee for grant of move-over w.e.f. 1-12-1988---Authority had contended that as employee who had come on deputation from other Department and was absorbed in the department, was in service of said other Department in the year 1987-1988, it was not responsibility of Authority to grant employee move-over w.e.f. 1-12-1988---Contention was repelled because once employee was absorbed in transferee department, all his claims relating to his previous service had to be finalized by transferee department and said finalization could be made in consultation with previous department.

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

----S.4---Appeal---Limitation---Appeals relating to pays and allowances---Aggrieved civil servant had a continuing cause of action and for a continuing cause of action there was no fixed period of limitation and appeal could not be thrown away as time-barred.

Sheikh Abdul Hameed for Appellant.

Muhammad Iqbal Khokhar for Respondents with Safdar Mahmood Mehdi, Deputy Director as Departmental Representative.

Date of hearing: 24th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1151 #

2006 P L C (C.S.) 1151

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

DR. ROOHI SAEED

Versus

SHEIKH ZAYED HOSPITAL AND POST GRADUATE MEDICAL INSTITUTE

through The Board of Trustees, Lahore and 3 others

Appeal No.693(L)(C.E) of 2000, decided on 1st October, 2004.

(a) Civil service---

----Appointment of current charge basis---Appointment on current charge basis was not a promotion---Civil servant who was appointed on a higher post on current charge basis would continue to be in his own grade till he was promoted on regular basis.

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

----S. 4---Proviso (b)---Civil Servants Act (LXXI of 1973), S.8---Seniority---Appeal---Maintainability---Appellant in prayer clause of appeal had not prayed for promotion and her claim was that order by which respondent was declared senior to her be set aside being illegal---Appeal could be filed before Service Tribunal for such relief---Dispute being relating to seniority of appellant, Service Tribunal was the only forum wherein such question could be finally and conclusively decided---Appeal filed by appellant was maintainable.

----R.4---Seniority on appointment by transfer---Seniority of civil servant in transferee department would be reckoned from the date of his transfer.

2003 SCMR 333 ref.

(d) Administration of justice---

----Every person, of whatever status he was and whatever religion/faith he professed, was duty bound to do justice to all---Government Departments particularly required to impart justice to their employees so that they could not enter into litigation and it was not the function of the Courts alone to administer justice---Timely decisions on merits by, respective Department, could definitely help in reducing litigation.

Muhammad Hussain Awan for Appellant.

Imran Aziz Khan for Respondents Nos. 1, 3 & 4.

Sher Zaman for Respondent No.5.

Date of hearing: 1st October, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1166 #

2006 P L C (C.S.) 1166

[Federal Service Tribunal]

Before Mohammad Iqbal Khan and Hassan Raza Pasha, Members

SYED NAZAR HUSSAIN SHAH

Versus

FEDERATION OF PAKISTAN and others

Appeal No.236(R) CS/2003, decided on 10th February, 2004.

Civil service---

----Move over---Claim for---Request of civil servant for move-over to BPS-20 from date he reached maximum of scale to BPS-19 after his re-instatement in service with order of Service Tribunal, was rejected on ground that service record of civil servant was not available, from period 6-5-1981 to 4-12-1988---Civil servant who initially was posted as clerk, gradually rose to position of an officer in BPS-19 and remained on deputation from years 1977 to 1981---Civil servant was dismissed from service on 3-9-1983, but was reinstated by order of Service Tribunal on 18-8-1996---Civil servant reached the age of superannuation on 4-12-1988---Rise of civil servant from position of a clerk to that of An officer in BPS-19, had provided enough collateral evidence of his good service record, coupled with the fact that his borrowing department had no objection to the grant of move-over to him to BPS-20---Posting of civil servant on deputation, would not constitute viable justification for not considering him for benefit of move-over---Withholding move-over of civil servant to BPS-20 on the ground that his record of service was not available with Authorities, was not legally sustainable---As soon as civil servant was reinstated in service in the light of Service Tribunal's judgment and was paid all his dues, issue of his move-over to next scale of BPS-20 should have engaged the attention of Authorities, but Authorities made no effort in that regard---Authorities were directed to re-consider case of civil servant for grant of move-over to BPS-20 w.e.f. 1-12-1983 based on his service record already available with them---Civil servant would be entitled to pensionary/terminal benefits consequential to grant of move-over to him to BPS-20.

Shah Abdur Rashid and Asma Siddiqui for Appellant.

Javed Aziz Sindhu Standing Counsel for the Respondent with Abdul Hakeem Rahi, Steno, Establishment Division and Mr. Meharban Khan, Admin. Officer, FGEI, as Departmental Representatives.

Date of hearing: 31st January, 2004.

2006 PLC (C.S.) 1190

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD AKBAR KHAN

Versus

THE DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, KARACHI and 2 others

Appeal No.231(K)(CS) of 2002, decided on 20th September, 2004.

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

----Ss.3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal against---Appellant was dismissed from service on allegation that he, while serving as Inspector of works, twice recommended retirement papers of an employee who was working as `Moawin' under his control and caused loss to Government---Appellant demanded personal hearing, but no opportunity for that was provided---Appellant, in circumstances was deprived of chance of bringing his defence on record which was a serious irregularity for which major penalty of dismissal from service imposed upon appellant, could not be maintained---Service Tribunal accepting appeal, had set aside impugned order of dismissal of appellant from service and directed respondent Authorities to reinstate appellant in service from date of his dismissal---Case, however was remanded to the Authorities for holding enquiry into the matter strictly in accordance with law providing fair chance to appellant of putting up his defence during enquiry.

Sanaullah Noor Ghauri for Appellant.

Miss Irfana Junior of Ch. Rashid Ahmed for Respondents.

Date of hearing: 16th September, 2004.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1192 #

2006 P L C (C.S.) 1192

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

KHALID FAHEEM, EX-ASSISTANT MANAGER, PAKISTAN STEEL, KARACHI

Versus

SECRETARY MINISTRY OF INDUSTRIES AND PRODUCTION GOVT. OF PAKISTAN and 2 others

Appeal No.318(K)(CE) of 2002, decided on 15th November, 2005.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after Charge-sheeting him and holding inquiry against him on charge of misconduct and misappropriation---Inquiry Committee, did not conduct inquiry as per procedure laid down in letter issued by the then Chairman and procedure for departmental inquiry was also not followed---Before awarding punishment of removal from services upon appellant, copy of inquiry report was not supplied to him which was against principle of natural justice---Appellant could not be held responsible for the acts of omission and commission of others---Inquiry was conducted against appellant in question-answer form which was not a legal inquiry---Witness who was Store Incharge, had stated in clear words that appellant had no concern with purchases and procurement of material or installation---In view of said clear-cut evidence available on record, appellant could not be held responsible and could not have been punished---Impugned order of removal from service, was set aside, with direction to authorities to hold a formal inquiry against appellant strictly in accordance with rules accordingly.

1984 PLC (C.S.) 560, 1985 PLC (C.S.) 518; 1987 PLC (CS) 741; .PLD 1981 SC 176; 1991 PLC (CS) 706; 1992 PLC (C.S.) 678; 2000 PLC (C.S.) 1252; 1999 PLC (C.S.) 592; 2001 PLC (C.S.) 296; 1999 SCMR 819 and 1993 SCMR 1440 ref.

Sanaullah Noor Ghouri for Appellant.

Shoukat, Clerk of Raja Qasit Nawaz for Respondents.

Date of hearing: 12th November, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1200 #

2006 P L C (C.S.) 1200

[Federal Service Tribunal (Islamabad)]

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

TANVEER KAUSAR

Versus

MANAGING DIRECTOR P.I.A.C. and another

Appeal No.1692 (K)(C.E)/2001, heard 6th September, 2005.

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

----Ss. 3(b) & 5(1)(a)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after charge-sheeting her on charge of misconduct---Allegation against appellant was that she with connivance of her brother tampered with the marks sheet of B. A. (Pass) examination and Certificate of Intermediate for obtaining job for her brother in the Department, whereas he was simply a Matriculate---Inquiry though was held against appellant, but Inquiry Committee, without intimation to appellant or affording her chance to defend the allegations, completed inquiry arbitrarily and appellant was denied her right to defend---Not a single document was attached with the statement of allegation or with charge-sheet by authorities which was alleged to be tampered with by appellant---Invalid and frivolous charge-sheet was issued to appellant which had no legal justifications for awarding major penalty to appellant---During inquiry proceedings no documentary or oral evidence was produced before Inquiry Committee to prove that any tampering with the educational certificate was made by appellant, nor any evidence existed which might have proved guilt of appellant---Even two prosecution witnesses in their statements had confirmed that documents' of appellant were found correct and in order---Charge-sheet which under S.5(1)(a) of Removal from Service (Special Powers) Ordinance, 2000, was to be signed/issued by Enquiry Officer/Enquiry Committee, was signed and issued by an official, who was devoid of any lawful authority---Action of authorities violating principle of natural justice was without lawful authority and of no legal effect---Delay of only two days in filing appeal by appellant was condoned on application filed by appellant in that respect---Impugned order was set aside with direction to reinstate appellant in service and regularize her service from date of' impugned order---Appellant would be entitled to all back-benefits, if she was not gainfully employed elsewhere.

1982 PLC (C.S.) 249; Ch. Ehsan Sabri v. Federation of Pakistan through Secretary, Ministry, Ministry of Law Justice, Human Rights and Parliamentary Affairs, Islamabad 1983 PLC (C.S.) 171; 2004 PLC (C.S.) 270; 2004 PLC (C.S.) 294; 2003 PLC (C.S.) 7; 2003 PLC (C.S.) 113; 2003 PLC (C.S.)' 433; 2004 PLC (C.S.) 668; 1999 SCMR 818; 2000 PLC (C.S.) 857; 1998 SCMR 2268; 2002 SCMR 57; 1997 SCMR 1552; PLD 2000 (sic) 211; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; 2001 PLC (C.S.) 667; PLD 1979 Kar. 257; 1987 SCMR 1562; 2000 PLC (C.S.) 99; PLD 1981 SC 176; 2003 PLC (C.S.) 378; PLD 1967 Karachi 1138; 1973 SCMR 455; 1983 PLC (C.S.) 473; 2000 PLC (C.S.) 1252; 1997 PLC (C.S.) 873; 1997 PLC (C.S.) 817; 1999 PLC (C.S.) 592; 2001 PLC (C.S.) 291; 2001 SCMR 565; 1999 SCMR 197; 2002 PLC (C.S.) 526; 2004 PLC (C.S.) 418; 2004 PLC (C.S.) 732; 1996 PLC (C. S.).300; 1989 PLC (C.S.) 25; 1996 PLC (C.S.) 79; 1991 PLC (C.S.) 316; PLD 1977 Lah. 1377; PLD 1976 SC 208; 1987 SCMR 1543; 1992 MLD 1280; 1999 PLC (C.S.) 1539; Mrs. M. N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; Messrs Fariclsons Limited, Karachi and another v. Government of Pakistan and another PLD 1961 SC 537; Abdul Rehman v. Collector and Deputy Commissioner, Bahawalnager and others PLD 1964 SC 416; Abdul Ala Maudoodi v. Government of West Pakistan) PLD 1964 SC 673; University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; Khaliluz Kaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR .1299; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2234; United Bank Limited v. Ahsan Akhtar 1989 SCMR 68; 1999 SCMR 894; 1999 SCMR 1526; PLD 1999 SC 1106; Mahmood Hussain v. Pakistan International Airlines and others PLD 1990 SC 666; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi 1989 PLC (C.S.) 549; The Engineer-in-Chief Branch through Ministry of' Defence, Rawalpindi and another v. Jalaluddin PLD 1984 SC 170; PLD 1992 SC 207; Abdul Haque Indhar and others v. Province of Sindh through Secretary, Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907; 2001 SCMR 565 and Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd and others 2005 PLC (C.S.) 318 ref.

Riaz M. Malik for Appellant.

Masood Ahmed Khan, for Respondents.

Date of hearing: 6th September, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1224 #

2006 P L C (C.S.) 1224

[Federal Service Tribunal]

Before Qazi Mohammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD JAVED

Versus

PAKISTAN RAILWAYS through Chairman and others

Appeal No.498(K)(CS) of 2002, decided on 19th May, 2006.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after issuing him show-cause notice along with statement of certain charges against him---Regular departmental inquiry was dispensed with in the show-cause notice and only on the basis of reply to the show-cause notice of appellant, he was removed from service vide impugned order and without any personal hearing---Serious allegations of fact levelled against appellant needed to be inquired into through a regular departmental inquiry, but competent ,Authority did not consider such fact and arbitrarily dispensed with the regular departmental inquiry---Appellant was also condemned unheard as no opportunity of personal hearing was provided to him which was absolutely necessary in the case of any adverse order passed against him---Allowing appeal, impugned order of removal from service passed against appellant, was set aside with direction to employers to hold de novo disciplinary proceedings against appellant on same charge providing him full opportunity of personal hearing, accordingly.

Sanaullah Noor Ghauri for Petitioner.

D.R. Mujahid Ali Hashmi L.A. for Respondents.

Date of hearing: 25th March, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1259 #

2006 P L C (C.S.) 1259

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ILLAHI BAKHSH TUNIO

Versus

SECRETARY MINISTRY OF INTERIOR GOVERNMENT OF PAKISTAN ISLAMABAD and 14 others

Appeal No. 291(K)(C.S.) of 2002, decided on 20th July, 2006.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7 & 8---Promotion---Eligibility---Appeal to Service Tribunal---Appellant was aggrieved by Gazette Notification whereby respondents' who' were junior to appellant in service, were promoted to the post of Assistant Directors (B-17), ignoring appellant and not considering his case for promotion in the meeting of Departmental Promotion Committee, though he was eligible for said promotion---Promotion of appellant was withheld for want of his A.C.Rs. and due to pendency of disciplinary proceedings against him---Appellant had already submitted his A.C.Rs. subsequently and he was also exonerated by the Service Tribunal in disciplinary proceedings against him in appeal; in circumstances, there should be no impediment in considering case of appellant for his promotion---Authorities were directed to consider case of appellant for his promotion to next higher rank, if he was otherwise eligible for promotion---Appeal was accepted accordingly.

Sanaullah Noor Ghauri for Appellant.

Asif Hussain Mangi, State Counsel for the Respondents.

Date of hearing: 18th July, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1274 #

2006 P L C (C.S.) 1274

[Federal Service Tribunal]

Before Jehan Zaib Burki and Rashid Mahmood Ansari, Members

ALI AFSAR KHAN

Versus

CHAIRMAN STATE LIFE INSURANCE CORPORATION and another

M.P. No.1738/2004 in Appeal No.946 (R)CE/2003, decided on 18th November, 2005.

Civil service---

----Pension---Pensionary benefits, calculation of---Employee had filed petition for implementation of judgment of Service Tribunal in letter and spirit and to set aside order of employer Corporation whereby an amount had been determined as recoverable from employee---According to revised pay structure for officers of employer Corporation as announced vide Circular dated 12-2-2001, pensionary benefits were required to be calculated on the basis of pay as on 31-12-1999 whereas under State Life Employees (Pension) Regulations, 1986, pension was required to be calculated on the basis of last pay or emoluments drawn by the employee---Spirit of judgment sought to be implemented was that by directing employer Corporation to compute pensionary benefits under State Life Employees (Pension) Regulations, 1986, employee would get enhanced pensionary benefits since same were to be based on last pay drawn---Employer Corporation, however maintained that last pay drawn, had to be computed on the basis of pay scales of 1998 instead of pay scales of 2001---Validity---If that was so, employer Corporation should have referred to that issue in their parawise comments on the main appeal or when appeal was heard---At such belated stage no new issue could be raised by employer Corporation---Revised pay structure and fringe benefits had been introduced by employer Corporation vide letter dated 12-2-2001 and employee had drawn his salary and other benefits on the basis of new pay scale up to date of his superannuation on 18-4-2003 and it was a legitimate expectation of employee that in the light of judgment of Tribunal, his pensionary benefits would be computed on the basis of last pay actually drawn by him rather than a notional pay that he would have drawn under pay scales of 1998---Since employer Corporation had at no stage raised issue of applicability of pay scales of 1998, they had forfeited the right of applying the pay scales of 1998, to determine the pensionary benefits of employee---Impugned order was set aside, with direction to employer Corporation to pay pensionary benefits to employee after calculating the same in terms of State Life Employees (Pension) Regulation, 1986, on the basis of last pay drawn by employee.

PLD 1992 SC 207 and PLD 2001 SC 980 ref.

Abdul Ghafoor Mangi, for Petitioner.

Rao Fazal Khan, for Respondent.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1288 #

2006 P L C (C.S.) 1288

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ALI AFSAR KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Government

of Pakistan and another

Appeal No.600(K)(CE) of 2003, decided on 14th April, 2006.

Life Insurance (Nationalization) Order (10 of 1972)---

----Arts. 14(3) & 25---Service Tribunals Act (LXX of 1973), S.4---Free medical facilities to retired officer---Denial of---Appeal---Appellant who was retired after completing service of 30 years, claimed free medical facilities being a retired officer, but his claim was denied by authorities---Validity---Serving officers of Corporation were provided free medical attendance and treatment in accordance with inter-office communication of the corporation---Thereafter, Recommendations of Pay and Pension Committee were enforced under the orders of the President of Pakistan; accordingly pay scales were revised and medical facilities to the retired officers of Nationalized Insurance Corporations, including the employer Corporation of appellant, were allowed like that of the setting officers---Periodical revision of allowances, fringe benefits and perquisites, however, were made subject to approval of Prime Minister, but Board of the Corporation revised the medical facilities to its retired officers, without obtaining approval of Prime Minister vide disputed circular---Not only medical facilities were revised thereby but same were revised downward to the detriment of the retired officers, who, after the life long service and due to old age, needed even better facilities than the serving officers---Employer-Corporation being a commercial organization, had to protect and advance the interest of its Policyholders, but for that it could not be allowed to divest/deprive retired officers of the legitimate facilities allowed to them---Employer-Corporation was found to follow the direction of Central Government as per Art.25 of Life Insurance (Nationalization) Order, 1972---Appeal of appellant though was time-barred, but as same involved financial facilities, provisions of law of limitation, would not strictly apply to case of appellant---Delay, if any, seeking medical facilities by appellant, was condoned by the Tribunal---Appellant was entitled to medical facilities like serving officers of the Corporation---Appeal was allowed with direction to The employer-Corporation to withdraw Circular in dispute within specified period and allow appellant medical facilities like that of serving officers---Appellant would also be entitled to reimbursement of expenses he incurred towards medical facilities since date of his retirement.

1994 PLC (C.S.) 400 and PLD 2003 SC 724 ref.

A. G. Mangi for Appellant.

Ghulam Ali for Respondent No.2.

Date of hearing: 14th March, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1326 #

2006 P L C (C.S.) 1326

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

Syed KHURSHEED ANWAR

Versus

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

Appeal No. 130(K) CS/2002, decided on 10th April, 2006.

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

----Rr. 3, 4(1)(b)(iv), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and holding inquiry against him on allegations of misconduct, corruption and mis-appropriation etc.---Appellant did not press his appeal against order of his dismissal on merits, but he urged the Service Tribunal to modify his punishment of dismissal from service to his compulsory retirement, so that he might be able to get pensionary benefits---Appellant had contended that two other persons were also involved with him on same charges, but one of them had expired during pendency of his appeal, while other had been compulsorily retired by the Authorities and appellant alone had been awarded harsher punishment of dismissal from service---Appellant had claimed that keeping all three persons at par and in the interest of justice, his punishment of dismissal from service be also converted to that of compulsory retirement---Validity---Appellant had played role in the fraud and misappropriation of Government money 'as he had misused his delegated power of sanctioning payment by communicating fictitious sanction on bogus bills prepared by deceased accused for payment whereof accused employee who had been compulsorily retired, was responsible---Government money fraudulently obtained by said three persons was distributed by them among themselves, but on the fraud having been detected, they deposited back said criminally misappropriated money into Government account---Case being of extreme dishonesty, all the three delinquents deserved punishment of dismissal from service, but for awarding lesser penalty of compulsory retirement from service to one of the three accused employees, there did exist some justification as he was helpful in unearthing the entire fraud; on that account penalty of dismissal of appellant from service, could not be converted to his compulsory retirement as that would amount to paying premium for the fraud which, but for him, could not have taken place---Request of appellant to modify his penalty of dismissal from service and convert it to compulsory retirement, could not be acceded.

Water and Power Development Authority, WAPDA House, Lahore and 2 others v. Muhammad Yousaf, Test Inspector, 1997 PLC (C.S.) 424; Abdul Wahid v. The General Manager and others 2004 PLC (C.S.) 90 and Fida Hussain Javed and 3 others v. Director Food, Punjab and others 2004 SCMR 62 ref. .

Abdul Sattar Mughal, for Petitioner.

Asif Mangi along with Javed Qamar Najmi departmental representative for Respondents.

Date of hearing: 25th February, 2006.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1346 #

2006 P L C (C.S.) 1346

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD YOUNIS

Versus

FEDERATION OF PAKISTAN and others

Appeal No.324(K)(CS) of 2003, decided on 7th November, 2005.

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

----Ss. 3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service--Appeal---Appellant serving as driver, was dismissed from service on charge of theft of oil from goods train---Enquiry though was held against appellant, but he was neither associated with enquiry proceedings nor allowed opportunity to cross-examine witnesses produced against him---Validity---Person facing enquiry had right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination---Enquiry proceedings and consequential order regarding dismissal of appellant, in circumstances suffered from inherent legal defect---Order of dismissal of appellant, could not be sustained---Appeal was remanded with direction to the respondent to reinstate appellant and hold de novo disciplinary proceedings against him on the same allegations/charges, within specified period---Question of back benefits would depend upon the result of enquiry.

1997 SCMR 1073; 2001 SCMR 256; PLD 2004 SC 441; 2004 SCJ 455; 2003 PLC (C.S.) 1303; 2000 PLC (C.S.) 857; 1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222 and 1985 PLC (C.S.) 245 ref.

Sanaullah Noor Ghauri for Appellant.

Muhammad Latif Saghar for Respondents.

Date of hearing: 13th October, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1352 #

2006 P L C (C.S.) 1352

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

Mrs. LUBNA ASIF AYUB

Versus

PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN and 2 others

Appeal No.143(K) CS of 2000, decided on 23rd January, 2006.

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

----Rr. 3(b), 4(1)(a)(ii), 5, 6 & 7-Service Tribunals Act (LXX of 1973), S.4---Imposition of minor penalty of withholding one annual increment for one year---Appeal---Initially penalty of compulsory retirement from service was imposed on appellant, but in departmental appeal same was modified into withholding of one increment for a period of one year---Penalty was imposed on appellant after issuing him show-cause notice and charge-sheeting him on certain allegations of misconduct and corruption etc.---Record had shown that appellant had an unblemished service for about nine years---Appellant was placed under suspension along with other officer and her suspension was published in the press---Senior officer of BPS-20 held a very detailed inquiry into the allegations against appellant, but as per his inquiry report none of the charges were proved against her---Authorities had not only grilled appellant for a petty misconduct, if any, but they had played hide and seek with her due to which she suffered mental torture and agony over the years; it appeared that there was a mindset to punish appellant, come what may although case of appellant, did not strictly. fall within the phrase 'double jeopardy', but it could be said that it was a case of vexing appellant not only twice, but thrice---Allowing appeal, impugned order of withholding one increment of appellant for one year was set aside and she was held entitled to back-benefits of the increment which were withheld by the authorities.

Syed Shah Sawar and others v. Karachi Electric Supply Corporation Limited and others 2005 PLC (C.S.) 614; NLR 1990 TD 281 and The Director General (Field), Agricultural Department, Lahore and another v. Haji Abdul Rehman 1989 SCMR 1224 ref.

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

----Rr.5, 6 & 7---General Clauses Act (X of 1897), S.24-A---Inquiry proceedings---Competent Authority was not bound to accept the findings of the earlier inquiry report and it had the power to appoint a new Inquiry Officer, but it could do so only for some tangible reason to be recorded in the order of de novo inquiry and appointing new Inquiry Officer---Competent Authority, for doing so, was bound to give reasons in accordance with provisions of S.24-A of General Clauses Act, 1897---Second inquiry by another Inquiry Officer could only be resorted to by Authorities for very strong reasons to justify same---Authorized officer was required to state why and how he disagreed with the findings of the first Inquiry Officer.

PLD 1982 Lhr. 525 and PLC 1985 (C.S.) 711 ref.

Sirajul Haq Memon for Appellant.

S.M. Iqbal Shah for Respondent.

Date of hearing: 3rd December, 2005.

PLCCS 2006 FEDERAL SERVICE TRIBUNAL 1364 #

2006 P L C (C.S.) 1364

[Federal Service Tribunal]

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

MUHAMMAD ASLAM KHAN

Versus

THE STATE and another

Appeal No.457(K)CE/2000, decided on 27th May 2006.

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

----R. 4(1)(b)(i)---Service Tribunals Act (LXX of 1973), S.4---Reversion to lower post---Appeal---Appellant serving as General Manager in the establishment was reverted to the post of Deputy General Manager with immediate effect on the ground that his performance during probationary period had not been found upto the mark---Authorities had failed to produce any document in support of their claim---Neither any displeasure note was available on record nor any document was produced to support the claim that performance of appellant was not satisfactory during probation period---Record did not show that personal hearing had been extended to appellant before inflicting major penalty of said reversion---No documentary evidence had been brought on record which could have easily been done by producing letter calling appellant for personal hearing---Appellant, in circumstances had been condemned unheared---Major penalty of reversion awarded to appellant, in circumstances was without any legal justification and had no force---Allowing appeal impugned order of demotion passed against appellant was set aside by Service Tribunal with direction to authorities to restore the position of appellant as General Manager with all back-benefits.

Appellant in person.

Moin Azhar Siddiqui for Respondents.

Date of hearing: 23rd May 2006.

Federal Shariat Court

PLCCS 2006 FEDERAL SHARIAT COURT 49 #

2006 P L C (C.S.) 49

[Federal Shariat Court]

Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ

Syed SHABBIR HUSSAIN KAZMI and others

Versus

GOVERNMENT OF PAKISTAN and others

Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/L, 7/L, 9/L of 1993; decided on 10th October, 2005.

(a) Bonded Labour System (Abolition) Act (III of 1992)---

----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10, 11, 14, 15 & 18- Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.21 5, 6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions of Islam---Validity---Held, impugned definitions in 5.2, Bonded Labour System (Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court provided guidelines for the purpose and directed that copy of the present judgment be forwarded to the specified authorities.

The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory dispensation of vital importance as it was intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc.

The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line with directives of the two judgments ofthe Supreme Court. By purporting to challenge the vires of the impugned provisions of the Act what the petitioners in the present case, really sought was the effacement of the binding effect of the two judgments, which was not permissible in law.

The judgments of Supreme Court declaring the law on the subject could not be called in question by a person or by a batch of persons though he/they might not be party to the judgments.

Supreme Court decision was binding on all persons though they were not party before Supreme Court.

Even an obiter in a judgment by Supreme Court carries binding effect.

A perusal of the said judgments of the Supreme Court would show that these indeed protected/upheld the following fundamental rights of the labourers:--

(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

(vii) Freedom of trade, business or profession---Article 18.

Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandment.

In Islam a workman is not entitled to anything until his work be finished.

Forced labour is repugnant to Islam in the extreme.

How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator.

Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment.

Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind.

Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment.

Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails.

Contention of the petitioner that the workers employed in brick kiln performed their duties under contract with the owners which was with reference to the practice of payment of advance amount to them by way of peshgi, is wholly without force.

Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount.

It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefor.

Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam.

The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages.

Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages.

Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular.

Likewise the impugned sections 5, 6, 7, 8 and 11 of the Act cannot be held to be repugnant to the Injunctions of Islam, as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations.

Federal Shariat Court, however, observed that the object for which the Act was passed could not be achieved so far. Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press.

Perusal of the act would show that under section 9 the Provincial Government had been conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of the Act are properly enforced.

Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by securing and protecting his economic interests.

Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments.

It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kilt labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance Committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed the Court.

It is for the Government functionaries to ensure the due and purposeful enforcement of the Act, in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated.

A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry.

As late as in 2004 Bonded Labours Research Forum, in collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved.

Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country.

Enforcement of Fundamental rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139; PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC -179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol.6, P. 120

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

----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment; even an obiter in a judgment by Supreme Court carries binding effect.

Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621;. Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref.

----Dignity of labour in Islam.

28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al

Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/1- of 1993 and 36/L, 37/1, of 1992).

S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992).

Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993.

Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993).

Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G. Balochistan (in Sh.P. No.9-L of 1993).

Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993).

Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P. No.9-L of 1993).

Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993).

Miss Asma Jahangir: Amicus Curiae.

Zafarullah Khan for Pakistan Institute of Labour Education and Research.

Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005.

High Court Azad Kashmir

PLCCS 2006 HIGH COURT AZAD KASHMIR 822 #

2006 P L C (C.S.) 822

[High Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, CJ

NADEEM IQBAL QURESHI and 9 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 3 others

Writ petition No.103 of 2006, decided on 21st June, 2006.

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

----S. 44---Azad Jammu and Kashmir Deputy Secretaries Secretariat Recruitment Rules, 1978, R.5---Writ petition---Promotion---Claim of petitioners was that non-petitioners were not following R.5 of Azad Jammu and Kashmir Deputy Secretaries Secretariat Recruitment Rules, 1978 and were promoting Deputy Secretaries on basis of seniority-cum-fitness, while it was incumbent upon them to follow R.5 of the Rules---Petitioners had prayed that a writ of mandamus be issued against non-petitioners and they be directed to act upon said Rules with a declaration that posts of Deputy Secretaries be filled in by selection on merits through Public Service Commission and not by promotion on the basis of seniority-cum-fitness---Contention of non-petitioners was that matter pertained to terms and conditions of service and an appeal could be filed before Service Tribunal and that writ petition filed by petitioners was not maintainable---Validity---Though no provision existed under which petition could be filed before Service Tribunal for implementation of Rules, but where no final order had been passed, concerned civil servant should wait till passing of such order, then he could challenge the same before Service Tribunal, instead of approaching the High Court for declaration or injunction regarding matter which fell within purview of terms and conditions of his service, seniority, promotion, etc.---Petitioners, in circumstances, had to wait for an order passed for promotion derogatory to R.5 of Azad Jammu and Kashmir Deputy Secretaries Secretariat Recruitment Rules, 1978---When any such order was passed, then they could file an appeal before Service Tribunal, where they could claim promotion on basis of Azad Jammu and Kashmir Deputy Secretaries Secretariat Recruitment Rules, 1978---Writ petition being not maintainable, was dismissed.

1999 PLC (C.S.) 1439 foil.

M. Tabassum Aftab Alvi for petitioners.

Abdur Rashid Abbasi for Non-petitioners/Respondents.

Date of hearing: 21st April, 2006.

PLCCS 2006 HIGH COURT AZAD KASHMIR 831 #

2006 P L C (C.S.) 831

[High Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, CJ

Sardar LIAQAT HUSSAIN

Versus

AZAD JAMMU AND KASHMIR UNIVERSITY MUZAFFARABAD through Registrar and 4 others

Writ petition No.23 of 2004, decided on (sic) June, 2006.

Azad Jammu and Kashmir Employees (Efficiency and Discipline) Statute, 1988---

----Rr. 4 & 6(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Compulsory retirement---Punishment of compulsory retirement was imposed on petitioner after issuing show-cause notice on allegation that he entered into the office of Registrar of University, abused him, threatened him and created problem of law and order---Said allegation was a question of fact, which required detailed inquiry and that could not be done without recording evidence---Authorized Officer was supposed to have appointed Inquiry Officer or constituted an Inquiry Committee under R.6(2) of Azad Jammu and Kashmir Employees (Efficiency and Disciplinary) Statute, 1988, but that had not been done---Authorized Officer did not record statement of Registrar whom petitioner had allegedly abused---No chance for cross-examination was provided to petitioner---Inquiry, in circumstances, was not conducted by Authorized Officer properly---Writ petition was accepted and findings of Authorities, were declared to have been passed without lawful authority.

2002 SCR 259 ref.

Abdur Rashid Abbasi for petitioner.

Farook Hussain Kashmiri for Non-Petitioners/Respondents.

PLCCS 2006 HIGH COURT AZAD KASHMIR 1336 #

2006 P L C (C.S.) 1336

[Azad J&K (High Court)]

Before Ghulam Mustafa Mughal, J

BRIGADIER (RETD.) MUHAMMAD SAEED. AKHTER, CHAIRMAN PSC and 5 others

2006 P L C (C. S.) 77

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ

SHER MUHAMMAD KHAN and others

Versus

THE SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Constitution Petitions Nos.D-1369 and D-1530 of 2004, decided on 23rd August, 2005.

Constitution of Pakistan (1973)---

----Arts. 199, 25 & 27---Constitutional petition---Civilian officers working with Pakistan Army were debarred by Establishment Division and Defence Division of Government of Pakistan to participate in Section Officers Promotional Examination, 2004---Validity---Treatment meted out to the petitioners was discriminatory on the face of it because in a democratic dispensation and a society behaving in rule of law there should be no arbitrary policy, decisions/administrative orders which were discriminatory in nature---All persons placed similarly were entitled to be treated in similar manner---High Court, in circumstances, declared the orders passed by both the departments of the Government, holding the employees working in the Armed Forces Headquarters and its lower formations as not eligible to appear in the Section Officers Promotional Examination, to be discriminatory being violative of Arts. 25 & 27 of the Constitution and directed the concerned departments jointly and severally to treat the petitioners eligible to appear in the Section Officers Promotional Examination by treating them at par with the employees of the Office of Wafaqi Mohtasib Secretariat, Federal Service Tribunal, Federal Public Service Commission and Intelligence Bureau---Public Service Commission was directed to declare the result of all the petitioners immediately and if they qualified the examination to treat them at par with other successful candidates.

Sher Muhammad Khan (in person in C.P. No. D-1369 of 2004).

Mahmood Hassan for Petitioners (in C.P. No.D-1530 of 2004).

Sajjad Ali, D.A.-G. alongwith Syed Asghar Ali Shah, Section Officer, Establishment Division.

Date of hearing: 23rd August, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 88 #

2006 P L C (C.S.) 88

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Maqbool Baqar, J

Lt.Cdr., (Rtd.P.N.) ENGINEER ABDUL AZIZ NAREJO

Versus

KARACHI PORT TRUST and 2 others

Constitutional Petition No. 1266-D of 2003, decided on 20th April, 2005.

Service Tribunals Act (LXX of 1973)---

----S. 4(1), Proviso (a)---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Petitioner seeking direction to the authorities to decide his Departmental appeal---Validity---Such direction could not be issued as S.4(1) read with proviso. (a) of Service Tribunals Act, 1973, had clearly stipulated that even appeal against original order was maintainable provided one preferred to a Departmental Authority had remained undecided for a period of 90 days---Petitioner was entitled to move Service Tribunal within 120 days from date he preferred a Departmental appeal---Alternate remedy was available to petitioner under law which had ousted jurisdiction of High Court under Art.212 of the Constitution---Constitutional petition could not be entertained, in circumstances.

Ansari Abdul Latif for Petitioner.

S. Hassan Azhar Rizvi, and Nadeem Azhar Siddiqui, DAG on Court notice for Respondents.

Date of hearing: 20th April, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 158 #

2006 P L C (C.S.) 158

[Karachi High Court]

Before Faisal Arab, J

Dr. AMJAD WAHEED

Versus

NATIONAL INVESTMENT TRUST LIMITED through Chairman/Chief Executive

Suit No.198 of 2003 and C.M.A. No.8742 of 2004 decided on 23rd October, 2005.

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

----S.2-A---Civil Procedure Code (V of 1908), O. VII, Rr.2 & 11---Constitution of Pakistan (1973), Art.212---Suit for recovery of balance amount---Rejection of plaint---Plaintiff filed suit for recovery of balance amount claimed by him as unpaid bonus---Defendant had moved application under O.VII, R.11, C.P.C. seeking rejection of plaint on the ground that plaintiff being a civil servant, High Court had no jurisdiction to try the suit---Contention of defendant was that plaintiff's claim for bonus had arisen from the terms and conditions of his service and that under provisions of S.2-A of Service Tribunals Act, 1973 plaintiff would be deemed to be a civil servant and suit filed by him was barred under Art.212 of the Constitution---Plaintiff who though admitted that his claim had arisen from his terms and conditions of service, but had contended that S.2-A of Service Tribunals Act, 1973 was not applicable to his case as he was no more in employment of the defendant because he was employed for a period of three years only which term had expired before filing of the suit and he could not be treated as a civil servant---Validity---According to definition of "civil servant", as defined in S.2(a) of Service Tribunals Act, 1973, even a person who had been a civil servant in the past, was also to be treated as "civil servant"---Plaintiff being a civil servant, his remedy lay before Service Tribunal---Application filed by defendant under O.VII, R.11, C.P.C. for rejection of plaint was allowed and plaint was rejected.

(b) Administration of justice---

----Judiciary consisted of various types of Courts, with the highest at the apex as ultimate Court of appeal---Out of that pyramid there were other Special Tribunals---Functions of each Court or Tribunal, were defined under Constitution of Pakistan or laws made under the Constitution---Constitution or the laws, as the case may be, also specified the subjects with which those Courts or Tribunals were to deal with---Under such multiple system, limitations were inherent so that one Court or Tribunal Could not encroach upon the defined field or subject of the other---Functions of each Court or Tribunal were circumscribed within the four corners of their defined jurisdiction.

---Preamble, & S. 2(a)---Constitution of Pakistan (1973), Art.212---Jurisdiction of Service Tribunal---Object of Legislature that there had to be exclusive forum for dealing with the matters out of terms and conditions of service of a civil servant, was evident from the specific provision that had been made in the Constitution in form of its Art.212---From the Preamble of Service Tribunals Act, 1973 also it was quite evident that in matters of terms and conditions of service of a civil servant, the Tribunal would exercise exclusive jurisdiction---Civil servant's grievances arising from his terms and conditions of service, be it statutory or contractual, were to be brought before Service Tribunal for adjudication.

Yousuf Ali Saeed for Plaintiff.

Karim Hasan for Defendant.

Date of hearing: 14th November, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 170 #

2006 P L C (C.S) 170

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa, K, Leghari, JJ

SHAMSUDDIN QAZI

Versus

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

Civil Petition No. D 340 of 1996, decided on 25th May, 2005.

Constitution of Pakistan (1973)---

--Arts. 25 & 199---Constitutional jurisdiction---Scope---Civil service---Discrimination---Re-allocation of service group---Matter not relating to terms and conditions of service---Grievance of petitioner was that on availability of vacancy in Income Tax Group, he was entitled to be re-allocated to Income Tax Group, as in similar circumstances others were re-allocated---Plea of the petitioner was that declining re-allocation to him was violative of the provisions of Art.25 of the Constitution and against the persistent practice---Validity---Authorities were not able to controvert the factual position that there was a consistent practice of re-allocation of groups to different candidates after the vacancies were caused---Petitioner was not treated at par with other incumbents and was discriminated against on account of bureaucratic wrangling---Matter of re-allocation of service group did not fall within the ambit of the jurisdiction of Service Tribunal as the same was not covered by terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution was not attracted---Petition, was allowed in circumstances.

Fakhar-uz-Zaman Ali Cheema v. Government of Pakistan through Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad and 2 others 2001 CLC 1277; S. Irshad-ur-Rehman v. Government of Pakistan through Chairman, Central Board of Revenue, Islamabad and 3 others 1993 PLC (C.S) 39; Amjad Latif v. C.B.R. and others 1996 CLC 1422; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik 2004 SCMR 158; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Dr. Neelam Hussain v. Dr. Razia Parveen Qureshi and 2 others 2003 PLC (C.S.) 1222; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 and Muhammad Ismail Solangi v. Deputy Inspector General, Pakistan Railways Police, HQS Office Lahore and another 2002 PLC (C.S.) 255 ref.

Faroogh Naseem for petitioner.

Hakim Ali Siddiqui, Advocate/Standing Council on behalf of D.A.G. for Respondent No.1 along with Mr. Asghar Ali Shah, Section Officer Establishment Division, Govt. of Pakistan, Islamabad.

Syed Muhammad Iqbal Shah, for Respondents Nos.2 and 3.

Date of hearing: 25th May, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 183 #

2006 P L C (C.S.) 183

[Karachi High Court]

Before Muhammad Moosa K. Leghari and Shamsuddin Hisbani, JJ

ABDULLAH

Versus

GOVERNMENT OF SINDH through Secretary Health Services and 2 others

Civil Petitioner No.D-158 of 2005, decided on 27th October, 2005.

Constitution of Pakistan (1973)---

-----------Arts. 4, 18, 25 & 199---Declaration of Human Rights, Art.7---

Constitutional jurisdiction of High Court---Scope---Civil service---Irregular appointment made by the Authorities was violation of Fundamental Rights and Art.7 of the Declaration of Human Rights---Petitioner, in the present case, had applied for the job and was selected---No disqualification of the petitioner had been brought on record by the authorities on account of which he was deprived of the job---Such action of the Authorities was unjust, arbitrary, contrary to the recruitment rules and violative of Fundamental Rights enshrined in the Constitution, and thus was of no legal effect---High Court directed the authorities to immediately take steps to rectify the wrong and make appointments in accordance with constitutional requirements and declare, the impugned action of depriving the petitioner of the job to be without lawful authority---Principles.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 and 1996 SCMR 1349 fol.

Muhammad Ali Vistro for petitioner.

Masood A. Noorani, Addl. A.A.-G. Sindh.

Date of hearing: 27th October, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 200 #

2006 P L C (C.S.) 200

[Karachi High Court]

Before Muhammad Mujeebullah, Siddiqui and Muhammad Moosa K. Leghari, JJ

ABDUL HAMEED

Versus

SINDH AGRICULTURE UNIVERSITY, TANDO JAM through Vice-Chancellor and 5 others

Civil Petition No.D-399 of 2004, decided on 27th April, 2005.

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

----Art. 199---Constitutional petition---Verbal orders---Scope---Petitioner was appointed as Naib Qasid and after performing duty for one month, he was informed verbally that his appointment letter had been cancelled---Authorities had conceded that there was nothing on record to show that any order of cancellation of appointment was served on the petitioner or any disciplinary proceedings were initiated against him for remaining absent from duty, consequently no termination order or any order imposing any penalty against petitioner was passed---Effect---Appointment of petitioner was regularized who joined services as admitted by the authorities and thereafter he became victim of high handedness of the authorities who inspite of being educationists acted in a manner which was not expected from any reasonable person---Petitioner had not been dealt with in accordance with law and the act of authorities was in flagrant violation of law, rules and regulations and against the norms of decency and morality---No room for verbal orders in the realm of public administration; every order had to be passed in writing and the verbal orders had no validity---High Court directed the authorities to allow the petitioner to join his services as Naib Qasid, on regular basis---High Court further directed the authorities to pay one month's salary to petitioner for the period, the petitioner performed duties prior to the verbal order directing him to relinquish the duties---Petition was allowed accordingly.

(b) Constitution of Pakistan (1973)-

----Arts. 199 & 212---Constitutional petition---Maintainability---Office' objection---Verbal orders for cancellation of appointment letter--Jurisdiction of Service Tribunal---Scope---Petitioner was appointed as Naib Qasid and after performing duty for one month, he was informed verbally that, his appointment letter had been cancelled---Objection was raised by the office and also by authorities that present constitutional petition was not maintainable as the petitioner should have approached the Service Tribunal---Validity---No final order enabling the petitioner to approach Service Tribunal existed; in fact no order had been communicated at all to the petitioner with the result that he was not in a position even to make representation to competent authorities---Office objection and objection raised by the authorities was overruled by High Court in circumstances.

Ghulam Muhammad Mughal for petitioner.

Muhammad Younus Behan for Respondents Nos. 1 to 5.

Masood A. Noorani A.A.-G for Respondent.

Date of hearing: 27th April, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 226 #

2006 P L C (C.S.) 226

[Sindh Subordinate Judiciary Service Tribunal]

Before: Muhammad Moosa, K. Leghari, Chairman and Rehmat Hussain Jafferi, Member

MEHMOOD AHMED

Versus

HIGH COURT OF SINDH through Registrar

Service Appeal No.33 of 2002, decided on 21st May, 2005.

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

----S. 3-B---Subordinate Judiciary Service---Adverse remarks---Expunction of---Appeal---Reporting Officer/District and Sessions Judge while recording A.C.R. of the appellant for the relevant year, had recorded that attitude of appellant, who was working as P.S.I. as well as Assistant Public Attorney, towards Advocates and litigant public, was discourteous; he did not dispose of even a single case on merits; he was alleged to be illegally using a motor car, which was the case property and that on various occasions he refused to pass orders on the surety documents and purposely left the Court premises during office hours without passing orders thereon---Appellant was not enjoying good reputation and was reportedly playing in the hands-of Court Moharar---Pen picture of the appellant had further revealed that he was provided counselling, inasmuch as during inspection, he was pointed out his weak points by Reporting Officer and he was advised to improve, but with no result, as he did not respond to the counselling---Appellant was provided a personal hearing, but he could not advance any plausible explanation for expunction of remarks recorded in his A.C.R. for the relevant year---Very strong and valid reasons supported by specific instances regarding conduct of appellant were assigned by Reporting Officer and he was provided adequate opportunity to submit his explanation and to vindicate his position vis-a-vis the adverse remarks, but he could not put forward any thing in rebuttal---Representation of the appellant in circumstances was rightly rejected---Mere delay in communication of adverse remarks in A.C.Rs. would not be a valid ground to expunge the same---Appeal against adverse remarks recorded in the A.C.R., was dismissed, in circumstances.

2004 PLC (C.S.) 236; Government of Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Syed Tahir Hussain Sherazi v. The Governor of the Punjab 1990 SCMR 1510 and Lahore High Court Lahore through Registrar v. K.M. Sohel 2001 PLC (C.S.) 1253 ref.

Abrar Bukhari for Appellant.

Ahmed Pirzada, A. A. G for Respondent.

Date of hearing:16th April, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 265 #

2006 P L C (C.S) 265

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Laghari, Chairman and Justice Rehmat Kussain Jafferi, Member.

MUMTAZ ALI RAJPAR

Versus

REGISTRAR HIGH COURT OF SINDH, KARACHI

Service Appeal No.5 of 1993, decided on 21st May, 2005.

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

----S. 3-B---Sindh Civil Servants (Efficiency and Discipline), Rules, 1973, Rr. 3(1)(b) & 4---Subordinate Judiciary Service---Adverse remarks, expunction of---Appeal to Service Tribunal---Appellant had sought expunction of adverse remarks recorded in his A.C.R. for relevant year, contending that communication of adverse remarks to him beyond period of 90 days was illegal and that said remarks were not substantiated by any material---Contention of appellant with regard to delay in communication of adverse remarks, was repelled because mere delay in communication of adverse remarks in A.C.R., would not be a valid ground for expunction of same---Representation submitted by appellant was given due and proper consideration and appellant was afforded an opportunity of personal hearing---Adverse remarks recorded in A.C.R. of appellant, were based on material which was available with ' Reporting Officer as well as countersigning officer---Specific complaint was available on record about integrity of the appellant---Merely because a lenient view was taken in disciplinary proceedings against appellant earlier, would not entitle him to have a clean slate as far as remarks in his A.C.R. were concerned---Appellant having been afforded ample opportunity while disposing of his representation, order passed by competent authority with regard to adverse remarks, was just, equitable and legally valid, which did not call for interference of any sort.

2004 PLC (C.S) 236; Government of Punjab and another v: Ehsanul Haq Sethi PLD 1986 SC 684; Syed Tahir Hussain Sherazi v. The Governor of the Punjab 1990 SCMR 1510 and Lahore High Court Lahore through Registrar v. K.M. Sohel 2001 PLC (C.S) 1253 ref.

Abrar Bukhari for Appellant.

Ahmed Pirzada, A.-A.G. for Respondent.

Date of hearing: 16th April, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 272 #

2006 P L C (C.S.) 272

[Karachi High Court]

Before Nadeem Azhar Siddiqi, J

MEHBOOB RABBANI

Versus

HABIB BANK LIMITED

Suit No.539 of 1993, decided on 17th January; 2006.

Master and servant---

----Wrongful dismissal of servant on allegation of misconduct---Mode of proof---Suit by servant for damages and compensation on account of huge present and future economic loss and on account of undergoing irreversible phase of perpetual mental agony, physical stress and strain, social persecution, pangs of miseries and no likelihood of getting suitable job---Damages---Kinds of---Calculation of damages and compensation---Criteria and principles elucidated.

Plaintiff in the present case, was dismissed without any enquiry and the plaintiff was not afforded proper opportunity to defend himself. From the show-cause notice and the reply it was evident that the charges levelled against the plaintiff were factual and controversial in nature and, regular inquiry was a must. The holding of regular enquiry was a rule and dispensing with the regular inquiry was an exception. The enquiry could be dispensed with in terms of Service Rules by assigning cogent reasons. The dismissal order clearly showed that the requirement of inquiry was dispensed with, without application of mind and without assigning any reason. By not assigning the reasons the competent authorities had violated the provisions of Clause 24-A of the General Clauses Act, 1897. From the reading of the show-cause notice and its reply it was clear that facts in the case regarding alleged misconduct of the plaintiff was controversial and to resolve the controversy regular inquiry could not have been dispensed with. The plaintiff was also not provided sufficient opportunity to defend himself and no personal hearing was also provided to the plaintiff before passing the dismissal order. The dismissal from service in summary manner was in violation of principles of natural justice and could not be sustained. Employer, who itself has framed the rules for its domestic purpose, was bound to strictly follow the same. In case of awarding major penalty, a proper inquiry was to be conducted in accordance with law wherein full opportunity of defence was to be provided. In cases of misconduct, without an explicit order of dispensation of the requirement, of regular inquiry the departure from the normal rule was not legal.

From the evidence it was proved that General Manager of Master at New York was also dismissed but his appeal was accepted and he was allowed to resign. The similar treatment was not given to the plaintiff, which was not proper and amounted to discrimination.

Master, while adopting the policy of pick and choose, proceeded only against the subordinate official in departure to the rule of fair play and equal treatment in the matter of fixing the responsibility of all concerned.

The concerned quarters could ill-afford to meet but different treatment to two groups of its employees and that too when the dictates of law, justice and equity required exercise of power by all concerned to advance the course of justice and not to thwart the same. In the present case the master had not acted fairly by rejecting the appeal of the plaintiff and accepting the appeal of General Manager New York and by doing so the blaster had thwarted the cause of justice.

Dismissal of the plaintiff from service without affording him proper hearing was violative of principles of natural justice and the plaintiff was wrongly dismissed.

The defence of the defendant appeared to be general in nature and had been taken just to defeat the case of the plaintiff without any reasoning. The Defendant failed to justify as to why the plaintiff had not suffered due to wrongful dismissal. The plaintiff was right that his claim remained unrebutted by the Defendant. From the evidence it was established that the claim of the plaintiff with regard to his suffering due to wrongful dismissal was established.

Dismissal of the plaintiff from service was wrong, he was entitled to recover damages from the defendant. The plaintiff could claim special damages (pecuniary damages) and general damages (non-pecuniary damages). However, the plaintiff in the present case, had only demanded general damages (non-pecuniary damages). In an action of personal injury the damages were always divided into two main parts. First, there was what is referred to as special damage which, has to be specially pleaded and proved. This consisted of loss of earning and out of pocket expenses and is generally capable of substantially exact calculation. Secondly there is general damages, which in law implies and is not specially pleaded and cannot be capable of exact proof. This includes compensation for pain and suffering. What was claimed in the present case was the general damages which could not be specifically proved and any shortcoming in the plaint or in the evidence would not come in the way of the Court awarding damages. There was no hard and fast rule to calculate the quantum of compensation, as well as there is also no yardstick to measure the sufferings. The plaintiff had claimed damages on account of huge present and future economic loss and on account of undergoing irreversible phase of perpetual mental agony, physical stress and strain, social persecution, pangs of miseries and no likelihood of getting suitable job. The plaintiff no doubt must have sustained pecuniary loss on account of wrongful dismissal in the shape of earnings but no evidence was led in this regard. The plaint was silent in this regard. The plaintiff had also not led any evidence to prove the huge present and future economic loss. The plaintiff's dismissal from service was wrongful as the same was in violation of principles of natural justice. The plaintiff in the circumstances was entitled to damages for mental agony, physical stress and social persecution. This type of damages fell in the category of general damages for assessment of which no definite method was available. For computing/assessing damages consideration should be given to education, status in life, age and the position enjoyed during employment and his earnings while in employment of a person to whom injury had been caused. The plaintiff underwent harassment of unlawful dismissal during prime time of his life. The plaintiff was an officer of bank posted at New York and had enjoyed good reputation and social status and all of a sudden due to wrongful dismissal he lost everything. It was not believable that the wrongful dismissal had not caused any harm to Plaintiff. The plaintiff was entitled to the general damages. The contention of the defendant that the dismissal was right and the plaintiff was not entitled to any damages was misconceived. There was no hard and fast rule for grant of damages and there was also no yardstick to measure the damages caused to a person and then to determine the compensation. The amount though assessed, must not appear to be punitive in nature or exemplary. In case of wrongful dismissal of an employee on the ground of misconduct, the measure of damages may include an amount to compensate him for the injury caused to him by attributing misconduct.

Compensation could be granted where a wrong had been done to a party and the damages flow from that wrong the plaintiff was entitled to a fair compensation to be assessed by the Court. The criteria is that while granting the compensation the conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party. Plaintiff was entitled to the damages in the sum of Rs.50,00,000.

The mala fides of the defendant was also clear from the fact that in spite of mentioning in the dismissal letter that the legal dues, if any, were being worked out and he would be informed in due course of time, neither the dues were worked out nor the plaintiff was informed. The defendant had failed to prove that the plaintiff was not entitled to the relief claimed and no calculation was submitted to show that the plaintiff was not entitled to the amount claimed in the prayer clauses. This further established mala fides on the part of the defendant. The plaintiff was entitled to the amount claimed.

Suit of the plaintiff was decreed in the sum of Rs.50,00,000 on account of damages and the amount claimed in the prayer along with cost of the proceedings.

PIA v. Nasir Jamal Malik 2001 SCMR 934; PIA v. Shaista Naheed 2004 SCMR 316=2004 PLC (C.S.) 344; Abdul Qayoom v. V.D.G. Project Management Organization 2003 PLC (C.S.) 353; Syed Aziz ul Hasan v. Director Special Education Punjab 2003 PLC (C.S.) 36; Engineer Naraindas v. Federation of Pakistan 2002 SCMR 82; Sufi Muhammad Ishaq v. Metropolitan Corporation Lahore PLD 1996 SC 737 and National Bank of Pakistan v. Ghulam Muhammad Sagarwala PLD 1988 Kar. 489 fol.

Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Anisa Rehman v. PIA 1994 SCMR 2232; Habib Bank Ltd. v. S. Ziaul Hasan Kazmi 1998 SCMR 60; United Bank Ltd., v. S. Ahsan Akhtar 1998 SCMR 68; Principal Cadet College Kohat v. M. Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. ADBP PLD 1984 SC 194 distinguished.

P.I.A. v. Shaista Naheed 2004 SCMR 316=2004 PLC (C.S.) 344; Abdul Qayoom v. D.G. Project Management Organization 2003 PLC (C.S.) 353; PIA v. Nasir Jamal Malik 2001 SCMR 934; Muhammad Saleem v. ADBP 2003 PLC (C.S.) 36; Engineer Naraindas v. Federation of Pakistan 2002 SCMR 82 and Abdul Rehan Zulfiqar v. Secretary Education Govt. of Punjab 2004 PLC 9(C.S.) 524 ref.

Mehboob Rabbani in person.

Muhammad Tasnim for Defendant.

Date of hearing: 25th, 29th, November, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 291 #

2006 P L C (C.S.) 291

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Laghari, Chairman and Justice Khilji Arif Hussain, Member

RASHID HUSSAIN MANGI

Versus

Hon'ble REGISTRAR, HIGH COURT OF SINDH and another

Service Appeal No.16 of 2003, decided on 3rd September, 2005.

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

----S. 3-B---Sindh Civil Servants (Efficiency and Discipline) Rules, 1973), Rr. 4(1)(b)(iii), 5 & 6---Subordinate Judiciary Service---Misconduct---Removal from service---Appeal against---Appellant was removed from service after charge-sheeting him and giving him personal hearing on allegation of fleeing to his home without obtaining prior permission or getting leave sanctioned, and that appellant was in the habit of indulging in self-granted leave---Final show-cause notice issued to appellant was quite vague as it did not contain specific allegations levelled against him---Effect---Show-cause notice must contain specific and explicit allegations, mentioning therein minute details of misconduct allegedly committed by a civil servant---Purpose of the same was to enable the civil servant to explain his position with regard to allegations against him and to provide him an opportunity to rebut the charges which was not possible unless details of accusations were brought to the notice of delinquent official---Show-cause notice which was the basis of disciplinary action taken against appellant, was conspicuously lacking in the particulars as to on what occasions, appellant proceeded to his home town without obtaining prior permission and/or without getting his leave sanctioned---No specific instances were cited to show that appellant had formed alleged habit of indulging in self-granted leave---Show-cause notice served upon appellant being bereft of required particulars and appellant having been deprived of opportunity to properly explain his position, subsequent proceedings against him were vitiated---Order imposing penalty of removal from service upon appellant was set aside---Authorities, however, would serve a fresh show-cause notice upon 'appellant containing specific instances and details of alleged acts of omission and commission and would conduct further proceedings strictly in accordance with law within specified period.

Ghulam Rasool Mangi for Appellant.

Ahmed Pirzada, Addl. A.G. Sindh for Respondent.

Date of hearing: 3rd September, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 304 #

2006 P L C (C.S.) 304

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Laghari Chairman and Justice Khilji Arif Hussain, Member

SHAH NAWAZ MEERANI

Versus

DISTRICT AND SESSIONS Judge, Jacobabad and others

Service Appeal No.16 of 2004, decided on 3rd September, 2005.

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

----S.3-B---Sindh Civil Servants Act (XIV of 1973), S. 13---Subordinate Judiciary Service--Premature retirement on application of appellant---Application for withdrawal of application for premature retirement---Rejection of application---Appeal against---Application filed by appellant for premature retirement was processed and was accepted by the competent Authority---After five days of acceptance of application of appellant for premature retirement, appellant submitted application for recalling order of his premature retirement on the ground that after retirement he had been rendered jobless and was facing with acute financial problems and that he could be allowed to withdraw his application for retirement---Such request of appellant having been rejected, he had filed appeal against the same---Appellant had himself opted to seek premature retirement from service and his request was duly processed and option exercised by appellant was not only accepted, but it was notified and duly communicated to him---Appellant was debarred from retracting and getting out of it, especially when option of premature retirement was exercised by appellant voluntarily and without coercion.

Appellant in person.

Ahmed Pirzada Addl. A.G. Sindh.

Date of hearing: 3rd September, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 564 #

2006 P L C (C.S) 564

[Karachi High Court]

Before: Sabihuddin Ahmed CJ and Ali Sain Dino Metlo, J

KHAN M. MUTIUR RAHMAN and others

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others

Constitutional Petitions Nos.-D1761 of 2002, D-829 and D-1060 of 2005, decided on 6th April, 2006.

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

---Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Promotion---Supersession---Penal pro forma referring to the civil servant's performance evaluation throughout his career showed that in B.S.20 he was given 09 very good' and 02good' reports and there was not a single adverse or even average report---No penalty had ever been imposed on the civil servant and it was absolutely incomprehensible on what basis the Central Selection Board proceeded to observe that "he had a lack luster" career in BS.20 and three officers junior to him were recommended---Such an observation showed lack of bona fides ex facie and seriously impaired the credibility of the assessment by the Central Selection Board which required judicial intervention.

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

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), Preamble---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Bar of Art.212 of the Constitution---Extent---Execution of order of Service Tribunal, a forum of exclusive jurisdiction---Maintainability of constitutional petition under Art.199 of the Constitution---Principles---Whenever a valid and proper decision of a forum established by law was not being given effect, such omission on the part of government agencies . amounted to failure to perform a duty by law and in such cases, High Court always had the jurisdiction to issue a mandamus in terms of Art.199(l)(a)(i) of the Constitution.

A petition seeking to execute an order of a Service Tribunal of exclusive jurisdiction was not maintainable in view of the bar of jurisdiction of High Court under Article 212 of the Constitution. No doubt, Article 212(2) contains explicit constitutional mandate to the effect that "notwithstanding anything hereinbefore contained, where any administrative Court or Tribunal is established under clause (1) no other court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends."

Indeed, the expression "no other Court" included the High Court exercising constitutional jurisdiction. However, the question would be whether the jurisdiction of a Service Tribunal extends to the kind of matter involved in. Undoubtedly, the legislature has established Service Tribunal to adjudicate matters relating to terms and conditions of civil servants. Obviously, such decisions are required to be implemented. However, the Service Tribunals Act contains no provision relating to execution or enforcement of the decisions of such Tribunals. Even the power to punish for contempt on ground of defiance of Tribunal has not been conferred upon such Tribunals. In the circumstances, wherever a valid and proper decision of a forum established by law is not being given effect, such omission on the part of government agencies amounts to failure to perform a duty ordained by law. In such cases, a High Court always has the jurisdiction to issue a mandamus in terms of Article.199(1)(a)(i) of the Constitution.

----S. 4---Promotion---Fitness of civil servant---Jurisdiction of Service Tribunal---Scope---Matter related to fitness of civil servant---While determining the fitness of civil servant the Selection Board might have applied a wrong or unlawful criterion, but the fact remained that the matter did pertain to fitness---Case of an ineligible person may not be required to be considered by the Selection Board at all and comparative merit could only be examined with respect to eligible candidates---Contention that judgment of the Service Tribunal inasmuch as the question related to the fitness of the civil servant to be promoted, was without jurisdiction, had force.

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

----Art. 199---Constitutional - petition---Laches---Petitioner had been pursuing his remedies, albeit under a misconception of law---Constitutional petition could not be treated to be barred by lathes.

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

----Arts. 199 & 212---Civil Servants Act (LXXI of 1973), Ss.4(1)(b) proviso (b) & 22(2), proviso---Constitutional petition---Maintainability---Bar of Art.212 of the Constitution---Scope---Department in the matter of representation of the civil servant taking up inconsistent position while interpreting S.22(2), Civil Servants Act, 1973 and S.4(1)(b) of the said Act---Both provisions were identical in terms and there could be no reasons for construing differently---Bar of Art.212 of the Constitution, in circumstances, was not attracted.

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

----Arts.199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Promotion---Civil servant could not claim promotion to a higher position as a matter of legal right; at the same time, it had to be kept in view that all public powers were in the nature of a sacred trust and its repositories were required to exercise same in a fair, reasonable and transparent manner strictly in accordance with law---Any transgression of such principles was liable to be restrained by the superior Courts in their jurisdiction under Art.199 of the Constitution---One could not overlook that even in the absence of strict legal right there was always of legitimate expectancy on the part of a senior, competent and honest career civil servant to be promoted to a higher position which could only be denied for good and proper reasons---Power on a public functionary itself implied a restraint in operating the power and excessive use of lawful power was itself unlawful.

Independent Newspaper Corporation v. Chairman, Fourth Wage Board and Implementation Tribunal 1993 SCMR 1533 quoted.

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

----Art. 199---Constitutional jurisdiction of High Court--Scope---Civil service---Promotion---Assessment of an officer's performance during a year may completely depend on the subjective opinion of his Reporting Officer---Weightage required to be accorded to it for the purpose of determining fitness for promotion entails an objective assessment--Courts will not sit in judgment over subjective evaluation but would indeed be competent to examine whether the required objective criterion was followed---High Court, while observing that the recommendations of the Central Selection Board being not always consistent or in accordance with the required standards, was persuaded to issue directions required to be followed.

Indeed, posts in BS-21 were senior management positions requiring selection on the basis of merit and promotions to such posts could not be made in a mechanical manner and a variety of factors, such as examination of service records, evaluation reports of training institutions, record of disciplinary proceedings, reputation of integrity and efficiency, suitability for handling particular assignment, etc. had to be taken into consideration. It is also correct that a substantial amount of subjective evaluation of an officer's capabilities is involved: Therefore, normally questions of determination of fitness of a person to be promoted is not capable of being scrutinized on the basis of judicially manageable standards. Nevertheless, such subjective evaluation is to be premised on an objective criteria with the object of evolving such objective criterion, the Government itself has been issuing promotion policy guidelines and developed methods of quantifying confidential reports; which have been treated at par with statutory rules. It may be clarified that the assessment of an officer's performance during a year may completely depend on the subjective opinion of his Reporting Officer. The weightage required to be accorded to it for the purpose of determining fitness for promotion entails, an objective assessment. Indeed, the Courts will not sit in judgment over subjective evaluation but would indeed be competent to examine whether the required objective criterion was followed. Unfortunately, the recommendations of the Central Selection Board were not always consistent or in accordance with the required objective standards. High Court, in circumstances, was persuaded to issue a few directions required to be followed:

(i) Correctness of information: In the first instance, any observation made by the Central Selection Board regarding the past conduct or performance of an officer must be based on authentic and verifiable information to describe an officer's performance as lack luster in the face of 09 very good', 02good' and not a single adverse or even average report defies all norms of objectivity and could vitiate the entire exercise.

(ii) Previous supersession: It has been noticed that the previous supersession of an officer has been treated as a ground for recommending supersession by a subsequent Selection Board despite the fact that it is repeatedly asserted that posts in BS-21 are selection posts and promotions are to be made on the basis of comparative excellence. In this context, a distinction ought to be kept in view between posts where promotion is made on seniority-cum-fitness basis and selection posts. Indeed, in the former case the supersession of a senior officer takes place only when he is found to be unfit for promotion and such finding of unfitness by the competent authority needs to be given weight. In selection posts, however, an officer may eminently be suitable for promotion but is superseded merely because a junior might be found to be comparatively more meritorious. In such cases,, therefore, the previous supersession of such officer must be completely ruled out of consideration and his merit must be ascertained in comparison to others so eligible.

(iii) Eligibility Threshold: There seems to be some confusion whether the minimum 75 marks requirement is a question relating to eligibility or fitness of a civil servant to be promoted. The Honourable Supreme Court has repeatedly held that for the purpose of Civil Servants Act, there is a marked distinction between the concept of eligibility and fitness. 'As held in Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 439), eligibility involves the legal qualification of a person to be appointed or promoted, whereas fitness relates to the suitability for such appointment. The question of eligibility has been held to be justiciable before a Service Tribunal as against that of fitness. Though the Selection Board may consider a person unfit for promotion on account of his low quantified score or even choose not to examine other factors in the case of an officer's scoring below a prescribed minimum, it would not be quite correct to describe it as an eligibility threshold. Primarily it is an important factor relating to the fitness of a person to be promoted.

(iv) Overall assessment: It has been noticed that the Central Selection Board has, mainly been considering the quantified score worked out on the basis of the nebulous criterion "overall assessment" with no reference to his quality and work output and integrity. Indeed, it is common knowledge that integrity and quality and output of work are crucial factors in the performance evaluation of a civil servant and other factors, if any, could only have secondary effect. It is not understandable, as for instance, in the present case how this officer was found to possess less than 75 marks under "overall assessment", whereas in terms of quality and output of work he obtained more than 85 and more than 90 in terms of integrity. Obviously, some altogether extraneous factors were considered while recording his "overall assessment". In any event, when the quantification formula requires as civil servant's performance to be quantified, apart from overall assessment, in terms of quality and work output as well as moral and intellectual integrity, non-consideration of the latter factors both for the purposes of determining the minimum threshold or for fitness by the Central Selection Board is entirely unwarranted. It may be added that Para 6(e) of the Guidelines for Central Selection Board contained at page 233 of the Estacode, 2002-03 Edition explicitly requires that marks calculated in respect of these two factors shall be crucial in determining the comparative merit of an officer (v) Staff College Training: It appears that undue emphasis has been accorded to an officer's performance in the training courses in Staff College. Indeed such training may be important before promotion as a general rule but it cannot be overlooked that officers above the age of 56 years have been exempted from such training and, therefore, high performance in such courses cannot be considered to weigh over several other important factors including an officer's overall performance of work during his entire career. At the same time when the Board's guidelines themselves stipulate that an officer's attendance of .such course will be treated as a regular posting and an ACR would be recorded in respect of his performance, the evaluation can only be treated as one ACR for the purpose of quantification and no more. It has been noticed that in the case of petitioner in the present case his supersession was approved by the Establishment Division on the ground of his being minus rating at the Staff College irrespective of other considerations, which was entirely unwarranted.

Khalid Jawed Khan for Petitioners (in C.P. No.D-1761 of 2002)

Shahenshah Hussain and Mr. Mansoorul Haq Solangi for Petitioner (in C.P. No.D-829 of 2005).

Dr. Farogh Naseem for Petitioner (in C.P. No.D-1060 of 2005).

Mehmood Alam Rizvi, Standing Counsel.

Syed Shahid Hussain, Syed Muhammad Iqbal Shah along with Hifzur Rehman, Addl. Secretary, Establishment Division and Ex Officio Secretary, Central Selection Board, for the Respondents.

Date of hearing: 3rd February, 2006.

PLCCS 2006 KARACHI HIGH COURT SINDH 634 #

2006 P L C (C.S.) 634

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Muhammad Afzal Soomro, J

PROFESSOR DR. MUHAMMAD USMAN

Versus

PROFESSOR DR. ABDULLAH DAYO and others

Civil petition No.D-686 of 2005, heard on 21st September, 2005.

Pharmacy Act (XI of 1967)---

----Ss. 23 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment as Dean of Faculty---Petitioner, who was Professor in faculty of pharmacy in University concerned called in question appointment of respondent as Dean of Faculty alleging that he being not a pharmacist registered under Pharmacy Act, 1967, was not capable of being appointed as Dean---Petitioner, who was much younger, but possessed all qualifications in Pharmacy, joined as a Lecturer, finally was promoted as professor---Respondent did not have a Bachelor's degree in Pharmacy nor was he able to show that any of the degrees obtained by him were recognized by the Central Council as contemplated by Clause (a) of S.25 of Pharmacy Act, 1967---Respondent being not pharmacist, was not eligible for appointment as Dean, particularly when another professor who was duly registered Pharmacist, was eligible for appointment---Constitutional petition was allowed to the extent of declaring appointment of respondent to be without lawful authority.

Muhammad Nawaz Shaikh for Petitioner.

Kamaluddin for Respondent No.2.

Jhamath Jethanand for Respondent No.4.

Date of hearing: 21st September, 2005.

PLCCS 2006 KARACHI HIGH COURT SINDH 774 #

2006 P L C (C.S.) 774

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Ali Sain Dino Metlo, J

ATHAR H. ANSARI

Versus

FEDERATIOON OF PAKISTAN, MINISTRY OF DEFENCE and others

Civil Petition No. D-695 of 2003, decided on 8th February, 2006.

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

---Ss. 2(a), 2-A & 4---Constitution of Pakistan (1973), Arts.199 and 25---Constitutional petition---Civil servant---Petitioner, notwithstanding his retirement, had to be treated as civil servant competent to invoke jurisdiction of Service Tribunal.

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

---Arts. 199, 212 & 25---Sindh Service Tribunals Act (XV of 1973), S.4---Constitutional petition---Promotion---Jurisdiction of High Court---Scope---Petitioner was never promoted as Director; as a necessary corollary, it would make matter as one relating to petitioner's fitness for promotion---Question of fitness for promotee, was beyond the appellate jurisdiction of Service Tribunal; that being so jurisdiction of High Court did not appear to be barred by virtue of Art.212 of Constitution---No objective criterion whatsoever was followed and petitioner was subjected to hostile discrimination forbidden by Art.25 of the Constitution---All public powers must be exercised honestly and fairly---Petition was allowed to the extent that authorities were directed to reconsider petitioner's case strictly in accordance with law.

Pakistan International Airlines v. Samina Masood 2005 PLC (C.S.) 1335; I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 and Mian Abdul Malik v. Sabir Zamir Siddiqui 1991 SCMR 1129 ref.

Shabbir Ahmed Awan for petitioner.

Yawar Farooqui for Respondents No.2 and 3.

Date of hearing: 8th February, 2006.

PLCCS 2006 KARACHI HIGH COURT SINDH 786 #

2006 P L C (C.S.) 786

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

BASHIR AHMED and 15 others

Versus

SECRETARY, ELECTION COMMISSION OF PAKISTAN and 9 others

Constitutional Petition No.D-10 of 2006, decided on 31st May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Election duty---Payment of honoraria---Entitlement---Petitioners who were lower grade employees in Subordinate Judiciary, had performed complementary duties with Returning Officers during Local Government Elections in the year 2005---District Returning Officers, Assistant Returning Officers, Returning Officers, Readers of said Officers and Naib Qasids of said Officers, were specified for payment of honoraria and same was paid to them, while petitioners who had performed election duties were denied payment of said honoraria observing that Election Commission had no funds for payment of honoraria to petitioners---Such treatment to the petitioners was discriminatory---Holding of Elections in the democratic dispensation was a constitutional requirement and Finance Division was bound to provide sufficient funds for performance of that duty by Election Commission---Election Commission was directed by the High Court to approach Finance Division and pay honoraria to petitioners in the same terms in which honoraria was paid to the Readers, Naib Qasids. of Returning Officers.

Muhammad Ayaz Soomro, Muhammad Saleem Jessar and Abdul Rahman Bhutto for Petitioners.

Muhammad Bachal Tonyo, Addl.A.-G. for Respondent.

PLCCS 2006 KARACHI HIGH COURT SINDH 955 #

2006 P L C (C.S.) 955

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Athar Saeed, JJ

SHABBIR JAN SARHANDI

Versus

PROVINCE OF SINDH through CHIEF SECRETARY and 3 others

Constitution Petition No.D-64 of 2005, decided on 13th June, 2006.

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

----R. 8(a)---General Clauses Act (X of 1897), Ss. 21 & 24-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Removal from service---Superintendent of Jail (BS-18)---Sentenced for committing contempt of Court---Reinstatement of petitioner in service through notification issued by Home Secretary with approval of Chief Minister---Issuance of subsequent notification by Home Secretary cancelling/withdrawing notification of reinstatement---Plea of department was that issuance of notification of reinstatement was result of mistake, misinterpretation, misrepresentation or misguidance---Validity---Appointing authority in respect of a civil servant in BS-17 & BS-18 was Chief Minister, who was competent in law to remove him from service---Notification of reinstatement in service could be cancelled again with approval of competent authority (Chief Minister) as result of its cancellation would be removal of civil servant from service---Notification of reinstatement could be rescinded and corrected on alleged pleas with approval of Chief Minister, but not by Home Secretary for not being a competent authority---Section 21 of General Clauses Act, 1897 would be read with S.24-A thereof---Impugned notification was bad for having been issued without any reason---High Court accepted constitutional petition and declared impugned notification to be illegal, without jurisdiction and of no legal effect.

Shah Nawaz v. Umar Daraz 1999 CLC 1883 fol.

(b) Jurisdiction---

----Objection to---Duty of Court first to decide question pertaining to its own jurisdiction and then consider the merits of case.

----Arts. 199 & 212---Matter pertaining to terms and conditions of service---Such matter exclusively falls within jurisdiction of Service Tribunal---Jurisdiction of High Court in such matter is barred.

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

---S. 21---Notification or executive order---Authority competent to issue notification/order in like manner is competent to amend, modify, cancel, withdraw or rescind same subject to like sanction and conditions.

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

---Art.199---Judicial review of administrative action---Scope---Order passed without jurisdiction would be void ab initio and nullity in law---High Court had jurisdiction to examine, whether order passed by an executive or administrative authority was with jurisdiction or without jurisdiction.

(f) Jurisdiction---

----Order passed without jurisdiction, would be void ab initio and nullity in law.

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

----Ss. 21 & 24-A---Section 21 of General Clauses Act, 1897 would not be read in isolation, but would be read with S.24-A thereof.

Islam Hussain for Petitioner.

Abbas Ali, A.A.-G. for Respondents Nos. 1 to 3.

Manzoor Ali Khan for Respondent No.4.

Date of hearing: 13th June, 2006.

Pakistan, through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Director-General, Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410 ref.

----What cannot be done directly cannot be done through indirect means.

(d) Administrative decisions---

----All actions of statutory functionaries would be required to have the backing of a contemporaneous law/rule on the subject.

C. M. Sarwar for petitioner.

Abbas Mirza, Advocate, Director Legal Affairs, Pakistan Railway for Respondent.

Date of hearing: 26th October, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 11 #

2006 P L C (C.S.) 11

[Lahore High Court]

Before Syed Zahid Hussain, J

INAM-UL-HAQ SHAH and 3 others

Versus

GOVERNMENT OF THE PUNJAB through Secretary Technical Education and Vocational Training Authority and 2 others

Writ Petition No. 1538 of 2005, decided on 2nd November, 2005.

Civil service--

----Terms of service---When Tribunal or Court decides a point of law relating to the terms of service of a civil servant that covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; the dictates of justice and rule of good governance demand that the benefit of such judgment of the Tribunal or Court be extended to other civil servants, who may not be parties to the said litigation, instead of compelling them to approach the Tribunal or any other legal forum---All persons falling within the same category or non-appearing party, can be extended the benefit in order, to do complete justice---Where civil servants, though had indeed been party in the writ petition yet while riling Intra-court appeal against the judgment, were not impleaded as respondents, the judgment in writ petition (by the Single Judge) qua them had attained finality and governed the situation---Petitioners, in circumstances were entitled to relief.

Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499; Khawaja 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 and Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and Others PLD 1987 SC 145 ref.

Sh. Masood Akhtar for Petitioners.

Ch. Aamer Rehman, A.-A.G. Punjab for Respondent.

Date of hearing: 2nd November, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 18 #

2006 P L C (C.S.) 18

[Lahore High Court]

Before Syed Zahid Hussain, J

FAIZ ULLAH

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Technical Education and Vocational Training Authority and 2 others

Writ Petition No. 14587 of 2004, decided on 2nd November, 2005.

Civil service---

----Terms of service---Civil servant had filed constitutional petition before the High Court but had withdrawn the same voluntarily---Conduct of the civil servant showed his acquiescence and estopped him to agitate the matter as matters and transactions past and closed could not be reopened---Civil servant himself having abandoned his remedy and reconciled with the situation, could not seek reopening of the matter over again on the strength of a subsequent judgment, which undoubtedly, operated prospectively---Distinction between persons not party to litigation and those having litigated the matter but subsequently having abandoned or withdrawn the same had to be kept in view---To the first category the principles stated by Supreme Court in Tara Chand case 2005 SCMR 499 would be attracted and benefit of the judgment could be extended, however, the second category of persons could not take benefit due to their conduct i.e. acquiescence and estoppel.

Tara Chand and others v. Karachi Water and Sewerage. Board, Karachi and others 2005 SCMR 499 and Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Sh. Masood Akhtar for Petitioner.

Ch. Aamir Rehman, Addl. A.G. Punjab for Respondents.

Date of hearing: 2nd November, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 20 #

2006 P L C (C. S.) 20

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

AMJAD FAROOQ and 9 others

Versus

GULL HAMEED KHAN ROKHRI, MINISTER FOR REVENUE RELIEF AND CONSOLIDATIONS, PUNJAB, LAHORE and 2 others

Writ Petition No.5179 of 2005, decided on 10th October, 2005.

Constitution of Pakistan (1973)---

-----Art. 199---Constitutional petition---Supervisory powers of Minister, exercise of---Dispute between the parties was with regard to promotion of Patwaris on the basis of recommendation of the Departmental Promotion Committee---Matter had earlier been decided by Service Tribunal and Board of Revenue was directed to implement the decision of Departmental Promotion Committee---Minister passed an order and directed to hold the order of Service Tribunal in abeyance---Validity---Authorities failed to show any law or authority, which conferred the powers upon Minister authorizing him to act in revision or review over the judicial orders made by Service Tribunal and by High Court in constitutional jurisdiction---General power of supervision vesting in Government had never been deemed to include a power to interfere with the exercise of judicial functions of specified statutory authorities, unless the statue in itself contained a provisions in that behalf---Minister had no power to go behind the finding of fact recorded by Service Tribunal and acted upon by the Revenue authorities in compliance of the order of the Tribunal---As the order of Service Tribunal was not challenged by any of the parties before Supreme Court, such order had attained finality---Order passed by the Minister was without lawful authority and the same was set aside---Petition was allowed accordingly.

Abdul Aziz v. Member (Colonies), Board of Revenue Punjab and others 1980 SCMR 509 rel.

Ch. Saghir Ahmad for Petitioners.

Abdur Rasheed Qureshi, Senior Clerk on behalf of Respondent No. 2.

M. Qasim Khan, A.-A.G. along with Rana Nazir Ahmad, Naib Tehsildar for Respondent No.3.

Ch. Anwar ul Haq for Respondents Nos.4 to 10.

PLCCS 2006 LAHORE HIGH COURT LAHORE 28 #

2006 P L C (C.S.) 28

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD FAROOQ AKBAR and 3 others

Versus

DISTRICT GOVERNMENT RAJANPUR DISTRICT through District Coordination Officer and 6 others

Writ Petitions Nos. 1610 and 2452 of 2005, decided on 28th July, 2005.

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

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Promotion of Patwaris as Qanungos against 23 vacancies---Departmental Promotion Committee recommending 23 Patawaris including petitioner out of 43 Patwaris---Appointment of petitioner as Qanungo after completion of probation period of 2 years---Appeal before Service Tribunal against recommendations of Committee by aggrieved Patwaris impleading therein petitioner as respondent---Tribunal with consensus of parties remanded case to Committee for re-consideration of appellants and others by scoring out condition of passing of examination of Qanungos as per amended rules---Placing before Committee seniority list including name of petitioner---Objection of petitioner was that he was not covered by word "others" used in remand order, thus, his case could not be re-opened by Committee as his promotion order, had attained finality and he was no more Patwari at relevant time---Validity---Petitioner, if aggrieved of remand order, could either seek its clarification from the Tribunal or file appeal before Supreme Court---Petitioner once having submitted to jurisdiction of Tribunal, would be bound by remand order, thus, he was estopped from raising such objection indirectly through constitutional petition---Remand order had attained finality for petitioner's failure to challenge same before Supreme Court---Petitioner after remand could challenge order of Committee, if any, passed against him, before competent authority and Tribunal---Such objection germane to terms and conditions of service was exclusively triable by Tribunal---Application for implementation of remand order was pending adjudication before Tribunal, thus, petitioner, if having any grievance should approach Tribunal---High Court dismissed constitutional petition.

Anisa Rehamn's case 1994 SCMR 2232; 2005 SCMR 445 and 2000 PLC (C. S) 129 ref.

Syed Aqa Asif Jaffari, for Petitioners.

Ch. Saghir Ahmed and M. Suleman Bhatti for Respondents Nos.5 to 7.

Muhammad Qazim Khan A.-A.G. with Malik Muhammad Sammi, Tehsildar for other Respondents.

PLCCS 2006 LAHORE HIGH COURT LAHORE 85 #

2006 P L C (C. S.) 85

[Lahore High Court]

Before Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

Mirza LUTUF MUHAMMAD KHAN, CHIEF TRAFFIC MANAGER/FREIGHT, PAKISTAN RAILWAYS

Versus

GOVERNMENT OF PAKISTAN through its Secretary Establishment Division and 11 others

Writ Petition No.12405 of 2003, heard on 18-6-2004.

Civil Servants Act (LXXI of 1973)---

------Ss. 8 & 9---Constitution of Pakistan (1973). Art. 199---Constitutional

petition---Seniority and promotion---Petitioner, who was an officer of BS-19, filed constitutional petition against his supersession in year 2001 and then in 2003 on the ground that he had requisite overall quantified score of 70, but was arbitrarily superseded on irrelevant consideration---Reasons for superseding petitioner given in meeting of Central Selection Board held in 2003, were irrelevant because full facts regarding Performance Evaluation Reports of petitioner for 2000 and 2001 were not reported to Central Selection Board---Hurdle in the way of petitioner was that ACR for the year 2000 was yet to be completed while his report for the year 2001 was yet to be countersigned and respondent-Authority was in default in not getting petitioner's Performance Evaluation Report for the year 2001 completed---Even when petitioner's representation was being placed before competent Authority, nobody made an effort to get said report completed by getting it countersigned by competent Authority---Unless Performance Evaluation Reports of petitioner for the years 2000 and 2001 were completed, his overall. quantified score could not be correctly worked out in accordance with Promotion Policy---Petitioner, in circumstances, was made to suffer for the default of Authorities concerned---High Court, declined to interfere in the matter---Authority however was directed to get Performance Evaluation Reports of petitioner for years 2000 and 2001 completed, within specified period and thereafter to place case of petitioner before Central Selection Board.

Omer Alvi, for Petitioner.

Muhammad Masood Chishti,/Standing Counsel with Hafiz Khalid Mahmood, Joint Secretary and Mr. Muhammad Akram Javed Suppt. Establishment Division, Islamabad for Respondent No. 1.

Irfan Masood Sheikh, with Mr. Shahid Aslam Mahar, Deputy Director Admn.-I for Respondent No.2.

Date of hearing: 18th June, 2004.

PLCCS 2006 LAHORE HIGH COURT LAHORE 95 #

2006 P L C (C.S.) 95

[Lahore High Court]

Before Ch. Ijaz Ahmed, J

MUHAMMAD AZEEM

Versus

F.D.A. and another

Writ Petition No.9249 of 2003, decided on 31st May, 2005.

(a) Administration of justice---

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

Ahmad Latif Qureshi's case PLD 1994 Lah. 3 ref.

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

----S.3---Constitution of Pakistan. (1973), Art. 199---Constitutional petition---Compulsory retirement ---Reinstatement -- Entitlement to salary---Petitioner, who was compulsorily retired from service, was reinstated by Service Tribunal, but the Authority failed to implement judgment of Service Tribunal---Petitioner filed constitutional petition---Petitioner who was not allowed to join service in terms of judgment of Service Tribunal, filed application and then reminders to the Authority to implement order of Service Tribunal, but in vain---On filing constitutional petition, when notice was issued to the Authorities, petitioner was reinstated in service by the Authorities after about one year of order of reinstatement passed by Service Tribunal---Petitioner claimed payment of salary to him from date he filed application for implementation of judgment of Service Tribunal, to date he joined service after reinstatement, but the Authorities denied such claim of petitioner---Validity---Interim period was result of negligence of Authorities on basis of which petitioner could not join service---Petitioner, in circumstances was entitled to get salary of said period in terms of judgment of Service Tribunal in view of settled principle that it was the right of petitioner to secure salaries in terms of judgment of Service Tribunal as petitioner had not performed duties for said period due to negligence and inaction of the Authority---Constitutional petition was accepted to the extent that Authorities were directed to release salaries for the period from date of filing application by petitioner for implementation of judgment of Service Tribunal.

S. Inamul Haq v. Secretary Establishment Division 1982 Law Notes. Lah. 437 ref.

-----Art. 5(2)---Obeying command of Constitution---Everybody was duty

bound to obey command of the Constitution.

Zahoor Illahi's case PLD 1973 SC 383 ref.

Muhammad Shan Gull, for Petitioner.

Ali Akbar Qureshi for Respondents.

PLCCS 2006 LAHORE HIGH COURT LAHORE 101 #

2006 P L C (C.S.) 101

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Munshi TAHIR ZAHOOR

Versus

ADDITIONAL SECRETARY TO CHIEF MINISTER PUNJAB, LAHORE and 4 others

Writ Petition No. 8672 of 2004, decided on 4th June, 2004.

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

----Arts. 4, 5(2) & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Civil service---Order of transfer---Duties and functions of public functionaries ---Annexure attached with constitutional petition had fully established that impugned order of his transfer was obtained by respondent under influence of politicians---Under provisions of Punjab Civil Servants Act, 1973 and rules framed thereunder, politicians did not figure anywhere---Public functionaries were duty bound to act in accordance with law in view of Art. 4 of the Constitution read with S.24-A of General Clauses Act, 1897, after applying their independent mind---Every body was bound to obey the command of Art.5(2) of the Constitution---Competent Authority in the present case, having passed order under direction of the superior, same was not sustainable in the eyes of law.

M/s. Airport Support Service's case 1998 SCMR 2268; Ch. Zahoor Elahi's case PLD 1975 SC 383 and Ghulam Mohy-ud-Din's case PLD 1964 SC 829 ref.

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

----Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Arts.4, 199 & 212---Constitutional petition---Posting and transfer---Terms and conditions of service---Petitioner and respondent were civil servants and their posting and transfer was a part and parcel of their terms and conditions of service---Constitutional petition was not maintainable but in spite of bar contained in Art.212 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.

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 others 1990 SCMR 999; Zahir Akhtar's case PLD 1995 SC 530; 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. and Muntazar Mehdi for Respondents (On Court's. Call).

Date of hearing: 4th June, 2004.

PLCCS 2006 LAHORE HIGH COURT LAHORE 107 #

2006 P L C (C. S.) 107

[Lahore High Court]

Before Nasim Sikandar, J

Dr. TARIQ IQBAL

Versus

Dr. HAMEED-UD-DIN and others

Writ Petition No. 1655 of 2004, decided on 6th December, 2004.

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

----Rr. 2(d) & 7---Constitution of Pakistan (1973), Art. 199---Constitution petition---Appointment by promotion or transfer---Departmental Promotion Committee recommended name of petitioner for appointment by transfer, but recommendations of Departmental Promotion Committee were rejected by Provincial Secretary on the ground that petitioner did not possess requisite degree/diploma in Plastic Surgery, while respondent possessed such qualification and experience---Authority had rejected recommendations of Departmental Promotion Committee for cogent and relevant reasons and promoted respondent on account of his being eligible to the post in view of his having required qualification and experience---Equivalence certificate by Pakistan Medical and Dental Council, as relied upon by petitioner was hardly of any significance---Even otherwise question of equivalence would arise only when holder of specific degree/diploma or certificate was not available in the field---Respondent being Fellow of College of Physicians and Surgeons of required Plastic Surgery Discipline, question of equivalent professional qualification, did not arise at all---Departmental Promotion Committee only would make a recommendation, while Appointing Authority was obliged to accept or reject recommendations in accordance with law, equity and fairness---All three requirements being present in the decision of competent Authority, no possible exception to the same, could be taken.

Muhammad Zafeer Abbasi, Deputy Secretary v. Government of Pakistan 2003 P L C (C.S.) 503 ref

Hafiz S.A. Rehman for Petitioner.

Babar Bilal and Muhammad Shabbir Ahmad for Respondent No. 1.

Date of hearing: 6th December, 2004.

PLCCS 2006 LAHORE HIGH COURT LAHORE 115 #

2006 P L C (C.S.) 115

[Lahore High Court]

Before Sh. Javaid Sarfraz, J

MUHAMMAD NASIR RAHMAN

Versus

NATIONAL BANK OF PAKISTAN through President and 4 others

Writ Petitions Nos.3771, 3769, 3770, 3772, 3773, 3774, 3569, 3927, 3928, 3929 and 3930 of 2004, heard on 30th June, 2005.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Maintainability---Factual controversy---Grievance of petitioners was that after their reinstatement in service with back-benefits, bank was not giving certain allowances to them---Contention of bank was that since at some earlier stage extra amount had been paid to the petitioners due to some bona fide error, therefore that amount of disputed allowances was withdrawn---Validity---Factual controversy existed amongst the parties regarding claims and their extent---Such controversy required to be examined by checking the benefits due to petitioners and calculating the amount that the bank would ultimately be found liable to pay---Such exercise could not be undertaken by High Court in its constitutional jurisdiction---Petitioners should have approached Service Tribunal in order to redress their grievances---Constitutional petition was also not maintainable in view of bar contained under Art.212 of the. Constitution---Petition was dismissed in circumstances.

Fazal Elahi v. PTCL 2004 PLC (C.S) 655; Chairman/Managing Director, PIA and another v. Nisar Ahmad Bhutto 2005 SCMR 57; Haji Muhammad Ibrahim v. D.C. Mandi Bahauddin 2002 MLD 1533; Ghulam Sarwar v. Habib Bank Ltd. 2001 PLC (C.S.) 198; A. Ghani Sayeed v. National Bank of Pakistan 1983 PLC (C.S.) 41; S.M. Ismail Naqvi and 238 others v. Federation of Pakistan 2000 PLC (CS) 1135 and Sh. Rashid Ahmad v. United Batik Ltd, and others 1988 SCMR 926 ref.

Abdul Majeed Malik for Petitioner.

Mian Arshad and Altaf Hussain for Respondents.

Date of hearing: 30th June, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 119 #

2006 P L C (C.S.) 119

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Dr. MUHAMMAD ARIF MAHMOOD BHATTI

Versus

PROFESSOR SHABBIR AHMAD NASIR, CHAIRMAN, SPECIAL SELECTION BOARD and 9 others

Writ Petition No.2929 of 2005, decided on 29th June, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Appointment of doctors on contract basis---Petitioner felt aggrieved by appointment of respondents as Assistant Professors on contract basis pursuant to recommendations by Special Selection Board---Petitioner had alleged that Board was not validly constituted inasmuch as private Doctor was not made a member of said Board and that he was more qualified and much better on merits as compared to said two respondents, but by manoeuvring process of interview, more marks were awarded to them and they were appointed---Validity---So far as minimum educational qualifications were concerned petitioner and said two respondents were at par, but said two respondents were more experienced than, the petitioner---Petitioner could not establish allegation of alleged manoeuvring in the interview---Bona fide steps were taken to make private Doctor as member of Board, but a renowned private practitioner, who was requested after prior intimation to join proceeding, could not attend meeting for some reasons---Such omission, in circumstances stood sufficiently explained---Petitioner having failed to establish his claim regarding appointment and to establish his allegations, his petition was dismissed.

Malik Mumtaz Akhtar for Petitioner.

Sh. Sajjad Ahmad for Official-Respondents.

Malik M. Rafique Rajwana for Respondent No.8.

PLCCS 2006 LAHORE HIGH COURT LAHORE 128 #

2006 P L C (C.S.) 128

[Lahore High Court]

Before Syed Jamshed Ali, J

NISAR AHMAD ARSHAD and 6 others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman/Managing Director/General Manager, Islamabad and 2 others

Writ Petitions Nos.22088, 22445, 14895 of 2000 and 1251 of 2001, heard on 6th December, 2004.

Constitution of Pakistan (1973)---

----Arts. 199 & 25---Civil service---Second constitutional petition seeking implementation of directions of High Court given in earlier constitutional petition---Employees of Pakistan International Airlines , Corporation---Employment through contractor as daily wagers on a job of permanent nature---Refusal of Corporation to regularize petitioners---Previous direction of High Court issued to Corporation to consider petitioners for regularization and granting them same salary/benefits to which their other colleagues were entitled after regularization---Non considering cases of petitioners due to non-filing of applications in response to the notice of Corporation inviting applications for regularization---Validity---High Court had not directed that petitioners would have to make applications for such purpose---Petitioners were entitled to. be considered for regularization on basis of their service record---Authority could summon petitioners for interview to assess their suitability for regularization---High Court accepted second constitutional petition directing Corporation to consider petitioners for regularization on basis of same criteria and principle applied in cases of similarly placed other daily wagers.

Masood Ahmad and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41 and Farid Ahmad v. Pakistan Burmah Shell Limited 1987 SCMR 1463 rel.

M.A. Ghani for petitioners.

Javed Altaf for Respondents.

Date of hearing: 6th December, 2004.

PLCCS 2006 LAHORE HIGH COURT LAHORE 131 #

2006 P L C (C. S.) 131

[Lahore High Court]

Before Abdul Shakoor Paracha, J

SYED JUNAID ARSHAD, DEPUTY COLLECTOR CUSTOMS, GOVERNMENT OF PAKISTAN, LAHORE

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad and 2 others

Writ Petition No.286 of 2005, heard on 28th July, 2005.

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

----Arts. 199 & 212---Civil Servants Act (LXXI of 1973), S.3---Constitutional petition---Maintainability---Civil service---Re-allocation of occupational group---Not related to "terms and conditions" of service---Jurisdiction of High Court to entertain constitutional petition not barred by Art. 212 of the Constitution.

Fakhar ur Zaman Ali Cheema v. Government of Pakistan through Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad and 2 others 2001 CLC 1277 rel.

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

----Art. 199---Constitutional petition---Civil service---Occupational group, of---Order of Prime Minister approving such. change at request of civil servant---Refusal of Department to implement such order---Validity---Department had implemented similar orders of Prime Minister in other cases---Civil servant was similarly placed before Prime Minister, who had approved such change---Such order of Prime Minister being perfectly lawful could not be ignored by any person or authority---Civil servant had been discriminated---High Court accepted constitutional petition with direction to Department to implement such order forthwith.

----Art. 91(1)---Prime Minister---Order or directive issued by Prime Minister---Non-implementation of such order/directive---Consequences highlighted.

Directive issued by the Prime Minister has to be enforced or implemented, and if the order is not to be enforced or implemented, then there is no reason to issue the same. Issuance of such order which creates hopes and expectations, results in total frustration and disappointment when it is not implemented and yields no benefits or fruits. Such non-compliance militates even against declared, proclaimed and projected policy of good governance.

Babar Bilal for Petitioner.

Raja Iftikhar Javed, Standing Counsel for Respondent.

Date of hearing: 28th July, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 153 #

2006 P L C (C.S.) 153

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD RIAZ AWAN

Versus

THE CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and 6 others

Writ Petition No.999 of 2004, heard on 29th June, 2005.

(a) Accommodation Allocation Rules, 2002---

----Rr.2(b), 7, 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of accommodation--Dispossession of allottee---Petitioner being Government servant, had called in question, the action of the Authority taking illegal forcible possession of flat/house duly allotted to him---Allotment letter issued by Joint Estate Officer in favour of petitioner was available on file---Ownership of the Authority itself was under clouds as civil suit filed by another person against the Authority was subjudice before Civil Court---Premises in question having been allotted to petitioner by Estate Department under Accommodation Allocation Rules, 2002, Authority, if claimed ownership over Premises in dispute, could protest against said allotment, but no letter of protest/objection or request was written by Authority to concerned, department in that behalf---Authority had not issued any notice to petitioner who was in lawful possession of said premises, to vacate same---Action of Authority taking possession of premises in dispute, was coram non judice which had shown mala fides on the part of Authority---Authority, without getting clearance from Court of competent jurisdiction, could not have acted against petitioner---Authority had proceeded on wrong track and had taken law in its hands by getting possession of flat from petitioner which action could not be maintained---Action of Authority taking forcible possession of flat in dispute in occupation of petitioner, was declared illegal, without lawful authority, mala fide and of no legal effect, by High Court in exercise of its Constitutional jurisdiction---Petitioner could enter into said premises and continue his residence.

(b) Mala fides---

----Action would be said to be suffering from mala fides on facts, if it was taken due to some personal grudge, animosity or for some personal benefit---State of mind of the person taking action, was of great importance in determining such facts.

----Action would be said to be suffering from "malice-in-law", if Authority taking action was not competent to do so or had acted beyond its powers or in violation of law applicable, even though it could have acted `bona fide' and without ill-will---Person, who inflicted injury upon another person in contravention of law, would not be allowed to say that he did so with an innocent mind as he would be assumed to know the law and he could be guilty of malice in law---Was sufficient to prove malice in law if it was shown that impugned action was not countenanced by law under which the Authority had acted.

Mian Manzur Ahmad Watto v. Federation of Pakistan PLD 1997 Lah. 38 and Ghulam Mustafa Jatoi v. Federation of Pakistan PLD 1988 Lah. 49 ref.

Javaid Saleem Shorish for petitioner.

Malik Muhammad Nawaz/C.D.A. for Respondents.

Date of hearing: 29th June, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 164 #

2006 P L C (C.S.) 164

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

Sardar ZAFAR IQBAL DOGAR

Versus

SECRETARY OF THE GOVERNEMNT OF THE PUNJAB HOME DEPARTMENT, LAHORE and 3 others

Writ Petition No.2451 of 2003, decided on 22nd November, 2005.

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

----S. 8-A---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.14-A---Constitution of Pakistan (1973), Arts.25, 199 & 212---Constitutional petition---Maintainability---Application for one step promotion on account of outstanding performance---Petitioner had remained member of the team constituted by Police department to combat with terrorists and for arrests one step promotion was announced as award by Governor of the Province-Petitioner performed his duty diligently and bravely and arrested two terrorists and in recognition thereof one step promotion was given to the petitioner and other functionaries but later on case of petitioner was declined on the ground that promotion to the next rank would be quite pre-mature as he was recently promoted out of turn---Validity---Other members of petitioner's team had been granted one step promotion in similar circumstances therefore the action of authorities was in violation of Art.25 of the Constitution---Bar of jurisdiction under Art.212 of the Constitution could not be urged in such a situation---High Court, in circumstances, accepted constitutional petition and directed authorities to grant one step promotion to the petitioner.

Syed Safeer Hussain Shah v. Chief Secretary 2003 PLC (C.S.) 689 and I.A. Shervani's case1981 SCMR 1041 ref.

Rana Muhammad Arshad Khan for Appellant.

Muhammad Qasim Khan, A.A.-G. with Mazharul Islam Inspector Legal on behalf of D.I.G. for Respondents.

Date of hearing: 26th September, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 179 #

2006 P L C (C.S.) 179

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

MUMTAZ ALI

Versus

SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No. 1896 of 2005, decided on 10th October, 2005.

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

----Ss.3, 5, 7 & 14B---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Implementation of order---Petitioner was compulsorily retired from service, but Service Tribunal, on filing appeal set aside order of compulsory retirement and reinstated the petitioner in service---Department did not challenge said judgment of Service Tribunal before Supreme Court, nor implemented the orders passed by Service Tribunal---Petitioner filed Constitutional petition before High Court and High Court directed the Department to implement order of Service Tribunal according to which the period in which petitioner remained out of service was treated as leave of due kind---Department implemented order to the extent of giving joining of petitioner, but salary of intervening period was not paid to petitioner---Petitioner in the constitutional petition had sought direction in the name of respondent Authority to pay salaries as directed earlier by Service Tribunal in its judgment---Petitioner also impugned show-cause notice/statement of allegations/Inquiry letter---Preliminary objection of department regarding maintainability of constitutional petition to the effect that High Court had no jurisdiction to give direction to implement judgment of Service Tribunal, had no force because High Court had jurisdiction to direct to implement/comply with order/direction issued by Service Tribunal---Constitutional petition to that extent, was accepted and department was directed to implement judgment of Service Tribunal and pay salaries within specified period-.Constitutional petition pertaining to declare show-cause notice issued by department, to, be illegal, null, void and violative of law, however, was not maintainable as said question pertained to terms and conditions of service---Petitioner could seek his remedy against same by filing appeal before Service Tribunal.

Mrs. Monawar Salmi v. Director Army Education 1991 SCMR 135; Inamul Haq v. Secretary Establishment Division 1982 Law Notes Lah. 437; Khalid Mehmood Inspector v. Inspector General Police 1999 PLC (C.S) 558; Sardar Muhammad Arshad v. Azad Government through Chief Secretary 1998 PLC (C.S.) 217; Farooq Ahmad Khan v. Shaukat Jan Bouch 1998 PLC (C.S.) 425; Qazi Muhammad Anwar v. Federation of Pakistan PLC 2000 (C.S.) 1165; Fazal Elahi v. Pakistan Telecommunication Company Ltd. and another 2004 PLC (C.S.) 655 and Rana Muhammad Afzal v. Director Food Punjab, Lahore and others 2004 PLC (C.S.) 567 ref.

Muhammad Suleman Bhatti for petitioner.

Muhammad Qasim Khan, A.A.-G. with Tariq Javaid Deputy Director (C&W) on behalf of the Respondents.

PLCCS 2006 LAHORE HIGH COURT LAHORE 191 #

2006 P L C (C.S.) 191

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

Mrs. WASIM AKHTAR

Versus

WAPDA, through Chairman, WAPDA and 2 others

Writ Petition No.6869 of 2004, decided on 25th May, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Chief Executive of a private limited company, which was a subsidiary concern of respondent, could not be sued in his personal capacity---Constitutional petition was not maintainable against functionaries of said company---Petitioner who was employed in a Primary School on daily wages, instead of competing with other candidates for appointment, Made representation through Federal Minister by moving application for conversion of her post to that of contract employee---Said request of petitioner was rightly declined by respondent as she could not be allowed to enter through back-door having less qualification---No infringement of any fundamental rights guaranteed by Constitution having been committed, constitutional petition was dismissed.

Petitioner in person.

Muhammad Ashraf Sh. for Respondents.

Muhammad Gulzar Sh., Manager, Genco-III'

PLCCS 2006 LAHORE HIGH COURT LAHORE 205 #

2006 P L C (C.S.) 205

[Lahore High Court.]

Before: Muhammad Jehangir Arshad, J

Dr. MUHAMMAD SHAHID NAVEED

Versus

ISLAMIA UNIVERSITY, BAHAWALPUR and others

Writ Petition No.1686 of 2005, decided on 21st July, 2005.

(a) Islamia University of Bahawalpur Act (IV of 1975)---

----Ss. 11-A, 15(3), 21 & 22---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Order of Vice-Chancellor---Word "Senate" as defined under definition of "Authority" in S.21 of Islamia University of Bahawalpur Act, 1975 would include Vice-Chancellor per force of S.22 thereof---Vice-Chancellor while exercising powers under S.15(3) of Act, in fact acted as Senate---Order of Vice-Chancellor, unless set aside/modified/reversed by Senate would be deemed to be an order of Senate amenable to revisional jurisdiction of Chancellor under S.11-A, the Act---Alternate remedy by way of filing revision before Chancellor of the University being available, constitutional petition would not be maintainable.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Obaidulah and another v. Habibullah and others PLD 1997 SC 835; Abdul Jabbar Memon and other's case 1996 SCMR 1349 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 ref.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246 fol.

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

----Arts. 2-A, 18, 25, 27 & 199---Appointment on contract basis---Eligibility---Constitutional petition---Maintainability---Objection of University was that in absence of statutory rules and regulations of University, relationship between University and its employees was that of Master and Servant, thus, constitutional petition was not maintainable---Validity---Such objection would arise only where petitioner was seeking enforcement of terms and conditions of his employment---Petitioner had challenged appointment of respondent on the ground that he did not possess required qualification; that method of his appointment was violative of various provisions governing the affairs of University and also in violation of Arts. 2-A, 18, 25 and 27 of the Constitution---Objection was overruled.

Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court and others 1997 SCMR 1043 and Dr. Ahmad Sulman Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382-D fol.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be invoked against unlawful assumption of jurisdiction or refusal to assume lawful jurisdiction by any authority---High Court had ample powers to interfere with and strike down any order passed without jurisdiction or in excess of jurisdiction.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 fol. Naseer Ahmed for Petitioner.

M.M. Bhatti for Respondent.

Date of hearing: 13th July, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 215 #

2006 P L C (C.S.) 215

[Lahore High Court]

Before: Muhammad Khalid Alvi, J

Mst. REHANA BEGUM

Versus

DISTRICT EDUCATION OFFICER (W/EE), MULTAN and others

Writ Petition No.3924 of 2003, decided on 19th April, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Maternity leave---Petitioner who was inducted in Education Department in BPS-14 on temporary basis and continued in same capacity, availed maternity leave for three months, but said period of leave was treated by authorities as without pay---Petitioner in her constitutional petition had prayed for direction to authorities to pay for said period of maternity leave---Service structure of category of employees in which petitioner fell, had not so far been framed by the Authority---Till such time competent Authority would frame service structure regarding petitioner's category, she was entitled, to receive pay for period of maternity leave, however, Authority would be at liberty to raise any claim against petitioner after confirmation of service structure, if it was so determined that she was not entitled to such a leave.

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

Muhammad Tariq Rajwana for Appellant.

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

PLCCS 2006 LAHORE HIGH COURT LAHORE 221 #

2006 P L C (C.S.)221

[Lahore High Court]

Before Syed Hamid Ali Shah, Mian Hamid Farooq, JJ

NAZAKAT ABBAS and 20 others

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and another

Intra Court Appeal No.54 and 55 of 2005 in W.P. No.17572 of 2004, decided on 29th November, 2005.

(a) Interpretation of statutes---

----Notification----Retrospective effect of---Issuance of Notification by Government, in exercise of its power of subordinate legislation, would have no retrospective effect---Rules, orders and directions, could not have retrospective effect to impair existing rights.

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

----S. 4---Punjab Judicial Service Rule's, 1994, R.7---Appointment/recruitment---Rules applicable and conditions required to be satisfied for the recruitment on a particular post, were those which existed on the date of recruitment and not what were required at an earlier date---Selection or appointment of civil servants, was to be governed according to law and rules which were prevalent on the day of recruitment---Government was competent to enhance, alter or amend prescribed qualification to maintain efficiency in service and a vested right could not be claimed in that respect---Candidates could not claim to be governed under earlier rules and conditions, except the one existing on the day of recruitment.

Commissioner of Sales Tax (West) Karachi v. Kruddson Ltd: PLD 1974 SC 180; The State v. Aziz Ahmad and another 1975 P.CrLJ 105; Al-Samrez Enterprise v. Federation of Pakistan PLD 1969 SC 322; Income Tax Officer, Central Circle II Karachi and another v. Cement Agencies Ltd PLD 1986 SCMR 1917; Muhammad Suleman and others v. Abdul Ghani and others PLD 1978 SC 190; Governor of N.-W.F.P. and another v. Gul Naras Khan 1987 SCMR 1709; Shamsher Ali v. Commissioner, Hyderabad, Division and 2 others 1984 CLC 2742; Riaz ul Haq v. Selection Committee constituted for admission to Bolan Medical College through Secretary 1997 SCMR 1845; Government of N.-W.F.P. v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321 and Dr. Muhammad Hussain v. Principal Ayub Medical College PLD 2003 SC 143 ref.

----Art. 189---Decision of Supreme Court, binding force of---Where question of law raised before Supreme Court, was considered and decided, same would have binding force, no matter at which stage such order was passed---Decision was one where apex Court had enunciated a principle of law, which was a binding precedent---Contention that leave refusing order, passed by Supreme Court was not a binding precedent, was repelled---Observations of the Supreme Court were entitled to very high respect, even as obiter dicta on question of law.

Mumtaz Ali Bohio and 24 others v. The Federal Public Service Commission 2002 SCMR 772; Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCMR 221; Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582; Sheikh Fazal Ahmad v. Raja Zulifqar Khan and another PLD 1964 SC 494; Government of West Pakistan and another v. Nisar M. Khan and others PLD 1965 SC 106; Islamic Republic of Pakistan v. Mazhar-ul-Haq and 2 others 1977 SCMR 509; Trustees of Port of Karachi and another v. Zaffar Zaid Ahmad" 1985 SCMR 810; Collector of Central Excise and Land Customs and 3 others v. Aziziuddin Industries Ltd. PLD 1970 SC 439 and Crescent Jute Products through Director v. Government of the Punjab, Agriculture Department through Secretary PLD 2005 Lah. 386 ref.

(d) Words and phrases---

----"Enunciates", defined and explained.

A.K. Dogar for appellants.

M. Hanif Khattana, Addl. A.G. along with Abdur Razzaq, Director Legal PPSC for Respondent.

M. Sarfraz Abbas Magsi for Respondent No.1.

PLCCS 2006 LAHORE HIGH COURT LAHORE 230 #

2006 P L C (C.S.) 230

[Lahore High Court]

Before: Muhammad Akhtar Shabbir, J

QASIM MASOOD

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Education, Islamabad and 4 others

Writ Petition No.3371 of 2004, heard on 8th September, 2005.

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

----S.4---Suspension---Duration---More than eight months had passed when the petitioner was suspended and no further proceedings had been initiated in his case---Validity---Such suspension of petitioner was not justified in law.

Mushtaq Ahmad Sahto v. Federation of Pakistan 2002 Law Notes 961 fol.

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

----S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suspension---Object---Failure to initiate further proceedings---Petitioner was Assistant Professor and allegation against him was that he participated in a press conference and reportedly instigated teaching community against, the lawful authority of Federal Education Department---Another allegation against the petitioner was that he had created disturbance in the smooth functioning of education system---Petitioner was suspended by the authorities but no further proceedings were initiated in a period more than eight months---Plea raised by the petitioner was that the notice of suspension was illegal---Validity---Law required that a Government servant against whom proceedings on account of corruption, misconduct etc. were contemplated could be suspended---When order of suspension was passed and self-respect and dignity of public servant under suspension was grossly impaired that was by itself a sufficient reason to indicate that indefinite suspension was never contemplated by Removal from Service (Special Powers), Ordinance 2000, and was permissible only when it was necessary for the purpose of completing the inquiry---If any action was to be initiated against the petitioner that could have been completed uptil now but no effort was made---High Court declined to uphold the notification of suspension for indefinite period---Notification of suspension was declared illegal and without lawful authority and was set aside----Petition was allowed accordingly.

Mushtaq Ahmad Sahto v. Federation of Pakistan 2002 Law Notes 961 fol.

Mujeeb-ur-Rehman Kiani for Petitioner.

Shamshad Ullah Cheema, Federal counsel for Federation with Director Admn. for Respondent.

Date of hearing: 8th September, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 237 #

2006 P L C (C.S.) 237

[Lahore High Court]

Before Syed Zahid Hussain and Mian Saqib Nisar, JJ

NAZIR AHMAD

Versus

GOVERNMENT OF PUNJAB through Secretary Transport, Lahore and others

I.C.A. No.658 of 2003, in W.P. No.20414 of 1999, decided on 20th October, 2005.

(a) Civil Service---

----Pensionary benefits, grant of---Daily wages service---Denial of retirement pensionary benefits to a daily wager, legality of---Constitutional petition filed by the appellant on the ground that the services rendered by him on daily wages basis fell qualified as services under pension rules, was dismissed by the Single Judge in the High Court---Intra-Court appeal was filed by the appellant---Contention of the appellant was that persons similarly situated and placed on daily wages were being given full retirement pensionary benefits whereas the appellant had been denied similar treatment---Validity---Even the period of service on daily wages basis could be counted and taken into consideration for calculating the pensionary benefits---Such approach was extended and applied to the case of the appellant, particularly, when the Corporation in which the appellant worked itself had while calculating the retirement/pensionary benefits, counted his uninterrupted period of daily wage services and only the audit objection later raised, came in the way of appellant---Appeal was allowed in circumstances.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 ref.

(b) Civil Service Regulations---

----Art.470---Civil service---Pension---Concept---Pension, right and extent of---Pension was intended to assist a retired civil servant in providing for his daily wants so long he is alive, in consideration of his past services---Benefit had been extended in Pakistan to the widows and the dependent children of the deceased civil servants---Right and extent to claim pension depended upon the terms of the relevant statute under which it had been granted---Under Art. 470 of Civil Service Regulations, full pension was not to be given as a matter of course unless the service rendered had been duly approved---If the service had not been thoroughly satisfactory, the Authority sanctioning the pension was empowered to make such reduction---Such power was exercisable only before pension was actually sanctioned.

I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Encyclopedia, Britannica Corpus Juris Secundum, American Jurisprudence ref.

----Art. 25---Equality of pensioners---Held, it was a legitimate grievance and a violation of Art. 25 of the Constitution, where the pensioner was not treated alike with other pensioners and was deprived of some benefit, which was being given to the others---Rationale---Similarly placed and situated should be treated alike and equally.

LA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Muhammad Nawaz Khokhar for Appellant.

Ahmad Awais for Respondent No.2.

Muhammad Hanif Khatna Addl.-A.G. Punjab for Respondent No.1.

Date of hearing: 20th October, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 251 #

2006 P L C (C.S.) 251

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Dr. IJAZ AHMED and another

Versus

UNIVERSITY OF VETERINARY AND ANIMAL SCIENCES, through Vice-Chancellor and another

Writ Petitions Nos.8457 and 9317 of 2003, decided on 6th September, 2005.

(a) University of Veterinary and Animal Sciences, Lahore Ordinance, (XXIX of 2002)---

----Ss. 11, 21(d) & 31---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate remedy, non-availing of---Administration of justice---Dispute between the parties was with regard to selection of respondents made by the University---Grievance of petitioners was that they were more qualified for the posts in question and respondents did not have requisite qualification---Petitioner further contended that selection was not transparent as the University changed the criteria with regard to score/marks card---Plea raised by authorities was that petitioners approached the High Court without exhausting the remedy of revision---Validity---Petitioners had alternative remedy of revision under S.11 of University of Veterinary and Animal Sciences, Lahore Ordinance, 2002, against the order of the authorities---Constitutional petition though was not maintainable but High Court in the interest of justice and fairplay, sent the copy of petition to Chancellor of the University and recommended him to consider the petition as a revision---Petition was disposed of accordingly.

W.P. No.4174 of 1998 rel.

Akhtar Hussain v. Assistant Commissioner/Collector, Sub-Division, Kasur. 1996 PLC (C.S.) 943; Muhammad Din v. Government of N.-W.F.P. and 4 others 1997 PLC (C.S) 1086; Ahmad Nawaz Shah v. The Chairman 2002 PLC (C.S.) 211; Muhammad Ismail Solangi v. D.I.G. 2002 PLC (C.S.) 255; Abdul Hafeez Abbasi v. Managing Director, PIA Corporation, Karachi 2002 PLC (C.S.) 1083; Muhammad Akram Malik v. Province of Sindh, 2002 PLC (C.S.) 1037; Zulfiqar-ul-Hussain and 19 others v. Oil and Gas Development Corporation 2003 PLC (C.S.) 368; Government of Punjab v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271; Federation of Pakistan v. Muhammad Harts Hassan PLD 2004 Kar. 119; Gulistan Textils Mills Ltd v. Pakistan 1983 CLC 1474 and Islamia University, Bahawalpur v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141 distinguished.

(b) Practice and procedure---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Trustees of Post of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

----Art.199---Constitutional petition---Rule of consistency---Applicability---When a Court has taken a view in different constitutional petitions, the same Court cannot deviate from its own view on the principle of consistency.

Muhammad Muzaffar Khan v. Yousaf Khan PLD 1959 SC 9 rel.

Tallat Farooq Sheikh for Petitioners.

Akhtar Hussain for Respondent No.1.

Ch. Afzal Qureshi for Respondent No.2.

Muhammad Aslam, OSD.

Prof. Dr. Nasim Ahmad and Muhammad Mehfooz Admn. Officer.

PLCCS 2006 LAHORE HIGH COURT LAHORE 301 #

2006 P L C (C.S.) 301

[Lahore High Court]

Before Muhammad Nawaz Bhatti, J

Mst. ISHRAT BEGUM and 2 others

Versus

EXECUTIVE DISTRICT OFFICER (ELEMENTARY), DISTRICT LAYYAH and 2 others

Writ Petition No.786 of 2004, heard on 16th June, 2005.

Constitution of Pakistan (1973)---

----Arts. 199 & 11---Constitutional petition---Reinstatement in service---Withholding of salaries---Petitioners, who were dismissed or removed from service, were reinstated and were performing their duties, but their salaries were withheld on the ground that their reinstatement orders were illegal---Validity---Salaries of petitioners could not be withheld on the ground that their reinstatement orders were illegal---Pursuant to the result of de novo inquiry conducted in accordance with order of Service Tribunal, petitioners were exonerated from charges on basis of which they were dismissed/removed from service---Even otherwise making petitioners to work without payment of salaries, was against Islamic Law which had envisaged payment of wages before sweat of toil was dried up---Performance of duties under said circumstances, could also amount to forced labour which was forbidden by Art. 11 of the Constitution---High Court accepting constitutional petition directed authorities to immediately release salaries of petitioners from dates of their reinstatement in service on basis of their pay scale.

Mst. Zaib un Nisa v. The Government of the Punjab, Department of Education through Secretary and 4 others 1995 CLC 1281 and Administrator, District Council, Larkana and another v. Ghulam Khan and 5 others 2001 SCMR 1320 ref.

Tahir Mahmood for Petitioner.

Mubashir Lateef Gill A.A.-G.

Sardar Balakh Sher Khosa for Ex. DDEO (W).

Mrs. Saeeda Khanam DDEO(WEE) for Respondent No.3 in person.

Date of hearing: 16th June, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 334 #

2006 P L C (C.S.) 334

[Lahore High Court]

Before: Maulvi Anwarul Haq, J

MUHAMMAD TARIQ JAVED

Versus

INSPECTOR-GENERAL OF POLICE/PROVINCIAL POLICE OFFICER, PUNJAB LAHORE and 2 others

Writ Petition No.6-S of 2005, heard 21st June, 2005.

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

----R. 3(v)-Punjab Civil Servants Act (VIII of 1974), S. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion/move-over---Age limit---Petitioner serving as an Electrician' in BS-4 applied for move-over/promotion as Junior Clerk in BS-5 in the light of Circular letter dated 30-7-1996---In response his services were terminated on the ground of being over-age---Subsequently when advertisement was issued for filling up 12 vacancies of Junior Clerks, petitioner, tiled an application, but he was not permitted to sit in the test on the ground of being over-age---Petitioner having already worked in the Police Department, his entire period of continuous service would be excluded for purpose of upper age limit prescribed under Service Rules---Petitioner, in circumstances could not be stated to be over-age for said post---Authorities were directed to consider petitioner for promotion to the post of Junior Clerk in BS-5' in accordance with law.

Tahir Mehmood for Petitioner.

Zafarullah Khan Khakwani, A.A.G. for Respondent.

Shehzad Inspector.

Date of hearing: 21st June, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 344 #

2006 P L C (C.S.) 344

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

AHMAD NAWAZ

Versus

COMMANDANT

Writ Petition No.1808 of 1995, decided on 8th December, 2005.

Fundamental Rules---

----F.R.53 [as amended through Notification No.S.R.O.718(I) dated 2-8-1993]---Constitution of Pakistan (1973), Arts. 199 & 203-D---Constitutional petition---Payment of full amount of salary to suspended Government servant during period of his suspension---Effective date---Dispute agitated in the petition related to claim of petitioner for payment of full salary during period he remained under suspension from 20=6-1990 to 17-3-1993 i.e. the period when he was originally arrested in the case, tried and convicted by the Court---Judgment of Shariat Appellate Bench of Supreme Court directing necessary amendment in relevant law for payment of full amount of salary to a suspended Government servant during period of his suspension, came effective from 30-6-1993, the date so specified by Supreme Court in terms of Art.203-D of the Constitution in consequence whereof relevant R.53 of Fundament Rules, was amended entitling a Government servant under suspension for payment of full salary and allowances---Such rule became effective from 30-6-1993---Claim of petitioner that benefit of said amended rule be extended to him for the period of his earlier suspension from 20-6-1990 to 22-2-1993 in terms of amended Rule 53 of Fundamental Rules, neither appealed to sense nor could be legally enforced being violative of provisions of Art.203-D of Constitution mandating that law so declared against injunctions of Islam either by Federal Shariat Court or by Shariat Appellate Bench of Supreme Court, would be effective from the day specified by Federal Shariat Court or by Shariat Appellate Bench of Supreme Court in its judgment.

Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 and The Divisional Superintendent, Pakistan Railways, Lahore v. Muhammad Halim through his L.Rs. and others PLD 2000 5C 55 ref.

Malik Sadiq Mehmood Khuram for Petitioner.

Ch. Parmoon Bashir Standing Council for Respondent.

PLCCS 2006 LAHORE HIGH COURT LAHORE 505 #

2006 P L C (C.S.) 505

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALAM

Versus

ADMINISTRATOR, MUNICIPAL COMMITTEE, CHOUK AZAM and 2 others

Writ Petition No.3922 of 1999, heard on 31st January, 2006.

West Pakistan Municipal Committee Service Rules, 1969---

----Rr. 5 & 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Review application---Maintainability---Petitioner was posted as Accounts Clerk in BS-7 and said order of posting was implemented---Review application filed by respondent against said posting was dismissed by Provincial Secretary Local Government observing that there was no provision for review under West Pakistan Municipal Committee Service Rules, 1969---Review application filed by another respondent was however, allowed by Provincial Secretary Local Government---Review being a substantive right and there being no provision for review in West Pakistan Municipal Committee Service Rules, 1969, impugned order of Provincial Secretary Local Government was without lawful authority---Impugned order was set aside being illegal and void.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Messrs Kasur Oil Mills (Pvt.) Limited v. Federation of Pakistan Law, Justice and Human Rights Division through President of Pakistan, Islamabad and others 2001 MLD 665 ref.

Rana Muhammad Nazir Saeed for Petitioner.

Saifullah, Head Clerk for Respondent No.1.

?Nemo for the Remaining Respondents.

Date of hearing: 31st January, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 510 #

2006 P L C (C.S.) 510

[Lahore High Court]

Before Umar Ata Bandial, J

BUSHRA BEGUM

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education and 4 others

Writ Petition No.1266 of 2004, decided on 21st October, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition Civil service---Appointment and

termination---Reinstatement---Appellate Authority in its order had acknowledged that appointment letter of petitioner was never cancelled by concerned Authorities---Petitioner had submitted that she admittedly never was terminated from the post of S.V.T. and that one thousand other teachers holding same post of S.V.T., whose appointment had been cancelled en bloc, were restored to their posts by order of Chief Minister---Authority, in written comments had stated that no direction for reinstatement of petitioner having been given by Chief Minister, no action had been taken to assign duties to petitioner---.Stand taken by Authority, suffered from two flaws; firstly that without having been terminated from service, petitioner did not have to be reinstated and no direction by Chief Minister in her case was necessary; secondly, if one thousand similarly placed teachers had been restored to office, there was no reason for the authority to discriminate against petitioner in assigning her work---Authority was directed to assign duties to petitioner as a S.V.T., since she admittedly had never been terminated from service.

Pervaiz Inayat Malik for Petitioner.

Misbah-ul-Islam, A.-A.G. and Arshad Pervez Qamar AEO Nurkot, with record for Respondents.

Date of hearing: 21st October, 2005.

PLCCS 2006 LAHORE HIGH COURT LAHORE 521 #

2006 P L C (C.S.) 521

[Lahore High Court]

Before Maulvi Anwar-ul-Haq and Muhammad Khalid Alvi, JJ

QAMAR ABBAS

Versus

MARKET COMMITTEE, QADIR PUR RAWAN DISTRICT MULTAN through

Chairman and 2 others

I.C.A. No.208 in Writ Petition No.2446 of 2005, heard on 13th March, 2006.

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

----R. 17-A---Constitution of Pakistan (1973), Art. 199---Punjab

Agricultural Produce Market (General) Rules, 1979, R.70(6)---Petitioner after death of his father who was employee in the Market Committee, moved an application for appointment under Rule 17-A of Punjab Civil Servants Rules, 1974---Proceedings on application stated but later on were stopped---Petitioner filed writ petition against the Market, Committee but same was dismissed on ground that R.17-A was not applicable---Validity---Since there was no such controversy on record as to the applicability of Rule 17-A of Punjab Civil Servants (Appointment and Conditions of Service), Rules, 1974, impugned judgment was not sustainable and in view of Rule 70(6) of Punjab Agricultural Produce Market Rules, 1979, Rule 17-A did apply to employees of the Market Committee---Impugned order, therefore was set aside.

Makhdoom Syed Athar Hassan Bokhari for Appellant.

Asim Pervaiz Khan for Respondents.

Date of hearing: 13th March, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 523 #

2006 P L C (C.S.) 523

[Lahore High Court]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

RAFI ULLAH

Versus

DIRECTOR LAND RECORDS, BOARD OF REVENUE, LAHORE and 2 others

I.C.A. No. 505 of 2004 in Writ Petition No.17607 of 2002, decided on 11th April, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Land Reforms Ordinance (XII of 1972, S. 3---Constitutional petition---Maintainability---Intra-Court appeal---Post of patwari---Application for---Process of selection---Appellant, after interview, was placed at serial No.12 whereas respondent remained at serial No.21---Appointment of appellant was made on merits which was challenged through constitutional petition on ground that appellant was not domiciled of the relevant Tehsil on the closing date---Petition was allowed---Question was as to whether matters regarding domicile of party could be raised in constitutional petition---Domicile certificate of appellant available on record had shown appellant's abode of another Tehsil but same had been cancelled by District Magistrate of the relevant Tehsil---After cancellation of domicile of appellant a fresh domicile of relevant Tehsil was issued by the competent authority after closing date, however it had been proved on record that appellant since before his application for appointment as Patwari, was a permanent resident of the relevant Tehsil, where he was enrolled as a voter and his father owned landed property there---Disputes regarding domicile of parties required determination through recording of evidence hence such matters were entertainable by the Civil Court---Constitutional petition was, therefore, not maintainable and same was set aside by High Court in Intra-Court appeal.

Malik Noor Muhammad Awan for Appellant.

Malik Muhammad Imtiaz Mohal for Respondent No.3.

Fawad Malik, A.A.-G. for Respondent.

Fatch Muhammad, AHC, DCO Officer, Mianwali.

Liaqat Ali Bhatti, Assistant Director Land Record, Punjab.

PLCCS 2006 LAHORE HIGH COURT LAHORE 588 #

2006 P L C (C.S.) 588

[Lahore High Court]

Before Maulvi Anwarul Haq, J

JAMSHAID AHMAD

Versus

DISTRICT CO-ORDINATION OFFICER, MUZAFFARGARH and another

Writ Petitions Nos. 16 and 686 of 2006, heard on 6th April, 2006.

Punjab Revenue Department (Revenue Administration Posts) Rules, 1990---

----Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Naib Tehsildar, post of---Promotion of Senior Clerk as Naib Tehsildar by District Coordination Officer on directive of Chief Minister and not by Departmental Selection Committee---Validity---District Coordination Officer was not an Appointing Authority---Chief Minister was not attributed any role in the matter of appointments or promotions of civil servants---High Court accepted constitutional petition, declared impugned order to be without lawful authority and set aside the same with direction to convene meeting of Departmental Selection Committee in prescribed manner and take up for consideration cases of all eligible candidates including the respondent and make selection without being influenced by such directive.

Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077 and Abdul Samad Umrani and another v. Zahid Ali Badini, DSP and 4 others 2001 SCMR 65 ref.

Sahibzada Mehboob Ali Khan and Tahir Mahmood for Petitioner.

Zafarullah Khan Khakwani A.A.-G. for Respondent. Ch. Saghir Ahmad for Respondent No.2.

Mian Arshad Latif for Respondent No.3 (In W.P. No.686 of 2006).

Date of hearing: 6th April, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 596 #

2006 P L C (C.S) 596

[Lahore High Court]

Before Syed Zahid Hussain, J

Rana SAQLAIN MAHMOOD

Versus

SECRETARY LOCAL GOVERNMENT and 2 others

Writ Petition No.1269 of 2006, decided on 30th March, 2006.

(a) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005---

----Rr. 3,4, 5 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment against advertised post of Tehsil Officer (Finance)---Advertisement showing prescribed qualification as B.Com (2nd Division) from recognized University of ACMA/CA/MBA (Finance), but not mentioning any equivalent qualification---Qualification of petitioner was BBA-IT (Honours) Degree in 2nd Division from University of Central Punjab, Lahore---Petitioner passed written test, interviewed by Selection Committee and brought on merit list recommended by Punjab Local Government Board---Board instead of issuing letter of appointment to the petitioner sought clarification from Higher Education Commission regarding equivalence of his qualification with the prescribed qualification---Validity---For such post, there was no scope of any "equivalent" qualification---No justification existed to seek such clarification-Commission later on certified that qualification of petitioner was equivalent to one prescribed for the post applied for by him---Petitioner having passed written test, interview and having gone through whole process had acquired a right to appointment---Petitioner had earned legitimate expectancy, which could not be denied to him by later change of the course by Department---Action of Government having effect of marring future of someone could not be countenanced being unreasonable and unfair---High Court accepted constitutional petition directing the Department to issue appointment letter to the petitioner for such post.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others .v. Wasif Zamir Ahmad and another 1997 SCMR 15 ref.

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 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 rel.

(b) Constitution of Pakistan 1973)---

----Arts. 2-A, 4 & 18---Ensuring socio-economic justice to society---Aim of the Constitution and laws---Duty of Court to adjudicate matter as far as possible consistent with the provisions of the Constitution and applicable law---Principles.

The whole edifice of governance of the society has its genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provision of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. The objectives Resolution, by virtue of Article 2-A of the Constitution, is now substantive part of the Constitution. Fundamental Rights guaranteed under Chapter-I, Principles of Policy mentioned in Chapter-2 of the Constitution read with the provisions of Article 4 have such a rationale and objective. High Court, which is the creation of the Constitution itself is obliged to administer and dispense justice to all, be it an ordinary citizen or the Government Department. It is the duty of the Court to adjudicate a matter as far as possible consistent with the provisions of the Constitution and the law applicable.

Sh. Naveed Shehryar for Petitioner.

Ch. Aamir Rehman A.-A.G Punjab Dr. M. Mohy-ud-Din Qazi Muhammad Qamarul Haq Siddiqui and Munawar Hussain, Administrative Officers Punjab Local Government Board for Respondents.

Dates of hearing: 27th and 30th March, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 609 #

2006 P L C (C.S.) 609

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Dr. MUHAMMAD ASLAM

Versus

BHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through its Vice-Chancellor and 3 others

Writ Petition No.8263 of 2002, heard on 23rd February, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Post of one professor---Ph.D Entomology being requisite qualification---Petitioner as well as respondent applied for the said post---Both candidates were found suitable for the post advertised and were recommended by Selection Board of University for their appointment---Such recommendations were agreed upon by the Syndicate of the University in its meeting---Respondent was appointed for the post however the appointment of petitioner was decided to be made after the second post had been duly advertised---Such decision was assailed by petitioner on the ground that respondent had done his Ph.D in Zoology and since basic qualification which was Ph.D Entomology was not there respondent was not authorized to hold the said office and his appointment was illegal and void---Validity---Both candidates had studied Entomology and were possessed of Master Degrees in the said subject---Thesis on the approval whereof their respective collectorate were based pertained to Entomology without any shadow of doubt---Selection Board found both the candidates suitable--Undeniably only one post was advertised earlier and subsequently, second post was also advertised for which petitioner applied and after selection was ultimately appointed---Constitutional petition was dismissed in circumstances.

Ch. Abdul Sattar Goraya for Petitioner.

Malik M. Tariq Rajwana for Respondents Nos. 1 to 3.

Syed Aqa Asif Jafri for Respondents No.4.

Date of hearing: 23rd February, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 619 #

2006 P L C (C.S.) 619

[Lahore High Court]

Before Ali Nawaz Chowhan, J

MUHAMMAD AKBAR KHAN HOTI

Versus

FEDERATION OF PAKISTAN

Writ Petition No.195 of 2006, heard on 21st March, 2006.

(a) Civil service---

----Promotion---Intelligence reports not conveyed to civil servant could not form the basis for withholding his promotion.

Commissioner Rawalpindi Division and others v. Malik Tariq Rahim, Extra Assistant Commissioner/City Magistrate, Gujrat (sic) fol.

(b) Civil service---

----Promotion---Intelligence Reports and Annual Confidential Reports qua integrity of civil servant---Principles for evaluating both such reports stated.

The ACRs are losing their sanctity because the Reporting Officers often get influenced one way or the other or may have prejudice or a bias. But this is not something universal. Intelligence reports are not totally worthless and liable to be discarded at all. Every Government entertains these reports for knowing the facts, which are not ascertainable otherwise. But the question is, can these reports be taken as gospel truth, when these dilate on the integrity of a civil servant. The answer is yes, but not without a strong corroboration coming from the Annual Confidential Reports prescribed by the law and procedure.

A report from Intelligence Department with respect to a Government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception, which an immediate boss of a civil servant may have. Therefore, when ACRs are discarded, the intelligence report cannot take their place absolutely as this can lead to very dangerous results. At the most an overall picture can be drawn based on the statements in the ACRs and the intelligence reports.

----S.9---Constitution of Pakistan (1973), Arts.??????????? 199 & 212---Constitutional petition---Promotion to a selection post---Non? consideration of Annual Confidential Reports of civil servant by Selection Board on basis of adverse intelligence Report qua his integrity without asking his explanation thereto---Validity---Board had not ascertained from entire material as to what was the integrity of civil servant for purposes of consideration of his promotion case---Board had not ascertained, who was the author of Intelligence Report---Intelligence report, if given by a Grade IV Officer, could not be relied upon---Board had not applied its mind to civil servant's case---High Court issued mandamus to the Board to look into the entire record of civil servant and then consider such reports on basis of their intrinsic value and determine whether same was a fit case for promotion or not.

Pir Muhammad Qureshi v. Chairman POF Board. Wah Cantt and others 1998 PLC (C.S) 476; Commissioner Rawalpindi Division and others v. Malik Tariq Rahim Extra Assistant Commissioner/City Magistrate, Gujrat (sic); Muhammad Zafar Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; M.A. Rafiq v. M.D. Power WAPDA 1990 SCMR 927 and M. Ehsanul Haq v. Secretary to Government of Pakistan (1997 PLC (C.S.) 127 ref.

Barrister Masroor Shah for Petitioner.

Shamshad Ullah Cheema, Standing Counsel for Federation of Pakistan.

Date of hearing: 21st March, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 631 #

2006 P L C (C.S.) 631

[Lahore High Court]

Before Umar Ata Bandial, J

Mst. SHER BIBI

Versus

GOVERNMENT OF PUNJAB through Secretary Highway and 2 others

Writ Petition No. 15004 of 2005, decided on 10th March, 2006.

(a) Punjab Civil Servants Pension Rules, 1963---

----Rr. 2.7 & 2.12---Constitution of Pakistan (1973), Art.199----Constitutional petition---Pensionary benefits, non-granting of---Absence of civil servant from duty for 10 months prior to his death---Plea of widow of civil servant was that during such period, he was paralyzed, which resulted in his death and that he at his credit had 350 days of accumulated leave duly verified by authority in service book---Validity---Department without any reasons, had not counted such leave as qualifying service for eligibility of pension---Such absence from duty being less than one year entitled civil servant for condonation under R.2.12 of Punjab Civil Servants Pension Rules, 1963---Death of civil servant following his indisposition due to paralysis not denied by Department was a justifiable explanation of absence from duty---Widow had been deprived arbitrarily of her lawful entitlement to family pension---High Court accepted constitutional petition while directing the Department to process such case for payment of rightful pension and other dues to widow within specified time.

(b) Civil service---

----Pensionary benefits of civil servant---Valuable terms of service.

Mehdi Khan Chohan for Petitioner.

Fawad Malik, A.A.-G. for Respondent.

PLCCS 2006 LAHORE HIGH COURT LAHORE 666 #

2006 P L C (C.S.) 666

[Lahore]

Before Syed Zahid Hussain, J

Mrs. SURRAYA KHANUM

Versus

MEDICAL SUPERINTENDENT, PUNJAB INSTITUTE OF CARDIOLOGY, LAHORE and 3 others

Writ Petition No.2395 of 2006, decided on 18th April, 2006.

Constitution of Pakistan (1973)---

----Arts. 199, 4, 25, 26, 27 & 37---Punjab Health Department Nursing Services Rules, 1986---Constitutional petition---Petitioner, a Staff Nurse, had, with a view to acquire higher and better qualifications applied for admission in the course of Nursing Management and Teaching Administration, but her application was not forwarded and considered which was a refusal on the part of I-lead of the Hospital to allow her to join the course---Ground for such refusal was stated to be that, in view of policy decision of the Hospital, she had not the required length of service at her credit in the Hospital which could entitle her to join the course---Contention of the petitioner was that since the conditions of her service were governed by the Punjab, Health Department Nursing Services Rules, 1986, any such policy decision taken by the Hospital in conflict with the said Rules could neither override the Rules nor could be invoked to her prejudice; and that she even met the criteria for selection laid down by the Government of Punjab Health Department through the Prospectus for the Session 2006-07 of the said Course---Record showed that she had applied transfer to another,. Hospital and order for such transfer could not be given effect to due to subsequent ban on postings and transfers---Hospital authorities stated that the fact that no such policy was prevailing in the hospital where she was working would stand in her way if order of her transfer to the other Hospital was implemented---Held, petitioner, in circumstances, seemed to be victim of unreasonable and irrational approach of the authorities disabling her to get higher qualification, which ultimately was going to be beneficial not only to her but also to the Hospital to which she might be assigned---High Court observed that in the democratic set-up and written Constitution by which the people of Pakistan were governed, ideal situation would be if uniform policy was made, equally applicable to all similarly situated---Different policies/criteria in hospitals/institutions, in one and the same province, under the administrative control of the Health Department negate the rationale and objective behind the provisions of Art.4 and 25 of the Constitution---Concept of equality before law and that all were equal before law had its genesis in Islamic fundamental principles elaborately propounded by the Holy Prophet Muhammad (P.B.U.H.) in the Last Sermon; provisions of Arts.4, 25, 26 and 27 of the Constitution were also in line and consistent with the "equality of all" as enshrined by Islam---Not only that the Principles of Policy laid down in Art.37(c) of the Constitution also enjoined on the State to observe the same---Without dilating upon the issue as to the validity or otherwise of policy of the Hospital (length of service), High Court considered just and proper to direct that the order of Government of Punjab, Health Department, transferring the petitioner from the present Hospital to the other Hospital should be given effect to forthwith so that the petitioner may pursue her study and training through the course---Short time being left for the commencement of the training course, Addl. Advocate-General was directed to take up the matter with the concerned quarters in the 1-1'ealth Department for necessary steps in the matter.

Pervaiz Inayat Malik for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab and Mumtaz Ahmed for Respondents.

Date of hearing: 18th April, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 693 #

2006 P L C (C.S.) 693

[Lahore High Court]

Before Syed Zahid Hussain, J

Chaudhry AZHAR HUSSAIN

Versus

SECRETARY, LOCAL GOVERNEMNT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others

Writ Petition No.3673 of 2006, heard on 25th May, 2006.

(a) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005---

----R.3---Constitution of Pakistan (1973), Arts. 199 & 212---Employee of Local Government---Grievance of employee relating to terms and conditions of service---Such employee being not a civil servant---Provision of Art.212 of the Constitution was not applicable to his case---Constitutional petition was maintainable.

(b) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005---

----Rr.2(1)(e) &. 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Alternate remedy---Employee of Local Government---Impugned order passed by Government of Punjab being a final authority under R.20 of Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005---No higher authority was provided under the said Rules, where such employee could seek his remedy---Remedy of appeal under R. 20 of the Rules thus, had become merely illusory---Constitutional petition was maintainable.

Muhammad Khalid Mirza and 3 others v. Lahore Development Authority and 12 others 2004 PLC (C.S.) 800 rel.

----Rr.3, 7 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Town Municipal Officer (TMO)---Appointment of deputationist from NTC (National Telecommunication Company) as Town Municipal Officer in place of petitioner being a member of Local Council Service---Validity---Such deputationist could neither be posted nor hold such post under the Rules---After posting such deputationist in place of petitioner, consequential order of transfer of petitioner would not deprive him of his right to challenge impugned order---High Court accepted constitutional petition and declared impugned order to be illegal and of no legal effect.

Muhammad Asadullah Siddiqui for Petitioner.

Ch. Aamer Rehman. Addl. A.-G. for Respondent.

?Asmat Kamal Khan for Respondent No.3.

Date of hearing: 25th May, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 707 #

2006 P L C (C.S.) 707

[Lahore High Court]

Before Umar Ata Bandial, J

SAADIA ASLAM and 3 others

Versus

CHAIRMAN, PUNJAB WORKERS' WELFARE BOARD, LAHORE and 3 others

Writ Petition No.18837 of 2005, decided on 10th May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---General clauses Act (X of 1897), S.21---Constitutional petition---Appointment order, recalling of---Non-providing opportunity of hearing to appointee before recalling such order on the ground to have been issued against the rules---Effect---Order passed by competent authority conferring rights on a party could not be recalled without _ serving a show-cause notice granting hearing and giving valid grounds for decision taken---Impugned order was violative of the rule of natural justice resultantly appointment order stood revived.

Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector, D.I. Khan and others 2005 SCMR 85 ref.

Altaf Hussain Qureshi for petitioners.

Muhammad Nawaz Malik and Badar-ul-Amir, for Respondents Nos. l and 2.

Fawad Malik A.A.-G. with Mrs. Nasima Tahira, Director Education WWB Punjab.

PLCCS 2006 LAHORE HIGH COURT LAHORE 725 #

2006 P L C (C.S.) 725

[Lahore High Court]

Before Maulvi Anwarul Haq and Muhammad Khalid Alvi, JJ

MUHAMMAD NAEEM KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary to the Government of Punjab Agriculture Department, Lahore and 2 others

R.A. No. 8 of 1999 in Writ Petition No.386 of 1990, decided on 15th March, 2006.

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

----S. 6---Punjab Service Tribunals Act (IX of 1974), S.2(b)---Punjab Civil Servants Act (VIII of 1974), S.2(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Employee of Market Committee claiming status as civil servants---Validity---Employee of Market Committee could not be considered to be employee of Provincial Government and consequently civil servant---Applicant, who was reverted to a lower post, was not a civil servant within the meaning of Punjab Service Tribunals Act, 1974 as well as Punjab Civil Servants Act, 1974 impugned order whereby applicant was directed to approach the Service Tribunal for redressal of his grievance was not sustainable.

Qazi Akhtar Ali v. Director of Agriculture (Economics and Marketing) Punjab Agriculture House, Lahore and another 2000 PLC (C.S.) 784 ref.

Syed Aqa Asaf Jaffar for Applicant.

Zafar Ullah Khan Khakwani. A.-A.G. with Riaz Ahmad,EADA (E&M) Multan on behalf of Respondents No.1 and 2.

PLCCS 2006 LAHORE HIGH COURT LAHORE 741 #

2006 PLC(C.S.)741

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD SANA ULLAH MALIK

Versus

PUNJAB EMPLOYFES SOCIAL SECURITY INSTITUTION and another

Writ Petition No.17310 of 2002, heard on 22nd March, 2006.

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

----Rr_ 4(1)(b)(i) & 7-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reversion to lower post---Major penalty of. reversion to lower post was imposed on petitioner after holding inquiry against him 9n charge of receiving illegal gratification---Two other employees were also proceeded against along with the petitioner, but Inquiry Officer exonerated them---Contention of petitioner was that on similar facts two officers had been exonerated whilst petitioner had been punished despite fact that disciplinary proceedings undertaken against all three officers were identical, which had shown inconsistency; that a major penalty of reduction to lower post had been imposed on petitioner by Authority without a recommendation to said effect by Authorised Officer and that petitioner, in circumstances had been deprived of protection of R.7-A of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 provided a safeguard with respect to imposition of major penalty which had created a right in favour of accused employee---Authorized Officer and Authority in the case of petitioner being one and the same person, imposition of major penalty on petitioner at his hands would amount to a violation of the right of petitioner available under procedural safeguards of R.7-A Of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Order passed against petitioner, in circumstances was illegal, defective and in violation of due process and safeguard provided by law which was set askde by High Court.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Sarfraz Ali Cheema for Respondents.

Date of hearing: 22nd March, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 803 #

2006 P L C (C.S.) 803

[Lahore High Court]

Before Nasim Sikandar, J

Mst. ALTAF BIBI

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.41 of 2003, decided on 26th, May, 2004.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Civil Service---Allotment of official residential quarter---Husband of petitioner who was working as a teacher under Federal Government had died and after his death his son was appointed as Naib Qasid---Request of son of deceased for allotment of official quarter having been turned down, petitioner/mother of said Naib Qasid, had filed constitutional petition---Validity---Held, in case of death of civil servant his family must part with the possession of accommodation after expiry of prescribed limitation and in case son or daughter of late employee was in government service then he/she must stand in queue for allotment on his/her turn---No constitutional guarantee was available which could force government to provide residential accommodation to its employee---Once a civil/government servant in occupation of a government accommodation died, after the period prescribed under rules, his family would sever all connections with that house---Occupation of government accommodation by the family of a deceased civil servant, would be usurpation of the rights of other civil/government servants---Son of deceased after death of his father was continuously, living as an unauthorized occupant and High Court would never interfere for a person who was either a trespasser or an unauthorized occupant of government accommodation---Petitioner had absolutely no right, title or interest in accommodation which deceased enjoyed as a civil/government servant and which on his death automatically went back to the pool of Estate Office to be allotted to an other civil/government servant in accordance with his entitlement---No interference could be made in the matter by High Court in exercise of its constitutional jurisdiction---Constitutional petition was dismissed.

Raja Imran Aziz for petitioner.

Raja Iftikhar Javed, Standing Counsel and Syed Qaim Abbas, Joint Estate Officer for Respondents.

Date of hearing: 26th May, 2004.

PLCCS 2006 LAHORE HIGH COURT LAHORE 952 #

2006 P L C (C.S.) 952

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs BILQEES AKHTAR, NURSING INSTRUCTOR

Versus

GOVERNMENT OF PUNJAB through Secretary, Health Department and 4 others

Writ Petition No.146, of 2006 decided on 19th January, 2006.

Constitution of Pakistan (1973)---

----Arts. 199 & 212(3)---Constitutional petition---Civil Service---Transfer---Petitioner, who was a civil servant, felt aggrieved of her transfer contending that impugned transfer order was violative of transfer policy in force as also directives of Supreme Court in the case reported as PLD 1995 SC 530---Validity---Under provisions of Art.212(3) of the Constitution, matter was not cognizable by the High Court---Constitutional petition, however was disposed of by the High Court with direction that petitioner ought to immediately file departmental appeal before competent Authority---In case such appeal was filed, same would be decided strictly in accordance with applicable rules and transfer policy and more particularly in the light of directives of Supreme Court.

Zahid Akhtar's case PLD 1995 SC 530 ref.

Muhammad Ghias ul Haq Sheikh for Petitioner.

PLCCS 2006 LAHORE HIGH COURT LAHORE 964 #

2006 P L C (C.S.) 964

[Lahore]

Before Umur Ata Bandial, J

EHSAN ULLAFI and 3 others

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 4 others

Writ Petitions Nos.395, 4635, 3833, 4186, 3962, 3560, 1734, 3242, 4544, 802, 788, 712, 660, 787and 3181 of 2006, decided on 23rd May, 2006.

(a) Police Order (22 of 2002)---

----Art. 112---Punjab Civil Servants (Relaxation of Upper Age Limit) Rule, 1976---Maxim Generalia specialibus non derogant (special provision excludes the general provisions)---Applicability---Standing order in question was neither approved by Provincial Government nor notified in official Gazette and thus it did not have the status of rules conferred by Art.112 of Police Order, 2002 upon an instrument issued by Provincial Police Officer having such attributes---Interpretation of maxim, generalia specialibus non derogant, therefore, did not apply to exclude Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976, from governing the standing order in question.

(b) Police Order (22 of 2002)---

----Arts. 7 (3), 10 & 112---Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976, R.3 (v), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Standing Order---Recruitment of Assistant Sub-Inspector of police---Upper age limit---Petitioners already serving in police department were aggrieved of the Standing order issued by Provincial Police Officer, whereby the upper age limit for the recruitment was fixed 33 years---Plea raised by the petitioners was that under R.3 (v) of Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976, the upper age limit for in-service candidates was 35 years, thus the Standing Order was ultra vires the statutory rules---Validity---Standing Order in question was neither approved by Provincial Government nor notified in official Gazette, therefore, it did not have the status of rules conferred by Art.112 of Police Order, 2002 upon an instrument issued by Provincial Police Officer having such attributes---Upper age limit for in-service candidates to be assessed by Punjab Public Service Commission, for the post of Assistant Sub-Inspector was 35 years, under the applicable provisions of the first proviso to R.3 (v) of Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976; as such the Standing Order insofar as it prescribed 33 years as the upper age limit for induction of in-service candidates, was violative of Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976, therefore, same was without lawful authority and of no legal effect---High Court directed that selection process to be adopted by Punjab Public Service Commission would accordingly proceed on the basis of a written examination of all eligible in-service candidates subject to an upper age limit of 35 years---Constitutional Petition was allowed accordingly.

Muhammad Qasim and 6 others v. Home Department, Government of the Punjab 2004 PLC (C.S.) 69 ref.

----Art.10 (3)---Administration of police---Standing order---Object and scope---Standing Order contemplated in Art.10 (3) of Police Order, 2002, is an administrative directive meant to control and regulate the functioning of police---Any Standing Order issued by Provincial Police Officer under Art.10 of Police Order, 2002, can be no better than an executive order and must, therefore, yield to legal requirements imposed by applicable statutory rules.

(d) Punjab Public Service Commission (Function) Rules, 1978---

----R.3---Police Order (22 of 2002), Art.7 (3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recruitment of Assistant Sub-Inspector of Police---Role of Punjab Public Service Commission--Dispensing with written test---Grievance of petitioner was that Punjab Public Service Commission should not dispense with the written test for selection of the candidates---Validity---Significant difference existed when Punjab Public Service Commission's involvement in recruitment for? public posts was by statutory intent and not merely by executive order--Punjab Public Service Commission must conduct tests and examination under R.3 of Punjab Public Service Commission (Function) Rules, 1978, for recruitment of any post referred by Chief Minister---Statute had provided the reference to Punjab Public Service Commission and, therefore, the competitive process of selection of Assistant Sub-Inspectors could not be consigned to a method of assessment dependent on human discretion that lacked verifiable objectivity---Hallmark of the Punjab Public Service Commission selection process lie in its objectivity to assess the competition for a post, from material that was duly reflected on record, assuring verifiability of such evaluation---Written examination , was a necessary means of fair assessment of the merit of candidates for public posts---Resort to such method of testing should not be left to depend on the statistical ratio between the number of applicants and the posts available---Interview alone suffered from flaws, like unreliability to test comprehensively, non-reviewability of performance and the risk of bias by destruction of anonymity of candidates---High Court directed Punjab Public Service Commission to ensure that a written examination be also included as testing method for in-service candidates for the posts of Assistant Sub-Inspectors---Constitutional petition was allowed accordingly.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Lila Dhar v. State of Rajasthan and others AIR 1981 SC 1777 rel.

Mian Muhammad Ismail Taheem for Petitioner.

Mr. Fawad Malik, A.A.-G.

PLCCS 2006 LAHORE HIGH COURT LAHORE 975 #

2006 P L C (C.S.) 975

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Jahangir Arshad, JJ

MUMTAZ ALL, DEPUTY DISTRICT OFFICER (BUILDING)

Versus

SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF PUNJAB and another

I.C.A. No.246 in W.P. No.1896 of 2005, heard on 18th May, 2006.

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

----S. 3(2)---Law Reforms Ordinance (XII of 1972), S.3---Interference in matter of show-cause notice by High Court under Constitutional jurisdiction---Intra-Court appeal proceeded against judgment of Single Judge whereby constitutional petition was partly allowed, but interference in the matter of issuance of show-cause notice impugned therein was refused---Constitutional petition was filed primarily with the grievance that judgment in the matter of reinstatement and consequent benefits was not being implemented---Single Judge of High Court had granted said prayer and had directed authorities to implement judgment in letter and spirit and so far as refusal to interference in the matter of issuance of show-cause notice was concerned same was fully supported by said judgment---Validity---Held, show-cause notice would not cause a grievance and employee should wait for conclusion of proceedings.

Muzaffar Hussain v. The Superintendent of Police, District Silakot 2002 PLC (C.S.) 442 and Allah Bakhsh and others v. D.I.G. Police and others NLR 2003 UC 60 ref.

Muhammad Suleman Bhatti for Appellant.

Zafarullah Khan Khakwani, A.A.-G. for Respondent.

Tariq Javed, Dy. Director Legal (C&W) Deptt.

Date of hearing: 18th May, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 989 #

2006 P L C (C.S.) 989

[Lahore High Court]

Before Muhammad Jahangir Arshad, J

MUHAMMAD YAR PATWARI

Versus

DISTRICT COORDINATION OFFICER, SAHIWAL and 3 others

Writ Petition No.1890 of 2006, decided on 25th April, 2006.

Constitution of Pakistan (1973)---

---Arts .199 & 212(2)---Constitutional petition---Civil service---Objection to transfers in succession within a period of two months through constitutional petition---Maintainability---Bar as contained in Art.212 of the Constitution was applicable on matters of postings/transfers, however High Court in the interest of justice condemned the directions issued by Chief Minister of the Province and act of Additional Secretary (Admn.) conveying such oral directions of Chief Minister telephonically to the subordinate authorities for making transfers/postings/adjustments of his own choice in violation of both tenure policy of the Government and rule that government servant should comply only with those orders/directions of his superior which were legal and within his competence---Civil servant's repeated transfers from one place to another in a span of few months by order of Minister concerned and carrying out of such orders obediently by Secretary of the Department concerned was highly unethical and undesirable---High Court disposed of the Constitutional petition accordingly

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development Lahore and 2 others PLD 1995 SC 530 and Abdul Rehman Shaukat v. Sardar Muhammad Akram Javed, District Officer (Revenue), Kasur PLD 2004 Lah. 815 ref.

Iqbal Hussain Pawar Hajwari for the Petitioner.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1014 #

2006 P L C (C.S.) 1014

[Lahore High Court]

Before Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ

MUHAMMAD HANEEF

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 3 others

I.C.A. No.95 of 2005 in Writ Petition No.4734 of 2004, decided on 27th April, 2006.

Police Rules, 1934---

----R.13.9(1)---Punjab Service Tribunals Act (IX of 1974),S.4---Constitution of Pakistan (1973), Arts.199 & 212---Head Constable of Police---Promotion to the rank of Assistant Sub-Inspector---Appellant, who had qualified intermediate course in 1993 and was placed in list-D from said year claimed the given promotion with effect from 1988 when his batchmates were promoted although he had not even passed said examination at that time---Validity---Rule13.9(1) of Police Rules, 1934 provides that for promotion and placement in list-D passing of intermediate course was a condition precedent for being eligible and appellant who had admittedly not passed the intermediate course in 1988 with his batchmates could not claim his conferred promotion and placement in list-D retrospectively---If appellant felt that this eligibility was not correctly determined then the same was a fresh cause of action for which he might approach the competent authority as it was the question of fitness and not the eligibility for promotion could be raised only before the Service Tribunal and bar created by Art.212 of the Constitution would be operative in the case.

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

Muhammad Ramzan Khalid, Joiya, Zafarullah Khan Khakwani, A.A.-G.

Mirza Ramzan Baig, DSP for Respondent No.2.

Mushtaq Ahmed Inspector Legal Multan.

2006 P L C (C.S.) 1137

[Lahore High Court]

Before Sh. Hakim Ali, J

NUSRAT IQBAL and others

Versus

CH. FAQEER MUHAMMAD, DIRECTOR, AGRICULTURAL ENGINEERING, MULTAN REGION, MULTAN

Criminal Original No.295-2005/BWP in Writ Petition No.172-2005/BWP decided of on 1st March, 2006.

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

----R.7---Promotion---Entitlement---Employees were roaming here and there since long, but had not been granted promotion in the Department, whereas another employee had been promoted on regular basis---Director-General of the Department, was reminded by the High Court that case of employee be considered as early as possible with regard to framing of rules or any other appropriate legal order that could be passed concerning their promotion, within specified period.

M. Shamshir Iqbal Chughtai for Petitioners.

Hafiz Muhammad Abdul Qayyum for Respondent.

Ch. Shafi Muhammad Tariq, A.A.G.

Ch. Faqir Muhammad, Director in person.

Bashir Ahmad Gondal in person.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1145 #

2006 P L C (C.S.) 1145

[Lahore High Court]

Before Umar Ata Bandial, J

QAISER ABBAS

Versus

EXECUTIVE DISTRICT OFFICER (C.D.), BHAKAKR and 6 others

Writ Petition No.11031 of 2005, decided on 14th October, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---- Respondents in an earlier constitutional petition, were directed to decide representation of petitioner for appointment---Selection Committee decided that petitioner lacked necessary qualification---Said decision was challenged by petitioner in second constitutional petition in which said decision of Selection Committee was set aside and matter was remanded to authorities for appointment of petitioner on the ground that he had a vested right---Authorities finally passed impugned order to the effect that petitioner had neither requisite qualification nor authorities had power to condone the same---Petitioner, meanwhile had acquired requisite qualification which was brought to the notice of authorities but again no order was passed on that application---Authorities explained that, petitioner having acquired required qualification, he would be appointed when fresh posts would be advertised---Said explanation was not satisfactory and same would amount to defy the orders of High Court on technicalities---Authorities were directed by the High Court to do the needful within specified period in accordance with law.

Syed Farooq Hassan Naqvi for Petitioner.

Misbah ul Islam, A.A.G.

Muhammad Shahid Rana, D.D.O: Social Welfare.

Maqsood ul Hassan, Supervisor Social Welfare.

Muhammad Hanif on behalf of DG (S. W.) Lahore.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1238 #

2006 P L C (C.S.) 1238

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MAQBOOL HUSSAIN ASIF and 8 others

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and another

Writ Petitions Nos.5946, 6332, 6018 of 2004 and 216 of 2005, heard on 29th June, 2006.

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

----Ss. 191 & 196---Punjab Local Councils Servants (Service) Rules, 1997, R. 4(v)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion, review of---Petitioners were appointed by competent authority of erstwhile Zila Council---After promulgation of Punjab Local Government Ordinance, 2001, the petitioners were transferred to various union councils where they were promoted by Zila Nazims on the recommendation of Selection Committees---Petitioners were aggrieved of the letter/circular issued by authorities, whereby their promotions were reviewed---Plea raised by petitioners was that executive order could not override the statutory rules---Validity---Statutory rules were framed in exercise of powers conferred by statute by the competent authority and the same could not be set at naught by the executive by issuing a circular---Not even an allegation existed to the effect that any of the petitioners was not eligibly to be promoted to the post or that any right of any other servant of respective union council had been infringed---Orders issued by the authorities were declared to be without lawful authority and were set aside---Petition was allowed in circumstances.

Qamar-uz-Zaman Butt for Petitioner.

Zafar Ullah Khan Khakwani, A.A.G. for Respondent.

Jawad Shahid for Respondents No.2.

Arshad Mehmood, DDO (G) and Abdul Hamid, Assistant with records for Respondent.

Date of hearing: 29th June, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1245 #

2006 P L C (C.S.) 1245

[Lahore High Court]

Before Umar Ata Bandial, J

Mst. SAJIDA PERVEEN

Versus

CITY DISTRICT GOVERNMENT through District Nazim and others

Writ Petition No.14816 of 2004 decided on.25th January, 2006.

West Pakistan Civil Servants Pension Rules, 1963---

----R. 3.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Retiring pension---Entitlement---Proviso added to R.3.5 of West Pakistan Civil Servants Pension Rules, 1963, required that a Government servant opting to retire on completion of 25 years' service, must give 3 month's prior written intimation to his appointing Authority about the date when he wanted to retire---Petitioner's deceased husband who opted for voluntary retirement after completion of 25 years' service, filed application in that respect, but before expiry of mandatory period of 3 months, petitioner's husband/employee died---Authorities took stand that said notice period of 3 months being mandatory which had not expired, retirement pension available upon optional retirement on completion of 25 years' service, could not be granted to petitioner and she was given only a family pension---Validity---Retirement in West Pakistan Civil Servants Pension Rules, 1963 for three months to pass before the date of retirement fixed the earliest date when retirement would become effective which gave the employer department 90 days time to organize its work, arrange replacement of opting employee, apart from giving government advance notice of its financial obligation---Impugned action in the case interpreted proviso to R.3.5 of West Pakistan Civil Servants Pension Rules, 1963 to mean that in the event of death of deceased employee he had revoked his option which was neither intention nor the effect of said proviso---Entitlement to a retiring pension, was an incident of a valid option to retire exercised after 25 years' service and that right could not be destroyed without express language of the law-maker---As death and not any voluntary act of revocation intervened the date of opted retirement of petitioner's husband, his death could not be penalized by being characterized as a revocation---Impugned action of the authorities was illegal---Petitioner remained entitled to receive retirement benefits due on opted retirement of her deceased husband being valid and effective---Authorities were directed to release to petitioner retiring pension to which she was entitled.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 ref.

Shaukat Hussain Khan Balouch for Petitioner.

Kashif Nawaz Bajwa for Respondents.

Date of hearing: 25th January, 2006.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1299 #

2006 P L C (C.S.) 1299

[Lahore High Court]

Before: Maulvi Anwarul Haq J

DR. MUHAMMAD ARSHAD

Versus

GOVERNMENT OF PUNJAB through Chief Secretary Punjab Civil Secretariat, Lahore and 10 others

Writ Petition No.2713 of 2006, decided on 26th June, 2006.

Constitution of Pakistan (1973)---

----Arts. 199 & 212 (1)(a)---Constitutional petition---Promotion--Petitioner's claim to be senior to respondents---Selection Board considered both petitioner and respondents, but recommended respondents for promotion and not the petitioner---Transfer of respondent and his posting on promoted post---Selection Board in its subsequent meeting recommended petitioner for promotion with effect from the date when private respondents were promoted---Undertaking given to High Court by department that after approval of petitioner's promotion by competent authority, notification of his promotion would be issued---Effect---Grievance of petitioner stood adequately redressed by such undertaking---Matter of transfer and posting was within domain of competent departmental authorities---Transfer or posting to certain post was a matter pertaining to terms and conditions of service---High Court in view of such undertaking disposed of constitutional petition with direction to issue requisite notification/order within specified time.

Malik Muhammad Rafiq Rajwana, Hafiz M. Naveed for the Petitioner.

Zafarullah Khan Khakwani, A.-A.G. Sardar Riaz Karim for Respondents Nos.8 to 11.

Muneeb ur Rehman, SO(CO), Muhammad Yousaf, SO (Legal), Muhammad Qasim, Litigation Officer, Abrar Hussain, Assistant Health Department.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1301 #

2006 P L C (C.S.) 1301

[Lahore High Court]

Before Mian Saqib Nisar, J

MUHAMMAD YAQOOB

Versus

P.I.A. through Security Incharge Atlanta Iqbal International Airport, Lahore

Writ Petition No. 6608 of 2004, decided on 21st September, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Non-regularization of service---Petitioner could not make any grouse or grievance against respondent/P.I.A. for his non-regularization as petitioner was not employee of respondent/P.I.A., but had been employed by a contractor agency.

Farid Ahmed v. Pakistan Burma Shell Ltd. 1987 SCMR 1463 ref.

Mian Jaffer Hussain for Petitioner.

Umer Sharif for Respondent.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1302 #

2006 P L C (C.S.) 1302

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Muhammad Afzal Soomro, J

SIAFUL ISLAM

Versus

FEDERATION OF PAKISTAN and others

Constitutional Petition No.D-768 of 2004, heard on 26th September, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Laches---Civil service---Appointment---Petitioner applied for direct appointment as Inspector in the Income Tax Department pursuant to an advertisement in the press---Petitioner was declared at serial No.17 in the merit list on the basis of written test and interview conducted by Selection Committee---Other candidates who were selected, but were not given appointment, approached High Court by filing constitutional petitions, which were allowed and authorities were directed to appoint candidates in their' respective order of merits upon vacancies for direct recruitment in accordance with Rules on basis of recommendation of Selection Committee---Position of petitioner though was identical to those who were held entitled to appointment in their constitutional petitions, but he was not issued appointment letter---Constitutional petition of petitioner was opposed by authorities on the ground of latches---Validity---Laches could be a ground for refusing discretionary relief, which was normally granted when petitioner would approach the Court within a reasonable time---In service matters, however, when rights were regulated by statutory Rules matter seemed to be slightly different---If the Service Tribunal or Supreme Court decided a point of law relating to the terms of service of a civil servant which covered not only the case of civil servant who litigated, but also others, dictates of justice and rule of good governance demanded that the benefit of such judgment should also be extended to other civil servants who were not be parties to the litigation---Once relief had extended to petitioners in earlier two constitutional petitions, petitioner in the present case could legitimately expect that he would be also appointed on the basis of same principle and wait for some time thereafter and it was difficult to assert that petitioner slept over the case and his petition suffered from laches---Allowing petition, authorities were directed to effect appointment of petitioner, whenever a vacancy for direct recruitment would arise.

Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Syed Arif Ali for Petitioner.

Nadeem Azhar D.A.G. and Mr. S.M. Iqbal Shah for Respondents.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1308 #

2006 P L C (C.S.) 1308

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Mrs. Qaiser Iqbal, J

Dr. MUHAMMAD AHMED

Versus

FEDERATION OF PAKISTAN and others

Civil Petition No. D-277 of 2006, decided on 22nd March, 2006.

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

----R. 3(2)---Constitution of Pakistan (1973), Arts.199 & 212(2)---Constitutional petition---Transfer on deputation---Petitioner had sought declaration that appointment of respondent by way of transfer on deputation be declared illegal and liable to be cancelled---Petitioner could not specifically point out any illegality in the posting and appointment of respondent---Validity---Held, under the law, a civil servant of the Province could always be deputed to serve under Authority and vice versa---Nothing was on record to show as to how respondent was deficient in terms of prescribed qualifications---Posting of a civil servant against a particular post was discretionary and fell within the domain of the Government---Discretion in service matters should not be exercised by Authority in arbitrary or fanciful manner, but only according to law in the interest of good governance---Petitioner and respondent were civil servants, and their transfer and postings were relatable to the terms and conditions of service and same could not be challenged by invoking extraordinary jurisdiction of High Court as matter would fall within the exclusive jurisdiction of appropriate Service Tribunal, under Art.212(2) of Constitution.

Mir Shah Nawaz Marri, Ex Director, Mineral Development v. Government of Balochistan 2000 PLC (C.S.) 533; Miss Rukhsana Ijaz Secretary, Education, Punjab's case 1997 SCMR 167; Ayyaz Anjum v. Government of Punjab Housing and Physical Planning Department 1997 PLC (C.S.) 123; Muaeem Khan v. Federation of Pakistan PLD 2000 Peshawar 1 ref.

Muhammad Khalil Dogar for Petitioner.

PLCCS 2006 LAHORE HIGH COURT LAHORE 1320 #

2006 P L C (C.S.) 1320

[Lahore High Court]

Before Nasim Sikandar, J

MUHAMMAD KHALIQ-UR-REHMAN

Versus

SECRETARY HOUSING URBAN DEVELOPMENT AND PUBLICHEALTH ENGINEERING DEPARTMENT and 2 others

Writ Petition No.8525 of 2006, decided on 8th August, 2006.

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

----Rr. 4(1)(b)(i), 5, 6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Imposition of major penalty of reduction in rank---Inquiry proceedings---Change of Inquiry Officer---Petitioner serving as Deputy Director PHATA, was proceeded against and after completion of departmental proceedings, respondent was appointed Inquiry Officer to afford personal hearing to petitioner---Respondent, after hearing petitioner, recommended imposition of major penalty on petitioner and competent Authority on such recommendation imposed major penalty of reduction in rank of petitioner---Pending appeal against order of competent Authority respondent was again appointed Inquiry Officer and petitioner objected to his such appointment on the ground that having already expressed his mind in the earlier departmental proceedings, he did not expect a free and fair trial at the hands of respondent---Application of petitioner in that respect having been rejected, petitioner had filed constitutional petition against rejection order---In absence of any legal compulsion, respondent should not have been appointed again as Inquiry Officer in case of petitioner---Expression of no-confidence of petitioner as an accused, may not be well-founded, but appointment of respondent as Inquiry Officer in case of petitioner, was against the established principle that justice should not only be done, but it should manifestly be seen to have been done---Confidence of a party in the proceedings on the person or the Judge or arbitrator was the first step towards a free and fair trial---Respondent, as Inquiry Officer in the case having already been familiar with a number of facts on the basis of which he found petitioner to have been guilty of misconduct, was likely to remain under influence of his earlier findings---In order to answer the basic and elementary requirement of justice, equity and fair play, Authority was directed by the High Court to appoint some other person/Inquiry Officer in place of respondent to proceed against petitioner as an Inquiry Officer.

Syed Ijaz Qutub for Petitioner.

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

PLCCS 2006 LAHORE HIGH COURT LAHORE 1334 #

2006 P L C (C.S.) 1334

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD KHALID MIRZA and others

Versus

THE CHAIRMAN, LDA and others

Writ Petition No. 194 of 2005, heard on 11th September, 2006.

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

----S.8----Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Entitlement---Petitioners in their petition had sought declaration that order promoting respondents and ignoring them from said promotion be declared illegal, unlawful, arbitrary, for ulterior motives, without jurisdiction and without lawful authority and of no legal effect---Validity---For maintaining, a petition under Art.199 of the Constitution and invoking jurisdiction of High Court, it was to be shown that person invoking jurisdiction of the High Court, was an "aggrieved person"---Petitioners who lacked the requisite experience and were ineligible to be considered for promotion when respondents were promoted, petitioners had no locus standi to assail their promotion.

Managing Committee, Masjid Muhajreen Lahore v. S. Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner and 2 others PLD 1972 Lah. 245. The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489 and Messrs Associated Cement Companies Ltd v. Pakistan through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151 ref.

Pervaiz Inayat Malik for Petitioners.

Mian Muzaffar Hussain and Asmat Kamal Khan for Respondents.

Date of hearing: 11th September, 2006.

Muhammad Saeed Khan, A.-A.G. and Salahuddin Khan, D.A.G. for Respondents.

Date of hearing: 1st March, 2006.

PLCCS 2006 PESHAWAR HIGH COURT 813 #

2006 P L C (C.S.) 813

[Peshawar High Court]

Before Shahjahan Khan and Fazlur Rehman Khan, JJ

ROOH-UL-AMIN

Versus

UNIVERSITY OF PESHAWAR and 3 others

Writ Petitions Nos. 1152 and 1153 of 2005, decided on 18th April, 2006.

(a) Interpretation of statutes---

----Non-obstante clause---Objects----Any phrase or a sentence in a statute beginning with or prefixed by the word "notwithstanding" was called "non-obstante clause" and its main objects were, either to create an exception, where there was a conflict between two provisions of a statute or it could be clarificatory of the original position and introduced only by way of abundant caution.

PLD 1979 Lah. 603; PLD 1979 Lah, 603 and PLD 1988 Lah. 725 ref.

(b) North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)---

----Preamble & S.11---Object and purpose of North-West Frontier Province 'Removal from Service (Special Powers) Ordinance, 2000---Preamble of the Ordinance, would show that it was promulgated keeping in view the prevailing circumstances and for furtherance of good governance to provide for speedy measures relating to dismissal, removal etc. of certain persons from government service or corporation service without repealing the laws already applicable to such persons; or in other words, that the Ordinance was co-existent with such other laws; meaning thereby that if the competent Authority wanted to proceed against a person under the Ordinance; then provisions to the contrary contained in such other laws, were to be ignored and vice versa---Such was the clarification, which had been introduced by S.11 of North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 by using non-obstante clause therein.

Ijaz Anwar for petitioner.

Wasimuddin Khattak for Respondents.

Date of hearing: 18th April, 2006.

PLCCS 2006 PESHAWAR HIGH COURT 1105 #

2006 P L C (C.S.) 1105

[Peshawar High Court]

Before Salim Khan and Hamid Farooq Durrani, JJ

SHAHID IQBAL

Versus

SECRETARY TO GOVERNMENT OF N.-W.F.P. SCHOOLS AND LITERACY DEPARTMENT, PESHAWAR and 3 others

Writ Petition No.62 of 2006, heard on 16th July, 2006.

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

----Art. 199---Constitutional petition---Aggrieved person---Civil service---Appointment---Petitioner who fell at Serial No. 156 with his Session of 1998 was not appointed, while candidates up to Serial No.27 with Session up to 1992 were appointed against available vacancies of C.T.---Petitioner was not appointed on the ground that his batch being of 1998 was a very late batch and that it was not possible to appoint him---Validity---Candidates of batch 1992 and 1993 would have a cause of action and grievance if they were not appointed on their turn, if they had qualified in the test and interview and other formalities for appointment---Batch of petitioner being 1998 was very late, he did not have any cause of action for the time being and was not an "aggrieved person"---Entitled persons, even if were not available before the Court, would not lose their rights which had accrued to them in consequence of a judgment of a Court of law due to their equality with those who were available before the Court and judgment had been passed in their favour---By just coming to the Court with a petition, without any cause of action and a grievance, petitioner would not become entitled to snatch rights from entitled persons who were not available before the Court.

(b) Civil service---

----Appointment---Prescribed qualifications---Prescribed qualifications were those which were prescribed by employing/recruiting Authority for certain posts without which a candidate would not be eligible, even, to apply for such posts---Such qualifications would be minimum qualifications for the posts---Policy of Government was that persons of higher qualifications were not debarred from applying and contesting for the posts for which lower qualifications had been prescribed and it was according to the policy of the Government to declare whether extra marks would or would not be allocated to the person having higher qualifications.

Lal Khan for Petitioner.

D.A.-G. for Respondents.

Date of hearing: 16th June, 2006.

PLCCS 2006 PESHAWAR HIGH COURT 1140 #

2006 P L C (C.S.) 1140

[Northern Areas Chief Court]

Before Muzaffar Ali, J

Miss TEHSEEN KHALID

Versus

VICE CHANCELLOR, KIU, GILGIT and 2 others

Writ Petition No.44 of 2004, decided on 7th September, 2005.

Civil Service---

----Appointment against advertised post---Termination---Effect---Principle of audi alteram partem---Scope--Petitioner was appointed against an advertised post of Lecturer but her services were terminated without affording her an opportunity of hearing---Respondent's contention was that petitioner's services were terminated because she failed to produce her final result of M.Sc.---Validity---Termination of petitioner's services was in violation of principle of audi alteram partem which not only recognized the right of personal hearing to a person against whom an adverse order was to be passed but equated with fundamental right---An adverse order passed against a person without affording him an opportunity of personal hearing was to be treated as a void order---Principle of audi alteram partem was always deemed to be embedded in statute even though there. was no specific or express provision in this 'regard---Audi alteram partem, a principle of natural justice could only be avoided if it was proved that a, person against whom an adverse order was being passed had no vested right to be heard---Petitioner did not conceal any fact from respondents---Production of final result of M.Sc. within a stipulated time had not been mentioned in terms and conditions of petitioner's appointment---Petitioner was allowed to continue her duties subject to production of her final result of M.Sc. before respondent concerned---Petition was accepted accordingly.

2005 SCMR 1814; 1994 SCMR 2234; 2000 SCMR 907 and 2002 SCMR 769 rel.

Shafqat Wali for Petitioner.

Munir Ahmad and Ali Khan for Respondents.

Date of hearing: 1st September, 2005.

PLCCS 2006 PESHAWAR HIGH COURT 1311 #

2006 P L C (C.S.) 1311

[Peshawar High Court]

Before Dost Muhammad Khan, J

EMPLOYEES ACTION COMMITTEE

Versus

GOVERNMENT OF PAKISTAN and others

Civil Revision No.100 with C.M. No.138 of 2001, Civil Revisions Nos.593 of 1998, 485 to 488 of 2000, 387 and 389 of 2001, decided on 26th June, 2006.

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

---S.10---Constitution of Pakistan (1973), Art.247 (3)---Transfer to Provincially or Federally Administered Tribal Area---Effect---All Provincial or Federal Government employees on transfer to an area/territory where legislative authority of Parliament or Provincial Assembly does not extend in view of Art.247 (3) of the Constitution, would not "ipso facto" take them out of the umbrella of Civil Servants Act enacted under Provincial or Federal Government because their terms and conditions of service like promotion, seniority, removal, termination, dismissal and retirement from service would still be governed and, regulated by the Acts and rules framed thereunder.

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

----S.42---Income Tax Ordinance (XXXI of 1979), S.12---Constitution of Pakistan (1973), Art.247 (3)---Suit for declaration---Civil servants, status of---Serving in Provincially Administered Tribal Area---Deduction of income tax---Plaintiffs were civil servants appointed in Provincially Administered Tribal Area, who had assailed deduction of income tax from their salaries on the ground that the provisions of Income Tax Ordinance, 1979, were not extended to such areas---Courts below had adopted mutually inconsistent view on point of law---Held, it was true that Income Tax Ordinance, 1979, had not been extended to area within the meaning of Art.247 (3) of the Constitution but all Government servants within the Province or serving under Federation constituted one body/setup and they were liable to pay income tax on the income derived from their salaries---Every income derived through salary was chargeable to tax, if it was paid by Government or a local authority controlled by Government or if it had accrued in Pakistan irrespective of the place of payment thereof---Statute, therefore, had empowered the Authority in unambiguous terms to impose and charge tax on the income derived through salaries paid to Government servants, whether posted within taxable area to which Income Tax Ordinance, 1979, was extended or he was serving beyond the frontiers of that area---Charging provisions, follow the income of Government servant which he received from Government as a salary, and have no relevancy with the place of posting---Territorial barriers had no impact or effect on such charge---Plaintiffs being Government servants, whether serving in Federal Government or Provincial Government or under local authorities which were funded by Government exchequer were liable to pay income tax within the meaning of S.12 of Income Tax Ordinance, 1979, on account of income derived through salaries---Assessment order/notice issued by Income Tax Officer of the circle concerned for charging and levying income tax on their salaries was lawful and valid.

Sanaullah Khan v. Province of Baluchistan through Secretary, Finance Department, Quetta and 3 others 1995 PTD 350 and CIT v. Air France Ltd. 2001 PTCL 3701 rel.

CIT Peshawar v. Messrs Gul Cooking Oil and Vegetable Pvt. Ltd. PLD 2003 SC 614 distinguished.

----Taxing statute---Necessary ingredients---Taxing statute invariably contains three different types of provisions---First part is called charging provision, which relates to levy or charging of tax---Such provision also provides manner of imposing tax and method of levying the same---Second one is assessment part, which controls and regulates assessment, calculation and quantification of tax which becomes due and can be levied and recovered---Assessment may be a new taxing provision or an old one providing for discovering and calculation of escaped tax, which has either been not assessed or under assessed or over assessed where refund is permissible---Third limb relates to recovery of tax assessed and determined, which is a machinery provision providing various means and methods for its recovery.

Said Rahman Khan for Petitioner.

Eid Muhammad Khattak for Respondents.

Date of hearing: 26th June, 2006.

PLCCS 2006 PESHAWAR HIGH COURT 1372 #

2006 P L C (C.S.) 1372

[Peshawar High Court]

Before Salim Khan and Hamid Farooq Durrani, JJ

MUHAMMAD IBRAR KHAN

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Revenue, Peshawar and 13 others

Civil Miscellaneous Nos.128, 129, 130, 131 and Writ Petitions Nos.86, 142, 38 and 39 of 2006, heard on 16th June, 2006.

Land Record Manual---

---R. 3.10, Chap.-III, Part II---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Eligibility to be trained in Patwar Training School---Upper age limit for the candidates was 25 years and only candidates already in service as Patwaris were eligible for training beyond the age of 25 years---Petitioners could not show that they were enlisted candidates/accepted candidates and their names appeared in the register for Patwari candidates---Such persons could have certificates from certain Patwaris, but they did not have any document to the effect that they had submitted applications for the entry of their names in the register and their names appeared/entered in such a list---Petitioners, in circumstances, did not 'ball in the category of accepted candidates---Petitioners were not officially appointed/employed Patwaris and there was no speciality in their case for special permission/exemption from passing through the training course before examination---Petitioners fell under the category of un-accepted candidates and it was the discretion of Director Land Records to either allow or refuse admission to petitioners to the Patwar Training School---Petitioners, in circumstances were not entitled to the concessions available to Patwaris who were already in active service of the Government.

Ghulam Younas Khan Tanoli for Petitioner.

Q. Abdul Rasheed. D.A.-G. for Respondents.

Date of hearing: 16th June, 2006.

Quetta High Court Balochistan

PLCCS 2006 QUETTA HIGH COURT BALOCHISTAN 38 #

2006 P L C (C.S.) 38

[Quetta High Court]

Before Raja Fayyaz Ahmad, C. J. and Akhtar Zaman Malgani, J

GHULAM HASSAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Education, Quetta and another---Respondents

Constitutional Petition Nos.52, 149 and 196 of 2000, decided on 16th April, 2003.

(a) Balochistan Board of Intermediate and Secondary Education Employees Service Regulations, 1991---

----Regl. 11---Balochistan Board of Intermediate and Secondary Education Act (X of 1977), 5.21---Balochistan Civil Servants (Efficiency and Disciplinary) Rules, 1983, R.16---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, R.4---General Clauses Act (X of 1897), 5.8---Constitution of Pakistan (1973), Art.199---Employee of Board---Compulsory retirement from service after repeal of Balochistan Civil Servants (Efficiency and Disciplinary) Rules, 1983---Constitutional petition---Maintainability---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 were neither adopted nor incorporated in Balochistani Board of Intermediate and Secondary Education Employees Service Regulations, 1991 nor approval thereof was obtained from Government as provided by 5.20 of Balochistan Board of Intermediate and Secondary Education Act, 1977---S.8 of General Clauses Act, 1897 would not apply to Rules of 1992 as same were neither enacted by Provincial or National Assembly nor could be termed as Regulation made by President or Governor under powers conferred upon them by virtue of the Constitution---Action taken against employee by Board under Rules of 1992 would not give same status as given to statutory rules---Relationship between an employee and employer would not become statutory by mere adoption or incorporation of statutory rules---Term "amendment" would not include. "repeal" or "re-enactment"---Rules of 1992 would not automatically become applicable in place of Rules of 1983 by virtue of Regln. 11 of Balochistan Board of Intermediate and Secondary Education Employees Service Regulations, 1991---Relationship between Board and petitioner was that of Master and Servant---High Court dismissed constitutional petition being not maintainable---Principles.

1984 PSC 42 and PLD 1990 Quetta 8. ref.

2000 PLC C.S 1068; PLD 1974 Baghdad-ul-Jadid 20; Black's Law Dictionary; 1984 PSC 42; PLD 1984 SC 194; 1992 SCMR 1112; 1993 SCMR 346 and 1998 SCMR 68 rel.

AIR 1977 SC 2148 distinguished.

(b) Master and servant---

-----Employees of a body---Service matters---Master and Servant, principles of---Applicability---Relationship between employees with employer would not become statutory by mere adoption or incorporation of statutory rules---Principle of Master and Servant would not apply in presence of statutory service and conduct regulations governing service affairs of employees---Principle illustrated.

----"Amendment"---Meaning.

Black's Law Dictionary ref.

(d) Words and phrases---

----"Repeal "--Meaning.

Black's Law Dictionary ref.

(e) Words and phrases---

----"Amendment" and "Repeal"---Distinction.

Black's Law Dictionary ref.

Muhammad Aslam Chishti for Petitioner (in C.P. No. 149 of 2000).

K.N. Kohli D..A.G and Khadim Hussain for Respondent (in C.P. No. 149 of 2000).

Raja M. Afsar and K.N. Kohli, D.A.-G. for Petitioner (in C.P. No.52 of 2000).

Khalid Hussain and Salahuddin Mengal, A.-G. for Respondent No.2 (in C.P. No.52 of 2000).

S.A.M. Qadri for Petitioner (in C.P. 196 of 2000).

K.N. Kohli D.A.G. and Khadim Hussain for Respondents (in C.P. No. 196 of 2000).

Date of hearing: 24th March, 2003.

PLCCS 2006 QUETTA HIGH COURT BALOCHISTAN 90 #

2006 P L C (C.S.) 90

[Quetta High Court]

Before Raja Fayyaz Ahmed CJ and Fazal-ur-Rehman, J

MEHMOOD AHMED

Versus

SAINDAK METALS LIMITED through MANAGING DIRECTOR and another

C. Ps. Nos. 174 and 175 of 2000, decided on 25th July, 2000.

Service Tribunals Act (LXX of 1973)---

----Ss.2-A & 4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Condemned unheard---Grievance of petitioner was that without providing any opportunity of hearing, his promotion was withdrawn and he was reverted to previous post---Plea raised by authorities was that respondent company was financed and owned by Federal Government, therefore, petitioner was a civil servant---Validity---Case of petitioner fell within the purview of S.2-A of Service Tribunals Act, 1973, and he was deemed to be a civil servant---As the petitioner had been reverted/demoted to the earlier position/post held by him, such question being directly related to terms and conditions of his service was amenable exclusively to the jurisdiction of Service Tribunal---Matter being not that of fitness of petitioner or of his promotion simpliciter to a higher post or grade within the meaning of SA(b) of Service Tribunals Act, 1973, High Court had no jurisdiction to entertain Constitutional petition in view of Art.212 of the Constitution-Reversion order of petitioner related to terms and condition of his service amenable to exclusive jurisdiction of Service Tribunal, because of his being civil servant---Constitutional jurisdiction could not be invoked under Art. 199 of the Constitution merely for the reason that he had been condemned unheard or that no show-cause notice was issued to him before passing adverse order against him---Constitutional petition was dismissed in circumstances.

NLR 1981 SCJ 478 ref.

1994 SCMR 2232 and 1998 SCMR 650 rel.

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

----Art. 199---Constitutional petition---Maintainability---Master and Servant, principle of---Applicability---In absence of statutory service rules, relation between employee and employer was governed by the principle of master and servant and thus Constitutional petition was not maintainable.

1994 SCMR 2232 and 1998 SCMR 2280 rel.

S.A.M. Quadri and Azam Jan Zarkoon for Petitioner.

Muhammad Riaz Ahmed for Respondent No. 1.

K.N. Kohli D.A.G. for Respondent No.2

Date of hearing: 14th June, 2000.

PLCCS 2006 QUETTA HIGH COURT BALOCHISTAN 512 #

2006 PLC (C.S) 512

[Quetta High Court]

Before Amanullah Khan Yasinzai and Mehta Kailash Nath Kohli, JJ

MAQBOOL-UR-REHMAN and 53 others

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE through Secretary, Islamabad and 2 others

Constitutional petition No.172 of 2005, decided on 10th October, 2005.

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

----S. 17---Balochistan Service Tribunals Act (V of 1974), Ss.2-A & 4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Revision in pay scale---Entitlement---Revision in pay scale which was announced by Government during the year 2001, having been declined to petitioners, they had challenged denial order---Since petitioners' who were employees of a company which was fully owned and controlled by Government of Pakistan, fell within the purview of S:2-A of Balochistan Service Tribunals Act, 1974, High Court had no jurisdiction to adjudicate upon the matter---Even otherwise all the petitioners' except five of them, having received their dues after having been relieved from service under "Voluntarily Separation Scheme", they could not be termed as aggrieved persons and their constitutional petition was not competent---Said petitioners were estopped under law to claim enhancement under revised pay scale.

Accountant-General, Balochistan, Quetta v. Abdul Majeed Babar and others 1990 SCMR 790; PLD 1999 SC 990; 2000 SCMR 1232; PLD 2003 SC 193 and Muhammad Siddique v. Messrs Premier Tobacco Industries Ltd., Lotri (PLC 1981 (Labour) 670 ref.

Nadi Shakeel Ahmed for petitioners.

Ch. Mumtaz Yousuf, Standing Counsel for Respondent No.1 and 2.

M. Riaz Ahmed for Respondent No.3.

Date of hearing: 26th September, 2005.

PLCCS 2006 SERVICE TRIBUNAL NWFP 526 #

2006 P L C (C.S.) 526

[N.-W.F.P. Service Tribunal]

Before Muhammad Irshad Swati and Muhammad Shaukat, Members

NAZIR AHMAD, CHIEF RADIOGRAPHER D.H.Q. HOSPITAL, MARDAN

Versus

SECRETARY HEALTH, GOVERNMENT OF N.-W.F.P. and 4 others

Appeal No.334 of 1999, decided on 26th February, 2001.

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

----Ss. 9 & 13---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Regularization of service before retirement---Promotion---Appeal to Service Tribunal---Appellant who joined service as Radiographer, firstly was promoted as Senior Radiographer in BPS-7 and finally was promoted as Chief Radiographer in BPS-16 on Active Charge Basis---Appellant submitted numerous applications opting for retirement subject to regularization of his service in BPS-16 as Chief Radiographer before retirement, but his services were not so regularized despite he had completed 7 years of service as Senior Radiographer, which was prerequisite for regular promotion to post of Chief Radiographer in BPS-16 and appellant was also recommended for said promotion by Director General Health---Appellant was retired without regularization of his service as Chief Radiographer in BPS-16---Validity---Appellant was eligible for regularization of his service as Chief Radiographer in BPS-16 as he not only had completed 7 years of service as Senior Radiographer which was prerequisite for such regularization, but he was also recommended for said regularization by the Authority---Application of appellant for his retirement was conditional as he applied for his retirement with benefit of regularization of his service as Chief Radiographer in BPS-16---Department should have issued retirement order after grant of benefit of regularization due to appellant, but that had not been done, obviously due to mala fide or negligence of concerned Authority---Service Tribunal directed authorities to settle case of regularization of appellant as Chief Radiographer BPS-16 before his retirement.

Haji Muhammad Alam for Appellants.

Abdul Wajid G.P. for Respondent.

PLCCS 2006 SERVICE TRIBUNAL NWFP 1232 #

2006 P L C (C.S.) 1232

[N.-W.F.P. Service Tribunal Peshawar]

2006 P L C (C.S) 491

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

ASHFAQ HUSSAIN

Versus

CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, LAHORE and 8 others

Appeal No.1108 of 2002, decided on 27th December, 2002.

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant who had completed three years of service in the capacity of Agricultural Assistant, was eligible to be promoted as Extra-Assistant Director Agriculture w.e.f. 31-1-1973---Director Agriculture recommended pro forma promotion of appellant, but Departmental Promotion Committee vide its order declined pro forma promotion to appellant, despite existence of vacancy---Validity---Appellant was entitled to promotion from the date when vacancy arose in his quota---Impugned orders were set aside---Case of appellant for pro forma promotion would be considered by Departmental Promotion Committee.

Muhammad Arshad Bajwa for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Alamgir for Respondents Nos.5, 6 and 7.

Ikram-ud-Din Khan, for Respondent No.9.

Khurshid Ahmad Khan, Under Secretary (A-III), Agriculture Department, Departmental Representative.

Date of hearing: 17th December, 2002.

JUDGEMNT

JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Ashfaq Hussain, appellant, was inducted as Agricultural Assistant (Extension Wing), on 26-2-1969 in the scale of Rs.275-15-320-20-500, possessing B.Sc. (Hons) Agri: qualification in the Punjab Agriculture Department, Government of the Punjab, Lahore. On 31-1-1970, he assumed the charge of Agricultural Assistant (Economics and Marketing). He was promoted on 7-11-1975 on ad hoc basis as Extra-Assistant Director Agriculture (Economics and Marketing) along with one Muhammad Afzal Khan. Later on appellant was regularized against the said post vide order dated 12-3-1986. A tentative seniority list of Extra-Assistant Directors Agriculture (Economics and Marketing) in BS-17 + Rs.150 special pay, as it stood on 31-7-1998 was issued by the authority wherein the name of the appellant figured at Serial No.10. Final seniority list of Extra-Assistant Directors Agriculture (Economics and Marketing), Economics & Marketing Wing of Agriculture Departments as it stood on 4-10-2001 was notified on 17-1-2002 and the name of the appellant stood at Serial No.7 whereas that of Respondents Nos.3 to 8 was shown at Serials Nos.1 to 6. Earlier a Departmental Promotion Committee was convened on 28-6-2001 to consider the request of the appellant for ante-dated promotion as Extra-Assistant Director Agriculture (Economics and Marketing) w.e.f. 7-11-1975 and a working paper was prepared by Director Agriculture (Economics and Marketing), Punjab, Lahore, for the deliberation of the Departmental Promotion Committee. The matter kept on lingering as Departmental Promotion Committee, it seems, referred the case of pro forma promotion of the appellant to the Government of the Punjab, S&GAD, who refused to interfere by stating that the Departmental Promotion Committee should examine the case in the light of facts of each case and then the competent authority should decide the case at his own level without referring the case to Regulations Wing of S&GAD for approval. No positive response was received despite repeated reminders sent by the appellant and ultimately request for early decision was agitated in Writ Petition No.78/2001 by the appellant. The Hon'ble Judge on 8-11-2002 directed the Departmental Promotion Committee to consider the case of the appellant for pro forma promotion and communicate its decision to the appellant so that he could avail his remedy before the proper forum. Departmental Promotion Committee ultimately on 12-1-2001 declined the request of the appellant for pro forma promotion as Extra-Assistant Director Agriculture (Economics and Marketing) w.e.f. 7-11-1975 when he was promoted temporarily to the said post, as well as from 31-1-1973, the date when he became eligible for promotion to the said post and vacancies in promotion quota were available, on the ground that neither any junior to the appellant was promoted prior to him to the said post nor the judgment of the Supreme Court of Pakistan in the case of Muhammad Afzal Khan could apply to the appellant as he was not a party therein. Appellant made representation against the decision of the Departmental Promotion Committee, which was rejected on 30-4-2002. Orders dated 12-1-2002 and 3-4-2002 passed by Respondents Nos.1 & 2 respectively are assailed in the instant appeal.

Respondent No.9 Muhammad Akram, who in the meanwhile retired as Extra-Assistant Director Agriculture on his application under Order 1, Rule 10 Civil Procedure Code was allowed to be made a party and is arraigned as Respondent No.9.
Learned counsel for the appellant stated that the promotion of the appellant as Extra-Assistant Director Agriculture (Economics and Marketing) was due on 31-1-1973 on the completion of three years service in the capacity of Agricultural Assistant (Economics and Marketing) but instead of granting him regular promotion, he was promoted on ad hoc basis w.e.f. 7-11-1975 along with Muhammad Afzal Khan and two others. It was later on that he was regularized to the said post w.e.f. 12-3-1986. It was pleaded that West Pakistan Agriculture Service Class-II Extension Wing Rules, 1964, provided that promotion to the post of Extra-Assistant Directors Agriculture (Economics and Marketing) was to be filled through promotion on the basis of 50% quota which in the year 1972 was 21. Four posts out of 21 posts were filled whereas 17 post of Extra-Assistant Directors Agriculture (Economics and Marking) remained to be filled amongst which 9 post were of promotion quota. Appellant was eligible to be promoted has Extra-Assistant Director Agriculture (Economics and Marketing) on 31-1-1973 having completed three years of service in the capacity of Agricultural Assistant (Economics and Marketing) but was ignored. It was further canvassed with vehemence that Muhammad Afzal Khan who was promoted as Extra Assistant Director Agriculture (Economics and Marketing) on ad hoc basis along with the appellant, assailed the order of temporary promotion on the ground that he was entitled to pro forma promotion w.e.f. 28-11-1972 through an Appeal bearing No.129/92 to this Tribunal whicr was allowed on 3-5-1995. The appeal of his contestants Muhammad Anwar Rahi and Muhammad Aslam was rejected by the Hon'ble Supreme Court on 18-10-1995 in a Civil Petition No.862-L/95 upholding the judgment of Punjab Service Tribunal in Appeal No.129/92. Learned counsel for the appellant contended that the case of the appellant being exactly similar, relief to him on the basis of the judgment of Muhammad Afzal Khan should have been allowed but rank discrimination was done by the department on their refusal to accede to the supplication of the appellant seeking pro forma promotion w.e.f. 31-1-1973 the date on which he should have been considered for promotion as Extra-Assistant Director Agriculture (Economics and Marketing) as a vacancy existed.
Learned District Attorney supported the impugned orders however, Departmental Representative present with the requisite file admitted that a seat of Extra-Assistant Director Agriculture (Economics and Marketing) was available on 31-1-1973 in promotion quota and appellant was eligibly to fill the said post. Counsel for Respondents Nos.3 to 8, on the other hand, maintained that pro forma promotion of the appellant could not be claimed as no junior to the appellant was promoted to the said post before the appellant and the promotion cannot be claimed as a matter of right much less pro forma or ante-dated promotion. Counsel for Respondent No.9 admitted that the appellant had retired and he also could lay claim to pro forma promotion being in promotion quota prior to his retirement but he did not do so, however, opposed the case of pro forma promotion of the appellant.
I have attended to the arguments addressed by the respective counsel and have also seen the record:
According to the West Pakistan Agriculture Service Class-II Extension Wing Rules, 1964, vacancies of Extra-Assistant Directors Agriculture (Economics and Marketing) were required to be filled in by promotion from amongst members of West Pakistan Service holding post of Agricultural Assistant and Instructors in the Region where the vacancy occurred, who possessed three years experience in Agriculture Economics and Marketing. In other words, promotion to the post in question was to be made on the basis of selection irrespective of seniority, the only criterion was eligibility. The eligibility was based on three years experience in Economics and Marketing. Appellant joined service in the Agriculture, Extension Wing on 26-2-1969 as Agricultural Assistant and then he joined Economics and Marketing Wing on 31-1-1970 and he completed requisite experience of three years on 30-1-1973. He, therefore, became eligible for promotion as 'Extra-Assistant Director Agriculture (Economics and Marketing) w.e.f. 31-1-1973. In the working paper prepared by the Director Agriculture (Economics and Marketing), Punjab, Lahore, for the consideration by the Departmental Promotion Committee, it was stated that the sanctioned strength of the post of Extra-Assistant Director Agriculture (Economics and Marketing) was 21 as is stood on 31-1-1973 which were required to be filled in 50% by initial recruitment and 50% through promotion as per existing Service Rules at that time, four posts of Extra-Assistant Directors Agriculture (Economics and Marketing) were filled in on 1-7-1967. Out of the remaining 17 posts, 9 posts belonged to promotion quota. For these 9 posts of promotion, quota, the following Officers were to be promoted as per their eligibility having three years service experience in Economics and Marketing Wing of Agriculture Department:-
Mr. Abdul Sattar Bhatti;
Mr. Muhammad Hafeez Javed;
Mr. Muhammad Anwar Rahi;
Mr. Anwar Hussain Shah;
Mr. Iftikhar Ahmad Cheema.
Mr. Zahoor Ahmad;
Mr. Muhammad Afzal Khan;
Mr. Muhammad Akram; and
Mr. Ishfaq Hussain. (appellant).

Appellant along with Muhammad Afzal Khan were promoted as Extra-Assistant Directors Agriculture (Economics and Marketing) on ad hoc basis on 7-11-1975; Muhammad Afzal Khan agitated his promotion w.e.f. the date he became eligible and the post was available. His appeal was accepted by the Punjab Service Tribunal which decision was upheld by the Supreme Court of Pakistan and he was allowed pro forma promotion' w.e.f. 28-11-1972. Mr. Muhammad Akram next to Mr. Muhammad Afzal Khan retired from service on reaching the age of superannuation w.e.f. 5-1-1999 at his on request and next senior was the appellant. Director Agriculture (Economics and Marketing), Punjab, Lahore recommended the pro forma promotion of the appellant w.e.f. 31-1-1973 but surprisingly the Departmental Promotion Committee vide its deliberation on 12-1-2002 declined the request of pro forma promotion to the appellant on the ground that no junior was promoted before him to the said post and that he was not a party in the case of Muhammad Afzal Khan.

7. According to the instructions issued by the Government of the Punjab, pro forma promotion is allowed in four cases:--

Where a junior has been promoted, senior is entitled to be promoted, if disqualification is attached.
Where at the time of promotion the senior although eligible was under suspension or was not fit to be promoted otherwise and on the removal of disqualification he became entitled to pro forma promotion.
When promotion cannot be allowed to the incumbent civil servant as a result of criminal case, he may be promoted from back date after the case ends favourably.
Where due to negligence and apathy of the department although the post exists and the incumbent civil servant is eligible.

The criteria adopted by the Government, which is in vogue has the backing of established practice. In the present case although a junior to the appellant may not have promoted yet the department dilly dallied the promotion of the appellant for no good reason. Although the post of Extra-Assistant Directors Agriculture (Economics and Marketing) was available from 31-7-1973, the appellant along with Muhammad Afzal were promoted in the year 1975 on ad hoc basis. I wonder why temporary promotion was allowed when the appellant was fully eligible to be promoted to the said post. Muhammad Afzal Khan challenged the ad hoc promotion and claimed pro forma promotion w.e.f. 28-11-1972 which was allowed to him by the Service Tribunal in the first instance and later on the said decision was upheld by the apex Court. Not applying the said rule to the case of the appellant would amount to rank discrimination. It has bewildered me why Respondent No.9 who has retired from service at his own request w.e.f. 5-1-1999 is opposing the case of the appellant. He could have derived the benefits quoting Muhammad Afzal Khan's case to his benefit which he did not. So far so good, but why is he opposing the case of the appellant for pro forma promotion, especially when now he is not in service, is difficult to understand. Other respondents particularly, Respondent No.7 were inducted as Extra-Assistant Directors Agriculture (Economics and Marketing) through direct recruitment in 1985. It is now a settled law that civil servant is entitled to promotion from the date when vacancy arises in his quota and it has been admitted in the case of the appellant by the Director Agriculture (Economics and Marketing), Punjab, Lahore that the vacancy arose on 31-1-1973 on which date appellant was fully eligible to be promoted to the said post.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 501 #

2006 P L C (C.S.) 501

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD SIDDIQUE

Versus

D.F.O. and 3 others

Appeal No.2661 of 2004, decided on 17th January, 2005.

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

----Rr. 3(a)(c) & 4(b)(ii)(iii)---Punjab Service Tribunals Act (IX of 1974), S. 4---Imposition of penalties of recovery of amount and compulsory retirement from service---Appellant, who was serving as Forest Guard, was charge-sheeted on allegation that he failed to protect trees from loss and heavy damage was caused to government with his active connivance---Major penalties of recovery of amount of loss so caused to trees and compulsory retirement from service were imposed on appellant--Appellant had challenged such order contending that compensation of trees as given in Schedule at enhanced rate, was totally disproportionate to offence committed---Appellant had prayed that recovery be reduced to actual loss of trees---Validity---In the face of penalty of compulsory retirement, appellant at the most should have been burdened with actual cost of missing trees instead of enhanced rate---Appeal was partially accepted---Penalty of compulsory retirement was maintained, but recovery of amount was reduced accordingly.

Dr. Ehsan ul Haq Khan for Appellant.

Khadim Hussain Sindhu District Attorney Muhammad Afzal, Moazam Rashid Siddiqui Departmental Representatives and Atta Muhammad for Respondents.

Date of hearing: 11th January, 2004.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 579 #

2006 P L C (C.S.) 579

[N.-W.F.P. Service Tribunal]

Before Abdul Sattar Khan, Chairman and Azmat Hanif Orakzai, Member

ZIA-UR-REHMAN, T.T. GOVERNMENT MIDDLE SCHOOL, SAPARI, Versus

SECRETARY, GOVERNMENT OF N.-W.F.P. SCHOOLS AND LITERACY, PESHAWAR and 3 others

Appeal No.582 of 2003 decided on 19th March, 2005.

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

----S. 3---North-West Frontier Province Service Tribunals Act ,(I of 1974), S. 4---Change in terms of employment from temporary to that of contractual---Appeal---Appellants in response to advertisement, applied for posts of T.T./Qaries etc. and participated in test and interview and were finally selected by Departmental Selection Committee on temporary basis against regular posts---Appellants joined the department and started performing their duties---After about more than one year of their appointment when appellants asked for annual increments, they were told that their temporary appointment had been converted into one on contract basis and in circumstances they were not entitled to annual increments---Validity---Appellants having been appointed against regular posts on temporary basis, valuable rights had accrued to them---Contract policy which was promulgated after more than one and half years from their appointment, would not affect appointment of the appellants---Department was not competent to change employment conditions of appellants into one on contract basis from regular one---Appeals of appellants were accepted as prayed for.

Muhammad Asif Yousafzai for Appellant.

Noor Zaman Khan Additional Govt. Pleader for Respondents.

Date of hearing: 28th June, 2003.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 591 #

2006 P L C (C.S.) 591

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MRS. ASIFA PERVEEN

Versus

PRINCIPAL, PUBLIC HEALTH NURSING SCHOOL MONTGOMERY ROAD, LAHORE and 3 others

Appeal No. 1664 of 2004, decided on 20th July, 2005.

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

----Rr.4(1)(b)(v), 5, 6 & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appellant was charger-sheeted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 on allegation of misconduct; insubordination; embezzlement; and cheating--Inquiry Officer found that basic charge relating to embezzlement was not proved against appellant, but other allegation i.e. misconduct, insubordination and cheating were proved against him---Appellant was awarded major penalty of dismissal from service with observation that Authority did not agree with recommendations of Inquiry Officer regarding compulsory retirement of appellant---Authority, though had privilege to disagree with recommendations of Inquiry Officer, but when Authority had not discredited Inquiry Officers' findings, in normal course, it was supposed to have accepted recommendations of Inquiry Officer---Stance of appellant that proceedings were started against her out of malice, had some he substance---Authority was supposed to act strictly in accordance with law and not to get moved by indignation and should not switch over to new law of disciplinary action after conclusion of inquiry---Appeal was accepted and case. was remanded to concerned Authority for fresh proceedings against appellant on same allegation including a detailed . inquiry by an independent officer.

Waqar Ahmad for Appellant.

Rana Muhammad Yasin D.A. for Respondent.

Mohammad Faisal Assistant, on behalf of Respondents No.1.

Date of hearing: 13th July, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 614 #

2006 P L C (C.S.) 614

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-1

SARFRAZ-UL-HAQ, ASSISTANT EXCISE AND TAXATION OFFICER, LAHORE

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION OFFICER, LAHORE and another

Appeal No.1901 of 2005, decided on 8th March, 2006.

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

----Rr. 4 & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of stoppage of two annual increments---Appeal---Some persons had died as they had taken poisonous liquor being sold in the city---Allegations against appellant, who was Assistant Excise and Taxation Officer, was that he and co-accused had failed to exercise adequate vigilance to detect proliferative activities of licensees in the preparation of intoxicant material/liquor and that appellant and others had failed to take necessary measures to apprehend the culprits---Inquiry Officer, who held inquiry against appellant, recommended to drop proceedings against appellant as there was no evidence of connivance of appellant with culprits or any inefficiency on his part---Authority did not agree with the inquiry Officer and awarded impugned penalty on appellant---Validity---Discrimination was quite evident from impugned order---Appellant was not provided with adequate support-staff and other facilities to enable him to take effective measures against sale and use of illicit liquor in the area---District Officer i.e. Excise and Taxation Officer, who was supervisory officer, was also equally at fault, but he was not proceeded against---Matter basically fell within the jurisdiction of law and order Agencies---Preparation of illicit liquor was taking place in an area which was not the area under control of the appellant---No satisfactory reply was furnished by authorities on the point that death had taken place, as per report of Chemical Examiner due to excessive use of Methyl-alcohol and not use of liquor and that was not under control of Excise and Taxation Department---Inquiry Officer had stated that no charge was proved against appellant and he had not been found guilty---Accepting appeal impugned orders were set aside.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin, District Attorney for Respondents.

Sadaqat Shah for Excise and Taxation Inspector on behalf of Respondent No.2.

Date of hearing: 8th March, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 642 #

2006 P L C (C.S.) 642

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-1

MUHAMMAD BOOTA

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION) SIALKOT and 3 others

Appeal No.2730 of 2003, decided on 31st March, 2004.

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

----Rr. 3, 4(1)(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Penalty of. dismissal from service was imposed on appellant on account of his producing a false matriculation certificate for recruitment as P.T.C. Teacher---Appellant kept working as such when he was proceeded against under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 on ground of having committed forgery by producing bogus certificate for his appointment---Disputed certificate produced by appellant was referred to concerned Board of Education, which declared same bogus after scrutiny---Appellant could not say that his appointment as regular P.T.C. teacher was made by concerned Authority knowing with that he was not matriculate and it was a case of fraud---Appellant had been dealt with rather leniently as no criminal case of forgery and fraud had not been registered against him---Appellant was rightly dismissed from service, in circumstances.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin, D.A. for Respondents.

Shah Jehan, Deputy DEO (M)/Respondent No.3.

Chand Kamran, AEO (Litigation) on behalf of Respondent No.2.

Date of hearing: 24th March, 2004.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 659 #

2006 P L C (C.S.) 659

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

AKMAL HUSSAIN

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION DEPARTMENT, LAHORE and another

Appeal No.904 of 2005, decided on 21st November, 2005.

Civil Service---

----Adverse remarks---Expunction of---Civil servant serving as Excise and Taxation Officer was proceeded against on charges of deficient recovery of Property Tax and consequently he was conveyed adverse remarks in that respect in his ACR'--Proceedings earlier were started against civil servant on same group i.e. shortfall in recovery of Property Tax and appeal filed by him was accepted by Service Tribunal with observations that as per record, recovery demand for the area where civil servant was posted, was unrealistic which could not be met/achieved---Civil servant had brought situation to the notice of concerned Authority well in time, but no action was taken---When appeal filed by civil servant on the same subject had already been accepted by Service Tribunal and impugned orders of punishment awarded to civil servant regarding non-achievement of full recovery targets had been set aside, adverse remarks recorded in ACR to the same effect could not be allowed to stay;,--Authorities had not been able to show from any record that civil servant had been given any counselling in writing relating to non-achievement of full recovery targets which were revised upward at later stage---Impugned orders were set aside and adverse remarks recorded against civil servant, were expunged.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin D.A. for Respondent.

Mohammad Zubair Section Officer (R-IV) on behalf for Respondent No.1.

M.U. Shah Inspector (Legal) on Behalf of Respondent No.2.

Date of hearing: 15th November, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 681 #

2006 P L C (C.S.) 681

[Punjab Service Tribunal]

Before: Justice (Retd.) Rustam Ali Malik, Chairman

GHARIB ALAM, A.S.-I. TRAFFIC POLICE

Versus

SENIOR SUPERINTENDENT OF POLICE, HEADQUARTERS TRAFFIC PUNJAB, LAHORE and another

Appeal No.1305 of 2005, decided on 14th October, 2005.

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

----R.4(1)(b)(i)---Punjab Service Tribunal Act (IX of 1974), S.4---Imposition of major penalty of reduction in rank---Senior Superintendent of Police, who had caught appellant while he was pursuing a truck on highway mobile, had himself issued a show-cause notice to appellant and thereafter, awarded upon him major penalty of reduction in rank from Sub-Inspector to Assistant Sub-Inspector, without holding regular inquiry against him---Validity---Before imposing a major penalty on a civil servant, a regular inquiry was to be conducted into the matter---As no regular inquiry under the rules was held against the appellant before imposing on him, major penalty of reduction in rank and Senior Superintendent of Police, who himself was the most important witness, prosecutor and Judge in the case of appellant, subsequent decision of departmental appeal by Deputy Inspector-General of Police after getting conducted an inquiry by another police officer, would not cure jurisdictional defect in the order passed by punishing authority---Impugned orders passed by authorities against appellant were set aside and case was remanded to Senior Superintendent of Police (Headquarter) with a direction to direct a regular inquiry against the appellant under the Rules and to proceed further in the matter in accordance with law.

Province of Punjab through Secretary Home Department, Lahore and others v. Malik Mukhtar Ahmad (Retired) A.S.-I. 1989 SCMR 551; Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer 2004 SCMR 294; Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat. Mehmood 2003 SCMR 207; Ghazanfar Hussain Changezi v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others 2004 SCMR 1476 and Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603 ref.

Mahmood Ahmad Qazi for the Appellant.

Khadim Hussain Sindhu D.A. for Respondents.

Abdul Ghafoor Khan A.S.-I. Office of D.I.G. Traffic, Punjab, Lahore Departmental representative.

Date of hearing: 14th October, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 689 #

2006 P L C (C.S.) 689

[Punjab Service Tribunal]

Before Mohammad Afzal, Member-I

ABDUL MAJEED

Versus

DEPUTY DISTRICT EDUCATION OFFICER and 2 others

Appeal No. 523 of 2005, decided on 19th, July, 2005.

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

----Ss.3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Removal from service---Appellant was removed from service on allegations that his appointment as P.T.C. Teacher was bogus; that he prepared bogus appointment orders under signatures of Deputy District Education Officer and that he committed fraud with the department---Dispatch register containing record of dispatch of appointment orders had shown that appointment order against relevant number was issued in the name of other person and appellant by committing fraud had prepared appointment orders against same number in his favour---Name of appellant did not figure in the merit list of selected candidates---Verification of appointment of appellant on the basis of record had shown that appellant was not even posted in the school and he had not drawn any salary at the place of his first posting---When appellant had not drawn any salary in relevant year even for a long time, it was proved beyond any doubt that appellant had prepared antedated bogus appointment orders and similarly managed to get his transfer to another school---When the very orders were based on fraud and illegality, appellant could not claim any right to continue on the basis of such illegal orders---Appellant, under principle of locus poenitentiae could not have been removed from service after period of 10 years---Appellant, in circumstances had rightly been removed from service.

PLD 1992. SC 207; 2000 SCMR 907 and PLD 1998 SC (Pak.) 104 ref

Dr. Ehsan-ul-Haque Khan for Appellant.

Rana Muhammad Yasin for District Attorney Respondent.

Sarwar Nadeem AEO H/Q and Khan Mohammad AEO for Respondents.

Date of hearing: 12th July, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 709 #

2006 P L C (C.S.) 709

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

HAKIM ALI

Versus

DISTRICT EDUCATION OFFICER (M-EE), LAHORE and another

Appeal No. 767 of 2005, decided on 27th September, 2005.

Punjab Civil Servants (Efficiency and Discipline) Rules, 19c")---

----Rr. 4(b)(iv) 5 & 6---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Locus poenitentiae, principle of---Applicability---Appellant was removed from service after charge-sheeting .him and holding inquiry against him on charges of his bogus appointment and misconduct---Appellant was alleged to have committed a glaring fraud as he through bogus means, had managed to get himself appointed as P.T.C. Teacher, whereas he neither applied for said post nor he was interviewed nor was selected by any Selection Committee---Appellant was given full opportunity to defend himself by department but he failed to prove his appointment as P.T.C. Teacher to be genuine---No appointment was made on the date alleged by appellant and as per record/dispatch register, appointment of one other person was made against alleged dispatch number and that appointment was also later on cancelled being doubtful---When the very orders were doubtful and illegal, principle of `Locus Poenitentiae' could not be quoted in support and no rights could be gained to continue in service on basis of such illegal orders---Appellant had managed to get his appointment as P.T.C. Teacher in connivance with some dishonest elements in the department whereas he was never selected for appointment on said post---Appeal filed by appellant against his removal from. service being devoid of any merit, was dismissed.

2000 SCMR 907 and PLD 1992 SC 207 ref.

Dr. Ehsan-ul-Haq Khan, Counsel for appellant.

Rana Muhammad Yasin, D.A and Muhammad Ejaz Chaudhry, for Respondent No.2.

Date of hearing: 19th September, 2005.

2006 P L C (C.S.) 836

[Punjab Service Tribunal]

Before Azad Muhammad Awan, Member-III

MUBASHIR AHMAD

Versus

DIRECTOR PUBLIC INSTRUCTION (COLLEGES) PUNJAB, LAHORE and 2 others

Appeal No.1514 of 2005, decided on 31st January, 2006.

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

----R. 21-A(3)---Punjab Service Tribunals Act (IX of 1974), S.4---Retirement on attaining age of superannuation---Determination of date of birth---Appeal before Service Tribunal---Appellant was retired from service on attaining age of superannuation on basis of date of birth recorded in seniority list which was 18-2-1945---Appellant had disputed said date of birth contending that according to Middle School Certificate and Matriculation Certificate date of birth of appellant was 15-4-1949 and same date was declared by appellant at the time of his appointment---As per R.21-A(3) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, date of birth recorded in seniority list was not final because seniority list was prepared after number of years after joining government service---Appellant was appointed as Lecturer and entered into service through Public Service Commission---Middle and Matriculation Certificate and all other documents containing date of birth of appellant were with the Department, but department had failed to produce same despite number of opportunities provided---Provisions of Clause (g) of Art.129 of Qanun-e-Shahadat Order, 1984 had provided that evidence which could be, but was not produced, would be presumed to be unfavourable to the person who withheld the same---Authorities were intentionally withholding the production of documentary evidence, it would be thus presumed that claim of authorities that date of birth was 18-2-1945, was without legs to stand upon---Authentic date of birth of appellant was one which was entered at the time of joining government service in terms of R.21-A(3) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and not that mentioned in the seniority list prepared after number of years---Retirement of appellant on the basis of date mentioned in seniority list was erroneous and liable to be set aside---Date of birth of appellant being 15-4-1949 as per Middle and Matriculation Certificate, appellant would attain age of superannuation on 14-4-2009---Allowing appeal orders of Authority and Appellate Authority, were set aside---Appellant would be deemed to be in service till said date of superannuation.

Masud Ahmad Riaz for Appellant.

Malik Muhammad Ashraf, District Attorney, Dr. Shaukat Ali; DPI (Colleges), Muhammad Aleem Tafazzal, A.D. and Muhammad Ijaz S.O. Departmental Representatives.

Date of hearing: 31st January, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 849 #

2006 P L C (C.S.) 849

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD HUSSAIN

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB S&GAD, LAHORE and 3 others

Appeal No.2485 of 2004, decided on 30th June, 2005.

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

----S. 12---Punjab Service Tribunals Act' (IX of 1974), Ss.2(b) & 4---Retirement---Rights of a civil servant to claim service benefits, would not cease on account of his retirement on superannuation because a civil' servant had no control over his retirement on superannuation---Law had made civil servant entitled to claim service benefits due to him during the period of his service---Retirement of appellant could not deprive him of his right to claim benefits, which were admissible to him under law---Confirmation had to be allowed from the date of promotion---Contention that as appellant had retired, he had no claim to get confirmation and promotion as Sub-Inspector then as Police Inspector from the date it was due during his service, was repelled---Appellant would be considered for grant of service benefits including confirmation on the post and attending benefits from the" date he was promoted on officiating basis.

Pervaiz Inayat Malik, for Appellant.

Rana Muhammad Yasin, District Attorney for Respondent. Naseer Ahmed, Inspector Legal, On behalf of Respondents No.2.

Date of hearing: 30th June, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 862 #

2006 P L C (C.S.) 862

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

SAIFULLAH CHEEMA, Formerly Mathematics Teacher

Versus

CHAIRMAN BOARD OF GOVERNORS, AITCHISON COLLEGE, LAHORE and 2 others

Appeal No.1978 of 2004, decided 17th January, 2005.

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

----Ss. 2(aa), 3, 5, 8 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Removal from service---Appeal---Appellant serving as a teacher in a college was removed from service with the order of Principal of the college on allegation of misconduct---Allegation against appellant was that he had beaten a student while he was taking class due to his misbehaviour---Under Rules and Regulations of the college framed by Board of Governors, Sub-Committee had full powers to appoint and remove all members of teaching staff and Principal could take only disciplinary action against a teacher not extending to his removal or dismissal---Principal of college having no power to remove or dismiss appellant from service, his action against appellant suffered from lack of jurisdiction---Authorities could not produce any Notification of Board of Governors delegating powers of appointment or removal of Masters/teachers to Principal of the college---Even otherwise appellant was removed from service without extending him an opportunity of hearing, violating mandatory provisions of proviso to S.8 of Punjab Removal from Service (Special Powers) Ordinance, 2000---Mandatory provision of law having been violated, appellant was condemned unheard and no order violating the rule specifically requiring the hearing of appellant by providing him opportunity under the rules, could be maintained---Appellant no doubt had inflicted corporal punishment upon complainant student, but no action was taken against said student on his misbehaviour, misdeed and most insulting attitude towards appellant who was a senior respectable teacher---Order of removal from service passed against appellant by Principal unauthorizedly and without providing appellant opportunity of hearing, was set aside and quashed with the direction to reinstate appellant with all benefits due to him under law from date of removal from service till date of reinstatement.

Arshad Nazir Mirza counsel for Appellant.

Khadim Hussain Sindhu, District Attorney and All Sibtain Fazli for Respondents.

Date of hearing: 11th January, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 880 #

2006 P L C 880

(Punjab Service Tribunal]

Before Sardar Alam Khan, Member-11

MUHAMMAD ANIS HAIDER

versus

DIRECTOR-GENERAL, EXCISE & TAXATION and another

Appeal No. 71% of 2000 of decided oval 24th August, 2001.

Punjab Civil Servants(Efficiency and Discipline) Rules, 1997---

----R. 4(1)(b)(i) -PunjabService Tribunals Act (IX of 1974), S. 4---Reduction in rank --Appeal---Penalty-of dismissal from service imposed on appellant was reduced to reductionin rank by Appellate Authority---Enquiry Committee inits report found the co-accused clerk directly involved in act of defalcation/embezzlement, but Committee also found charge partially Provedagainst the appellant---Competent Authority had itself conceded thatappellant could be held responsible only for lack of supervision and inefficiency to detect malpactice of his subordinate---Appellant, in circumstances had been punished for the charge of inefficiency whichhad notformed a part of charge-sheet---Impugned order, in circumstanceswas not maintainable---Concerned clerk/co-accused had been found responsibly for collecting cash from vehicle owners outside thePremises of office and for embezzling it; how could the appellant in hissupervisory capacity, come to know malpractice of co-accused, when hewas notofficiallyrequired to receive cash from vehicle owners---No machanism existed for appellant to know if amount in question was deposited.If clerk/co-accused, working under appellant, had collected cash in his private capacity and embezzled it, appellant had no means to Know about it and resultantly appellant could not be responsible for anylack ofsupervision or for lack of efficiency---Impugned order was set aside inappeal.

Masud Ahmad Riaz for Appellant.

Ch. ManzoorHussain, D.A. and Syed Zahid Hussain, Officer Incharge Legal for Respondents.

Date of hearing:24th August, 2001.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 887 #

2006 P L C (C.S.) 887

[Punjab Service Tribunal]

Before Justice (Reid.) Riaz Kayani, Chairman

ABDUL RAZZAQ and another

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others

Appeals Nos.94 and 95 of 2004, decided on 21st April, 2004.

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

----Ss. 2(d), 3 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Removal from service---Selection Committee on relaxation of ban on recruitment of Patwaris, selected appellants as patwaris on merits and were appointed as such and their appointment was duly notified---Subsequently appointment of appellants was cancelled and they were declared ineligible as Patwaris on allegation that they possessed double domicile and had applied for one and more Sub-Divisions for recruitment as Patwaris---Appeals filed by appellants against cancellation of their appointment were accepted by Tribunal and they were ordered to be reinstated in service and period between removal from service and reinstatement was treated as leave due---Said clear and unambiguous order of Tribunal was not complied with and instead appellants were removed from service under S. 3 of Punjab Removal from Service (Special Powers) Ordinance, 2000---None-compliance of order of Tribunal amounted to a gross contumacy on the part of Authorities and launching of further proceedings against appellants was without jurisdiction---Basis of proceedings under S. 3 of Punjab Removal from Service (Special Powers) Ordinance, 2000 was that a person contemplated to be proceeded against should be a person in government or corporation service---Appellants could only regain status of a civil servant, had the judgment of Tribunal been complied with---Authorities proceeded against persons who were not civil servants---No sanctity was attached to order of Authority---Said order along with that of Executive District Officer (Revenue), were set aside and quashed being coram non judice.

Appellants in person.

Khadim Hussain Sindhu, District Authority, Sycd Mubashir Qadeer, Junior Clerk and Muhammad Saeed, Superintendent Board of Revenue Punjab Departmental Representation for Respondents.

Date of hearing: 19th April, 2004.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 920 #

2006 P L C (C.S.) 920

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD ASLAM LAKHWERA, DEPUTY DISTRICT OFFICER

(REVENUE) ARIFWALA and 2 others

Versus

CHIEF SECRETARY, PUNJAB, LAHORE and another

Appeals Nos.2307, 2308 and 2309 of 2004, decided on 1st February, 2005.

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

----Rr. 4(1)(b)(i) & 5---Punjab Service Tribunals Act (IX of 1974), S.4---Penalty of reduction to 5 stages lower in existing pay scale, was imposed on appellants after holding inquiry on charge that they being Colony Assistants had allotted shop sites/ahatas of Charagah land without getting the same sanctioned from District Collector as required under rules and that they had not only violated Government instructions/Policy, but also had acted beyond jurisdiction---Two witnesses who appeared before Inquiry Officer, made huge concession in favour of appellants which were repeated before Service Tribunal by Departmental representatives, but despite that Inquiry Officer and thereafter the Authority proceeded to impose major penalty upon appellants---Inquiry Officer had totally confused himself by intermingling encroached land/Charagah land with `Katchi Abadi'---Allotment of those two different categories of land was governed by different rules and implications---Even otherwise all allotments made by appellants were cancelled and occupants thereof were proceeded against and no loss was caused to the Government---Two former Colony Assistants, who made 13 similar allotments, were not proceeded against---Method of pick and choose in circumstances had been adopted thereby creating rank discrimination, which was violative of by fundamental rights guaranteed to appellants---Impugned orders, which were not based on any solid foundation, were set aside.

Pervaiz Inayat Malik Counsel for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondents.

Javed Hussain Sial, Litigation Officer, S&GA Department, Departmental

representative.

Arif Qureshi, Section Officer (A-IV) S&GA Department, Departmental

representative.

Muhammad Younas, HC (G) Office of DO (R) Khanewal, Departmental

Representative.

Date of hearing: 18th January, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 953 #

2006 P L C (C.S.) 953

[Punjab Service Tribunal]

Before K.B. Abid, Member-IV

SAGHIR-UD-DIN BABAR

Versus

S.P. CITY DIVISION and another

Appeal No. 254 of 2006, decided on 10th April, 2006.

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

----R. 4(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and by passing ex parte orders against him on allegation that he remained absent from duty without obtaining leave and permission from competent authority---Competent authority had not given any comments about the request of appellant for any leave---Appellant was condemned unheard and Departmental Authorities had not furnished specific proof regarding service of notice and other official letters in connection with personal hearing---Appellant had not committed misconduct wilfully and it was his first lapse---Department while deciding departmental representation of appellant, should have given due consideration to the request made by appellant---Penalty of dismissal from service imposed on appellant being too harsh, was modified to the extent that his pay would be reduced by one stage in the time scale---Period of absence would be treated as leave of kind due.

Pervaiz Inayat Malik for Appellant.

Malik Ghulam Raza for Respondents.

Date of hearing 10th April, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 973 #

2006 P L C (C.S.) 973

[Punjab Service Tribunal]

Before Muhammad Afzal Member-1 and K.B. Abid Member-111

FAIZ AHMAD EX-CONSTABLE NO.2411

Versus

CAPITAL CITY POLICE OFFICER and another

Appeal No.2017 of 2005, decided on 3rd May, 2006.

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

----R. 4(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service on charge of wilful absence from duty---Period of absence of appellant had been regularized by concerned Authority by granting him leave without pay for the same period---When period of absence stood regularized by same Authority who had passed orders of dismissal from service through grant of leave without pay, the very ground for ousting appellant from service, had vanished---Impugned orders were set aside and appellant was reinstated in service and the period he remained out of service, was to be considered as leave of kind due.

LDA and others v. Muhammad Nadeem Kachllo and another 2006 SCMR 434 ref.

Mehmood Ahmad Qazi for Appellant.

Rana Muhammad Yasin District Attorney for Respondent. Date of hearing: 3rd May, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 977 #

2006 P L C (C.S.) 977

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

MAQSOOD ALAM, EX-A.S.-I.

Versus

SUPERINTENDENT OF POLICE, HEADQUARTERS, LAHORE and 2 others

Appeal No.1364 of 2004, decided on 4th May, 2006.

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

----R. 4(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Penalty of dismissal from service---Imposition of---Appeal---Appellant, who was serving as A.S.-I. in Police Department, was proceeded against on disciplinary grounds---Major penalty of dismissal from service was imposed on appellant after serving him with show-cause notice on allegation of gross misconduct---Appeal filed by appellant against his dismissal order was also dismissed by Tribunal---Aggrieved by judgment of Service Tribunal' appellant filed constitutional petition, which was accepted by High Court and case was remanded to Service Tribunal for decision on merits---Allegation against accused was that he was involved in a criminal case---Co-accused of appellant, who was involved in the same criminal case in which appellant was also an accused, was also proceeded against, but was reinstated in service on account of his acquittal in the criminal case along with accused---Appeal of appellant filed against impugned order was accepted and he was reinstated in service and matter was remanded to competent authority, with direction that, if considered necessary appellant could be proceeded afresh by directing a regular inquiry into the matter in accordance with law and thereafter to pass a fresh order on the basis of inquiry report.

Syed Rashid Hashmi, for Appellant.

Khadim Hussain Sindhu, District Attorney Naseer Ahmad, Inspector Legal, CPO and Ashby Ahmad, Head Constable, CCPO Departmental Representation for Respondents.

Date of hearing: 4th May, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 1062 #

2006 P L C (C.S.) 1062

[Punjab Service Tribunal]

Before K.B. Abid, Member-III

BUSHRA SAFDAR

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), DISTRICT JHANG and another

Appeal No.547 of 2006, decided on 16th May, 2006.

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

----S.3---Punjab Service Tribunals Act (IX of 1976), S.4---Removal from service on account of wilful absence from duty---Appeal against---Appellant was removed from service on account of wilful absence from duty---Impugned orders of removal from service were passed by respondent authority without any reasons, and without affording opportunity of defence and personal hearing---Enquiry was not conducted in the case in accordance with law and appellant was not served final show-cause notice---Departmental authorities had not presented proper record regarding serving of show-cause notice and proceedings of enquiry---Appellant had made genuine request for extension of leave because she had to settle her marriage legalization---Genuine request of appellant was not considered---Penalty awarded to appellant was too harsh because she had rendered about 31 years at her credit---Penalty of removal from service was converted into compulsory retirement from service.

Pervaiz Inayat Malik and Syed Rashid Hashmi for Appellant.

Malik Ghulam Raza, District Attorney for Respondents.

Date of hearing: 16th May, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 1197 #

2006 PLC (C.S.) 1197

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD JAMIL

Versus

DEPUTY DISTRICT EDUCATION OFFICER (MALE) and 2 others

Appeal No.2136 of 2005, decided on 28th June, 2006.

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

----R. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal to Service Tribunal---Appellant was proceeded against on allegations that his appointment as P.T.C. Teacher was dubious and bogus and by order dated 22-5-2000 he was dismissed from service on false appointment orders under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Departmental appeal filed by appellant against order of his dismissal from service having been dismissed as time barred and also on merits, appellant had filed appeal to Service Tribunal with contention that departmental appeal filed by him was not time-barred because he had filed original appeal against order of his dismissal from service dated 22-5-2000 on 29-5-2000 and that he had proof/evidence of postal receipt because said appeal was sent by registered post---Authorities, in their parawise comments, had not clearly denied that appellant had never submitted any representation dated 29-5-2000 to challenge impugned orders dated 22-5-2000---Since there was factual controversy as to whether appellant had made a representation in time i.e. 29-5-2000 case was remanded to Appellate Authority to first verify the facts after consulting the record of concerned Authority and then take a fresh decision; if it was found that appellant had filed representation in time, his departmental appeal would be decided on merits after granting personal hearing to appellant.

Pervaiz Inayat Malik, for appellant.

Rana Muhammad Yasin, District Attorney for Respondents

. Allah Din, Litigation Officer, on behalf of Respondent No.2.

Naeem Akhtar, Litigation Officer, on behalf of Respondent No.1.

Date of hearing: 28th June, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 1214 #

2006 P L C (C.S.) 1214

[Punjab Service Tribunal]

Before Azad Muhammad Awan, Member-II

AFTAB IQBAL

Versus

EXECUTIVE DISTRICT OFFICER (EDU) NAROWAL and 2 others

Appeal No.2010 of 2005, decided on 9th May, 2006.

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

----S. 7---Punjab Service Tribunals Act (IX of 1974), S.4---Seniority---Determination of---Appeal to Service Tribunal---Appellant who joined Education Department at place N' on 17-4-1993 was transferred to place 'L' on 6-5-2001---Appellant was again transferred from placeL' to place N' vide order dated 12-10-2002 and in said transfer order it' was specifically mentioned that his seniority would be placed at the bottom of seniority list of their cadre in the concerned district---Appellant later on was adjusted in school at placeS' vide order dated '13-11-2002---In the year 2004 applications were invited for absorption as SST' and appellant who applied for same was ignored on the ground that on his transfer from placeL' to place N' he was placed at the bottom of seniority list in his own cadre---Appellant filed appeal, contending that his seniority was to be prepared as per date of entry in Education Department, which was 17-4-1993---Validity---Contention of appellant was devoid of substance---Period of service was to be calculated towards pension---When appellant was transferred from placeL' to place he was rightly placed at the bottom of seniority in his cadre as same was specifically mentioned in transfer order.

Pervaiz Inayat Malik for Appellant.

Muhammad Naeem Malik, District Attorney and Arshad Pervaiz, D.R. for Respondents.

Date of hearing: 9th May, 2006.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 1220 #

2006 P L C (C.S.) 1220

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD AKMAL

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), SIALKOT and another

Appeal No.1286 of 2005, decided on 13th December, 2005.

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

----Rr. 4, 15, 17 & 20---Punjab Civil Servants Act (XIII of 1974), S.21(2)---Punjab Service Tribunals Act (IX of 1974), S.4---Termination of service---Appeal---Remand of case---Fresh inquiry---Fresh inquiry was held against appellant and Inquiry Officer in his report recommended the regularization of appellant and that period in which appellant remained out of service, could be treated as leave without pay---Authority accepted findings of Inquiry Officer, exonerated appellant from date his services were terminated and treated intervening period as leave without pay---Appellate Authority however, through impugned order remanded case to Authority mainly on the grounds that fresh inquiry had not been properly conducted---Validity---Appellate Authority was competent to remand case for fresh proceedings only when appeal was filed before said Appellate Authority in terms of R.15 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Appellant had not challenged imposition of penalty as he already stood exonerated---Representation was filed by appellant only to challenge treatment of period .of intervening as leave without pay under S.21 of Punjab Civil Servants Act, 1974---Since appellant had not filed any appeal to challenge imposition of penalty, his appeal under R.15 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, was not competent because he stood exonerated---Appellate authority, in circumstances, could not exercise powers in terms of R.17 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Impugned order whereby case was remanded, was set aside, directing authority to take a decision on representation of appellant, within reasonable span of time.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin, District Attorney and Muhammad Yousaf, OSD (Litigation), on behalf of the Respondents.

Date of hearing: 13th December, 2005.

PLCCS 2006 SERVICE TRIBUNAL PUNJAB 1240 #

2006 P L C (C.S.) 1240

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

NAZIR AHMAD ABBASI and another

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), BAHAWALNAGAR and another

Appeals Nos. 1400 and 1638 of 2005, decided on 10th March, 2006.

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 against---Appellants serving as Patwari Halqa and Girdawar respectively, were dismissed from service after charge-sheeting them and holding inquiry against them on charges of misconduct, misuse of their official powers and tampering with the record---Allegation against appellant was that they and their co-accused Naib Tehsildar had illegally and with ulterior motives transferred agricultural laud in the name of step-brothers of co-accused/Naib Tehsildar with mala fide intention---Charge-sheet was issued under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Later on Authority decided to treat said inquiry as preliminary inquiry and ordered regular inquiry under Punjab Removal from Service (Special Powers) Ordinance, 2000---Inquiry Officer after holding inquiry found appellants including co-accused Naib Tehsildar guilty of misuse of official powers and tampering with record and thus deserving severe punishment---Inquiry report was considered by the Authority---Appellants were given opportunity of personal hearing and their defence was considered and by passing speaking order appellants and co-accused Naib Tehsildar, were dismissed from service---Appellants had been fully proved that they had acted. dishonestly and with mala fide intention---Contention that once proceedings had been ordered under' Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, Authority had ceased to be competent to order fresh inquiry under Punjab Removal from Service (Special Powers) Ordinance, 2000, was repelled, because as per law, an Authority was fully competent to change, modify or cancel any order passed by it---Authority subsequently realized its error in ordering inquiry/ proceedings under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 which had been rendered obsolete after introduction of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appellants were heard in person and they were given chance to lead their defence at every forum---No cogent reason was available to interfere with impugned order passed against appellants in circumstances.

Pervaiz Inayat Malik and Qazi Umer Farooq, for Appellants.

Rana Muhammad Yasin, District Attorney.

Muhammad Qasim, Assistant, on behalf of Respondent No.2.

Date of hearing: 1st March, 2006.

2006 P L C (C.S.) 418

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Noor Ahmad Shah, Member-1 and Ashiq Hussain Memon, Member-II

QAIMUDDIN MANGI

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh, Karachi and others

Appeal No.62 of 2003, decided on 20th April, 2005.

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

----Rr. 3(2), 7 & 8---Sindh Service Tribunals Act (XV of 1973), S.4---Retrospective promotion, claim for---Appeal to Service Tribunal---Appellant who was appointed as Junior Instructor (B-17), during his service passed B-Tech. (Honours) in the year 1983---Appellant was promoted as Lecturer (B-17) in 1975 and at his own option his cadre was changed to Senior Instructor (B-17) on 27-5-1986 and he was promoted to B-18 under four tiers formula on 1-7-1992 and then promoted to B-18 on regular basis on 12-5-1994 and was promoted as Assistant Professor (B-19) under four tiers formula on 18-12-2002---Appellant had claimed his retrospective promotion to B-18 and B-19 with effect from 30-4-1986 and 1-7-1992 respectively, when his juniors were so promoted---Validity---As per Recruitment Rules, 1984, only holders of Bachelor's degree in Engineering in relevant subject, were entitled to be considered for promotion to the post of Head of Department/ Assistant Professor---Appellant at relevant time possessed degree of B-Tech(Hons) while all private respondents, who were promoted, possessed required degree in Engineering---At the time when holders of Bachelor's degree in Engineering were promoted, appellant was short of five years experience, which was also one of the conditions precedent for promotion to post of B-18---Appellant's claim for retrospective promotion to B-18 w.e.f. 30-4-1986 and promotion to B-19 w.e.f. 1-7-1992, was not tenable in circumstances.

Appellant in person.

Mrs. Tabassum Ghazanfar, Asstt.A.-G. for Respondents Nos.1 to 3.

Faiz Ahmed, Legal Advisor to Technical Education for Respondent No.4.

Nasir Hussain, for Respondent No.5.

Date of hearing: 1st April, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 442 #

2006 P L C (C.S.) 442

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Nur Ahmad Shah, Member-I and Muhammad Ayub Shaikh, Member-II, AKHTAR HUSSAIN SHAH

Versus

PROVINCE OF SINDH, through The Chief Secretary, Government of Sindh, New Sindh Secretariat Building, Karachi and others

Appeal No.202 of 2000, decided on 6th of August, 2005.

(a) Interpretation of statutes---

----Rules were always prescribed being subservient to the original Act--Any rule enacted in derogation of original Act or defeating the spirit of Constitution, could not be allowed to prevail.

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

----Rr. 4(1)(b)(i) & 5---Sindh Service Tribunals Act (XV of 1973), S.4---Awarding of major penalty of forfeiture of two years' qualified service---Appeal---Disciplinary proceedings against appellant, who was serving as Deputy Superintendent of Prisons, were initiated on allegation that he released a prisoner after receiving bribe---Show-cause notice was issued to appellant, but major penalty was imposed upon him without conducting regular inquiry against him to probe the matter thoroughly---Neither statement of complainant nor that of accused, who allegedly was released by appellant, was ever recorded before appellant---Merely on the basis of a complaint made by unconcerned person, awarding of major penalty to appellant, was not proper, fair and reasonable---For resolving controversial questions of facts, regular inquiry was very much necessary---Appeal was accepted and impugned order awarding penalty to appellant, was set aside, in circumstances.

Nawab Khan v. Government of Pakistan through Ministry of Defence, PLD 1994 SC 222; Ghulam Muhammad v. Prime Minister and others 1996-PLC (CS) 868; D.I.G.P., Lahore v. Anis-ur-Rehman, PLD 1985 SC 134 and Alamgir v. District Food Controller, Milian and others, 1993 SCMR 603 ref.

Noor-ul-Haq Qureshi for Appellant.

Mrs. Tabasum Ghazanfar, A.sstt. A.G. for Respondents.

Date of hearing: 20th July, 2005.

2006 PLC (C.S) 516

[Sindh Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Leghari, Chairman and Justice Rahmat Hussain Jafferi, Member

AZHAR GUL SOOMRO

Versus

HON'BLE HIGH COURT OF SINDH, through Registrar, Karachi

Service Appeal No.14 of 2003, decided on 7th May, 2005.

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

----Rr.2(4) & 4(1)---Sindh Service Tribunals Act (XV of 1973), S.3-B---Criminal Procedure Code (V of 1898), Ss. 200 & 247---Penal Code (XLV of 1860), S.153-A---Removal from service---Civil Judge having experience of nine (9) years as Magistrate---Gross misconduct and inefficiency, charges of---Private complaints involving cognizable and non-compoundable offences---Non-appearance of complainants---Acquittal of accused persons in such complaints by Civil Judge in exercise of powers under S.247, Cr.P.C.---Taking cognizance of offence under S.153-A, P.P.C. by Civil Judge on direct complaint and then acquitting accused persons---Validity---Civil Judge had acquitted accused in presence of clear bar contained in S.247, Cr.P.C.---Court by virtue of S.195, Cr.P.C. had no jurisdiction to take cognizance in respect of offence under S.153-A, P.P.C. without a complaint made by an officer authorized by Central or Provincial Government as the case might be---Civil Judge in such cases had exercised jurisdiction not vested in him---Conduct of Civil Judge clearly showed that he had passed orders in bad faith being conscious of the fact that he was doing wrong as he was not authorized to acquit accused or take cognizance in such matters---Such action of Civil Judge would come within ambit of mala fide---Civil Judge had rightly been found guilty of misconduct by departmental authorities---Service Tribunal dismissed appeal in circumstances.

Abrar Bukhari for Appellant.

Ahmed Pirzadad Addl.-A.G. for Respondents.

Date of hearing: 2nd April, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 545 #

2006 P L C (C.S.) 545

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Leghari, Chairman and Justice Rehmat Hussain Jafferi, Member

MUHAMMAD BUX BHANGWAR and another

Versus

HIGH COURT OF SINDH through Registrar

Service Appeals Nos.13 and 15 of 2002, decided on 10th December, 2005.

(a) Civil service---

----ACR, recording of---Duties; functions and conduct of Judicial Officers---Judicial officers, were assigned duties to decide cases pertaining to life, liberty and property of citizens---Constitution had given guarantee to citizens that their said rights would be protected in accordance with law and it was incumbent upon Judicial Officers to act, work, discharge duty and behave in such a manner that confidence of people should not be shattered or eroded---Judicial Officers in performance of their duties, must present themselves in such a manner that nobody could raise a finger on them and people should feel secure that their rights would be decided, impartially, without fear and favour or on any extraneous considerations--Conduct, behaviour and character of judicial officers should be such that people should be encouraged to approach the Courts for deciding their disputes---Character, temperament, disposition, moral fibre, poise, nobility, dignity and other related matters of Judicial Officers should be of a very high calibre compared to other civil servants, because they decide the fate of citizens in respect of their life, liberty and property--Cases of Judicial Officers ought to be examined in the light of said circumstances---Under rules of discipline in the matters, of civil servants, character role or annual confidential report, was regarded as basic record that was required to be maintained every year to evaluate performance of civil servant and said report should be prepared very carefully---Reporting, Officer as well as Countersigning Officer were supposed to see that report should not reflect undue generosity or harshness.

Jameel Ahmed Malik v. Pakistan Ordnance Factories Board 2004 SCMR 164 ref.

(b) Civil service--

----Adverse remarks---Expunction of---Employees, in the present case were Judicial Officers/Additional District and Sessions Judges, and Chief Justice had observed that civil servants were having corrupt reputation and gave certain other adverse remarks in their ACRs and communicated to them---Main attack of employees was that said adverse remarks. were communicated to them late---Validity---No doubt considerable delay was made in communicating adverse remarks, but that by itself would not render adverse remarks illegal or inconsequential as writing of ACRs being based on judicial functions of an officer, could cause delay---Besides, the integrity of a Judicial Officer had to be assessed by Reporting Officer on the basis of credible information which could also be linked or counter checked with his work being done by him in the Court---To achieve said objects comparatively to assess overall performance as well as reputation of a Judicial Officer, a longer time was required than writing ACR of officer of executive---Employees were given full opportunity of making representation and presenting their cases and view points before competent Authority who, after giving them a chance of hearing, passed impugned order--Merely delay in sending adverse remarks, would not result in miscarriage of justice---Objection in that respect was repelled---ACRs of Judicial Officers were to be recorded by High Court alone and such power would not vest in the executive---Orders of Chief Justice had clearly indicated that he had conducted extensive inquiry about the work, conduct and reputation of employees and then recorded their ACRs---Said orders with regard to ACRs of Judicial Officers which were based on cogent reasons and passed after completing all formalities, did not require any interference.

Inspector-General of Police v. Altaf Majid 1994 SCMR 1348; F.Q. Muteeullah Khan Alizai v. Chief Secretary 1994 SCMR 722; Govt. of Punjab v. Ahsanul Haq Sethi PLC 1986 SC 684; Lahore High Court Lahore v. K.M. Sohail 2001 PLC (CS.) 1253; Ch. Shabbir Hussain v. Registrar, Lahore High Court Lahore 2004 PLC (C.S.) 236; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 ref.

--'Reputation', defined and explained.

Federation of Pakistan v. Amjad Ahad Sheikh 1983 SCMR 164 ref.

Abrar Bukhari and Muhammad Nawaz Shaikh for Appellants.

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

Date of hearing: 2nd April, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 671 #

2006 PLC (C.S.) 671

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh Chairman, Nur Ahmad Shah and Muhammad Ayub Shaikh, Members, II.

MANZOOR HUSSAIN

Versus

PROVINCIAL POLICE OFFICER and others

Civil Appeal No.194 of 2003, decided on 28th July, 2005.

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

----Rr. 4(l)(b)(i) & 5---Sindh Service Tribunals Act (XV of 1973), S.4---Imposition of penalty of reduction in rank---Appeal---Major penalty of reduction in rank was imposed on appellant after issuing him show-cause notice on allegation that he being a police official had tortured an under-trial accused---Regular inquiry was dispensed with, but subsequently an Inquiry Officer was nominated to probe the matter who recorded statements of 9 witnesses, but none of them implicated appellant---Such inquiry report, by no means could be used as piece of evidence against appellant---Appellant was proceeded with departmentally on complaint of person who was allegedly tortured, but in said complaint person other than appellant was nominated---Neither any preliminary inquiry was conducted to collect material against appellant nor any regular inquiry was conducted in order to arrive at a proper conclusion as to whether appellant was guilty of the charge made against him---Appellant could not be held guilty of charge as mentioned in show-cause notice---Impugned orders based upon such imaginary report, were not maintainable.

1983 PLC (C.S.) 1097; 1993 PLC (C.S.) 698; 1995 PLC (C.S.) 349; 1997 TD (Service 274; 2000 PLC (C.S.) 270; PLJ 2003 TRC Service 66; 2003 TD (Service) 247; 2003 PLC (C.S.) 353; 2003 PLC (C.S.) 395 and 2003 PLC (C.S.) 1445 ref.

Sanaullh Noor Ghauri for Appellant.

Tabasum Ghazanfar, Asstt. A.-G. for Respondents.

Date of hearing: 28th July, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 717 #

2006 P L C (C.S.) 717

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

RAJA FARRUKH YOUNUS

Versus

INSPECTOR-GENERAL OF POLICE, CENTRAL POLICE OFFICE (CPO), AT KARACHI and 2 others

Appeal No.233 of 2002, decided on 16th June, 2005.

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

----Rr. 3, 4(1)(b)(iv)---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service---Major penalty of dismissal from service was awarded on appellant (who was serving as Sub-Inspector of Police in the capacity of S.H.O.) on account of his alleged involvement in criminal cases, negligence, misuse of official position and absence from duties---Record had shown that within a short span of 7 months, as many as 6 show-cause notices were issued to appellant, but nothing was on record to indicate, if any of said show-cause notice was ever served upon the appellant---In absence of positive proof of service of show-cause notice, failure of appellant to furnish reply thereof, was of no significance---Appellant apparently was not provided full, fair and proper opportunity to defend himself---Principles of natural justice, in circumstances had been violated---Any order affecting the rights of the parties passed in violation of principles of natural justice, would carry no legal value---Besides, no final show-cause notice was ever issued to appellant which was also a must and in that respect no leniency could be made for its dispensation---Impugned orders were set aside and matter was remanded to authorities to initiate departmental proceedings against appellant afresh after providing him full, fair and proper opportunity of hearing, purely in accordance with law.

University of Dacca v. Zakir Ahmed PLD 1965 SC 90; P.I.A.C. v. Nasir lama( Malik and others 2001 PLC (C.S.) 890 and PLD 1981 SC 179 and 1997 PLC (C.S.) 424. ref.

Muhammad Nawaz Shaikh for Appellant.

Mrs. Tabasum Ghazanfar, A.A.-G. for respondents.

Date of hearing: 7th June, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 727 #

2006 P L C (C.S.) 727

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Muhammad Ayub Shaikh, Member-11

GHULAM RASOOL

Versus

SECRETARY, GOVERNMENT OF SINDH, FOOD AND CO-OPERATION, KARACHI and others

Appeal No.77 of 2002, decided on 14th July, 2005.

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

----Rr. 3(1)(a), 4(l)(a)(iv), 5(6) & 6---Sindh Service Tribunals Act (XV of 1973), S.4---Causing pecuniary loss to government by negligence or breach of orders---Recovery of amount of loss---Appellant serving as Inspector Co-operative Societies, was proceeded with departmentally on account of gross negligence in performance of government duties and breach of trust---Allegation against appellant was that on account of carelessness and negligence in performance of government duties, a huge amount was blocked and that appellant had given a deliberate loss to Co-operative Farm Service Centre for which he was personally responsible---Inquiry Officer in his report found appellant along with others guilty of the charge that they were liable to make loss good proportionately or individually as they were jointly and severally responsible for payment of alleged amount---On basis of said report, appellant was awarded penalty to pay amount being the loss sustained by government---In both inquiry reports, name of appellant no where figured---Parallel and separate inquiry proceedings were initiated against appellant, in utter disregard and violation of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---Record had revealed that whole disciplinary proceedings initiated, conducted and concluded against appellant were in glaring violation and flagrant floatation of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---Purpose of conducting inquiry was to record evidence of witnesses from both sides and after putting both the versions in juxtaposition coupled with other documentary evidence and Inquiry Officer had to form his opinion about guilt or otherwise of civil servant concerned---Neither charge was framed nor any witness was examined, nor any document was taken into consideration nor even appellant was associated with inquiry proceedings---Copy of inquiry report was not supplied to the appellant and final show-cause notice was also not given to him---Penalty imposed upon appellant was not maintainable in circumstances---Impugned order was set aside.

Appellant in person.

Mrs. Tabasum Ghazanfar, Asstt. A.G. for Respondents.

Date of hearing: 29th June, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 747 #

2006 P L C (C.S.) 747

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Yousaf Ali Mirza, Member-1 and Nur Ahmad Shah Member-11

Dr. Mrs. ZEENAT ISMAIL and others

Versus

INSTITUTE OF BUSINESS ADMINISTRATION through Director and others

Appeals Nos.132, 241 of 2002 and Appeals Nos.-123, 177 of 2003, decided on 10th July, 2004.

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

----Ss. 2(a), 2(aa), 3-E & 4---Appeal---Competency---Jurisdiction of Tribunal---Respondent Institute had challenged the very jurisdiction of Tribunal to entertain, hear and decide appeals filed by appellants against their grievances---Plea of respondent Institute was that it was an educational institution, and was not carrying any work in connection with affairs of Province and it was established and set up only for the purpose to confer degrees, besides, Provincial Government did not own or control any share of respondents---Contention was that appellants, in circumstances could not be deemed to be civil servants under S.2(a) of Sindh Service Tribunals Act, 1973 and could not maintain appeals---Validity---Apart from the fact that respondent Institute was established by Provincial enactment, same was being controlled by Provincial Government and its overall administration also lay with Provincial Government---Employees of respondent Institute, in circumstances, would be deemed to be civil servants for the purpose of Sindh Service Tribunals Act, 1973 and matters relating to their terms and conditions of service, were to be decided by Tribunal under provisions of the Sindh Service Tribunals Act, 1973---Tribunal, in circumstances, had jurisdiction to entertain, hear and decide appeals filed by appellants.

Munawar Hussain for Appellant (in Appeal No.132 of 2002).

Gohar Iqbal for Appellant (in Appeal No.241 of 2002).

Arif Riaz for Appellant (in Appeal No.123 of 2003).

Abrar Bukhari for Appellant (in Appeal No.177 of 2003).

Shahid Jamil for Respondents I.B.A.

Manzoor Ali Khan for I.B.A. (in Appeal No.132 of 2002).

PLCCS 2006 SERVICE TRIBUNAL SINDH 761 #

2006 P L C (C.S.) 761

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, (Member-1)

MUHAMMAD JAFFER ABBASI

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 2 others

Appeal No.56 of 2000, decided on 21st June, 2005.

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

----S. 9-A---Sindh Service Tribunals Act (XV of 1973), S.4---Transfer to other department---Repatriation to---Appeal against---Locus poenitentiae, principle of---Applicability---Appellant who was serving as Deputy Secretary (Regulations) in Sindh Public Service Commission, was transferred to Sindh Provincial Secretariat Service where he remained posted in different departments for over 5 years and then he was transferred and posted as Deputy Secretary (Budget) in Services and General Administration Department-=On account of appellant's outstanding and meritorious performance, he was permanently transferred to Service and General Administration Department on accord of said Department---While appellant was performing his duties quite satisfactorily in said transferee Department, his permanent absorption in said Department was cancelled through Notification and he was repatriated to his parent Department/Sindh Public Service Commission-Validity--:-Notification whereby appellant was transferred to transferee Department legally and competently, having been acted upon, a valuable right had accrued to appellant which under doctrine of 'Locus Poenitentiae' could not be snatched from him---No show-cause notice or chance of personal hearing was provided to appellant before rescinding/withdrawing the Notification whereby he was repatriated---If an order had been passed without hearing and notice to the party whose presence was otherwise necessary before Authorities concerned, then said order, would be a nullity in the eye of law---Only reason assigned by the Authorities for withdrawal of Notification whereby appellant was permanently absorbed in transferee Department was that the said Notification was issued without consultation of the Chairman, Sindh Public Service Commission and consent of Finance Department---Validity---Sindh Public Service Commission was an attached department of transferee Department and there was no rule that consultation with subordinate or attached Department was a condition precedent before passing any order as there was no hard and fast rule that before absorbing a civil servant, consent of Finance Department was necessary--Competent Authority having itself absorbed appellant in transferee Department through a valid and legal Notification, it could not take benefit of its lapses to deprive appellant of his valuable and legal rights of his future prospects---Impugned Notification of repatriation of appellant, was set aside and Notification of permanent absorption was restored.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Chairman King Edward University v. Wasif Zamir Ahmed Khan 1997 SCMR 15 and Allandino v. Faqir Muhammad PLD 1969 SC 582 ref.

Manzoor Ali Khan for appellant.

Mrs. Tabasum Ghazanfar, A.A.-G. for Respondents.

Date of hearing: 19th May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 790 #

2006 P L C (C.S.) 790

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

ABDUL NAEEM SIDDIQUI

Versus

SUPERINTENDENT OF POLICE, SPECIAL BRANCH, HYDERABAD and 21 others

Appeal No.69 of 2002, decided on 31st May, 2005.

Police Rules, 1934---

----R. 13.18---Sindh Service Tribunals Act (XV of 1973), S.4---Transfer from regular police force to Special Branch---Claim for promotion and confirmation---Appellant, who was appointed as constable in regular police force, was transferred to Special Branch after about 4 years of his appointment with a clear order that appellant would get the lowest position in seniority of constables of Special Branch---Appellant was promoted as Head Constable in Special Branch and then as Assistant Sub-Inspector---Plea of Authorities was that transfer of appellant to Special Branch and his subsequent promotions were in violation of Rules and purely on political grounds and that private respondents were senior to appellant by virtue of their initial appointments in Special Branch---Appellant had contended that he be confirmed as A.S.I. with effect from the date of completion of probation period in that rank and that impugned seniority list be declared illegal---Validity---Appellant was confirmed in rank of Head Constable retrospectively on the-date which was the date on which he was promoted, which was in clear violation of R.13.18 of Police Rules, 1934 which required appellant to hold the promotion post on probation for at least two years---Even a successful completion of probation would not earn confirmation as a matter of course unless a regular slot existed for the purpose---Probation period could be extended, but in no way, waived or curtailed---Appellant's rapid rise in Special Branch where he had gone on deputation, from Constable to A.S.I. in less than six months, neither was sustainable in Rules nor was equitable as private respondents were senior to appellant since their initial appointment and all of them started their service in Special Branch unlike appellant who landed there clandestinely by use of political clout---Appellant could not produce any evidence in support of his allegation of malice on part of the authorities---Civil servant seeking transfer to an equivalent post in another cadre would rank junior to all those already working there in that grade/cadre---Same principle applied in inter-regional transfers---Appellant would rank junior to constables already working in Special Branch where he was transferred and his seniority would be fixed accordingly---Impugned order being just and proper, appeal against same was dismissed accordingly.

Ghulam Sarwar Chandio for Appellant.

Mrs. Tabassum Ghazanfar, A.-A.G and Muhammad Akhtar, D.S.P. Special Branch for Respondents.

Date of hearing: 23rd May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 806 #

2006 P L C (C.S.) 806

[Sindh Service Tribunal]

Before Justice (Recd.) Abdul Ghani Shaikh, Chairman, Nur Ahmad Shah, Member-I and Muhammad Ayub Shaikh, Member-II

WAJID ALI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and 5 others

Appeal No.254 of 2000, decided on 14th July, 2005.

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

---Rr. 3(1)(b) & 4(1)(b)(iii)---Sindh Service Tribunals Act (XV of 1973), S.4---Removal from service---Appellant was removed from service after charge-sheeting him and holding inquiry against him on certain acts of misconducts---Main allegations against appellant were that he being Incharge Principal of a school, mis-appropriated huge amount of tuition fee, embezzlement and making illegal appointment of teachers---Charge of mis-appropriation of tuition fee, stood proved against the appellant, and it had also been proved that he had withdrawn an amount as Telephone Charges, but he failed to deposit the same in Bank and due to his failure Telephone of School was disconnected; in similar fashion appellant had also mis-appropriated other huge government money---Appellant during inquiry proceedings, had admitted his guilt and he as per his undertaking in writing had promised to refund said mis-appropriated amount in instalments, but he did not execute his undertaking as he had never paid amount either in lump sum or in instalments as promised by him---Appellant had not alleged any ill-will or animosity against any of Inquiry Officers who had conducted inquiry in perfectly legal and valid manner---Inquiry Officers scrutinized each and every document/register etc., afforded full, fair, proper and adequate opportunity to appellant to rebut charges and to prove his innocence, but he failed to do that---Appellant, in circumstances, could not say that no opportunity was provided to him to defend himself and to prove his innocence---Appellant being Incharge Principal of school who had failed to maintain upto date record of receipt and payment in accordance with settled procedure and policy, had committed serious financial illegalities and irregularities, which called for penal action against him---Apart from said financial illegalities and irregularities, appellant in excess of his powers appointed ten employees of different grades from B-5 to B-9 for which he was not legally competent, especially when there was ban on appointment---Appellant, in circumstances,. was rightly awarded major penalty of removal from service, which called for no interference.

Ghulam Sarwar Chandio for appellant.

Mrs. Tabasum Ghazanfar, A.-A.G. along with Saeed Ahmed, S.O. Education Department and Abdul Aziz, Ex-Principal, G. H. S. S. Kashmore for Respondents.

Date of hearing: 30th June, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 839 #

2006 P L C (C.S.) 839

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-I

MUHAMMAD BILAL KHAN SEHRAI

Versus

GOVERNMENT OF SINDH, through Chief Secretary and another

Appeal No.93 of 2000, decided on 7th July, 2005.

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

----S. 9---Sindh Service Tribunals Act (XV of 1973), S. 4---Order of promotion---Cancellation of order---Appeal---Appellant serving as Deputy Education Officer in B-17, was duly promoted to the post of Education Officer in B-18 on recommendation of Departmental Promotion Committee and his pay was fixed accordingly, but after about 5-1/2 months of his promotion, his promotion order was cancelled vide Notification without issuing him any show-cause notice and without providing him chance of personal hearing---Appellant was validly and legally promoted to post of Education Officer in B-18 after observing all codal formalities as provided by law---Case of appellant was processed, examined and considered by appropriate Departmental Promotion Committee which thoroughly scrutinized appellant's credentials and other qualification etc. and then recommended his name for said promotion and said recommendation was duly approved by competent Authority---Appellant having acquired valuable and vested right, same could not be taken back/snatched away without issuance of show-cause notice and providing opportunity of hearing, but no said opportunity was provided to appellant---Appellant otherwise being eligible and competent for promotion, his promotion was valid, legal and perfect and was implemented/acted upon---Appellant in circumstances had acquired a legal and valuable right, which under doctrine of "Locus Poenitentiae" could not be snatched away from him---Impugned order which was passed without hearing appellant whose presence was necessary before Authorities concerned, was nullity in the eye of law---Notification/order whereby promotion order was cancelled, was set aside and order of promotion was restored.

Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; 1995 SCMR 950; 1995 SCMR 1008; 1996 PLC (C.S.) 862; 2000 TD (Service) 168; 2003 SCMR 826; PLD 1990 SC 951; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Chairman, King Edward University v. Wasif Zamir Ahmed Khan 1997 SCMR 15; Mir Ghulam Ali Khan v. Pakistan 2000 PLC (C.S.) 349; Allandino v. Faqir Muhammad PLD 1969 SC 582 and Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

Khalid Jaweed and Asif Ali Shah for Appellant.

Mrs. Tabasum Ghazanfar, Asstt.A.-G for Respondent.

Date of hearing: 16th June, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 852 #

2006 P L C (C.S.) 852

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh (Chairman) and Nur Ahmad Shah, Member-1

INSPECTOR IRSHAD AHMED SOHAIL

Versus

CAPITAL CITY POLICE OFFICER/ADDL. INSPECTOR GENERAL OF POLICE KARACHI and 2 others

Appeal No.59 of 2003, decided on 31st May, 2005.

(a) Sindh Police( (Efficiency and Discipline) Rules, 1988---

----Rr. 3 & 4---Sindh Service Tribunals Act (XV of 1973), S.4---

Reduction in rank---Appeal against---Appellant while posted as Inspector/Incharge Investigation, was proceeded against on charge that due to his faculty/defective investigation, lack of supervision and lack of interest, he had failed to pursue the high profile criminal case successfully and conducted investigation in that case in a cursory manner, resultantly accused in that case were acquitted---Appellant was provided chance of personal hearing, but he, having failed to convince Deputy Inspector General Police, was awarded major penalty of reduction in a rank as Sub-Inspector---Appellant feeling aggrieved, preferred,( Departmental appeal, which having remained unresponded, he had filed appeal before Service Tribunal---Appellant, who was entrusted investigation of F.I.R. under S.6-F/7(A) of Anti-Terrorism Act, 1997, after conducting same submitted challan against nominated accused before the court concerned---For any lapse, either factual or legal committed by appellant due to his inefficiency, negligence or carelessness, he alone could be held guilty for the same---Five nominated accused were acquitted mainly due to defective investigation of case conducted by appellant---Carelessness, negligence and inefficiency of appellant was evident from the simple fact that he could not even bother to verify the parentage of the only independent and star witness of the prosecution---Lapses of appellant during investigation of case, itself had spoken a lot about his negligence---Appellant, in circumstances, was rightly proceeded against departmentally and penalty of reduction in rank awarded to him was just and appropriate---No specific period of said reduction having been mentioned in the order, Service Tribunal, while maintaining said penalty, directed that period of reduction in rank would be for 2 years from the date of original impugned order.

2000 PLC (C.S.) 270; 2000 PLC (C.S.) 937; 2001 PLC (C.S.) 296; 2001 PLC (C.S) 648; 2001 PLC (C.S.) 1097; PLD 2002 CS 667; 2002 PLC (C.S.) 1078; 2002 PLC (C.S.) 1106 and 2002 PLC (C.S.) 1324 ref.

(b) Judgment---

----Observations during the course of arguments---Nature of---Observations during the course of arguments were always of tentative nature and the judgments could not be passed on the basis of such observations, but while dictating judgments each and every assertion made for and against, had to be looked into by the Court in the light of the documents and other material placed on record.

Younus Inayat for Appellant.

Mrs. Tabasum Ghazanfar, Asstt.A.-G. for Respondents.

Date of hearing: 10th May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 859 #

2006 P L C (C.S.) 859

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmed Shaft, Member 1

ATTA MUHAMMAD

Versus

VICE-CHANCELLOR, UNIVERSITY OF KARACHI and 2 others

Appeal No.50 of 2001, decided on 15th June, 2005.

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---Appellant serving as messenger in the department, was removed from service after serving him with call notice and holding inquiry against him on allegations of coming late, absence without leave and non-compliance of Chairperson's order---According to Efficiency and Discipline Rules of the University, issuance of show-cause notice, appointment of Inquiry Officer and issuance of final show-cause notice, were the functions of "Authorized Officer", but in the present case Deputy Registrar of the University had appointed the Inquiry Officer---Departmental proceedings initiated against appellant, in circumstances were in utter disregard of mandatory provisions of Efficiency and Discipline Rules of the University---Call notice was also issued by Inquiry Officer who was not competent to do so---Inquiry report had revealed that only written reply of appellant to the call notice was taken into consideration and neither any witness was examined nor any document was referred therein---In call notice as well as in final show-cause notice published in Newspaper, no details of absence of appellant were given---Nothing was on record to indicate as to when and with whom and in whose presence appellant had misbehaved with his teachers and which of the orders of Chairperson were disobeyed by him---impugned order of removal from service passed against appellant, in circumstances was illegal, void and in derogation of Rules, which could not be maintained---Appeal filed by appellant, though was time-barred, but delay in filing appeal was neither wilful nor deliberate, but was due to unavoidable circumstances which could be condoned---Accepting appeal, impugned order passed against appellants, were set aside by the service Tribunal with direction to reinstate the appellant in service.

Syed Zafar Ali Shah for Appellant.

Muhammad Tasneem for Respondents.

Date of hearing: 31st May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 876 #

2006 P L C (C.S.) 876

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman Nur Ahmad Shah, Member-I and Ashique Hussain Memon, Member-II

ABDUL JABBAR

Versus

GOVERNMENT OF SINDH through Secretary Education and 4 others

Appeal No.412 of 2000, decided on 14th April, 2005.

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

----Rr. 4(l)(b)(ii), 5 & 6---Sindh Service Tribunals Act (XV of 1973), Ss.2(a) & 4---Compulsory retirement---Major penalty of compulsory retirement was imposed on appellant after serving him with show-cause notice and holding inquiry against him on allegation that he misappropriated amount of tuition fee which was to be deposited in Bank--While initiating disciplinary proceedings, judicial mind was not applied and same were initiated in a cursory manner and no inquiry was conducted which, in view of appellant's vehement denial of allegation and circumstances of the case, was very much necessary---Plea of appellant showing his innocence was not taken into consideration---Penalty awarded to appellant, in circumstances, was not maintainable---Contention that appellant, who, had already received his pensionary benefits after compulsory retirement, had ceased to become civil servant and was not entitled to reinstatement, had no force as mere fact that appellant had received pensionary benefits, in no way would disentitle him to seek remedy from Service Tribunal---Even after imposition of major penalty of compulsory retirement, appellant, in view of S.2(0 of Sindh Service Tribunals Act, 1973, would remain civil servant to invoke jurisdiction of said Tribunal---Impugned order was set aside and matter was remanded for conducting regular inquiry against appellant in accordance with law after providing him every opportunity of hearing---Appellant, meanwhile, was directed to be reinstated in service.

Bashir Ahmad Qureshi for Appellant.

Tabassum Ghazanfar, A.A.-G. for Respondents.

Date of hearing: 21st March, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 883 #

2006 P L C (C.S.) 883

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Nur Ahmad Shah, Member-1 and Ashique Hussain Memon, Member-H

NABI BUX

Versus

SASO BOARD through Managing Director SASO and 2 others

Appeal No. 261 of 1999, decided on 14th April, 2005.

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

----Rr. 4(2), 10 & 10-A---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service---Reinstatement of---Withdrawal of reinstatement order---Major penalty of dismissal from service was awarded to appellant after serving him with a show-cause notice on allegation that he was found guilty of defalcation of huge amount---Appellant, instead of challenging his dismissal order before appropriate departmental Appellate Authority, remained mum for five years and then he submitted an application to the then Chief Minister, who, on a summary floated to him, passed orders reinstating the Appellant in service---Respondent Board, however, decided to withdraw order of reinstatement of Appellant against which he had filed appeal----Chief Minister though under R.10-A of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, was empowered to call for and examine record of any proceeding under said Rules, for the purpose of satisfying himself as to the correctness of any finding or penalty, etc., but under second Proviso to sub-rule (2) of R.10-A of said Rules, order imposing penalty could not be revised by Chief Minister after period of six months from the date of its communication to civil servant if no appeal was preferred---Appellant having not preferred any appeal against order of his dismissal from service, order of Chief Minister, reinstating him in service, after passing of over five years, by no stretch of imagination, could be termed as legal and valid---Chief Minister, in circumstances, had flouted mandatory rules for which there was no justification at all---Since appellant had admitted his guilt, non-holding/conducting of regular inquiry was not at all fatal---Even if appellant was acquitted from criminal charge, but said acquittal, was no bar for imposing any penalty in departmental proceedings under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---If the order was illegal, then perpetual rights could not be gained on basis of such order---Principle of locus poenitentiae, in circumstances was not attracted in the case of appellant---Order reinstating appellant in service passed by the then Chief Minister without any legal authority, was of no legal consequence and same was rightly withdrawn which could not be interfered with.

2002 SCMR 684; 2003 SCMR 41; 2003 SCMR 367; 2004 SCMR 1472 and PLD 1992 SC 207 ref.

Shabbir Ahmad Awan for Appellant.

Moula Buksh Khoso for Respondents.

Date of hearing: 7th March, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 892 #

2006 P L C (C.S.) 892

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Mir Ahmad Shah, Member-II

HATIM ALI

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

Appeal No.255 of 2000, decided on 31st May, 2005.

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

----Rr. 4(1)(b)(iv) & 5---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service---Appellant, while posted as Administrator, Union Council, was dismissed from service after issuing him show-cause notices on very serious charge of mis-appropriation of huge amount---Appellant having denied said allegation, regular inquiry was very much necessary, but it was dispensed with and a short cut procedure of show cause followed by a final show-cause notice was adopted, which was neither proper nor justified in circumstances of the case---Appellant was penalized on basis of fact finding inquiry conducted by the Secretary of Board which, under law, could not be made basis for awarding major penalty---Nothing was found against appellant in fact finding report which could implicate hint in mis-appropriation of huge money---Initially Additional Secretary of the province issued show-cause notice to appellant posing himself as an 'Authority' while final show-cause notice was issued by the Provincial Secretary in the capacity of an 'Authority', whereas under law, show-cause and final show-cause notices had to be issued by Authorized Officer and not by 'Authority'---Authorized Officer as well as 'Authority',. could not be one and the same person---One who was designated as 'Authority' had to be higher in rank than the person who was authorized to perform functions of 'Authorized Officer'---Impugned order was set aside and matter was remanded for proceeding afresh against appellant in accordance with law by ordering regular inquiry against him in accordance with law and principles of natural justice.

Moula Bukhsh Khoso for Appellant.

Tabassum Ghazanfar, A.A.-G. for Respondents.

Date of hearing: 20th May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 928 #

2006 P L C (C.S.) 928

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah, Member-1

Mrs. NAJMA SAEED

Versus

CHIEF SECRETARY and 3 others

Appeal No. 129 of 2002, decided on 16th June, 2005.

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

----R. 4(1)(b)(i), 5 & 6---Sindh Service Tribunals Act (XV of 1973), S.4---Reduction in rank---Major penalty of reduction in rank for two years was awarded to appellant after serving her with final show-cause notice, but without holding inquiry against her on allegation of misappropriation of Government money by making forgery---Co-accused, who was awarded major penalty of removal from service and recovery of losses by a separate order, had not filed any appeal before Service Tribunal whereas appellant had challenged impugned order passed against her---Charge of misappropriation of Government money in collaboration with other person levelled against appellant was serious one, which she had denied and explained her position, but despite that no regular inquiry was either ordered or conducted against her---For awarding major penalty to a civil servant, there must be ample, convincing and reliable evidence, which could be collected only through regular departmental inquiry, but no such inquiry was either ordered or conducted against appellant---From the inquiry report against co-accused, it was revealed that co-accused, without the knowledge of appellant, had changed, rather manipulated the figures in the passed bills and the cheques presented before the Bank---Appellant, in circumstances could not be penalized for the fault and default of other---In absence of any regular inquiry as also in absence of any tangible, convincing and concrete evidence of alleged inefficiency, negligence of duties and lack of supervision on the part of appellant, major penalty awarded to her, was not maintainable---Impugned order was set aside, in circumstances.

Abdul Sattar Mughal for appellant.

Tabasum Ghazanfar Asstt. A.-G. for Respondents.

Date of hearing: 18th May, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 938 #

2006 P L C (C.S.) 938

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice (Recd.) Muhammad Moosa K. Leghari, Chairman and Justice

Khilji Arif Hussain, Member

SAAD SALAM ANSARI

Versus

CHIEF JUSTICE, HIGH COURT OF SINDH, KARACHI

Service Appeal No. 7 of 2003, decided on 31st May, 2006.

(a) Judicial officer---

----Conduct---Parameters---Judicial Officer must not, in any case, be equaled with the conduct of an ordinary civil servant, as the Judicial Officers are bestowed with the power to adjudicate the rights of the people and the matters involving life and liberty of citizens---By the very nature of the duty upon the Judicial Officers, they are not only expected but required to demonstrate unimpeachable character, high integrity and transparency in their actions coupled with nobility and dignity, as compared to other civil servants---Judicial Officers, found/and/or believed to be involving in corrupt practices and those infested with inefficiency, cannot be allowed to go scot-free, as it is essential to rid the subordinate judiciary of mess and pollution.

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

----Rs. 5 (1)---Regular inquiry, dispensing with---Principles---Charges which require evidence for their proof certainly necessitate holding of a regular inquiry, nevertheless, if allegations are apparent on the face of record then in every case the command of holding regular inquiry cannot be enforced---Legislature in its own wisdom has bestowed the powers of dispensing withholding of regular inquiry upon the Authority/Authorized Officer and in the circumstances in which the Authority/Authorized Officer has justified reasons for arriving at a conclusion that no regular inquiry is necessitated, the Authority/Authorized Officer can dispense with the same.

Government of Sindh v. Saiful Haq Hashmi 1993 SCMR 956; PLD 1994 SC 222; Dy. Inspector General of Police Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 and Executive Engineer v. Zahid Sharif 2005 SCMR 824 rel.

----S. 4(3)---Sindh Service Tribunals Act (XV of 1973), S.3-B---Removal from service---Regular ,inquiry, non-holding of---Judicial Officer was issued show-cause notice for the acts of gross misconduct and inefficiency---Authorized Officer found the Judicial Officer guilty of charges and recommended his removal from service---Competent Authority issued final show-cause notice to the Judicial Officer and after affording opportunity of personal hearing, he was removed from service---Plea raised by the Judicial Officer was that major penalty was imposed upon him without holding formal inquiry and just on the basis of replies filed to show cause notices---Validity---Acts of misconduct on the part of the Judicial Officer were obviously evident, and there appeared no need to hold an inquiry---Decision of the Authorized Officer with regard to dispensing with holding of regular inquiry in such circumstances was just, fair, appropriate and legally valid, having been taken after proper application of mind---Full and fair opportunity of defence was provided to the Judicial Officer to explain his position and to put his defence, who failed to' controvert the charges levelled against him---Action of the Authority of imposing the penalty of removal from service was valid, proper and in accordance with the provisions of law---No illegality or perversity and or infringement of any right was found in the order---Appeal was dismissed in circumstances.

2003 PLC (C.S.) 353; 2004 SCMR 1476; 2004 SCMR 294; 1993 SCMR 1440; 2003 SCMR 207;2004 SCMR 316; PLD 2002 SC 667; 2001 SCMR 1566; PLD 1977 SC 24; 1993 SCMR 603; 1996 PLC (C.S.) 868 and Ch. Shabbir Hussain v. Registrar Lahore High Court Lahore 2004 PLC (C.S.) 236 rel.

Kamal Azfar for Appellant.

Ahmed Pirzada, Addl. A.-G. Sindh for Respondent.

Date of hearing: 3rd September, 2005.

PLCCS 2006 SERVICE TRIBUNAL SINDH 1065 #

2006 P L C (C.S.) 1065

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Moosa K. Leghari, Chairman and Justice Khilji Arif Hussain, Member

MUHAMMAD AYUB BHATTI

Versus

HIGH COURT OF SINDH through Registrar

Service Appeal No.48 of 2002, decided on 17th June, 2006.

Sindh Service Tribunals Act (XV of 1973) --

----S.3-A---Adverse remarks---Expunction of---Appeal before Tribunal---Adverse remarks recorded in A.C.Rs. of appellant for relevant period communicated to him had been assailed by him in instant appeal---It was contended on behalf of appellant that said adverse remarks were communicated to him after considerable delay and that said adverse remarks were not substantiated by quoting any witnesses or giving justification and that no counselling was made to appellant before recording adverse remarks under challenge---Contention of appellant with regard to delay in communication of A.C.R. was repelled in view of fact that Reporting Officer as well as Authority remained pre- occupied on account of enormous judicial work---Mere delay in communication of adverse remarks in A.C.Rs., in circumstances would not be a valid ground to expunge same---Reporting Officer had made very serious observation against appellant---No ill-will or malice had been alleged, against Reporting Officer---No justification was in circumstances to disbelieve allegations levelled against appellant by Reporting Officer---So far as contention of appellant that no counselling was made before recording adverse remarks, suffice it to say that in Part-V(b) of two A.C.Rs. in question, it was specifically mentioned by Reporting Officer, "During monthly scrutiny he was conveyed remarks about his low disposal of cases. In the inspection rules above facts were highlighted and remarks were conveyed to him"---No justifiable reason was to take a view other than to accept same to be correct---Representation submitted by appellant was given due and proper consideration by Chief Justice---Besides appellant was afforded opportunity of personal hearing while disposing of his representation---Order passed by Chief Justice, was just, equitable and legally valid and did not call for interference---No convincing argument having been advanced for expunction of remarks in question, appeal of appellant being devoid of force, was dismissed.

2004 PLC (C.S.) 236; Governor of Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Syed Tahir Hussain Sherazi v. The Governor of the Punjab 1990 SCMR 1510 and High Court Lahore through Registrar v. K.M. Sohel 2001 PLC (C.S.) 1235 ref.

Abrar Bukhari for Appellant.

Ahmed Pirzada, A.A.-G. for Respondent.

PLCCS 2006 SERVICE TRIBUNAL SINDH 1227 #

2006 P L C (C.S.) 1227

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Muhammad Ayub Shaikh, Member-I and Moula Bux Khatana, Member-II

NAHEED IQBAL

Versus

PROVINCIAL POLICE OFFICER, SINDH, KARACHI and others

Appeal No.91 of 2004, decided on 18th February, 2006.

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

---R. 4(1)(b)(iv) -Sindh Service Tribunals Act (XV of 1973), S.4--Dismissal from service---Appeal--Sole basis for awarding major penalty of dismissal from service to appellant was his involvement and arrest in a criminal case, which had already ended in his acquittal---No Departmental inquiry was conducted against appellant in respect of said criminal charge---On appellant's departmental appeal an inquiry was conducted in which appellant was exonerated---Nothing was available, in circumstances, against the appellant---Acquittal judgment as well as Inquiry report were not considered-Effect-Acquittal judgment, under the law, must be given due consideration in absence of Departmental inquiry---Impugned Appellate order was set aside and matter was remanded for passing speaking order within specified period after taking into consideration acquittal judgment passed in favour of appellant so also the findings of Inquiry Officer---Appellant's departmental 'appeal was deemed to be pending.

Irfan Mir Halepota for Appellant.

Muhammad Qasirn Mirjat, Asstt.A.-G. for Respondents.

Date of hearing: 3rd February, 2006.

PLCCS 2006 SERVICE TRIBUNAL SINDH 1267 #

2006 P L C (C.S.) 1267

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Moula Bux Khatian Member-I and Ashique Hussain Memon-Member-II

Dr. MUHAMMAD HASSAN MEMON

Versus

PROVINCE OF SINDH through the Secretary, Health Department, Government of Sindh Karachi and 4 others

Appeal No. 159 of 1997, decided on 26th June, 2006.

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

----R. 8-A(2)---Sindh Service Tribunals Act (XV of 1973), S.4---Regularization of promotion and seniority---Claim for---Appeal to Service Tribunal---Appellant, who was appointed on acting charge basis, despite being senior to respondents was ignored while respondents who were juniors were promoted on regular basis---Only basis for deferment of appellant's case was his low qualification due to non-availability of his A.C.Rs. of seven years, which, for the first time, were sent to the Principal of Medical College concerned for countersignature by Health Department---Ground of non-consideration for want of A.C.R.s, could not be allowed to be made a sole foundation to deprive appellant from being considered to be promoted on regular basis, because duty to fill up the A.C.R.s, lay with the superior officers---Respondents, who were juniors to appellant could not have been considered for regular promotion, so long as appellant held the acting charge appointment as per R.8-A(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Departmental Selection Board, in utter violation of mandatory provision of law promoted three of appellant's juniors to the post of Professor (B-20) on regular basis, without any justifiable reason and showing any urgency, depriving appellant from being promoted to B-20 on regular basis despite appellant had completed 12 years minimum length of service for the purpose of promotion to B-20 as per S&GAD's Notification---Appellant was entitled to promotion on regular basis to the post of B-20 and he would be entitled to financial benefits of the same for relevant period as appellant had continuously performed function of Professor B-20 on acting charge basis during said period.

Sarwar Ali Khan v. Chief Secretary, Sindh and another PLD 1994 SC 233; 1987 PLC (C.S.) 168; 2003 PLC (C.S.) 212; 2005 PLC (C.S.) 1400; 2005 PLC (C.S.) 1068; Muhammad Anwar v. General Manager Pakistan Railways Lahore and others 1995 SCMR 950; Muhammad Boota's case 1999 SCMR 2652 = 1999 PLC (C.S.) 1. and Sardar Aftab Ahmed Khan's case 1999 PLC (C.S.) 40 ref.

M.M. Aqil Awan for Appellant.

Mrs. Tabasum Ghazanfar, A.-A.G. for Respondents Nos.1 & 2.

Manzoor Ali Khan for Respondent No.3.

Sanaullah Noor Ghori for Respondent No.4.

Abdul Saltar Mughal and Kamalluddin, for Respondents Nos.5 & 6 are called absent.

Date of hearing: 7th June, 2006.

Supreme Court

PLCCS 2006 SUPREME COURT 14 #

2006 P L C (C.S.) 14

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

AUDITOR-GENERAL OF PAKISTAN and others

Versus

MUHAMMAD ALI

Civil Appeals Nos. 199, 200 and 201 of 2002, decided on 6th October, 2005.

(On appeal from the judgment, dated 16-10-2000 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.45/Q of 1999, 1/Q and 2/Q of 2000).

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

----Art. 212(3) to appeal was granted by Supreme Court to consider; whether on the ground of inefficiency and negligence, major penalty of compulsory retirement could have been converted and modified to that of reduction in time scale by three stages in exercise of appellate jurisdiction of Service Tribunal and that what type of inefficiency and negligence could attract imposition of major penalty.

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

---.-Ss. 4 & 5---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.2 & 3---Compulsory retirement from service---Carelessness, an act of misconduct---Deterrent and reformative punishment---Import, object and scope---Converting major penalty into minor penalty---Senior officers who equally shared the responsibility of negligence in transaction of over payment, were awarded minor penalty of recovery of nominal amount of Rs.5,000 each, whereas civil servants being subordinate officials, on the basis of same set of facts, had been dealt with severely in the matter of punishment---Service Tribunal allowed the appeal filed by civil servants and penalty of compulsory retirement from service was converted into reduction in time scale by three stages for two years---Plea raised by authorities was that civil servants were negligent and inefficient and were responsible for causing loss to Government exchequer- Validity---Carelessness was an act of negligence which might not strictly fall within the ambit of misconduct as defined in R.2 of Government Servants (Efficiency and Discipline) Rules, 1973 but it was definitely a valid ground on the basis of which a Government servant could be awarded penalty as provided in R.3 of Government Servants (Efficiency and Discipline) Rules, 1973-7-Element of bad faith and wilfulness might bring an act of negligence within the purview of misconduct but lack of proper care and vigilance might not always be wilful to make the same a case of grave negligence inviting severe punishment---Philosophy of punishment was based on the concept of retribution, which might be either through the method of deterrence or reformation---Purpose of deterrent punishment was not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of society---Concept of minor penalty in law was to make an attempt to reform the individual wrong doer---In service matters, extreme penalty for minor acts depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice---Supreme Court declined to take any exception to the view of the matter taken by Service Tribunal---Appeal was dismissed.

Raja Muhammad Irshad, D.A.-G. for Appellants.

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

Date of hearing: 6th October, 2005.

PLCCS 2006 SUPREME COURT 25 #

2006 P L C (C. S.) 25

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

MEHRAN UNIVERSITY OF ENGINEERING AND TECHNOLOGY JAMSHORO through Vice-Chancellor and another

Versus

Dr. MUHAMMAD MOAZAM BALOCH and another

C.P.L.A. No.499-K of 2003, decided on 4th May, 2004.

(On appeal from judgment of Sindh Service Tribunal at Karachi dated 22-5-2003 passed in Appeal No. 137 of 1999).

Civil service-

----Dismissal from service on the ground of continuous absence from duty by employee---Employee, who was Assistant Professor in the University, after seeking leave for higher education abroad, returned back and for personal reasons was unable to continue his duties, therefor, he submitted his resignation for acceptance by the University---University, instead of accepting or rejecting the resignation, proceeded to issue show-cause notice to the employee for his long absence and passed an order of dismissal from service---Dismissal order, though reflected. in the pleadings, but had not been placed on record---Employee submitted departmental appeal terming same as review petition against dismissal order, which was rejected by the University on the sole ground that the same was not maintainable and employee should have preferred an appeal to the Chancellor of the University---Validity---Held, it was incumbent on the Vice-Chancellor of the University to treat petition of the employee as departmental appeal and to forward the same to the Chancellor rather than to place it before the Syndicate or to sit in judgment over his own action by chairing the meeting of the Syndicate---University was rightly directed by the Service Tribunal to forward the said petition 6f the employee to the Chancellor/Governor within a fortnight for passing appropriate order on the same---Petition for leave to appeal to Supreme Court was dismissed---Constitution of Pakistan (1973), Art.212(3).

Abdul Rahim Kazi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th May, 2004.

PLCCS 2006 SUPREME COURT 106 #

2006 P L C (C.S.) 106

[Supreme Court of Pakistan]

Present Sardar Muhammad Raza Khan and Falak Sher, JJ

ZILLA COUNCIL through Administrator and others

Versus

Mst. NASIRA NAHEED and 2 others

Civil Appeal No. 1388 of 2000, decided on 10th February, 2005.

(On appeal from the judgment dated 26-3-1998 passed by Lahore High Court, Multan Bench, in Writ Petition No.8298 of 1997).

Civil service---

----Dismissal from service---Lady Health Visitor we king in a District Council was dismissed from service pursuant to some disciplinary action in 1996---Said lady, without, resorting to departmental Authorities through representation etc., wrote a letter to the Lady Judge of the High Court which was converted into writ petition in 1997 as a result whereof she was reinstated---Validity---Employee was dismissed from service in 1996---Instead of resorting to the civil Court, in case she was not a civil servant, she opted to write a letter to the Judge High Court which was converted into writ petition in 1997 which resort clearly amended to laches and the High Court had therefore wrongly entertained the writ petition and allowed the same without considering the delay of more than one year and nine months involved thereunder.

S.M. Tayyab, Senior Advocate Supreme Court for Appellants.

Respondent in person.

Date of hearing: 10th February, 2005.

PLCCS 2006 SUPREME COURT 110 #

2006 P L C (C.S.) 110

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, M. Javed Buttar and Nasir-ul-Mulk, JJ

ASAD BASHIR

Versus

CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and 2 others

Civil Appeals Nos.694 of 1999, 584 and 1027 of 2003, decided on 11th May, 2005.

(On appeal from the judgment dated 11-3-1998/1-8-2002 and 20-11-2002 of the, Lahore High Court, Lahore passed in Writ Petitions Nos.21341/1997, 13825/02 and 15227/02).

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)----

----Ss. 20 [as amended by Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance, 1985] & 32---Constitution of Pakistan (1973), Art. 199---Constitutional petition before High Court--Maintainability---Dismissal/removal or compulsory retirement of employees of the Board---Validity---Service---Regulations framed by the Board, not having been formally approved by the Government, as required by the Act, were merely internal instructions or domestic rules having no status of statutory rules---High Court had correctly held that the rules/regulations governing the service of employees were non-statutory and, therefore, the constitutional petitions were not maintainable.

Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others 2004 SCMR 35 ref.

Mian Muhammad Nawaz, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record (absent) for Appellant (in Civil Appeal N,o.694 of 1999).

Sh. Shahid Waheed, Advocate Supreme Court for Respondents Nos.1 and 2 (in Civil Appeal No. 694 of 1999).

Raja Saeed Akram, A.A.G., Punjab for Respondent No.3 (in Civil Appeal No.694 of 1999).

S.M. Tayyab, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab Advocate-on-Record (absent) for Appellant (in Civil Appeal No.584 of 2003).

Raja Saeed Akram, A.-A.G. Punjab for Respondent No.l (in Civil Appeal No.584 of 2003).

Sheikh Shahid Waheed, Advocate Supreme Court for Respondent No.2. (in Civil Appeal No.584 of 2003).

Ch. Shahid Saeed, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Appellant (in Civil Appeal No.1027 of 2003).

Raja Saeed Akram, A.A.-G., Punjab for Respondent No.l (in Civil Appeal 1027 of 2003).

Sheikh Shahid Waheed, Advocate Supreme Court for Respondent No.2 (in Civil Appeal No. 1027 of 2003).

Dates of hearing: 10th and 11th May, 2005.

PLCCS 2006 SUPREME COURT 122 #

2006 P L C (C.S.) 122

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD RASHEED and others

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF COMMERCE (NATIONAL TARIFF COMMISSION) through Chairman and others.

Civil Appeals Nos. 1704 to 1715 of 2003, decided on 28th March, 2005.

(On appeal from judgment of the Federal Service Tribunal dated 20-3-2003 passed in Appeals Nos.69(R) CS to 80(R) CS of 2002).

(a) National Tariff Commission Employees (Service) Rules, 1995---

----R.27---Office Memorandum No. F.1 (5)Imp./2001, dated, 4-9-2001 of Finance Division---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art. 212 (3)---Employees of National Tariff Commission ---Extension of pension scheme and General Provident Fund---Employees of the Commission represented to Government for extension of such scheme but it was turned down---Decision of Government was maintained by Service Tribunal and appeals of employees were dismissed---Validity---National Tariff Commission had taken up the issue through its parent Ministry with Regulation Wing of Finance Division for approval but Federal Government did not approve the extension of such benefits to the employees of the Commission---Service Tribunal did not find it just, proper and lawful to equate the employees of the Commission with the employees of Federal Government---Long chain of correspondence existed between the Commission and Finance Division as well as between Ministry of Commerce and Finance Division but on account of prevailing policy of Federal Government, Finance Division remained firm in regretting the proposal---Such benefits were granted to civil servants and not to the employees of the Commission---Civil servants were eligible to enforce such rights being a secured right within the meaning of terms and conditions of their service but corporate employee could not enforce such claim being an employee of a different category and such claim was not guaranteed by terms and conditions of his employment---Award of pension and General Provident Fund being in the nature of vested right could not be extended to the employees of the Commission by implication---Such employees would be entitled to such salary, allowances and perks as were relatable to their terms and conditions of service as provided in National Tariff Commission Employees (Service) Rules, 1995---Employees of the Commission could not be entitled to any other benefit, much less benefits like life time pension or General Provident Fund in the absence of any provision in their service rules and except with the approval of Federal Government---Commission being creature of statute, its employee would be bound by the terms and conditions as incorporated in National Tariff Commission Act, 1990---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Divisional Superintendent, P.W.R. v. Bashir Ahmed PLD 1973 SC 589; WAPDA v. Irtiqa Rasool Hashmi 1987 SCMR 359; Pakistan WAPDA v. Shamim Kamal 1998 PLC (C.S.) 1306 and Secretary, Railways Board v. Muhammad Zubair Rana PLD 2000 SC 61 distinguished.

(b) Words and phrases---

----Fringe benefits---Defined.

Blacks' Law Dictionary (sixth edition); Chambers English Dictionary (1989) and The New Encyclopaedia Britannica, Volume-5 (15th Edition) ref.

Muhammad Zaman Bhatti, Advocate Supreme Court and Chaudhry Muhammad Akram, Advocate-on-Record for Appellants.

M.S. Khattak, Advocate-on-Record Raja Mehmoodul Hassan, Accounts Officer, NTC for Respondent No.1. (iii C.A. No.1704 of 2003).

Raja Muhammad Irshad, Deputy Attorney General, Raja Abdul Ghafoor, Advocate-on-Record and Ali Sher, Section Officer Finance Division for Respondent No.4 (in all appeals)

Nemo. for Respondents Nos.2 & 3.

Date of hearing: 28th March, 2005.

PLCCS 2006 SUPREME COURT 135 #

2006 P L C (C.S.) 135

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

SHER KHAN and others

Versus

UNITED BANK LTD. and others

Civil Petitions Nos.560-K of 2004 and 602-K of 2005, decided on 22nd November, 2005.

(On appeal from the judgment, dated 13-4-2004 and 15-7-2005 passed by Federal Service Tribunal, Karachi in Appeal No.154(K) of 1998 and Appeal No.926(K) CE of 2004).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art.212(3)---Contention of petitioner was that in view of judgments of the Supreme Court, Service Tribunal, despite the process of privatization of the Bank, would continue to exercise its jurisdiction in respect of its employees and on the other hand respondent's contention by referring to another judgment of the Supreme Court, was that Service Tribunal would have no jurisdiction to decide the cases of the employees whose cases were covered by S.2-A, Service Tribunals, Act, 1973---Leave to appeal was granted by the Supreme Court to examine the respective contentions of the parties which raised a question of public importance relating to the validity or otherwise of S.2-A of the Service Tribunals Act, 1973.

Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785; Muhammad Yousaf Qureshi and others v. Messrs United Bank and others C.As. Nos.99, 108, 111 and 114 of 2004 a/w C.Ps. 571-L, 1057-L, 1061-L and 1064-L of 2004; C.P. No.247-1-of 1998 and C.Ps. Nos.2767-L, 3030-L of 2000, 157-L and 235 of 2001 and Salmond on Jurisprudence ref.

Muhammad Muzaffarul Haq, Advocate Supreme Court for Petitioner (in Civil Petition No.560-K of 2004).

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents (in Civil Petition No.560-K of 2004).

Shahid Hussain Bajwa, Advocate Supreme Court and Ahmad Ullah Farooqi, Advocate-on-Record for Petitioner (in Civil Petition No.602-K of 2005).

Respondent No.1 in person (in Civil Petition No.602-K of 2005).

Date of hearing; 22nd November, 2005.

PLCCS 2006 SUPREME COURT 138 #

2006 P L C (C.S.) 138

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Nasir-ul-Mulk, JJ

ISHTIAQ AHMED SHEIKH and others

Versus

Messrs UNITED BANK LIMITED and others

Civil Appeals Nos. 991, 992 of 2001 and 441 to 447 of 2004, decided on 20th September, 2005.

(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 13-4-1999 passed in Appeal Nos.621 and 622(R) of 1998, and Federal Service Tribunal, Karachi, dated 23-11-2000 passed in Appeals Nos.99, 89(K), 90(K), 102(K), 103(K), 108(K) & 107(K) of 1998 respectively).

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

----Art. 212(3)---Termination of service of bank employees---Leave to appeal was granted by the Supreme Court to the employees to consider their submissions that no particular rule or regulation had been either mentioned or relied upon which could be said to have been violated; that documents appended by the employees with their replies to the charge-sheet and produced in appeal before the Service Tribunal and their defence plea had been ignored and their case was decided on the basis of news item about the alleged bad reputation of a customer of the Bank though all along the employees kept the higher authorities aware of the matter, therefore, they could not have been punished and that extreme penalty of dismissal from service could not be imposed for at the most it was a case of negligence and not of corruption even if allegations for the sake of arguments, without conceding, were admitted as correct.

(b) Administration of justice---

----Impression gathered from newspaper reports could hardly be made basis for judicial findings, moreso, when no reference was made to any such report.

----S. 4---Appeal to Service Tribunal---When charge-sheet served on the employee did not mention a specific violation, Service Tribunal would proceed on wrong assumption of said violation.

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

----Arts. 212(3) & 184(3)---Appeal to Supreme Court---Question of law of "public importance"---Connotation---Phrase "public importance" appearing in Art.212(3) of the Constitution, cannot be accorded restrictive meanings, in view of the very nature of the jurisdiction, which deals with appeals by Civil Servants, a restricted defined class, and not the public at large---Meaning of the Phrase "public importance" appearing in Art.212(3) of the Constitution cannot be- equated with the same phrase used in Art.184(3) of the Constitution, which related to original general jurisdiction of the Supreme Court for the enforcement of Fundamental Rights.

Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 ref.

(e) Civil service-

----Misconduct---Bank employees negotiating Letter of Credit contrary to the instructions on the subject, misconducted themselves by not following said instructions, even if their_ non-observance had not resulted in financial loss to the Bank.

(f) Civil service---

----Misconduct---Penalty---Quantum---Employees of the Bank being guilty of misconduct by acting in violation of the clear written instructions of the Bank regarding negotiation of Letters of Credit by non-correspondent bank were dismissed from service---Validity---Negotiation of such documents was the prime responsibility of the concerned branch of the Bank, however the conduct of the senior officers mellowed down the extent of culpability of the employees---If the senior officers, whose support encouraged the employees to negotiate the said Letters of Credit, had been let off lightly, it would be unjust to punish the employees severely---Supreme Court, in circumstances, partially allowed the appeals of the employees and modified the impugned judgments of the Service Tribunal to the extent that the penalty of the employees of termination/dismissal from service was converted into compulsory retirement from the date on which their orders of termination/dismissal from service were passed by the Authority.

(g) Words and phrases-

--"Public importance"---Connotation.

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellant (in C.A.No.991 of 2001).

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondent No.1 (in C.A.No.991 of 2001).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2 (in C.A.No.991 of 2001).

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellant (in C.A:No.992 of 2001).

Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondent No.1 (in C.A.No.992 of 2001).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2 (in C.A.No.992 of 2001).

Niaz Ahmad Khan, Advocate Supreme Court and M.Shabbir Ghauri, Advocate-on-Record (absent) for Appellant (in C.A.No.441 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondent (in C.A.No.441 of 2004).

Manzoor Ali Khan, Advocate Supreme Court for Appellant (in C.A.No.442 of 2004).

Kamal Azfar, Senior. Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondents ((in C.A.No.442 of 2004).

Manzoor Ali Khan, Advocate Supreme Court for Appellant (in C.A.No.443 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.443 of 2004).

Mazhar Ali B. Chohan, Advocate Supreme Court for Appellant (in C.A.No.444 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.444 of 2004).

Mazhar Ali B. Chohan, Advocate Supreme Court for Appellant (in C.A.No.445 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents (in C.A.No.445 of 2004).

H.A. Jafri, Advocate Supreme Court and Abul Khair Ansari, Advocate-on-Record for Appellant (in C.A.No.446 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.446 of 2004).

Niaz Ahmed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Appellant (in C.A.No.447 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.447 of 2004).

Date of hearing: 20th September, 2005.

PLCCS 2006 SUPREME COURT 188 #

2006 P L C (C.S.) 188

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

MUHAMMAD MUBEEN-US-SALAM and others

Versus

FEDERATION OF PAKISTAN through Secretary M/o Defence and others

Civil Petitions Nos.148 to 167 of 2005, and Civil Petitions Nos.174 to 178 of 2005, decided on 21st June, 2005.

(On appeal from the judgment/order dated 27-11-2004 passed by the Federal Service Tribunal in appeals Nos.1021, 1023, 1024, 1025, 1027, 1028, 1029, 1031, 1032, 1033, 1034, 1038, 1087, 1088, 1091, 1092, 1094, 1095, 1098, 1099, 1090, 1096, 1097, 1101 (R)/CS/2003).

Service Tribunals Act (LXX of 1973)---

---Ss. 2-A & 4---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Air Force Manual, R.54-2---Constitution of Pakistan (1973), Art. 212(3)---Employees/Teachers of Pakistan Air Force Educational Institutions---Appeal to Service Tribunal---Maintainability---Supreme Court granted leave to appeal to consider, whether or not teachers/employees of such Institutions managed by Managing Committee or Bodies were civil servants under S.2(1)(b) of Civil Servants Act, 1973 or for purpose of S.2-A of Service Tribunals Act, 1973, whether such employees/teachers could invoke jurisdiction of Tribunal as well as of Supreme Court under Art. 212(3) of the Constitution and question of validity and vires of S. 2-A of Civil Servants Act, 1973 on the touchstone of Art. 212 and other provisions of the Constitution.

Managing Committee, P.A.F. Model Inter College, Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957 ref.

Muhammad Akram Sheikh Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for petitioners (in all cases).

Hafiz S.A. Rehman, Advocate Supreme Court Raja, Abdul Ghafoor, Advocate-on-Record and M. S. Khattak, Advocate-on-Record for Respondent No.2. (in all cases).

Date of hearing: 21st June, 2005.

PLCCS 2006 SUPREME COURT 193 #

2006 P L C (C.S.) 193

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

MANAGING DIRECTOR, NBF, ISLAMABAD and 2 others

Versus

MUHAMMAD ARIF RAJA

Civil Petition No.836 of 2004, decided on 21st October, 2005.

(On appeal from the judgment of Federal Service Tribunal, dated 14-2-2004 passed in Appeal No. 175-R C.S./03)

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

----R.16---Private work---Government servant while in service could not engage himself in private .business---Running of such a business without permission would be misconduct in terms of Government Servants (Conduct) Rules, 1964.

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

----S.3---Government Servants (Conduct) Rules, 1964, R.16---Constitution of Pakistan (1973), S.212(3)---Dismissal from service---Running of private business, charge of---Proof---Raising presumption regarding engagement of' employee in such business on basis of a Photostat letter addressed to Sales Manager of a foreign business company---Validity---Employee on oath while denying his signatures on such letter had stated that same resembled to be his signatures---Such statement of employee could not be treated as his admission to charge---Authority without proving genuineness of signatures of employee and existence of original letter through reliable evidence had drawn such inference on basis of inadmissible evidence---Authority could not be allowed to hold a fresh inquiry to fill in such lacuna---Such charge in circumstances, was not proved beyond doubt.

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Appeal before Service Tribunal---Scope---Such appeal would lie both on question of law and fact, which Tribunal would be under legal obligation to decide---Supreme Court would not go into factual controversy and reappraise evidence for determination of question of fact.

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

----Arts. 185(3) & 212(3)---Findings of fact by judicial forum---Petition for leave to appeal to Supreme Court---Scope---Where such findings arrived at as a result of scrutiny, even if erroneous, could not be gone into and disturbed by Supreme Court, unless found to be suffering from jurisdictional defect.

(e) Civil service---

----Misconduct, charge of---Standard of evidence in proceedings before departmental authority and regular Court---Distinction stated.

The standard of evidence in departmental proceedings is certainly not the same as is required to prove a fact before regular Courts and the departmental authorities are not supposed to follow the technicalities of law to ascertain the genuineness of a document in the manner as is done by the Courts of general jurisdiction, but the evidence, oral or documentary, to be used for proving the charge of misconduct must be of legal character and admissible in law.

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

----Art. 212(3)---Non-raising substantial question of law of public importance---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Afzal Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for 'petitioners.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 21st October, 2005.

PLCCS 2006 SUPREME COURT 288 #

2006 P L C (C.S.) 288

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

GHUFRALA TAUSEEF

Versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and others

Civil Petition No.268-L of 2002, decided on 2nd January, 2006.

(On appeal from the judgment, dated 19-11-2001, passed by a learned Division Bench of the Lahore High Court, Lahore, in I.C.A. No.935 of 1999).

Unani Aurvedic Homeopathy System of Medicines Rules, 1980---

----R.4---Constitution of Pakistan (1973), Art.185(3)---Assistant Director Homeo, appointment of---Pre-registration experience---Scope---Grievance of petitioner was that Public Service Commission had wrongly included pre-registration experience of respondent at the time of appointing him as Assistant Director Homeo---Validity---Pre-registration experience in Homeopathy for the purposes of registration .as Homeo doctor was recognized under R.4 of Unani Aurvedic Homeopathy System of Medicines Rules, 1980---Public Service Commission as well as High Court were correct in taking the pre-registration experience into consideration---Fact that the respondent was registered as Homeo doctor later was not sufficient to exclude his experience as Homeo doctor with Government---Judgment passed by High Court was correct to which no exception could be taken---Leave to appeal was refused.

Liaquat Ali Qureshi, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

Muhammad Yaqub Sidhu, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Respondent No.3.

Date of hearing: 2nd January, 2006.

PLCCS 2006 SUPREME COURT 294 #

2006 P L C (C.S.) 294

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Tassadduq Hussain Jillani, J

LAHORE DEVELOPMENT AUTHORITY and others

Versus

MUHAMMAD NADEEM KACHLOO and another

Civil Petition No.1282-L of 2004, decided on 23rd January, 2006.

(On appeal from the judgment, dated 30-12-2003 passed by Punjab Service Tribunal in Appeal No.823 of 2003).

Constitution of Pakistan (1973)---

----Art. 212 (3)---Dismissal from service---Converting absence without leave into leave of the kind due---Frivolous litigation---Absence of civil servant was initially converted into the leave of kind due but later on he was dismissed from service on the charge of being absent without leave---Service Tribunal set aside the dismissal order and his absence was treated as a leave of the kind due---Validity---Authority had itself condoned the period of absence by allowing him leave without pay---Leave was due to the civil servant and he had been making applications time and again accompanied by medical certificates for the purpose of extending the period of his leave---Authority did not have any justification to institute the present petition because of the fact that absence of the civil servant had been regularized---Supreme Court issued notice to the authorities to explain as to why costs be not imposed upon them for filing frivolous petition, knowing well that the competent authority had treated the period during which the civil servant remained absent, as leave without pay---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Rashid Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd January, 2006.

PLCCS 2006 SUPREME COURT 307 #

2006 P L C (C.S.) 307

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MAQBOOL AHMAD

Versus

PAKISTAN AGRICULTURAL and others

C.P. No.501-L of 2005, decided on 27th January, 2006.

(On appeal from the order, dated 24-1-2005 passed by the Punjab Service Tribunal Lahore in Appeal No.670(L) of 1999).

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 129(g)---Constitution of Pakistan (1973), Art.212 (3)---Dismissal from service---Non-production of available evidence---Presumption---Concurrent findings of fact by the forums below---Civil servant in a letter, admitted his responsibility of causing loss to Government, thus he was dismissed from service---Penalty imposed by the authorities was maintained by Service Tribunal-Validity-Civil servant did not attach copy of the letter in which he had admitted the responsibility in writing---Such fact alone was sufficient that contents of the letter with regard to the admission of civil servant presumed to be correct and inference could be drawn against him under the provisions of Qanun-e-Shahadat, 1984---Inquiry Officer after proper appreciation of record found the civil servant guilty, which was approved subsequently by all the forums---Supreme Court was not required to act as a Court of appeal for reappraisal of evidence recorded by Inquiry Officer---Charges against the civil servant were supported' by evidence produced by Authorities---Judgment passed by Service Tribunal was in accordance with the dictum laid down by Supreme Court---Civil servant failed to point out any evidence which could persuade Supreme Court to hold that finding rendered by all the Service Tribunals against him were arbitrary, illegal or against the record---Concurrent actions of the authorities and judgment of Service Tribunal were unexceptionable---No substantial question of law of public importance was involved in the case---Leave to appeal was refused.

Javed Aziz Qureshi's case 1998 SCMR 2553; Abdul Rehman's case 1988 SCMR 1711 and Abdul Hameed's case 1979 SCMR 503 rel.

(b) Words and phrases---

----"Satisfied"---Defined.

Blyth's case 1966 AER 524; Angland v. Payne 1944 N. Z. L. R. 610; Abdul Ghafoor v. The Crown PLD 1952 Lah. 624; Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Dr. Ejaz Hassan Qureshi and others v. Government of Punjab and others PLD 1978 Lah. 1419; Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and others 1994 CLC 2041; Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 and Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166 rel.

----"Substantial question of law"---Connotation---Proper test for determining whether a question of law raised in case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of parties and if so whether it is either an open question in the sense that it is not finally settled by Supreme Court or by Privy Council or by Federal Court or is not free from difficulty or calls for discussion of alternative views---If the question settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.

Sir Chunilal v. Mehtra & ,Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 rel.

(d) Words and phrases---

---"Public importance"---Meaning---Public importance must include a purpose or aim in which the general interest of community as opposed to particular interest of individual, is directly or vitally concerned.

Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and Hamabai Fram-Jee Petit v. Secretary of State for India AIR 1914 PC 20 rel.

(e) Jurisdiction---

---Exercise of jurisdiction---If a mandatory condition in exercise of jurisdiction by Court is not fulfilled then Court has no jurisdiction to assume the jurisdiction.

Mansab Ali v. Ameer and 3 others PLD 1971 SC 124 rel.

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

---Art. 212(3)---Causing loss to Government---Question of fact or law---Scope---Whether a person was responsible for causing loss to Government is a question of fact.

Riaz-ul-Haq and 2 others v. Deputy Director Food, Bahawalpur 1988 SCMR 1994 rel.

Inayatullah Khan Niazi, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Muhammad Akram Khan, Advocate Supreme Court for Respondents.

Date of hearing: 27th January, 2006.

PLCCS 2006 SUPREME COURT 313 #

2006 P L C (C.S.) 313

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, CJ and Syed Manzoor Hussain Gilani, J

BOARD OF GOVERNORS CADET COLLEGE through Chairman and 3 others

Versus

NAVEED AHMED and others

Civil Appeal No.110 of 2004 decided on 5th August, 2005.

(On appeal from the order of the High Court dated 16-8-2004 in Writ Petition No.271 of 2004).

(a) Cadet College Pallandri (General Conditions of Service) Rules, 1996---

----R. 30---Cadet College Pallandri (Efficiency and Discipline) Rules, 1996, R.2(b)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47---Termination of service---Appeal to Supreme Court---Service of respondent was terminated on ground of his unsatisfactory service', average grade in Annual Confidential Reports, misconduct and indisciplined attitude---High Court accepting Constitutional petition of respondent against order of termination of service, declared orders of termination passed by Authorities as without lawful authority and of no legal effect---Authorities had filed appeal to Supreme Court against judgment of High Court, contending that service of respondent was terminated on disciplinary grounds under S.30 of Cadet College Pallandri (General Conditions of Service) Rules, 1996 and no notice or disciplinary proceedings as visualized by Cadet College Pallandri (Efficiency and Discipline) Rules, 1996 were required to be conducted---Line of distinction had to be drawn between misconduct' anddisciplinary conduct'-'Misconduct' in relation to Cadet College Pallandri (Efficiency and Discipline) Rules, 1996 would mean unbecoming conduct in performance of duties, whereas `indiscipline' under Cadet College Pallandri (General Conditions of Service) Rules, 1996 would mean conduct not becoming of a gentleman as a boss or as a subordinate or as a colleague---Authority, in the present case had not attributed any misconduct as far as efficiency or performance of his functions as a teacher were concerned, but he was attributed a conduct unbecoming of an employee of a disciplined Institution-Rule 30(3) of Cadet College Pallandri (General Conditions of Service) Rules, 1996, had authorized the Authority to terminate service of employee on ground of indiscipline or reduction in establishment being surplus---If an employee was removed on ground of indiscipline, no notice was required to be given to respondent---Indisciplined conduct of respondent had been brought to his notice from time to time and a show-cause notice stating his indiscipline was also served upon him to warn him to improve his conduct---Board of Governor also considered review petition of respondent against order of his termination of service and upheld order of his termination---Impugned order passed by High Court, was set aside and appeal was accepted with costs.

AKLASC and 6 others v. AJ&K Government and 8 others 2000 YLR 2911; Ch. Abdul Karim and 5 others v. Raja Muhammad Nisar and another 1999 PLC (C.S.) 624; Azad Government and 2 others v. Raja Muhammad Bashir Khan and 2 others 2000 PLC.(C.S.) 246; Muhammad Sharif Chatger v. Commissioner Rehabilitation and 6 others 2005 SCR 69; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (C.S.) 1138 and Airleague of PIA Employee Union and another v. Federation of Pakistan The President/Chief Executive and another 2003 PLC (C.S.) 145 ref.

(b) Words and phrases------

----Discipline' andindiscipline', defined and explained.

----No person could be condemned unheard and a notice for an action against a person was the natural right of the person and every law and rule had to be read in a manner that natural law was to be read in it, unless the law or rule itself excluded notice before taking action.

Custodian of Evacuee Property AJ&K and another v. Fatima Bibi and 15 others 2003 SCR 88 and Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298 ref.

M. Tabassum Aftab Alvi for Appellants.

Abdul Rashid Abbasi for Respondent No. 1.

Date of hearing: 30th June, 2005.

PLCCS 2006 SUPREME COURT 325 #

2006 P L C (C.S.) 325

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

GOVERNMENT OF PUNJAB through Secretary, Labour and Manpower, Civil Secretariat and others

Versus

SHAHID MEHMOOD BUTT

Civil Petition No.152-L of 2003, decided on 2nd December, 2005.

(Against the judgment, dated 29-10-2002 passed by Punjab Service Tribunal, Lahore in Appeal No.1464 of 1998).

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

----S. 4---Quantum of penalty, reducing of---Contumacious insubordination and indiscipline---Civil servant did not comply with the orders of his transfer, despite rejection of his appeal by appellate authority---Civil servant remained absent from his duty and also misused Government residence---Authorities imposed major penalty of reduction to lower rank---Service Tribunal converted the penalty of reduction to lower rank into censure on the ground that during pendency of appeal/ representation before appellate authority non-compliance of transfer order was not disobedience by civil servant---Validity---Representation against the order of transfer was rejected which was conveyed to the civil servant in writing, wherein he was directed to hand over the charge and official residence but he did not comply with the order---Contumacious insubordination and indiscipline on the part of civil servant having been established, he was disentitled to any indulgence in the matter of quantum of penalty---Supreme Court did not agree with the Service Tribunal because merely by filing an appeal/representation against order of transfer, civil servant could not stay at a place of his choice unless operation of the transfer order was stayed, which was not the position in the case---Such view of the Service Tribunal, if affirmed, would give licence to every civil servant to file a representation against order of transfer and to stay at a place from which he did not want to move; as such the same would create administrative chaos---Supreme Court did not find any valid reason for reduction of penalty by Service Tribunal and discretion was exercised by the Service Tribunal on irrelevant consideration in an arbitrary manner, which the law did not countenance and the same required correction---Petition for leave to appeal was converted into appeal and judgment passed by Service Tribunal was set aside---Appeal was allowed.

(b) Civil service---

----Penalty---Imposing proportionate penalty---Principles---Penalty should be proportionate to guilt, which depends on the facts and circumstances of a given case such as the nature of duties, the level of responsibility, the nature of organization, conduct of civil servant, his service record and nature of misconduct etc.---After concurring with finding of departmental authorities as to the guilt of a civil servant, their decision on the quantum of penalty should be respected because while imposing penalty, the departmental authority may have variety of factors in view.

M. Hanif Khatana, Additional Advocate-General and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

A.H. Masood, Advocate-on-Record for Respondent.

Date of hearing: 2nd December, 2005.

PLCCS 2006 SUPREME COURT 329 #

2006 P L C (C.S.) 329

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

BUSHRA BIBI

Versus

DISTRICT EDUCATION OFFICER (FEMALE), DISTRICT SIALKOT and another

Civil Petition No.554-L of 2004, decided on 16th December, 2005.

(On appeal from the judgment, dated 10-12-2003 passed by the Punjab Service Tribunal, Lahore, in Appeal No.123 of 2003).

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

----R. 18---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Petitioner was appointed as untrained Drawing Teacher, but her services were terminated on the ground that she had failed to acquire prescribed qualification---Appeal filed by petitioner against order of her termination having been dismissed by Service Tribunal, petitioner had filed petition for leave to appeal before Supreme Court---Petitioner admittedly was not qualified at the time of her appointment, but department had shown grace to permit petitioner to acquire qualification within reasonable time of more than six years, but petitioner had failed to qualify prescribed examination---Impugned order was just and fair to which no exception could be taken---No question of law of public importance being involved within the meaning of Art.212(3) of Constitution, petition was dismissed.

Rehmat All Shah v. Secretary, Defence Production Division , Rawalpindi 1990 SCMR 1500 and Harmed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2005.

PLCCS 2006 SUPREME COURT 340 #

2006 P L C (C.S) 340

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Syed Jamshed Ali, JJ

GOVERNMENT OF PUNJAB through Secretary, Industries Mines and Minerals Development, Department, Lahore and another

Versus

SHAKEEL AHMAD

Civil Petition No.2130-L of 2003, decided on 24th January, 2006.

(Against the judgment, dated 1-4-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.1585 of 2002).

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

----R. 18---Rules of Business (Punjab)---'Government' and 'Authority', powers of---Competency of Provincial Secretary to pass order on behalf of Provincial Government---Scope---Repository of power to review the procceedings, inter alia, of an 'Authorized Officer' is the Provincial Government---Clear line of demarcation exists between the 'Government' and the 'Authority' within the contemplation of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Provincial Secretary can competently pass an order on behalf of the Provincial Government, subject to compliance of relevant provisions of law including Rules of Business (Punjab).

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

---Rr. 2(1)(c) & 18---Constitution of Pakistan (1973), Art.212(3)---Imposition of stoppage of increments by "Authorized Officer" on civil servant---Enhancement of penalty---Power of "Authority" to review the order of "Authorized Officer"---Failure to set aside earlier penalty---Disciplinary proceedings were initiated against civil servant on the allegation of financial irregularities---Authorized Officer imposed penalty of stoppage of four increments but Provincial Secretary directed de novo inquiry---Provincial Secretary, without setting aside the earlier penalty, removed the civil servant from service---Service Tribunal allowed the appeal on the ground that the "Authority" could not review the order of "Authorized Officer" under R.2(1)(c) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Provincial Secretary, while directing de novo inquiry and imposing penalty on civil servant did not act as Provincial Government---Even if there could be any doubt, Supreme Court extended its benefit to the civil servant rather than to the Public functionary---Authorized Officer had imposed the penalty, which was not even set aside by the Authority---In presence of the penalty another de novo proceedings could not be taken against the civil servant and another more harsh penalty could not be imposed--Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Riaz Lone, Advocate Supreme Court for Petitioners.

Muhammad Zafar Ch. Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 24th January, 2006.

PLCCS 2006 SUPREME COURT 355 #

2006 P L C (C.S) 355

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

NAJAM ABBAS and others

Versus

SUPERINTENDENT OF POLICE CITY DIVISION, GUJRANWALA and others

Civil Petitions Nos.276-L of 2005, 2703-L of 2003, 367-L of 2004, 51-L, 83-L, 151-L, 158-L, 193-L, 201-L, 211-L, 217-L, 220-L, 315-L, 348-L, 435-L, 449-L, 548-L, 755-L, 1337-L, 1404-L, 1440-L, 1497-L of 2005 and 90-L, 121-L, 168-L of 2006, decided on 14th February, 2006.

(On appeal from the judgments/orders of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.1427 of 2004, dated 16-12-2005, 1928 of 2003, dated 30-8-2003, 620 of 2003, dated 18-12-2003, 1855, 1364 of 2004, 2321 of 2003, 2861 of 2004, 196 of 2004, 2452 of 2004, 980 of 2004, 1213 of 2004, 1176 of 2003, 1855 of 2004, dated 7-12-2004, 2670 of 2004, dated 27-12-2004, 766 of 2003, dated 15-9-2004, 2257 of 2004, dated 4-2-2005, 2871 of 2004, dated 24-1-2005, 2107 of 2004, dated 9-2-2005, 674 of 2005, dated 14-4-2005, 1621 of 2004, dated 11-5-2005, 1486-Of 2003, dated 31-5-2005, 2018 of ,2003, dated 22-6-2005, 2598 of 2003, dated 7-6-2005, 1893 of 2005, dated 24-11-2005, 2294 of 2005, dated 10-11-2005, 1257 of 2004, dated 12-10-2004).

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

----S. 9---Constitution of Pakistan (1973), Art.212(3)---Revision petition---Dismissal of revision after six months as being non maintainable---Dismissal of appeal by Service Tribunal as being timebarred---Validity---Competent Authority had not returned revision petition to petitioner within prescribed period in terms of S.9(4) of Removal from Service (Special Powers) Ordinance, 2000---Competent authority was obliged to issue instructions regarding availing of remedy of revision by petitioner to avoid abnormal situation---Competent authority had dismissed revision of petitioner being non-maintainable, but had entertained revision of co-accused and decided same on merits--Competent authority without issuing intimation to petitioner within prescribed period had dismissed revision as non-maintainable---Had petitioner been informed well in time, he would have availed remedy of appeal before Tribunal in time---Tribunal, while deciding appeal, had not adverted to S.9(4) of Removal from Service (Special Powers) Ordinance, 2000---Supreme Court accepted appeal and set aside impugned judgment, resultantly petitioner's appeal before Tribunal would be deemed pending adjudication.

Government of Punjab v. Muhammad Saleem 1995 SCMR 546; Muhammad Arslan v. Chancellor Quaid-e-Azam University, Islamabad and others 2004 SCMR 1419; House Building Finance Corporation and others v. Syed Muhammad Ali Gohar Zaidi 2004 SCMR 1811; I.-G. HQ Frontier Corps and others v. Ghulam Hussain and others 2004 SCMR 1397; Superintendent of Police, Headquarters, Lahore and 2 others v. Abdul Ghafoor 1992 SCMR 2162; Abdul Rehman v. I.-G. of Police and 2 others PLD 1995 SC 546; Muhammad Ibrahim v. Pakistan Oil Seeds Development Board and others 2006 SCMR 95; Muhammad Yaqoob v. D.P.O. Sahiwal and 2 others 2006 SCMR 310 and Raza Hussain Shah v. S.S.P. (Investigation) and others C.P. No.2559-L of 2003 ref.

Muhammad Muzaffar Khan's case PLD 1959 SC 9; I. A. Sharwani's case 1991 SCMR 1041; Messrs Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268 and Zain Yar Khan v. Chief Engineer CRBC, WAPDA, D.I. Khan and another 1998 SCMR 2419 rel.

(b) Administration of justice---

---No one should be penalized for the act of public functionaries.

---Each and every case would be decided on its own peculiar circumstances and facts.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.276-L of 2005).

Rana Safdar Ali Asif, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner (in C.P. No.2703-L of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.367-L of 2004)

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.51-L of 2005).

Muhammad Tahir Ch. Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.83-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court for Petitioner (in C.P. No.151-L of 2005).

Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.158-L of 2005).

Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.193-L of 2005).

Petitioner in person (in C.P. No.201-L of 2005).

Ch. Muhammad Yaqoob Sabir, Advocate Supreme Court for Petitioner (in C.P. No.211-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.217-L of 2005) .

Abid Saqi, Advocate Sgpreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.220-L of 2005).

Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.315-L of 2005).

Sh. Masud Akhtar, Advocate-on-Record (absent) for Petitioner (in C.P. No.348-L of 2005).

Ch. Muhammad Akbar Gill, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.435-L of 2005).

Ch. M. Hanif Zahid, Advocate-on-Record for Petitioner (in C.P. No.449-L of 2005).

Sh. Masud Akhtar, Advocate-on-Record (absent) and Munir Ahmad in person (in C.P. No.548-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.755-L of 2005).

Ch. Manzoor Hussain Basra, Advocate-on-Record for Petitioner (in C.P. No.1337 -L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.1404-L of 2005).

Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.1440-L of 2005).

Rana Safdar Ali Asif, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner (in C.P. No.1497-L of 2005).

S.M. Tayyab, Senior Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.90-L of 2006).

Hafiz Tariq Naseem, Advocate Supreme Court and Taiivir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.121-L of 2006) .

Muzammil Akhtar Shabbir, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.168-L of 2006).

Aamir Rahman, Additional Advocate-General, ,Punjab, Muhammad Hanif Khattana, Additional Advocate-General, Punjab, Muhammad Akbar Tarar, Additional Advocate-General Punjab, Akhtar Ali Qureshi, Assistant Advocate-General Punjab and Mian Ghulam Hussain Advocate Supreme Court for official Respondents.

Date of hearing: 14th February, 2006.

PLCCS 2006 SUPREME COURT 383 #

2006 P L C (C.S.) 383

[Supreme Court of Pakistan]

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

MUSHTAQ HUSSAIN QAZI, ADDITIONAL COMMISSIONER OF INCOME TAX, KARACHI

Versus

AUTHORIZED OFFICER, THE CHAIRMAN, CENTRAL BOARD OF REVENUE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others

Civil Petition for Leave to Appeal No.977-K of 2001, decided on 24th July, 2002.

(On appeal from the judgment, dated 17-9-2001, passed by the Federal Service Tribunal, Islamabad, in Appeal No.308(K) of 1998).

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

----Rr. 3(b)(c), 4(1)(a)(ii), 5 & 6-Government -Servants (Conduct) Rules, 1964, Rr.11 & 12(2)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Withholding of one annual increment---Penalty of withholding of one annual increment for a period of 3 years was imposed upon petitioner after issuing him show-cause notice, charge-sheeting him and holding inquiry against him on charge of misconduct because of being corrupt and his failure to file annual declaration of his assets---Allegations against petitioner had fully been proved and impugned order passed against petitioner was well reasoned and was based on law---Question of general public importance as contemplated under Art.212(3) of the Constitution being not involved in petition for leave to appeal, said petition, which otherwise was barred by time, was dismissed and leave to appeal was declined.

Muhammad Saleem v. Superintendent of Police PLD 1992 SC .369; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; A.U. Musarrat v. Government of West Pakistan PLD 1977 SC 24; M.A. Rahman v. Federation of Pakistan 1988 SCMR 691 and Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 ref.

Muhammad Naseem, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th July, 2002.

PLCCS 2006 SUPREME COURT 394 #

2006 P L C (C.S.) 394

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MUHAMMAD AMIN KALUS and others

Versus

PUNJAB LOCAL GOVERNMENT BOARD and others

Civil Petitions Nos.343-L and 603-L of 2005, decided on 25th January, 2006.

(On appeal from the judgment, dated 9-2-2005 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.285 and 1496 of 2004).

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

----R. 4---Punjab Local Government Ordinance (VI of 1979), S.44---Punjab Local Government Ordinance (XIII of 2001), S.196(ii)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Local Council servant---Dismissal of appeal by Service Tribunal----Supreme Court granted leave to appeal to consider questions as to whether Service Tribunal could have refused to exercise its jurisdiction under S.4 of Punjab Service Tribunals Act, 1974 by ignoring the provisions as enumerated in S.44 of Punjab Local Government Ordinance, 1979, whereby members of Local Council services were given the status of "Civil Servants" enabling them to approach Service Tribunal for redressal of their grievances; what would be the import, impact and effect of repeal of Punjab Local Government Ordinance, 1979 by means of Punjab Local Government Ordinance, 2001, which was not given retrospective effect; whether Service Rules framed under Punjab Local Government Ordinance, 1979 were saved pursuant to the provisions of S.196(ii) of Punjab Local Government Ordinance, 2001 and in case answer was in affirmative, what would be its effect; whether the date of initiation of disciplinary proceedings against petitioner would be material or the date i.e. 10-9-2003, when action was finalized and Punjab Local Government Ordinance, 2001 was operative and whether impugned judgment was in consonance with law laid down in P.I.A. Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and Adrian Afzal v. Sher Afzal PLD 1969 SC 187.

P.I.A. Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and Adnan Afzal v. Sher Afzal v. Sher Afzal PLD 1969 SC 187 ref.

Abdul Sami Khawaja, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.343-L of 2005).

Ch. Manzoor Hussain Basra, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner (in C.P. No.603-L of 2005).

Dr. Qazi M. Mohyuddin, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents (in both petitions.).

Date of hearing: 25th January, 2006.

PLCCS 2006 SUPREME COURT 405 #

2006 P L C (C.S) 405

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MUHAMMAD MUKHTAR

Versus

MEDICAL SUPERINTENDENT, SERVICES HOSPITAL, LAHORE and another

Civil Petition No.384-L of 2005, decided on 26th January, 2006.

(On appeal from the judgment, dated 14-1-2005 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2599 of 2004).

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

----Rr. 3, 4 & 6---Removal from service---Wilful absence from duty--Initial leave for three months was granted to civil servant to perform "Umra" which was got extended for further three months---Civil servant, after availing six months leave did not join duty, but sought two years more extension in leave, which was not sanctioned by authority---Charge-sheet was sent to civil servant on home address, which was followed by two reminders and substituted service---Civil servant neither replied charge-sheet nor associated in proceedings--Absence of civil servant from duty was wilful and he had not been condemned unheard.

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

----S. 4---Constitution of Pakistan (1973). Art.212(3)---Appeal before Service Tribunal---Limitation--Condonation of delay---Sufficiency of cause for condonation of delay being question of fact would fall within jurisdiction of Service Tribunal---Discretion for condoning delay, if once exercised, could not be reversed without any lawful justification.

Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal Islamabad 1976 SCMR 262; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268: Zahida v. Deputy Director 1990 SCMR 1504; VWAPDA v. Abdul Rashid Dar 1990 SCMR 1513 and Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 ref.

Ch. Muhammad Amin Javaid, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th January, 2006.

PLCCS 2006 SUPREME COURT 422 #

2006 P L C (C.S) 422

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

INAYATULLAH and others

Versus

DIRECTOR-GENERAL and others

Civil Petitions Nos.1032 and 1033 of 2003, decided on 8th November, 2005.

(On appeal from the judgment, dated 5-3-2003 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.642 and 643(R)/CS of 2001).

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

----Arts. 4, 25 & 212 (3)---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000--Restructuring of general cadre---Four-Tier Structure Scheme---Reasonable classification, principle of---Directors Physical Education (DPEs) and Physical Training Instructors (PTIs) claimed to have been discriminated by not including them in the reorganizational set-up involving upgradation/re-designation of `General Cadre'---Validity---General cadre of school teachers, as it stood on 30-11-1999, had been re-structured by introducing revised Four-Tier Structure Scheme involved upgradation and re-designation of general cadre of school teachers having no nexus or relevancy to the cadre to which PTIs and other staff members including DPEs belonged---Claim of DPEs and PTIs to have been discriminated, was devoid of any substance as it could be legitimately claimed that Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000 ran counter to the letter and spirit of the judgment passed by Supreme Court in case titled Ahmed Hussain and others v. Director of Education Islamabad and others reported as 2001 SCMR 955; as such the judgment exclusively related to the entire class and category of school teachers of physical education cadre of Islamabad/Federal Area being run by Federal Government---Notification No. F-3-12/96-SA (FDE)A-III, dated, 4-9-2000, did not offend against the provisions of Art.25 read with Art.4 of the Constitution and was not discriminatory---Being member of the staff of Physical Education Section of Educational Institutions of Federal Government, Islamabad/Federal Area, throughout since its inception was and had been treated as separate group as a whole which never belonged or merged in general cadre of school teachers apparently by dint of their nature of duties i.e. a separate class---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, exclusively related to school teachers of the general cadre and had not created or made any classification within the category or group of staff members of Physical Education/sections of PTIs and so on, similarly placed and situated, to be treated alike---Rationality of existence of general cadre of school teachers had never been questioned or assailed till date at any stage and all that could be gathered in view of the agitation of claim of the civil servants, was that by virtue of the Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, they claimed to have been deprived of further promotions---Such objection on the face of it, was without any substance for the reason that they admittedly did not belong to the group of school teachers from its very inception for decades and civil servants to a separate cadre of physical education, though enjoying similar pay scales, grades and posted in Federal Government Educational Institutions Islamabad/Federal Area---Civil servants undisputedly were a separate class and were not discharging exactly the same or similar nature of' duties rather directly were concerned with the physical education of students, therefore, right from the very beginning they had been treated and belonged to a separate class of teachers of physical education---Such classification, decade old, right from its inception, was also not unreasonable nor offended the provisions of the Art.25 of the Constitution---Service Tribunal had rightly dismissed the appeal filed by civil servants---Leave to appeal was refused.

Ahmed Hussain and others v. Director of Education, Islamabad and others 2001 SCMR 955 and I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 rel.

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

----Arts. 4, 25 & 212 (3)---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000---Restructuring of general cadre---Four-Tiers Structure Scheme---Reasonable classification, principle of---Terms and conditions of service---Directors Physical Education (DPEs) and Physical Training Instructors (PTIs) claimed to have been discriminated by not including in re-organizational set-up involving upgradation/re-designation of General Cadre'---Contention of the civil servants was that they were similarly placed with the general cadre for the reason that they had been entrusted with the duties to take classes or deliver lectures to students on subjects---Validity---Contention of civil servants, that some of the PTls were at time entrusted with the duties to take classes or deliver lectures to students on a subject in view of their higher educational qualification, would not per se entitle them to be treated as members of the school teachers belonging to general cadre, nor for such reason PTIs could be treated as having been merged into general cadre of school teachers---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, exclusively related to re-organization and re-designation of various posts of teachers ofgeneral cadre' to which civil servants did not belong nor their terms and conditions of service had any nexus with the notification in question---Observations recorded by Service Tribunal in such behalf were based on correct application of law---Leave to appeal was refused.

Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others 2005 PLC (CS) 1335 distinguished.

----S. 4---Limitation Act (IX of 1908), S.5---Appeal---Limitation---Condonation of delay---Time-barred departmental appeal---Effect---Departmental appeal having not been filed by civil servants within the prescribed period of limitation, appeal filed before Service Tribunal would be incompetent---No reason was available for condonation of such delay in filing the appeal beyond the period of limitation before the Tribunal on any ground---Service Tribunal had appropriately rejected the application for condonation of delay---Appeal was rightly dismissed by Service Tribunal on the point of limitation.

State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 fol.

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

----S. 4---Service Tribunal---Jurisdiction---Service Tribunal has no jurisdiction to order or modify notification or to include teachers of physical education cadre in the general cadre of secondary and higher secondary school teachers.

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

----S. 4(1)---Appeal---Maintainability---No final order by departmental authority---Effect---If no final order whether original or appellate made by departmental authority in respect of the terms and conditions of the service of civil servants was passed, such case did not fall within the domain of the Service Tribunal within the purview of S.4(1) of Service Tribunals Act, 1973---Appeal before Service Tribunal was not maintainable.

Fazal Ellahi Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in both civil petitions).

Nasir Saeed Sh., D.A.-G. for Respondents (in both civil petitions).

Dates of hearing: 7th and 8th November, 2005.

PLCCS 2006 SUPREME COURT 449 #

2006 P L C (C.S) 449

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

SAMI ULLAH

Versus

INSPECTOR-GENERAL OF POLICE and others

Civil Petition No.909-L of 2005, decided on 3rd February, 2006.

(On appeal from the judgment, dated 5-4-2005 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.2873, 2874 and 2876 of 2004).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Police constable---Facilitating escape of convict, charge of---Acquittal of petitioner/constable from criminal case registered against him---Dismissal of appeal of constable by Service Tribunal---Validity---Custody of convict had been handed over to armed police officials with official vehicle to escort prisoners---Petitioner was a member of such police party and had stopped vehicle to facilitate escape of convict on a lame pretext that he wanted to ease himself---Vehicle could have been taken to the nearest police station to avoid any untoward incident---Police party duly armed with sophisticated weapons had remained highly negligent and acted iii a very irresponsible manner and failed to perform their duties diligently and with vigilance---Unarmed and handcuffed convict could not have been escaped without collective connivance and facilitation of police party---No individual member of police party could be absolved from its responsibility--Acquittal of petitioner from criminal case would have absolutely no bearing on the merits of the ease---Petitioner, after comprehensive inquiry, had been found responsible not only for gross negligence, but active connivance and facilitation resulting in escape of convict---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Aslam v. Government of N.-W.F.P. 1998 SCMR 1993; Deputy I.-G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman E.B. WAPDA PLD 1987 SC 195 and Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556 rel.

(b) Civil service---

----Disciplinary proceedings, initiation of---Acquittal of civil servant from criminal case---Effect---Such acquittal would have absolutely no bearing on merits of the case.

Talal Farooq Sheikh, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd February, 2006.

PLCCS 2006 SUPREME COURT 557 #

2006 P L C (C.S.) 557

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmad, JJ

MUHAMMAD TANVEER

Versus

CHIEF SECRETARY GOVERNMENT OF PUNJAB and others

Civil Petition No.348-L of 2006, heard on 17th March, 2006.

(On appeal from order dated 27-12-2005 passed by Punjab, Service Tribunal in Appeal No.2127 of 2005).

Punjab Service Tribunals Act (IX of 1974)--

----S.4---Penalty of reduction in pay scale by two stages---Failure to specify period of such penalty---Departmental Authorities imposed penalty of reduction in pay scale by two stages on civil servant but no such period was specified---Effect---Supreme Court converted the petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal and case was remanded to the Authorities to specify duration of period of penalty of such reduction in pay---Appeal was allowed.

Naim ul Hassan Sherazi, Advocate Supreme Court with Haji M. Rafi Siddiqui Advocate-on-Record for Petitioner.

Zubair Khalid, A.-A.G. Punjab Syed Riaz Hussain, Officer Incharge Cell Excise and Taxation Dept. for Respondents.

Date of hearing: 17th March, 2006.

PLCCS 2006 SUPREME COURT 625 #

2006 P L C (C.S.) 625

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

DISTRICT COORDINATION OFFICER, NAROWAL and others

Versus

ANSAR PERVAIZ

Civil Petitions Nos.409 and 410-L of 2004, decided on 15th December, 2005.

(On appeal from the judgment, dated 27-10-2003 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.841 of 2003 and 842 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Respondents, who were appointed as Dispensers, were directed to get their services regularized within 90 days failing which they would be considered to be out of service---Representations of respondents having been rejected by Departmental Authorities they filed appeals before Service Tribunal which were partly allowed by impugned judgment whereby their penalty of removal from service was converted into compulsory retirement---Respondents had rendered about 14/ 15 years' service---Authorities could not take benefit of their inaction at the relevant, film-Service Tribunal in facts and circumstances of the case, was quite justified in converting penalty of removal of respondents from service into compulsory retirement---Petitions not involving any substantial question of law of public importance within meaning of Art.212(3) of the Constitution, were dismissed and leave to appeal was refused.

Aziz Ahmad Chughtai, Advocate Supreme Court with Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners (in both cases).

Pervaiz Inayat Malik, Advocate Supreme Court and Tanveer Ahmad, Advocate-on-Record for Respondent No.1.

Date of hearing: 15th December, 2005.

PLCCS 2006 SUPREME COURT 1069 #

2006 PLC (C.S.) 1069

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

FEDERATION OF PAKISTAN and 2 others

Versus

GHULAM SHABBIR

Civil Appeals Nos. 132 and 133 of 2005, decided on 26th May, 2006.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 16-12-2003 passed in Appeal No.224(R)SC of 2002).

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

----Rr. 3, 4(b)(i)(ii) & 6---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Embezzlement and misappropriation, charge of---Converting of such penalty by Service Tribunal to that of reinstatement in service with reduction to lower pay scale for period of three years from date of compulsory retirement---Validity---Supreme Court granted leave to appeal to consider as to whether Service Tribunal had reduced such penalty in violation of S.5 of Service Tribunals Act, 1973; whether regular enquiry was essential in matters of financial irregularities before imposing major penalty of reduction in rank; and whether terms and conditions of service at the time of appointment could be varied subsequently by authority to the disadvantage of civil servant.

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

----Rr. 3, 5 & 6---Embezzlement, charge of---Deposit of amount by civil servant in "wrong head"---Validity---Violation of any definite procedure by civil servant not proved---Nothing was available on record to show that amount deposited in wrong head had been drawn and misappropriated by civil servant---Burden to prove such charge was on the department---Held: Procedural deviation and minor irregularities could not be equated to that of misappropriation/embezzlement having its own peculiar characteristics and ingredients---Department failed to prove alleged charge.

----Rr. 4(b), 5 & 6---Inquiry proceedings---Major penalty, imposition of---Personal hearing to civil servant, opportunity of---Scope---Such opportunity must be afforded by the authority competent to impose major penalty or his delegatee.?

Nasir Saeed Sheikh, Deputy Attorney-General for Pakistan and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in Civil Appeal No.132 of 2005) and for Respondent (in Civil Appeal No.133 of 2005).

Tariq Bilal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Civil Appeal No.133 of 2005) and for Respondent (in Civil Appeal No.132 of 2005).

Date of hearing: 17th April, 2006.

PLCCS 2006 SUPREME COURT 1076 #

2006 P L C (C.S.) 1076

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

ABDUL AZIZ BUTT

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No.435 of 2002, decided on 18th April, 2006.

(On appeal from the judgment, dated 11-7-2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No.233(R)CS of 2000).

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

----S. 19---Civil Service Regulations, Art.486---Article 486 of C.S.R. made by Ministry of Finance and Auditor-General of Pakistan through Letters dated 17-7-1986 and 9-9-1996---Constitution of Pakistan (1973), Art.212(3)---Pension, calculation of---Supreme Court granted leave to appeal to consider question as to whether full special pay allowed to civil servant, while holding additional charge of higher post, would be treated as emoluments for purpose of pension.

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

----S. 19---Pension, calculation of---Civil servant drawing full special pay for holding additional charge of higher post on current charge basis was never promoted against higher post---Such special pay could not be counted towards his pension---Where civil servant held such post on regular basis, then his pension would be calculated at existing rate on last pay/emoluments drawn---Principles.

Appellant in person.

Nasir Saeed Sheikh, D.A.-G., Ch. Muhammad Akram, Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 18th April, 2006.

PLCCS 2006 SUPREME COURT 1126 #

2006 P L C (C.S.) 1126

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

IKRAM ELAHI SHEIKH

Versus

DIRECTOR GENERAL, NATIONAL INSTITUTE OF SCIENCE AND TECHNICAL EDUCATION (NISTE), ISLAMABAD and others

Civil Appeal No.650 of 2005, decided on 6th July, 2006.

(On appeal from the judgment of the Federal Service Tribunal, dated 5-5-2003 passed in Appeal No. 103(R) (CS)/2002).

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

----S.19--Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether petitioner was a civil servant for the purpose of claiming pensionary benefits etc.; whether petitioner had been discriminated because one of the employees of same department was given pensionary benefits; and what would be the effect of judgment of Supreme Court in case of Saeed Rabbani v. Director General Leather Industry Development Organization & another, reported as PLD 1994 SC 123, C.As. Nos. 1704 to 1715 of 2003 and C.A. No. 2 of 1996.

Saeed Rabbani v. Director-General Leather Industry Development Organization and another PLD 1994 SC 123; C.As. Nos. 1704 to 1715 of 2003 and C.A. No.2 of 1996 ref.

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

----Ss.2 (b) & 19---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Civil Service Regulation, Regln. No. 371-A---Notification No. F.35/2002-SE-1, dated 25-2-2004---Pensionary benefits---Status of civil servant---Employee of organization set up by Federal Government--Appellant was employee of National Institute of Science and Technology Education, and was denied pensionary benefits---Appeal against the refusal of authorities was dismissed by Service Tribunal---Plea raised by appellant was that although he was employed in an organization established by a resolution but status of its employees was at par with that of government employees and was. entitled to pensionary benefits---Validity---Civil Service Regulations might not stricto senso be applicable to employees of all Government controlled bodies, organizations, corporations and institutions rather the Regulations were applicable either to civil servants who were governed by Civil Servants Act, 1973, or to employees of the institution, who had been awarded status of civil servant in terms of S.2 (b) of Civil Servants Act, 1973, in respect of their terms and conditions of service---Service Tribunal proceeding on assumption that employees of statutory bodies or corporations or companies incorporated under Companies Ordinance, 1984, controlled by Government were not civil servants as envisaged under S.2 (b) of Civil Servants Act, 1973, found appellant not entitled to claim pensionary benefits admissible to Government servants---Position of employees of National Institute of Science and Technology Education was different to that of the employees of Government controlled organizations, who were awarded status of civil servant by virtue of S.2-A of Service Tribunals Act, 1973, for a limited purpose to provide them remedy of appeal before Service Tribunal in respect of their terms and conditions of service---Pensionary benefits were admissible to appellant, under the relevant rules subject to Civil Service Regulation No.371-A---Judgment passed by Service Tribunal was set aside---Appeal was allowed.

Saeed Rabbani v. Director General Leather Industry Development Organization and another PLD 1994 SC 123; C.As. Nos. 1704 to 1715 of 2003; C.A. No.2 of 1996; Mr. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Dr. Rashid Anwar v. Federation of Pakistan 1996 SCMR 1572; Secretary Ministry of Science and Technology v. Nasrullah 1998 PLC (C.S.) 1033; Nuran Shah Sarhadi v. Chairman, Pakistan Academy of Letters, Islambad PLJ 2000 Tr.C. (Service 159; Muhammad Aslam and 9 other v. Secretary to Government of Pakistan, Ministry of Science and Technology, Islamabad and other's 1998 SCMR 1160; Mir Ahmed Khan v. Secretary to Government and others 1997 SCMR 1477 and Commissioner Afghan Refugees, N.-W.F.P. and others v. Fazal Hakim in Civil Appeal No.22(P) of 1988 ref.

----S.2-A---Employees of Government controlled organizations---Status of civil servant to such employees---Import, object and scope---Purpose of insertion of S.2-A in Service Tribunals Act, 1973, was to provide a forum to employees of Government controlled organizations against orders passed by competent authorities in their organization detrimental to their terms and conditions of service and also to reduce litigation before different forums---Employees of such organizations were not given status of civil servant to be treated at par with the employees of Government in the matter of their terms and conditions of service.

Shah Abdur Rashid, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

M.S. Khattak, Advocate-on-Record and Arif Raja, Advocate Supreme Court for Respondents.

Date of hearing: 23rd November, 2005.

JUDGMNET

MUHAMMAD NAWAZ ABBASI, J.---This appeal under Article 212 (3) of the Constitution of Islamic Republic of Pakistan-has been directed against the judgment dated 5-5-2003 passed by the Federal Service Tribunal, Islamabad whereby the appeal filed by the appellant an employee of National Institute of Science and Technology Education, an Organization set up by the Ministry of Education, Government of Pakistan, wherein he sought declaration that he was entitled to the payment of pensionary benefits/gratuity admissible to the government servants under the service laws, was dismissed.

Leave was granted in this appeal vide order dated 17-6-2005 as under:

"Leave to appeal is granted inter alia to determine:

(i) As to whether petitioner was a civil servant for the purpose of claiming pensionary benefits etc.?

(ii) As to whether the petitioner has been discriminated because one of the employees of same department Muhammad Aslam Ch. Director Research and Evaluation has been given pensionary benefits? And

(iii) What would be the effect of the judgments of this Court reported in (i) Saeed Rabani v. Director-General Leather Industry Development Organization and another (PLD 1994 SC 123); (ii) C.As. Nos. 1704 to 1715 of 2003 and (iii) C.A. No.2 of 1996?

Appeal is to be prepared on the same record with opportunity to parties to file additional documents if need be in accordance with the rules. To be fixed after summer vacations".
The facts in small compass in the background giving rise to this appeal are that appellant, initially joined National Education Commission (NEC), in 1987, an institution of M/o Education, established by a Resolution and later on abolition of NEC in 1995, he was absorbed as Director in the Institute for Promotion of Science, Education and Training (IPSET), set up by a resolution of M/o Education. Subsequently, the institution of IPSET, and Organization of Technical Teachers College (NTTC), also set up by a resolution of the Ministry of Education were merged into National Institute of Science and Technology Education, (NISTE). The appellant with eight years service as Director (B-18) in NEC was absorbed in (IPSET) and thereafter in NISTE in the same grade in 1997 from where, he on attaining the age of superannuation, stood retired from in 2000 and in this way, he served in the above institutions of the Ministry of Education Government of Pakistan for a total period of about 13 years. The claim of the appellant was that the status of the employees of the above institutions was at par to that of the employees of the federal government, therefore, he was entitled to the benefit of pension and gratuity admissible to the employees of the federal government but his claim regarding the pensionary benefits was rejected by the competent authority vide order dated 27-10-2000, whereupon he filed an appeal before the Secretary, M/o Education and pending disposal of the appeal, on the instructions of the concerned Ministry vide letter dated 30-4-2001 he consented for refund of C.P. Fund/gratuity on the assurance given to him for grant of pensionary benefits. However, subsequently, on rejection of the departmental appeal filed by him vide order dated 10-1-2002, on the ground that he had not rendered service qualifying for pension and there was also no pension Scheme for the employees of the Institution of NISTE in the field, he filed appeal before the Federal Service Tribunal which was dismissed on the ground that the employees of (NISTE), and of such other government Organizations, established by way of Resolution, have been awarded the status of civil servant for the limited purpose, by insertion of section 2-A in the Service Tribunals Act, 1973 and in absence of any pension scheme of the employees of these institutions, the appellant could not claim the benefit of pension under the pension scheme of the government.
The learned counsel for the appellant has contended that the institution in which appellant was employed undoubtedly, was established by a resolution but the status of the employees of this institution in the tight of law laid down by this Court would be at par to that of the government employees and they would be deemed to be civil servants not only for the purpose of section 2-A of the Civil Servants Act, 1973 but would also he considered civil servant in terms of section 2 (b) of the said Act to claim the benefit of pension and gratuity admissible to the government employees. The learned counsel placing reliance on Mr. Arshad v. Miss Naeema Khan (PLD 1990 SC 612), Saeed Rabbani v. DG. LIDO (PLD 1994 SC 123), Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572), Secretary Ministry of Science and Technology v. Nasrullah (1998 PLC CS 1033), Nuran Shah Sarhadi v. Chairman, Pakistan Academy of Letters, Islamabad (PLJ 2000 Tr. C. Services 159), has submitted that employees of an institution or organization established by the Government by a resolution for discharging functions in connection with the federation, are deemed to be in the service of Pakistan and a person in service of Pakistan by virtue of section 25 of the Civil Servants Act, 1973 may acquire the status of civil servant for all practical purposes including the pensionary benefits on retirement in terms of section 19 of the Civil Servants Act, 1973 read with Civil Servant Regulation Nos. 361, 371-A, and 474 on the subject.
Learned Deputy Attorney General on the other hand has contended that the institutions in question were established by the Resolutions of the Ministry of Education, Government of Pakistan, and the employees of these institutions in the matter of terms and conditions of their service, would be governed by the relevant resolutions and not by the rules and regulations framed under Civil Servants Act, 1973 applicable to the government servants. The learned DAG argued that the employees of the organizations, corporations, institutions, or statutory bodies controlled by the Federal Government were awarded the status of civil servant by insertion of section 2-A in Service Tribunals Act, 1973, for the limited purpose of providing them remedy of appeal before the Service Tribunal against the order of departmental authorities in respect of their terms and conditions of service being governed by the Service Rules of such organization without treating them at par to the employees of Federal Government for any other purpose or civil servant in terms of section 2(b) of Civil Servants Act, 1973.
Article 240 of the Constitution provides that subject to Constitution the appointments to and the conditions of service of persons in the services of Pakistan shall be determined, in the case of the services of the Federations, post in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament. The explanation to this Article says that "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by an Act of Parliament. In pursuance of Article 240 of the Constitution, Civil Servants Act, 1973 was enacted by the Parliament, therefore, it would be appropriate to reproduce the relevant provisions of the said Act for the proper appreciation of the contentions raised by the learned counsel for the parties in this appeal.

The expression "civil servant" has been defined in section 2(b) of Civil Servants Act, 1973 as under:

(b) "Civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post' in connection with the affairs of the Federation, including any such post connected with defence, but does not include-

(i) a person who is on deputation to the Federation from any Province or other authority;

(ii) a person who is employed on contract, or on work-charged , basis, or who is paid from contingencies; or

(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)."

Section 5 of the ibid Act deals with the appointment in the Service of Pakistan which provides as under:

"Appointments to an' All-Pakistan Service or a civil Service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."

This Court in Mr. Arshad v. Miss Naeema Khan, (PLD 1990 SC 612), supra, having determined the status of Organizations, Corporations and Institutions has held that such bodies could be created by an executive order or by an instrument under the authority delegated by an Act of Parliament and in the light thereof the essential question requiring determination would be whether the employees of NISTE, an institution set up by the federal government by a resolution, are holding the posts in connection with the affairs of federation and were civil servant in terms of section 2(b) of the Civil Servants Act, 1973 or not. The plain answer to the above question, subject to any exception, would be in the negative. However, the above proposition involved in this case was considered by this Court in Saeed Rabbani v. Director-General Leather Industry Development Organization and another (PLD 1994 SC 123) wherein the controversy was as to whether the employees of Leather Industry financed by the Government of Pakistan under the authority derived from the Constitution and placed under the administrative control of the Ministry of Industries were holding the civil posts or not. It was held that "the employees hold a civil posts in connection with affairs of the Federation". In Muhammad Aslam and 9 others v. Secretary to Government of Pakistan, Ministry of Science and Technology, Islamabad and others (1998 SCMR 1160) it was held that the employees of Pakistan Council of Research in Water Resources set up by Resolutions of the government were civil servants. In Mrs. M.N. Arshad v. Naeema Khan (PLD 1990 SC 612) the question of inception of corporations etc., was involved and it was declared that Establishment of College in Islamabad by Federal Government was in the discharge of Constitutional/statutory obligations of the State, therefore, the teachers appointed by Federal Government in the Colleges were holding civil post in connection with the affairs of the Federation. In Dr. Rasheed Anwar v. Federation of Pakistan (1996 SCMR 1572) while determining the question regarding the status of doctors employed in Pakistan Institute of Medical Sciences it was held that doctors employed in the Institution were civil servants and so were the other in other Government hospitals. In Mir Ahmed Khan v. Secretary to Government and others (1997 SCMR 1477) the question regarding the status of employees of Afghan Refugees Corporation as civil servant to claim the benefit of pension was involved. The word 'civil servant' was answered in Civil Appeal No.22(P) of 1988, Commissioner Afghan Refugees, N.-W,F.P. and others v. Fazal Hakim and vide judgment dated 3-12-1990, it was held by this Court as under:

"Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants Act of the Province of N.-W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of' the Federation and were to he paid from the Federal Budget and the employees were to be Federal Government employees, and governed by rules applicable to the Federal Government employees.

The Federal Service Tribunal itself in Appeal No. 123(R) of 1991 M/s. Muhammad Iqbal and Mr. Minollah, held the employees of the Afghan Refugees Organizations as civil servants within the meaning of Civil Servants Act, 1973.

In this view of the matter, the appellant and other employees of the Afghan Refugees Organization are Government Servants and they are entitled to pensionary benefits of their cases are covered by Regulation No.371-A of the Civil Services Regulation which reads: --------------"

The status of employees of Afghan Refugees Organization established by the Government of Pakistan as civil servant was disputed on the ground that since the expenditures on the payment of their salaries etc. were being borne out by United Nations High Commissioner for Refugees and not Government of Pakistan, therefore they were not civil servants to claim the pensionary benefit .available to government servants. The contention was repelled by this Court with the observation that employees of Afghan Refugees Organization were civil servant and were entitled to get pension in terms of Regulations CSR 371-A.
In the light of statutory provisions and the law laid down by this Court, it is clear that the employees of the institutions of NEC, IPSET and NISTE which was established by the Resolutions of the Federal Government were discharging the functions in connection with the affairs of the Federation and may be holding civil posts in terms of Article 240 of the Constitution but may not be ipso facto treated civil servant in terms of section 2(b) of the Civil Servants Act, 1973 for the purpose of the terms and conditions of service at par to the employees of the Federal Government.
The Institutions having been set up by the Ministry of Education were under its direct control and the employees of these institutions have been awarded the status of .civil servant for the purpose of availing the remedy of appeal before the Service Tribunal in respect of their terms and conditions of service.
However, Ministry of Education in the Federal Government vide Notification dated 25-2-2004, issued in pursuance of the judgment of this Court, recognized the employees of NISTE as civil servants in terms of section 2(b) of the Civil Servants Act, 1973 and notwithstanding the fact that the Institution was set up by a resolution under the authority of Federal Government, its employees were awarded the status of civil servant for all intents and purposes and were being treated at par to that of employees of Federal Government without any distinction. The notification referred to above is reproduced hereunder: --

"No. F.35/2002-SE-1.---In pursuance of the Supreme Court judgment in Civil Appeal No.154 and 155 of 1988, the employees of National Institute of Science and Technical Education (NISTE) Islamabad, an institute which resulted on merger of two defunct resolute bodies namely; National Technical Teachers Training College (NTTC) and Institute for the Promotion of Science Education and Training (IPSET), established vide Resolution No. F.I-4/81-PD (NTTC) dated 10th March, 1982 and Resolution No.F25-/86-Sc-1 dated 7th June, 1987, respectively, as amended from time to time, are deemed to be Civil Servants till such time as the future status of National Institute of Science and Technical Education (NISTE), Islamabad is determined in consultation with Management Services Wing of Establishment Division.

Sd/-

(Nasir Ahmad)

Assistant Education Adviser"

In consequence thereto the real question requiring determination would be whether in absence of any separate Scheme of pension introduced for the employees of NISTE, the appellant by virtue of the notification referred above, on retirement would be entitled to claim the pensionary benefit under the pension scheme of the Federal Government. The institution having been established by resolution of the Federal Government was placed under the' administrative control of the Ministry of Education and was accordingly, managed and financed by the Federal Government. The employees of the institution were also recognized as civil servant by the Ministry vide notification in question for all practical purposes and consequently, they would be entitled to the pensionary benefits under the relevant rules read with Regulation No. 371-A of Civil Service Regulations which provided as under:--

"371-A. Notwithstanding, anything contained in Articles 355(b), 361, 368 and 371 of these Regulations, temporary and officiating service in the case of Government servants who retired on or after Ist January, 1949 or who joined service thereafter shall count for pension according to the following rule:

(i) Government servants who have rendered more than five years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and

(ii) Temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any."

The Civil Service Regulations may not stricto senso be applicable to the employees of all government controlled bodies, Organizations, Corporations and Institutions rather these Regulations would be applicable either to the civil servants who are governed by Civil Servants Act, 1973 or to the employees of the institution, who have been awarded the status of civil servant in terms of section 2(b) of Civil Servants Act in respect of their terms and conditions of service. The Tribunal in the present case proceedings on the assumption that the employees of statutory bodies or Corporation or Companies incorporated under the Companies Ordinance controlled by the Government are not civil servant as envisaged in section 2(b) of Civil Servants Act, 1973, held that appellant was not entitled to claim pensionary benefits admissible to the government servants.
The position of the employees of the Institution was different to that of the employees of government controlled organizations who were awarded status of civil servant by virtue of section 2-A of the Service Tribunals Act, 1973 for a limited purposes to provide them the remedy of appeal before the Service Tribunal in respect of their terms and conditions of service. The purpose of insertion of section 2-A in the Civil Servants Act, 1973 was to provide a forum to the employees of the Government controlled Organizations against the orders passed by the competent authorities in their Organization detrimental to their terms and conditions of service and also reduce the litigation before different forums, therefore the employees of such Organizations were not given the status of civil servant to be treated at par to the employees of the Government in the matter of their terms and conditions of service whereas the employees of NISTE were given status of civil servant in terms of section 2 (b) of the Civil Servants Act, 1973 by way of special notification issued by the Ministry of Education, Government of Pakistan. In the light of the above distinguishable features of the employees of NISTE to that of the employees of other government controlled organizations, they would be enjoying the status of civil servant for all purposes and would be entitled to claim the pensionary benefit under the pension scheme of Federal Government.
The assertion of the respondent that appellant having withdrawn CP Fund with interest under CP Fund Scheme of NEC, would not be justified to claim the pensionary benefits, has no substance. The organizations was set up by a resolution of the Federal Government and being under direct control of M/o Education, was supposed either to frame its own rules in consonance with the rules framed under Civil Servants Act, 1973 or adopt the rule framed thereunder, therefore notwithstanding the introduction of Scheme of CP Fund contribution, the right of pension of the appellant admissible under the rules applicable to the civil servants, subject to the surrender of benefit taken under the CP Fund scheme would remain intact. The learned counsel for the appellant has informed us that the appellant had already consented for return of the amount received by him as CP Fund contribution and has also brought to our notice that in similar circumstances, Nuran Shah Sarhadi, an employee of Pakistan Academy of Letters, an Organization established by a Resolution of Ministry of Education, was allowed the pensionary benefits.

PLCCS 2006 SUPREME COURT 1146 #

2006 PLC(C.S.) 1146

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

I.-G. (PRISONS) N.-W.F.P. PESHAWAR and others

Versus

MUHAMMAD ISRAIL, ASSISTANT SUPERINTENDENT JAIL, HARIPUR

Civil Petition No.741-P of 2004, decided on 19th June, 2006.

(On appeal from the judgment, dated 8-7-2004 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeal No.487 of 2002).

Pakistan Prison Rules, 1978---

----Chap. 41 & Rr.724 & 1002---North-West Frontier Province Service Tribunals Act (I of 1974), S.4-Constitution of Pakistan (1973), Art.187---Supreme Court---Suo motu powers, exercise of---Enhancing of penalty---Five under-trial prisoners escaped from jail and after departmental inquiry Assistant Superintendent and four warders were found responsible for the incident---Assistant Superintendent was awarded penalty of reduction to the lowest stage in his present time scale, while warders were dismissed from service---Service Tribunal allowed appeal of all civil servants and altered penalty of warders from dismissal from service to stoppage of three increments without cumulative effect, while Assistant Superintendent was exonerated from the charges and his penalty was set aside--Validity---Service Tribunal, while shifting entire burden on to the shoulders of accused warders, omitted to realize that the Assistant Superintendent was the one who was responsible for the efficient and proper discharge of obligations by his subordinates and any negligence of the staff meant an aggravated negligence on his part---Assistant Superintendent did not bring on record to establish that he was not on duty on the night of occurrence---Judgment of Service Tribunal, absolving Assistant Superintendent of his liability towards the incident, could not be sustained---Higher the post, higher were the responsibilities and graver were the implications and consequences of their neglect---Findings of Service Tribunal exonerating the Assistant Superintendent from the charges levelled against him was result of apparent error emanating from a gross misreading and mis-appreciation of material available on record---Assistant Superintendent being incharge of jail had suffered escape of five under trial prisoners from custody of the State, which was a serious matter and it was surprising that despite findings of guilt recorded against Assistant Superintendent, competent authority still found him good enough to man prisons---Such officer did not deserve to continue to be in such service saddled with high responsibility of ensuring safe detention of prisoners in custody---Supreme Court, after issuing show-cause notice to the Assistant Superintendent and after hearing him on the issue and considering all aspects of the matter, directed the authorities to retire him from service---Punishment of compulsory retirement from service was awarded to the Assistant Superintendent---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Appeal was allowed.

Shakeel Ahmed, Advocate Supreme Court with M.A. Qayyum Mazhar, Advocate-on-Record for Petitioners.

Nasir Hussain, Advocate Supreme Court with Syed Safdar Hussain, Advocate-on-Record and Respondent in person.

Date of hearing: 19th June, 2006.

PLCCS 2006 SUPREME COURT 1159 #

2006 PLC (C.S.) 1159

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

LUQMAN ZAREEN and others

Versus

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

C.Ps. Nos.326-P to 342-P, 485-P, 486-P, 513-P to 519-P, 586-P and 622-P of 2005, decided on 21st June, 2006.

(On appeal from the judgment/order, dated 14-5-2005 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Service Appeals Nos.187 and 188 of 2004, 1019, 1020, 1021, 1022, 1023, 1025, 1026, 1122, 1178, 1191, 1192, 1193, 1194, 1195, 1196, 1024, 1151, 1152, 1153, 1154, 1158, 1159, 1160, 1161, 1157 and 997 of 2003, respectively).

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

----S. 8---Promotion--- Principle--- Acting charge--- Departmental Promotion Committee issued delayed notification---Effect---Where a post was available against which a civil servant could be promoted; where such civil servant was qualified to be promoted to such a higher post; where he was put on such higher post on officiating or acting charge basis only because requisite exercise of allowing regular promotion to such post was being delayed by competent authority and where he was subsequently found fit for such promotion and was so promoted on regular basis, then the civil servant was entitled not only to the salary attaching to such post but also to all consequential benefits from that very date from which he had put on the said post on officiating or acting charge basis.

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

---S. 8---Promotion---Acting charge---Date of promotion---Determination---Civil servants were promoted on 31-8-2000, on acting charge basis but Departmental Promotion Committee issued their notification of promotion on 27-5-2003---Grievance of civil servants was that their promotion was not considered from the date when they were promoted on acting charge basis---Validity---Civil servant who was asked to hold a higher post to which he was subsequently promoted on regular basis, was entitled to the salary etc. attaching to such post for the period that he held the same---Such civil servant was also entitled to any other benefits which might be associated with such, post---If a. vacancy existed in the higher cadre to which a civil servant was qualified to be promoted on regular basis but was not so promoted without any fault on his part and was instead put on such post on officiating basis, then on his regular promotion to such post, the civil servant would be deemed to have been so promoted to the same from the date from which he was allowed to hold the higher post, unless justifiable reasons existed to hold otherwise---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Supreme Court declared the civil servants to be deemed to be promoted from 31-8-2000 and not from 27-5-2003---Appeal was allowed.

Sarwar Ali Khan's case PLD 1994 SC 233 and Chaudhry Mehmood Akbar's case 2003 SCMR 13 rel.

---S. 4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.8---Appeal---Maintainability---Necessary parties---Non-impleading of direct appointees---Civil servants were promoted on 31-8-2000, on acting charge basis but Departmental Promotion Committee issued their notification of promotion on 27-5-2003---During promotion on acting charge basis and issuance of notification, department directly recruited few civil servants---Grievance of said civil servants was that their promotion was not considered from the date when they were promoted on acting charge basis---Service Tribunal dismissed appeal on the ground that the direct appointees were not made party to the appeal---Validity---Appeals filed by civil servants before Service Tribunal did not seek seniority over directly recruited persons and what they were asking for was vindication of their right to regular promotion from the date in question---If civil servants were found entitled to the same then they could not be deprived of it only because it could have caused some prejudice to some others nor could those others be heard to deny such benefit deserved by the civil servants---Non-impleading of the direct appointees to the appeals filed by civil servant in Service Tribunal could be no ground to deny them a right which had lawfully accrued to them---Appeal was allowed.

Javed A. Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioners (in all petitions).

M. Saeed Khan, Additional Advocate-General, N.-W.F.P. with Haji Ahmed Khan, Additional Secretary (S&L) and Fazli Manan, Director (S&L) Education Department, Peshawar for Respondents.

Date of hearing: 21st June, 2006.

PLCCS 2006 SUPREME COURT 1173 #

2006 P L C (C.S.) 1173

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

EXECUTIVE DISTRICT OFFICER SCHOOLS AND LITERACY, DISTRICT DIR LOWER and others

Versus

QAMAR DOST KHAN and others

Civil Petitions Nos.786, 787 and 788-P of 2004, decided on 8th May, 2006.

(Against the order, dated 28-8-2004 passed by High Court of Peshawar in Service Appeal No.51 of 2003).

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

----S. 4---Appeal before Service Tribunal---Maintainability---It is only a final order, original or appellate, against which an appeal lies to North-West Frontier Province Service Tribunal.

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

----Ss. 4 & 7---North-West Frontier Province Service Tribunals Rules, 1974, R.27---Service Tribunal---Jurisdiction---Direction to departmental authorities---Non-availability of any final order---Grievance of civil servants was that after their appointment as PTC teachers, they were not posted anywhere---Service Tribunal allowed appeals filed by civil servants and directed departmental authority to issue posting orders---Plea raised by Authorities was that Service Tribunal did not have any jurisdiction to issue direction to them and appeal filed by civil servants was not maintainable as there was no final order---Validity---Powers contained in R.27 of North-West Frontier Province Service Tribunals Rules, 1974, were not intended to enlarge the scope of S.4 of North-West Frontier Province Service Tribunals Act, 1974---Such power was available to Service Tribunal while hearing an appeal and question of maintainability of an appeal was to be answered with reference to Ss.4 and 7 of North-West Frontier Province Service Tribunals Act, 1974---There had not been such an order within the contemplation of S.4 of North-West Frontier Province Service Tribunals Act, 1974, which could be brought under challenge before North-West Frontier Province Service Tribunal---Relief claimed by civil servants through appeals was in the nature of a command to departmental authority to give them suitable posting---In essence, the civil servants were seeking writ of mandamus which jurisdiction the Service Tribunal did not possess---Petition for leave to appeal was converted into appeal and judgment passed by Service Tribunal was set aside---Appeal was allowed.

Secretary to the Government of N.-W. F. P. , Agriculture Department v. Asmatullah Khan and others 2003 PLC (C.S.) 1289; Muhammad Amjad Malik v. Pakistan State Oils Co. Ltd. and others 2005 PLC (C.S.) 318; Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285; Muhammad Sarwar v. The State PLD 1969 SC 278 and Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

----Question of jurisdiction---Raising for the first time before Supreme Court---Principles---Question of jurisdiction goes to the root of case and can be raised for the first time even while appearing before the highest Court of country---Only constraint where a party could be said to be estopped to raise question of jurisdiction would be where the party itself invoked jurisdiction of Court or Tribunal and on the result being unfavourable repudiates its own action and throws challenge to the jurisdiction of such Court or Tribunal but even in such a case, it depends on facts of that case---Yet another case where question of jurisdiction may not be entertained for the first time before superior Courts could be when the equities are plainly against the person raising objection and if upheld consequence would be to perpetuate all ill-gotten gain or to bring about a plainly unjust consequence---Objection to jurisdiction should not be shut even though raised for the first time before Supreme Court.

(d) Administration of justice---

----Duty of Court or Tribunal---Non-engaging of counsel by a party---Effect---Court or Tribunal has to decide lis before it in accordance with law and parties are not bound to engage a counsel---Justice according to law is the duty of Court, which can neither be abdicated in favour of whims or ignorance of litigants or their lawyers nor it be avoided or evaded on the pretext that a question of law going to the root of the case, was not raised promptly.

(e) Jurisdiction---

----Territorial or pecuniary jurisdiction---Scope---Objection to territorial or pecuniary jurisdiction is regulated by Civil Procedure Code, 1908 and Suit Valuation Act, 1887, respectively.

(f) Jurisdiction---

----Conferring of jurisdiction---Principle---Jurisdiction is conferred by either Constitution or law---Consent or acquiescence has never been considered as a factor conferring jurisdiction.

Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292; Shagufta Begum v. The Income Tax Officer, Circle XI, Zone-B, Lahore PLD 1989 SC 360 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 rel.

M. Saeed Khan, A.A.-G. for Petitioners (in all cases).

Khushdil Khan Mohmand, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Respondents (in all cases).

PLCCS 2006 SUPREME COURT 1216 #

2006 P L C (C.S.) 1216

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

MUHAMMAD ZAHID IQBAL and others

Versus

D.E.O., MARDAN and others

Civil Petitions Nos.350-P to 356-P, 364-P, 377-P to 379-P, 389-P to 398-P, 406-P to 408-P, 435-P to 468-P, 473-P to 477-P, 492-P to 495-P, 501-P to 506-P, 541-P, 560-P, 597-P, 598-P, 413-P, 478-P to 484-P, 496-P to 5'00-P, 504-P, 507-P to 509-P, 532-P, 540-P, 543-P to 545-P, 561-P and 562-P, 603-P to 605-P, 510-P to 512-P, 542-P, 547-P to 549-P, 569-P to 572-P, 576-P to 579-P, 590-P to 600-P, 550-P to 557-P, 582-P to 584-P and 589-P of 2005, decided on 26th October, 2005.

(On appeal from the judgment, dated 11-6-2005 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeals Nos.2054, 2001, 2353, 2182, 2605, 2037, 2203, 561, 2347, 2346, 2352 of 2000, 258 of 2003, 116 of 2002, 15, 16, 17, 1184, 1186, 1187 of 2003, 1237 of 2002, 158, 298 of 2004, 2036, 2193, 2889 of 2000, 935, 944, 1013 of 2001, 401, 539, 620, 668, 707, 807, 645, 808, 809, 810, to 816, 860, 861, 870, 908, 915, 1027, 1126, 1166 of 2002, 10, 281, 282, 634 of 2003, 236 of 2004, 1020 of 2001, 1021 of 2001, 634, 1237 of 2002, 157 of 2003, 907 of 2000, 606 of 2002, 246, 1163 of 2003, 260 of 2001, 686, 714 of 2002, 244 of 2003, 344 of 2005, 344 of 2004, 658 of 2002, 505 of 2003, dated 7-7-2005, passed in Appeal No.387 of 2005, dated 4-7-2005 in Appeals Nos.361 of 2003, 638, 644, 700 of 2002, 229 of 2003, 32, 341 of 2004, 1011 of 2001, 2232 of 2000, 7, 6 of 2003, 208, 552 of 2004, 702 of 2002, 768, 917, 1282 of 2003, 634, 1024, 680 of 2003, 645, 679 of 2004, 916, 13 of 2003, dated 4-8-2005 in Appeals Nos.869 of 2002, 569, 1002 of 2004, 737 of 2002, 345, 1346 of 2003, 870 of' 2004, 401, 567, 568, 510, 50, 242, 569, 1347, 504, 604, 507, 618 of 2003, 859 of 2004, 524, 526, 920 of 2003, dated 14-4-2005 passed in Appeals Nos.594, 602, 598, 606, 610, 623, 667, 1079 of 1997, dated 10-9-2005 in Appeals Nos.800 of 2004, 254, 260 of 2005 and 817 of 2004, respectively).

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

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Termination of service---Illegal appointments---Lack of basic eligibility---Illegality committed by department---Grievance of petitioners was that their services were terminated on the allegation of illegal and political appointments but the Service Tribunal dismissed their appeals---Plea raised by petitioners was that if once illegality was committed by department itself, it could not turn around and reverse its own order taking benefit of its own illegality---Validity---Once the appointees were qualified to be appointed, their services could not subsequently be terminated on the basis of lapses and irregularities committed by department itself---Such laxities and irregularities committed by Government could be ignored by the Courts only when the appointees lacked basic capabilities, otherwise not--Petitioners could not draw any benefit from such view for the reason that at the time of their initial appointments, they lacked basic qualifications, requirements and eligibilities---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.?

Hameed Akhtar Niazi's case 1996 SCMR 1185 ref.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah's case 2002 SCMR 1124; Sui Southern Gas Company Limited PLD 2003 SC 724; WAPDA v. Abbas Ali Malano and another 2004 SCMR 630; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and Muhammad Shoaib's case 2005 SCMR 85 rel.

Dr. Hussain Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.350-P, 352 to 356, 389, 397-P, 406 to 408-P of 2005).

Fateh Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.390-P to 396, 413 and 544-P of 2005).

Khushdil Khan Mohmand, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.435-P to 468, 473 to 477, 492 to 495, 502, 503, 505, 506, 541, 560, 597, 478 to 484, 496 to 500, 504, 507 to 509, 532, 540, 544, 545, 561, 562, 510 to 512, 542, 547 to 549, 569 to 572, 576 to 579, 590, 591, 598 to 600, 582 to 584-P of 2005).

Mir Adam Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.550-P to 557 and 589-P of 2005).

Petitioners in person (in C.Ps. Nos.351-P, 377 to 379, 501, 398, 543, 603 to 605-P of 2005).

Nemo for Petitioner (in C.P. No.364-P of 2005).

Muhammad Younas Tanoli, Advocate-General, N.-W.F.P., Imtiaz Ali, Advocate Supreme Court and Hafiz Aman, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 26th October, 2005.

PLCCS 2006 SUPREME COURT 1229 #

2006 P L C (C.S.) 1229

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Syed Jamshed Ali, JJ

SAEED IQBAL

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education, Lahore and others

Civil Petition No.2282-L of 2004, decided on 26th January, 2006.

(Against the order, dated 1-6-2004 passed by Punjab Service Tribunal, Lahore in C.M. No.265 of 2004 in Appeal No.1662 of 2001).

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

----S. 5(2)---Constitution of Pakistan (1973), Art.212(3)---Petitioner had assailed order passed by Service Tribunal whereby his miscellaneous application for re-consideration of Tribunal's earlier decision, dismissing his appeal against order of his dismissal from service, had been dismissed as being not maintainable---Petitioner had pleaded that previously fraud and misappropriation was played on Service Tribunal at time of passing the order dismissing his appeal against order of his dismissal from service and that Tribunal had jurisdiction under S.12(2), C.P.C. to withdraw/recall its previous order---Validity---Plea of petitioner had no force, firstly because order dismissing appeal of petitioner ,had shown that no fraud or misrepresentation was played upon the Tribunal; secondly miscellaneous application in question was not moved under S.12(2), C.P.C.---Petition for leave to appeal having no merit, was dismissed, in circumstances.

Asad Ali Khan v. Chairman Pakistan Telecommunication Corporation, Islamabad and 2 others 1998 PLC (C.S.) 588 ref.

Mirza M. Aziz-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2006 SUPREME COURT 1249 #

2006 P L C (C.S.) 1249

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J and Hamid Ali Mirza, J

BOARD OF GOVERNORS, AREA STUDY CENTRE and another

Versus

Ms. FARAH ZAHRA

Civil Petition No.1662 of 2005, decided on 18th October, 2005.

(On appeal against the judgments, dated 5-4-2005 and 13-7-2004 passed by Lahore High Court, Rawalpindi Bench in I.C.A. No.177 of 2004 and Writ Petition No.45 of 2004 respectively).

Centres of Excellence Act (XXIV of 1974)---

----S.. 10(1)(o)---Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989---Constitution of Pakistan (1973), Art.185 (3)---Appointment for the post of Assistant Professor---Period of experience, calculation of---Selection Board recommended appointment of' respondent for the post in question but Board of Governors did not find her eligible for the post---High Court in exercise of constitutional jurisdiction allowed the petition filed by respondent and directed the authorities to issue her appointment letter---Validity---Leave to appeal was granted by Supreme Court to consider; whether High Court in exercise of jurisdiction under Art.199 of the Constitution could issue writ of mandamus directing petitioner to appoint respondent as Assistant Professor; whether High Court in exercise of writ jurisdiction could substitute the findings of Board of Governors holding that respondent had no four years experience in the relevant field in National or International Organization; what should have been the mode to determine whether the experience possessed by respondent could be equated to the experience of four years or above, to make her eligible for the appointment against the post of Assistant Professor; whether High Court had an obligation in writ jurisdiction to decide factual controversy between the parties with regard to four years experience of respondent in

the relevant field in National or International Organization; whether relief in a writ jurisdiction could have been denied to respondent for technical reasons; whether petition had been filed without authorization of Board of Governors; and whether Higher Education Commission in exercise of the powers under S.10(1)(o) of Centres of Excellence Act, 1974, could not calculate the experience of four years of the respondent in National or International Organization to make her qualified for appointment against the post of Assistant Professor.

State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj AIR 1963 SC 946; Ramesh and another v. Gendalal Motilal Patni and others AIR 1966 SC 1445; Udai Bhan Singh and others v. The Board of Revenue, U.P. Allahabad and others AIR 1974 All. 202; Bishambhar and another v. IIIrd Additional District Judge, Azamgarh and others AIR 1992 All. 178; Ghulam Jillani v. Government of the Punjab and another 2001 PLC (C.S.) 157; Wazir Khan v. Government of N.-W.F.P. through Secretary Irrigation, Peshawar and 4 others 2002 PLC (C.S.) 876; Dalpat Abasaheb Solunke and others v. B.S. Mahajan and others Civil Appeal No.3507-10 of 1989; Berhampur University and another v. Dr. Sailabala Padi AIR 1997 SC 2257; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161; Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others 2004 SCMR 639; Government of Punjab through Secretary, (Services), Services General Administration and Information Department and another v. Muhammad Saleem PLD 1995 SC 396; Michael Supperstone QC and James Goudie QC; Judicial Remedies in Public Law by Clive Lewis and Administrative Law by Sir William Wade ref.

Makhdoom Ali Khan, Attorney-General for Pakistan.

Gul Zarin Kiani, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Dr. Amjad Islam, Director Quaid-e-Azam University, Islamabad for Petitioners.

Respondent in person along with Waseem Sajjad, Senior Advocate Supreme Court.

Date of hearing: 18th October, 2005.

PLCCS 2006 SUPREME COURT 1261 #

2006 P L C (C.S.) 1261

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Saiyed Saeed Ashhad, JJ

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD and others

Versus

Khawaja SHAHID NAZIR

Civil Petition No.1857 of 2005, decided on 27th February, 2006.

(On appeal from the judgment, dated 18-4-2005 passed by Federal Service Tribunal, Islamabad in Appeal No.602(R) C.E of 2002).

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

----S. 4---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S. 11(1)---Phrase, "holding of appointment till further orders"---Connotation---Notification---Interpretation---Civil servant who was working in BS-18 in Evacuee Trust Properties Board, was appointed as Secretary to Evacuee Trust Properties Board vide a notification---Such appointment was as stopgap arrangement and civil servant was to hold the post till further orders---Subsequently Authorities issued another notification and appointed some other person as Secretary---Civil servant being aggrieved of the subsequent order filed appeal before Service Tribunal, which was allowed and subsequent notification was withdrawn---Pleas raised by the Authorities was that the civil servant could no be promoted to the post in question on regular basis rather his appointment was till further orders---Validity---Held Service Tribunal failed to interpret earlier notification in its true perspective by ignoring the clear stipulation contained therein that the civil servant was appointed to the post in question till further orders and from such stipulation it could be inferred without any doubt that it was not a regular appointment in accordance with S.11(1) of Evacuee Trust Properties (Management and Disposal) Act, 1975, and was by way of stopgap arrangement---Phrase "holding of appointment till further orders" meant that the civil servant held the post in question till orders were passed terminating his service-Mere fact that earlier notification also contained another stipulation that the appointment was on the same terms and conditions as were applicable to an officer promoted to BPS-19 post on regular basis would not confer any vested right on civil servant to claim appointment to the post in question---Judgment passed by Service Tribunal suffered from grave and serious illegalities and infirmities-Reversion of civil servant form the post in question to his original position/status as an officer in BS-18 did not suffer from any illegality, irregularity or infirmity---Subsequent notification did not violate any right of civil servant as according to the Service Regulation of the Board, an officer of the Board was not legally entitled to hold the post of Secretary, which was to be filled in by way of appointment and not by way of promotion---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Appeal was allowed.

Abdul Majid Sheikh v. Mushaffe Ahmed and another PLD 1965 SC 208 fol.

(b) Words and Phrases---

----"Holding of appointment till further orders" Connotation.

----S. 11(1)---Evacuee Trust Property Board Employees (Service) Regulations, 1984---Appointment of Secretary to Evacuee Trust Properties Board---Procedure---Promotion of employees of Evacuee Trust Properties Board, under the Evacuee Trust Property Board Employees (Service) Regulations, 1984, has been confined upto BS-18 and the post of Secretary of the Board being in BPS-19 is not a promotion post for such employees.

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

----S. 4---Appeal---Limitation---Principle---When departmental appeal/representation is time-barred, then the service appeal would not be competent.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 rel.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Appeal---Condonation of delay---Scope---Departmental appeal filed by civil servant was barred by limitation but Service Tribunal allowed the appeal---Contention of civil servant was that delay in filing of departmental appeal was deemed to have been condoned by Service Tribunal---Validity--As there was no provision in Removal from Service (Special Powers) Ordinance, 2000, for condonation of delay in filing departmental appeal/representation/review, therefore, contention of civil servant was without any force.

Muhammad Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 27th February, 2006.

PLCCS 2006 SUPREME COURT 1278 #

2006 P L C (C.S) 1278

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

CHIEF SECRETARY PUNJAB and others

Versus

ABDUL RAOOF DASTI

Civil Petition No.664-L of 2003, decided on 2nd May, 2006.

(On appeal from the judgment, dated 18-12-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.75 of 2002).

(a) Civil service---

----Non-participation in inquiry proceedings---Violation of principles of natural justice---Effect---Mere non-participation of a person in inquiry proceedings cannot, under all circumstances, be declared to have amounted to violation of principles of natural justice and consequently fatal to the punitive action, unless it can be shown that some prejudice was caused to the person so condemned.

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

----R. 23---Appointment of' civil servant---Relaxation of rules---Principles and scope---Chief Minister is blessed with the authority to relax rules only in cases of hardship and for "Special Reasons" justifying the same.

----S. 3---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.23---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R. 2(d)---Political appointment---Misconduct---Civil servant was serving as Assistant District Attorney and bypassing all legal formalities, he was directly appointed as Deputy District Attorney by Chief Minister, on the recommendations of Law Minister---Authorities, in exercise of powers under S.3 of Removal from Service (Special Powers) Ordinance, 2000, initiated proceedings against the civil servant and reverted him to the post of Assistant District Attorney---Service Tribunal set aside the order passed by the authorities on the ground that he was directly appointed by competent authority and could not be reverted to the lower post---Validity---Civil servant secured illegal appointment only because he was posted in a district to which Minister in-charge belonged---In manoeuvring such appointment, the civil servant showed contempt not only to the law but also to the rights of his colleagues who stood ahead of him in queue with much longer service---By such conduct, the civil servant also caused injustice to hundreds of others who could have been much better qualified than him and who would have been better entitled to the post in question, if the same had been thrown open to the public to be, filled in through a fair, just and transparent selection by Public Service Commission---Court of. law would never show any sympathy or regard to a person who had shown no regard for others; who had in fact trampled over the rights of others and had enjoyed robbing the same---Bringing extraneous influence on a Minister, or a Chief Minister or on any Government Officer, amounted to "misconduct" as defined by R.2 (d) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which were applicable to the civil servant at the relevant time and that by securing the appointment in the manner in question, the civil servant was guilty of misconduct, which made him liable for punishment, which punishment could have meant even his dismissal from the post of' Assistant District Attorney, even if he had been found entitled to retain that post---Petition for leave to appeal was converted into appeal and judgment of Service Tribunal was set aside---Supreme Court declared that appointment of civil servant as Deputy District Attorney was illegal and of no legal effect having been made and secured in violation of law and for extraneous reasons---Appeal was allowed.

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

----Art. 187---Suo motu powers of Supreme Court---Modification the order passed by authorities---Civil servant got himself appointed for the post in question due to political influence---Authorities, after departmental inquiry, reverted the civil servant to the post on which he was working prior to his appointment in question---Validity---As the civil servant was appointed as Deputy District Attorney by way of initial recruitment, therefore, he could not have continued on the previous post---In discharge of the obligations cast by Art.187, of the Constitution, Supreme Court 'modified the order of authorities to the extent that the civil servant could not be reduced to the rank of Assistant District Attorney, with the result that he would be ceased to be a civil servant with immediate effect.

(e) Civil service---

----Appointment---Principles---Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by those charged with it, honestly, fairly, in a just and transparent manner and in the best interest of public---Individuals so selected are to be paid not out of the private pocket of the persons appointing them but by the people through the public exchequer---Not selecting the best as public 'servants is a gross breach of public trust and is an offence against public, who has a right to be served by the best; it is also a blatant violation of the rights of those who may be available and whose rights to the posts are denied to them by appointing unqualified or even less qualified persons to such posts---Such practice and conduct is highly unjust and spreads a message from those in authority that might is right and not vice versa, which message gets gradually permeated to grass-root level leading ultimately to a society having no respect for law, justice and fairplay---Evil norms ultimately lead to anarchic and chaotic situations in a society---Such likes evil tendencies should be suppressed and eliminated before the same eliminate us all.

M. Aftab Iqbal Chaudhry, Advocate-General Punjab with Imtiaz Ahmed Chaudhry, Advocate Supreme Court and Fayyaz Ahmed, S.O. Law Department, Lahore for Petitioners.

Respondent in person.

Date of hearing: 2nd May, 2006.

PLCCS 2006 SUPREME COURT 1304 #

2006 P L C (C.S.) 1304

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

SARFRAZ AHMED

Versus

GOVERNMENT OF SINDH

Civil Appeal No.1826 of 1997, heard on 10th September, 2006.

Civil service---

----Termination of service---Appellant who was appointed on ad hoc basis as Assistant Director Labour (B-17) for six months, assumed the charge of said post, completed requisite training and thereafter started to perform his duties---Services of appellant were terminated before expiry of said period of six months without assigning any reason and giving an opportunity of hearing to appellant---Vacancy against which appellant was appointed still existed and appellant since date of his appointment, remained in regular service, was being paid regular pay and allowance, so much so G.P. Fund, Group Insurance and Benevolent Funds were also being deducted from his salary---Appellant who had become entitled to be regularized in service like permanent/regular employee, his services could not be terminated.

Water and Power Development Authority v. Abbas Ali Malana and others 2004 PLC (C.S.) 1; Secretary to Government of N.-W.F.P. Zakat Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Director Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

Shabbir Ahmed Awan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Muhammad Sarwar Khan, Addl.A.-G. for Sindh for Respondent.

Date of hearing: 10th April, 2006.

Supreme Court Azad Kashmir

PLCCS 2006 SUPREME COURT AZAD KASHMIR 817 #

2006 PLC(C.S.)817

[Supreme Court (Azad J&K)]

Present: Syed Manzoor Hussain Gilani and Khawaja Shahad Ahmed, JJ

MAQBOOL HUSSAIN

Versus

AJK COUNCIL ISLAMABAD through Secretary and 5 others

Civil Appeal No.116 of 2004, decided on 25th November, 2005.

(On appeal from the order of AJ&K Council Service Tribunal dated 30-9-2004 in Service Appeal No.6 of 2002).

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

---S. 42(11)---Civil service---Promotion---Appeal to Supreme Court---Respondents who initially were appointed as Lower Division Clerks and were promoted after about ten years of their appointment as Upper Division clerks, were promoted as Inspectors, Income Tax Central Excise and Sales Tax in B-11---Appellant, who was directly appointed as Upper Division clerk by method of initial recruitment about four years prior to said promotion of respondents, had challenged their promotion on the ground that he was senior to them as Upper Division clerk---According to Rules regulating appointment to the post of Inspector, Income Tax Central Excise and Sales Tax, ten per cent of posts were reserved for supervisors who were graduates and possessed five years service, while ten per cent for upper Division clerks/Lower Division Clerks who were graduates and possessed five years service---Contesting parties in the case had sought promotion against 10% posts of Upper Division and Lower Division Clerks---None of them possessed five years service as Upper Division clerks, but all of them were graduates, but respondents (promoted) possessed more than five years service as Lower Division Clerks and they had been promoted on account of possessing five years service as Lower Division Clerks---Requirement of Rules regulating the appointment, was that one must possess at least five years service as Lower Division Clerk or Upper Division Clerk---Seniority alone was not the criteria, but length of service as visualized by the Rules, coupled with academic qualifications, was the criteria---Respondents (promoted) were graduates and possessed five years service as Lower Division Clerk and not as Upper. Division clerk, while appellant did not possess the required length of service as he was directly appointed as Upper Division clerk---Respondents could not be deprived of the right of promotion against the posts simply for the reason that they had been promoted to the higher grades, where they did not possess required length of service in that grade, though they did possess required length of service in lower grade for promotion to the present posts---Respondents, held, had rightly been promoted in circumstances.

Dr. Khawaja Mushtaq Ahmad v. Azad Government and 5 others 2002 PLC (C.S.) 1398; Zainal Abedin v. The State PLD 1958 Dacca 167 and 2001 SCR 170 ref.

(b) Civil service---

----Service Tribunal as well as other Courts were to administer the law, which of course included the rules, as those were and not as to what those should have been---If one was aggrieved of the rules for being contrary to any provision of the Constitution or law, the jurisdiction of appropriate constitutional Court could be invoked.

Muhammad Azam Khan, and Mian Sultan Mahmood, Advocates for Appellant.

Ch. Muhammad Afzal Khan Advocate for Respondents Nos.l to 4.

Kh. Attaullah Chak, and Haji Muhammad Ashraf, Advocates for Respondent No.6.

Ex parte for Respondent No.5.

Date of hearing: 22nd November, 2005.