PLCCS 2008 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Service Tribunal
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
N Wfp Service Tribunal
Northern Areas Chief Court
Northern Areas Court Of Appeals
Peshawar High Court
Punjab Subordinate Judicial Service Tribunal
Punjab Service Tribunal
Service Tribunal Nwfp
Service Tribunal Sindh
Supreme Court

Muhammad Aslam Uns for Respondents along with Anwar Mughal, Manager (Legal), as Departmental Representatives.

Date of hearing: 4th January, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 152 #

2008 P L C (C.S.) 152

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Rashid Mahmood Ansari, Members

MUSLIM ABBAS KHAN

Versus

SECRETARY, MINISTRY OF DEFENCE (DEFENCE DIVISION) PAK SECTT., RAWALPINDI CANTT. and another

Appeal No.808(R)(C.S.) of 2004, decided on 6th September, 2007.

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

----S. 13---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3 & 10---Service Tribunals Act (LXX of 1973), S.4---Civil Service Rules, R.465-B---Pre-mature retirement---Removal from service---Appeal---Ex-Pakistan leave granted to appellant, subsequently was extended---Appellant who had gone abroad applied for pre-mature retirement from service under provisions of S.13 of Civil Servants Act, 1973 read with Civil Service Rules, R.465-B---Request of appellant for pre-mature retirement was formally rejected---Appellant having not rejoined his duties after expiry of ex-Pakistan leave, competent Authority issued show-cause notice to appellant and thereafter proceeding ex parte against appellant, imposed major penalty of removal from service on appellant vide impugned 'order---Validity---In absence of any specific rules barring a civil servant from seeking pre-mature retirement, while on ex-Pakistan leave, appellant could seek pre-mature retirement subject to the conditions as laid down in the ESTACODE---Impugned order was set aside, in circumstances.

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

----S. 4---Appeal---Limitation---Starting point of limitation---Limitation was to be reckoned not from the date borne on the impugned order, but from the date of its receipt by the appellant.

Rao Fazal Khan Akhtar for Appellant.

Muhammad Aslam Uns along with Tasleem Ahmed, SAO as Departmental Representative for Respondents.

Date of hearing: 5th September, 2007.

2008 P L C (C.S.) 193

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

Syed SAQLAIN

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chairman and 2 others

Appeal No.529(L)(C.S.) of 2004, decided on 9th July, 2005.

Civil Servants Act (LXXI of 1973)--

----S. 7---Service Tribunals Act (LXX of 1973), S.4---Regularization of service-Appeal---Appellant had claimed regularization of his service as technician with effect from the date he became a permanent employee by operation of law---Appellant who was appointed in November 1994 had been working against the post of a permanent nature---Keeping in view the length of service of appellant, he had become entitled to regularization w.e.f. February, 1995 after completing 90-days period---Appellant who had acquired the status of a permanent workman, was justified in claiming regularization of service from February, 1995 and not from 1-9-2004 the date on which he was regularized.

Asmat Kamal Khan for Appellant.

Gorsi Muhammad Din for Respondents.

Date of hearing: 9th July, 2005.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 323 #

2008 P L C (C. S.) 323

[Federal Service Tribunal]

Before Justice (R.) Mansur Alamgir Qazi and Tariq Farook, Members

SAFDAR MAHMOOD BHATTI

Versus

FEDERATION OF PAKISTAN through Establishment Division, Islamabad and 8 others

Appeal No.173(L)(C.S.) of 2005, decided on 12th January, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appellant had claimed that despite he had legitimate right to be considered along with his colleagues for promotion, was not considered for such promotion because of certain adverse remarks against him---Validity---Alleged adverse remarks having been set aside, no other stigma existed on the service record of the appellant---Appellant though subsequently was promoted, but not from the date when others were considered for promotion and appellant was superseded---Authorities were directed by Service Tribunal to consider case of appellant for ante-dated promotion at the earliest opportunity.

Hafiz Tariq Nasim for Appellant.

Faisal Zafar for Respondents with Faheem Aslam, S.D.O. as D.R.

Date of hearing: 12th January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 328 #

2008 P L C (C.S.) 328

[Federal Service Tribunal]

Before Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members

AZIZULLAH SHAIKH

Versus

FEDERAL INVESTIGATION AGENCY through Director-General Headquarters, Islamabad and another

Appeal No.211(K)C.S of 2005, decided on 13th September, 2007.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), Ss.3-A(2)(b) & 4---Appeal to Service Tribunal---Withholding of promotion for 3 years---Enhancement of penalty---Appellant was proceeded against on allegations of misconduct, lack of supervision and for having failed to perform his duties efficiently---Inquiry Officer, finding appellant guilty of said allegations, recommended that minor penalty of withholding promotion for three years be imposed on appellant---Competent Authority having found the reply to show-cause notice issued to appellant unsatisfactory, enhanced punishment of appellant from minor penalty of withholding promotion to major penalty of compulsory retirement from service---One Member of the Bench of Service Tribunal on appeal, upheld findings of Competent Authority, holding that the Authority was justified in taking serious view of the matter and in enhancing the punishment beyond that recommended by the Inquiry Officer and dismissed appeal---Second Member of the Bench of the Tribunal, modified said major penalty of compulsory retirement awarded by First Member to minor penalty of withholding of promotion for three years---Case, in view of the division of the judgment of the Bench of the Tribunal, was referred to Chairman of the Federal Service Tribunal under S.3-A(2)(b) or Service Tribunals Act, 1973---No direct involvement of appellant was manifested from the record---Chairman of Federal Service Tribunal modified major penalty of compulsory retirement to that of minor penalty of withholding of promotion for 3 years as was imposed by Second Member of the Tribunal---Chairman had found that Inquiry Officer had correctly observed that appellant who was a Shift Incharge at the relevant time was guilty of only negligence, lack of supervision and effective control over his subordinates---No irregular exercise of authority was made by the Inquiry Officer, when he recommended minor penalty of withholding of promotion for 3 years---Punishment of minor penalty of withholding of promotion of appellant for 3 years as awarded by Second Member was found by the Chairman to be in accordance with preponderance of evidence on the record and just and proper in the circumstances of the case, which was also in accordance with the recommendation of the Inquiry Officer---Same was upheld.

Sanaullah Noor Ghouri for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 16th December, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 353 #

2008 P L C (C.S.) 353

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Syed Bilal Ahmed, Members

MUHAMMAD MUNIR KHAN

Versus

ENGINEER-IN-CHIEF E-IN-C'S BRANCH GHQ, RAWALPINDI and 2 others

Appeal No.1663(R)CS of 2005, decided on 13th December, 2007.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Civil Servants (Seniority) Rules, 1993, R.3(c)---Appeal---Promotion, entitlement to---Appellant was superseded due to punishment awarded to him, whereas his junior was promoted---Appellant who though was subsequently promoted after more than one year from the promotion of his junior, had filed appeal with a prayer that he be assigned seniority in terms. of R.3(c) of the Civil Servants (Seniority) Rules, 1993---Validity---Minor penalty, such as censure, would not constitute a bar to promotion---Award of penalty fell within the domain of the Competent Authority to punish rather than Departmental Promotion Committee to interpret it for a differentiated weightage to justify a discrimination---Censure was a minor penalty and the law was that a minor penalty would not stand in the way of promotion---Record of appellant was generally such as would make him fit for promotion when criteria applicable under law was seniority-cum-fitness and the promotion involved was not against a selection post---Respondent had been promoted despite one of the ACRs for the last five years was missing---Said respondent though had a slightly better record, but that was a case of promotion on seniority-cum-fitness and appellant also deserved to be promoted on the basis of his record regardless of the penalty of censure---Appellant's supersession was converted into deferment and authorities were directed to consider promotion of appellant to take effect from the same date and fix his seniority in accordance with R.3(c) of the Civil Servants (Seniority) Rules, 1993.

1986 PLC 228; 1995 PLC 734; 1991 PLC 1195; 2001 PLC 1062; 1990 PLC 62; PLD 1992 SC 144 and 1987 PLC (C.S.) 179 ref

Hafiz Ali Asghar for Appellant.

Javed Aziz Sandhu, Standing Counsel with D.R. Kifatullah, Superintendent for Respondents.

Date of hearing: 5th December, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 358 #

2008 P L C (C.S.) 358

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Muhammad Javed Ashraf Hussain, Members

Capt. (Retd.) KHALID ZAMAN

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 64 others

Appeal No.168(R)(C.S.) of 2004, decided on 29th June, 2007.

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

----S. 4(1)(a)---Civil Servants Act (LXXI of 1973), S.22---Service Tribunals (Procedure) Rules, 1974, R.6---Appeal to Service Tribunal---Maintainability ---Authorities and respondents objected to maintainability of appeal on the grounds; firstly that it was filed before preferring representation before the appropriate Departmental Authority and secondly; that it was not a memorandum of appeal in accordance with Rule 6 of Service Tribunals (Procedure) Rules, 1974 in that the memorandum of appeal had-not been signed or thumb impressed by the appellant---Departmental Secretary vide his impugned order had set aside order passed by the Chairman Board under S.22 of Civil Servants Act, 1973, which Act was silent with regard to redressal afforded to a person like the appellant who was aggrieved on account of decision under S.22 of the Act---Next higher Authority, who passed impugned order was the Prime Minister who figured under S.9 of Removal from Service (Special Powers) Ordinance, 2000 and impugned order having not been passed under said Ordinance, appellant had no forum for the redressal of his grievance, except the Service Tribunal as no legal remedy was available before next higher Departmental Authority---Appeal before Service Tribunal, in circumstances was in order---Regarding second objection that memorandum of appeal had not been signed or thumb impressed by the appellant, it was noted from the record that affidavit accompanying the memorandum of appeal had been duly signed by the appellant as also the rejoinder submitted by him against the objection to the appeal filed by respondents---Lacuna, if any was adequately covered by signing of the affidavit, which was a part of the memorandum of appeal---Taking lenient view by the Service Tribunal, it was held that appeal was not vitiated.

(b) Pakistan Postal Services Management Board Ordinance (CXXVI of 2002)---

----Scheds. I & II---Civil Servants Act (LXXI of 1973), S.8---Compulsory Service (in the Armed Forces), Ordinance, (XXXI of 1971), S.9-A---Service Tribunals Act (LXX of 1973), S.4---Seniority---Entitlement---Appeal to Service Tribunal---Appellant, while holding rank of Captain in Pakistan Army, with the permission of G.H.Q. appeared in Central Superior Services Examination and on qualifying the examination he was allocated to the Postal Group of Civil Service which group he joined after being relieved from Pakistan Army---Appellant submitted representation to Chairman, Pakistan Postal Services Management Board, requesting that on the lines of the benefit of seniority of army service given by the Supreme Court vide its judgment dated 18-12-2002 to a retired captain, he could also be granted similar benefit by assigning seniority in the Postal Group of Civil Service from the date of his joining Pakistan Army with all consequential benefits---Chairman of the Board accepting request of appellant granted him seniority in Postal Group by counting service recorded by him in the Pakistan Army---Secretary of the department, set aside order passed by Chairman against which appellant had filed appeal---Validity---Appellant was 'neither inducted into the Pakistan Army nor retained therein under the Compulsory Service in the Armed Forces Ordinance, 1971---In view of rules governing the seniority of officers of Pakistan Army inducted into civil post, it could be held that relief provided to other retired Captains by the Supreme Court, could not be invoked by appellant in the case---Administrative and financial powers of Chairman, Pakistan Postal Services Management Board, as laid down under Schedules I and II of Pakistan Postal Services Management Board Ordinance, 2002, had made it clear that nowhere said Ordinance or Schedules thereunder, had extended any authority to the Chairman to determine or alter seniority of officers inducted into the Postal Group, consequent to their appointment on the recommendation of Federal. Public Service Commission---Departmental Secretary being principal accounting officer in the Ministry, was the appropriate Authority---Secretary of the department, in circumstances, was competent to set aside the unlawful orders issued by Chairman, Pakistan Postal Services Management Board---Secretary had acted quite correctly under provisions of S.22 of Civil Servants Act, 1973 while setting aside order of Chairman of the Board, whereby he had extended the benefit of seniority to appellant in violation of the powers conferred on him by the Pakistan Postal Services Management Board Ordinance, 2002---Appeal, was dismissed, in circumstances.

Dr. G.S. Khan for Appellant.

Muhammad Shoaib Shaheen for Respondents Nos.4 to 65.

Departmental Representatives Bedar Muhammad Khan, Assistant Superintendent (Law), Pakistan Post, Muhammad Saparas, Section Officer, Ministry of Communications and Shaukat Mahmood, Assistant, Establishment Division.

Date of hearing; 20th March, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 386 #

2008 P L C (C.S.) 386

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Rashid Mahmood Ansari, Members

IQBAL AHSAN ZAIDI

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Cabinet Secretariat, Islamabad and 2 others

Appeal No.1095(R)C.S.) of 2004, decided on 29th September, 2007.

Service Tribunals Act (LXX of 1973)---

----S. 4---Adverse remarks---Expunction of adverse remarks---Appeal to Service Tribunal---Reporting Officer graded the appellant as "very good" in almost all the columns in Part-II (Personal Qualities), III (Attitudes) and IV (Proficiency in job); in section (a) of Part-VI, pertaining to "overall grading", appellant was graded as very good' and in section (b), "Fit for accelerated promotion" and in pen-picture, Reporting Officer described appellant as the hardworking officer with forceful ideas and cooperation who was always effective with updated information pertaining to his Sectoral Projects---Countersigning Officer, however, altered the two gradings each by two steps in Part-VI, overall grading in section (a) of Part-VI was downgraded from "very good" toaverage' and in section (b) from "fit for accelerated promotion" to "not yet fit for promotion" Countersigning Officer, however, made no other change in the A.C.R. of the appellant---Appellant had filed appeal against order of Countersigning Officer alleging that downgrading done by the Countersigning Officer was unwarranted inasmuch as that he had drastically differed with the assessment of the Reporting Officer without giving reason therefor; and that contrary to the rules, no counselling was given to the appellant to improve his performance---Countersigning Officer having given no justification of his disagreement with the Reporting Officer in Part-VI, it could be concluded that downgrading carried out by him was arbitrary and based on whim---Validity---Case of appellant being strong on merits, delay, if any, in filing appeal, was condoned---Downgrading in Part-VI (b) (III) of the A.C.R. "i.e. not yet fit for promotion" was expunged---Downgrading in Part-VI(a)(iv) i.e. "Equals the majority of officers (Average)" in line with the principle of consistency, was also expunged as its retention would be inconsistent with the entries in the rest of the A.C.R.

1995 SCMR 1505; 2001 SCMR 17; 1999 SCMR 2117; 1994 SCMR 722 and Managing Director, Suit Southern Gas Company Ltd. v. Ghulam Abbas and others 2003 PLC (C.S.) 796 rel.

Syed Shahid Hussain for Appellant.

M. Qasim Mirjat, Asstt. A.-G. Sindh for S&GAD, Sindh.

Date of hearing: 26th September, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 394 #

2008 P L C (C.S.) 394

[Federal Service Tribunal]

Before Justice (R) Tanvir Bashir Ansari, Chairman and Saeed Ahmed Zaidi, Member

ASMAT ULLAH KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another

Appeal No.131(P)(C.S.) of 2004, decided on 5th September, 2007.

(a) Interpretation of statutes---

----Mandatory direction' and one which wasmerely directory in nature'---Distinction---Imperative or mandatory enactment was one which was couched in such language as to make the violation of a statute subject to a penalty, whether express or implied---Whenever a statute provided for imposition of penalty as a consequence of its non-compliance, the statue was necessarily to be regarded as mandatory---Where, however, no such penalty was decipherable to be attached to the non-compliance, the enactment would, be considered to be directory only, the substantial compliance with which was considered sufficient.

Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134; Maulana Noor-ul-Haq v. Ibrahim Khalili 2000 SCMR 1305; Ghulam Hassan v. Jamshed Ali and others 2001 SCMR 1001; Mafiziullah v. Manaiullah and others PLD 1963 Dacca 318 and Nasrullah v. The State PLD 2001 Pesh. 152 ref.

(b) Removal from Service (Special Powers) Ordinance (XXII of 2001)---

---Ss. 3, 5, 6, 7 & 10---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 allegation of misconduct and certain irregularities---Inquiry proceedings were commenced against appellant and appellant who. submitted his detailed defence reply, had participated in said inquiry---Subsequently appellant did not appear initially on medical grounds---Record showed that appellant at a later stage of the inquiry deliberately refused to participate in the same; in such circumstances, there was no merit in the contention of appellant that inquiry was held against him ex parte or that the procedure adopted by the Inquiry Officer was violative of the principles of natural justice---Conclusion arrived at by the Inquiry Officer did not appear to be against any established principle of law or natural justice---Proof of alleged irregularities of each charge against appellant was strong enough to warrant the findings of the Inquiry Officer that charges were proved---Entire disciplinary action commencing from the issuance of the fresh charge-sheet and culminating in the impugned order of dismissal, were in accordance with law and were not in violation of any principle of natural justice---Appellant, held, was rightly dismissed from service.

Shah Abdur Rashid for Appellant.

Khalil-ur-Rehman Abbasi, for Respondents along with Abdul Hakeem Rahi, S.O. Estt. Division and Khalid Hussain, Assistant as D.Rs.

Date of hearing: 5th September, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 433 #

2008 P L C (C.S.) 433

[Federal Service Tribunal]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman, Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members

ABDUL RASHEED MEMON

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 3 others

Appeal No.262(K)(C.S.) of 2004, decided on 13th September, 2007.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), Ss.3-A(2)(b) & 4---Compulsory retirement---Appeal to the Tribunal---Disciplinary proceedings were initiated against appellant upon anonymous complaint in which certain allegations of fraud and irregularities were levelled against appellant---Inquiry report revealed that charges levelled against appellant were partially proved and appellant was removed from service---One member of Service Tribunal, on appeal, modified order of removal from service, awarded minor penalty of "censure" and directed that the appellant be reinstated in service from the date of passing of impugned order with all back and consequential benefits---Second Member of the Tribunal, however, upheld major penalty of removal from service imposed on appellant, holding that allegations levelled against him which were very grave having been proved by the inquiry committee against appellant, he deserved no leniency---Chairman of the Service Tribunal, on reference, however, modified penalty of removal/dismissal from service imposed on appellant to compulsory retirement along with any admissible benefits permissible in law---Principal complainant did not record his statement before the Inquiry Committee, but the evidence that was brought on the record before the Inquiry Committee was adequate and sufficient for the Committee to uphold the charges against appellant---Charges against the appellant were indeed grave and serious and had the effect of shaking public confidence in the Scheme of the Department---Inquiry Committee had recommended penalty of compulsory retirement from service, that punishment would meet the requirement of law, equity and good conscience and enhancement of said penalty, was violative of principle of natural justice---Recommendation made by the Inquiry Committee was upheld with the result that the penalty of dismissal, from service as imposed through impugned order was modified to compulsory retirement---Such order of the Tribunal would be within the meaning of S.3-A(2)(b) of Service Tribunals Act, 1973.

1984 SCMR 451; PLD 1981 SC 176;-PIA 2003 Tr.C. (Service) 66; 1996 SCMR 841; 2003 SCMR 1126; 2001 SCMR 934; 2001 PLC (C.S.) 270; 2005 SCMR 678 and 2004 PLC (C.S.) 598 ref.

Khalid Imran for Appellant.

Asif Hussain Mangi, Standing Counsel along with Departmental Representative Imam Bukhsh Chakrani, NSO, Hyderabad for Respondents.

Date of hearing: 16th December, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 458 #

2008 P L C (C.S.) 458

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

GHULAM RASOOL PANWAR

Versus

FEDERAL INVESTIGATION AGENCY (F.I.A.) through Director-General Headquarters, Islamabad and another

Appeal No.233(K)(C.S.) of 2006, decided on 8th December, 2007.

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of compulsory retirement---Appeal to Service Tribunal---Major penalty of compulsory retirement was imposed on appellant after issuing him show-cause notice and holding inquiry against him on charges of negligence/inefficiency---Inquiry Officer found that appellant was negligent in the performance of his duties on the dates when incidents of illegal immigration took place---Inquiry Officer further found that appellant was required to be vigilant and that he had failed to come up to the requirements of such vigilance---Inquiry Officer, however, had mentioned that none of the witnesses had attributed any ulterior motive on the part of appellant; or that appellant had made any financial gain---Inquiry Officer had clearly mentioned in his findings that appellant could be held responsible for negligence and inefficiency and that no mense rea was on his part---Inquiry Officer, in circumstances recommended to the Competent Authority that appellant could be awarded any of the minor penalties under the Removal from Service (Special Powers) Ordinance, 2000-Validity-None of the prosecution witnesses had attributed ulterior motive or any motive of obtaining monetary benefit on the part of appellant---Imposition of major penalty of compulsory retirement from service was harsh---Punishment of compulsory retirement, was directed to be reduced to that of reduction in rank from Sub-Inspector (S.-I.) to Assistant Sub-Inspector (A.S-I.) for a period of three years---Appellant was ordered to be reinstated in service from the date of compulsory retirement.

Abrar Bukhari for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents along with Department Representative Iftikhar Ahmed, Head Constable.

Date of hearing: 31st October, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 465 #

2008 P L C (C.S.) 465

[Federal Service Tribunal]

Before Justice (R.) Ch. Muhammad Arif, Chairman and Justice (R.) Mansur Alamgir Qazi, Member

Dr. AZAM SARFRAZ

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 3 others

Appeal No.552(L)(C.S.) of 2001, decided on 23rd November, 2006.

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

----Ss. 3 & 5---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 allegation of misconduct---Some important documents had been deliberately destroyed and the only inference which could safely be drawn therefrom was that appellant was involved in that situation upto his neck; and the store-keeper and contractor were in collusion with appellant causing huge loss to government exchequer---Wilful acts, amounting to misconduct as also bad intentions, could be validly assumed from their conduct---Appellant in the present case had not behaved in a decent, responsible and sincere manner which was the hallmark of the civil service---By his own words and those of the witnesses recorded during the course of inquiry proceedings, a web had been woven around the appellant and he had none other to blame, but himself for that---Appellant had knowingly and wilfuly chosen that path and committed himself to such a predicament unlike a civil servant of the Islamic Republic of Pakistan---Appeal was dismissed.

1993 SCMR 603; 2001 SCMR 1566; 2002 SCMR 433; 2000 PLC (C.S.) 136 and Jehan Dad Ahmed v. Central Board of Revenue 2000 SCMR 435 rel.

Hafiz Tariq Nasim for Appellant.

Faisal Zafar for Respondents with Zahoor Ahmad, Section Officer (Admn.) Population Welfare Department Punjab as D.R.

Date of hearing; 21st November, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 482 #

2008 P L C (C.S.) 482

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Syed Bilal Ahmed, Members

MUHAMMAD IDREES MAHSUD

Versus

MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN through Secretary and 3 others

Appeal No.426(R)(C.S.) of 2004, decided on 29th November, 2007.

Civil Servants Act (LXXI of 1973)---

----S. 5---Service Tribunals Act (LXX of 1973), S.4---Civil Service Regulations, Arts.357(a), 418(b), 420 & 480(b)---Appointment---Counting-of service rendered in previous department---Appellant joined Pakistan Air Force as Flight Lieutenant and was granted Special Purposes Short Service Commission---Subsequently on request of appellant himself he was selected as Section Officer by Federal Public Service Commission---Appellant thereafter tendered resignation for joining his new appointment and he assumed the charge of the post of Section Officer in Office Management Group---Appellant applied for the counting of P.A.F. Service in his new post of Section Officer, but his application was not accepted holding that appellant could not be entitled to any terminal benefits as an officer who was permitted to resign his Commission would not be granted any pension or gratuity---Contention of appellant was that his resignation from P.A.F. was meant to take up another appointment as Section Officer in which his service would be counted for pension and in circumstances it was not resignation of the public service for the purpose of pension in terms of Art.418(b) of Civil Service Regulations, which stipulated that resignation from service to take up another appointment in which the service would count for pension, was not resignation of the public service for the purpose of pension---Validity---Resignation to join a new post was not a resignation to disentitle an official from the protection of pay in the last job---Appellant was granted N.O.C. for the offer of appointment as Section Officer and also that his resignation was accepted for the purpose of joining his new assignment by the P.A.F. Authorities---As both elements of service in the P.A.F. and in the office of Management Group constituted service under the Government of Pakistan and the pension for both was paid from the same source i.e. civil estimates, no exclusive liability by the Air Force was accordingly contemplated in that regard---Accepting appeal concerned authorities were directed by the Service Tribunal to take necessary action for a revised pay fixation as well as counting of the service rendered by the appellant in P.A.F. for the purpose of qualifying for pension.

1996 PLC (C.S.) 832; 1994 PLC (C.S.) 4000; 1996 PLC (C.S.) 856; 1985 SCMR 1995 and 2004 PLC (C.S.) 1375 ref.

Abdul Rahim Bhatti for Appellant.

M. Aslam Uns, Standing Counsel for Respondents.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 486 #

2008 P L C (C.S.) 486

[Federal Service Tribunal]

Before Justice (R.) Tanvir Bashir Ansari, Chairman and Ch. Muhammad Ilyas, Member

IMTIAZ AHMED

Versus

FEDERAL LAND COMMISSION

Appeal No.20(R)(C.S.) of 2007, decided on 18th October, 2007.

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Penalty of compulsory retirement was imposed upon appellant after issuing him show-cause notice, but without holding a full-fledged inquiry and without giving an opportunity of personal hearing to him on allegation of absence from duty---Departmental Appellate Authority, enhanced the punishment from compulsory retirement to dismissal from service---Law had provided for two specific procedures; when allegations consisted of disputed questions of fact which were alleged on the one side and denied on the other---Was incumbent upon the Departmental Authorities to hold a full-fledged inquiry---Where, however, the misconduct was apparent on the face of the record, as in the case of absence from duty of appellant, it was sufficient to follow shorter show-cause procedure in order to give an opportunity to the official to explain the alleged lapse---No formal inquiry was necessary to establish absence from duty---Service record had revealed that appellant remained absent from duty without authority on a large number of occasions and at certain times for very long period of 206 days, besides other substantial absences from duty---Competent Authority, in circumstances had taken a justifiable cognizance of the gravity of misconduct of appellant while imposing the major penalty of compulsory retirement from service-Appellate Authority, however, without giving an opportunity of hearing to the appellant for any proposed enhancement of punishment, proceeded to impose the major penalty of dismissal from service through impugned final appellate order---Validity---Departmental Authority ought to have given an opportunity of a meaningful hearing to appellant, if it was proposed to enhance the penalty---Such an opportunity against enhancement of punishment was not given to the appellant---Such lacuna offended against the principles of natural justice which rendered the enhancement of punishment void and of no legal effect---Appeal was partly accepted inasmuch as while upholding the .order of compulsory retirement from service, the order of dismissal from service was set aside---Appellant would be entitled to such service benefits as were admissible for compulsory retirement.

1990 PLC (C.S.) 5; Atta-ur-Rehman v. I.-G.P.2001 TD (Service) 228; 2007 PLC (C.S.) 816; 2002 PLC (C.S.) 395 and 1986 PLC (C.S.) 74 rel.

Abdul Rahim Bhatti and Abdul-Rashid Saqib for Appellant.

G.S. Khan for Respondents with Assad Mahmood Qasi, Assistant Legal Advisor D.R.

Date of hearing: 17th October, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 492 #

2008 P L C (C.S.) 492

[Federal Service Tribunal]

Before Justice (R.) Tanvir Bashir Ansari, Chairman and Ch. Muhammad Ilyas, Member

KHALID MEHMOOD and 9 others

Versus

INSPECTOR-GENERAL OF PAKISTAN RAILWAYS POLICE, LAHORE and 2 others

Appeals Nos.1337(R)(C.S.) to 1346(R)(C.S.) of 2005, decided on 3rd December, 2007.

Police Order (22 of 2002)---

----Arts. 10(3) & 112---Pakistan Railways Police Rules, 1980, R.13.3---Service Tribunals Act (LXX of 1973), S.4---Termination of services of probationers---Appeal---Appellants who joined Pakistan Railways Police as probationers A.S.-Is., were deputed/nominated for taking part in the Probationer Class Course of A.S.-I.---Appellants completed the course, but failed in the examination and their services were terminated---Standing Order 14 issued under Art.10(3) of Police Order, 2002, A, B, C, Courses were to be undergone after the successful completion of the relevant Probationary School Course---Appellants had not successfully completed courses A & B---Contention of appellants that the order of termination could not have been passed without show-cause notice, was repelled---Directly recruited A.S.-Is. after their recruitment had to qualify the probationers' (Intermediate School Course) failing which their services were liable to be terminated under R.13.3 of Pakistan Railways Police Rules, 1980---Non-qualifying of said probationers' course would itself be a ground for an action under R.13.3 of Pakistan Railways Police Rules, 1980---No show-cause notice in such a situation was necessary as passing of the probationer course was a sine qua non of being confirmed in service---Appellants, however were relieved with inordinate delay to join probationer class course, which delay had seriously affected their chance of successfully passing the course on account of paucity of time for preparing for the same---Such neglect on the part of the authorities, in nominating appellants with considerable delay, could not be ignored as an attributing factor to the poor showing of appellants in the probationer course---Appellants as a special case were entitled to one repeat chance to appear in the subjects in which they had failed---Order of termination of service, in circumstances was passed without lawful authority and was set aside---Appellants would be reinstated with the direction to give them one chance to repeat the test of papers in which they stood failed.

M. Shoaib Shaheen for Appellants.

Syed Mumtaz Mazhar Naqvi and Tajammal Hussain for Respondents with Atta Ullah, P.S.I. and Akbar Khan Jatoi, P.I. as D.Rs.

Date of hearing: 27th November, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 503 #

2008 P L C (C.S.) 503

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

SIKANDAR ALI

Versus

FEDERATION OF PAKISTAN through Divisional Superintendent, Pakistan Railways, Sukkur and others

Appeal No.131(K)(C.S.) of 2004, decided on 13th November, 2007.

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of reduction in time scale---Appeal---Appellant, who served for 15 years as Fireman, was proceeded against on charges of oil theft from tank wagons-Show-cause notice was issued to appellant---Penalty of reduction in time scale by 3 steps for three years and recovery of amount was imposed on appellant---Appellant was in B.S.-6 and only an officer in B.S.18 could act as the competent Authority in the case of appellant, but penalty was imposed on appellant by Assistant Mechanical Officer who was not a B.S.18 officer---Impugned order was void ab initio, in circumstances---Authority had proceeded against appellant on the basis of fact-finding inquiry, but not on a proper inquiry---Inquiry officer had simply recorded the statements of the employees and not provided appellant an opportunity to cross-examine witnesses which was a serious infirmity---Competent Authority did not hold the proper inquiry, even after the allegations were vehemently denied by the appellant---No evidence was on record to the effect that appellant was provided a copy of the inquiry report to prepare appropriate defence---Such infirmities had seriously infringed the rights of appellant---Impugned order was set aside---Issues involved in the case being of a serious nature, option of re-inquiry could not be foreclosed, just because the department's case had been turned down on the basis of legal technicalities---Case was remanded to the department with direction that they could hold de novo disciplinary proceedings against appellant on the same charge within specified period.

Alamgir v. Divisional Forest Officer 1993 SCMR 603; N.B.P. v. Punjab Labour Appellate Tribunal 1993 SCMR 105; Zonal Head of National Bank of Pakistan v. Punjab Labour Appellate Tribunal PLD 1996 SC 200; 1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222 and 1985 PLC (C.S.) 245 rel.

M.A. Hakim for Appellant.

Muhammad Latif Saghar for Respondents.

Date of hearing: 3rd November, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 517 #

2008 P L C (C.S.) 517

[Federal Service Tribunal]

Before Justice (R.) Tanvir Bashir Ansari, Chairman, Saeed Ahmed Zaidi and Syed Bilal Ahmed, Members

Flt. Lt. FARRUKH RASHID

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another

M.P. No.550 of 2007 in Appeal No.1410(R)(C.S.), decided on 14th January, 2008.

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

----Art. 212---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Application for implementation of judgment of the Tribunal---Maintainability---Petitioner whose services were terminated, filed appeal before service Tribunal and the Tribunal setting aside order of termination directed authorities to reinstate petitioner in service with effect from the date of impugned order with all consequential benefits---Petitioner had filed petition before Service Tribunal for implementation of its judgment---Said petition was objected to by the authorities contending that petition was not maintainable as the Tribunal, after deciding appeal on merits, had no jurisdiction to entertain application for implementation of its judgment as Tribunal, after deciding case had become functus officio---Validity---When an administrative court or Tribunal was empowered to pass or make order it also bad the power to implement and/or execute said judgments, decrees or orders--Administrative courts or Tribunals would be fully competent to exercise power as detailed in O.XXI C.P.C. in the matters relating to execution of judgments, decrees or orders---Administrative courts or Tribunals enjoyed full powers to implement and execute all its judgments and orders---Objection of authorities was overruled, directing to implement judgment in question and reinstate petitioner with effect from date of impugned order with all consequential benefits within specified period.

Abdul Hafeez Abbasi v. Managing Director, PIAC 2002 SCMR 1034; Ch. Sadiq Ali (Retd.) Assistant Engineer/S.D.O., P.W.D v. The Chief Secretary, Azad Jammu and Kashmir Government and another PLD 1996 SC (AJ&K) 29; Malik Fazal Abbasi v. Secretary to the Government of Punjab, Excise and Taxation Department and 2 others 2003 PLC (C.S.) 1186; Zahooruddin Sheikh v. Pakistan Atomic Energy Commission PLJ 2004 Tr.C. (Service) 183; Ahmad Nawaz Khan v. Senior Accounts Officer (Admit.) Pakistan Railways 1989 PLC (C.S.) 398; Masood Ahmed Changwani v. Secretary, Establishment Division and others 1999 PLC (C.S.) 443; Abdul Razzaq and another v. Senior Member, Board of Revenue, Punjab, Lahore 2006 TD (Service) 63; Messrs Yousuf Sons and another v. Muhammad Khalid and others PLD 2005 Kar. 316; Muhammad Yousuf v. Divisional Superintendent, Pakistan Railways 2002 SCMR 663; Syed Imran Raza.s Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Lahore 1996 SCMR 645; and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 ref.

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

----Ss. 2(b), 3, 4 & 5---Constitution of Pakistan (1973), Art.212---Powers and jurisdiction of Service Tribunal---Exercise of powers by Service Tribunals, both at the Federal as well as Provincial level had been established under Art.212(1) of the Constitution to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who were or had been in the service of Pakistan including disciplinary matters---Service Tribunals were vested with vast powers to grant full redress and to do complete justice to an aggrieved party---Jurisdiction of all other courts or Tribunals was expressly ousted in respect of any matter to which jurisdiction of the Administrative court or Tribunal extended---In, order to give effect to the mandate as enshrined in Art.212 of the Constitution, Civil Servants Act, 1973 and the Service Tribunals Act, 1973 were promulgated by the appropriate legislatures for the constitution and functioning of the Federal as well as the Provincial Tribunals respectively---Tribunals had not only been vested with vast overwhelming powers in deciding an appeal before it, but it had also been conferred with the powers of a civil court---Nothing existed in S.5 of Service Tribunals Act, 1973 to limit or curtail the powers of the Tribunal to any extent whatsoever---Exclusive jurisdiction would necessarily entail the inherent power of doing complete justice. from the commencing of the lis before Tribunal upto its logical conclusion i.e. the practical implementation/execution of its judgment having the full backing of powers of execution as were vested in a civil court---Any other interpretation of the powers of the Tribunal which would have a diminishing effect, would be contrary to the intendment of exclusivity of jurisdiction of the Tribunal envisaged by the Constitution---Section 5(2) of Service Tribunals Act, 1973 provided that Service Tribunal would be deemed to be a civil court and have the same powers under the Code of Civil Procedure.

Abdul Rahim Bhatti for Petitioner.

M. Aslam Uns, Federal Counsel for Respondents along with Abdul Hakim Rahi, S.O. Establishment Division as D.R.

Date of hearing: 14th January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 537 #

2008 P L C (C.S.) 537

[Federal Service Tribunal]

Before Justice (R.) Tanvir Bashir Ansari, Chairman and Saeed Ahmed Zaidi, Member

ABDUR RASHID

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, MULTAN and another

Appeal No 464(R)(C.S.) of 2004, decided on 1st September, 2007.

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---Service Tribunals Act (LXX of 1973), S.4--- Pakistan Railways Personnel Manual, Paras.406 & 704---Revised Leave Rules, 1980, R.9---Seniority and promotion---Determination of---Appeal to Service Tribunal---Appellant had assailed the seniority list of T.C.R., Grade-II whereby respondent was placed at S.No.3 while he had been shown at S. No.22---Appellant and respondent were recruited as T.C.R., Grade-1 after having passed prescribed course and as per copy of the result, appellant was shown senior to respondent according to the merit list---Appellant, however availed leave without pay for one year, but after availing said leave he did not resume his duty and remained absent without leave or authority for a further period of over 4-1/2 years; during that period of his unauthorized. absence, appellant incurred the censure of his service under provisions of Para.704 of Personal Manual read with Rule 9 of Revised Leave Rules, 1980---During the subsistence of order relating to the ceasing of the service of appellant the case of respondent was taken up for promotion to T.C.R., Grade-II---Record established that appellant was in fact not in service when respondent was considered for promotion and when he was actually promoted upon the recommendation of Departmental Promotion Committee---Subsequent withdrawal of the order of ceasing of service of appellant after regular promotion of respondent, would be of no avail to appellant---Respondent, in circumstances, was rightly promoted as T.C.R., Grade-II on regular basis.

Province of the Punjab through the Secretary, Service and General Administration v. Syed Muhammad Ashraf and 1973 SCMR 304 and Government of N.-W.F.P. and others v. Buner Khan and others 1985 SCMR 1158 rel.

Abdur Rehman Siddiqui for Appellant.

Shaista Altaf for Respondents.

Date of hearing: 1st September, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 565 #

2008 P L C (C.S.) 565

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

SULTAN KHALID MASOOD KHATTAK

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence and another

Appeal No.168(K)(C.S.) of 2003.

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

----Rr. 4(1)(b)(iv), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Penalty of dismissal from service was imposed upon appellant after charge-sheeting him and holding inquiry against him on allegations of negligence and commission of irregularities in auction of plots---Appellant had rendered services of 28 years with unblemished record---Enquiry officer had misread evidence and came to the wrong conclusion in respect of responsibility of appellant in the matter of allotment of plots through auction---Authorities had not attributed corruption to the appellant and no adverse report was made against him in his long service career---Auctions of plots in question were held before posting of appellant and bids were accepted by the Cantonments Board by resolution and the prices were approved by the Board which were deposited by the bidders---Such facts had shown that all vital steps of auction of plots and the transaction took place much before appellant took over his charge---No liability in that respect fell on the shoulders of appellant---No evidence relating to the illegal gratification, embezzlement etc. was available against appellant---Only adverse conclusion that could be drawn in the disciplinary proceedings, was that having taken notice of extensive bungling, appellant should have exercised abundant caution and had personally verified the cases; however a single lapse in a long service career should-not be allowed to bring blot on a spotless career of the appellant---Impugned order was set aside and appellant was reinstated with effect from the date of his dismissal from service with all back-benefits.

Hafiz Abdul Baqi for Appellant.

Asif Hussain Mangi, Standing Counsel.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 576 #

2008 P L C (C.S.) 576

[Federal Service Tribunal]

Before Justice (R.) Tanvir Bashir Ansari, Chairman and Syed Bilal Ahmed, Member

RASHID AKHTAR

Versus

SECRETARY, M/O FOREIGN AFFAIRS, ISLAMABAD and another

Appeal No.644(R)(C.S.) of 2004, decided on 24th January, 2008.

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

----S. 3---Civil Servants Act (LXXI of 1973), S.13---Service Tribunals Act (LXX of 1973), S.4---Misconduct---Dismissal from service---Appeal---Voluntary retirement---Penalty of dismissal from service was imposed on appellant as he absented himself from duty without lawful authority---Appellant, who was directed to join duty at the headquarter when his application for grant of extraordinary leave for five years was refused instead of complying with directions of the Authority sought retirement from service---Request of appellant for voluntary retirement from service was not maintainable as a civil servant could seek voluntary retirement after completion of 25 years qualifying service, whereas appellant had not completed said period of 25 years of qualifying service---Relief of voluntary retirement could not be granted to appellant, in circumstances---Appellant being guilty of misconduct for unauthorized absence, his appeal was dismissed.

Jehangir Khan Jadoon for Appellant.

Javed Aziz Sandhu for Respondents with Sajid Hussain, Assistant, D.R.

Date of hearing: 22nd January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 593 #

2008 P L C (C.S.) 593

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

SHAH NAWAZ SAHETO

Versus

DEPUTY POST MASTER GENERAL/ APPELLATE AUTHORITY and another

Appeal No.132(K)C.S. of 2005, decided on 9th January, 2008.

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

----Ss. 3(1)(b), 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Penalty of removal from service was imposed on appellant after issuing him show-cause notice, but without holding inquiry against him on charge that he misappropriated renewal fee realized by issuing fake P.T.-24 receipt which involved amount of Rs.54,815---Show-cause notice was issued on the basis of the report of Vigilance Team which report was verified by two Members Committee---Appellant, however, was not associated with proceedings of the verification carried out by the said two Members, Committee---Validity---No formal/regular inquiry having been held, proceedings of the two Members Committee could not be a substitute for regular inquiry proceedings---Matter involved was alleged misappropriation of renewal fee from licence-holders, it was therefore, appropriate that at least some of the licence holders were examined, but that had not been done in the case---When charges were contested by appellant, holding of regular inquiry was mandated, but no regular inquiry was held---Impugned order was set aside and appellant was directed to be reinstated in service from the date of his dismissal.

PLD 1985 SC 134; PLD 1994 SC 222; 1993 SCMR 603 and 1440; 1997 PLC (C.S.) 817 and 873; PLC 1971 SC 1241 and PLD 1972 SC 271 rel.

Ansari Abdul Latif for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents along with Departmental Representative Malik Sooba Khan, Divisional Superintendent, Nawab Shah.

Date of hearing: 27th November, 2007.

2008 P L C (C.S.) 648

[Federal Service Tribunal]

Before Justice (R) Tanvir Bashir Ansari, Chairman and Zaheer Ahmed, Member

PANAH ALI JUMANI

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 3 others

Appeal No.17(Q)C.S. of 2006, decided on 1st December, 2007.

Civil Servants Act (LXXI of 1973)---

---Ss. 8 & 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Respondent, despite being junior to appellant, superseding him, was promoted---Appellant earned promotion first from BS-17 to BS-18 and then from BS-18 to BS-19 in the order of merit---Appellant, as Superintending Engineer in BS-19, earned two very good' and sevengood' A.C.Rs. and was never rated as 'average' or `below average'. in BS-19---Appellant had also been admittedly put in the qualifying service in the respective grades necessary for promotion to the next higher grade---Appellant had crossed the eligibility threshold having secured quantification score of 71---Character traits of the appellant also reflected positive trend and did not indicate any negative element---Appellant was never subjected to any disciplinary proceedings as per record and had also secured 56% result of NIPA as against 54% obtained by the respondent---Only factor which tilted the balance in favour of his junior (respondent) was the quantification score of 72 as against the score of 71 of the appellant which according to the Central Selection Board, was sufficient to out-weigh the factor of seniority extending in favour of appellant---Validity---Held, that was not a sufficient consideration for the supersession of the appellant---Seniority was an element that would inhere in all civil servants and was an inalienable right for being considered for promotion, unless taken away by the existence of some tangible negative factor existing against him---No such factor existed which could militate against such right of appellant---Seniority was an unquantifiable factor, but it certainly would imply the maintenance of good performance consistently over a longer period of time when compared with his junior counterpart---Seniority factor must form an integral feature while calculating or determining the 'comparative' excellence or merit---Mere placing of name of an official higher in the seniority list in the panel to be considered for ,promotion, was not meaningful consideration of the factor of seniority---If seniority was not to be given due weightage, it would reduce the exercise of a mechanical feature only---Supersession of appellant was converted into deferment and authorities were directed to consider case of promotion of appellant in accordance with law.

M. Shoaib Shaheen for Appellant.

M. Aslam Uns for Respondents along with Rashid Sohail, S.O. Establishment Division, Syed Naveed Raza, Assistant, PWD and Abdus Saboor, Assistant as Department Representative.

Date of hearing:- 1st December, 2007.

2008 P L C (C.S.) 707

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

GHULAM NABI

Versus

PAKISTAN RAILWAYS

Appeal No.299(K)(C.S.) of 2005, decided on 4th February, 2008.

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

----Ss.3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of compulsory retirement from service--Appeal---Appellant, who was compulsorily retired from service, had asserted that he had duly submitted his departmental appeal within 30 days of impugned order, whereas issue of submission of said appeal within time was disputed by the Department---Appeal concerning imposition of major penalty of compulsory retirement from service on the basis of past punishment, bad service record and not enjoying good reputation, needed consideration---Appeal was admitted subject to all just and legal exceptions including limitation.

2006 PSC 1651 rel.

Sanaullah Noor Ghouri for Appellant.

Nemo for Respondents.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 709 #

2008 P L C (C.S.) 709

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

SALEEM AHMED KHAN

Versus

G.M. (OPERATIONS), PAKISTAN RAILWAYS, LAHORE and 2 others

Appeal No.213(K)(C.S.) of 2003, decided on 21st February, 2008.

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

----Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4--Removal from service---Appeal---Major penalty of removal from service was imposed upon appellant after issuing him show-cause notice, but without holding regular inquiry against him on charges of gross misconduct, inefficiency and corruption---Appellant having denied allegations against him, it was incumbent upon the Authority to hold proper inquiry to establish the charges against him---Authority also could not prove that personal hearing was afforded to appellant before imposing major penalty upon him which in itself was a violation of the mandatory requirement of the procedure---Competent Authority had dispensed with inquiry under subsection (4) of S.5 of Removal from Service (Special Powers) Ordinance, 2000, but no reason had. been recorded for such dispensation---Authority had proceeded to impose major penalty of compulsory retirement from service on appellant in an arbitrary manner without caring to establish the charges through a proper inquiry which could afford opportunity of proper defence to appellant---Impugned order of imposing penalty upon appellant was set aside---Authority, however would be within its rights to hold a proper/formal inquiry, which could be completed within six months---Question of back benefits to the appellant would depend on the outcome of said inquiry.

1997 PLC (C.S.) 817=1997 SCMR 1543; 2002 PLC (C.S.) 960=2002 SCMR 1004; 2002 SCMR 57; 2003 PLC (C.S.) 395; 2003 PLC (C.S.) 514; 1997 PLC (C.S.) 817/873; 2005 PLC (C.S.) 1555; 1986 PLC (C.S.) 419; 2001 PLC (C.S.) 210; 2001 SCMR 934; 2002 SCMR 1034=2002 PLC (C.S.) 1083; 2003 PLC (C.S.) 365 and 2003 PLC (C.S.) 589 rel.

Sanaullah Noor Ghouri for Appellant.

Latifur Rehman Sawari for Respondents.

Date of hearing: 31st: January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 722 #

2008 P L C (C.S.) 722

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD AKBAR SARKI

Versus

DIRECTOR-GENERAL (FIA) and another

Appeal No.22(K)(C.S.) of 2002, decided on 12th October, 2006.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of removal from service---Appeal---Appellant who was serving as Sub-Inspector, was proceeded against on allegation of smuggling and stocking liquor in the record room---Inquiry was held against appellant and Inquiry Officer held the appellant to be a suspected person and recommended minor penalty of withholding of two increments, but the Director General FIA, imposed major penalty of removal from service upon appellant---Inquiry report had revealed that no evidence was available to connect appellant with the alleged charge---Prosecution failed to produce a single witness who had seen appellant carrying/placing the bottles of whisky in the store---Competent. Authority, in utter disregard to the recommendation of the Inquiry Officer had enhanced the penalty to removal from service---Appellant was held guilty only on suspicion---Assumptions/presumptions, however strong, could not take place of the proof---Even the Inquiry Officer was not justified to recommend minor penalty, unless it was proved beyond any reasonable doubt that appellant was guilty of the commission of alleged offence---Infliction of major penalty of removal from service on appellant by the competent Authority without recording any plausible and cogent reason, was totally against law---Competent Authority, did not have unfettered powers; it could not enhance penalty at its own whims without giving due regard to the Rules---Principle of 'audi alteram partem' impliedly formed part of the law; such principles, were to be observed not only by the courts, but also by Executive and Administrative authorities---Accused civil servant deserved to be exonerated from the charge, if not proved beyond doubt---Dictates of justice demanded that appellant, in such circumstances, should have been exonerated rather than imposing upon him a major penalty like removal from service---Impugned order was set aside with direction to authorities to reinstate appellant from the date of his removal from service--Intervening period would be treated as leave of any kind that could be due to him.

2002 TD (Service) 358; 2003 PLC (C.S.) 1496; 1983 PLC (C.S.) 790; 2002 SCMR 1034; 1987 PLC (C.S.) 844; 2001 PLC (C.S.) 329 and 1986 PLC (C.S.) 20 ref.

(b) Maxim---

----Audi alteram partem, principle of---Such principle, was a mandatory provision of law---Nobody should be condemned unheard, is a principle which plays a significant role in deciding all disputed matters, whether before judicial or quasi judicial forums.

Sanaullahr Noor Ghauri for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 12th September, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 729 #

2008 P L C (C.S.) 729

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

RAWAT ALI JAMIL

Versus

SECRETARY, MINISTRY OF INFORMATION AND MEDIA DEVELOPMENT, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Appeal No.46(K(C.S.) of 2003, decided on 14th March, 2006.

Civil Servants Act (LXXI of 1973)---

----S. 11-A---Fundamental Rules, F.Rr.22, & 22-A---Service Tribunals Act (LXX of 1973), S.4---Declaring civil servant as surplus---Absorption in other department---Entitlement to pay and allowances etc.---Appeal to Service Tribunal---Appellant, who had been serving in BS-16, was declared surplus and subsequently was given an appointment in tote Pakistan Railways in BS-11 as no post of BS-16 was available in Pakistan Railways in which he could be absorbed and appellant had voluntarily accepted that post---Plea of appellant was that under S.11-A of Civil Servants Act, 1973 and F.R.22-A pay drawn by him in BS-16 was protected, but authorities had violated said provisions of law by not fixing his pay accordingly---Validity---Appellant had himself voluntarily accepted the lower post in BS-11 and fixation of his pay in BS-11---Nothing was on record to show that appellant was compelled to accept a lower post in BS-11 instead of BS-16---Counsel for authorities had not disputed question of protection of last pay of BS-16 as drawn by appellant---Plea of authorities however was that under F. R.22 it was the substantive pay of appellant which had to be protected and that had been done and that House Allowance and Conveyance Allowance had not been included in the substantive pay in the pay fixation statement--Appellant would be entitled to House Allowance and Conveyance Allowance in his present post of BS-11---Since substantive pay had already been protected by the authorities, appeal by appellant was disposed of with direction to the authorities to reconsider the case of difference of House Allowance and Conveyance Allowance of appellant in accordance with the relevant rules/directions of the government.

Sanaullah Noor Ghouri for Appellant with Appellant.

Raja Shams-uz-Zaman for Respondents.

Date of hearing: 14th March, 2006.

2008 P L C (C.S.) 766

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

Rana MUHAMMAD SIDDIQ

Versus

CHAIRMAN PAKISTAN STEEL, KARACHI and 2 others

Appeal No.8(K)(C.E.) of 2003, decided on 17th June, 2006.

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

----Rr. 3(1)(b) & 4(1)(b)(i)---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalty of reduction to lower post---Conversion of penalty---Appeal---Penalty of reduction to lower post, was imposed upon appellant on allegation of obtaining copies of official notings pertaining to his appeal unauthorizedly---Said allegation, no doubt constituted misconduct on part of appellant, but it was a petty misconduct---Considering the petty nature of the misconduct, penalty imposed on appellant was reduced to lower stage in time scale for one year---Intervening period would be treated as leave of any kind due to appellant.

Sanaullah Noor Ghauri for Appellant.

Abdul Mannan Bhatti, Law Officer D.R. for Respondents.

Date of hearing: 17th June, 2000.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 786 #

2008 P L C (C.S.) 786

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ALI MUHAMMAD SAMOO and 2 others

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI and 2 others

Appeals Nos.1581(K)(C.E.), 1613(K)(C.E.) and 1615(K)(C.E.) of 2001, decided on 6th June, 2006.

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

----Ss.3, 5, 6, 7 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of dismissal from service---Appeal---Appellants were proceeded against by issuing statement of allegations and charges mentioning therein that they, during their posting in medical department, were involved in the fictitious/irregular procurement of stationery items/failed to exercise control on the emergent' procurement of life saving drugs and repair of medical equipment/machinery---Employer, after completing the departmental enquiries, served show-cause notices upon the appellants and in inquiry proceedings appellants were found guilty of the charges against them and were imposed major penalty of dismissal from service---Validity---Enquiry against all appellants had not been conducted as provided under the Removal from Service (Special Powers) Ordinance, 2000 as it was conducted in questionnaire form, which procedure had been disapproved by the Supreme Court---Employer did not examine the material witnesses to prove the allegations against the appellants---Proceedings against one of the appellants having been dropped, there was no reason to reinitiate the proceedings against him after a period of six months for the same allegations/charges---Proper opportunity of personal hearing was not afforded to appellants---Personal hearing was not merely a formality, as civil servant should be provided full opportunity to explain his position with regard to the charges levelled/proved against him during the enquiry proceedings---Two other officers who were also proceeded along with appellants, were subsequently let off by issuing a warning letter, but appellants were awarded major penalty---Such was a case of discrimination, in circumstances---Chief Medical Officer being important witness, had not been examined in the inquiry and chief of appellants was let off with the warning only, whereas appellants had been dismissed from service---No witness had been examined to support the audit report regarding purchase of stationery items---Employer, in circumstances had failed to establish its cases against the appellants---Impugned orders .were set aside with direction to the employer to reinstate the appellants in service with all benefits for which appellants would submit an affidavit before the competent authority to the effect that they were not gainfully employed elsewhere during said period.

Syed Yaqoob Shah v. XEN PESCO (WAPDA) Peshawar and another PLD 2002 SC 667; Muhammad Ayoob Khan v. Abdul Mateen Khan, District and Sessions Judge Mardan/Competent Authority 2003 PLC (C.S.) 395; Bashir Ahmed v. Director of Fisheries and another 1985 PLC (C.S.) 518; Secretary to Government of N.-W.F.P. and 2 others v. Saifur Rehman 1997 SCMR 1073; Muhammad Jamil Khan v. General Manager Pakistan Railway, Lahore and another 1987 PLC (C.S.) 395; The Director Food Punjab and 2 others v. Rashid Ahmed Food Grains Supervisor 1990 SCMR 1446; Alamgir v. Divisional Forest Officer Multan and others 1993 SCMR 603; Shamimuddin v. Superintendent of Post Office Mirpurkhas Circle and others PLD 1994 SC 725; Wali Muhammad Sahto v. Secretary Establishment Division Islamabad and 2 others 2001 TD (Service) 361; Khalid Naveed v. Member Administration and The Chairman Pakistan Atomic Energy Commission, Islamabad ,,'2000 PLC (C.S.) 857; The Secretary Government of Punjab through Secretary Health Department Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Muhammad Nawaz Khan v. Multan Development Authority, Multan through Director-General and 2 others 2001 PLC (C.S.) 296; Maqsood Ahmed Sheikh v. The Islamic Republic of Pakistan through Secretary Government of Pakistan, Rawalpindi 1987 SCMR 1562; Malik Muhammad Afzal v. Deputy Director Food Lahore Region, Lahore and another 1987 PLC (C.S.) 875; Basharat Ali v. Director Excise and Taxation, Lahore 1997 SCMR 1543; Deputy Director Foods and 2 others v. Akhtar Ali Food Grain Inspector1997 PSC 539; Pakistan International Airlines Corporation through Chairman and others v. Koural Channa and others 1999 PLC (CS) 1539; Unreported judgment in Muhammad Irfan v. Pakistan Steel and another Appeal No.379(K)(C.E.) of 2002; Ghulam Fareed v. The Chairman Pakistan Steel and another Appeal No.515(K)(CE) of 2000, Aftab Ahmed Soomro v. Secretary to Government of Pakistan Ministry of Production and Industries and others Appeal No.973(K)(C.E.) of 2002; Sardar Ahmed Shaikh v. Chairman Federal Secretary Ministry of Communication and Railways and others Appeal No.211(K)(C.S.) of 2001; Qamar-uz-Zaman v. Director-General (Education) Government of Pakistan and others 1995 SCMR 1754; Zahid Akhtar v. The Government of Punjab PLD 1995 SC 530; The Province of Punjab through Secretary Communication and Works Department and others v. Ibrar Younis Butt 2003 PLC (C.S.) 1357; Commissioner Punjab Employees Social Security Institution v. Dr. Jamal Butt 2004 PLC (C.S.) 177; Sardar Khan v. Managing Director (Power) WAPDA and another 2002 PLC (C.S.) 869 and Water and Power Development Authority v. Khawaja Abdul Waheed 2002 SCMR 753 rel.

Sanaullah Noor Ghouri for Appellants.

Masood Ahmad Khan for Respondents.

Date of hearing: 4th May, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 795 #

2008 P L C (C.S.) 795

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

TOUSEEF AHMED MALIK

Versus

GOVERNMENT OF PAKISTAN and others

Appeal No.351(K)(C.S.) of 2003, decided on 17th June, 2005.

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

----Ss. 3, 10 11 & 12---Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Disciplinary proceedings had been initiated against appellant by issuing him show-cause notice, his personal hearing on 13th March, 2001 under Government Servants (Efficiency and Disciplinary) Rules, 1973, at a time when Removal from Service (Special Powers) Ordinance, 20,00 was already promulgated---Provisions of Ss.11 & 12 of Removal from. Service (Special Powers) Ordinance, 2000 having over-riding effect, on any other laws, proceedings against appellant under Government Servants (Efficiency and Discipline) Rules, 1973 were illegal ab initio, null and void---Case was that of misapplication of law and was remanded for de novo proceedings against appellant strictly in accordance with the relevant law on the basis of the same allegations as contained in the show-cause notice---Impugned orders were set aside---Appellant would be reinstated in service, accordingly.

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

M. Ali Hakro for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 799 #

2008 P L C (C.S.) 799

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

MUSHTAQ AHMED KHAN

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN and others

Appeal No.121(K)(C.S.) of 2004, decided on 2nd February, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Move-over and Selection Grade---Denial of---Appeal---Appellant was denied move-over to the next grade after he had reached the maximum of his scale in BS-12 and he was also denied Selection Grade (BS-16) on the ground that his A.C.R. for the relevant year contained adverse remarks---Reporting Officer in his observation had stated "appellant is intelligent and takes interest in his job; he is advised to understand the knowledge of E&M works"---Countersigning Officer in his assessment about the performance of the appellant had stated that "he was an experienced Sub-Engineer who required more interest in his job, Grading average"---Said remarks, by any measure were very vague and general in nature---Both the Reporting Officer and the Countersigning Officer, had not indicated the specific area in which appellant, in their opinion, was deficient and needed improvement---Appellant had not received any counselling from his superior officers to which he did not pay any heed---Said remarks in the A.C.R. of appellant, should be treated 'advisory in nature' and could not be considered as 'adverse' remarks---Case of appellant for grant of move-over and Selection Grade should be taken up accordingly--- Impugned order was set aside, directing that appellant would be considered for the grant of Selection Grade by the Department in the next meeting of the competent Promotion Committee from the date his juniors were granted the Selection Grade.

Syed Attaullah for Appellant.

Asif Hussain Mangi, Standing Counsel along with A.D. Ahmed Noor.

Date of hearing: 12th January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 802 #

2008 P L C (C.S.) 802

[Federal Service Tribunal]

Before Justice (R) Tanvir Bashir Ansari, Chairman and Zaheer Ahmed, Member

IMTIAZ ALI and 176 others

Versus

SECRETARY, MINISTRY OF DEFENCE (DEFENCE DIVISION), RAWALPINDI and another

Appeals Nos.352(R)(C.S.) to 360(R)(C.S.) and 362(R) to 522(R), 671(E)(C.S.) to 677(R)(C.S.) of 2005, decided on 21st January, 2008.

(a) Secretariat Allowance (Rescission of Order etc.) Ordinance (XXII of 2000)---

----S. 2---Service Tribunals Act (LXX of 1973), S.4---Grant of secretariat/personal allowance---Rescission of allowance---Appeal---Scope and extent of Secretariat Allowance (Recession of Order etc.) Ordinance, 2000---Federal Government, vide Finance Division's O.M dated 1-7-1988, sanctioned secretariat allowance at the rate of 20% of basic pay to the Federal Government employees working in the Federal Secretariat---Said facility was extended to the employees of the attached departments as well --Secretariat allowance later on was abolished and was converted into "Personal Allowance"---Subsequently President promulgated Secretariat Allowance (Rescission of Order etc.) Ordinance, 2000 on 30-3-2000 whereby said Secretariat/Personal Allowance was abolished altogether with retrospective effect i.e. 1-7-1988 (date of sanction of said allowance)---Section 2 of Secretariat Allowance (Rescission of Order etc.) Ordinance, 2000, provided that orders, office memoranda, instructions and other instruments whereby Secretariat Allowance was granted, were rescinded, which would be deemed always to have been so rescinded on the 1st July 1988 (date of sanction) and no financial benefit whatsoever except as provided in subsection (2) of S.2 of said Ordinance, would accrue or deemed to have accrued, would be payable thereunder---Such rescission was to be effective notwithstanding any decision of any court including High Court and Supreme Court---Validity---Examination of S.2(1)(2) of Secretariat Allowance (Rescission of Order etc.) Ordinance, 2000, had left no manner of doubt that the intention of said Ordinance was to completely abolish the Secretariat/ Personal Allowance from its very inception---Ab initio abolition of said allowance would not violate any acknowledged principle of law---General principle of retrospectivity as canvassed by the counsel for the appellants/employees was of no avail as express retrospectivity had been provided by Secretariat Allowance (Rescission of Order etc.) Ordinance, 2000.

Muhammad Rafique v. Federation of Pakistan PLD 2005 Lah. 150; Raja Shoukat Mehmood v. AJ&K Government 2003 PLC (C.S.) 424; Secretary to the Government of Pakistan, Ministry of Finance v. Muhammad Hussain Shah .and others 2005 SCMR 675; Muhammad Ikram Alvi v. Secretary to the Government of the Punjab, Communication and Works Department, Lahore 2004 PLC (C.S.) 59 and Illahi Bux v. Sindh Sugar Corporation Limited 2004 PLC (C.S.) 1375 rel.

(b) Interpretation of statutes--

----Where the Legislative enactment itself conferred retrospective effect expressly, retrospectivity was to be given its lawful effect.

Rao Fazal Khan Akhtar for Appellants.

M. Aslam Uns, Standing Counsel for Respondents with Imtiaz Ahmed, Assistant Accounts Officer, MAG's Office, Rawalpindi and Ali Sher, Section Officer, M/o Finance, Islamabad as Departmental Representatives.

Date of hearing: 15th January, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 816 #

2008 P L C (C.S.) 816

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NIAZ AHMED DAYO

Versus

CHAIRMAN, PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and 2 others

Appeal No.160(K)(C.S.) of 2001, decided on 13th December, 2005.

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

----R. 4---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant, who had rendered twenty two years service and had a meritorious record while serving as Senior 'Engineer, was removed from service after issuing letter of explanation to him by the Chairman WAPDA regarding recommending of P.Os. at high rates, which had caused loss to the Authority---Show-cause notice issued to appellant was replied by him denying all the allegations against him---Record had revealed that before issuing the letter of explanation to appellant, a preliminary enquiry was held by the Authority against the appellant, but appellant was not associated with said enquiry, and was also not given any chance of cross-examination---Despite denial of serious allegations of fact by the appellant, no regular enquiry had been held against him---Even otherwise object of a preliminary enquiry was to collect evidence and material and to determine the truthfulness of the allegations levelled against an employee---Employee could be declared guilty only through a regular enquiry, which was to be held after charge-sheet was issued to him---Authority did not feel the necessity of holding a regular inquiry against appellant; and for imposing penalty on him banked merely on the report of preliminary enquiry---Proceedings conducted by Authority, which resulted into removal of the appellant from service could not be protected---Impugned order was set aside and case was remanded with direction to the Authority to reinstate appellant and hold de novo disciplinary proceedings against him on the same allegations/charges within a period of four months---Question of back-benefits would depend upon the result of the enquiry.

1993 SCMR 603; 1993 SCMR 1440; 1996 SCMR 602; PLD 1989 SC 335; PLD 2002 SC 607; PLD 2002 SC 667; PLJ 2000 SC 255; 2001 SCMR 1566; 1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222; 1985 PLC (C.S.) 245 and 2004 SCMR 1662 rel.

Muhammad Ismail Khan for Appellant.

Abbas Haider Jaffri for Respondents.

Date of hearing: 8th December, 2005.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 836 #

2008 P L C (C.S.) 836

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

Syed HAMID ALI

Versus

CHIEF EXECUTIVE OF PAKISTAN, ISLAMABAD and 2 others

Appeal No.137(K)(C.S.) of 2001, decided on 9th February, 2008.

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

----S. 5(1)---Holding of fact finding inquiries---Scope---Fact finding inquiries were held to ascertain facts which were brought to the notice of the authorities---Holding of fact finding inquiry before the issuance of shoe-cause notice, would not, in any manner, vitiate the law---Fact finding inquiries were not and could not be considered as a substitute for holding regular inquiry.

Shah Muhammad Abbasi v. Chancellor Shah Abdul Latif University 2002 PLC (C.S.) 1468 ref.

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

----Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant serving as Accounts Officer, was dismissed from service after serving him with show-cause notice and holding inquiry against him on charge of opening of bogus F.P. Fund account in collaboration with the Senior Auditor and another---Inquiry Committee called appellant to appear before it, recorded his statement; thereafter the record did not indicate whether appellant was called or other witnesses were examined in his presence---Even material witnesses, were not allowed to be cross-examined by the appellant---Said omissions were sufficient grounds to vitiate the conduct of disciplinary proceedings---Cross-examination of material witnesses would surely have unveiled facts that had remained unanswered---Such having not happened, the benefit of doubt ought to be given to appellant---Major penalty of dismissal from service, had been imposed on appellant on the basis of inquiry which was feeble in the eyes of law---Personal hearing was also denied to appellant and he was . not shown a copy of the preliminary inquiry report wherein major penalty was contemplated against him, which was serious infirmity since it amounted to denying appellant a fair opportunity for defence---Impugned order was set aside with direction that appellant would be reinstated into service from the date he was dismissed from service---Period of absence from duty would be considered as leave due to the appellant.

2002 PLC 1468; 2005 PLC (C.S.) 1489;2006 PLC (C.S. 1259; 2007 PLC (C.S.) 118; KLR 2005 L & Service Cases 59; 2005 SCMR 1617; 2005 PLC (C.S.) 364; 2006 SCMR 60=2006 PLC (C.S.) 14; 2006 PLC (C.S.) 1053; 1984 PLC (C.S.) 641; 1985 PLC (C.S.) 245; 1986 PLC (C.S.) 894; 1985 PLC (C.S.) 478; PLD 1959 SC 45; PLD 1964 SC 410; Zonal Head, N.B.P. v. Punjab Labour Appellate Tribunal PLD 1996 SC 200; Fatima Bibi v. Deputy District Education Officer, Sadiqabad 2007 PLC (C.S.) 597 and Alamgir v. Divisional Forest Officer, Multan 1993 SCMR 603 rel.

Sanaullah Noor Ghauri for Appellant.

Asif Hussain Mangi, Standing Counsel along with Departmental Representative Rana Muhammad Aslam, Accounts Officer, A.-G., Sindh for Respondents.

Date of hearing: 17th November, 2007.

2008 P L C (C.S.) 940

[Federal Service Tribunal]

Before Tariq Farooq and Muhammad Javed Ashraf Hussain, Members

AMANULLAH

Versus

DEPUTY POSTMASTER GENERAL, POSTAL REGION, SUKKUR and another

Appeal No.423(K)(CS) of 2003, decided on 27th October, 2007.

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

----Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice, but without holding any regular inquiry against him on charge of issuing bogus money order---Contention of appellant was that as he had denied charges levelled against him, no punishment, minor or major, was warranted without conducting a regular inquiry---Plea of counsel for the Authority was that opportunity of personal hearing was duly offered to appellant, but he did not avail the same---Counsel for Authority had stated that disciplinary proceedings continued for over a period of two months---Proceedings against appellant could not be termed as summary proceedings---Appellant at different stages regarding the offences of issuing bogus money orders had admitted that he had been issuing bogus money orders and late crediting amounts in the General Post Office---In view of said admission there was no compelling need to hold a formal inquiry---Opportunity of personal hearing was offered to appellant, but he did not avail himself without any plausible reason for not availing said opportunity---Impugned order of dismissal from service against appellant did not appear to be a summary order or stereotyped order, however as no money loss had been caused to Government Treasury and as the only offence on the part of appellant was late deposit of amount, extreme penalty of dismissal from service was uncalled for; at the same time appellant could not be exonerated in the face of his voluntary admission with regard to the commission of offence---Penalty of dismissal from service was converted into the penalty of compulsory retirement with effect from the date of his dismissal.

1997 PLC (C.S.) 817; 2000 PLC (C.S.) 1252; 1994 PLC (C.S.) 999; 1997 PLC (C.S.) 348; 1999 PLC (C.S.) 65; 2002 SCMR 57; 2003 PLC (C.S.) 395; PLD 1980 SC 310; 1992 PLC (C.S.) 775; 2003 PLC (C.S.) 497/1647; 1985 PLC (C.S.) 636; 1997 SCMR 1543=1997 PLC (C.S.) 817; 2002 PLC (C.S.) 1324; 2003 PLC (C.S.) 353; 1982 PLC (C.S.) 770; 1984 PLC (C.S.) 500; 1995 PLC (C.S.) 1123; 2001 SCMR 934; 1986 PLC (C.S.) 419; 2001 PLC (C.S.) 270; 2002 SCMR 1034 2002 PLC (C.S.) 1083; 2003 PLC (C.S.) 365 and 589; 1997 SCMR 1543; 1994 SCMR 2232; 2000 PLC (C.S.) 857; 2003 PLC (C.S.) 433; 1983 PLC (C.S.) 171 and 356; 1984 PLC (C.S.) 1028; 1987 PLC (C.S.) 73; 2003 PLC (C.S.) 1252; 2003 SCMR 1718=2003 PLC (C.S.) 1304; 2006 PLC (C.S.) 1559; 2001 TD (Service) 361; 1994 SCMR 1440 and 2002 SCMR 857 (C.S.) ref.

Sanaullah Noor Ghouri for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 954 #

2008 P L C (C.S.) 954

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

BASHIR AHMED CHANNA

Versus

ALLAMA IQBAL UNIVERSITY

Appeal No.102(K)(C.E.) of 2003, decided on 9th January, 2006.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from Service---Appeal---Penalty of removal from service was imposed on appellant on allegation of misappropriation of funds---No inquiry was made against him, while no reason was given to dispense with such inquiry---Appellant had denied allegation against him, but no witnesses were examined in the preliminary inquiry and appellant was deprived of his right of cross-examination---No chance having been given to appellant to cross-examine the witnesses, disciplinary proceedings against appellant stood vitiated and in such proceedings appellant could not be penalized legally---In case of a major penalty, where allegations of act were denied by the civil servant a regular independent departmental 'inquiry was absolutely necessary---Such inquiry having not been made in the case of appellant, impugned order was set aside with direction to reinstate him in service---Case, however was remanded to authorities to hold de novo proceedings on the same charges giving appellant full and fair opportunity to defend himself.

Saleem Raza v. Government of Sindh and others 2001 PLC (C.S.) 1123; 1997 SCMR 1543=1997 PLC (C.S.) 817; 2002 SCMR 1004=2002 PLC (C.S.) 960; 1980 SCMR 850; 1997 SCMR 316; 2004 SCMR 49; 2005 SCJ 455; 2003 PLC (C.S.) 314; 2003 SCMR 1126; 1997 PLC (C.S.) 873; 1993 SCMR 683 and 1440; 1996 PLC (C.S.) 868; PLD 1994 SC 22; 1985 PLC (C.S.) 219, 245; 1990 PLC (C.S.) 745; 2003 PLC (C.S.) 7; 2003 PLC (C.S.) 365; 2003 SCMR 256; 2004 SCMR 294; 2000 PLC (C.S.) 857; 1992 SCMR 1789; PLD 1994 SC 222; 1996 SCMR 201; 1999 SCMR 841; PLD 1981 SC 176; (sic) SCMR 1987; 1562 and 1463; (sic) PLC (C.S.) 5470; 2004 PLC (C.S.) Supreme Court 1275; 2004 SCMR 1662; PLD 2002 SC 667; 1997 SCMR 1543; 2005 (sic) 878 and 2004 PLC (C.S.) 344 rel.

Imdad Ali Ujjan for Appellant.

Shoaun Nabi for Respondents.

Date of hearing: 3rd January, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 961 #

2008 P L C (C.S.) 961

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

Mrs. SAJIDA ABBAS

Versus

FEDERATION OF PAKISTAN and others

Appeal No.102(K)(C.S.) of 2004, decided on 20th June, 2007.

Civil Servants Act (LXXI of 1973)---

----Ss. 6(2) & 12---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.21---Service Tribunals Act (LXX of 1973), S.4---Reversion---Appeal---Appellant was reverted from the post of Assistant Director to that of National Savings Officer as she failed to qualify departmental examination within three chances availed by her---Appellant having failed to qualify the departmental examination during period of probation which included extended period, competent Authority was authorized to take suitable action against her---Punitive action (reversion) against appellant was duly supported by various provisions of relevant Rules including R.6 of Recruitment Rules of National Savings Organization, S.6(2)(b) of Civil Servants Act, 1973 and R.21 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Order of reversion, however, was passed without issuing show-cause notice and without providing chance of personal hearing to the appellant---No punishment could be effected without affording personal hearing to affected person---Appellant was entitled to show-cause notice as envisaged under S.12(3) of Civil Servants Act, 1973---Such omission was of a serious nature and was enough to vitiate order of reversion of appellant---Direction was given that notification reverting appellant to the post of National Saving Officer, be withdrawn---Department, however would be within its right to proceed against appellant by issuing him show-cause notice and also affording her an opportunity of personal hearing.

NLR 1987 TD 56; 1993 PLC (C.S.) 308; 1990 SCMR 1414; 1999 TD (Service) 21; 2001 YLR 1843; SBLR 2003 SC 1697; 2004 PLC (C.S.) 27; 1985 SCMR 1178; 2003 PLC (C.S.) 1027; 2004 PLC (C.S.) 453; 2003 PLC (C.S.) 1249; 1991 SCMR 2330; 2003 TD (Service) 32; 2003 PLC (C.S.) 1527; 2004 PLC (C.S.) 470; 200 PLC (C.S.) 43; 2002 PLC (C.S.) 330 and 2004 PLC (C.S.) 598 ref.

Sanaullah Noor Ghouri for Appellant.

Asif Mangi, Standing Counsel for Respondents.

Date of hearing: 1st June, 2005.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 979 #

2008 P L C (C.S.) 979

[Federal Service Tribunal]

Before Muhammad Javed Ashraf Hussain and Salim Gul Shaikh, Members

SHAHID YAMEEN

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS, RAILWAYS HEADQUARTERS OFFICE, LAHORE and 2 others

Appeal No.209(K)(C.S.) of 2004, decided on 10th December, 2007.

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

----Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Dispensing with the inquiry---Major penalty of dismissal from service was imposed on appellant without holding inquiry against him on allegation that he remained absent from duty without any intimation and permission of the competent Authority--Total period of absence from duty was about 7 months and period for more than one month he remained under treatment of Medical Officer of the Department and remaining period he remained under treatment of a private Doctor---In view of the certificate submitted by- Medical Board wherein there was no adverse opinion recorded with regard to the period of absence during which appellant apparently remained under treatment of a private medical practitioner, assumption that appellant remained absent from duty without cogent medical ground, was not substantiated by the facts---Appellant was suffering from a major ailment i.e. Hepatitis "B" and he chose to go for further treatment with a private medical doctor having not been satisfied with the treatment of the departmental medical officer---Case of appellant though was of negligence which resulted in absence from duty for about six months, without the cover of a certificate from the authorized departmental medical officer, but punishment of dismissal from service was too harsh---Past punishment could not be made ground for further punishment as any fresh punishment on the ground of past punishment would amount to a person being vexed twice and hence double jeopardy---Minor penalty of withholding of increments for three years without cumulative effect would suffice, in circumstances of the case---Appellant was reinstated in service from the date of his dismissal and the period of his absence from duty would be adjusted against leave due to appellant.

2003 PLC (C.S.) 353; SBLR 2003 TR 164; 2001 SCMR 256; 2001 PLC (C.S.) 296; 1985 PLC (C.S.) 636 and 1114, 1997 TD (Service) 346, 1996 PLC (C.S.) 868; 1985 PLC (C.S.) 484; 1992 PLC (C.S.) 496; 2004 PLC (C.S.) 1583; 2004 PLC (C.S.) 959 and 2004 PLC (C.S.) 1572 rel.

Sanaullah Noor Ghouri for Appellant.

Latifur Rehman Khan Sarwari for Respondents.

Date of hearing: 14th November, 2007.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1028 #

2008 P L C (C.S.) 1028

[Federal Service Tribunal]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman and Syed Bilal Ahmed, Member

SHAHZAD KHIZER

Versus

ESTABLISHMENT DIVISION and another

Appeal No.138(R)C.S. of 2007, decided on 24th March, 2008.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant serving as Assistant Commissioner of Income Tax, was dismissed from service after charge-sheeting him and holding inquiry against him on charges of misconduct/irregularities attributed to him in respect of as many as thirty two assessees---Enquiry Officer recommended imposition of penalty of removal from service upon the appellant, but competent Authority had imposed major penalty of dismissal from service upon him---Allegations levelled against appellant were mostly about a matter pertaining to the examination of the relevant record---Charges communicated to appellant were specific and self-explanatory and were given out in detail---Appellant was allowed opportunity to submit his reply which he fully availed---Enquiry Officer conducted the inquiry in which appellant was allowed full participation---After taking part in the inquiry up to the stage of recording his evidence and examining all the record before the Enquiry Officer, appellant had himself refused further participation and considered it sufficient to rely upon the defence that appellant had earlier submitted---Report of the Enquiry Officer was a speaking document which' explained his findings upon the strength of strong available material---No malice or ulterior motive had been discovered in the proceedings of the Inquiry Officer---Counsel for the appellant had not been able to demonstrate any lacuna in the inquiry which could have prejudiced appellant in his defence---Appellant had not challenged the veracity of the record produced before the Inquiry Officer---Report of the Enquiry Officer, was upheld---Enquiry Officer, after concluding the enquiry having recommended penalty of removal from service, it was not in accordance with the norms of justice for the competent Authority to have unilaterally enhanced the punishment to that of dismissal from service, especially when no show-cause notice in respect of enhancement of punishment was given to the appellant---While upholding the findings of the Inquiry Officer, appeal filed by the appellant was dismissed by Service Tribunal however major penalty of dismissal from service was converted into removal from service as recommended by the Inquiry Officer.

Tariq Mehmood Jehangiri for Appellant.

Syed Shahid Hussain for Respondents.

Date of hearing: 4th March, 2008.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1044 #

2008 P L C (C.S.) 1044

[Federal Service Tribunal]

Before Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members

MUHAMMAD WASEEM

Versus

GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAY HEAD QUARTERS, LAHORE and 3 others

Appeal No.8(K)(C.S.) of 2006, decided on 22nd December, 2006.

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

----Ss.3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Penalty of dismissal from service was imposed on appellant after issuing him show-cause notice along with statement of charges that he committed gross misconduct and breach of trust by misappropriating station earning---Penalty was imposed upon appellant on the basis of preliminary enquiry, but without holding regular inquiry against him despite appellant had denied allegations against him---No reasons for dispensing with the regular inquiry were shown in the case---Grave and serious infirmities were appearing in the disciplinary proceedings against appellant, which had vitiated the same---Appellant had deposited amount allegedly misappropriated, but despite that instead of taking lenient view, a major penalty of dismissal from service was imposed upon appellant---Validity---Impugned order could not be sustained---Appeal was remanded with the direction to the Authority to reinstate appellant and hold de novo disciplinary proceedings against him on the same allegations/charges within a specified period---Question of back benefits would depend upon the result of inquiry.

2001 SCMR 256; 2001 PLC (C.S.) 296; 2003 PLC (C.S.) 353; SBLR 2003 TR 164; 1985 PLC (C.S.) 636; 1996 PLC (C.S.) 868; 1997 SCMR 1543 = 1997 PLC (C.S.) 817; 2003 PLC (C.S.) 497 and 1546; 2003 PLC (C.S.) 1527; 2004 PLC (C.S.) 470; PLD 1981 SC 176; 1987 SCMR 1562; 1996 SCMR 201; PLJ 2003 TRC (Service) 66; 2005 TD (Service) 328; 2005 PLC (C.S.) 1527; 2002 SCMR 57; 2003 PLC (C.S.) 395 and 514; 2003 SCMR 681; 2005 PLC (C.S.) 1544; 2005 PLC (C.S.) 1504; 2005 PLC (C.S.) 1565; 1997 SCMR 1543 = 1997 PLC (C.S.) 817 and 2004 SCMR 316 = 2004 PLC (C.S.) 344 ref.

1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222 and 1985 PLC (C.S.) 245 rel.

Sanaullah Noor Ghouri for Appellant.

Syeeda Bilquees for Respondents.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1055 #

2008 P L C (C.S.) 1055

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD YAQOOB

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD. and another

Appeal No.854(K)(CE) of 2003, decided on 27th January, 2006.

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

----Rr. 4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant who had a long service of 10 years was dismissed from service only on the ground of unauthorized absence from duty---Authorities had not shown, if due to absence of appellant, authorities had to sustain any kind of loss or suffered in any way---For mere unauthorized absence, major penalty of dismissal from service imposed upon appellant, was extremely harsh one and not commensurate with the petty misconduct born out of the absence of the appellant---Penalty of dismissal from service awarded to appellant was modified to that of withholding of two increments for a period of two years without any cumulative effect---Penalty was modified on the compassionate ground as appellant who was a petty employee of the Authority had been litigating unsuccessfully before the Tribunal since long---Period of absence of the appellant be treated as leave of sort that could be due to him---Appellant was reinstated in service.

Ch. Latif Saghar for Appellant.

Ashiq Ali Anwar Rana for Respondent.

Date of hearing: 10th December, 2005.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1058 #

2008 P L C (C.S.) 1058

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NOOR MUHAMMAD LASHARI

Versus

FEDERATION OF PAKISTAN through Divisional Superintendent Pakistan Railways and 6 others

Appeal No.129(K)(C.S.) of 2002, decided on 25th April, 2006.

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

---Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice but without holding regular inquiry against him on an allegation of misconduct, misappropriation of government funds and fraudulent activities---Appellant having denied allegations levelled against him, holding regular inquiry was absolutely necessary, but neither regular inquiry was held nor appellant was given opportunity of personal hearing---Effect---Employee could be declared guilty only through a regular inquiry, but Authority dispensed with the inquiry without assigning any reason in the show-cause notice---Fact finding inquiry could never be a substitute for a regular inquiry and it could not be used against an accused employee for awarding major penalty of dismissal from service---Impugned order was set aside and appeal was remanded with direction to Authorities to reinstate the appellant and hold de novo disciplinary proceedings against him on the same allegation/charges within a specified period.

2001 SCMR 256; 2004 SCMR 316=2004 PLC (C.S.) 344; 1986 PLC (C.S.) 419; 2003 PLC (C.S.) 365; PLD 2004 (SC) 441 and PLJ 2003 SC 54 ref.

1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222; 1985 PLC (C.S.) 245; 2004 SCMR 1663 and 1993 SCMR 603 rel.

Sanaullah Noor Ghauri for Appellant.

Muhammad Latif Saghar for Respondents.

Date of hearing: 18th February, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1065 #

2008 P L C (C.S.) 1065

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

TARIQ HUSSAIN

Versus

DEPUTY INSPECTOR-GENERAL, PAKISTAN RAILWAY POLICE and another

Appeal No.3(K)(C.S.) of 2004, decided on 2nd December, 2006.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Major penalty of dismissal from service was imposed upon appellant without holding any departmental inquiry on allegation of misconduct against him---Appellant having denied allegation levelled against him, regular departmental inquiry was absolutely essential for bringing home the charge to appellant, but that had not been done---Preliminary inquiry held against appellant together with personal hearing, was not sufficient to impose the major penalty of dismissal from service upon appellant---Serious allegations of fact against appellant, could only be proved by a regular inquiry giving him a chance to cross-examine the witnesses and to put him upon his defence---Nothing had been done in the case, disciplinary proceedings against appellant were vitiated and major penalty of dismissal awarded to appellant could not be sustained---Allowing appeal, impugned order was set aside with direction to department to reinstate appellant in service from the date of his dismissal.

2004 PLC (C.S.) 1385; 1993 SCMR 603; 2004 SCJ 455; 1997 TD (Service) 346; 2004 PLC (C.S.) 959; 1986 PLC (C.S.) 894; 1986 CLC 1408 and 1994 PLC (C.S.) 1273 ref.

Sanaullah Noor Ghouri for Appellant.

Ms. Shahnaz Associate of Latifur Rehman Sarvery for Respondents.

Date of hearing: 18th November, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1068 #

2008 P L C (C.S.) 1068

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDULSATTAR

Versus

DEPUTY POST MASTER-GENERAL, K.P.A. REGION IV, SUKKUR and 2 others

Appeal No.294(K)(C.S.) of 2003, decided on 2nd December, 2006.

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

----Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Conversion of penalty to that of compulsory retirement---Appeal---Appellant was removed from service with immediate effect due to late credit of electric bill of department---Removal from service was converted to compulsory retirement---Appellant who was in confirmed employment of the department, was removed from service without adopting the proper procedure--Even the formal show-cause notice had not been issued which was violative of the principles of natural justice---Counsel for appellant however, requested that punishment of compulsory retirement awarded to appellant be modified to some minor punishment---Accepting appeal, impugned order passed against appellant was set aside and penalty was modified to that of withholding of two increments for a period of two years---Department was directed to reinstate appellant in service.

Muhammad Waris and another's case 2001 SCMR 894 rel.

S. Zafar Ali Shah for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 28th October, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1072 #

2008 P L C (C.S.) 1072

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD HANIF

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI and 4 others

Appeal No.950(K)(C.E.) of 2002, decided on 4th April, 2006.

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

----Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service on allegation that he being custody officer had failed to ensure the loading of proper material on the truck as per delivery order---Counsel for appellant did not press the appeal on merits, but had prayed to modify his punishment---Appellant had pleaded that he was not present at the time when the truck was being loaded because he had the duties to supervise at two places---Appellant had urged that due to his removal from service not only he, but his family would also suffer financial hardships and starvation; and he had to remain jobless as due to his advanced age he was not likely to get a suitable job anywhere---Counsel for appellant had prayed that the pitiable case of the appellant required sympathetic consideration by reinstating appellant in service, modifying of his punishment to what had been recommended by the first Inquiry Officer---Impugned order of removal .of appellant from service was set aside and modified the penalty of removal from service to his reduction from Assistant Manager to one stage lower in pay scale for a period of two years---Appellant would be reinstated in service from the date of his removal with back-benefits in accordance with reduced Pay Scale.

Sanaullah Noor Ghauri for Appellant.

Shoukat Ali Sheikh for Respondents.

Date of hearing: 25th, March, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1076 #

2008 P L C (C.S.) 1076

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Abdul Hafiz Mirza, Members

ARIF HUSSAIN and others

Versus

CHAIRMAN, PAKISTAN RAILWAYS, ISLAMABAD and others

Appeals Nos.476(R)(C.S.) to 487(R)(C.S.) of 2003, decided on 3rd June, 2006.

Civil Servants Act (LXXI of 1973)---

---Ss. 5 & 7---Service Tribunals Act (LXX of 1973), S.4---Appointment and regularization of service---Denial to regularize service---Appeal---Appellants had continued, being in service since their initial appointment with a one-day periodical break in their service and were charged against permanent posts---Department regularized the services of hundreds of employees by fixing a cut off date extended from time to time--Appellants, however, were denied the benefit of regularization as they were being treated as temporary labour and for the reason that the policy of the Department pertained to the ad-hoc and substitute employees and excluded those who were work charged; it appeared very unjust on the part of Authorities to be insistent on calling appellants as temporary labour, while simultaneously admitting that they were working against permanent posts---Appeals filed by the appellants were accepted with direction to the Authorities that in terms of departmental policy, appellants be immediately regularized, accordingly.

2002 PLC (C.S.) 67; 2005 SCMR 100; 2003 PLC (C.S.) 796 and 1994 PLC (C.S.) 573 ref.

M. Ramzan Khan for Appellants.

M. Shafi Mughal for Respondents with Pervaiz Saleem, D.A.E.E. Departmental Representative.

Date of hearing: 7th April, 2006.

2008 P L C (C.S.) 1094

[Federal Service Tribunal]

Before Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members

ALI MUHAMMAD

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, KARACHI and 2 others

Appeal No.201(K)(C.S.) of 2005, decided on 22nd December, 2006.

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

----Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Penalty of dismissal from service was imposed upon appellant after issuing him show-cause notice, but without holding regular inquiry against him on charge of misappropriation of amount---Major penalty was imposed on appellant on the basis of preliminary inquiry---No reason was shown for dispensing with regular inquiry against appellant, despite the fact that appellant had denied serious allegation of misappropriation of amount against him---Said grave and serious infirmities in the disciplinary proceedings against appellant having vitiated the proceedings, impugned order of dismissal from service passed against appellant by the Authorities could not be sustained---Case, in circumstances was remanded with direction to the authorities to reinstate appellant and hold de novo disciplinary proceedings against him on the same allegations/charges within specified period.

2001 SCMR 256; 2001 PLC (C.S.) 296; 2003 PLC (C.S.) 353; SBLR 2003 TR 164; 1985 PLC (C.S.) 636; 1996 PLC (C.S.) 868; 1997 SCMR 1543=1997 PLC (C.S.) 817; 2003 PLC (C.S.) 497; 2003 PLC (C.S.) 1546; 2003 PLC (C.S.) 1527; 2004 PLC (C.S.) 470; PLD 1982 SC 176; 1987 SCMR 1562; 1996 SCMR 201; PLJ 2003 TRC (Service) 66; 2005 TD (Service) 328; 2005 PLC (C.S.) 1527; 2002 SCMR 57; 2003 PLC (C.S.) 395 and 514; 2003 SCMR 681; 2005 PLC (C.S.) 1544; 2005 PLC (C.S.) 1504; 2005 PLC (C.S.) 1565; 1997 SCMR 1543=1997 PLC (C.S.) 817 and 2004 SCMR 316=2004 PLC (C.S.) 344 ref.

1984 PLC (C.S.) 641; 1986 PLC (C.S.) 894; PLD 1994 SC 222 and 1985 PLC (C.S.) 245 rel.

Sanaullah Noor Ghouri for Appellant.

Mujahid Hashmi, L.A. Departmental Representative for Respondents.

Date of hearing: 21st December, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1101 #

2008 PLC (C.S.) 1101

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

SHAFI MUHAMMAD

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. through Member (Amdn.)

PTCL Headquarters, Islamabad and 3 others

Appeal No.165(K)(C.S.) of 2002, decided on 1st March, 2006.

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

----R. 4(1)(b)(i)---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.11---Service Tribunals Act (LXX of 1973), S.4---Imposition of penalties of reversion and recovery of amount---Validity---Appeal---Applicability of Removal from Service (Special Powers) Ordinance, 2000---Two penalties of reversion and recovery of amount were imposed on appellant, but on departmental appeal, order of reversion was set aside, however order of recovery of amount, was maintained and appellant filed appeal against said order of recovery of amount---Validity---Case was of misapplication of law as the charge sheet and order imposing penalties were issued under the Government Servants (Efficiency and Discipline) Rules, 1973 at a time when the Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated; and under Section 11 of said Ordinance, provisions of said Ordinance overrode any other law for the time being in force dealing with the disciplinary proceedings against a. civil servant---Disciplinary proceedings against appellant, in circumstances were ab initio void and nullity in the eyes of law---Penalty of recovery of amount imposed on appellant, was set aside---Authority, however, would be at liberty to hold de novo proceedings against appellant for recovery of amount, taking proceedings under Removal From Service (Special Powers) Ordinance, 2000 within specified period.

M.M. Aqil Awan for Appellants.

Sanaullah Noor Ghauri for Respondents.

Date of hearing: 1st March, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1104 #

2008 P L C (C.S.) 1104

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

BASHARAT HUSSAIN

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI and another

Appeal No.811(K)(C.E.) of 2002, decided on 17th June, 2006.

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

---Ss. 3(1)(b)(c), 5(1)(a) & 10---Service Tribunals Act (LXX of 1973), S.4---Demotion---Appeal---Penalty of demotion was imposed upon appellant after charge-sheeting him and holding inquiry against him on charges that he had used extra official means in securing ante-dated seniority and subsequent promotion in violation of relevant rules---Appellant was exonerated from the charges against him in departmental inquiry, but competent Authority did not accept the recommendation of the Inquiry Officer and ordered for de novo departmental inquiry in which appellant was held guilty of the charges and after issuing him show-cape notice and his personal hearing, impugned penalty was imposed upon appellant---No action was taken against two other employees who along with appellant were held guilty of the allegations/charges, without any cogent reasons---Appellant, in circumstances was subjected to worst kind of discrimination as he was the only person who was penalized without any cogent, reasons---Impugned order of penalty passed against appellant could not be maintained on the ground of said discrimination alone---Impugned order of demotion of appellant was set aside with direction to authorities to restore appellant to his original position with all consequential benefits.

Sanaullah Noor Ghauri for Appellant.

Amanullah Agha for Respondents.

Date of hearing: 17th June, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1107 #

2008 PLC (C.S.) 1107

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

RAHIM BUX

Versus

FEDERATION OF PAKISTAN through Divisional Superintendent, Pakistan Railways

Karachi and 3 others

Appeal No.271(K)(C.S.) of 2002, decided on 27th March, 2006.

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

---Rr. 3(1)(b), 4(1)(b)(iii) & 5---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Major penalty of removal from service after charge-sheeting civil servant, but without holding any departmental inquiry on allegation of misconduct---Preliminary inquiry, though was held into the allegation against appellant, but he was not given any chance to cross examine the witnesses against him---Appellant having denied all allegations against him, holding of regular departmental inquiry was absolutely essential to bring home the charge to the appellant---Preliminary inquiry held against appellant was not sufficient to impose the major penalty of dismissal upon him---No chance of cross-examination and putting up his defence having been given to appellant disciplinary proceedings against him were vitiated and major penalty of removal from service imposed upon him could not be maintained---Allowing appeal impugned order of removal of appellant from service, was set aside with direction to Authority to reinstate appellant in service from the date of his removal.

2005 TD (Service) 332; 2004 PLC (C.S.) 1591; 2005 TD (Service) 328; 2005 PLC (C.S.) 614; PLJ 2Q04 Tr.C. (Services) 166; 1993 SCMR 603; 2004 SCJ 455; 1997 TD (Service) 346; 2004 PLC (C.S.) 595; 1986 PLC (C.S.) 894; 1986 CLC 1408; 1994 PLC (C.S.) 1273 and PLJ 2003 TRC (Service) 69 ref.

Sanaullah Noor Ghauri for Appellant.

Amanul Haq for Respondents.

Date of hearing: 2nd March, 2006.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1110 #

2008 PLC (C.S.) 1110

[Federal Service Tribunal]

Before Justice (R) Mansur Alamgir Qazi and Tariq Farook, Members

MUHAMMAD ASAD

Versus

PAKISTAN RAILWAYS

M.P. No.184 of 2006 in Appeal No.758(L)(C.S.) of 2001, decided on 22nd April, 2006.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Appeal---Counsel for authorities had stated that they were prepared to reinstate appellant in accordance with the judgment of Service Tribunal, but they could not do so because appellant was not willing to refund the gratuity/commutation/pension drawn by him as required under the provisions of the Civil Pensioners Rules No.2605 & 2606/C.S. R.511 & 512---Tribunal, however observed that said Rules were applicable in the case of "re-employment" in service and were not relevant in the case wherein appellant was ordered to be reinstated in service---Appellant who was liable to refund said amount, had stated that he was unable to do so in lump sum, because he was unemployed ever since his compulsory retirement---In order to resolve the matter, it was decided that appellant would be re-instated in service with effect from the date of his compulsory retirement; that since according to judgment of the Tribunal payment of back benefits would depend on out come of the fresh proceedings, period of his un-employment to the date of judgment, could be treated as leave of the kind due, however, if. appellant was exonerated in the de novo proceedings, he would become entitled to receive the full consequential back benefits; that period from date of judgment would be treated as on duty in accordance with the judgment of the Tribunal; that emoluments accruing to the appellant would be adjusted against the amount disbursed to appellant on account of gratuity/commutation/pension; that remaining balance, if any, to be recovered from the appellant would be refunded to appellant in .monthly instalments and that since appellant would be actually reinstated in service he would not receive any pension etc.---Authorities were directed to comply with said orders and finalize the de novo inquiry within specified period.

Ch. Muhammad Arshad Virk for Petitioner.

Muhammad Ishaq Khan for Respondents.

2008 PLC (C.S.) 1167

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD SHAHZAD SHOUKAT

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others

Appeal No.267(K)(C.S.) of 2003, decided on 4th December, 2006.

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

----Ss. 3(1)(a), (b), 5(4) & 10---Service Tribunals Act (LXX of 1973), S.4---Fundamental Rules, F.R.10-A---Removal from service---Appeal---Appellant was removed from service on the basis of unsatisfactory performance and being inefficient worker on the basis of leave of various kinds, already earlier granted to him and also on the basis of his absence from duty---Action of removal from service was taken against appellant mainly on the basis of his taking the leave frequently on medical, grounds and otherwise and also leaving the station of duty without prior permission---Leave was granted to appellant earlier six times, but he remained absent without prior approval of leave on two occasions---No action could be taken against appellant on the basis of leave earlier granted to him and so far as the leave for later two periods was concerned, it was sought on medical grounds---No inquiry was ordered into the circumstances of illness of appellant as claimed by him, which was a serious legal lacunea in the disciplinary proceedings against the appellant, inasmuch as in both show-cause notices, inquiry was not dispensed with and no reason was assigned for it---Imposition of major penalty upon the appellant, without dispensing with the inquiry in the show-cause notice and without holding the departmental inquiry into the circumstances leading to the absence of appellant, was not justified--Efficiency was related to the performance of work, but authorities had not brought on record anything to show the alleged unsatisfactory performance of appellant---Absence or leave was not related to the efficiency, which was quite evident from F.R. 10-A of Fundamental Rules---Authorities had not resorted to the provisions of F.R.10-A of Fundamental Rules for dispensing with the service of appellant on the ground of his alleged inefficiency or unfitness to further retain him in service---Charge of inefficiency against appellant, did not hold water, in circumstances---Appellant, however, left station without obtaining prior permission of concerned Authority, which had constituted misconduct especially when he failed to make out any case for leaving the station in emergency---Such misconduct, however being petty one, did not call for major penalty of removal from service which was too harsh to be maintained---Major penalty of removal from service was converted to the minor penalty of withholding of three increments for a period of three years---Impugned order was set aside and appellant was directed to be reinstated in service---Intervening period would be treated as leave extraordinary.

Muhammad Ismail H. Khan for Appellant.

Asif Mangi, Standing Counsel for Respondents.

Date of hearing: 15th November, 2006.

2008 P L C (C.S.) 1249

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

AHMAD HUSSAIN DAR

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and 2 others

Appeal No.1075(L)(C.S.) of 2000, decided on 1st July, 2004.

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

----Rr. 3, 4(1)(b)(ii), 5, 6 & 7---Service Tribunals. Act (LXX of 1973), S.4---Compulsory retirement from service---Appeal to Service Tribunal---Appellant was compulsorily retired from service on allegations that he had acquired and possessed property, disproportionate to his known resources of income and that he had purchased movable/immovable property without permission of the Competent Authority---Appellant was also alleged to be living beyond his ostensible means of income---No formal inquiry had been held against appellant in spite of his request in that behalf---Considering the nature of allegations against appellant, non-holding of inquiry had caused serious prejudice to him---When serious allegations were levelled against appellant which were controverted by him, formal inquiry had become mandatory---Appellant had made an endeavour to explain his resources which could be determined only through a formal inquiry and not in any other manner---Even otherwise penalty of compulsory retirement did not reconcile with the serious charges levelled against appellant---Such aspect of case would be duly considered by competent Authority depending upon the outcome of formal inquiry---Order of compulsory retirement from service passed against appellant was set aside with direction that a formal inquiry would be held against appellant in accordance with rules and matter would be decided by Competent Authority within specified period.

Ch. Ghulam Qadir for Appellant.

Ch. Khalil-ur-Rehman for Respondents.

Date of hearing: 1st July, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1254 #

2008 P L C (C.S.) 1254

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Qazi Muhammad Hussain Siddiqui, Members

ZAHIR SHAH

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI and 2 others

Appeal No.920(K)(C.E.) of 2002, decided on 6th May, 2004.

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

---Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Major penalty of demotion---Imposition of---Appeal---Major penalty of demotion to lower post was imposed on appellant on allegation that when appellant was appointed as an Inquiry Officer to conduct inquiry against an employee of Corporation, he served statement of allegations and charges upon said accused employee without mentioning his own complete particulars i.e. name,` designation and department thereby creating confusion in the expeditious finalization of inquiry against said employee---Appellant had been proceeded against only on said lapses in conducting inquiry against said employee---No rule existed under which any Inquiry Officer could be proceeded against for any such lapses committed during inquiry proceedings---Show-cause notice issued to appellant was not accompanied by inquiry report against appellant which was mandatory and could not be dispensed with as it would impair defence of appellant---Failure of authorities to supply appellant copy of inquiry report had precluded appellant from contesting any deficiency in the inquiry report through his reply to show-cause notice---Order demoting appellant was set aside and respondent was directed to restore appellant to his original post of Manager.

Sultan Azam v. Government of Punjab 2002 PLC (C.S.) 1521; 2001 TD (services) 361; 2000 PLC (C.S.) 270; 2000 PLC (C.S.) 1252; 1985 PLC (C.S.) 518; 2003 PLC (C.S.) 353; PLD 1981 SC 176; 2000 PLC (C.S.) 857; 1987 PLC (C.S.) 875; 1990 SCMR 1435; 1988 SCMR 1352 and Vice-President (Admn.) National Bank of Pakistan v. Basharat Ali and others 1996 SCMR 201 ref.

Sanaullah Noor Ghouri for Appellant.

Niaz Ahmed Khan for Respondents.

Date of hearing: 7th April, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1262 #

2008 P L C (C.S.) 1262

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

SARWAR ALI SHAIKH

Versus

SECRETARY, MINISTRY OF RAILWAYS, ISLAMABAD and 3 others

Appeal No.638(L)(C.S.) of 2000, decided on 21st February, 2004.

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

----Rr. 3, 4(1)(b)(iii), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S. 4---Removal from service---Appeal---Appellant serving as Assistant Engineer was removed from service after charge-sheeting him and holding inquiry against him on charges of slack supervision and negligence---Appellant had contended that work in question had been done by him under direct supervision of Engineer Incharge and Inspector of Work, but said two officers were let off and were not even charge-sheeted---Appellant had also claimed that he had 39 years unblemished service record---Appellant, however argued that punishment awarded to him was very harsh---With regard to contention of appellant that he had done work in question under the direct supervision of his seniors, it could be said that a public servant had to go by the written rules and instructions and not by the unauthorized instructions alleged to have been issued to him by his seniors---Obedience of unlawful instructions of seniors could never be a good defence in disciplinary proceedings---Each and every case had to be decided on its own merits---Gravity of the charge levelled against appellant was lessened as his work had been supervised directly by his two senior officers, but Competent Authority did not consider such aspect of the case while awarding penalty to appellant---Appellant had prayed for lenient punishment, which would mean that appellant had admitted the charge levelled against him---Penalty of removal from service, was converted into compulsory retirement of appellant---With said modification, order passed against appellant, was set aside.

1996 SCMR 280 and 2000 SCMR 669 ref.

Hafiz Tariq Nasim and Mian Jaffar Hussain for Appellant.

Aurangzeb Mirza for Respondents.

Date of hearing: 21st February, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1274 #

2008 P L C (C.S.) 1274

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

Mirza AZEEM BAIG

Versus

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

Appeal No.185(L)(C.S.) of 2000, decided on 25th June, 2003.

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

----Rr. 3, 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Employee was removed from service after charge-sheeting and holding inquiry against him on charge of theft---Criminal case was also registered against employee, in which he was acquitted by competent Criminal Court---Witnesses, who appeared in departmental inquiry proceedings against employee, did not appear before Criminal Court while the charge of theft was same in both proceedings---Said conduct of witnesses, examined by Inquiry Officer in Departmental inquiry proceedings, was very relevant while determining the guilt of employee which ultimately resulted into his removal from service---Inquiry Officer was required to give definite finding as to the guilt of employee, but from his inquiry report it appeared that he was not very confident about his findings recorded against employee---Inquiry Officer however had adopted a correct legal procedure in conducting inquiry as he had recorded statements of witnesses and had also allowed employee right to cross-examine said witnesses---No defect appeared in inquiry proceedings except said minor irregularity, which had not affected inquiry proceedings in any manner---Charge against him on basis of which he was removed from service was proved---Punishment of removal from service awarded to employee, however, appeared to be very harsh, particularly when witnesses did not appear against him in criminal case against him---Punishment of removal from service, was converted into his compulsory retirement.

Mian Jaffar Hussain for Appellant.

Rana Abdul Majid for respondents.

Date of hearing: 25th June, 2003.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1280 #

2008 P L C (C.S.) 1280

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ARSHAD MUNIR CHUGHTAI

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and another

Appeal No.839(L)(C.S.) of 2003, decided on 30th March, 2004.

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

----Ss. 3, 5(4) & 9(1)---Service Tribunals Act (LXX of 1973), S.4--Removal from service---Competency of appeal---Appellant who was removed from service after issuing him show-cause notice on allegation of absence from duty, filed representation/appeal before competent Authority after 25 days from order of his removal from service---Appellant also filed appeal before Service Tribunal after about 10 months from filing of representation/appeal before competent Authority-Under provisions of S. 9(1) of Removal From Service (Special Powers) Ordinance, 2000 appellant was required to file representation/appeal against order of removal within 15 days---Appellant who had filed representation/appeal and thereafter appeal to Service Tribunal after considerable delay, had not filed application for condonation of the said delay---When no application was filed for condonation of delay, question of condoning delay, could not be considered---Contention that under ESTACODE, appellant could file a Departmental appeal within six months, was repelled because provisions of ESTACODE which were not consistent with law in force, could not be relied upon---Time limit having been fixed for 'filing departmental appeal and appeal to the Service Tribunal under Service Tribunals Act, 1973 and Removal From Service (Special Powers) Ordinance, 2000---ESTACODE, could not overrule or supersede provisions of the said Act and Ordinance and provisions of ESTACODE would be rendered ineffective in presence of clear law.

(b) Void order---

----Illegal order and void order---Distinction---Gulf of difference was between an order which was illegal and an order which was void ab initio---Every illegal order was not void---Void order was that order which was passed by an Authority not competent to pass it---Illegal order was that order which was not passed in accordance with law.

Nazeer Ahmad Quraishee for Appellant.

Date of hearing: 30th March, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1290 #

2008 PLC (C.S.) 1290

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

Ch. MUHAMMAD IQBAL ARSHAD

Versus

WAPDA through Chairman, WAPDA House, Lahore and 2 others

Appeal No.483(L)(C.S.) of 2000, decided on 9th March, 2004.

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

----Rr. 3, 4(1)(b)(iii) & 5---Pakistan Water and Power Development Authority Pension Rules, 1977, Chapter-1, Serial No.7, Notes, 1, 2---Service Tribunals Act (LXX of 1973), S. 4---Removal from service---Appeal--Appellant who was removed from service on certain allegations, without holding any inquiry against him, had filed appeal against order of his removal from service-Appellant had contended that he had already been compulsorily retired from service under S. 17(1-A) of Pakistan Water and Power Development Authority Act, 1958 and that at time when order of his removal was passed against him, he being no more in service, such order was void ab initio---Authority admitted that appellant had been compulsorily retired from service by competent Authority, but had claimed that under Pakistan Water and Power Development Authority Pension Rules 1977 appellant could be proceeded against for any act of omission or commission committed by him during service within one year---Authority had contended that action taken against appellant was according to rules and no illegality had been committed by Authority and that appeal filed by appellant was incompetent---Validity---Appellant having been compulsorily retired from service prior to order of his removal from service, such order stood abated---In absence of any other express provision laid down to deal with the situation, Note-2, Serial No. 7, Chapter 1 of Pakistan Water and Power Development Authority Pension Rules, 1977, would be applicable to deal with cases of all such employees, retired for whatever reason i.e. superannuation or as a result of some punishment and Note-1 of said Rules relied upon by Authority to justify infliction of punishment of removal from service on appellant, was not applicable in the present case---Punishment awarded to appellant, was illegal and could not be sustained.

Ch. Muhammad Rafique for Appellant.

Dr. Muhammad Irtiza Awan for Respondents.

Date of hearing: 8th March, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1298 #

2008 P L C (C.S.) 1298

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL MAJEED

Versus

DIVISION SUPERINTENDENT (WORKSHOPS), PAKISTAN RAILWAYS, MUGHALPURA, LAHORE and another

Appeal No.490(L)(C.S.) of 2000, decided on 30th October, 2003.

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

----Rr. 3, 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after issuing him show-cause notice on allegation that he had collected illegal gratification from workers---Departmental appeal by appellant having been rejected, appellant had filed appeal before Service Tribunal under S.4 of Service Tribunals Act, 1973---On charge of accepting illegal gratification, appellant was tried in the Court of Special Judge (Central) and was acquitted of charge and amount of alleged illegal gratification recovered from appellant was refunded to him---Since appellant had been acquitted by the Court of competent jurisdiction on the same charge on which he had been removed from service, removal order passed against appellant could not sustain---Criminal proceedings against appellant, though had no nexus with Departmental proceedings, but every case had to be decided on its own merits---When charge in criminal Court was exactly the same on which Departmental action was initiated, then judgment of Criminal Court acquitting appellant could not be ignored---In presence of judgment of Criminal Court charge of illegal gratification levelled against appellant in Departmental proceedings, was also not proved---Even otherwise Departmental proceedings initiated against appellant were not legal as appellant was deprived of an opportunity to show that persons who had allegedly apprehended appellant had a reason to falsely implicate him in a case of corruption---Vague allegation had been levelled against appellant and on such allegation he should have not been awarded penalty of removal from service---Authority having failed to make out any case against appellant for which he could be removed from service, order of removal passed against appellant was set aside and he was reinstated in service with back-benefits.

Mian Jaffar Hussain for Appellant.

Naseem Ahmad for Respondents.

Date of hearing: 30th October, 2003.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1302 #

2008 P L C (C.S.) 1302

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD IDREES

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY WAPDA HOUSE, LAHORE and 3 others

Appeal No.160(L)(C.S.) of 2000, decided on 31st March, 2004.

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

----Rr. 3(b), 4(1)(b)(iv) & 6-A---Service Tribunals Act (LXX of 1973), S.4---Service Tribunals (Procedure) Rules, 1974, R. 7---Dismissal from service---Appeal---Appellant, who was dismissed from service on account of misconduct, had filed appeal against his dismissal order---Appeal had been resisted by the Authority on two grounds, firstly that appellant had not filed Departmental appeal before filing appeal before Service Tribunal and secondly that Executive Engineer who had passed dismissal order against appellant was not made party---Appellant had not filed Departmental appeal--Order of dismissal in case was passed against appellant by Executive Engineer, but he was not impleaded in appeal as respondent---Rule 7 of Service Tribunals (Procedure) Rules, 1974 had clearly stated that in every memo of appeal, competent Authority against whose orders appeal was preferred would be shown as respondent---Contention of the Authority was that as by not impleading Executive Engineer as respondent' provisions of R.7 of Service Tribunals (Procedure) Rules, 1974 had been violated, appeal filed by appellant was liable to be dismissed on that ground---Contention was repelled, because appellant had filed appeal against WAPDA and said Executive Engineer was an employee of WAPDA---Appeal by appellant had been properly defended by the Authority notwithstanding non-joinder of Executive Engineer---As no prejudice had been caused to the Authority by non-joinder of Executive Engineer, appeal could not be dismissed on that ground---Appellant had not been discriminated by transferring him from one place of working to another, firstly because so many other employees had been transferred and secondly appellant had worked for 14 years at place from where he was transferred---Even otherwise transfer was an administrative matter and was ordered in routine---Appellant on basis of transfer order could not claim victimization particularly when he already remained at one station for about 14 years---Transfer was not mala fide---Proceedings against appellant were not conducted secretly, but before dismissing him from service, explanation letter and show cause notices had been sent to his last known address through registered Post A.D. and he was also served with notice through a proclamation in WAPDA Khabarnama according to R. 6-A of Pakistan Water and Power Development Authority Employees (Efficiency and Disciplinary) Rules, 1978---Appellant who did not participate in Departmental proceedings was precluded from maintaining that he had been victimized because he had made a genuine complaint against Resident Engineer.

(b) Civil service---

----Departmental appeal, if not filed before the appropriate Authority and was filed before the highest Authority then it is duty of the higher Authority to forward that appeal to the competent Departmental, Authority.

----O. V, R. 20---Substituted service---When a defendant would not accept service of summons and would avoid same, he could be served by publication of notice in a newspaper---Substituted service was deemed in law to be effective and valid service.

Syed Anayat Ullah for Appellant.

Muhammad Iqbal Khokhar for Respondents.

Date of hearing: 31st March, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1312 #

2008 P L C (C.S.) 1312

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD YASIN

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS HEADQUARTERS OFFICE, LAHORE and 5 others

Appeal No.293(L)(C.S.) of 2000, decided on 8th April, 2004.

Civil Servants Act (LXXI of 1973)---

----S. 13---Service Tribunal Act (LXX of 1973), S. 4---Retirement from service---Appeal---Appellant who served the Authority for about 18 years, was medically examined by a Medical Board of Pakistan Railways---Said Board having declared appellant completely and permanently incapacitated for further service, was retired from service---On filing constitutional petition by appellant, Authority was directed by High Court to get appellant medically examined by a Board of Doctors of Combined Military Hospital (C.M.H.)---Said Board after examination, declared appellant medically fit---Appellant on basis of said report, made representation for his reinstatement, but as Chief Medical Officer of Pakistan Railway having failed to submit his report in the light of findings of the Board of the Doctors of C.M.H., High Court issued a direction to the Divisional Medical Officer, Pakistan Railway to ensure submission of report by Chief Medical Officer---In response to direction of High Court, instead of submitting report by Chief Medical Officer, Director Health and Medical Services disposed of application of appellant for his reinstatement relying on report of Psychiatrist of Pakistan Railways---Director who was not Chief Medical Officer, had not given his independent opinion and also had not considered report of Board of Doctors of C. M. H. which had declared appellant medically fit---Director did not apply his own mind and did not even examine appellant himself-Director had not given any reason for rejecting the report submitted by Board of Doctors of C.M.H.---Directions of High Court given in Constitutional petition filed by appellant, in circumstances were not implemented in letter and spirit---Incumbent upon Chief Medical Officer of Pakistan Railways to give his opinion after taking into consideration the report of Board of Doctors of C.M.H.---Appeal by appellant was accepted to the extent that Authority was directed to ensure the implementation of direction issued by High Court in Constitutional petition filed by appellant---Appellant would be examined medically by Chief Medical Officer himself and he would consider the report of Doctors of C.M.H. in which appellant was found fit for service.

Kh. Tariq Masood for Appellant.

Ch. Khalil-ur-Rehman for Respondents.

Date of hearing: 8th April, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1317 #

2008 P L C (C.S.) 1317

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD ANWAR TIPPU

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS HEADQUARTERS, LAHORE and 2 others

Appeal No.258(L)(C.S.) of 2004, decided on 30th March, 2004.

Civil Servants Act (LXXI of 1973)---

----S. 13---Service Tribunals Act (LXX of 1973), S. 4---Retirement on age of superannuation---Age, determination of---Appeal to Service Tribunal---Grievance of appellant was that his date of birth was changed by the Authority without any reason and he was retired on the ground that he had attained the age of superannuation---Appellant instead of filing departmental appeal/representation within prescribed period of limitation, agitated matter relating to his date of birth in High Court by filing Constitutional petition and after dismissal of his Constitutional petition, he filed petition for leave to appeal in the Supreme Court which subsequently was withdrawn by the appellant---After withdrawal of petition for leave to appeal, appellant filed appeal against his grievance before Service Tribunal after more than one year from such withdrawal---Appellant should have filed appeal before Service Tribunal after exhausting his remedy of departmental appeal, but he had not selected the correct judicial forum for redressal of his grievance---Even Constitutional petition which otherwise was incompetent, was filed after considerable delay---Appellant, in application for condonation of delay, had not given good ground for condonation of delay---Selection of a wrong judicial forum was also not a good excuse for getting the delay condoned---Since appellant had not filed departmental appeal, which was a sine qua non for an appeal to Service Tribunal, his appeal was not competent---Appeal otherwise being hopelessly time-barred, was dismissed.

Appellant in person.

Date of hearing: 30th March, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1324 #

2008 P L C (C.S.) 1324

[Federal Service Tribunal]

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

SHER KHAN and others

Versus

Messrs UNITED BANK LIMITED and others

Appeals Nos.154(K) of 1998, 155(K) of 1999 and 483(K)(C.E.) of 2000, decided on 13th April, 2004.

Service Tribunals Act (LXX of 1973)---

---Ss. 2-A & 4---Privatization Commission Ordinance, (LII of 2000), Ss.28, 31, 42---Appeal---Competency---Before appeal could come up for regular hearing, Bank had been privatized through a Notification---After said privatization, Service Tribunal had lost its jurisdiction and in the light of provisions of Ss.28 and 31 of Privatization Commission Ordinance, 2000, all pending cases would come within the ambit of jurisdiction of High Court---Section 42 of Privatization Commission Ordinance, 2000 also had provided that provisions of said Ordinance would have overriding effect all other laws---Appeal, to Service Tribunal in circumstances stood abated.

M.A. Samdani for Appellants (in Appeals Nos.154(K) of 1998 and 155(K) of 1999).

Appellant in person (in Appeal No.483(K)(C.E.) of 2000).

Faisal Ghani for Respondents (in Appeal No.154(K) of 1998).

Abdullah Junior of Ch. Jamil for Respondents (in Appeals Nos.155(K) of 1998 and 483(K)(C.E.) of 2000).

Date of hearing: 8th April, 2004.

PLCCS 2008 FEDERAL SERVICE TRIBUNAL 1326 #

2008 P L C (C.S.) 1326

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Muhammad Zubair Kidwai, Members

ABDUL HAQ and others

Versus

SECRETARY, MINISTRY OF FINANCE, ISLAMABAD and A.G.P.R.

Appeals Nos.1287(R)(C.S.), 1288(R)(C.S.), 1289(R)(C.S.), 1315(R)(C.S.) of 2003 and 139(R)(C.S.) of 2004, decided on 1st June,. 2004.

Civil Service Regulations---

---Regln. 38(c)(1)---Computing Personal Allowance towards pensionery benefits---Validity---Personal Allowance was to be treated as part of the emoluments for the purpose of calculation of pensionery emoluments as long as it remained part of Regln. 38(c)(1) of Civil Service Regulations--Any civil servant who was retired before 23-5-1996 and was drawing Personal Allowance, had to count Personal Allowance so drawn towards his pensionery allowance.

Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 315; Hamid Akhtar Niazi v. Secretary Finance 1996 SCMR 1185; PLD 1996 SC 86; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and others 1999 SCMR 1904; I.A. Sharwani v. Government of Pakistan 1991 PLC (C.S.) 1205; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and ref.

Ijaz H. Shah for Appellants.

Javed Aziz Sindhu, Standing Counsel with D.R. Ali Sher, S.O. for Respondent.

Date of hearing: 8th May, 2004.

High Court Azad Kashmir

PLCCS 2008 HIGH COURT AZAD KASHMIR 11 #

2008 P L C (C.S.) 11

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan Actg. C.J. and Ghulam Mustafa Mughal, J

Sheikh MASOOD IQBAL and others

Versus

AZAD GOVERNMENT through Chief Secretary and others

Writ Petitions Nos.677 of 1999 and 333 of 2003, decided on 14th November, 2007.

(a) Azad Jammu and Kashmir Judicial Service Rules, 1999---

----Item 2, Columns 6 & 8 [as amended by Notification, dated 5-9-2003]---Writ jurisdiction of High Court---Aggrieved person---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.46 & 58 District and Sessions Judges and Additional District and Sessions Judges, posts of---Notification dated 5-9-2003 issued by Law Department reserving quota for Additional Secretaries of Law for their appointment on such posts---Constitutional petition by practising Advocates and members of Subordinate Judiciary challenging wires of such notification---Maintainability---Petitioners claimed eligibility for appointment on such posts against quota reserved for them---Petitioners believed in independence of judiciary and framing of Judicial Service Rules in line with S.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Petitioners, held, were `aggrieved persons' to invoke jurisdiction of High Court.

Azad Government and 3 others v. Genuine Rights Commission and 7 others 1999 MLD 268 rel.

(b) Azad Jammu and Kashmir Judicial Service Rules, 1999---

----Item 2, Columns 6 & 8 [as amended through Notification, dated 5-9-2003] -Azad Jammu and Kashmir Service Tribunals Act, 1975, S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.46 & 58---Writ petition---Maintainability---District and Sessions Judges and Additional District and Sessions Judges, posts of---Notification dated 5-9-2003 issued by Law Department reserving quota for Additional Secretaries of Law for their appointment on such posts---Writ petition by practising Advocate challenging vires of such notification---Maintainability---Petitioner for not being a civil servant neither could seek remedy from Service Tribunal nor had the Tribunal jurisdiction to entertain his appeal---Writ petition was maintainable in circumstances.

Kh. Ghulam Muhammad's case 2001 PLC (C.S.) 321;, Mst. Zabeda Begum v. Azad Government and others 1998 PLC (C.S.) 292 and PIA Corporation and others v. Samina Masood and others PLD 2005 SC 831=2005 PLC (C.S.) 1335 rel.

----Item 2, Columns 6 & 8 [as amended by Notification, dated 5-9-2003]---Azad Jammu and Kashmir Civil Servants Act, 1976, S.23---Azad Jammu and Kashmir Rules of Business, 1985---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.46 & 58--- Writ petition---District and Sessions Judges and Additional District and Sessions Judges, posts of---Notification dated 5-9-2003 issued by Law Department reserving quota for appointment on such post, for Additional Secretaries Law (B-19) of Law Department---Validity---Framing of rules relating to various departments and posts and interpretation thereof was the function of Service and General Administration Department and not that of Law Department---Azad Jammu and Kashmir Judicial Service Rules, 1999 were mandatory for having framed under S.58 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Record showed that after issuance of impugned notification amending Rules, 1999, Chief Justice of High Court had directed for rectification thereof, but no steps had been taken by concerned department---Departure from normal procedure and mandatory rules could not be allowed as same would frustrate statutory rules---Things must be done in prescribed manner or not at all---Appointment on posts of Additional District and Sessions Judge under Punjab Judicial Service Rules, 1994 was made 60% from promotion from amongst Civil Judges-cum-Judicial Magistrates having 10 years service as such, while 40% quota was reserved for initial recruitment practising Advocates having 10 years standing---Azad Jammu and Kashmir Judicial Service Rules, 1999 had been framed in derogation of principle of parity with Punjab, which had been recognized by Government of Azad Jammu and Kashmir---Appointment through transfer from executive officers would militate against concept of independence of judiciary---High Court declared impugned notification to be violative of S.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974 and against principle of parity with Punjab Province.

Azad Government and 6 others v. Faqir Hussain Shah and another 2004 SCR 23; State v. Naseer Ahmed and another PLD 2004 SC (AJ&K) 40; Habibullah v. D.I.-G. Police and 3 others 2004 SCR 378; Accountant-General and another v. Shahid Mehmood and another 2005 SCR 255; Finance Department of AJ&K and 2 others v. Mazhar Iqbal 2003 SCR 155; Kh. Ghulam Muhammad v. Azad Government and others 2001 PLC (C.S.) 321; Ghias-ul-Haq v. Azad Government and others. PLD 1980 SC (AJK) 5; Azad Government and others v. Muhammad Hameed Mughal and others 1994 PLC (C.S.) 637; Kh. Ghulam Muhammad v. Azad. Government and others 2001 PLC (C.S.) 321; Ghulam Mustafa Mughal v. Azad Government and others 1992 MLD 2083; Azad Government and others v. Syed Shakir Shah and others 2002 PLC (C.S.) 821; Sharaf Faridi and others v. Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105 and Iftikhar Ahmed v. Muslim Commercial Bank PLD 1984 Lah. 69 ref.

Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60; Azad Government and others v. Messrs Spintex Ltd. 1998 PTD 3200; Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Ahmed Nawaz Shah v. Chairman Central Board of Revenue, Islamabad and 10 others 2002 SCMR 560; Muhammad Ashraf Qureshi's case Petition No.482 of 2000; Sharaf Faridi's case PLD 1989 Kar. 404 and Abdul Raheem Zubair Butt's case 2003 PLC (C.S.) 664 rel.

(d) Interpretation of statutes---

----Departure from normal procedure and mandatory rules could not be allowed as same would frustrate statutory rules.

(e) Practice and procedure---

----Things must be done in prescribed manner or not at all.

Ch. Muhammad Ibrahim Zia and Mir Sharafat Hussain for Petitioners.

Mumtaz Hussain Kiani, Addl. A.-G. and M. Tabassum Aftab Alvi for Respondents.

PLCCS 2008 HIGH COURT AZAD KASHMIR 29 #

2008 P L C (C.S.) 29

[High Court (AJK)]

Before Sardar Muhammad Nawaz Khan, C.J., Ghulam Mustafa Mughal and Rafiullah Sultani, JJ

MU.HAMMAD TARIQ AMEEN and others

Versus

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

Writ Petitions Nos.385, 388, 395, 396, 412, 422 of 2003, 15, 42, 111, 531 of 2004, 4, 186, 217 and 391 of 2006, decided on 8th November, 2007.

(a) Azad Jammu and Kashmir Ehtesab Act, 2001---

----Ss. 16 & 28---Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, Ss.3(2)(b) & 5(5)---Azad Jammu and Kashmir Service Tribunal Act, 1976, S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47(2)---Writ petition---Civil servant---Corruption, charge of---Issuance of show cause to civil servant under Ss.3(2)(b) & 5(5) of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Writ petition by civil servant challenging vires of Azad Jammu and Kashmir Ehtesab Act, 2001 and Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Maintainability---Service Tribunal had jurisdiction to hear appeal only against final order of departmental authority and while hearing such appeal could look into vires of the rules made by departmental authority---Laws/Acts passed by Legislature would not fall in definition of orders passed by departmental authority---Laws/Acts passed by Azad Jammu and Kashmir Legislative Assembly and Azad Jammu and Kashmir Council were neither orders nor passed by departmental authority, thus, Service Tribunal had no jurisdiction to look into vires thereof---Had penalty been imposed on civil servant by departmental authority after interpreting the rules, then High Court would not have jurisdiction, rather Service Tribunal would have jurisdiction to decide main controversy including vires of the rules---Directions regarding nullification of Laws/Acts dealing with service matters could be sought from High Court by filing writ petition---Writ petition filed by civil servant was maintainable---Principles.

Ghias-ul-Haq's case PLD 1980 SC (AJ&K) 5; 2002 PLC (C.S.) 821 and PLD 2002 SC (AJ&K) 62 rel.

(b) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 9, 10 & 11---Azad Jammu and Kashmir Service Tribunal Act, 1975, S.4---Azad Jammu and Kashmir Interim Constitution Act, 1974, Ss.44, 46 & 49---Writ petition---Right of appeal under S.9 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975---Scope---Appeal under S.9 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 could be filed by civil servant against final order---Provision of S.4, Azad Jammu and Kashmir Service Tribunal Act, 1975 became non-operational by virtue of Ss.10 & 11 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 having overriding effect, --Curtailment of a right attached to service would practically amount to its refusal---Section 10 of the Act of 2001 did not provide right of appeal to court's employee---Competent authority with regard to court's employee for purposes of S.2(a) of Act, 2001 was not Prime Minister or any person authorized by him---Order of competent authority in case of court's employee being subject to scrutiny by Service Tribunal by way of appeal under S.4 of the Act of 1975 would undermine independence of judiciary---Sections 10 & 11 of Act, 2001 and S.4 of the Act, 1975 to the extent of court's employees were violative of S.49 of Azad Jammu and Kashmir Interim Constitution Act, 1974---High Court struck down S.10 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and suspended overriding effect of S.11 thereof till S.10 was suitably amended and till then, civil servant aggrieved by order of departmental authority would have right of appeal under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975---High Court further observed that till establishment of independent Service Tribunal for court's employees, they would be entitled to right of appeal under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 irrespective of provisions of S.10 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Principles.

2003 PLC (C.S.) 664; 1994 PLC (C.S.) 637; 2001 PLC (C.S.) 781; 2002 PLC (C.S.) 442; 2001 PLC (C.S.) 93; 2001 PLC (C.S.) 781 2000 PLC (C.S.) 762; 1983 CLC 1181; 2001 PLC (C.S.) 1; PLD 2001 (AJK) 60; PLD 1980 SC (AJ&K) 5 and 1999 PLC (C.S.) 1439 ref.

2003 PLC (C.S.) 664 rel.

---When a right attached to service is refused or curtailed, then same would practically amount to refusal of that right to service.

(d) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001-

---Preamble, Ss.3, 10 & 11---Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules; 1977, Preamble---Azad Jammu and Kashmir Civil Servants Act, 1976, S.23---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Coexistence of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---Scope---Purpose and intent of legislating Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 was same---Act was a law dealing with terms and conditions of employees of Government and Corporations and a substitution of Rules, 1977 with few exceptions, while its remaining provisions were reasonable, valid and effective law to curb growing tendency of corruption in society---Act provided reasonable classification of servants of Government and Corporations and provided them reasonable right of defence and hearing---Rules, 1977 had become redundant due to overriding effect of S.11 of the Act without providing therein repeal clause---Absence of repeal clause in the Act had created confusion and anomaly in service structure---High Court directed authority to provide repeal clause in Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and amend S.10 thereof suitably---Principles.

(e) Interpretation of statutes---

--Preamble of law or Constitution---Object and functions stated.

Preamble of any law or Constitution cannot be allowed to pluck the other provisions of law embodied in the legislation. The preamble can be looked into and it would help to resolve any controversy with regard to interpretation of any provision of law or Constitution.

(f) Azad Jammu and Kashmir Ehtesab Act, 2001---

----Ss. 16 & 28---Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, Ss.3(2)(b) & 5(5)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Corruption, charge of---Entering of civil servant into plea bargain with Chairman, Ehtesab Bureau during investigation of case---Issuance of show-cause notice to civil servant by Departmental Authority under Ss.3(2)(b) & 5(5) of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 while deeming him to be a convicted person---Validity---Proviso to S.16(1) of Azad Jammu and Kashmir Ehtesab Act, 2001 provided conviction for purpose of disqualification to contest election or hold public office, but not for other purposes---Chairman, Ehtesab Bureau could not be equated with status or function of court---Civil servant had not been convicted by court after regular trial---Departmental authority, in absence of conviction of civil servant through court could not forego normal procedure of holding regular inquiry against him---Plea bargaining being criminal in nature must be with free-will and consent---Release order passed by Chairman on basis of plea bargaining raised during investigation could not be accepted as conviction order unless approved by court---Plea bargaining raised by civil servant, if approved by court to be voluntary, could be made basis of conviction for purposes of Proviso to S.16(1) of Azad Jammu and Kashmir Ehtesab Act, 2001, and S.5(5) of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---High Court quashed impugned notices, struck down Proviso to S.16(1) and S.28 of Ehtesab Act, 2001 with directions to Authority to amend same in accordance with its judgment, and till such amendment was made, operation of S.5(5) of Special Powers Act, 2001 would remain suspended.

PLD 2003 SC 837; PLD 2002 Lah. 607; Tehreek-e-Amal's ease PLD 1985 (AJK) 85; 2007 SCR 62; 2002 PLC (C.S.) 821; 1995 PLC (C.S.) 46; 1994 CLC 2339; PLD 957 SC (Pak.) 157, PLD 1983 SC (AJK) 95, PLD 1979 SC (AJ&K) 139; PLD 1988 SC 416; 465, PLD 1997 SC 473; PLD 1992 SC 295 and PLD 1992 FSC 412 ref.

Syed Ali Nawaz Shah and 2 others' case PLD 2003 SC 837 rel.

(g) Azad Jammu and Kashmir Ehtesab Act, 2001---

----Ss. 6 & 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.2, 31 & 44---Provisions of Ss.6 & 7 of Azad Jammu and Kashmir Ehtesab Act, 2001---Scope---Azad Jammu and Kashmir Ehtesab Act, 2001 provided mechanism to eradicate corruption and corrupt practices committed by persons in service of Azad Jammu and Kashmir or in service in connection with its affairs---Such persons, if involved in corruption and corrupt practices, would be subject to accountability by Ehtesab Bureau---Act would come within legislative competence of Azad Jammu and Kashmir Legislative Assembly, which was neither a legislation into affairs of Council nor was included in Council's Legislative List---Effect---Legislative Assembly had competently enacted Azad Jammu and Kashmir Ehtesab Act, 2001---Principles.

2001 PLC (C.S.) 781; 2002 PLC (C.S.) 442; 1983 CLC 1181 and Asfand Yar Wali's case PLD 2001 SC 607 ref.

Ch. Muhammad Ibrahim Zia, Mujahid Hussain Naqvi, Raja Faisai Majeed, Syed Nazeer Hussain Shah Kazmi, Syed Shahid Bahar, Saddaqat Hussain Raja and Raja Raza Ali Khan for Petitioners.

Raja Muhammad Hanif Khan, Chief Prosecutor Ehtesab Bureau, Raja Gull Majeed Khan, A.-G., Sardar Muhammad Habib Zia and Abdul Hameed Khan Shahid for Respondents.

Islamabad

PLCCS 2008 ISLAMABAD 1179 #

2008 P L C (C.S.) 1179

[Islamabad High Court]

Before Dr. Sajid Qureshi, J

BASHIR AHMAD SHEIKH

Versus

SME BANK LIMITED

Writ Petition No.2435 of 2006, decided on 29th April, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Master and servant---Bank employee---Voluntary Separation. Scheme offered by the Bank to its employees was a purely contractual matter between the Bank and its employees---Said Scheme, in the present case, was offered to the employee/petitioner which was accepted by him as a full and final settlement---Employer Bank had no statutory rules which governed the terms and conditions of service of office employees which indicated that the petitioner did not have a clear legal right and a question of breach, therefore, did not arise---Petitioner, while accepting the final payment of the Scheme, made no reservations, dispute or grievance as to the amount that was given, thereby indicating that he was satisfied with the final payment---Issue of the amount calculated on the last pay drawn appeared to be an afterthought, which was reflected in the delay of raising same before the competent forum (1-1/2 years later)---Matter related to the dispute of facts, calculation based upon service benefits and so on a concluded contract and was not a suit for recovery of monies for which there was another forum available to the petitioner---Relationship of master and servant was also drawn here and the petitioner could also seek relief before another forum---Remedy being not available before the High Court, constitutional petition was dismissed in circumstances.

Civil Petitions Nos.2001, 2019, of 2000; 2001 SCMR 884; 2005 SCMR 235; 2008 PLC (C.S.) 134; 2007 PLC (C.S.) 419; PLD 2002 SC 1079; 1998 SCMR 988; Zia Abidin v. Multan Central Cooperative PLD 1996 SC 445; PLD 1959 SC 210; PLD 1976 Kar. 778; PLD 1984 SC 194; 1988 SCMR 597; 1990 SCMR 1404; 1991 SCMR 2434; Anis-ur-Rehman v. P.A.I.C. 1994 SCMR 2232 and 2005 MLD 1798 ref.

Abdul Rahim Bhatti for Petitioner.

Nadeem Hassan for Respondent.

Date of hearing: 25th April, 2008.

PLCCS 2008 ISLAMABAD 1219 #

2008 P L C (C.S.) 1219

[Islamabad High Court]

Before Dr. Sajid Qureshi, J

MUHAMMAD ASGHAR ZARDARI and others

Versus

C.D.A. and others

Writ Petition No.2142 of 2007, decided on 22nd May, 2008.

Pakistan Engineering Council Act (V of 1976)---

----S.27 (5A)---Capital Development Authority Employees Service Regulations, 1992---Constitution of Pakistan (1973), Arts.25 & 199---Constitutional petition---Promotion---Registered Engineers---B.Sc. Civil Engineering' andB-Tech. (Hons)'---Distinction---Grievance of petitioners was that B.Sc. Civil Engineering was not at par with B-Tech (Hons.) and respondents were promoted illegally instead of them---Validity---Only registered and professional engineers had the right to be appointed to perform professional engineering work---Such right had been endorsed by amendments made in Capital Development Authority Employees Service Regulations, 1992---Any appointment of non-qualified engineers into professional engineering work was a clear violation of law and violator could be punished under the same law--Authorities could not promote non-professional, non-registered and non-graduates who had Diplomas and B-Tech certificates which were not equivalent in any way with professional engineering degrees against posts specified for professional engineers---B-Tech (Hons.) degree and Diploma of Associate Engineering were not at par with B.Sc. (Civil Engineering), hence they could not be appointed against the posts specified for professional engineers duly registered with Pakistan Engineering Council, which was the only regulatory body for engineering profession in Pakistan---Pakistan Engineering Council had not registered un-qualified engineers such as those with cadre which contained post specified for engineers, the registration with Pakistan Engineering Council was a must---If authorities promoted individuals not only in violation of Pakistan Engineering Council Act, 1976, and Capital Development Authority Employees Service Regulations, 1992 but also in violation of fundamental rights, guaranteed particularly under Art. 25 of the Constitution, which guaranteed equal protection of law, such promotion was illegal and unjust as the promotees did not have B.Sc. Engineering degrees and were not registered with Pakistan Engineering Council as required by law---High Court directed the authorities not to consider diploma holders/B-Tech. (Hons.) for promotion against posts specified for professional engineers unless they were registered with Pakistan Engineering Council as required under the law and if they were required to perform professional engineering works---Petition was allowed accordingly.

1999 SCMR 1689; Fida Hussain v. Secretary PLD 1995 SC 701; D.B. Decision, Balochistan High Court CB 112 of 1196; Dr. Muhammad Hussain v. Principal Ayub Medical College PLD 2003 SC 143; Ch. Abdul Rashid v. C.D.A PLD 1979 Lah. 803; Muhammad Idrees v. A.D.B.P. and others Civil Appeal No.1394 of 1999; 2003 SCMR 1128; 2003 SCMR 410; Mirza v. Federation of Pakistan 1994 SCMR 1024; Mobeen Islam case PLD 2006 SC 202 and Asad Bashir v. Chairman 2006 PLC (C.S.) 110 ref.

Muhammad Akram Sheikh for Petitioner.

Barrister Masroor Shah for Respondent No.1.

Zafar Minhas for Respondent No.2.

Ch. Imtiaz Ahmad for Respondents Nos.5 and 6.

Date of hearing: 13th May 2008.

Karachi High Court Sindh

PLCCS 2008 KARACHI HIGH COURT SINDH 87 #

2008 P L C (C.S.) 87

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Faisal Arab, J

MASOOD AHMED

Versus

MINISTRY OF SHIPPING and others

C.P.D. No.7 of 2007 and 1349 of 1999, heard on 29th August, 2007.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Entitlement---Petitioner who was appointed Assistant Shipping Master in 1990 through the Public Service Commission, was promoted as Deputy Shipping Master in 1995 on regular basis---Post of Deputy Shipping Master at that point of time was in BPS-16 and petitioner continued to remain in his original pay scale---Post of Deputy Shipping Master was upgraded to BPS-18 through a subsequent Notification in 1998 and those of Assistant Shipping Master to BPS-17, but benefit of upgradation was not given to the petitioner---New Rules relating to appointment, transfer and promotion were enforced whereunder the post of Shipping Master BPS-19 was to be filled through promotion of Deputy Shipping Master BPS-18 in 2001---Petitioner claimed that upon upgradation of the post of Deputy Shipping Master in BPS-18 he was entitled to be promoted to the. position of Shipping Master, but said claim of petitioner was denied---When petitioner had been duly promoted as Deputy Shipping Master in 1995, it was absolutely incomprehensible why he was denied benefit of the upgraded post in 1998---Petition was allowed to the extent that petitioner be treated as having been promoted as Deputy Shipping Master in BPS-18 with effect from 1-4-1998 and be considered for promotion to the position of Shipping Master in 2005---Petitioner, however, would not be entitled to claim back benefits as same were not claimed in the present proceedings.

Ahmed Hassan Rana for Petitioner.

Chowdhry Rasheed Ahmed for the Respondents Nos.1 and 2.

Rizwan Ahmed Siddiqui, D.A.G. for Respondents Nos.3 and 5.

Khalid Mehmood for Respondent No.4.

PLCCS 2008 KARACHI HIGH COURT SINDH 129 #

2008 P L C (C.S.) 129

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Nadeem Azhar Siddiqi, J

MUHAMMAD BOOTH SARWAR

Versus

SECRETARY and others

C.P. No.D-1529 of 2007, decided on 28th July, 2007.

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

----S. 3---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Maintainability---Petitioner being a civil servant was aggrieved by show-cause notice purportedly issued under S.3 of Removal from Service (Special Powers) Ordinance, 2000, requiring petitioner to show-cause why major penalty of dismissal from service should not be imposed upon him---Petitioner being a civil servant, jurisdiction to decide such matters, vested in Service Tribunal under Art.212 of the Constitution and constitutional petition before High Court would normally not be maintainable---Petition was dismissed, in circumstances.

S. Shoa-un-Nabi for Petitioner.

PLCCS 2008 KARACHI HIGH COURT SINDH 134 #

2008 P L C (C.S.) 134

[Karachi High Court]

Before Sarmad Jalal Osmany and Sajjad Ali Shah, JJ

MUMTAZ SULTANA and 103 others

Versus

STATE BANK OF PAKISTAN and others

C.P. No.D-969 of 2005, decided on 14th November, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Service Tribunal or High Court deciding a point of law relating to the terms of service of a civil servant which covered not only the case of civil servant who agitated the matter but also of other civil servants, who had not taken any legal proceedings---Dictates of justice and rule of good governance, in such a case, demanded that the benefit of the said judgment be extended to other civil servants, as well who were not parties to said litigation, 'instead of compelling them to approach the Service Tribunal or any other legal forum---Contention of counsel for respondent that constitutional petition was not maintainable before High Court since question of facts were in the issue, was repelled, because there was no dispute that predecessors-in-interest of the petitioners did exercise their right under the Golden Handshake Scheme, but issue was whether they were to be treated at par with those employees, who had approached the Supreme. Court---Only by reason of a burden being levied upon the exchequer, where benefit was extended to petitioners, was no reason to dismiss the petition.

Muhammad Nawaz v. Ministry of Finance 1991 SCMR 1192; Syed Athar Saeed v. Director General PBC 2005 PLC (C.S.) 853; Manzoor Ahmed v. Chief Executive HESCO 2005 TD (Service) 428; Ghazala Tarique v. Federation of Pakistan 2005 PLC (C.S.) 27f; Ghulam Sadique Wadhera v. Pakistan and others 1982 PLC (C.S.) 743, Ahmed Khan v. Secretary to the Government of Balochistan 1993 PLC (C.S.) 1615; Nizamuddin v. Civil Aviation Authority 1999 SCMR 467; PIAC through Chairman v. Shahzad Farooq Malik PLD 2004 SC. 145; Deputy Inspector-General of Police v. Shafique-ur-Rehman 2000 SCMR 669; District Accounts Officer v. Muhammad Sarwar 1998 PLC (C.S.) 1025; Allah Yar v. General Manager, Railways H.Q. Lahore 2001 SCMR 256; Mst. Bashiran. Bibi v. Government of Punjab through Secretary of Communication 2000 PLC (C.S.) 467; Hameed Akhtar Niazi v. The Secretary Establishment Division 1996 SCMR 1185; Tara Chand v. KW and SB 2005 PLC (C.S.) 368; Inamul Haq Shah v. Government of Punjab 2006 PLC (C.S.) 11; Superintending Engineer Highways Circle Multan v. Muhammad Khurshid 2003 SCMR 1241; Sahlbzada K.A.K. Afridi v. Allied Engineering and Services Limited 2004 SCMR 523; Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943; The Chairman, PIAC v. Nasim Malik PLD 1990. SC 951; Messrs Shahid Agency v. The Collector of Customs (Appraisement) 1989 CLC 1938; Bhagan v. State PLD 1990 Quetta 41; Muhammad Farooq v. The Collector of Customs 1987 CLC 1229; Azizur Rehman, Ex.G.M. Bara Cigarette Factory v. FATA Development Corporation Peshawar PLD 1988 Pesh. 9; Haji Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6; PLD 2005 SC 796; Ali Enterprises v. federal Government 1995 CLC 1289; Arshad Jawad Khan v. Government of Pakistan 1995 MLD 1393 and Muhammad Akhtar Khan v. Executive Officer, Multan Cantonment Board, Multan 1994 CLC 919 ref.

Abdul Rahim Bhatti for Petitioners.

Khalid Anwar for Respondents.

Ziauddin Nasir, Standing Counsel.

PLCCS 2008 KARACHI HIGH COURT SINDH 141 #

2008 P L C (C.S.) 141

[Karachi High Court]

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

TARIQ HEHMOOD and 17 others

Versus

FEDERATION OF PAKISTAN, MINISTRY OF TELECOMMUNICATION through Secretary, Islamabad

Constitutional Petition No.1616 of 2005, decided on 5th April, 2006.

Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), Ss.8 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion and Seniority---Implementation of order of the Service Tribunal---Order of the Service Tribunal having not been complied with by the authorities for almost a year, appellants/petitioners had filed the petition seeking a direction against the respondents to implement the order of the Service Tribunal---Service Tribunal was a creature of the Constitution required to adjudicate upon the terms and conditions to civil servants and hear appeals against the decisions of the Government in that respect---Decisions of the Tribunal were required to be followed as a matter of law---In the present case such directions were not obeyed---Court was under a constitutional duty to direct authorities to do what they were required to do within a reasonable time---Power to punish for contempt being not available with the Service Tribunal, recourse to filing a petition was eminently the only remedy available to the petitioners---Petition was allowed with direction to authorities to amend the seniority list in accordance with the directions of the Tribunal and to convene a meeting of Departmental Promotion Committee, within a specified period.

Gohar Iqbal and Iqbal Shah for Petitioners.

Sanaullah Noor Ghori along with Raja Iviz Mehmood, Law Officer for Respondents Nos.2 and 3.

PLCCS 2008 KARACHI HIGH COURT SINDH 220 #

2008 P L C (C.S.) 220

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Faisal Arab, J

SALMAN ADIL SIDDIQUI and others

Versus

PROVINCE OF SINDH and others

C.P. No.D-2193 of 2006, decided on 5th October, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Appointment---Grievance of petitioners was that despite having been selected for appointment through the Public Service Commission, they had not been issued appointment letters---Authorities had contended that recommendations of the Public Service Commission were forwarded with a summary to the competent authority, but no orders had been passed thereon---Authorities had claimed that in the absence of such order, there was no guarantee for their appointment---Contention was repelled on the ground that though recommendations of Public Service Commission did not create the strict vested- right, but at least they gave rise to a legitimate expectation---Recommendations of such a body ordained by the Constitution, could not be brushed aside, except for very good reasons---Once the recommendations of the Public Service Commission were available with the Department, an appropriate order in terms thereof or rejecting those for valid and proper reasons, ought to have been passed within a reasonable time---Any Authority endowed with the performance of public duties, could not neglect to perform its duties indefinitely---Authorities were directed by High Court that decision on a summary be taken within specific period.

Manthar Ali Jatoi v. Government of Sindh 1998 PLC (C.S.) 344 and Chairman Regional Transport Authority v. Pakistan Mutual Insurance Company PLD 1991 SC 14 ref.

Shoa-un-Nabi for Petitioner.

Abdul Jabbar Lakho, A.A.-G. for Respondents.

PLCCS 2008 KARACHI HIGH COURT SINDH 571 #

2008 P L C (C.S.) 571

[Karachi High Court]

Before Nadeem Azhar Siddiqi, J

AIJAZ AHMED

Versus

STATE CEMENT CORPORATION OF PAKISTAN (PVT.) LTD. and others

C.P. No.D-1972 of 2006, decided on 4th February, 2008.

(a) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. 4-H, R.3---Opinion recorded before delivery of judgment---Non-availability of one Judge of the Bench---Division Bench of High Court had dismissed the appeal by short order and detailed judgment was yet to be recorded when one of the two Judges ceased to be Judge of the High Court---Effect---Matter was placed before Chief Justice by reference who had allowed the other Judge of the Bench to deliver the judgment.

Ghulam Hussain v. The State PLD 1981 Kar. 711 and Office Reference, dated 28-4-1981 PLD 1982 Kar. 250 fol.

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

----Art. 199---Constitutional petition---Declaration of title---Contractual obligation---Petitioner retired on attaining age of superannuation and was granted gratuity at the rate of one month's salary for each completed year---Grievance of petitioner was that gratuity was not granted to him in terms of Memorandum of Settlement entered into between employer Corporation and Officers Welfare Association---Plea raised by authorities was that petitioner was not employee of the Corporation---Validity---Orders transferring petitioner from one company to the other company and promoting him in the other company were passed on the letter head of the Corporation which reflected that some authority vested in the Corporation as a corporate entity was purported to be exercised and its Chairman was not acting in his capacity as Chairman of another corporate entity---If Chairman of the Corporation had only passed the order in capacity of an ex-officio Chairman of an associated company, he could only terminate the services of employee of the company where the petitioner was employed and had re-employed him in another company but certainly no power to transfer a person from one company to another could be exercised when two companies were to be treated as separate and independent entities---If petitioner was to be treated as an employee of a company being a completely independent legal entity having nothing to do whatsoever with the Corporation, there could be no question of stipulation in promotion order enabling the Corporation as a corporate entity to transfer him to another company or Corporation---Certificate of continuous service issued by the Corporation itself at the time and after petitioner had left one company and had joined the other was completely inconsistent with the position taken up by the Corporation---Petitioner to all intents and purposes, was required to be treated as an employee of the Corporation---Petition was allowed accordingly.

Petitioner in Person.

Ghulam Mustafa Lakho for Respondent No. 1.

S. Mahmood Alam Rizvi Standing Counsel for Respondent No.2.

PLCCS 2008 KARACHI HIGH COURT SINDH 589 #

2008 P L C (C.S.) 589

[Karachi High Court]

Before Munib Ahmad Khan and Dr. Rana Muhammad Shamim, JJ

Syed KASHIF RAZA

Versus

P.I.A. CORPORATION and others

C.P. No.D-2377 of 2006, decided on 4th December, 2007.

Sindh Removal from Service (Special Powers) Ordinance (IX of 2000)---

----Ss. 3, 5, 6 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Misconduct---Removal from service---Petitioner was removed from service after issuing him show-cause notice and holding inquiry against him on allegation of theft---Charge against petitioner was that he was caught red-handed while stealing some items from the Duty Free Shop at International Airport---Allegation of theft against petitioner was based on third party report, which could not be termed as partial---Petitioner had admitted theft by endorsing in his own handwriting with signature on "Apprehended Shop Lifter Report"---Said admission of petitioner had involved him in the shop lifting which from all corners fell within the meaning of "misconduct"---Employer, in circumstances was very much entitled to take action against petitioner and removal of petitioner in that respect could be termed as proportionate punishment as it was a serious kind of misconduct and also fell within the meaning of crime punishable even under the penal laws---Petitioner had participated in inquiry against him with full knowledge of nature of allegations and had submitted his replies---Petitioner was provided proper opportunity to defend his case---Personal hearing, other wise was not legal requirement and it depended upon the option of the employer; it could be termed as supplementary and could be ordered, if there remained some deficiency in the enquiry or any explanation was further needed from the person acted against----Quantum of amount or the gravity of the act was not very much material for the action to be taken and it was to be seen as to whether, in given circumstances, the alleged act amounted to misconduct and should be proceeded against or not-Act of shop lifting from all angles fell within the meaning of "misconduct", thus petitioner was rightly removed from service.

1997 SCMR 1073; 2007 PLC (C.S.) 81; 2002 SCMR 692; 1993 SCMR 1440; 2001 SCMR 934; 2003 PLC (C.S.)7; 2002 TD 331; PLD 1981 SC 225; PLD 1996 SC 787; 1975 SCMR 46; 1975 SCMR 46 and 2003 PLC (SC) 1247 ref.

Shabir Ahmed Awan for Petitioner.

Shahid Anwar Bajwa for Respondents.

PLCCS 2008 KARACHI HIGH COURT SINDH 598 #

2008 P L C (C.S.) 598

[Karachi High Court]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

GHULAM MURTAZA BHUTTO

Versus

PROVINCE OF SINDH and others

C.P. No.D-2261 of 2007, decided on 22nd January, 2008.

Sindh Councils Unified Grades Service Rules, 1982---

----Rr. 11 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer---Petitioner had submitted that he was posted by transfer at place 'K' on the post where respondent was posted; he claimed that he submitted his joining report and started discharging his duties at said place of his working---Petitioner had alleged that respondent was using political influence to get himself posted at said place 'K' where petitioner was duly transferred---Petitioner had alleged that a letter was issued by the Private Secretary of Minister concerned to the Authority directing him to withdraw order of transfer of petitioner at place 'K'---Documents placed on record had clearly proved that impugned orders were passed by the Secretary, Sindh Local Government Board and no indication was found that any Private Secretary to any Minister or anybody else went on seeking illegal orders or was misusing his authority to influence his superior officers, in any case, even if such events actually took place, disputed question of fact, could not be enquired into by the High Court in the proceedings of constitutional petition; and that petitioner had necessarily to approach competent forum for the purpose of seeking enquiry into the allegations as made by him in the constitutional petition---Petition was dismissed, leaving petitioner at liberty to approach competent forum for the purpose of proof of the allegations as made by him in the petition.

Muhammad Nawaz Shaikh for Petitioner.

Chaudhry Rasheed Ahmed along with Mrs. Saeeda Siddiqui for Respondent No.4.

Fareed A. Dayo, A.A.-G.

PLCCS 2008 KARACHI HIGH COURT SINDH 671 #

2008 P L C (C.S.) 671

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Syed Mahmood Alam Rizvi, JJ

Dr. MALLICK MAROOF IMAM

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and 7 others

C.P. No.D-1821 of 2006, decided on 11th February, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 2(a)---Service Tribunals Act (LXX of 1973), Ss.2-A, 4 & 5---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Dismissal from service--Employee of State controlled Corporation---Remedy---Irrespective of such employee not being civil servant, such Corporation would continue to remain amenable to jurisdiction of High Court under Art.199 of the Constitution---Rule of master and servant would not apply to cases involving violation of statutory provisions or of any other law, rather in such cases, High Court would be competent to grant relief of reinstatement---Expressions "law" and "violation of law" explained.

Irrespective of being an employee of a State controlled Corporation not being a civil servant, the employees of such Corporation continue to remain amenable to the jurisdiction of High Court under Article 199 of the Constitution. The rule of master and servant is not applicable to cases where there is violation of statutory provisions or of any other law. The expression "violation of law" would not be confined merely to violation of any specific provisions of a statute, but the expression "law" ought to be considered in its generic sense as connoting all that is treated as law in Pakistan including even the judicial principles laid down from time to time by the superior courts. According to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, for instance, include the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the court would be competent to grant relief of reinstatement.

Muhammad Aslam v. WAPDA and others 2007 SCMR 513 ref.

Muhammad Mubeen-us-Salam's case PLD 2006 SC 602; Muhammad Dawood and others' case C.P. No.1591 of 2006 and Government of West Pakistan v. Begun Agha Abdul Karim Sorish Kashmiri PLD 1969 SC 14 fol.

Sarni Ahsan for Petitioner.

Rizwan Ahmed Siddiqui, D.A.-G. for Respondents Nos.1 to 3.

Faisal Kamal for Respondent No.4.

Nemo for Respondents Nos.5 to 8.

Date of hearing: 20th November, 2007.

PLCCS 2008 KARACHI HIGH COURT SINDH 814 #

2008 P L C (C.S.) 814

[Karachi High Court]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

SALMAN SABIR

Versus

CHAIRMAN PAKISTAN STEEL and others

C.P. No.D-1902 of 2007, decided on 28th February, 2008.

Sindh Removal from Service (Special Powers) Ordinance (IX of 2000)---

----Ss. 3, 5, 6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Petitioner was removed from service after charge-sheeting him and holding inquiry against him on charge of misconduct/misappropriation of some amount at his hands---Enquiry held against petitioner was most unfair inasmuch as despite repeated request of petitioner inquiry report was not supplied to him---When the employers had pleaded that enquiry proceedings were duly held against the employee, employee was necessarily to be supplied with a copy of enquiry report and in the absence of receipt for supply of the same to the employee by the employers, presumption of law was to be drawn that such a plea on the part of employers was to be taken having not been proved---Allowing petition, impugned penalty of removal from service of petitioner by the employers, was set aside with direction to the employers that petitioner would stand reinstated in the service.

Masood Mukhtar Naqvi for Respondents Nos.1, 2 and 3.

PLCCS 2008 KARACHI HIGH COURT SINDH 820 #

2008 P L C (C.S.) 820

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Mehmood Alam Rizvi, JJ

IMRAN AHMED KHAN

Versus

PAKISTAN through Secretary, Ministry of Defence and another

C P. No.D-1766 of 2006, decided on 31st December, 2007.

(a) Interpretation of statutes--

----Statutory provision being open to more than one interpretation---Effect---Court would choose that interpretation, which represented true intention of legislator as essence of law would lie in its spirit and not in its letters----Principles.

When a statutory provision is open to more than one interpretation, then the court has to choose that interpretation which represents the true intention of legislator. The essence of the law lies in the spirit, not in its letters for the letter is significant only as being the external manifestation of the intention that underlies it.

United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990 rel.

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

----Regln. 4---Civil Servants Act (LXXI of 1973), S.2(a)---Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order (6 of 2001), Arts.3 & 4--Employee of Pakistan International Airlines Corporation---Termination of service of employee on abolition of post due to reorganization of Corporation---Non-issuance of show-cause notice to such employee---Validity---Corporation did not have statutory rules and regulations---Such employee even though not being a civil servant would have right of having a show-cause notice and hearing---Relationship between Corporation and its employee would be that of master and servant---Corporation was empowered to terminate service of its employee on abolition of post due to its re-organization--Principles.

Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. Md. Serajul Haque 1970 SCMR 398 and Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 rel.

----"Audi alteram partem"---Applicability---Scope---Maxim would be applicable to all judicial and non-judicial proceedings and would be read into every statute, even if right of hearing was not, expressly provided therein.

(d) Natural justice, principles of---

----Conflict between a basic natural right born out of natural justice and a provision of law either general or special---Effect---Such natural right should prevail.

(e) Res judicata, principle of---

----Every issue should be once fairly tried and concluded for ever between parties---Decision would be res judicata regardless of fact whether same was correct or incorrect---Remedy of appeal would be available to a party considering such decision to be incorrect.

(f) Estoppel---

----Waiving of right to challenge an order would amount to estoppel by conduct.

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

----Regln. 4--Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Employee of Pakistan International Airlines Corporation---Appeal before service Tribunal---Reinstatement in service by Service Tribunal after accepting employee's appeal---Operation of impugned judgment suspended by Supreme Court in petition for leave to appeal filed by Corporation---Abatement of all pending service appeals on basis of judgment of Supreme Court subsequently passed in Muhammad Mubeen-ul-Salam's case reported as PLD 2006 SC 602---Impugned judgment of Service Tribunal not further challenged by Corporation---effect---Impugned judgment of Service Tribunal reinstating employee in service would hold field.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD. Serajul Haque 1970 SCMR 398; National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others 1975 PLC 1; Annosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah. 568; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan and others 2000 SCMR 928; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214; Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434; Iftikhar Mubeen Arshee v. Deputy Commissioner/Chairman, Board of Governors, Kasur Public School and others 2004 PLC (C.S.) 1232; Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244; Dr. Mrs. Noushaba Syed v. Chairman, Pakistan International Airlines Corporation, Karachi and others 2004 PLC (C.S.) 480 and Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313 ref.

Dr. Muhammad Farough Naseem for Petitioner.

Shahid Anwar Bajwa for Respondent No.2.

Dates of hearing: 26th and 27th November, 2007.

2008 P L C (C.S.) 1294

[Karachi High Court]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD BUDHAL MEMON and others

Versus

PROVINCE OF SINDH and others

Constitutional Petitions Nos.D-1995, 2148 and 2535 of 2007, decided on 13th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-Education Department, employees of---Appointment as Learning Coordinators---Redesignating posts of Learning Coordinators as Primary School Teachers in their own pay and grades---Validity---Learning Coordinators enjoying BPS-16 would be entitled to work as Secondary School Teachers and those serving in BPS-11 would be entitled to be appointed as Primary School Teachers in their own grades and pay to which they were entitled to on date of filing of constitutional petition---High Court directed concerned Department to implement such order in letter and spirit.

Abdul Mujeeb Pirzada and Khalid Shah for Petitioners.

Ms. Haleema Khan, Addl. A.-G. Sindh.

Lahore High Court Lahore

PLCCS 2008 LAHORE HIGH COURT LAHORE 1 #

2008 P L C (C.S.) 1

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD ZAKA ULLAH

Versus

SECRETARY (CHAIRMAN, RAILWAYS) and another

Writ Petition No.10298 of 2007, heard on 30th November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Art.32---Constitutional petition--- Civil service---Move-over---Grant of--Complainant/petitioner, alleging discrimination in the matter of grant of move-over, filed complaint before Wafaqi Mohtasib (Ombudsman), which was allowed and move-over was recommended to be granted to petitioner with arrears of pay/allowances and pensionary benefits---Department assailed such recommendations through constitutional petition before the High Court---Orders/recommendations were revisable under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, but Department did not avail such remedy and gave no explanation for such failure---High Court refused to interfere in the recommendations of Wafaqi Mohtasib in exercise of its discretionary constitutional jurisdiction---Order/recommendation made by Wafaqi Mohtasib, in circumstances merged into the order of the High Court, which had never been assailed before the higher forum---Legal efficacy of said order could not be eroded due to some subsequent events or by mere passage of time---Right having accrued to the petitioner had merged into the judgment of the Court and had matured, its nullification was not possible through an executive/administrative measure---Judgment which had become final to all intents and purposes, could not be frustrated in the manner it was sought to be done---Any such action was unsustainable in law and was so declared---Constitutional petition was allowed.

Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal and others 1986 SCMR 1071; Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859; Secretary to the Government of Punjab v. Ghulam Nabi and others PLD 2001 SC 415; Works Cooperative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180 and Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 ref.

Muhammad Nasim Sabir Chaudhry for Petitioner.

Irfan Masood Sheikh, Legal Advisor, Pakistan Railways for Respondents.

Date of hearing: 30th November, 2007.

PLCCS 2008 LAHORE HIGH COURT LAHORE 4 #

2008 P L C (C.S.) 4

[Lahore High Court]

Before Syed Shabbar Raza Rizvi and Syed Hamid Ali Shah, JJ

SHAHID MAHMOOD KHAN, ADVOCATE, HIGH COURT

Versus

GOVERNMENT OF PUNJAB, through Chief Secretary, Punjab, Lahore and 4 others

Writ Petition No.9529 of 2007, decided on 19th November, 2007.

Provisional Constitution Order (1 of 2007)---

----Art. 2---Punjab Public Defenders Service Ordinance (XVI of 2007), S.4(3)---Punjab Recruitment Policy, 2004---Constitution of Pakistan (1973), Art.199---Constitutional petition-Maintainability-Contract--Recruitment-Appointments of Public Defenders were assailed by petitioner on the ground that the same were being made in violation of Punjab Recruitment Policy, 2004---Contention of authorities was that after promulgation of Provisional Constitution Order, 2007, constitutional petition under Art.199 of the Constitution was not maintainable---Validity---Jurisdiction of High Court under Art.199 of the Constitution could still be exercised except in matters covered by Provisional Constitution Order, 2007---Selection of Public Defenders under Punjab Public Defenders Ordinance, 2007, was not subject-matter of Provisional Constitution Order, 2007, therefore, constitutional petition was maintainable---High hurt directed the authorities to make all appointments through process prescribed under the law and rules and no appointment should be made otherwise---High Court further directed that all eligible candidates should be called for interview/written test etc., as provided under the law and rules and if there was any list already provided to the respondents, the same would be totally disregarded---High Court also directed the authority that copy of list of successful candidates would be displayed at the place where interviews etc. would be conducted and a copy of successful candidates should also be submitted in High Court---Petition was allowed accordingly.

PLD 1988 Lah. 49; Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 and Munawwar Khan v. Niaz Muhammad and others 1993 SCMR 1287 ref.

(b) Punjab Public Defenders Service Ordinance (XVI of 2007)---

----Ss. 2(b) & 4---Punjab Civil Servants Act (VIII of 1974), S.4---Employees of Punjab Defenders Service---Status---Civil servant---Despite definition of "civil servant" given in S.2(b) of Punjab Public Defenders Service Ordinance, 2007, the Chief Public Defender etc. would be deemed as public servants/civil servants---`Civil servant' means a person who holds a civil post in connection with the affairs of the Province---Employees of Punjab Public Defenders Service are going to hold posts in connection with the affairs of the Province of Punjab, therefore, provisions of S.4 of Punjab Civil Servants Act, 1974, are fully applicable.

----Art. 27---Expression "service"---Connotation---Expression "service" does not mention a permanent service or a contractual service, therefore, it would include all kinds of service whether permanent, temporary or on contract etc.

Khurram Khan for Petitioner.

Khurshid Anwar Bhindar, Addl. A.-G.

Farooq Altaf, Additional Secretary Law, Punjab.

PLCCS 2008 LAHORE HIGH COURT LAHORE 25 #

2008 P L C (C.S.) 25

[Lahore High Court]

Before Sh. Azmat Saeed, J

Dr. MUHAMMAD S.ADIQ SALEEM

Versus

SECRETARY HEALTH, GOVERNMENT OF PUNJAB, LAHORE and 6 others

Writ Petition No.4739 of 2006, decided on 29th October, 2007.

(a) Punjab Contract Appointment Policy, 2001---

---Cl. (x)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Efficacious remedy---Contract appointment--Upper age limit---Relaxation---Grievance of petitioner was that appointment of respondent was illegal, against the policy and based upon nepotism---Plea raised by authorities was that petition was not maintainable as petitioner had the remedy to approach Grievance Redressal Cell---Validity---Entire recruitment procedure smacked of mala fides and was tailored to benefit respondent, who even otherwise was ineligible having crossed the upper age limit---Grievance Redressal Cell having already expressed its views, therefore, dispatching petitioner to the same forum would be an exercise in futility and could not be termed as an efficacious remedy---Petition was maintainable and appointment of respondent was illegal on account of being above upper age limit and entire proceedings for his recruitment were tainted with mala fide and even otherwise suspect---High Court in exercise of Constitutional jurisdiction had set aside appointment order of respondent and directed the authorities to appoint next person falling on merit list---Petition was allowed accordingly.

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

----Art. 199-Constitutional jurisdiction---Relief moulding of---Scope---High Court has ample jurisdiction to "mould relief in accordance with facts and circumstances emerging from the case.

Muhammad Khalid Ramzan Joyya for Petitioner.

Ch. Muhammad Rafiq for Respondents Nos.2 and 5.

Syed Aqa Jafri for Respondent No.7.

Zafarullah Khan Khakwani, A.A.-G.

PLCCS 2008 LAHORE HIGH COURT LAHORE 62 #

2008 P L C (C.S.) 62

[Lahore High Court]

Before Syed Zahid Hussain, J

GHULAM HAIDER CHAUDHRY, INSPECTOR BOILERS, BAHAWALPUR CIRCLE and 4 others

Versus

PRINCIPAL SECRETARY TO CHIEF MINISTER, PUNJAB, LAHORE and 4 others

Writ Petitions Nos.3455 and 4225 of 2007, decided on 26th September, 2007.

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

---Art. 199---Constitutional petition---Cadre service in BS-18 regulated by Rules---Appointment in such cadre obtained by petitioner (deputationist) through intervention of high-ups and exertion of extraneous pressure---Cancellation of petitioner's appointment without hearing him---Validity---No one should be condemned unheard---Person having obtained a gain or benefit by resorting to extra-legal measures could not legitimately complain when such a benefit was withdrawn or taken away---Exercise of constitutional jurisdiction could be declined in appropriate cases even if order was found to be without lawful authority---Petitioner having manipulated things in order to get appointment over and above the law/Rules, could not be allowed to retain such ill-gotten gains---Conduct of petitioner would not entitle him to invoke equitable and discretionary jurisdiction of High Court under Art.199 of the Constitution---High Court dismissed constitutional petition in circumstances---Principles.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and S. Mumtaz Ahmad Khan v. Peshawar Development Authority and another 1998 SCMR 2745 rel.

(b) Administration of justice---

----Any person, who obtains a gain or benefit by resorting to extra-legal measures, cannot legitimately complain when such a benefit is withdrawn or taken away.

----Art. 199---Exercise of writ jurisdiction could be declined in appropriate cases even if impugned order was found to be without lawful authority.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and S. Mumtaz Ahmad Khan v. Peshawar Development Authority and another 1998 SCMR 2745 rel.

Syed Zahid Hussain Bokhari for Petitioner.

Aamir Rehman, Addl. A.-G. Punjab.

Hafiz Tariq Nasim for Respondent No.4.

Imran Aziz for Sheikh Zayed Hospital, Lahore.

PLCCS 2008 LAHORE HIGH COURT LAHORE 75 #

2008 P L C (C.S.) 75

[Lahore High Court]

Before Syed Jamshed Ali, J

Dr. Kh. MUHAMMAD ANIS

Versus

SARDAR SHER AFGHAN, ADDITIONAL SECRETARY (ADMN.), CHIEF MINISTER'S SECRETARIAT, PUNJAB, LAHORE and 5 others

Writ Petition No.19714 of 2004, decided on 8th December, 2004.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Civil service---Transfer---Petitioner had challenged his transfer order on the grounds that same had been passed on the direction of the Additional Secretary (Administration) of the Chief Minister's Secretariat; that it had not been passed in exigency of the service and that the post from which he had been dislocated was in BS-19, while respondent who had been posted in his place was in BS-18---On the grounds urged by the petitioner, order of his transfer could not be interfered with on account of the bar of Art.212 of the Constitution---Contention of petitioner that his petition was in the nature of quo warranto, 'was repelled because petitioner being a person aggrieved of his dislocation court was not satisfied of the bona fides of his petition insofar as the alternate oral prayer for treating the petition as a writ of quo warranto was concerned---Petition was dismissed as not maintainable before the High Court.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 ref.

A.D. Naseem for Petitioner.

PLCCS 2008 LAHORE HIGH COURT LAHORE 85 #

2008 P L C (C.S.) 85

[Lahore High Court]

Before Syed Hamid Ali Shah, J

NOOR AHMAD TAJ

Versus

DISTRICT COORDINATION OFFICER, PAKPATTAN and 3 others

Writ petition No.5978 of 2007, decided on 13th June, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Arrears of salary--Petitioner, after his reinstatement in service filed constitutional petition seeking direction against authorities for making payment of salary to him for the period he remained out of job---Such plea had not been raised by petitioner in his earlier constitutional petition wherein the reinstatement of petitioner was ordered, nor a request was made to the Court to pass an order to that effect---Order of reinstatement did not stipulate anywhere about the arrears of salary---In absence of a specific order of High Court in that regard no direction could have been made to the authorities for payment of salary claimed by petitioner---Payment of salary, for the period when a workman/employee remained out of job, could only be made when it was specifically asserted in the pleadings and it had been proved through cogent evidence that during the period when such employee was out of job, he had not joined service elsewhere or he had not earned during this period through any other manner---Such question was a question of fact and could not be gone into, in the exercise of constitutional jurisdiction.

A.D. Nasim for Petitioner.

PLCCS 2008 LAHORE HIGH COURT LAHORE 113 #

2008 P L C (C.S.) 113

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD AFZAL

Versus

TEHSIL MUNICIPAL ADMINISTRATION HASILPUR, DISTRICT BAHAWALPUR through Nazim and others

Writ Petitions Nos.1319-S of 2006/BWP and 28-5 of 2007/BWP, decided on 23rd January, 2007.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Promotion--- Withdrawal/cancellation of---Petitioner had sought a direction to be issued to authorities to deliver him the salary in BS-5 to which he was promoted---Promotion of petitioner in BS-5 on the basis of the Departmental Promotion Committee, was an admitted fact---Question as to whether petitioner was legally or illegally promoted was to be resolved after the notice was issued to the petitioner, but no said notice was issued to the petitioner before passing impugned order by which promotion of petitioner was withdrawn/cancelled---After promotion had been allowed and petitioner had commenced his work as promoted appointee, a right had accrued to him because of which before passing an adverse order, he must have been granted an opportunity of hearing and thereafter order could be passed in accordance with law---Impugned order whereby promotion of petitioner was withdrawn/ cancelled without' issuing him any notice could not be considered to have been passed in accordance with law as before passing an adverse order the affectee must be granted an opportunity of being heard---Impugned order was declared illegal, in circumstances.

M. Shamshir Iqbal Chughtai for Petitioner.

Shahzad Hussain Sheikh for Respondents.

Date of hearing: 23rd January, 2007.

PLCCS 2008 LAHORE HIGH COURT LAHORE 127 #

2008 P L C (C.S.) 127

[Lahore High Court]

Before Mian Saqib Nisar, J

AATIR MAHMOOD

Versus

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

Writ Petition No.10659 of 2006, decided on 5th October, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Termination of service---Contractual appointment---Legitimate expectation, principle of---Applicability---Petitioner was contract employee and his service was dispensed with in accordance with terms and conditions of the contract--Plea raised by petitioner was that he had legitimate expectation to be absorbed in service after having successfully completed training period---Validity---Condition stated in contract was very clear and under no circumstances petitioner should have had any impression or understanding for absorption as a permanent employee of respondent-Company---Rule of legitimate expectation was not attracted to petitioner and order of dispensing with the service of petitioner did not suffer from any illegality---High Court, in exercise of Constitutional jurisdiction, declined to interfere with the order passed by authorities---Petition was dismissed in circumstances.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary M.O. Defence Government of Pakistan and others PLD 2006 SC 602 ref.

Muhammad Safdar Shaheen Pirzada far Petitioner.

PLCCS 2008 LAHORE HIGH COURT LAHORE 130 #

2008 P L C (C.S.) 130

[Lahore High Court]

Before Syed Zahid Hussain, J

ZAHIDA PARVEEN

Versus

AZHAR HUSSAIN KHAN SIAL and others

Writ Petition No.12507 of 2066, decided on 4th December, 2006.

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

---S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Withdrawal of order of appointment---Petitioner, who had been teaching in Government Elementary School as Senior Elementary Educator, applied as Elementary School Educator in Government Primary School---Application of petitioner was accepted and she was appointed as Elementary School Educator and she was relieved from the post where she was already working---Subsequently petitioner was conveyed that her appointment order had been withdrawn due to her already working as Senior Elementary School Educator---Petitioner had lost her job as Senior Elementary School Educator and as Elementary School Educator---Said order of withdrawal of her appointment was sought to be assailed through constitutional petition---Scope Appointment of the petitioner though was in contravention of the Recruitment Policy but for the redressal of her grievance, she could apply to the Recruitment Complaint Redressal Cell where her ease could be examined by the said Cell--In view of availability of said remedy, petitioner could avail that remedy or remedy before Service Tribunal.

Mian Muhammad Afzal for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. Punjab with Muhammad Akram Rehbar, CEO, Office of DEO (NEE), Faisalabad for Respondents.

Usman Karim-ud-Din for Respondent No.10.

PLCCS 2008 LAHORE HIGH COURT LAHORE 132 #

2008 P L C (C.S.) 132

[Lahore High Court]

Before Syed Zahid Hussain and Muhammad Khalid Alvi, JJ

AFTAB-UR-REHMAN MIR

Versus

CHAIRMAN, PAKISTAN BANKING COUNCIL and others

Intra-Court Appeal No.265 of 2006, decided on 8th October, 2007.

Civil service---

----Promotion---Interference in such matters by courts has to be minimal.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary Ministry of Defence and others PLD 2006 SC 602; Riazul Hassan v. Hidayat Ullah PLD 1975 Lah. 841; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1 and Federation of Pakistan through Secretary, Ministry of Law Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC, 723 ref.

Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774; Secretary, Government of Sindh Education Department and another v. Syed Riyazul Hassan Zaidi and another 1986 SCMR 64; Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598 and Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143 rel.

Appellant in person.

Yawar Ali Khan Dy. Attorney-General for Pakistan.

Ali Akbar Qureshi Amicus Curriae.

Shahid Anwar Bajwa for Respondent No.2.

PLCCS 2008 LAHORE HIGH COURT LAHORE 143 #

2008 P L C (C.S.) 143

[Lahore High Court]

Before Mian Saqib Nisar, J

SADIA NAWAZ

Versus

PUNJAB VOCATIONAL TRAINING COUNCIL, GOVERNMENT OF PUNJAB and 5 others

Writ Petition No.10911 of 2006, decided on 21st September, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Recruitment process---Validity---Grievance of petitioner was that she despite being qualified and eligible for recruitment, had not been given a chance to appear in the recruitment process and had not been called for the interview---Plea of authorities was that petitioner had been short listed for valid reasons, because her certificates were dubious; besides petitioner purported to have taken the training from a private clinic, which was not even recommended; whereas other candidates had been getting training from the vocational institutes---Validity---Number of the candidates was so small that all the candidates could be interviewed and recruitment could be made on the basis of merits, however, it was authority of the Recruitment Committee to consider the case of all the candidates afresh and to make appointment---Constitutional petition was disposed accordingly.

Malik Muhammad Imtiaz Mahal for Petitioner.

Rizwan Mushtaq, A.A.-G.

PLCCS 2008 LAHORE HIGH COURT LAHORE 145 #

2008 P L C (C.S.) 145

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Malik MUHAMMAD ASLAM AWAN

Versus

EMPLOYEES OLD-AGE BENEFIT INSTITUTION through Chairman, E.O.B.I. and 3 others

Writ No.10486 of 2006, decided on 11th June, 2007.

(a) Employees Old-Age Benefits Act (XIV of 1976)----

----S. 22---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Territorial jurisdiction---Claim for increase in pension granted by Federal Government---Rejection of claim by order issued at Karachi and served upon appellant at his address at Lahore---Appeal against impugned order before Lahore Bench of Federal Service Tribunal---Abatement of anneal on basis of Supreme Court's order passed in Muhammad Mubeen-us-Salam's case (PLD 2006 SC 602)---Constitutional petition against impugned order filed in Lahore High Court---Held, Lahore High Court had territorial jurisdiction to entertain such petition.

Muhammad Mubeen-us-Salam's case PLD 2006 SC 602 ref.

(b) Employees Old-Age Benefits Act (XIV of 1976)---

----S. 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Increase in pension granted by Federal Government w.e.f. July 1, 1999---Retirement of petitioner on July 14, 1999 as employee of Employees Old-Age Benefit Institution---Petitioner's claim for increased pension---Validity---Federal Government had granted such increase only to civil pensioners on July 1, 1999---Non-pensioners on July 1, 1999 would not be entitled to such increase---Salaries of serving employees including petitioner had been increased w.e.f. July 1, 1999--- Petitioner could not be allowed to claim benefit of salary increase as serving employee on July 1, 1999 and then increase in pension with effect from same date--- High Court dismissed petition in circumstances.

Petitioner in person.

Kashif Ali Chaudhry for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 224 #

2008 P L C (C.S.) 224

[Lahore High Court]

Before Syed Zahid Hussain, J

Mirza RIZWAN AHMED

Versus

CHAIRMAN, TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.10018 of 2006, heard on 17th September, 2007.

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

----Ss. 2(c) & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Contract employee---Regular inquiry, non-holding of---Petitioner being a contract employee was terminated from service without holding any regular inquiry---Validity---Status of petitioner was though described as that of contractual employee but the same would not make any difference so far as applicability of Punjab Removal from Service (Special Powers) Ordinance, 2000, was concerned---Phrase "every person" was of extensive scope and would bring within its ambit all persons covered by S.2(c) of Punjab Removal from Service (Special Powers) Ordinance, 2000---Before termination of petitioner, provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, were required to be followed, as it was a special law---Order of terminating petitioner, held, was illegal, of no legal effect and was thus, set aside---Petition was allowed accordingly.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan and others PLD 1974 SC 393; Government of Pakistan v. Aquil Ahmed PLD 1969 Dacca 930; Abdul Majid Sheikh v. Mushaffe Ahmed, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and another PLD 1965 SC 208; Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Noorul Hassan and others v. The Federation of Pakistan PLD 1956 SC (Pak.) 331; Mobarik Ali Ahmad v. The State of Bombay PLD 1958 SC (Ind.) 115; Black's Law Dictionary Six Edition 555 and Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442 ref.

(b) Administration of justice---

----Misconception of law---Effect---If authority concerned acts under misconception and under wrong law, proceedings are liable to be declared as not sustainable in law.

Azizullah Memon v. Province of Sindh and another 2007 SCMR 229 rel.

Muhammad Zairian Qureshi for Petitioner.

Aamer Rehman, Addl. A.-G. Punjab with Amanullah, Assistant Manager, Punjab Technical Education and Vocational Training Authority for Respondent.

Date of hearing: 17th September, 2007.

PLCCS 2008 LAHORE HIGH COURT LAHORE 326 #

2008 P L C (C.S.) 326

[Lahore High Court]

Before Muhammad Khalid Alvi, J

ABDUL RAOOF

Versus

TEHSIL MUNICIPAL ADMINISTRATION, HASILPUR through Tehsil Nazim and others

Writ Petition No.2115 of 2006/BWP, decided on 23rd April, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Entitlement to get pay according to promoted post---Petitioner who was appointed as Naib Qasid, subsequently was promoted as Junior Clerk in BPS-5 and entry in that respect was also made in his service book---Petitioner performed his new duty continuously, but his pay was being disbursed to him in BPS-1---Grievance of petitioner had not been redressed despite repeated requests---Validity---Counsel for authorities had conceded that petitioner was promoted and since his promotion he was performing his duty as Junior Clerk in BPS-5, but his pay was being disbursed in accordance with BPS-1 on account of various queries---Director, Local Funds Audit, had stated in the court that alleged queries had been clarified and that he had no objection to the payment of the salary to the petitioner in BPS-5 from the date of his promotion---Counsel for authorities stated that in view of statement of Director, Local Funds Audit they were ready to withdraw their earlier order---Allowing constitutional petition, authorities were directed to pay salary to the petitioner in BPS-5 from date of his promotion.

Shamshir Iqbal Chughtai for Petitioner.

Shezhad Hussain Sheikh for Respondents.

Abdul Khaliq Khan Saidozai, A.A.-G.

Tariq Ismail Director, Local Funds Audit.

Farooq Ahmad, R.A.O. Hasilpur.

PLCCS 2008 LAHORE HIGH COURT LAHORE 352 #

2008 P L C (C.S.) 352

[Lahore High Court]

Before Sh. Hakim Ali, J

Dr. Capt. SHABBIR AHMAD TABASSUM GORAYA

Versus

TARIQ BASHIR CHEEMA, DISTRICT NAZIM, BAHAWALPUR and 3 others

Writ Petition No.1764 of 2007/BWP, decided on 19th December, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment-Implementation of order of appointment---Petitioner was appointed with the order of Authorities and petitioner though was allowed to work on said post, but his appointment order was not implemented completely and his joining was not acknowledged---Such procedure and acts could not be approved and blessed with approval from High Court---Subordinate authorities were bound to act upon the order of the Authority and implement same as they being subordinate had to implement order of appointment, unless there was an order contrary to it---No adverse order having been passed by the Authority, subordinate authority, who was Incharge of the office was directed by High Court to acknowledge the joining of the petitioner on the post concerned from the date he had actually joined.

Ch. Muhammad Naveed Shabbir for Petitioner.

Syed Shaheen Masood Rizvi, A.A.-G. on Court's call with Dr. Shakeel Ahmad, D. H.O. Headquarters/Incharge, Office of EDO (Health), Bahawalpur.

PLCCS 2008 LAHORE HIGH COURT LAHORE 357 #

2008 P L C (C.S.) 357

[Lahore High Court]

Before Sardar Muhammad Aslam, J

MUHAMMAD ANWAR

Versus

POSTMASTER-GENERAL

Writ Petition No.4581 of 2007, decided on 16th January, 2008.

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

----S. 7---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seniority---Petitioner had sought direction to the Authority for giving him personal hearing and decide his representation after giving proper and careful consideration to the facts in accordance with law---Petitioner through his representation had challenged seniority of other employees at a belated stage which remained unheard---Validity---High Court could not direct the Authority to decide representation of petitioner, particularly when his representation, on the face of record, was barred by time.

Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Walton Training, Lahore and others PLD 2003 SC 110; and Muhammad Sharif Sindhu v. Habib Bank Ltd. through its President and others 2006 PSC 202 and Inayatullah and others v. Director-General and others 2006 SCMR 535 ref.

Ghulam Sarwar for Petitioner.

Tahir Mahmood Khokhar for Respondent.

PLCCS 2008 LAHORE HIGH COURT LAHORE 551 #

2008 P L C (C.S.) 551

[Lahore High Court]

Before Syed Hamid Ali Shah, J

HAMMAD RAZA QURESHI

Versus

DEPARTMENTAL PROMOTION COMMITTEE, PUNJAB, LAHORE and 9 others

Writ Petition No.11138 of 2007, decided on 18th January, 2008.

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

----S. 4---Supreme Court Rules, 1980, O. XX---Constitution of Pakistan (1973), Art.199--Constitutional petition---Judgment passed by Service Tribunal---Implementation---Notional promotion---Pendency of petition for leave to appeal before Supreme Court---Petitioner was granted notional promotion as Deputy Superintendent of Police with effect from 28-1-1996, according to the ratio of judgment passed by Service Tribunal---Grievance of petitioner was that at the time of promotion as Superintendent of Police he was not considered for promotion by ignoring his seniority---Plea raised by authorities was that petition for leave to appeal against judgment passed by Service Tribunal was pending before Supreme Court---Validity---Service Tribunal had rightly observed that civil servant, who had been allowed notional promotion, would not be deprived of his seniority and only loss which he might suffer in such promotion was in monetary terms---Civil servant having notional promotion could not claim arrears of pay for relevant period---Petitioner could not be deprived of his seniority and also for being considered for promotion merely because of pendency of petition for leave to appeal---Execution of order, appealed against, under O.XX of Supreme Court Rules, 1980, could not be prevented through filing of a petition for leave to appeal or an appeal---Order of a court or a forum appealed against in Supreme Court could only be stayed when an injunctive order was passed---High Court directed the authority to hold a fresh meeting for promotion and consider the case of petitioner for promotion, according to modified seniority list, as per the judgment 'passed by Service Tribunal--Petition was allowed accordingly.

Muhammad Ayaz Khan v. Government of Sindh and others 2007 PLC (C.S.) 716 ref.

(b) Civil service---

----Promotion---Principles---Pendency of disciplinary proceedings against a civil servant is no valid ground for not considering such civil servant for promotion.

Muhammad Ayaz Khan v. Government of Sindh and others 2007 PLC (C.S.) 716 and Maj. Zia-ul-Hassan, Home Secretary and, others v. Mrs. Naseem Chaudhry 2000 SCMR 645 rel.

Muhammad Farooq Bedaar for Petitioner.

Zahid Rana for Respondent No.6.

Nafeer Ahmad Malik for Respondent No.7.

Farooq Amjad Mir for Applicant (in Civil Miscellaneous No.2416 of 2007).

Najeeb Faisal Chaudhry, Addl. A.-G.

Saleem Sikandar, Assistant Inspector-General of Police (Legal), Punjab.

2008 P L C (C.S.) 664

[Lahore High Court]

Before Hafiz Tariq Nasim, J

SAEED-UD-DIN KHAN

Versus

SECRETARY RAILWAY BOARD, GOVERNMENT OF PAKISTAN, MINISTRY OF RAILWAYS, ISLAMABAD and 2 others

Writ Petition No.11453 of 2006, decided on 12th February, 2008.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Emoluments, difference of---Petitioner was an officer of BS-19 and had been performing uninterrupted duties of BS-20 post for past five years---Grievance of petitioner was that he was entitled to difference of emoluments between BS-19 and BS-20 posts---Authorities contended that due to bar of Art.212 of the Constitution, petition was not maintainable---Validity---Relief claimed by petitioner was with regard. to issuance of direction to authorities .to pay emoluments to him to which he was entitled under the law---High Court, in such-like controversy, was competent to issue directions to authorities who were admittedly the persons performing functions in connection with affairs of Federation to do a thing which they were required by law to do within the jurisdiction of High Court---Petitioner was entitled to the difference of emoluments between BS-19 and BS-20 for the period for which he had been performing duties of BS-20 post---High Court directed the authorities to release the emoluments to petitioner within a period of two months---Constitutional petition was allowed accordingly.

Administrator, District Council Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320; Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 rel. .

Pervaiz I. Mir for Petitioner.

Muhammad Aslam Zar, Standing Counsel for the Federation with Mumtaz Bhalwana, Deputy Director Legal, Pakistan Railways.

PLCCS 2008 LAHORE HIGH COURT LAHORE 667 #

2008 P L C (C.S.) 667

[Lahore High Court]

Before Maulvi Anwarul Haq, J

ASAD ILYAS

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE, through Chairman and another

Writ Petition No.5589 of 2005, heard on 20th February, 2008.

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

----R. 4(1)(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Appeal to Service Tribunal was disposed of with direction that appeal be filed before Controlling Authority, which was so filed which remained pending for about four years---Petitioner filed application for early hearing of said appeal and petitioner after about six months was informed by a non-speaking order that his request for early hearing of appeal was considered and rejected which was shocking that 5 years after filing of appeal, matter was dealt with in such unceremonious manner---Whether information was being provided regarding the appeal or said request for early hearing was not made clear by the authorities---Petitioner had not approached High Court for enforcement of and term and condition of his service, but for enforcing performance of duties enjoined upon the authorities as public functionaries---Petitioner had all rights to have the case decided by means of speaking order containing reasons for the same---Allowing petition, authorities were directed to take up said appeal and after considering the same to decide it in accordance with law by means of a speaking order within specified period.

Malik Noor Muhammad Awan and Muhammad Arshad Malik for Petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 20th February, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 682 #

2008 P L C (C.S.) 682

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mrs. ROBINA ASLAM NOORANI

Versus

DISTRICT EDUCATION OFFICER (EE-W) PAKISTAN

Writ Petition No.1350 of 2008, decided on 15th February, 2008.

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

----S. 4---Service Tribunal, jurisdiction of---Principles---Jurisdiction rests with Service Tribunal in respect of terms and conditions of civil servant---Before invoking jurisdiction of Service Tribunal, any aggrieved civil servant has to fulfil the requirements of S.4 of Service Tribunals Act, 1973.

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

----Arts. 199 & 212---Constitutional petition---Maintainability---Bar on jurisdiction of High Court---Extent---Neither any original nor appellate order was impugned before High Court and only a direction was sought for---Effect---High Court in exercise of its jurisdiction under Art. 199 of the Constitution could direct the authorities to perform acts in accordance with law---Bar contained in Art. 212 of the Constitution was not attracted in circumstances.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Pakistan Railways v. Muhammad Allauddin Babari 1998 SCMR 1605; Administrator, District Council, Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320 and Saad Salam Ansari v. Chief Justice of Sindh High Court 2007 SCMR 1726 rel.

----Art. 199---Constitutional petition---Show-cause notice---Holding of regular inquiry---Grievance of civil servant was that instead of deciding her matter on the basis of show-cause notice, authorities be directed to hold regular inquiry---Validity---Civil servant not only refuted the allegations rather she had requested for holding of inquiry through an independent inquiry officer instead of adopting shorter procedure of show-cause notice---Where controversial facts were visible from the record, the holding of inquiry was necessary---High Court directed the authorities to withdraw the show-cause notice, frame charge-sheet/ statement of allegations, appoint independent inquiry officer higher in rank to the civil servant, communicate the charge-sheet/statement of allegations to civil servant, obtain her reply---High Court directed the inquiry officer to hold inquiry strictly in accordance with law and rules affording a chance to civil servant to cross-examine witnesses produced by department and also to have opportunity to rebut documentary evidence if the same was produced by department, in addition to providing civil servant opportunity to produce her defence---High Court further directed the authorities that after completion of inquiry proceedings, the competent authority was required to provide copy of inquiry report to civil servant if the allegations were held to be proved against her and then the competent authority would be at liberty to issue her show-cause notice and then proceed strictly in accordance with law and pass appropriate order against civil servant---High Court remanded the case to the authorities for deciding the matter in accordance with law---Constitutional petition was allowed accordingly.

Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Ghulam Muhammad Khan v. Prime Minister of Pakistan 1996 SCMR 802; Fatima Bibi v. Deputy District Education Officer 2007 PLC (C.S.) 597 and Mst. Razia Jaffer v. Government of Balochistan 2007 SCMR 1256 rel.

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

----Art. 189---Judgments of Supreme Court---Scope---Judgments/law laid down by Supreme Court is binding on all organs of the State as per dictates of Art.189 of the Constitution---Deviation from the same cannot be allowed in any manner.

(e) Civil service---

----Administration of justice---Courts, duty of---Scope---Courts are not only duty bound to ensure that justice prevails without crossing the limits and boundaries settled by law but are also under restraint of ensuring that the essence of Fundamental Rights i.e. justice, fair play and equity as guaranteed under the Constitution is preserved and provided where demanded---Employee should not be denied practical justice by letting him/her seek and hunt her remedy through a lengthy and unnecessarily extended process of litigation---In effect an employee should not be discourteously thrown on the road, in search of justice.

Asghar Ahmad Kharal for Petitioner.

Naeem Masood, Asstt. A.-G., Punjab for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 690 #

2008 P L C (C.S.) 690

[Lahore High Court]

Before Sardar Muhammad Aslam, J

Ms. GULSHAN TAHIRA

Versus

ADDITIONAL REGISTRAR OF COMPANIES and 2 others

Writ Petition No.4912 of 2007, decided on 7th February, 2008.

Punjab Civil Servants Act (VIII of 1974)--

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Petitioner had prayed that promotion procedure devised by Authority with short statutory numerical strength could be declared as void ab initio and violative of the Fundamental Rights and that promotion made under the promotion procedure could be declared as arbitrary, discriminatory, whimsical and capricious practically designed with ulterior motives achieved by abuse of power and misuse of authority---Authorities submitted that petitioner had been dismissed from service and on her dismissal from service could not pursue constitutional petition until she was reinstated---Petition having become infructuous, same was disposed of as such, in circumstances.

2006 SCMR 1867 ref.

Irfan Ahmad Sheikh for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 713 #

PLC 2008 (C.S.) 713

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAZIM SHAHZAD---Petitioner

Versus

CHAIRMAN, PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and another---Respondents

Writ Petition No.1521 of 2008, decided on 26th February, 2008.

Punjab Legal Practitioners and Bar Councils Rules, 1974---

----Rr. 7.10 & 7.12---Memorandum of Association/Rules of Business of Bar Association, Art.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Practising as advocate---Pre-condition--Petitioner was enrolled as advocate on 19-8-2005 and became member of Bar Association on 29-10-2005---Application of petitioner for the post of Civil Judge/Judicial Magistrate was rejected on the ground that he did not have requisite experience of two years as advocate---Plea raised by petitioner was that under Art.6 of Memorandum of Association/Rules of Business of Bar Association published vide notification dated 7-12-1981, he was deemed to be practising advocate with effect from the date of his enrolment---Validity---Membership of recognized Bar Association was condition precedent for a person to practice as an advocate---Provisions of Art.6 of Memorandum of Association/Rules of Business of Bar Association was only to make a fresh advocate eligible for membership of the Bar Association and it could not, in any manner, derogate from the mandatory provisions contained in R.7.10 of Punjab Legal Practitioners and Bar Councils Rules, 1974---High Court declined to interfere in the order passed by the authorities whereby application of petitioner was rejected---Petition was dismissed in circumstances.

Muhammad Hanif Saleemi for Petitioner.

PLCCS 2008 LAHORE HIGH COURT LAHORE 715 #

2008 P L C (C.S.) 715

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Rana ASIF NADEEM

Versus

EXECUTIVE DISTRICT OFFICER, EDUCATION, DISTRICT NANKANA and 2 others

Writ Petitions Nos.352, 1080, 7960 to 7971, 2225, 6723, 6724, 6828, 8189, 7028, 6292, 7993 of 2007 and 11015 of 2006, decided on 12th March, 2008.

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

----Art 199---Constitutional petition---Civil service---Contract employees---Jurisdiction of High Court---Scope---When matter is between Government and its employees on contract basis and there is no question of any statutory or non-statutory organizations and rules involved in the case High Court can exercise its jurisdiction under Art.199 of the Constitution.

Karachi Development Authority and another v. Wall Ahmed Khan and others 1991 SCMR 2434; Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Muhammad Ashraf v. Director-General, Multan Development Authority, Multan and another 2000 PLC (C.S.) 796; Administrator, District Council Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S.) 1300 and Mrs. Munawar Sani v. Director Army Education 1991 SCMR 135 rel.

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

----Art. 175---Judicature---High Court, establishment of---Object---High Court is established to provide justice to aggrieved party albeit on merits and according to law.

----Art. 199---Constitutional petition---Civil service---Contract employees---Termination of service---Principles of natural justice---Applicability---Illegal appointments---Petitioners were employed as teachers on contract basis for three years---After a few months when the petitioners had joined their duties, their appointment letters were withdrawn and their services were terminated on the ground that the appointments were illegal---Plea raised by petitioners was that no notice was given to them before termination of their contracts and they were condemned unheard---Validity---Before passing the termination order, neither any inquiry was conducted nor petitioners were served with show-cause notice, nor they were heard by authorities concerned, thus, they were condemned unheard---If at all it was found that the then authorities had made illegal or irregular appointments, even then the petitioners could not be held responsible for the same---High Court set aside the termination letters and reinstated the petitioners in service with effect from the date of their termination with back-benefits---Constitutional petition was allowed accordingly.

Director Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350; Chairman, Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak 1999 SCMR 1004; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077 and Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education, Secondary N.-W.F.P. Peshawar and others 2007 PLC (C.S.) 179 rel.

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

----S. 21---Locus poenitentiae, principle of---Applicability---Civil service---After issuance of appointment orders, petitioners joined service performed their duties, drew their salaries, whereafter their appointment letters were cancelled without any notice to them---Effect---Valuable right having accrued in favour of petitioners that could not be recalled in view of well-established principle of locus poenitentiae.

Liaquat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmad Bhutto 2005 SCMR 57 rel.

Mrs. Rizwana Anjum Mufti for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 754 #

2008 P L C (C.S.) 754

[Lahore High Court]

Before Ali Akbar Qureshi, J

Raja ASGHAR ALI

Versus

SARGODHA IMPROVEMENT TRUST, SARGODHA through Chairman and 2 others

Writ Petition No.11371 of 2007, decided on 19th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Petitioner was reinstated in service by competent authority through an elaborate order---Few days later the order of reinstatement was withdrawn by the same authority without providing any opportunity of hearing to petitioner to rebut the charges---Validity---Although serious allegations of corruption and misappropriation were levelled against the petitioner but neither any show-cause notice was served, nor any inquiry was conducted---Order withdrawing reinstatement of petitioner was passed in contravention of principles of natural justice---Effect---No one should be condemned unheard specially in those cases where controversial and disputed questions of facts were involved, as the same could only be resolved by adducing evidence before arriving at just and fair conclusion---Petitioner was vexed twice and his recurring victimization needed to be stopped---To ensure safe dispensation of justice, it was a fit case for interference and invalidation of order passed by the authority---High Court declared order of recalling reinstatement order as without lawful authority, jurisdiction and legal effect---Constitutional petition was allowed in circumstances.

1990 SCMR 1414; 2002 SCMR 1124; The Secretary to the Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451; Pakistan International Airlines Corporation through MD, Karachi v. Nadeem Murtaza Khan 2007 PLC (C.S.) 334; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 PLC (C.S.) 802 and Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1 ref.

Mehmood Ahmed Qazi for Petitioner.

Sh. Hamid Danish for Respondents.

Hafiz Abdul Saeed Section Officer.

PLCCS 2008 LAHORE HIGH COURT LAHORE 763 #

2008 P L C (C.S.) 763

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Ch. MUHAMMAD KHAN

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.3392 of 2007, heard on 26th March, 2008.

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

----S. 13(1)---Re-employment Policy of Retired Government Servants, dated 11-3-2004---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-employment on contract basis---Legitimate expectants, rights of---Employee retired after attaining the age of superannuation and was re-employed as Principal of College on contract basis for two years, which contract was extended twice---Validity---Powers exercised in re-employment were colourable, basing on pick and choose, whims and modes---Element of transparency was missing in re-employment, which was sufficient ground for interference by High Court---No one could be benefited at the cost of legitimate expectants who had every right to contest--Apart from petitioner, there might have been certain others who were in the run for posting as Principal of the College through process of promotion etc. but all of them were denied their lawful right of consideration for promotion/posting---Order of re-employment of respondent which was an outcome of colourable exercise of powers was declared to be without lawful authority and was set aside---High Court directed that the post of Principal held by respondent would be treated as vacant which was to be filled in accordance with law and rules by competent authority, after considering all eligible persons including petitioner---Constitutional petition was allowed accordingly.

Nazir Ahmed Javed and Sajjad Hussain Naqvi for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab for Respondents Nos.1 to 4.

Masood A. Malik for Respondent No.5.

Date of hearing: 26th March, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 768 #

2008 P L C (C.S.) 768

[Lahore High Court]

Before Hafiz Tariq Nasim, J

LIAQUAT ALI

Versus

PROVINCE OF PUNJAB through Secretary Education, Lahore and 2 others

Writ Petitions Nos.9214 to 9219 of 2007, decided on 12th March, 2008.

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

----S. 16---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Arts.189, 190, 199 & 212---Annual increments claimed by untrained P.T.C. Teachers---Non-acceptance of such claim by department---Service Tribunal in appeals filed by some teachers found them entitled to claim increments, which view was upheld by Supreme Court with observations that Government, while fixing pay of P.T.C. Teacher, could not go behind scope of S.16 of Punjab Civil Servants Act, 1974---Refusal of Department to accept petitioner's claim for increments and fix his pay in the light of such judgment of Service Tribunal and Supreme Court---Constitutional petition filed by petitioner seeking enforcement 'of such judgments in his case also---Validity---Withholding of emoluments and that too in violation of S.16 of the Punjab Civil Servants Act, 1974 would suffer from inherent vice---Supreme Court had laid down that a civil servant having made to work against a post would become entitled to running pay scale thereof---No Court or authority could deviate from decision of Supreme Court---Supreme Court in the present case having decided question of law, High Court directed department to pay claimed increments to petitioner and fix his pay accordingly.

Mrs. Munawar Sani v. Director Army Education 1991 SCMR 135; Administrator, District Council, Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320 and Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 ref.

Syed Nazar Abbas Jaffri v. Secretary to Government of the Punjab and another 2007 PLC (C.S.) 632 rel.

(b) Administration of justice---

----Object behind legal formalities stated.

Principal object behind all legal formalities is to safeguard the paramount interest of justice. Legal precepts were devised in order to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fides.

Malik Ahsan Mehmood for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab with Parvez Mehmood, O.S.D. (Litigation) for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 812 #

2008 P L C (C.S.) 812

[Lahore High Court]

Before Sayed Zahid Hussain, C.J.

IRFAN AZIZ and 4 others

Versus

SECRETRAY LIVESTOCK, GOVERNMENT OF PUNJAB and 2 others

Writ Petitions Nos.8598, 8726, 8728, 8798, 9316, 10949, 11892 of 2006, 2168 and 3142 of 2007, heard on 2nd April, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Contract employment---Extension in contract---Petitioners were appointed on contract basis in April, 2007 for a period of two years---Two months after the petitioners had joined their duties, their appointment letters were cancelled without providing any opportunity of hearing---Validity---Term of appointment of petitioners, who had been performing their duties during the period, was to expire within one month---Appointment period of petitioners could not go beyond the one mentioned in appointment order itself---Even High Court would not be in a position to extend period of contract as the stream could not rise higher than its source---No useful purpose would be served by keeping the petition pending or passing any other order except that it would be for the relevant department to take decision as to continuing petitioners in service beyond their contractual period of appointment---Constitutional petition was disposed of accordingly.

Muhammad Sohail Dar for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab along with Muhammad Sharif, Section Officer, Dr. Ehsan-ul-Haq and Dr. Saeed Ahmad for Respondents.

Date of hearing: 2nd April, 2008.

2008 P L C (C.S.) 909

[Lahore High Court]

Before Saif-ur-Rehman, J

ABDUL RASHID KHAN

Versus

REGISTRAR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 5 others

W.P. No.5286 of 2007, decided on 12th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Transfer---Petitioner, Assistant Controller of Examination, in the University had sought declaration that he was entitled to join his place of posting on his transfer from Degree Cell to University College as ordered by the Vice-Chancellor and that order passed by the Registrar of the University directing petitioner to report for duty in his personal section till further orders superseding the order of the Vice-Chancellor were without lawful authority---Counsel for the petitioner had submitted that the transfer of the petitioner to the personal cell was based on mala fide and that Registrar was not competent to supersede the order of the Vice-Chancellor---Petitioner had not placed any document on file to show that any order passed by the Vice-Chancellor was superseded---Employees of the University were neither holders of statutory posts nor were they entitled to hold the same as a matter of right---University was competent to direct its employees to change their places by issuing transfer orders from time to time in the best interest of the organization---Constitutional petition was dismissed in circumstances.

1999 SCMR 2381 and 2003 MLD 507 ref.

Pir Muhammad Asif Rafi for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 918 #

2008 P L C (C.S.) 918

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MUHAMMAD MOBEEN

Versus

VICE-CHANCELLOR BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 11 others

Writ Petition No.635 of 2008, decided on 2nd April, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner claimed that he had filed application for appointment on a post, which was received by the authorities, but he was not called for interview---Authorities, in their parawise comments/reply stated that they had not received said application---Disputed question of fact as to whether or not the application for appointment on post was received, could not be ascertained in constitutional jurisdiction---Constitutional petition was dismissed in limine.

Noor Ahmad Khan Meo for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 919 #

2008 P L C (C.S.) 919

[Lahore High Court]

Before Iqbal Hameed-ur-Rehman, J

BUSHRA SHAHEEN

Versus

EXECUTIVE DISTRICT OFFICER, (HEALTH), VEHARI and 3 others

Writ Petition No.5971 of 2006, decided on 22nd January, 2007.

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

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Appointment---Petitioner being eligible applied for the post of Lady Health Visitor pursuant to an advertisement---Required qualification for the post applied for was Matriculation, whereas petitioner not only was Matric in 1st Division, but was F.A. in 2nd Division---Petitioner also passed her nursing course in the 1st Division and Diploma in Midwifery in 1st Division---Petitioner stood first on the basis of the educational and professional qualifications and experience, but after interview another applicant (respondent) had been appointed and despite all said educational and professional qualifications petitioner was ignored---Petitioner had been given the lowest marks in interview, while respondent had been given the highest marks---Authorities had neither been able to satisfy that on what criteria the marks of interview had been awarded nor any proceedings/reports of the interview had been produced in the court. despite specific orders passed in this behalf---Interview was not conducted in a just, fair and transparent manner--Case being fit warranting indulgence of the High Court under Art.199 of the Constitution allowing constitutional petition, appointment of respondent was declared to be without lawful authority and jurisdiction---Authorities were directed to make appointments after observing proper procedure and following recruitment policy of the Government in its true spirit.

Saghir Ahmad Bhatti for Petitioner.

Malik Muhammad Ijaz Khokhar for Respondent No.4.

Muhammad Qasim Khan, Asstt. A.-G. with Dr. Zulfiqar Ali, E.D.O. (Health) and Dr. Muhammad Abid, Litigation Officer, Vehari.

PLCCS 2008 LAHORE HIGH COURT LAHORE 949 #

2008 P L C (C.S.) 949

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Brig. Retd. SAFDAR HUSSAIN AWAN

Versus

GOVERNMENT OF PAKISTAN through Principal Secretary to the Prime Minister and others

Writ Petition No.8556 of 2007, decided on 14th May, 2008.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 4(2)(P)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Petitioner being a highly qualified Engineer was duly appointed as Director General (Technical) in B.P.20 in Evacuee Trust Properties Board---Decision to appoint petitioner was placed before full Board of Evacuee Trust Properties, which unanimously approved such appointment in its meeting---Secretary Minority Division, however, prepared a summary for Prime Minister describing petitioner's appointment as irregular with a proposal to regularize said appointment, but got issued a memorandum whereby petitioner's service was terminated---Validity---Once the government had granted an autonomous status to Evacuee Trust Properties Board, it was assumed and implied that it had stepped itself from interfering in the affairs of the Board, and that the Board having been given the autonomous status, was free to conduct its business according to its own independent decision---Any further interference by the government in the matter of autonomous body would tantamount to breach of its independent autonomy and such breach would be unwarranted and illegal---Was not at all obligatory upon autonomous body to appoint/remove employees at the whim of Federal Government/Prime Minister, when specific rules had been made for the appointment and for the removal of its employees---In the present case petitioner was appointed on contract by Board of Evacuee Trust Properties, which was an autonomous body, but termination of petitioner was made by the Prime Minister---Impugned order, in circumstances was passed by an incompetent authority, order of termination/removal passed by incompetent authority could not hold the field and same was declared without lawful authority and being an outcome of extraneous consideration, was set aside by High Court.

PLD 1987 SC 421 ref.

(b) Words and phrases---

----"Autonomous", defined and explained.

Dr. A. Basit for Petitioner.

Syed Iftikhar Hussain Shah, Deputy Attorney General for Pakistan for Respondents.

Qamar-uz-Zaman for Respondents Nos.3 and 4.

Date of hearing: 18th April, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 970 #

2008 P L C (C.S.) 970

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ASHIQ ALI

Versus

GOVERNMENT OF THE PUNJAB through Additional Chief Secretary, S&GAD, Lahore and 5 others

Writ petition No.12936 of 2004, decided on 30th July, 2004.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Arts.4, 199 & 212---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Delay in deciding representation---Obligation of public functionaries--Petitioner whose representation was not decided despite considerable delay, had contended that it was the duty and obligation of public functionaries to decide representation of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as envisaged by Art.4 of the Constitution, read with S.24-A of General Clauses Act, 1897---Counsel for the State had submitted that constitutional petition was not maintainable in view of bar contained in Art.212 of the Constitution, read with S.4 of Service Tribunals Act, 1973---Validity---Despite the bar contained in Art.212 of the Constitution, read with S.4 of the Service Tribunals Act, 1973, High Court had ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Art.4 of the Constitution, while exercising powers under S.199 of the Constitution---Public functionaries were duty bound to decide the representations of their subordinates without fear, favour, nepotism with reason and within reasonable time---No body should be penalized by inaction of the public functionaries---Order accordingly.

H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612; Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325; Messrs Airport Support Service's case 1998 SCMR 2268 and Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate, Lahore PLD 1994 Lah. 3 ref.

Ch. Muhammad Arshad Bajwa for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. assisted by Muntazir Mehdi for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 975 #

2008 P L C (C.S.) 975

[Lahore High Court]

Before Maulvi Anwarul Haq, J

INSTISAR ALI

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.2053 of 2004, heard on 15th May, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Order without jurisdiction---Petitioner was employee in Pakistan Air Force and was dismissed from service on the ground that he was involved in a murder case---Grievance of petitioner was that he had been acquitted of the charge, therefore, he be reinstated in service---Objection was raised by authorities that High Court could not issue writ in view of provision of Art. 199 (3) of the Constitution and petitioner could not be reinstated under Air Headquarters Policy---Validity---Order refusing to reinstate was coram non judice, in as much as it did not at all disclose that the matter was considered by concerned authority in accordance with directives---Prima facie case of petitioner required consideration on the guidelines which had not been done by the authorities---Jurisdiction of courts under the constitutional provision could never be taken away and was always available in case of acts, proceedings or orders which, inter alia, were coram non judice---Order passed by authorities, declining to reinstate petitioner, was set aside by High Court, as the same was without lawful authority and void---High Court remanded appeal/representation of petitioner to authorities for considering the same strictly in accordance with the provisions of relevant policy letter---Petition was allowed accordingly.

Raja Muhammad Ishaque Qamar v. Chief of Air Staff, Pakistan Air Force, Chaklala Writ Petition No.2808 of 2000 ref.

Nemo for Petitioner.

Mirza Viqas Rauf, Federal Counsel for Respondent.

Date of hearing: 15th May, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1005 #

2008 P L C (C.S.) 1005

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Rai ZAID AHMAD KHARAL

Versus

WATER AND POWER DEVELOPMENT AUTHORITY, through Chairman WAPDA and another

Writ Petition No.3500 of 2008, decided on 25th April, 2008.

(a) Civil service---

----Termination of services of a contract employee---Contract employee could not claim to be retained in service for an indefinite period over and above the contract time, but if the termination order of such employee was of a simpliciter termination, then the aggrieved person could not agitate against such termination, but if a stigma was attached with the termination order, then the employee should not have been condemned unheard---Even a contract employee could not be terminated without the recourse to a regular inquiry if his termination was on account of some misconduct---If the termination order would convey a message of any stigma, the employee could not be ousted from service without resorting to the procedure of Efficiency and Disciplinary Rules.

Muhammad Amjad v. WAPDA 1998 PSC 337 and Aleem Jaffer v. WAPDA 1998 SCMR 1445 ref.

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

----Rr. 3(b), 4(1)(b)(v), 6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service on ground of misconduct---Employee who was terminated on the basis of misconduct was made a subject of different allegations---Inquiry was started in case of employee, however without concluding the inquiry and without giving him a fair chance to defend an easy way to get rid of employee was adopted and impugned order was passed---If the procedure of regular inquiry was commenced against an employee, but during the course of inquiry, resorting to a shorter procedure of show-cause notice without letting the procedure of regular inquiry to go to its logical conclusion, the shorter procedure of show-cause notice could not be termed a justified one---In the present case firstly an inquiry was ordered to be conducted and during the course of inquiry the impugned termination order was passed without letting the inquiry proceedings concluded---Employee was not afforded fair chance to defend himself; and secondly the termination order which was passed in haste attached a stigma to employee, which could not hold the field---Impugned order was set aside being violative of settled law---Employee was reinstated in service with all back-benefits.

Sarfraz Ahmad Cheema and Hafiz Shahbaz Ahmad Cheema for Petitioner.

Muhammad Iqbal Khokhar for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1012 #

2008 P L C (C.S.) 1012

[Lahore High Court]

Before Syed, Ali Hassan Rizvi, J

Dr. OMER FAROOQ ZAIN

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 6 others

Writ Petition No.482 of 2008, decided on 20th March, 2008.

Baha-ud-Din Zakariya University Act (III of 1975)---

----S. 11-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment as Associate Professor---Vested right---Promotion policy---Enhancing of criteria---Grievance of petitioner was that he was qualified to be appointed as Associate Professor but University administration did not recommend him for promotion on the ground that his research work was not published in approved journals---Petitioner also contended that University authorities could not enhance criteria for promotion policy---Validity---Minutes of proceedings revealed that Selection Board did not find him eligible---Petitioner could not claim his recommendation against the record---Question of accrual of any vested right did not arise; it was the' matter of policy to enhance criteria and it was upto the policy maker who was competent in this behalf---Role of Selection Board was that of recommendation and not to make a final order---Factual controversy to determine that petitioner's work published in journals of national or international repute was not found up to the standard with mala fide and petitioner intended to get redress of his grievance but High Court had no jurisdiction---High Court also had no jurisdiction to direct policy maker to correct the policy according to the convenience of candidates---Petitioner could not be said to have been deprived of any vested right---Neither there was any recommendation of Selection Board nor policy maker could be directed to change the policies---Enhanced criteria was within the jurisdiction of competent authority to prescribe---High Court declined to interfere in the decision made by the authorities---Petition was dismissed in circumstances.

PLD 1997 SC 382; 2004 YLR 1560; 2003 YLR 67 and 2003 MLD 507 distinguished.

1992 SCMR 1083; 1996 PLC (C.S.) 220; PLD 1996 SC 246; 2001 CLC 9; 2005 PLC (C.S.) 599 and PLD 2006 SC 564 rel.

Muhammad Ameer Bhatti for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

Date of hearing: 14th March, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1019 #

2008 P L C (C.S.) 1019

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mrs. SANJIDA IRSHAD, ASSISTANT DIRECTOR, NURSING, BAHAWALPUR

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT, LAHORE and others

Writ Petition No.2573 of 2008, decided on 24th April, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Entitlement---Petitioner while serving in BS-17 became eligible for promotion to BS-18 in the year 1997, but she was promoted on officiating basis in BS-18 in 1998 instead of regular promotion, whereas one of her juniors was promoted in BS-18 on regular basis in 1997---Reasons for non-promotion of petitioner, firstly was pendency of enquiry against her and secondly minor penalty of censure imposed on her---Petitioner, who had become eligible for regular . promotion in the year 1997 when her junior was promoted, was made a subject of repeated enquiries---One minor penalty of censure as well as the pendency of enquiry, could not be treated a hurdle for regular promotion of the petitioner as on the minor penalty civil servant could not be ignored and could not be refused a regular promotion---So far as the pendency of enquiry against the petitioner was concerned; record had revealed that petitioner was being made subject of repeated enquiry proceedings, which otherwise did not seem fair, particularly, when the proceedings of the enquiry were going on and on for a number of years---During the pendency of enquiry against the petitioner she could not be deprived of her lawful right for her consideration for promotion---Withholding of petitioner's promotion on regular basis from the date when she became eligible, was practically an outcome of colourable exercise of power and that action of Departmental Authorities could not sustain in the eye of law---Authorities were directed to place petitioner's case for promotion before Departmental Promotion Committee within specified period.

Captain Sarfaraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637; Mian Ali Muhammad v. Secretary, Establishment Division, Government of Pakistan and 3 others 2003 PLC (C.S.) 1425; Deputy Inspector-General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others 1998 SCMR 552 and Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645 ref.

Asif Nazir Awan for Petitioner.

Naeem Masood, Asstt. A.-G., Punjab with Hamid Yaqub Sheikh, Additional Secretary for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1022 #

2008 P L C (C.S.) 1022

[Lahore High Court]

Before Saif-ur-Rehman, J

Ms. SHAZIA BASHIR and 2 others

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 4 others

Writ Petition No.5467 of 2007, decided on 12th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Upgrading of post---Grievance of petitioners was that statute issued by Chancellor of the University was in field but the authorities were not up-grading their posts---Validity---Statute in question was still in existence, and was holding the field---Held, as long as the statute was in existence authorities had no option but to honour the same and consider cases of officials without any discrimination---High Court directed the University authorities to place the case of petitioners as well before the Syndicate at the earliest and till decision of the Syndicate, no appointment would be made against the vacancies in question---Petition was allowed accordingly.

Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; Dr. Zahid Hussain Chohan v. Islamia University Bahawalpur and others 2003 MLD 507 and Muhammad Ayyub v. Superintendent of Police Pakpattan and 4 others 2003 MLD 529 distinguished.

Khurshid Ahmad Khan for Petitioners.

Muhammad Tariq Rajwana for Respondent.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1025 #

2008 P L C (C.S.) 1025

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Miss ATTIYA SEHRAI

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC) through Chairman, and 2 others

Writ Petition No.8440 of 2006, decided on 22nd January, 2008.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order, 2001 [Chief Executive Order No.6 of 2001], Art.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal to Service Tribunal---Competency---Petitioner, being employee of PIA was performing her duties as Airhostess, her contract having not been extended for the year 2005, she was relieved from her duties---Petitioner assailed her removal in appeal before Service Tribunal---Service Tribunal, through its Deputy Registrar, vide impugned order notified to the petitioner that in view of judgment "1997 PLC (C.S.) 1316", her appeal stood abated---Authorities had contended that Service Tribunal had no jurisdiction to entertain appeal and that sending the matter back to the Service Tribunal, would result into multiplicity of proceedings and would be a mere exercise in futility---Validity---Impugned notice of Service Tribunal reflected that appeal filed by the petitioner was declared by Registrar of the court as abated, while Registrar had no authority to pass such order; it was within the domain and authority of the Service Tribunal to dispose of such case by passing judicial order---Order of Deputy Registrar was set aside being without any lawful authority and of no legal effect---Appeal filed by petitioner was deemed to be pending before the Service Tribunal which would decide issue of abatement after hearing the parties.

Mubeen-ul-Islam's case 1997 PLC (C.S.) 1316 and Airleague of PIA Employees Union and another v. Federation of Pakistan 2003 PLC (C.S.) 145 ref.

Sh. Abdul Hameed for Petitioner.

Umar Sharif for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1047 #

2008 P L C (C.S.) 1047

[Lahore High Court]

Before Hafiz Tariq Nasim, J

SADAQAT ALI

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 3 others

Writ Petition No.2237 of 2008, decided on 10th June, 2008.

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

----Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Objection to jurisdiction of High Court---Prayer of the petitioner clearly revealed that neither any final nor appellate order of the departmental authorities was under challenge before the High. Court rather a direction was sought which could be issued in exercise of powers under Art.199 of the Constitution--Principal object behind all legal formalities was to safeguard the paramount interest of justice---Legal precepts were devised in order to impart certainty, consistency and uniformity to administration of justice to secure the same against arbitrariness, errors of individual judgments fides.

Secretary Revenue v. Muhammad Saleem 2008 SCMR 948; Mrs. Munawar Sanni v. Director Army Education 1991 SCMR 135 and Administrator District Council Larkana and others v. Gulab Khan and 5 others 2001 SCMR 1320 fol.

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

----Arts. 199, 25 & 212---Constitutional petition---Civil service---Benefit of judicial allowance-Equality before law---Contentions of the petitioner, a staff officer of the Advocate-General Office, were that the petitioner and his similarly placed colleagues were discriminated without any cogent reasons particularly keeping aside the strong recommendations of the administrative department, extending the same benefit in the office of Attorney-General for Pakistan, and all the High Courts of Pakistan and such action of the Authorities virtually offended Art.25 of the Constitution which called for interference of the High Court under Art. 199 of the Constitution--Validity---Held, petitioner and his colleagues were being made the subject of discrimination because the similarly placed employees were admittedly enjoying the benefits in question which the petitioner and his colleagues were claiming but they were being deprived of same without any cogent reasons and justification---Article 25 of the Constitution guaranteed equal treatment before law and equal protection of law to all citizens similarly placed which was being violated in present case by the authorities, point---Such act of discrimination, in circumstances, called for interference and exercise of powers of judicial review---High Court directed that petitioner and his colleagues working in the office of the Advocate-General petition which were entitled for the relief claimed in the prayer may be allowed to them within period specified.

Hussain Badsha and another v. Akhtar Zaman and others 2007 PLC (C.S.) 157; Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others 2007 PLC (C.S.) 285; Ibrahim Flour and General Mills, District, Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 91 fol.

Ch. Imran Raza Chadhar for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab with Ms. Rukhsana Nadeem Bhatti, Deputy Secretary, Finance Department, Government of the Punjab, Lahore.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1117 #

2008 P L C (C.S.) 1117

[Lahore High Court]

Before Maulvi Anwarul Haq, J

GHULAM MUSTAFA

Versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE through Secretary and another

Writ Petition No.12301 of 2006, heard on 27th May, 2008.

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

----R. 3(v)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Relaxation of age limit---Petitioner, who was performing duty as a wireless operator. with Highway Patrolling Police, in response to advertisement filed application for appointment as A.S.-I.---Petitioner, after obtaining permission of Departmental Authority, appeared in examination and was declared successful---Authority vide its letter informed the petitioner that his application had been rejected as he was over age by one year, 9 months and 23 days---Appeal filed by petitioner against said intimation was also been rejected---Validity---Petitioner was in service at time of filing application for his appointment as A.S.-I.---Under provisions of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, in the case of a candidate already working as a government servant the period of his continuous service as such, would for the purpose of upper age limit prescribed under any service rules, of the post for which he was a candidate, would be excluded from his age---Petitioner was within the said permissible age limit when he applied for the said appointment---Allowing constitutional petition, impugned orders of the Authorities were declared to be without lawful authority and being void were set aside---Application of petitioner would be processed in accordance with law.

Muhammad Qasim and 6 others v. Home Department Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2000 PLC (C.S.) 69 rel.

Ghulam Mustafa for Petitioner.

Rana Abdul Majeed, Addl. A.-G. for Respondent and Mian Ghulam Shabbir, Senior Law Officer of the Respondent.

Date of hearing: 27th May, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1121 #

2008 P L C (C.S.) 1121

[Lahore High Court]

Before Hafiz Tariq Nasim, J

ABDUL GHAFFAR MIAN

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.3175 of 2008, decided on 8th May, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion--Eligibility---Petitioner had become eligible for promotion to the rank of D.I.G. in Police Group, but Central Selection Board, in its meeting recommended supersession of the petitioner---Record had revealed that entire service record of the petitioner was clean, no penalty was ever imposed on him and his seniority amongst his batch mates was admitted---Petitioner was superseded simply for the reason that some average remarks were reported in the A.C.R. of the petitioner and that he did not carry reputation of a clean officer---Validity---Average reports could not be termed adverse, rather said reports fell within the category of good---Findings of the Central Selection Board in respect of availability of average reports in the service record of the petitioner could not be termed a convincing one for non-suiting the petitioner---Regarding non-carrying the reputation of a clean officer, not a single instance was quoted by the representative of the Department during the course of argument, which could establish such like unfounded observations---Without any material and without any documentary evidence, no one could be presumed to be unclean officer---Petitioner's supersession, was a `subjective' matter as the Department could not advance any reason to justify said supersession--Petitioner's promotion was withheld ignoring that withholding of promotion was major penalty as per provisions of Efficiency and Discipline Rules, 1973 and that penalty could not be imposed on any civil servant without recourse to the procedure---Decision to supersede petitioner for promotion to B.S. 20, was declared as without lawful authority---Case was remanded with a direction to place same before Central Selection Board for consideration of petitioner's case afresh for promotion to B.S.-20.

Government of Punjab v. Dr. Aman-ul-Haq 2000 PSC 599; Mr. Zafar Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; Khan M. Matiullah and others v. Government of Pakistan 2006 PLC (C.S.) 564; Muhammad Iqbal v. Executive District Officer (Revenue) Lodhran 2007 SCMR 682 and Muhammad Shahid Zaheer v. Government of Pakistan 2007 PLC (C.S.) 1076 ref.

C.M. Sarwar for Petitioner.

Qamer-uz-Zaman, Dy.Atty.-G. and Naeem Masood Asstt. A.-G. Punjab for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1159 #

2008 P L C (C.S.) 1159

[Lahore High Court]

Before Maulvi Anwarul Haq, J

NAZIR AHMED, MCT-6878 C/H Electronics Mirage Rebuild Factory, PAC Kamra

Versus

MANAGING DIRECTOR, MIRAGE REBUILD FACTORY, KAMRA and another

Writ Petition No.634 of 2007, heard on 25th April, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Employee of Mirage Rebuild Factory---Order of authority refusing to accept resignation of employee without showing any reason therefor---Validity---High Court declared impugned order to be without lawful authority and void and directed the authority to accept such resignation within specified time, otherwise same would be deemed to have been accepted.

Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890 fol.

Col. (Retd.) Muhammad Akram for Petitioner.

Mirza Viqas Rauf, Federal Counsel for Respondents.

Date of hearing: 25th April, 2008.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1191 #

2008 P L C (C.S.) 1191

[Lahore High Court]

Before Syed Asghar Haider and Hafiz Tariq Nasim, JJ

Sheikh ABDUL MAJEED

Versus

CHIEF EXECUTIVE, PROGRESSIVE PAPER LIMITED/ CHAIRMAN, NATIONAL PRESS TRUST and 2 others

Writ Petition No.11482 of 2006, decided on 24th March, 2008.

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

----S. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pension---Entitlement---Petitioner serving as calligrapher, though was terminated from service, but was allowed pension---Petitioner having not been paid said pension, filed appeal before Service Tribunal, which was accepted, and employers were directed to pay pension to petitioner under Privatization of Progressive Papers Limited Pension Rules, 1985---Petition for leave to appeal before Supreme Court by employers against judgment of Service Tribunal was also dismissed---Petitioner, despite the judgment of the Supreme Court in his favour, was deprived of his lawful right of pension, which otherwise was contempt of the Supreme Court---Constitutional petition by the petitioner was allowed with direction to employers/Privatization Commission to make arrangement for the pension and due emoluments and pay same to the petitioner, within specified period.

M.A. Rashid Rana v. Chief Secretary 1999 PLC (C.S.) 623; Ghulam Sarwar v. Habib Bank Limited 2001 PLC (C.S.) 198 and Muhammad Siddique Detho v. State Life Insurance Corporation 2005 PLC (C.S.) 946 ref.

Muhammad Usman Arif for Petitioner.

Muhammad Rafique Shad for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1196 #

2008 PLC (C.S.) 1196

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Maulana Qari MUHAMMAD ARIF

Versus

CHIEF ADMINISTRATOR AUQAF and others

Writ Petition No.4239 of 2008, decided on 3rd June, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Appointment of Khateeb' at Jamia Masjid---Petitioner joined the Auqaf Department as Khateeb at Jamia Masjid, however, after some days respondent was appointed as Khateeb of said Masjid in place of the petitioner, which had caused a serious prejudice to the petitioner who had assailed said order of appointment through constitutional petition---Relevant rules provided two distinctive/separate cadres i.e. "Mosques Establishment Cadre" and "Auqaf Academy Establishment"---Petitioner belonged to the "Mosques Establishment" since his joining the Auqaf Department, whereas respondent belonged toAuqaf Academy Establishment'---Post of `Khateeb' and that too of Jamia Masjid, which was a central place, was to be filled from among Khateeb's cadre and not from the among other cadre when clear provision existed in the rules that said post would be filled from among serving Khateebs---If a thing was required to be done in a particular manner, it must be done in that manner only and not otherwise---While .filling of the posts, the rules relating to the appointments, must be adhered to and if any appointment was made in deviation to such rules, that appointment could not be considered a valid appointment in the eye of law---Matter was referred to the Chief Administrator Auqaf with a direction to treat the post of Khateeb Jamia Masjid as vacant one; consider the eligibles' cases including the case of the petitioner on its own merits; and then the post be filled in without being influenced by any extraneous pressure, and particularly in a fair and transparent manner, within specified period.

Muhammad Arif Raja for Petitioner.

Naeem Masood, Astt. A.-G. Punjab.

Nasim Ahmad Khan for Auqaf Department and for Respondent No.3.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1200 #

2008 P L C (C.S.) 1200

[Lahore High Court]

Before Zubda-tul-Hussain, J

MUHAMMAD KHALID NAZIR

Versus

D.C.O. and others

Writ Petition No.2037 of 2006/BWP, decided on 3rd July, 2008.

Punjab Civil Service (Ratio of Recruitment) Rules, 1973---

----R. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment against reserved quota---Petitioner being son of retired employee had a right to be considered for appointment against 20% reserved quota---Authorities, instead of calculating 20% quota against the total number of the posts in the cadre, determined the same only against the posts, which were advertised for recruitment---Such mode of calculation of posts undoubtedly was against the mandate of Punjab Civil Service (Ratio of Recruitment) Rules, 1973---Stance taken by the authorities that the reserved quota was to be applied only to the number of posts/vacancies announced for recruitment and not against the total number of posts in the cadre was simply farcical and was patently illegal---Rule 3 of Punjab Civil Servants (Ratio of Recruitment) Rules 1973, had provided that the ratio of recruitment would be applied to the total number of posts in the cadre and it could not be applied to the number of the posts advertised/announced for the time being---Where the recruitment in the terms of quota was reserved, it had to be given precedence over the other appointments for maintaining the ratio prescribed under the law---Direct recruitment, no doubt was a right of the eligible candidates, but it could be given effect only when the reserved quota had been exhausted and a vacancy remained available for direct appointment---Authorities, who had to make appointments to any post in the government office, had to exercise their authority honestly and objectively in the public interest and strictly in accordance with law without being influenced by any extraneous consideration or the subordination of any superior authority---Departmental Selection Committee and then the appointing authority, in the present case both erred in law while allocating the seats to the candidates against the posts for reserved quota---Petitioner would be considered for appointment against the reserved quota of the number of vacancies to be calculated in accordance with R3 of the Punjab Civil Service (Ratio of Recruitment) Rules, 1973 by applying the same to the total number of Posts of Naib Qasids in the cadre so as to maintain the prescribed percentage of the over all strength of the cadre and not to the actual vacancies existing or announced at a given time.

Petitioner in person.

Ch. Shafi Muhammad Tariq, A.A.-G. with Muhammad Nawaz, Litigation Officer for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1251 #

2008 P L C (C.S.) 1251

[Lahore High Court]

Before Kazim Ali Malik, J

TALLAT MEHMOOD

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others

Writ Petition No.1841 of 2008, decided on 6th May, 2008.

Bahauddin Zakaria University Act (III of 1975)---

----S. 16(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Promotion---Withdrawal of order of promotion---Petitioner was employed in University as Sub-Engineer---Vice-Chancellor, in anticipation of approval of Syndicate/Chancellor, promoted petitioner to the post of Assistant Engineer in basic pay scale 17, with the clarification that in case said promotion was not approved by the Syndicate/Chancellor, petitioner would be reverted to his original post of Sub-Engineer---Subsequently, Vice-Chancellor vide office order, in exercise of power vested in him under S.16(3) of Bahauddin Zakaria University Act, 1975 promoted petitioner as University Engineer on officiating basis subject to approval of the Chancellor---Subsequently Vice-Chancellor/ on behalf of Syndicate, vide impugned order withdrew said order of promotion on officiating basis and reverted petitioner to his original official position of Assistant Engineer on account of his unsatisfactory service record---Validity---Petitioner had not been promoted as University Engineer on regular basis and vide office order his promotion was on officiating basis subject to approval of the Syndicate---Petitioner having never been promoted as University Engineer, impugned order by means of which he was restored to his original position, should not have hurt the petitioner---Mere fact that the petitioner was promoted on officiating basis subject to approval of the Authority, would not create any right of promotion in his favour---Further more the petitioner was proceeded against on the charge of misconduct---Reasons which weighed with the Vice-Chancellor while passing the impugned order were not whimsical or arbitrary---Record, revealed that the petitioner misused his official position, which was awarded to him on officiating basis---Impugned order of Vice-Chancellor, in circumstances, was not open to exception on any ground.

Khurshid Ahmad Khan for Petitioner.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1260 #

2008 P L C (C.S.) 1260

[Lahore High Court]

Before Hafiz Tariq Nasim, J

ABDUL HAMEED

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.1839_of 2007, decided on 26th March, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Eligibility for promotion---Petitioner had prayed that his case of pro forma promotion be ordered to be placed before the appropriate Department for consideration on merits---Assistant Advocate-General after consulting relevant record, had not denied that petitioner was eligible for promotion, before his superannuation and that said benefit was not granted to him due to any fault on his part---Validity---When a legitimate expectant for promotion was admittedly eligible person, the post was available in the petitioner's quota for promotion and only on extraneous consideration he was singled out without any justification, such course could not be justified in law---Action of Departmental Authorities for withholding petitioner's promotion with effect from date of his eligibility and the occurrence of vacancy in his quota, was unlawful, and violative of all norms of justice---High Court directed that petitioner's pro forma promotion case be placed before the Departmental Promotion Committee within specified period---Departmental Promotion Committee was directed to complete that process fairly, justly and without getting influenced by any extraneous matter.

Muhammad Amin Goraya for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1266 #

2008 P L C (C.S.) 1266

[Lahore High Court]

Before Hafiz Tariq Nasim, J

ALL PAKISTAN CLERKS ASSOCIATION (APCA) through President

Versus

Mst. ISHRAT FATIMA and 3 others

Writ Petition No.4541 of 2008, decided on 9th June, 2008.

(a) Punjab Local Government and Rural Development Department, Directorate General, Katchi Abadis, Recruitment Rules, 1993

----Constitution of Pakistan, (1973), Art.199(2)(ii)---Quo warranto, writ of---Post of Assistant Director (Community Development) in BS-17, Directorate-General, Katchi Abadis and Urban Improvement---'Qualification for such post, was that candidate be having a Master Degree at least 2nd Division in Social Work of Sociology/Rural Sociology---Mode of appointment was by initial recruitment/transfer---Appointment of respondent on such post of political motivation while serving in such Department on deputation and not holding required qualification---Validity---Qualification of respondent was Master Degree in Psychology in 1st Division and B.Ed., with ten years teaching experience---Respondent was earlier serving as Senior Scale Secondly School Teacher (BS-16)---Respondent had directly submitted application to Chief Minister firstly for her deputation and then for her permanent absorption against such post---Such application was recommended by an M.P.A./Chairperson, Provincial Standing Committee---Secretary Regulations and Chief Secretary had opined to Chief Minister that such request of respondent could not be acceded to without relaxation of Deputation Policy---Relaxation given by Chief Minister did not reflect application of his independent mind---Candidate holding Degree in M.A. Psychology was not eligible against such post---Positing against such post could be made only by Punjab Public Service Commission---Mere holding Master Degree by respondent in Psychology and being hardworking and efficient officer, would not authorize Department and then Chief Minister to bypass Rules---Department was not interested to absorb respondent, but the M.P.A. wanted to see her as Assistant Director in BS-17---Respondent had to demonstrate that her appointment was in accordance with law and Rules---Respondent had approached Chief Minister through M.P.A. and then obtained impugned order of absorption, which was misconduct on her part---Absorption/appointment of respondent on such post was violative of Punjab Local Government and Rural Development Department, Directorate-General, Katchi Abadis Recruitment Rules, 1993---Power exercised by Chief Minister was in excess of his jurisdiction---High Court accepted constitutional petition and declared impugned order to be illegal while observing that the respondent would be entitled to repatriate to her parent department as Senior Scale Secondary School Teacher (BS-16).

Capt. (R.) Muhammad Nasim Hijazi v. Province of Punjab 2000 SCMR 1720; Dr. Sher Bahadur Khan Panee v. Government of West Pakistan PLD 1956 Pesh. 77; A.R. Azar v. Federation of Pakistan PLD 1958 Lah. 185; Pakistan Tobacco Board v. Tahir Raza 2007 SCMR 1997; Nisar Ahmed v. Government of Punjab 1992 PLC (C.S.) 1020 and Government of the Punjab v. Dr. Shamim Waheed Sheikh 1993 SCMR 1692(2) rel.

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

----Art. 199---Quo warranto, writ of---Civil service---Appointee would have to demonstrate that his appointment was in accordance with law and Rules.

Dr. Sher Bahadur Khan Panee v. Government of West Pakistan PLD 1956 Pesh. 77 and A.R. Azar v. Federation of Pakistan PLD 1958 Lab. 185 rel.

----Exercise of discretion by highest State functionary---Principles.

The discretion of even the highest State functionary is circumscribed by law and as against their whims of liking, compulsion or expediency; it is the will of the legislature, which is to prevail. Unless those in authority starting from the top are willing to surrender their will to the rule of law, latter will remain confined to casualty ward.

Capt. (R.) Muhammad Nasim Hijazi v. Province of Punjab 2000 SCMR 1720; Dr. Sher -Bahadur Khan Panee v. Government of West Pakistan PLD 1956 Pesh. 77 fol.

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

----Rr. 2(d) & 3(b)---Misconduct---Connotation---Bringing political or outside influence directly or indirectly to bear on Governor, Chief Minister, a Minister or Government Officer in support of any matter relating to conditions of service of civil servant would be misconduct---Principles.

Ch. Naseer Ahmad Bhutta for Petitioner.

Dr. A. Basit for Respondent No.1.

Naeem Masood, Asstt. A.-G.

Ms. Sabahat Rizvi, Law Officer Respondent No.2.

Ch. Rashid Ahmed for Respondent No.4.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1277 #

2008 P L C (C.S.) 1277

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD SHAFIQUE and 6 others

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and 2 others

Writ Petition No.5003 of 2001, decided on 8th April, 2008.

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

----Art. 199---Constitutional petition---Alternate remedy, availability of---Non-suiting petitioner on such ground---Scope stated.

The alternate remedy, if it is not efficacious or speedy, and if the grievance of the aggrieved person is of such serious in nature, that it could only be resolved through the process of law by a competent Court of jurisdiction, then aggrieved person cannot be non-suited on this score.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Book-Binders/Daftries of Board in BPS-2---Selection grade of BPS-4, grant of---Withdrawal of such selection grade after two months of its granting on basis of audit objection raised by Finance Department of Punjab Government---Validity---Notification of Punjab Government dated 7-9-1995 granting benefit to its Daftries was applicable to Board's employees as same had been adopted by Board by passing order dated 19-1-2001---Order granting selection grade to petitioners passed by competent authority of Board had been implemented in letter and spirit resulting into accrual of lawful right in their favour, which could not be rescinded or recalled on observation or direction of Finance Department, which had nothing to do with affairs of the Board---Impugned order had been passed on some extraneous consideration---High Court accepted constitutional petition and declared impugned order to be illegal and without lawful authority.

Malik Noor Muhammad Awan for Petitioners.

Dr. Muhammad Mohy-ud-Din Qazi for Respondents with Liaqat Ali Assistant for Respondent.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1300 #

2008 P L C (C.S.) 1300

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD JEHANGIR

Versus

DIRECTOR ADMINISTRATION HUCAA, TERMINAL-I, JIAP, KARACHI and 3 others

Writ Petition No.10997 of 2007, decided on 19th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199-Constitutional petition---Civil service---Correction of date of birth---Petitioner prayed for setting aside orders whereby his request for correction of date of birth in his service record was declined and he was superannuated---Record produced by authorities had revealed that petitioner had practically accepted his retirement, submitted application for release of his pensionary benefits and did not agitate for correction of his date of birth throughout his 35 years' service---Petitioner having filed constitutional petition at belated stage just to achieve certain benefits, same had no force and was dismissed accordingly.

Muhammad Ayaz Khan v. Government of Sindh and others 2007 PLC (C.S.) 716 and Dr. Shamim Waheed v. Province of Punjab and another 2008 PLC (C.S.) 192 ref.

Ch. Tariq Javed for Petitioner.

Muhammad Usman Arif for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1308 #

2008 P L C (C.S.) 1308

[Lahore High Court]

Before Hafiz Tariq Nasim, J

JAVED IQBAL CHATTHA

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, AGRICULTURE DEPARTMENT, LAHORE and 2 others

Writ Petition No.5792 of 2008, decided on 11th June, 2008.

Punjab Agricultural Produce Market (General) Rules, 1979---

----R. 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of employee---Petitioner who was serving as Secretary Market Committee in "A" class market being in BS-17 was transferred---Respondent, who being in BS-15 could only be posted against Market Committee "C" class, was posted on that post through the impugned order on political motivation and extraneous considerations which had caused a serious prejudice to the petitioner's case---Petitioner though could not ask a posting of his own choice as a matter of right, but only to accommodate an ineligible favorite an eligible officer/employee could not be disturbed from his place. of posting and that too without further posting---Petitioner, who was a Secretary in BS-17 had a lawful right to be posted against a corresponding post of BS-17 as Secretary---Petitioner, however, could not insist for posting of his own choice, which otherwise was the domain of the Departmental Authorities, who were supposed to exercise their jurisdiction in a transparent manner, particularly without getting influenced from any extraneous pressure---Record showed that respondent had exerted political pressure of the Chief Minister for his posting against the post of BS-17---Entire record of Department had revealed that respondent was habitual of exerting political pressure throughout his service career---Exerting political pressure in service for transfer, posting and promotion, etc. amounted to misconduct---Impugned order whereby respondent was posted, was declared illegal, without lawful authority and was set aside with direction to fill the post of Secretary Market Committee, in accordance with law and Rules applicable.

Tallat Farooq Sheikh for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab.

Mian Sohail Anwar and Junaid Jabbar Khan for Respondent.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1316 #

2008 P L C (C.S.) 1316

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Ms. GULSHAN TAHIRA

Versus

ADDITIONAL REGISTRAR OF COMPANIES, SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN, LAHORE and 2 others

Writ Petition No.923 of 2008, decided on 3rd June, 2008.

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

---Ss. 3 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Petitioner aggrieved of order passed by the Chairman of the Commissioner under S.3 of Removal from Service (Special Powers) Ordinance, 2000, whereby petitioner was dismissed from service, had contended that impugned order was passed by an incompetent Authority---Record had revealed that removal of petitioner was made under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Petitioner's remedy, in circumstances lay before Service Tribunal and he should have filed appeal under S.10 of Removal from Service (Special Powers) Ordinance, 2000---Constitutional petition filed by the petitioner, being not maintainable, was dismissed.

Irfan Ahmad Sheikh for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLCCS 2008 LAHORE HIGH COURT LAHORE 1320 #

2008 P L C (C.S.) 1320

[Lahore High Court]

Before Hafiz Tariq Nasim, J

RIZWAN MANZOOR

Versus

PROVINCIAL GOVERNMENT, LAHORE through Secretary, Excise and Taxation and 2 others

Writ Petition No.1042 of 2008, decided on 24th March, 2008.

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

----R.16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Petitioner, who was M.A. in English and Law graduate, in pursuance of advertisement in the press applied for the post of Excise and Taxation Inspector---Petitioner was called for written test by the . Punjab Public Service Commission, petitioner appeared and was declared successful---Petitioner was called for interview along with others, but he was not found up to the mark by the Interviewing Committee, comprising two Members---Members of Interviewing Committee did not ask even a single question regarding the post; it was told by the Member of Interviewing Committee to the petitioner that as he was highly qualified and was not likely to stay as Inspector Excise and Taxation, he could not be recommended for the said post---Validity---Petitioner had been non-suited only on extraneous consideration---Flagrant disregard of law and rules by statutory bodies and functionaries, would attract power of judicial review vesting in superior courts---Constitutional petition was allowed, rejection of petitioner's candidature by Public Service Commission, was declared without lawful authority---Public Service Commission was directed to conduct fresh interview of petitioner against vacant post of Excise and Taxation Inspector, fairly, justly and without being influenced by the previous outcome of the interview.

Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560; Attaullah Mehr v. Punjab Government 1983 CLC 2903; PLD 1984 Lah. 27; Muhammad Mumtaz-ul-Hassan v. Attaullah Mehr 1984 SCMR 1499 and Dr. Habib-ur-Rehman v. West Pakistan Public Service Commission PLD 1973 SC 144 rel.

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

----Art. 199-Constitutional jurisdiction---Scope---Judicial scrutiny of minutes of Selection Board---Minutes of Selection Board were not to be interfered in exercise of powers under Art.199 of the Constitution of Pakistan (1973), but in exceptional case when the court would feel that injustice was done in case of aggrieved person, the right of judicial security could not be declined.

----Art. 4---Right of individuals to be dealt with in accordance with law---Duties and functions of functionaries---Every functionary and body, whether administrative or judicial or quasi-administrative or quasi-judicial, was required to deal with all applicants before it, justly and equitably---Applicant had a legal right to demand that such functionaries or body should determine matter in accordance with law governing the subject.

Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560; Attaullah Mehr v. Punjab Government 1983 CLC 2903; PLD 1984 Lah. 27 and Muhammad Mumtaz-ul-Hassan v. Attaullah Mehr 1984 SCMR 1499 ref.

Rana Muhammad Sarwar for Petitioner.

Naeem Masood, Asstt. A.-G., Punjab with Sadaqat Ali Representative for Respondent.

N Wfp Service Tribunal

PLCCS 2008 N WFP Service Tribunal 68 #

2008 P L C (C.S.) 68

[Peshawar High Court]

Before Ejaz Afzal Khan and Jehanzaib Rahim, JJ

MUHAMMAD REHMAN

Versus

DIRECTOR FINANCE PESCO, WAPDA and another

Writ Petition No.1759 of 2006, decided on 26th June, 2007.

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

----S. 4---Civil Servants Act (LXXI of 1973), S.9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Appeal to Service Tribunal---Scope---Promotion, eligibility or fitness for---Except an order or decision of the Departmental Authority determining the fitness or otherwise of a person to be appointed to or hold a particular position or to be promoted to a higher grade, all order's or decisions relating to the terms and conditions of service, could be assailed before the Service Tribunal--Record and arguments addressed by the counsel for the petitioner had revealed that the dispute urged before the High Court as to fitness or otherwise of petitioner for being promoted, was one of his eligibility for being considered for promotion---In the case of fitness; petitioner could come to High Court, if he, despite being fit, was not promoted in violation of law, excess or absence of jurisdiction or in colourable exercise thereof-In case of eligibility petitioner could go to the Service Tribunal, if he was not held eligible for promotion and not considered---Petitioner's case was not that he being eligible was not considered for promotion and found unfit; his case was that 'his name, despite his eligibility was not forwarded to competent Authority for being considered for promotion---Dispute like such type clearly and squarely fell within the ambit of S.4 of Service Tribunal's Act, 1973, which could be urged before the Service Tribunal and not before High Court under Art.199 of Constitution---When the dispute about the passing of prescribed examination by the petitioner being one of fact and disputed by the respondents, same could not be gone into by High Court while hearing constitutional petition.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Zafarullah Baloch v. Government of Balochistan and others 2002. SCMR 1056; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and others PLD 2004 SC 65; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and 4 others 1999 SCMR 1605 and Tasleem Jan and others v. Muhammad Zaman and others 2005 SCMR 695 ref.

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

----S. 17(1-B)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Civil Servants Act (LXXI of 1973), 59---Constitution of Pakistan (1973), Arts.199 & 260---Constitutional jurisdiction of High Court---Scopes--Deletion of S.17(1-B) of Pakistan Water and Power Development Authority Act, 1958---Provisions of S.17(1-B) of Pakistan Water and Power Development Authority Act, 1958 declaring the service of the Authority to be a service of Pakistan, was neither deleted from the said Act nor it was any way repugnant to the provisions of Art.260 of the Constitution, and dispute as to the eligibility of the petitioner being related to the terms and conditions of service, could be urged before the Service Tribunal---High Court in circumstances had no jurisdiction, however, instead of dismissing constitutional petition, same was treated as an appeal and was sent to the Service Tribunal for decision in accordance with law.

Mian Muhibullah Kakakhel for Petitioner.

Barrister Arshad Abdullah for Respondent.

----S. 9---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Withdrawal of advance increments already allowed to appellant on the basis of higher qualification---Notification of Finance Department showed that appellant was not entitled to said increment---No statutory rule/instruction was referred according to which appellant was entitled to advance increments on acquiring higher qualification of Master's Degree---Appellant having failed to make out a case for indulgence of the Service Tribunal her appeal against withdrawal of advance increments, was dismissed.

Muhammad Asif Yousafzai for Appellant.

Noor Zaman Khan, Addl. Government Pleader for Respondents.

PLCCS 2008 N WFP Service Tribunal 390 #

[Punjab Service Tribunal]

Before Justice (Rtd.) Rustam Ali Malik, Chairman

MUNIB-UR-REHMAN

Versus

DIRECTOR PUBLIC INSTRUCTIONS (SE), GOVERNMENT OF THE PUNJAB, LAHORE and 2 others

Appeal No.1192 of 2006, decided on 22nd February, 2007.

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion, eligibility for---Appeal---Case of appellant was that he was appointed as Arabic Teacher in 1986 and he passed the B.Ed. Examination in 1990---Appellant applied for S.S.T. Grade out of 50% in service quota as he was eligible for the award of S.S.T. Grade (BS-16)---Appellant was awarded said grade in 1999, whereas respondent who was junior to appellant and who passed his B.Ed. Examination in 1990 was given S.S.T. Grade in 1995---Appellant had alleged that he had been wrongly discriminated against---Case of the Department was that qualification of B.Ed. (Arabic) having not been declared equivalent to B.Ed. (General), appellant was not eligible for appointment as S.S.T.---Education Department after considering the case, was of the view that B.Ed. (Arabic) degree awarded by the Allama Iqbal University, was equivalent to the B.Ed. degree from any other University---In the light of said direction of Education Department, proper seniority list was to be prepared in which the teachers possessing the degree of B.Ed. (Arabic) were to be treated at par with those possessing the degree of B.Ed. (General)---Appellant was entitled to the grant of S.S.T. Grade when his junior was granted said grade.

Khawaja Muhammad Arif for Appellant.

Khadim Hussain Sindhu, District Attorney, Hassan Mujtaba, AEO (Lit), Rawalpindi and Syed Ashfaq Hussain, A.D. (Admn.) Office of D.P.I. (SE), Punjab, Departmental Representatives for Respondents.

Date of hearing; 22nd February, 2007.

PLCCS 2008 Punjab Service Tribunal 189 #

2008 P L C (C.S.) 189

[Punjab Service Tribunal]

Before Fakhar Hayat, Member-V

MADAD ALI HAIDER, EX-ASSISTANT SUB-INSPECTOR

Versus

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

Appeal No.508 of 2006, decided on 30th August, 2007.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice on allegation, firstly that he remained absent from duty without obtaining leave or prior permission, secondly that he was involved in a criminal case---Counsel for appellant had referred to number of documents on record to contend that appellant was not absent during the period as alleged by respondent---Involvement of appellant in the criminal case, per se was no ground for holding appellant liable for punishment under the Punjab Removal from Service (Special Powers) Ordinance, 2000, unless substantiated through evidence or the verdict of the Court---Criminal matter and Departmental proceedings could go side by side---Major penalty of dismissal from service was imposed on appellant by adopting a summary procedure of issuance of show-cause notice, which was not appropriate, because controversial question of facts were involved in the case which needed evidence---Dispensing with regular inquiry being not proper, impugned orders were not sustainable in the eyes of law---Impugned orders were thus, set aside and appellant was ordered to be reinstated into service---Departmental proceedings against appellant would be deemed to be pending.

Pervez Inayat Malik for Appellant.

Naseer Ahmad, Inspector Legal and Ashfaq Ahmed, Head Constable, Departmental Representatives for Respondents.

Date of hearing: 30th August, 2007.

PLCCS 2008 Punjab Service Tribunal 197 #

2008 P L C (C.S.) 197

[Punjab Service Tribunal]

Before Arshad Bin Ahmad, Member-III

MUHAMMAD NAWAZ SHEIKH

Versus

PUNJAB UNIVERSITY through Registrar, Lahore and 2 others

Appeal No.2595 of 2006, decided on 1st August, 2007.

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

----Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4--- Imposition of penalty of compulsory retirement---Appeal---Penalty of compulsory retirement was imposed on appellant after charge-sheeting him on certain. allegations---Appellant had alleged that charge sheet was issued unauthorizedly by the Inquiry Officer, while the statement of allegation was unsigned---Validity---Disciplinary proceedings initiated against appellant were ab initio void as under the Explanation under S.5 of the Punjab Removal from Service (Special Powers) Ordinance, 2000, it had been clearly mentioned that the order of inquiry and statement of allegations would be signed by the Competent Authority and that the Inquiry Officer would only communicate the charge-sheet to accused---Competent Authority being the Registrar for the appellant, Inquiry Officer could not sign the charge-sheet---Personal hearing was also found to have been granted by the Vice-Chancellor, who was not the competent Authority on whose orders Registrar as the competent Authority issued the impugned orders, whereas he should have himself granted the personal hearing and taken a decision independently---Disciplinary proceedings against appellant in view of said grave lacunae, being ab initio void, impugned orders were set aside and appellant was reinitiated in service to face fresh proceedings including regular inquiry proceedings providing the opportunity of defence to appellant under the law.

Pervaiz Inayat Malik for Appellant.

Mian Javed Ismail, District Attorney, Muhammad Arif Raja for Respondents and Zahoor Ahmad Assistant Registrar, D.Rs.

Date of hearing: 1st August, 2007.

PLCCS 2008 Punjab Service Tribunal 203 #

2008 P L C (C.S.) 203

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

RASHID MEHMOOD

Versus

VICE-CHANCELLOR, UNIVERSITY OF ARID AGRICULTURE, RAWALPINDI and others

Appeal No.2811 of 2005, decided on 5th December, 2006.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of removal from service---Appeal---Penalty of removal from service was imposed on appellant after holding inquiry against him on allegation of negligence and misconduct for allegedly tampering with record---Appellant had filed appeal against the order of removal from service before the Chancellor instead of having recourse to the Syndicate of the University---Appeal no doubt was filed before a wrong forum---Plea of the appellant was that appeal filed by him should have been forwarded by the Chancellor's office to the Syndicate, was not correct---Appellant should have adopted the lawful course for filing the appeal before the Syndicate of the University and, it would be inappropriate to throw out the appeal merely on the ground that it had been filed before a wrong forum---Appellant having filed the departmental appeal within time, though before a wrong forum, same could be directed to be placed before the proper forum i.e. Syndicate of the University---Registrar of the University should have placed Departmental appeal filed by the appellant before the Syndicate of the University for appropriate decision---Appeal was accepted, impugned order whereby the departmental appeal of appellant had been rejected as time barred was set aside and a direction was issued to the Registrar to place representation/departmental appeal of appellant before the Syndicate for its disposal in accordance with law.

2006 SCMR 86; PLD 1987 SC 256; 2002 PLC (C.S.) 1113; 2002 PLC (C.S.) 474 and 2003 SCMR 826 rel.

Mrs. Rizwana Anjum Mufti for Appellant.

Khadim Hussain Sindhu, District Attorney.

Abdul Rahim Bhatti for Respondents.

Date of hearing: 5th December, 2006.

2008 P L C (C.S.) 267

[Punjab Service Tribunal]

Before K.B. Abid (Member-II)

FAYYAZ HUSSAIN

Versus

DIRECTOR EXCISE AND TAXATION (REGION "C") LAHORE and another

Appeal No.411 of 2006, decided on 11th January, 2007.

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

----Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement from service---Appeal against---Penalty of compulsory retirement from service was imposed on appellant after serving him show-cause notice and holding inquiry against him on allegations of absence from official duty, gross misconduct and corruption within the meaning of R.3(1)(b) & (c) of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appellant had contended that he had requested for medical leave for the relevant period---Departmental Authorities were supposed to get the verification of medical certificate and pass necessary orders on advice of Authorized Medical Attendant---Leave application was never considered and no orders were passed about acceptance of request submitted by the appellant---Inquiry Officer had himself admitted that the charge against appellant was partly proved---Validity---Appellant could not be penalized on the basis of charge of wilful absence partly proved---Competent Authority should have confirmed the misconduct of absence from record and facts---Inquiry Officer and penalty awarding authority had given the findings that benefit of doubt would go in favour of appellant and the charge of receiving of alleged misappropriated amount stood substantiated to some extent---Such were conflicting statements---On the basis of said conflicting and unconfirmed findings penalty could not be imposed on appellant---Other charge of receiving amount illegally by appellant was not proved because the complainant had not appeared to substantiate his claim---Appellant, in circumstances had been penalized without confirmation of evidences and record---Appellant was reinstated, in circumstances and intervening period was treated as leave of the kind due.

Mrs. Rizwana Anjum Mufti for Appellant.

Sadaqat Ali Shah, E.T.O. for D.G. Excise.

Date of hearing: 11th January, 2007.

PLCCS 2008 Punjab Service Tribunal 273 #

2008 P L C (C.S.) 273

[Punjab Service Tribunal]

Before Arshad Bin Ahmad, Member-III

MUHAMMAD SHAFIQ

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB AGRICULTURE DEPARTMENT, LAHORE and another

Appeal No.1045 of 2006, decided on 7th August, 2007.

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

----Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement from service---Appeal to Service Tribunal---Penalty of compulsory retirement from service was imposed on appellant by issuing him show-cause notice, but without holding regular inquiry against him on allegations of inefficiency, incomplete/unsatisfactory work and making irregular payments etc.---Validity---Such charges against appellant deserved to be thrashed out through a regular inquiry by providing opportunity of defence to appellant as provided under S.5(6) of Punjab Removal from Service (Special Powers) Ordinance, 2000---Procedure adopted in the disciplinary proceedings, the manner in which those were conducted appeared to have been done in unnecessary haste, vitiating the spirit of law---No justification existed in dispensing with the regular enquiry---Proceedings conducted in the matter of appellant did not conform to the principles of justice and fairplay---Impugned order was set aside and appellant was reinstated in service to face fresh proceedings strictly under the law including regular inquiry.

Rana M.F. Rehman for Appellant.

Mian Javed Ismail District Attorney and Muhammad Irfan Sulehri, Litigation Officer, Mushtaq Ahmad, Deputy Director, Departmental Representatives for Respondent.

Date of hearing: 7th August, 2007.

PLCCS 2008 Punjab Service Tribunal 282 #

2008 P L C (C.S.) 282

[Punjab Service Tribunal]

Before Justice (Rtd.) Rustam Ali Malik, Chairman

Dr. RUBINA SAEED

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT, LAHORE and others

Appeal No.61 of 2005, decided on 23rd September, 2005.

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

----R. 4(1)(a)(ii)---Service Tribunals Act (LXX of 1973), S.4---Stoppage of increment --Appeal---Minor penalty of stoppage of one increment for one year was imposed on appellant on allegation of unauthorized absence from duty---Chief Minister regularized said period of absence from duty by treating said period as extraordinary leave without pay---Authorities also issued order concerning the regularization of the period of absence from duty as extraordinary leave without pay---Authorities, however, without cancelling or withdrawing earlier order whereby period of absence was treated as extraordinary leave without pay, issued order that said period of absence from duty would be treated as breach in service and seniority of appellant would be counted from the date of her rejoining the duty in the department---Once the order was passed for treating the period of absence of appellant as extraordinary leave without pay and once Competent Authority/Chief Minister had condoned the period of absence, sanction so granted could not be withdrawn subsequently without issuing a notice to appellant and without affording her an opportunity of being heard as said order had created a valuable right for the appellant---Order for treating period of absence of appellant from duty as a breach in service and for treating her seniority from date of rejoining duty was of such a nature which would seriously hamper her career as a civil servant, without being issued a show-cause notice---Impugned order was set aside with direction to authorities to restore seniority of appellant qua her batch-mates and to consider her for further promotion to next higher post/scale on merits from the date when her juniors were promoted.

Ishfaq Hussain Rana v. Government of the Punjab through Secretary Agriculture Punjab and 38 others 1993 SCMR 1326 and PLD 1969 SC 407 ref.

Abdul Rahim Bhatti for Appellant.

Khadim Hussain Sindhu, District Attorney.

Dr. Muhammad Athar Khan, Law Officer, Office of D.G.H.S. Punjab, Departmental Representative.

Ejaz Farrukh, Senior Law Officer, Health Department, Departmental Representative.

Date of hearing: 23rd September, 2005.

PLCCS 2008 Punjab Service Tribunal 290 #

2008 P L C (C.S.) 290

[Punjab Service Tribunal]

Before Arshad Bin Ahmad, Member-III

ZIA-UD-DIN KHAN

Versus

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

Appeal No.1904 of 2006, decided on 19th June, 2007.

Punjab Deputy Superintendent of Police Service Rules, 1979---

----Punjab Civil Servants Act (VIII of 1974), S.8---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion, entitlement to---Appeal to Service Tribunal'--Appellant, who was an Inspector of Police in the Special Branch was not considered for promotion as Deputy Superintendent of Police ostensibly on the ground that he was too junior in the list of Inspectors in the seniority list of confirmed Inspectors---Validity---Appellant as a result of ante-dated promotion as Sub-Inspector and Inspector, had become senior to co-employee who was promoted---Deferment of appellant under new criteria was contradictory to the Punjab Deputy Superintendent of Police Service Rules, 1979---Appellant had completed advance course mandatory for promotion as D.S.P. as required under amended Punjab Deputy Superintendent of Police Service Rules, 1979---Appellant who had regained seniority as Inspector Police on the basis of ante-dated promotion already granted to him, stood senior to respondent and was entitled to be promoted as Deputy Superintendent---Impugned order was set aside, with the direction to consider expeditiously appellant for promotion to the rank of Deputy Superintendent of Police from the date of promotion of his next junior, in accordance with criteria laid down in Service Rules and in accordance with pro forma promotion policy.

2006 SCMR 1240; 2007 PLC (C.S.) 208; 2005 SCMR 675 and 2002 PLC (C.S.) 1279 ref.

Mahmood Ahmad Qazi for Appellant.

Mian Javed Ismail, District Attorney and Naseer Ahmad, Inspector Legal, Department Representative for Respondents.

Date of hearing: 19th June, 2007.

PLCCS 2008 Punjab Service Tribunal 295 #

2008 P L C (C.S.) 295

[Punjab Service Tribunal]

Before Justice (R) Rustam Ali Malik, Chairman

Dr. SABIR ZAMEER SIDDIQUI

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another

Appeal No.2139 of 2005, decided on 28th September, 2007.

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Pro forma promotion---Entitlement---Non-implementation of order of promotion---Appeal---Service Tribunal in its earlier judgment which had attained finality, had directed that appellant would be considered for the grant of pro forma promotion to BS-19 from the date when his junior was so promoted; and that appellant would also be considered for the grant of move-over to BS-19 and to BS-20 from the dates when said benefits became due to him in accordance with the rules and conditions prescribed for the grant of such benefits---Authorities were bound to implement said judgment of the Service Tribunal, but Registrar of the Tribunal was informed by the department that the case 'for grant of pro forma promotion to BS-19 had been rejected---No reason was given for rejection of claim of appellant---Authorities were under a legal obligation to implement judgment of the Tribunal---Impugned order of the department which could not legally be sustained, was liable to be set aside---Accepting appeal direction was issued to the authorities to consider case of appellant afresh for granting pro forma promotion and move-over accordingly.

2005 PLC (C.S.) 237 and Raees Khan's case 1993 SCMR 609 ref.

Malik Muhammad Bashir for Appellant.

Muhammad Yousaf, S.O. (Legal, S&GAD), and Amjad Ali, Stenographer, Agriculture Department, Departmental Representatives for Respondents.

Date of hearing: 28th September, 2007.

PLCCS 2008 Punjab Service Tribunal 301 #

2008 P L C (C.S.) 301

[Punjab Service Tribunal]

Before Arshad Bin Ahmad, Member-III

QAISAR ZIA ULLAH

Versus

DEPUTY D.E.O.(M), MANDI BAHAUDDIN and 2 others

Appeal No.3010 of 2006, decided on 28th May, 2007.

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

----Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Appeal to Service Tribunal---Removal from service---Reinstatement---Entitlement to salary for the period appellant remained out of service---Appellant, who was removed from service on certain misunderstanding, was reinstated in service, but no decision was taken on the intervening period during which he remained out of service---Appellant was found to have been reinstated on the recommendations of the inquiry committee which had found him innocent and also held his termination as a flagrant violation of rules held by Inquiry Officer---Appellant appeared to have been a victim of the departmental action taken initially against him without any legal backing and subsequently on being reinstated was denied the salary for the period he was out of service---Prima facie, it appeared to be unfair to deny appellant his right of salary on his reinstatement---Exoneration of appellant from the charges levelled against him should have been followed by treating the intervening period as on duty as provided under the relevant rules---Impugned order was modified to the extent that appellant would be entitled to the salaries for the intervening period when he was out of service by treating the said period as in service.

Mrs. Rizwana Anjum Mufti for Appellant

Mian Javed Ismail, District Attorney and Rana Khushi Muhammad, E.D.O. Education, Departmental Representative for Respondent.

Date of hearing: 28th May, 2007.

PLCCS 2008 Punjab Service Tribunal 307 #

2008 P L C (C.S.) 307

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

MUHAMMAD AKRAM

Versus

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

Appeal No.1034 of 2006, decided on 2nd October, 2007.

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

----Rr. 4(1)(b)(v)&6---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Reinstatement---Treating period of absence as extraordinary leave without pay---Appeal---Appellant who was proceeded against on allegation of cheating and forgery of documents, was dismissed from service---On appeal against order of his dismissal from service, Service Tribunal ordered reinstatement of appellant, however, period in which appellant remained out of job, was treated as extraordinary leave without pay---Period of suspension was also directed to be treated as such---Validity---Appellant had not only been acquitted by the. Trial Court in the criminal case against him, but his departmental appeal against the punishment of dismissal awarded to him had also been accepted---Defence plea of appellant had been found satisfactory by the appellate authority and appellant was not found guilty of any of the charges/allegations levelled against him---Appellant in fact had been subjected to unnecessary hardship---Time spent by appellant out of service consequent to his dismissal from service, had unjustifiably been treated as extraordinary leave without pay---Minimum action required by the authorities was to grant appellant all the back-benefits like arrears of pay to which he was entitled on being declared innocent of the charges---Impugned order to the extent of treating the period spent by the appellant out of service or on account ^f absence as extraordinary leave without pay was set aside---Appellant would be entitled to his full back-benefits and would be treated as on duty for the period he had remained out of job.

Pervaiz Inayat Malik for Appellant.

Manzoor Hussain Bhatti, District Attorney, Javed Iqbal, Inspector Legal, Departmental and Mahmood Masih, A.S.-I. Departmental Representatives for Respondent.

Date of hearing; 2nd October, 2007.

PLCCS 2008 Punjab Service Tribunal 313 #

2008 P L C (C.S.) 313

[Punjab Service Tribunal]

Before Fakhar Hayat, Member-V

MUHAMMAD ASLAM

Versus

DIRECTOR, EXCISE AND TAXATIOIN, MULTAN DIVISION (APPELLATE AUTHORITY) and another

Appeal No.2961 of 2006, decided on 13th September, 2007.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service on account of alleged multifarious allegations---Appellant was charge-sheeted and nothing was on record to suggest that any Inquiry Officer was appointed or a regular inquiry was held, but considering the written reply, impugned order of dismissal from service was passed---Proper procedure under Punjab Removal from Service (Special Powers) Ordinance, 2000 was not followed---Since controversies of fact were in the charge-sheet and reply to it, it was incumbent upon the Authority to appoint an Inquiry Officer and get a regular inquiry held whereafter a show-cause notice should have been issued and the proper order passed---Since that had not been done, impugned orders were not sustainable in the eye of law---Allowing appeal, impugned orders were set aside.

Syed Hamid Hussain for Appellant.

Malik Sher Muhammad, A.E.T.O. and Syed Munawar Iqbal E.T.I. Departmental Representatives for Respondents.

Date of hearing: 13th September, 2007.

PLCCS 2008 Punjab Service Tribunal 606 #

2008 P L C (C.S.) 606

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

Dr. NAVEEDA TUFAIL

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Education and another

Appeals Nos.370 to 424, 440 to 505, 575 to 602, 655 to 656 and 923 to 928 of 2007, decided on 18th June, 2007.

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

----Ss. 4, 5 & 6---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22---Punjab Service Tribunals Act (IX of 1974), S.4---Ad-hoc appointment---Regularization of ad-hoc appointment---Termination of service---Appeal to Service Tribunal---Appellants joined service as Ad-hoc Lecturers in different years (most of them joined service in the year, 1996), but their services were terminated in the year 2001---Finally Supreme Court, vide its judgment, directed the department to initiate process of regularization of appellants through Public Service Commission and it was clarified that the cases would be sent separately to the Public Service Commission and would not be tagged with the direct recruits---Department, as a result of said judgment of the Supreme Court, referred the matter to the Punjab Public Service Commission for determination of the eligibility/suitability of appellants and for regularization of their ad-hoc employment---Public Service Commission, after assessment of eligibility of appellants, recommended for their regularization---Department, however, issued fresh letters of appointment of appellants, instead of regularization of their service from the date of their appointment---Departmental appeals filed by appellants against said orders of department were rejected---Validity---Appellants, however, contended that they would be satisfied, if the intervening period (between the date of their termination of service and the date of the regularization of service) was treated as leave without pay---Service Tribunal directed that department would take necessary steps urgently for bringing the intervening gap period (between 'the date of termination of services of the appellants and the date of regularization of their services through Public Service Commission), and in that respect department would request competent Authority for grant of ex post facto extension in the ad hoc period of appointment of appellants till the date of regularization of their services though Public Service Commission and to consider the said gap period as leave without pay.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 ref.

Mian Jaffer Hussain for Appellants (in Service Appeals Nos.370. to 424, 440 to 505, 575 to 602 and 655 to 656 of 2007).

Malik Masud-ul-Qasim Awan for Appellants (in Service Appeals Nos.923 to 928 of 2007).

M. Aslam Warraich, O.S.D. (Law), Education Department, Departmental Representative for Respondents.

Date of hearing: 18th June, 2007.

PLCCS 2008 Punjab Service Tribunal 669 #

2008 P L C (C.S.) 669

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

KAUSAR FIRDOUS

Versus

DISTRICT EDUCATION OFFICER (W-EE), BHAKKAR and another

Appeal No.2596 of 2006, decided on 13th February, 2007.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Dismissal from service was ordered after 11 years of appointment on the ground that 'Sanad' furnished by appellant for her appointment as Arabic Teacher was bogus---Departmental Authorities had not considered the relevant recruitment and service rules at the time of appointment of Arabic Teacher----University Grants Commission in its letter had clearly mentioned that Sanad "Shahadat-ul-Alimia Filulom at Arabia Wal Isalmia of Wafaq-ul-Madaris Arabia Multan" was recognized degree---Departmental Authority without verifying facts had dismissed appellant from service---Department on record had not placed any statement of the then District Education Officer about the appointment of appellant and validity of the Sanad---If the Sanad in question was not acceptable then why appellant was appointed by the District Education Officer---Orders of Departmental Authorities thus, were arbitrary---Orders of Departmental Authorities being incomplete without facts and force of law were set aside--Authorities were directed to conduct regular inquiry and appellant was reinstated into service.

Muhammad Ashraf Chana for Appellant.

Mussarat Javed, Assistant on behalf of E. D.O. (W-EE), Bhakkar.

Date of hearing: 13th February, 2007.

PLCCS 2008 Punjab Service Tribunal 676 #

2008 P L C (C.S.) 676

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

MUHAMMAD SABIR BUTT

Versus

SUPERINTENDING ENGINEER, IRRIGATION, SAHIWAL and another

Appeal No.1903 of 2007, decided on 9th October, 2007.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalties of recovery of allegedly embezzled amount (G.P. Funds etc.) and dismissal from service--- Appeal---Appellant had been awarded the penalty of recovery of those amounts which were not part of the charges---Net amount under dispute was Rs.2,65,630 and Departmental Representative present in the Tribunal proceedings had confirmed that amount Rs.2,53,778 had already been paid by the appellant to concerned employees---Other amount of Rs.11272 had been placed under the care and responsibility of other two officials and only balance amount of Rs.580 had equally to be shared in between appellant and another official---Net amount payable by appellant thus, was Rs.290 which would be recovered from his outstanding dues---Temporary embezzlement though was proved from the record, but penalty of dismissal from service was too harsh which was converted into withholding of one increment for the period of three years.

Khadim Hussain Khokhar for Appellant.

Ch. Maqsood Ali Bhatti, District Attorney and Muhammad Shafique, Superintendent for Respondents Nos. 1 and 2.

Date of hearing: 9th October, 2007.

PLCCS 2008 Punjab Service Tribunal 678 #

2008 P L C (C.S.) 678

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

ALI AMEER SHAH

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT, LAHORE and another

Appeal No.1643 of 2006, decided on 2nd November, 2007.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Reinstatement---Appeal---Appellant, who was dismissed from service filed departmental appeal and Appellate Authority modified the punishment of dismissal from service into 'censure'---Intervening period from the date of dismissal to the date of reinstatement was treated as extraordinary leave without pay---Appellant filed appeal to Service Tribunal praying for treatment of the intervening period as on duty, with all consequential back benefits---Validity---By converting the major punishment of dismissal from service into minor punishment of "censure" Authorities had already awarded the penalty considered appropriate in the case--- If the intervening period from the date of dismissal to the date of reinstatement was allowed to be treated as extraordinary leave without pay, it would amount to imposition of another punishment---Treating the intervening period in the above manner would amount to forfeiture of service which would be another kind of punishment to the appellant---Accepting appeal, it was directed by the Service Tribunal that the intervening period from the date of dismissal to the date of reinstatement of the appellant, would be treated as leave of the kind due, if available in the leave account of the appellant.

Khadim Hussain Khokhar for Appellant.

Manzoor Hussain Bhatti, District Attorney.

Muhammad Aslam, Assistant on behalf of Respondent No.1.

Date of hearing: 19th June, 2007.

PLCCS 2008 Punjab Service Tribunal 680 #

2008 P L C (C.S.) 680

[Punjab Service Tribunal]

Before Fakhar Hayat, Member-V

REHMAT ALI

Versus

DISTRICT POLICE OFFICER, SHEIKHUPURA and another

Appeal No.2094 of 2007, decided on 21st January, 2008.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant, who was dismissed from service, filed departmental appeal and Appellate Authority came to the conclusion that plea of appellant carried some weight and .the Authority set aside punishment of dismissal from service and reinstated the appellant into service with immediate effect and period he remained out of service was treated as such---Appellant had grievance with respect to date of reinstatement and treatment of period intervening between his dismissal and reinstatement---Validity---While setting aside punishment of dismissal from service, appellant's reinstatement into service from date of order of reinstatement, was not correct as it should have been with effect from date of dismissal and intervening period should have been allowed as leave of the kind due---Impugned order passed by the authority was modified to the extent that appellant would be reinstated into service w.e.f. the date of dismissal from service and reinstatement would be treated as leave of kind due.

Mian Khadim Hussain Khokhar for Appellant.

Manzoor Hussain Bhatti, D.A. for Respondents.

Date of hearing: 21st January, 2008.

PLCCS 2008 Punjab Service Tribunal 701 #

2008 P L C (C.S.) 701

[Punjab Service Tribunal]

Before K. B. Abid, Member-III

MUHAMMAD EJAZ

Versus

BATTALION COMMANDER, BATTALION NO.4, P.C. FAISALABAD and 2 others

Appeal No.1610 of 2006, decided on 6th October, 2006.

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

----R. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Penalty of dismissal from service was awarded to appellant after issuing him show-cause notice and giving him opportunity of personal hearing on charge that he remained absent from duty for a period of 76 days and 11 hours---Charge of misconduct of absence from duty was proved from the record---Appellant, however having served for many years in the Department penalty of dismissal from service awarded to appellant was too harsh and it did not commensurate with gravity of the misconduct committed by him---Said penalty was converted into reduction in pay by one stage in time scale---Appellant was reinstated into service and period of absence was treated as leave without pay.

Khadim Hussain Khokhar for Appellant.

Malik Ghulam Raza, District Attorney for Respondents.

Date of hearing: 6th October, 2006.

PLCCS 2008 Punjab Service Tribunal 874 #

2008 P L C (C.S.) 874

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

SHARAFAT ALI

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), NAROWAL and 2 others

Appeal No.3137 of 2007; decided on 4th March, 2008.

Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---

----Ss. 4(1)(b)(v), 5, 10, 16 & 19---Imposition of penalty of removal from service---Appeal against---Departmental proceedings were initiated against appellant on the charge of conspiracy for robbery of government money and penalty of removal from service was imposed on him after holding inquiry against him---Departmental Authority in its report had not recorded the statement of any person which could indicate the connivance of appellant in the said case of robbery/dacoity---Appellant, in the criminal trial had been shown as prosecution witness, but in the. departmental proceedings, he had been charged with connivance relating to the dacoity case; conflicting stand taken by the Departmental Authorities without having the support of concrete evidence was not sustainable and was arbitrary---Departmental Authorities having not produced any valid evidence against the appellant, the charge was not proved---Appeal was accepted and appellant was reinstated into service and intervening period would be treated as leave of the kind due.

Pervaiz Inayat Malik for Appellant.

Muhammad Akbar Litigation Officer for Respondent No. 1.

Ch. Maqsood Ali Bhatti, District Attorney.

Date of hearing: 4th March, 2008.

PLCCS 2008 Punjab Service Tribunal 927 #

2008 P L C (C.S.) 927

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

MUHAMMAD ALI

Versus

CAPITAL CITY POLICE OFFICER, CIVIL LINES, LAHORE and 3 others

Appeal No.783 of 2007, decided on 7th March, 2008.

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

----Ss. 6 & 8---Punjab Service Tribunals Act (IX of 1974), S.4---Confirmation and promotion---Entitlement---Appeal---Appellant was promoted as Head Constable and since date of his promotion he was serving as Head Constable, but he was not promoted as A.S.-I. despite he had unblemished service record and his juniors were promoted up to the rank of Sub-Inspector in similar circumstances---Police Rules, provided that departmental Authorities were bound to confirm officiating promotion after completion of probationary period---Appellant had not been confirmed due to slackness of departmental Authority---By virtue of the continuous appointment without any adverse entries in his service record, appellant was entitled for confirmation in the rank of Head Constable with effect from the date he was promoted to that post---Police Rules specified that the Police Officials must be sent to promotion course on due date and they were not to be allowed to become overage for attending the training course, but appellant had become overage due to slackness and inaction on the part of departmental authorities---Plea of department that appellant had not qualified the Intermediate Class Course, was not acceptable at such belated stage---Claim of appellant for his further promotion having been established, directions were given to the department to confirm him as Head Constable w.e.f. from date he was promoted to that post---Appellant would be allowed the officiating promotion as A.S.-I. from the date his next junior was promoted as A.S.-I.---Appellant would be allowed the confirmation as A.S.-I. from the date of his officiating promotion and he would be entitled to all financial benefits.

Khadim Hussain Khokhar for Appellant.

Ch. Maqsood Ali Bhatti, District Attorney for Respondent. Abdul Rashid S.C. for Respondent No.1.

Date of hearing: 7th March, 2008.

PLCCS 2008 Punjab Service Tribunal 973 #

2008 P L C (C.S.) 973

[Punjab Service Tribunal]

Before Fakhar Hayat, Member-V

MUHAMMAD RIAZ

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and 2 others

Appeal No.2538 of 2005, decided on 18th September, 2007.

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

---Ss. 3, 5, 6 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of major penalty of reduction to lower stage in pay scale and recovery of 50% of loss---Appeal---Major penalty of reduction to lower stage in pay scale and recovery of 50% of loss was imposed on appellant after charge-sheeting him and holding inquiry against him---Inquiry proceedings were conducted in a strange manner---No opportunity of cross-examination was afforded to the appellant and Inquiry Officer examined the record and prepared his roles and also prepared questionnaire on each and every allegation and then sought answers of the appellant on it---No separate statement of appellant was recorded nor he was asked to produce any defence, if he wanted to do so---Explanation in answers and questionnaire did not fulfil the requirement of law because in that event appellant was confined to answers of the questions which were put to him, whereas, if he was allowed to adduce his own evidence in defence, then he would have been at liberty to bring any other evidence also---Recording of statement in questionnaire form was disapproved---Impugned orders, in circumstances being not sustainable in the eyes of law, case required de novo inquiry---Impugned orders were set aside and departmental proceedings against appellant would be deemed to be still pending---Authority would appoint a new Inquiry Officer well versed in conducting inquiry.

Pervez Inayat Malik for Appellant.

Riaz Hussain, Superintendent, Departmental Representative.

Date of hearing: 7th September, 2007.

Service Tribunal Nwfp

PLCCS 2008 SERVICE TRIBUNAL NWFP 780 #

2008 P L C (C.S.) 780

[N.-W.F.P. Service Tribunal]

Before Dr. Abdur Rauf and Sultan Mahmood Khatak, Members

Mst. BASEERAT NAZ

Versus

SECRETARY EDUCATION (S&L) N.-W.F.P., Peshawar and 4 others

Appeal No.985 of 2007, decided on 17th November, 2007.

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

----Ss. 3, 5 & 9---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Appointment---Terms and conditions of---Appeal to Service Tribunal---Appellant, who was serving as S.E.T. BPS-16 in Education Department on regular basis since 23-5-1995, applied through proper channel in response to an advertisement for the post of Headmistress and after qualifying written test/interview, was appointed as Headmistress on the terms and conditions that she would be governed by North-West Frontier Province Civil Servants Act, 1973 as amended in 2005---In advertisement made by Public Service Commission it was explicitly stated that in case of regular government servants, their appointments on selection would be on regular basis on the terms and conditions, already available to them and would not be affected by the contract policy of the Provincial Government---Counsel for the appellant had contended that order was illegal, unlawful and passed in violation of rules and the appointment of appellant had .not been treated in accordance with law and her right secured and guaranteed under the law and Constitution had been violated---Service Tribunal had noted discrimination on the part of the Department and other departments as those had appointed some of their employees on regular basis and had allowed them the terms and conditions of service already available to them, whereas Civil Servants Rules were equally applicable to all civil servants---Appellant had made out a case for indulgence of the Service Tribunal---Tribunal accepting appeal, directed the Department that impugned notification be amended/varied to the extent to declare the appointment and service of appellant as regular and pensionable with all back benefits.

2007 PLC (C.S.) 833 ref.

Muhammad Asif Yousafzai for Appellant.

Usman Ghani, Addl. Government Pleader for Respondents.

Respondent No.4 served but failed to file written reply, hence proceeded against ex parte.

Service Tribunal Sindh

PLCCS 2008 SERVICE TRIBUNAL SINDH 318 #

2008 P L C (C.S.) 318

[Sindh Service Tribunal]

Before Justice (R) Abdul Ghani Shaikh, Chairman, Ashique Hussain Memon, Member-I and Nazar Muhammad Baloch, Member-II

NISAR AHMED

Versus

CAPITAL CITY POLICE OFFICER, KARACHI and another

Appeal No.207 of 2006, decided on 26th September, 2007.

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

----Ss. 5 & 9---Sindh Service Tribunals Act (XV of 1973), S.4---Appointment and promotion---Reversion---Appeal---Appellant, while serving as Junior Clerk, was appointed as A.S.-I. Police (B-9) and started performing his duties as such, but suddenly was reverted to his original post of Junior Clerk---Appellant, along with others was restored to his rank of A.S.-I. Police with the orders of Chief Minister and was confirmed as such---Once again appellant suddenly and without any legal proceedings, was reverted to the post of Junior Clerk---Appointment of appellant as A.S.-I. Police was purely a fresh appointment and not that of change of cadre and he was restored to the post of A.S.-I. Police with the approval of Chief Minister on recommendation of three members Committee---Provincial Police Officer being subordinate to the Chief Minister could not pass orders of reversion of appellant to the post of Junior Clerk---Order of reversion of appellant being coram non judice, could not be sustained---Authority had exercised suo motu powers, which under the law were not available to him---Order of reversion passed in absence of appellant had no legal value under the law---Appellant having already acquired a legal, valuable and vested rights in his favour, rule of locus poenitentiae, i.e., the power of receding till a decisive step was taken, was not available to the Authority---Impugned order of reversion being not sustainable, was set aside---Appellant was restored to his rank of officiating Sub-Inspector from the date of reversion with all back and consequential benefits.

Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Abdul Aziz v. Director, Health Services 1984 PLC (C.S.) 109 and eyed Afzal Hussain v. Government of Punjab and others 1985 PLC (C.S.) 133 rel.

Moula Bukhsh Khoso for Appellant.

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

Date of hearing: 26th September, 2007.

PLCCS 2008 SERVICE TRIBUNAL SINDH 450 #

2008 P L C (C.S.) 450

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Ashique Hussain Memon, Member-I and Qabool Ahmed Shaikh, Member-II

BASHIR AHMED NIZAMANI

Versus

GOVERNMENT OF SINDH S&GAD through Chief Secretary and 5 others

Appeal No.400 of 2005, decided on 18th July, 2007.

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

----S. 9---Sindh Service Tribunals Act (XV of 1973), S.4---Promotion---Appeal to Service Tribunal---Maintainability---Appellant had assailed the Notification issued by the Chief Secretary, whereby respondents were promoted, but the appellant was not so promoted---Appellant had prayed that meeting of Provincial Selection Board could. be re-convened to determine afresh the promotion cases including that of appellant---Validity---Provisions of S.9 of Sindh Civil Servants Act, 1973, had provided that a promotion in the case of a selection post would be made on the basis of selection on merit and in the case of a non-selection post on the basis of seniority-cum-fitness---Posts in question carrying B-19 & 20, being selection posts, the promotion on said posts would be made on the basis of selection on merits---Appellant due to low qualifications was not found fit for promotion to B-20 and was superseded---Contention of appellant that one of the respondents was not eligible to be considered for promotion to B-20 as he was facing investigation in NAB case, was repelled, because mere facing investigation in NAB case would in no way disentitle respondent from being considered for promotion to a higher rank; even otherwise according to the Department, investigation of NAB case against the respondent had already been concluded---Appeal being devoid of merits, was not maintainable.

1995 SCMR 881; 1996 SCMR 329; 1996 SCMR 850; 1998 SCMR 607; 2001 SCMR 1446; Habib-ur-Rehman v. Secretary, C&W, Government of Sindh and others 2003 PLC (C.S.) 56; Mian Abdul Malik v. Dr. Sabir and others 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb and others PLD 1994 SC 539; Zafarullah Baloch v. Government of Balochistan and others 2002 PLC (C.S.) 1002; Secretary, Education Department Sindh v. S. Riaz-ul-Hassan 1986 SCMR 64 and Sarwar Hussain Shah v. Azad Kashmir Government and others 1997 PLC (C.S.) 302 rel.

Ansari Abdul Lateef for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.-G. for official Respondents.

M. M. Aqil Awan for Respondent No.5.

Date of hearing: 8th March, 2007.

2008 P L C (C.S.) 561

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Ashique Hussain Memon, Member-I and Qabool Ahmed Shaikh, Member-II

FAQIR MUHAMMAD LEGHARI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and 2 others

Appeal No.107 of 2005, decided on 18th June, 2007.

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---Penalty of dismissal from service was imposed on appellant after charge-sheeting him and holding inquiry against him on charges of embezzlement, misappropriation, misuse of government money, tampering with office record et tetra---Inquiry against appellant was not conducted in accordance with settled principles of law as no opportunity for cross-examination of witnesses against appellant was provided to appellant---Nothing was on record to indicate, if the witnesses were examined in presence of appellant---Appellant's involvement in the withdrawal of G.P. Fund of two teachers was not proved. from the inquiry report---Mere fact that said two teachers in their statements before the Inquiry Officer had stated that appellant and his co-accused were involved in the fraud, misappropriation, misuse of government money and tampering with office record, in the absence of any positive proof, by no stretch of imagination could be used as a piece of evidence against appellant---No direct or circumstantial evidence was available against appellant regarding his involvement in withdrawal of G.P. Fund of the two teachers---Charge of misappropriation, in circumstances was not proved against appellant---Appellant having not been proved guilty of charges levelled against him, impugned orders were set aside and appellant was directed to be reinstated in service, accordingly.

Ghulam Sarwar Chandio for Appellant.

Mrs. Tabassum Ghazanfar for Respondents.

Date of hearing: 4th April, 2007.

PLCCS 2008 SERVICE TRIBUNAL SINDH 624 #

2008 P L C (C.S.) 624

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Ashique Hussain Memon, Member-I and Qabool Ahmed Shaikh, Member-II

RUKHSANA PERVEEN

Versus

GOVERNMENT OF SINDH through Secretary (Education) Education Department, Karachi and 3 others

Appeal No.139 of 2002, decided on 11th April, 2007.

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

----S. 9---Sindh Service Tribunals Act (XV of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Case of appellant was that she was eligible/entitled to promotion to the post of Junior Instructress in B-14 in the year, but her case was not considered and instead her junior was promoted---Case of authorities was that as the junior was much senior to appellant, therefore claim of seniority and ante-dated promotion of appellant was neither justified nor proper and reasonable---Validity---Authorities had suppressed the material fact from the court that Junior earlier had filed appeal before the Tribunal with regard to her seniority, which was dismissed by the Tribunal and in the light of judgment of the Tribunal the date of regular appointment of junior as Mistress in B-8 was 1-7-1992, whereas appellant was appointed as Head Mistress in B-11, 5 years prior to regular appointment of the junior in B-8---Junior by no means could be termed as senior to the appellant---Appellant being senior, was entitled to promotion to the post of Junior Instructress in B-14 from the date when the junior was promoted---Appeal was accepted to that extent.

Gohar Iqbal for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.-G. for Respondents Nos.1 to 3.

Moula Buksh Khoso for Respondent No.4.

Date of hearing: 11th March, 2007.

2008 P L C (C.S.) 783

[Sindh Service Tribunal]

Before Justice (R) Abdul Ghani Shaikh, Chairman and Nur Ahmed Shah, Member

ATIQULLAH KHAN

Versus

CHIEF SECRETARY, SINDH and another

Appeal No.250 of 2003, decided on 12th April, 2004.

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

--- S. 8---Sindh Service Tribunals Act (XV of 1973), S.4---Seniority---Entitlement---Appeal to Service Tribunal---Maintainability--Department vide notification, issued provisional seniority list of employees, but name of appellant was missing in the said list---Appellant being aggrieved, filed objection to that list and he was advised to prefer appeal against said provisional seniority list, under S.4 of Sindh Service Tribunals Act, 1973, which he preferred accordingly--Validity---Disputed seniority list was provisional which was not a "final order"---Right of appeal before Service Tribunal had been conferred by subsection (1) of S.4 of Service Tribunals Act, 1973 only against a "final order", whether original or appellate---Final order had the distinction of determining the rights of the parties-Order appealed against being not final, appeal filed by appellant was premature as final seniority list was yet to be issued---Department could treat the appeal filed by the appellant as objections to the provisional seniority lists and finalize the seniority lists in accordance with law.

S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and Shafiullah Qureshi and others v. Secretary, Establishment Division, Islamabad and others 1994 PLC (C.S.) 1400 ref.

Muhammad Ali Hakro for Appellant.

Mrs. Ghazanfar Tabassum, A.A.-G. for Official Respondents.

PLCCS 2008 SERVICE TRIBUNAL SINDH 1041 #

2008 P L C (C.S.) 1041

[Sindh Service Tribunal]

Before Justice (Retd.) Ghulam Nabi Soomro, Chairman, Ashique Hussain Memon, Member-I and Nazar Muhammad Baloch, Member-II

ABDUL RASHID RAJPUT

Versus

GOVERNMENT OF SINDH through Chief Secretary Government of Sindh, Karachi and 4 others

Appeal No.152 of 2006, heard on 1st February, 2008.

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

----Ss. 8 & 9---Sindh Service Tribunals Act (XV of 1973), S.4---Seniority and promotion---Appeal to Service Tribunal---Seniority list showed that appellant was placed at serial No.15, whereas respondents were placed below him at serial Nos.19 & 20 respectively---In subsequent Departmental Promotion Committee's meeting, appellant, despite being entitled for consideration for promotion being senior to respondents, was placed out of consideration for the reasons of non-communication of Annual Confidential Report for the relevant year, which resulted promotion of his juniors to grade 16 and appellant was not so promoted despite being senior to respondents ---Validity---If Annual Confidential Reports of appellant were not communicated to appellant and were not before the Departmental Promotion Committee at the relevant time, appellant could not be blamed or held at fault---Appellant, however submitted that he would be satisfied if the matter was remanded to the Departmental Authority for considering his case afresh in accordance with law---Counsel for the Authorities, had conceded to the prayer of appellant---Prayer of appellant was accepted and case was remanded, directing Departmental Authority to consider case of appellant in accordance with law.

Sayed Ayaz Hussain v. Chief Secretary Government of Sindh and 3 others 2005 PLC (C.S.) 295 and Muhammad Farooq Chauhan v. The Province Punjab PLD 1987 SC 271 rel.

Sanaullah Noor Ghouri for Appellant.

Mrs. Tabasum Ghazanfar, A.A.-G. along with Mrs. Rubina Asif, Deputy Secretary, Higher Education for Official Respondents.

Date of hearing: 1st February, 2008.

PLCCS 2008 SERVICE TRIBUNAL SINDH 1148 #

2008 P L C (C.S.) 1148

[Sindh Service Tribunal]

2008 P L C (C.S.) 171

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

MUHAMMAD YAR, FOODGRAIN INSPECTOR

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and another

Civil Petitions Nos.3223-L and 3553-L of 2001, decided on 24th October, 2005.

(On appeal from the judgment, dated 4-9-2001 passed by Public Service Tribunal, Lahore in Appeal No.2583 of 2000).

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

----Rr. 3(c) & 4(1)(b)(iv)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service and recovery of loss---Corruption, charge of---Service Tribunal in appeal maintained penalty of recovery of loss, but set aside dismissal of civil servant from service---Plea of civil servant was that penalty of recovery of loss was neither subject-matter of charge-sheet nor compatible to charge; that neither there was evidence of corruption nor was any finding of Authority to such effect and that loss occasioned to wheat was less than 1% being negligible---Supreme Court granted leave to appeal to consider such contentions.

Mehmood Khan, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioner (in C.P. No.3223-L of 2001).

Aziz Ahmad Chughtai, Advocate Supreme Court for Petitioners (in C.P. 3553-L of 2001).

Nemo for Respondents (in C.P. No.3223-L of 2001).

Sh. Salah-ud-Din, Advocate-on-Record for Respondent (in C.P. No.3553-L of 2001).

PLCCS 2008 SUPREME COURT 178 #

2008 P L C (C.S.) 178

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

SECRETARY TO GOVERNMENT OF PUNJAB and another

Versus

MARDAN ALI KHAN

Civil Petition No.539-L of 2002, decided on 25th October, 2005.

(On appeal from the judgment, dated 16-11-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.1490 of 1998).

Constitution of Pakistan (1973)---

----Art. 212(3)---Wilful absence from duty---Respondent, who was subjected to disciplinary proceedings for wilful absence from duty, was awarded penalties of loss of seniority and stoppage of annual increments for three years---Service Tribunal, on appeal, vide impugned judgment set aside orders passed by the Departmental Authorities---Defence of respondent was that proceedings against him were mala fide and on coming to know that leave applied for had not been sanctioned, he had been going to duty, but he was not allowed to mark his presence---Contention of department was that controversy required resolution of a disputed question of fact which could not have been determined by the Tribunal in the absence of any evidence---Wilful absence of respondent from duty, warranted a proper detailed inquiry, but the Tribunal accepted the ipsi dixit of the respondent which was in the nature of a self-serving statement---Respondent had stated that he had no objection, if the matter was properly inquired through a regular inquiry---Petition was converted into appeal and was allowed---Impugned judgment of the Tribunal and orders .passed by the Departmental Authorities, were set aside and case was remanded to the competent departmental authority for proceedings afresh against the respondent in accordance with law by holding a regular inquiry.

M.A. Aziz, Advocate Supreme Court for Petitioners.

Respondent in Person.

PLCCS 2008 SUPREME COURT 183 #

2008 P L C (C.S.) 183

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. and Mian Shakirullah Jan, J

Haji ALLAH NOOR MALIK

Versus

CHIEF SECRETARY, PUNJAB and others

Civil Petition No.2690-L of 2002, decided on 18th July, 2005.

(On appeal from the judgment, dated 2-7-2002 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.205 and 2782 of 2001).

Constitution of Pakistan (1973)---

----Art. 212(3)---Misconduct---Inquiry Officer on having taken into consideration the evidence produced by Department, had concluded that petitioner was responsible for removal of the full loaded truck of scrap from the store---Such findings had been accepted by the competent Departmental Authority and the Service Tribunal had also not interfered in the findings of fact so recorded by the Department---No case, having been made out for interference in exercise of jurisdiction under Art.212(3) of Constitution, petition was dismissed.

Dr. Mohy-ud-Din Qazi, Senior Advocate Supreme Court and Sheikh Masood Akhtar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 188 #

2008 P L C (C.S.) 188

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

TAHIR LATEEF SHEIKH

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division and another

Civil Petition No.1982-L of 2005, decided on 10th October, 2005.

Constitution of Pakistan (1973)---

----Art. 212(3)---National Accountability Ordinance (XVIII of 1999), Ss.15 & 25(b)---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Dismissal from service---Petitioner having been proceeded against by the National Accountability Bureau for acquiring assets through corruption or corrupt practices culminating into defraying of Rs.31.05 million to the exchequer; upon his entering the plea bargain within the contemplation of S.25(b) read with S.15 of National Accountability Ordinance, 1999, was subsequently subjected to the rigours of disciplinary proceedings within the contemplation of Removal from Service (Special Powers) Ordinance, 2000, resulting into imposition of major penalty of dismissal form service---Same, on appeal, was maintained by Service Tribunal by impugned judgment---Validity---Petitioner had sought leave to appeal pressing into service violation of Arts.13 & 25 of the Constitution, viz. double jeopardy and discrimination---Former plea had been advanced in oblivion of the fact that criminal proceedings were independent of the disciplinary proceedings, while on the latter count viz. two of his contemporaries had been awarded the penalty of compulsory retirement---Supreme Court declined to interfere in its extraordinary jurisdiction---Petition for leave to appeal was dismissed.

Noor Muhammad Khan Chandia, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 192 #

2008 P L C (C.S.) 192

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

Dr. SHAMIM WAHEED

Versus

PROVINCE OF PUNJAB through Secretary, Health Department, Lahore and another

Civil Petition No.3763-L of 2001, decided on 18th October, 2005.

(On appeal from the order, dated 9th October, 2001, passed by Punjab Service Tribunal, Lahore in Appeal No.2377 of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Correction of date of birth---Application for---Application having been rejected, petitioner filed constitutional petition and an injunction was granted in her favour, but same was subsequently vacated---Petitioner had approached High Court in 60th year of her age to alter her date of birth---Tendency of the civil servants to approach the Courts for altering their dates of birth towards the end of their career was deprecated---Neither any substantial question of law of public importance was involved nor discretionary jurisdiction could be exercised in favour of petitioner who through process of the court wanted to take an undue advantage.

Jehangir A. Jhoja, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 195 #

2008 P L C (C.S.) 195

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

PROVINCE OF PUNJAB through Chief Secretary, Punjab, Lahore and another

Versus

MUHAMMAD AMIN SAQI

Civil Petitions Nos.2993 and 3000-L of 2001, decided on 25th October, 2005.

(On appeal from judgment, dated 9-7-2001 of the Punjab Service Tribunal, Lahore, in Appeal No.859 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Removal from service---Conversion into compulsory retirement---Respondent while posted as Deputy District Education Officer made recruitment of six Security Guards---Respondent was proceeded against for violation of the instructions of the Government laying down the recruitment policy---Service Tribunal, on appeal converted penalty of removal from service into compulsory retirement---Authorities had challenged said order of the Tribunal---Respondent had rendered 36 years of Government service and was already nearing the age of superannuation---No charge of corruption or other gross misconduct against respondent was on record so as to entail the extreme penalty of removal from service---Service Tribunal, in the peculiar facts and circumstances of the case, was quite justified in converting the penalty of removal from service into compulsory retirement from service---Impugned judgment was just and fair to which no exception could be taken.

M.A. Aziz, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record for Petitioner (in C.P. No.2293-L of 2001).

M.A. Qureshi, Advocate on-Record for Respondent (in C.P. No.2293-L of 2001) and for Petitioner (in C.P. No.3000-L of 2001).

Date of hearing: 25th October, 2005.

2008 P L C (C.S.) 229

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

RAB NAWAZ HINGORO

Versus

GOVERNMENT OF SINDH and others

C.P.L.A. No.502-K of 2007, heard on 7th August, 2007.

Sindh Removal from Service (Special Powers) Ordinance (IX of 2000)---

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Misconduct---Issuance of show-cause notice and conduct of Inquiry Officer against the petitioner---Departmental Authorities as well as the Tribunal had concurrently found that appointments made by the petitioner were ghost and did not exist at the site, but he had been disbursing their salaries illegally and unauthorizedly---Nothing was on record to rebut said concurrent findings which had been concluded on definite and concrete material on record---Such findings could not be disturbed on flimsy and technical grounds---Petitioner had contended that he had been exonerated in the criminal case registered against him in respect of the illegal appointments in question---Contention was repelled as prosecution on criminal charge and departmental proceedings were entirely independent of each other; as one related to the enforcement of criminal liability, whereas the other was concerned with the service discipline---Acquittal of petitioner on criminal charge could have no bearing on the validity of the disciplinary proceedings---Both the proceedings could proceed side by side and no legal bar existed to the continuation of departmental proceedings after the conviction or acquittal from criminal case---In absence of any ground to interfere with the exercise of jurisdiction by the Service Tribunal, petition for leave to appeal was dismissed.

Petitioner in person.

Ghulam Qadir Jatoi, Advocate-on-Record for Respondents.

Date of hearing: 7th August, 2007.

PLCCS 2008 SUPREME COURT 240 #

2008 P L C (C.S.) 240

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

CHAIRMAN, PAKISTAN RAILWAYS and others

Versus

ARIF HUSSAIN and others

Civil Petitions Nos.720 to 730 of 2006, decided on 22nd August, 2006.

(On appeal from the judgment of Federal Service Tribunal, dated 3-6-2006 passed in Appeals Nos.476(R)(C.S.) of 2003 to 487(R)(C.S.) of 2003).

Constitution of Pakistan (1973)---

----Art. 212(3)---Regularization of services---Posts against which respondents were appointed and had been continuously performing their duties as temporary labour on yearly basis, were permanent---Respondents having rendered continuous service for considerable period, were entitled to claim regularization of their services---Service Tribunal, in circumstances had rightly regularized services of respondents---Impugned order being unexceptionable, would admit no interference.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 rel.

Faiz-ur-Rehman, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 246 #

2008 P L C (C.S.) 246

[Supreme Court of Pakistan]

Present: Javed Iqbal, Actg. C.J. and Sardar Muhammad Raza Khan, J

EXECUTIVE ENGINEER, QADIRABAD BARRAGE DIVISION, QADIRABAD and others

Versus

EJAZ AHMAD

Civil Appeal No.2206 of 2006, decided on 30th May, 2007.

(On appeal from the judgment, dated 26-7-2006 in Appeal No.480 of 2005 passed by Punjab Service Tribunal, Lahore).

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

----S. 3---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider; whether Service Tribunal misdirected itself in reinstating civil servant in service after it had found that he did not carry out repair work and had been absent from duty and was rude to his superiors.

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

----S. 3---Reinstatement in service---Principles of natural justice--Applicability---Show-cause notice, non-issuance of---Effect---Disciplinary proceedings were initiated under Punjab Removal from Service (Special Powers) Ordinance, 2000, but no show-cause notice was issued to civil servant and he was dismissed from service---Service Tribunal allowed the appeal of civil servant and reinstated him in service---Validity---By not giving show-cause notice to civil servant as envisaged under S.3(2) of Removal from Service (Special Powers) Ordinance, 2000, fair opportunity of hearing was not afforded to him to defend his case properly---Such was a flagrant violation of the provisions of Removal from Service (Special Powers) Ordinance, 2000, and principles of natural justice and was sufficient to vitiate the entire proceedings---When such grave illegality was committed by department, Service Tribunal had rightly found that authorities might initiate fresh action against civil servant---Prescribed procedure which was mandatory in nature must be followed and it could not be flouted on the pretext that alleged charges against government employee were serious in nature---Supreme Court declined to interfere with judgment passed by Service Tribunal---Leave to appeal was refused.

Ms. Afshan Ghazanfar, A.A.-G: for Appellants.

G.N. Gauhar, Advocate Supreme Court/Advocate-on-Record for Respondent.

Date of hearing: 30th May, 2007.

PLCCS 2008 SUPREME COURT 248 #

2008 P L C (C.S.) 248

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

Dr. MUHAMMAD NAEEM ASLAM

Versus

PROVINCE OF PUNJAB through Chief Secretary, Government of Punjab, Lahore and others

C.P. No.867-L of 2007, decided on 4th September, 2007.

(Against the judgment of the Lahore High Court, Lahore, dated 20-2-2007 passed in I.C.A. No.445 of 2001).

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

----S. 4---Constitution of Pakistan (1973), Art.185(3)---Appointment---Constitutional petition filed by petitioner against selection process/initial appointment of respondents was dismissed and intra-court appeal filed against said judgment was also dismissed---More than 10 years had gone by since respondents were appointed and in the meanwhile petitioner had also been promoted in the same institution---Issuance of initial appointment being no longer a live issue, Supreme Court declined to carry out an academic exercise and interfere with the valuable rights which had accrued to the respondents.

Muhammad Iqbal Khan, Advocate, Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 250 #

2008 P L C (C.S.) 250

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Mian Shakirullah Jan and M. Javed Buttar, JJ

SHAUKAT JAVED

Versus

DIRECTOR-GENERAL DIRECTORATE OF NATIONAL SAVINGS and others

Civil Petition No.2472 of 2002, decided on 23rd August, 2004.

(On appeal from judgment, dated 4-11-2002 passed by the Federal Service Tribunal, Islamabad in Appeal No.62(R)/CE of 2002).

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

----R. 4(1)(b)(iv)---Constitution of Pakistan(1973), Art.212(3)---Dismissal from service---Petitioner was dismissed from service after charge-sheeting him and holding inquiry against him on charges of misconduct and inefficiency---Criminal cases were also registered against the petitioner in which he was prosecuted and was convicted, but on filing appeal, he was acquitted by the High Court---Effect---Acquittal in a criminal case would not bar the departmental action against a delinquent official as. both the proceedings were distinct and independent of each other---Petition not involving any substantial question of law of public importance, was dismissed and leave to .appeal was refused.

Attaullah Sheikh v. WAPDA and others 2001 PLC (C.S.) 316; Dr. Muhammad Islam, Instructor, Animal Husbandry in-Service Training Institute, Daudzai, Peshawar District v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 PLC (C.S.) 1430 and Gordhandas v. Water and Power Development Authority (WAPDA) and another 1989 SCMR 14 rel.

Inspector-General of Police, Punjab, Lahore and others v. Muhammad Tariq 2001 SCMR 789; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195 and The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 ref.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd August, 2004.

PLCCS 2008 SUPREME COURT 255 #

2008 P L C (C.S.) 255

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

MUMTAZ ALI NARAI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and others

Civil Petitions Nos.326-K, 382-K, 383-K and 384-K of 2006, decided on 7th March, 2007.

(On appeal from the judgment, dated 20-4-2006 in Appeals Nos.14 of 2002, 204 of 2Q00, 13 of 2002 and 17 of 2002, passed by the Sindh Service Tribunal, Karachi).

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

----S. 9---Constitution of Pakistan (1973), Art.212(3)---Promotion---Quota system---Promotees and direct recruitment, principle of---Applicability---Grievance of civil servants was that they were initially appointed on acting charge basis and subsequently inducted, therefore, their promotion could not be effected---Validity---Every time when vacancy had become available, the post was to be filled in the proportion as per ratio for the promotees and direct recruitment etc.---Civil servants having not been appointed according to the ratio/quota of their category, therefore, they could not have been adjusted/appointed against the category to which they did not belong---Mere fact that they were initially appointed on acting charge basis and were subsequently, inducted on regular basis would not, by itself, change the rules and the law laid down by Supreme Court---Provincial Government was quite competent in law to issue notification in case ratio between two categories was not in accordance with rules and law laid down by Supreme Court---Notification of promotion of respondents issued by Provincial Government was legal, proper and in accordance with law, consequently no interference was called for---Judgment of Service Tribunal was based on cogent reasons and law, laid down by Supreme Court, which needed no interference of Supreme Court---Leave to appeal was refused.

Federation of Pakistan v. Azam Ali and others 1985 SCMR 386; Muhammad Nawaz Khan v. Muhammad Ijaz Rashid PLD 1993 SC 10 and Nasim-ul-Haque Malik v. Chief Secretary, Sindh and others 1991 PLC (C.S.) (sic) rel.

(b) Civil service---

----Seniority---Vested right---Seniority list---Scope---Doctrine of locus poenitentiae---Applicability---Seniority is not a vested right of civil servant---Placement of any civil servant in seniority list over and above other civil servants does not confer any vested right on him to invoke doctrine of locus poententiae.

Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 rel.

Ansari Abdul Lateef, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in C.P.L.A. No.326-K of 2006).

Petitioner in person (in C.P.L.A. No.382-K of 2006).

Ibrar Hassan, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Petitioner (in C.P.L.As. Nos.383-K and 384-K. of 2006).

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for Respondents (in C.P.L.As. Nos.326-K, 382-K, 383-K and 384-K of 2006).

Khalid Javed, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.4 (in C.P.L.As. Nos.326-K, 382-K, 383-K and 384-K of 2006).

Respondents Nos:.3, 6, 8, 12, 13, 15, 18, 20-29, 32, 33, 35-38, 42, 47, 49-51, 53-55, 57-59, 61, 63, 64, 66 and 67 in person (in C.P.L.As. Nos.326-K, 382-K, 383-K and 384-K of 2006).

Date of hearing: 7th March, 2007.

PLCCS 2008 SUPREME COURT 260 #

2008 P L C (C.S.) 260

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

WATER AND POWER DEVELOPMENT AUTHORITY

Versus

ALLAH DAD MASHORI and others

C.P.L.As. Nos.1051-K to 1058-K and 1072-K of 2002, decided on 22nd October, 2003.

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

----R. 4(1)(b)(iv)---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Reinstatement---Implementation of order of reinstatement---Services of the respondents were terminated by Authority, but said order was struck down by the Service Tribunal and respondents were ordered to be reinstated in service, order of reinstatement however, was not implemented---Authority was required to implement the judgment of the Service Tribunal in its true spirit as no irreparable loss was likely to be caused to the Authority by reinstatement of respondents---Direction was given by the Supreme Court to comply with judgment of the Service Tribunal within specified period.

Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in all petitions).

Abdul Ghafoor Mangi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Respondents (in C.Ps. Nos.1051-K, 1053-K and 1055-K of 2002).

Manzoor Ali Khan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Respondents (in C.Ps. Nos.1056-K and 1057-K of 2002).

Respondents in person (in C.Ps. Nos.1052-K and 1054-K of 2002).

Nemo for Respondents (in C.Ps. Nos.1058-K and 1072 of 2002).

PLCCS 2008 SUPREME COURT 264 #

2008 P L C (C.S.) 264

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, J

Syed A$DUS SAMAD PIRZADA

Versus

GOVERNMENT OF PUNJAB through Secretary Finance, Finance Department, Lahore and another

Civil Appeal No.1399 of 2006, decided on 26th June, 2007.

(On appeal from the judgment, dated 28-1-2006 passed by Punjab Service Tribunal, Lahore in Appeal No.316 of 2005).

Pakistan Broadcasting Corporation Act (XXXII of 1973)---

----S. 12---Employee of Pakistan Broadcasting Corporation drawing basic pay at Rs.2,800 in BPS-18 as Assistant News Editor---Such employee left Corporation after joining Education Department as Assistant Professor (BPS-18) through Public Service Commission and proper channel---Fixation of pay of such employee in Education Department at Rs.2,100 as initial stage of BPS-18---Validity---Such employee would be entitled to protection of his last pay drawn in Corporation in BPS-18 from the date of joining Education Department---Principles.

Pakistan Broadcasting Corporation's case 1995 SCMR 1593; Amjad Hussain's case 1998 SCMR 1442 and Nafeez Ahmad's case 2000 SCMR 1864 rel.

Farrukh Javed Panni, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.

Mrs. Afshan Ghazanfar, Assistant Advocate-General Punjab, for Respondents.

Date of hearing: 26th June, 2007.

PLCCS 2008 SUPREME COURT 270 #

2008 P L C (C.S.) 270

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others

Versus

KHALIL AHMAD and others

Civil Appeal No.577 of 2003, decided on 23rd January, 2007.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 9-3-2000 passed in Civil Revision No.37-D of 1998).

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

----Ss. 29 & 31---Constitution of Pakistan (1973), Art:185(3)---Leave to appeal was granted by Supreme Court to consider; whether readies of employee was maintainable in terms of bar envisaged by S.31 of Punjab Boards of Intermediate and Secondary Education Act, 1976.

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 29 & 31---Specific Relief. Act (I of 1877), S.42---Disciplinary proceedings, assailing of---Bar of jurisdiction---Scope---Plaintiff being employee of Board assailed the disciplinary proceedings and punishment awarded to him before Civil Court---Trial Court decreed the suit in favour of employee and entire disciplinary proceedings were set aside-Appeal and revision filed by Board, before Lower Appellate Curt and High Court respectively were dismissed being time-barred---Plea raised by Board was that jurisdiction of Civil Courts generally to question any order passed under Punjab Boards of Intermediate and Secondary Education Act, 1976, was ousted, therefore, suit filed by employee could not have been entertained----Validity---Provisions of S. 31 of Punjab Board of Intermediate and Secondary Education Act, 19761 did not oust the jurisdiction of Civil Court generally but only barred suits against the officials of Board acting in good faith-Provision of S.29 of Punjab. Boards of Intermediate and Secondary Education Act, 1976, also did not completely oust the jurisdiction of Civil Court preventing the Courts to examine as to whether action taken was within the framework of law---Factual foundation, therefore, was required to be laid in order to examine whether ouster clause was attracted---Such foundation was only possible if objection to the jurisdiction of Civil Court was raised in written statement and issue framed, thereby providing opportunity to the employee to furnish relevant evidence---Board having not done so, such objection could not be raised for the first time before Supreme Court---Supreme Court declined to interfere with the judgment passed by High Court---Appeal was dismissed.

Masud Ashraf Sh., Advocate Supreme Court with Mehmood A. Qureshi, Advocate-on-Record for Appellants.

M. Ozair Chughtai, Advocate Supreme Court for Respondents.

Date of hearing: 23rd January, 2007.

PLCCS 2008 SUPREME COURT 278 #

2008 P L C (C.S.) 278

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUHAMMAD ASHFAQ and others

Versus

GOVERNMENT OF PAKISTAN through Secretary, M/o Petroleum and Natural Resources, Islamabad and another

Civil Petitions Nos.1458, 1459, 1460 and 1585 of 2005, decided on 27th February, 2007.

(On appeal from the judgment, dated 9-2-2005 in Writ Petitions Nos.2532, 6530, 6891 and 6892 of 2003 passed by the Lahore High Court, Lahore).

Constitution of Pakistan (1973)---

----Art. 185(3)---Appellate jurisdiction of Supreme Court---New plea---Effect---Appointment of employee---Two years' training by such employees---Concealing of facts---Petitioners were contract employees of respondent-Company and on its expiry, their contract was not extended---Petitioners in earlier round of litigation, had prayed that they be absorbed/appointed but their such prayer was declined by High Court as well as by Supreme Court---Subsequently, petitioners again filed constitutional petitions on the ground that they were not afforded opportunity to compete for induction nor the posts were advertised for recruitment, which petitions were also dismissed by High Court---Plea raised by petitioners was that after having undergone training for two years they had become regular in service and were entitled to be absorbed---Validity---Petitioners could not be permitted to plead different case than what they pleaded before High Court---Case of petitioners was different in constitutional petitions than what had been canvassed before Supreme Court---Petitioner having pursued their remedy before High Court and Supreme Court for grievance of their appointment on expiry of their training period could not be permitted under law to come again with the same prayer before Supreme Court on some other pretext by concealing and suppressing earlier litigation having gone between the parties---Petitioners had conceded to undergo training for two years against fixed stipend with no guarantee or undertaking from respondent-Company for their absorption or appointment---Petitioners could not agitate the plea that they be absorbed and appointed considering also the fact that earlier also they were declined such relief---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Shamsul Arfin and others v. Government of Pakistan and others 1999 MLD 3446; Muhammad Azam Suhail and others v. Government of Pakistan and others 1998 SCMR 1549 and Managing Director Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724 ref.

Syed Iftikhar Hussain Gilani, Advocate Supreme Court for Petitioners.

Salim Baig, Advocate Supreme Court for Respondents.

Date of hearing: 27th February, 2007.

PLCCS 2008 SUPREME COURT 288 #

2008 P L C (C.S.) 288

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

CANTONMENT EXECUTIVE OFFICER

Versus

Syed MUHAMMAD AHSAN and another

Civil Petition No.440-K of 2006, decided on 2nd October, 2006.

(On appeal from judgment, dated 20-6-2006 passed by Federal Service Tribunal, Islamabad in Appeal No.813(K) of 1999).

Civil Servants Act (LXXI of 1973)---

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Appointment and discharge of employee---Appointment of respondent as sanitary worker in BS-1, though was temporary, but was regularized against the post of peon---Respondent, after having put in about 15 years of service, was discharged and in discharging order he was mentioned as a temporary and not a confirmed servant---Said order was absolutely in blatant contradiction of the office order---Respondent, in circumstances could not have been discharged from service without following the prescribed procedure---At the time when respondent attained the age of superannuation, he was a confirmed permanent employee, he ought to have been retired providing him pensionary/retirement benefits for 15 years service rendered by him.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 293 #

2008 P L C (C.S.) 293

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

DIRECTOR-GENERAL, CENTRAL DIRECTORATE OF NATIONAL SAVINGS ISLAMABAD and others

Versus

Syed MUZAMMIL HUSSAIN and another

Civil Petitions Nos.711-K to 713-K of 2004, decided on 20th July, 2005.

(On appeal from the order, dated 3-8-2004 in Appeals Nos.294(K)CS of 2002 to 296(K)CS of 2002 passed by the Federal. Service Tribunal, Islamabad.

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

----Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Conversion of penalty into minor penalty of stoppage of three increments---Leave to appeal was granted by Supreme Court to consider as to whether modification and alteration in punishment awarded under Removal from Service (Special Powers) Ordinance, 2000, could not have been made by the Service Tribunal, which modification; and alteration in the punishment was beyond the jurisdiction of the Tribunal; when there was sufficient material to prove the charge against respondents for the alleged acts of omissions and commissions; and whether they could not be given benefit for their acts of omissions and commissions, considering that respondents had admitted their acts of omissions and commissions in respect of the charges levelled against them.

Faisal Arab, Standing Counsel and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 300 #

2008 P L C (C.S.) 300

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

ASHFAQ AHMAD

Versus

E.D.O. (EDUCATION)

Civil Appeal No.569 of 2006, decided on 13th September, 2006.

(On appeal from the judgment, dated 27-12-2005 passed by the Punjab Service Tribunal in Appeal No.1379 of 2005).

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

----S. 3---Constitution of Pakistan (1973), Art.212---Appeal to Supreme Court---Penalty, enhancement of---Penalty of stoppage of two increments, imposed on appellant was enhanced by Appellate Authority to that of termination/removal from service, without any notice of hearing to him---Service Tribunal maintained said enhancement---Judgment of the Service Tribunal as well as order of Appellate Authority were set aside by Supreme Court and case was sent back to the Appellate Authority, where appeal would be deemed to be pending for decision in accordance with law after giving notice to the appellant with an opportunity of hearing him within specified period.

Zahid Hussain Khan, Advocate Supreme Court for Appellant.

Raja Saeed Akram, A.A.-G., Punjab for Respondent.

Date of hearing: 13th September, 2006.

PLCCS 2008 SUPREME COURT 303 #

2007 P L C (C.S.) 303

[Supreme Court of Pakistan]

Present: Falak Sher, Tassaduq Hussain Jillani and Ch. Ijaz Ahmed, JJ

MUHAMMAD YASIN

Versus

SECRETARY, GOVERNMENT OF PUNJAB and others

C.P. No.321-L of 2005, decided on 24th August, 2007.

(On appeal from the judgment, dated 17-2-2005 passed by the Punjab Service Tribunal, Lahore in Appeal No.1924 of 2004).

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

----S. 8---Constitution of Pakistan (1973), Arts.4 & 5(2)---Promotion---Superseding---Principle of equity, justice and fairplay---Applicability---Act of public functionaries---Protection of law---Obedience of Constitution---Civil servant was awarded major penalty of reduction in time scale by one stage, against which he had filed appeal---Despite pendency of appeal before Service Tribunal, civil servant was superseded---Appeal of civil servant was partly allowed by Service Tribunal and major penalty was reduced to minor penalty of stoppage of one increment---Plea raised by petitioner was that he was entitled to be promoted from the date when major penalty was imposed upon him---Validity---Filing of appeal was in the knowledge of concerned authorities at the time of supersession of civil servant when his junior was promoted---Such fact had brought the case of civil servant in the area that civil servant was penalized by the act of public functionaries---Nobody could be penalized by inaction of public functionaries---Lis with regard to major penalty being pending at the relevant time for adjudication before Service Tribunal, therefore, it was in the interest of justice and fairplay that authorities must have deferred the case of civil servant to await result of his appeal instead of superseding him---Such action of authorities was not in consonance with the principle of equity, justice and (airplay---Public functionaries were duty bound to act within the frame-work of Constitution and it was command of Constitution by virtue of its Art.5(2) read with Art.4 that everybody, whosoever, must act in obedience of the Constitution to perform/discharge his duties in accordance with law---Supreme Court directed the authorities to consider the case of civil -servant for pro forma promotion from the date when major penalty was awarded---Petition was converted into appeal and allowed.

Messrs Airport Support Services' case 1998 SCMR 2268; Muhammad Tariq Pirzada and others' case 1999 SCMR 2744; Aslam Warraich's case 1991 SCMR 2330; Zahid Akhtar's case PLD 1995 SC 530 and Ch. Zahur Elahi's case PLD 1975 SC 383 rel.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner.

Sh. Khalid Habib, Advocate Supreme Court for the State.

Ch. Aamir Rehman, Additional Advocate-General on Court's call.

Date of hearing: 24th August, 2007.

PLCCS 2008 SUPREME COURT 311 #

2008 P L C (C.S.) 311

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD SHARIF SINDHU

Versus

HABIB BANK LTD. through President and others

Civil Petition No.1506-L of 2001, decided on 24th October, 2005.

(On appeal from judgment, dated 20-3-2001 of the Federal Service Tribunal, Lahore in Appeal No.1615-L of 1998).

Constitution of Pakistan (1973)---

----Art. 212(3)---Retirement under the Voluntary Golden Handshake Scheme---Petitioner, who exercised his option for retirement under the scheme, subsequently made an application for withdrawal of said option, but competent authority accepted the option already exercised by the petitioner---Departmental appeal filed 'by petitioner having remained undecided, petitioner made a complaint before Federal Ombudsman, which was also dismissed---Petitioner then filed appeal before the Service Tribunal, which was dismissed by the impugned order as barred by time---Validity---Petitioner was required to file his appeal before the Service Tribunal within a period of 120 days after he had filed his departmental appeal, which remained undecided---Appeal filed, by petitioner before the Tribunal beyond prescribed period of 120 days, was rightly dismissed by the Tribunal being barred by time.

Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582 and Shafaat Ahmad and others v. Government of Punjab and 2 others 1986 SCMR 30 ref.

Malik Amjad Pervaiz, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Mian Abdur Rashid, Advocate Supreme Court for Respondent No.1.

Date of hearing: 24th October, 2005.

PLCCS 2008 SUPREME COURT 315 #

2008 P L C (C.S.) 315

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmed, JJ

Dr. MUHAMMAD SHARIF

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and others

Civil Petition No.643-L of 2006, decided on 2nd October, 2006.

(On appeal from the judgment/order, dated 2-3-2006 passed by Punjab Service Tribunal, Lahore in Appeal No.2642 of 2005).

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

----S. 3---Constitution of Pakistan (1973), Art. 212(3)---Misconduct---Alleged misconduct was committed by the petitioner in the month of January, 1996, but it was after a period of nine years that competent Authority woke up to commence proceedings against petitioner on the said charge---Proceedings culminated in imposition of impugned punishment in the month of August, 2005 which punishment was to last only for one year---Impugned punishment though not intended to cause any harm beyond one year, had caused a permanent loss in pensionary benefits and that also for no fault of the petitioner---Petition was converted into an appeal and was partly allowed---Impugned punishment awarded to petitioner was set aside and instead a punishment of "censure" was imposed on him.

Pervez Inayat Malik, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

M. Akbar Tarar, Additional Advocate-General, Punjab for Respondents (on Court call).

PLCCS 2008 SUPREME COURT 317 #

2008 P L C (C.S.) 317

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

GHULAM MUSTAFA

Versus

SENIOR MEMBER, BOARD OF REVENUE, SINDH and another

Civil Petition No.198-K of 2005, decided on 31st August, 2005.

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

----R. 4(1)(b)(iv)---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Appeal against-Appellant serving as Junior Clerk was dismissed from service after serving upon him show-cause notice and holding inquiry against him on allegations of forgery and embezzlement---Embezzlement of huge amount came 'to light as a result of audit of accounts in the office---Petitioner in his reply to show-cause notice, did not deny act of forgery and embezzlement and in the face of admission by the petitioner accepting his liability for commission of act of embezzlement, hardly there was any need to hold a regular inquiry against him in view of settled facts that facts admitted need not be proved---Rules of natural justice were fully complied with and observed before taking action against petitioner and imposing penalty upon him---No question of law of public importance being spelt out, petition was dismissed.

Akhlaq Ahmad Siddiqui, Advocate on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2008 SUPREME COURT 322 #

2008 P L C (C.S.) 322

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ENGINEER-IN-CHIEF, G.H.Q. and another

Versus

ABDUL KHALIQ SIDDIQUI

C.P.L.A. No.271-K of 2006, decided on 5th July, 2006.

(On appeal from the judgment of Federal Service Tribunal, Karachi, dated 22-12-2005 passed in Appeal No.405(K)(C.S.) of 2002).

Constitution of Pakistan (1973)---

----Art. 212(3)---Petition for leave to appeal---Limitation---Condonation of delay---Petitioner in his application for condonation of delay had alleged that no copy of the judgment was directly sent to him and through his personal efforts he was able to obtain copy after about 5 months of its announcement, whereas petition was filed after 26 days of obtaining copy of judgment---Explanation offered by petitioner for inordinate delay in filing petition could not be accepted because same was duly forwarded to the other petitioner and not to the petitioner as it would be against the well-settled practice and procedure of the Service Tribunal---Even otherwise, forwarding letter had clearly shown that copy of impugned judgment had been duly endorsed to the petitioner---At any event, petitioner should have been diligent in asking for a copy and not to wait for five months and again to waste 26 days after collection of copy from the Tribunal---Petition being hopelessly barred by time and there being no sufficient cause to condone said delay, discretion could not be exercised in favour of petitioner, who had been highly negligent and careless in pursuing remedy before Supreme Court---Prayer of petitioner for extension of time, was rejected and petition was dismissed.

Akhtar Ali Mehmood, Deputy Attorney-General for Petitioners.

Nemo for Respondent.

PLCCS 2008 SUPREME COURT 376 #

2008 P L C (C.S.) 376

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

ADMINISTRATIVE COMMITTEE OF HIGH COURT OF SINDH through Registrar, High Court of Sindh, Karachi and another

Versus

ARJUN RAM K. TALREJA and another

Civil Petition No.560-K of 2006, decided on 22nd December, 2006.

(On appeal from the judgment, dated 10-10-2006 passed by Sindh Subordinate Judiciary Service Tribunal, High Court of Sindh, Karachi, in S.A. No.13 of 2000).

(a) Sindh Service Rules Manual (Revised Edition 2000)---

----Chap. 10, R.171---Date of birth recorded in Service Book of civil servant, change or alteration of---Scope---Not an absolute rule that such entry once made could not be altered or changed---Exceptions and procedure explained.

(b) Sindh Service Rules Manual (Revised Edition 2000)---

----Chap. 10, R.171---Sindh Service Tribunals Act (XV of 1973), S.3-B---Constitution of Pakistan (1973), Art.212(3)---Date of birth recorded in Service Book of Judicial Officer, change of---Plea of respondent-officer was that actual date of his birth entered in Register of Births of Municipal Committee was 4-11-1948, which, on account of illiteracy of his parents, was mistakenly recorded in School Registers as 24-12-1946; that on realizing such mistake, he, before joining government service in year 1974, got corrected all relevant record of Education Department by producing relevant documents including extract from Register of Births and report of Medical Superintendent certifying his age from physical and X-ray examination, whereafter Chief Minister as Competent Authority accorded approval to change his date of birth---Refusal of Administrative Committee of High Court to give effect to such orders of Chief Minister---Service Tribunal in appeal after evaluating such documents directed concerned authority to make necessary correction in service record as requested by respondent---Validity---Respondent had long back made a request for correction of his date of birth and on his representation forwarded by High Court, Competent Authority by issuing notification had accorded approval to change his date of birth---Such Committee without hearing respondent and assigning any reason had declined to change his date of birth in Service Record---Supreme Court upheld decision of Service Tribunal and refused to grant leave to appeal to such Committee.

Government of Balochistan through Secretary S&GAD, Quetta v. Marjun Khan 2003 PLC (C.S.) 245=2003 SCMR 444 ref.

Muhammad Rafiq Rajourvi, Additional Advocate-General Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

M.M. Aqil Awan, Advocate Supreme Court for Respondent No.1.

PLCCS 2008 SUPREME COURT 428 #

2008 P L C (C.S.) 428

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ALI S. BUKHARI

Versus

FEDERATION OF PAKISTAN through Establishment Secretary, Islamabad and 2 others

Civil Appeal No.86 of 2005, decided on 28th August, 2007.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 30-7-2004 passed in Service Appeal No.554(K) (C.S.) of 2002).

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

----Rr. 3(b) & 4(b)(i)(ii)(iii)---Civil Servants Act (LXXI of 1973), S.18---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Charge of non-compliance of order of superiors and absence from duty without prior permission---Conversion of such penalty into compulsory retirement by Service Tribunal in appeal of civil servant---Plea of civil servant that he was not supposed to accept special assignment without order. in writing; and that he had availed medical leave on advice of doctor---Validity---In service discipline, oral order of superiors in relation to official business would be as good order as in writing---Civil servant could earn leave on his own right, but for its grant, he must have followed proper procedure provided under the Rules---Civil servant was not supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline---Absence from duty without leave, even if not wilful, but same being an act of disorder in service would constitute misconduct---Availing of medical leave without permission could not be considered an act of gross misconduct entailing major penalty of dismissal from service---Charge against civil servant was not so grave as to propose any of such two penalties---Major penalty of compulsory retirement was harsh and did not commensurate with nature of charge---Supreme Court converted penalty of compulsory retirement into reduction of two steps in time scale for a period of two years in consequence to which civil servant would be deemed to have earned two increments for a period of two years.

(b) Civil service--

---Oral order of superiors---Validity---In service discipline, oral order of superiors in relation to official business would be as good order as in writing.

---S. 18---Leave, right of---Scope---Civil servant would not be supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline---Principles.

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

---R. 3(b)---Civil Servants Act (LXXI of 1973), S.18---Misconduct---Absence from duty without leave, even if not wilful, but same being an act of disorder in service, would constitute `misconduct'.

(e) Civil service---

----Disciplinary proceedings---Penalty, imposition of---Scope---Penalty in 'service matters would always be imposed in the light of charge against civil servant---Concept of major or minor penalty in service laws would be to determine quantum of punishment in the light of nature and gravity of charge.

Appellant in person.

Rizwan Ahmed Siddiqui, Deputy Attorney-General for Pakistan for Respondents Nos. 1 and 3.

A.S.K. Ghouri, Advocate-on-Record for Respondent No.2.

Date of hearing: 28th August, 2007.

PLCCS 2008 SUPREME COURT 877 #

2008 P L C (C.S.) 877

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY, MINSITRY OF FINANCE and another

Versus

KAZIM RAZA

Civil Petition No.934 of 2007, decided on 30th January, 2008.

(On appeal from the judgment dated 4-10-2007 of the Federal Service Tribunal, Islamabad in Appeal No.601(R)CS/2004).

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

----S. 3---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.2 & 3---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement on the charge of inefficiency and misconduct---Allegation against civil servant was that he being an Officer/Inspector had failed to detect and pinpoint the irregularities due to which fraud/misappropriation took place and if he had been vigilant and had probed the record deeply, the fraud would have been unearthed---Held, civil servant, though was found negligent but in the circumstances of the case, the major penalty of punishment of compulsory retirement from service imposed upon him, was harsh and Service Tribunal rightly converted the same into reduction in the rank---Petition for leave to appeal was dismissed.

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

----S. 3---Government Servants .(Efficiency and Discipline) Rules, 1973, Rr.2 & 3---Misconduct---Negligence---Imposition of penalty---Philosophy of punishment---Carelessness is definitely an act of negligence which may not strictly fall within the ambit of misconduct as defined in R.2, Government Servants (Efficiency and Discipline) Rules, 1973 but it is definitely a valid ground on the basis of which a government servant can be awarded penalty as provided by R.3 of the said Rules---Element of bad faith and wilfulness may bring an act of negligence within the purview of -misconduct but lack of proper care and vigilance may not always be wilful to make it a case of grave negligence inviting severe punishment---Philosophy of punishment is based on the concept of retribution which may be either through the method of deterrence or reformation---Purpose of deterrent punishment is 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 the society, whereas the concept of minor punishment in the law is to make an attempt to reform individual wrongdoer---Extreme penalty for minor acts, depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice.

Auditor General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 fol.

Sadaqat Ali Mirza, Advocate Supreme Court/Standing Counsel and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Shoaib Shaheen, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing; 30th January, 2008.

PLCCS 2008 SUPREME COURT 889 #

2008 P L C (C.S.) 889

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY KASHMIR AFFAIRS AND NORTHERN AREAS DIVISION, ISLAMABAD

Versus

SAEED AKHTAR and another

Civil Petition No.305 of 2008, decided on 18th March, 2008.

(Against the judgment dated 2-1-2008 passed by the Federal Service Tribunal, Islamabad in A.No.862-(R)CS/2003).

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

----Ss. 3(1) & 5(4)---Fundamental Rules, R.29---Constitution of Pakistan (1973), Art. 212(3)---Misconduct---Civil servant was served with a charge sheet and a show-cause notice on the charge of misconduct on account of corrupt practices---Civil servant, in his reply repudiated the allegations and claimed to have been falsely implicated in the matter---Reply having been found unsatisfactory, the competent authority without resorting to full fledged inquiry, in exercise of powers under S.3(1) of the Removal from Service (Special Powers) Ordinance, 2000, imposed upon civil servant penalty of reduction to a lower pay scale with retrospective effect and without specifying the period of penalty imposed---Validity---Held, proceedings carried out in the case suffered from gross legal infirmities such as violation of Rule 29 of the Fundamental Rules as period for punishment was not specified and major penalty was imposed retrospectively---Enquiry Officer thus certainly went beyond the scope to examine the real controversy---Reduction in rank constituted major penalty and required full-fledged inquiry and inquiry could not have been dispensed with in terms of S.5(4) of the Removal from Service (Special Powers) Ordinance, 2000---Leave to appeal was. declined to the employing department.

Pakistan Telecommunication Company Limited v. Messrs Muhammad Saeed Wazir 2005 SCMR 1225 fol.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 2008.

PLCCS 2008 SUPREME COURT 896 #

2008 P L C (C.S.) 896

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Syed Sakhi Hussain Bokhari, JJ

ABDUL HAMEED

Versus

MINISTRY OF HOUSING AND WORKS, GOVERNMENT OF PAKISTAN, ISLAMABAD through Secretary and others

Civil Petition No.279 of 2008, decided on 17th March, 2008.

(On appeal from the judgment and order of the Federal Service Tribunal, Islamabad, dated 11-12-2007, passed in Appeal No.641(R) CS of 2004).

(a) Civil service---

----Promotion---Principles---Promotion is not a vested right of civil servant---Promotion in non-selection post, is made on the basis of seniority-cum-fitness and civil servant cannot ask for, or claim a promotion as a matter of right as it is within the exclusive domain of the government---Neither the promotion could take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion---Act of mere technical irregularity with regard to promotion of civil servant having been instantaneously ratified by the authorities after being pointed out, per se would not be sufficient to hold that such action had any dent of malice on the part of authorities in the matter of promotion.

1997 PLC (C.S.) 77; 1998 SCMR 736; PLD 1991 SC 1118; 1998 PLC (C.S) 980; 1991 PLC (C.S) 587; 1985 SCMR 1158; PLD 1997 SC 84; PLD 2003 SC 110; PLD 2006 SC 572; 1997 PLC (C.S) 1210 and 2001 PLC (C.S) 654 ref.

(b) Civil service---

----Promotion---Civil servant, who, during pendency of his appeal, stood retired, could not be considered for promotion with retrospective effect.

Sh Iftikhar Ahmad, Advocate Supreme Court with Ejaz M. Khan, Advocate-on-Record for petitioner.

Nemo for Respondents.

Date of hearing: 17th March, 2008.

PLCCS 2008 SUPREME COURT 910 #

2008 P L C (C.S.) 910

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

EHSANULLAH KHAN, EX-ASSISTANT DIRECTOR, F.I.A

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and another

Civil Review Petition No.25 of 2005 in Civil Petition for Leave to Appeal No.1902 of 2003, decided on 6th February, 2008.

(On review from the judgment dated 17-3-2005 passed by this Court in C.P.L.A No.1902 of 2003).

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

---Rr. 4, 5(1) (iv) & 6-A (2) [as amended vide S.R.O.74 (I)/2001, dated 2-2-2001]---Inquiry procedure---Penalty, imposition of---Exoneration of Civil servant of charge by Authorized Officer---Non-service of fresh charge sheet on civil servant---Effect---Where pursuant to order for de novo enquiry, authorized officer recommended for imposition of penalty on civil servant within the ambit of R. 5(1)(iv) of Government Servants (Efficiency and Discipline) Rules, 1973, and proceedings were carried out thereunder, then service of amended charge sheet and statement of allegations upon civil servant could be taken in due compliance of R.6-A(2) thereof---Where authorized officer exonerated civil servant of charge, then charge sheet served on him earlier would lose its efficacy and could not satisfy requirement of R. 6-A(2) of the Rules---Where authority decided to proceed against civil servant under R.6-A(2) of the Rules, then authority would be legally bound to serve a fresh notice/charge sheet on civil servant, who should be given fair opportunity of showing cause against proposed action---No one could be condemned unheard in violation of maxim "audi alteram partem"---Principles.

Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Sherwani 1996 PLC (C.S.) 383=1996 SCMR 248; Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment 1987 SCMR 1562 and Muhammad Younas v. Secretary Ministry of Communications 1993 SCMR 122 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Ms. Nahida Mehboob Elahi, D.A.G. and Iftikhar Anjum, S.O. (Estt.) for Respondents

Date of hearing: 6th February, 2008.

PLCCS 2008 SUPREME COURT 921 #

2008 P L C (C.S.) 921

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

TARIQ MEHMOOD

Versus

DISTRICT POLICE OFFICER, TOBA TEK SINGH and another

Civil Appeal No.23 of 2006, decided on 29th February, 2008.

(On appeal from the judgment dated 4-8-2004 in Appeal No.203 of 2004, passed by the Federal Service Tribunal, Lahore).

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

----Rr. 6, 5 & 4---Imposition of major penalty---Procedure---If major penalty was required to be imposed on any Government employee, then procedure as laid down in R.6, Government Servants (Efficiency and Discipline) Rules, 1973 was required to be adhered to---No major penalty could be imposed on a government servants unless his guilt was properly inquired into by appointing an inquiry officer or an inquiry committee within the purview of R.5 of Government Servants (Efficiency and Discipline) Rules, 1973 and the accused was served with a proper show-cause notice or charge-sheet containing statement of allegations on which the penalty was proposed to be inflicted---Where major penalty of reduction in rank was imposed on the government employees without a proper inquiry and recording of evidence, the action of the department and the judgment of Service Tribunal affirming the departmental action, was set aside by the Supreme Court.

Jan Muhammad v. The General Manager, Karachi Telecommunication Region 1993 SCMR 1440; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others PLD 1994 SC 222; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence and others 1996 SCMR 802; Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 and Inspector-General of Police v. Shafqat Mehmood 2003 SCMR 207 rel.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.

Ex parte: Respondents.

Date of hearing: 29th February, 2008.

PLCCS 2008 SUPREME COURT 934 #

2008 P L C (C.S.) 934

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Muhammad Nawaz Abbasi and Mian Hamid Farooq, JJ

IMTIAZ AHMED LALI

Versus

RETURNING OFFICER and 3 others

Civil Petition No.957 of 2007, decided on 18th December, 2007.

(On appeal from the judgment dated 14-12-2007 passed by Lahore High Court, Lahore, passed in W.P. No.11985 of 2007).

(a) Constitution of Pakistan (1973)--

----Arts. 184 & 185---Original and appellate jurisdiction of Supreme Court---Scope---Supreme Court could examine provisions of any law on the touchstone of Fundamental Rights guaranteed in the Constitution.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 99(1-A)(i)---Constitution of Pakistan (1973), Art. 63(1)(i)---Punjab Police (Efficiency and Discipline) Rules, 1975, Rr.2 (iii) & 4(2)(a)---Provincial Assembly, election of---Dismissal of petitioner-candidate from police service for his absence from duty---Nomination papers, rejection of---Petitioners' plea was that his such dismissal from service would not fall within ambit of misconduct or moral turpitude for purposes of disqualification under Art. 63(i) & (j) of the Constitution read with S.99(1-A)(i) of Representation of the People Act, 1976---Validity---Petitioner's case in respect of charge of wilful absence from duty might not, as such, involve element of moral turpitude or fall within extended meaning of misconduct in service laws---Wilful or habitual absence from duty in service law was misconduct for involving and element of indiscipline, which might some times constitute gross misconduct---Disqualification under Art. 63(i) & (j) of the Constitution read with S.99(1-A)(i) of Representation of the People Act, 1976 was of permanent nature---Such plea was devoid of any force.

Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Secretary Education v. Mustamir Khan 2005 SCMR 17 and Badshah Hassan v. Interior Minister 2002 SCMR 967 fol.

---"Moral turpitude"---Meaning.

(d) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 2(iii) & 4(2)(a)---Wilful absence from duty---Misconduct---Wilful or habitual absence from duty in service law was misconduct for involving an element of indiscipline which, might some times constitute gross misconduct.

Dr. Khalid Ranjha, Advocate Supreme Court and Muhammad Asif Ranjha, Advocate Supreme Court for Petitioner.

Zafar Iqbal Chauhan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for respondents Nos. 3 and 4.

Date of hearing: 18th December, 2007.

PLCCS 2008 SUPREME COURT 985 #

2008 PLC (C.S.) 985

[Supreme Court of Pakistan]

Present. Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Ch. MUHAMMAD ASLAM

Versus

CHAIRMAN, COMMITTEE FOR ALLOTMENT OF OFFICIAL RESIDENTIAL ACCOMMODATION, P.I.M.S. ISLAMABAD and others

C.P .L.A. No.13 of 2008, decided on lithe February, 2008.

(On appeal from judgment, dated 12-12-2007 in Appeal No.200(R)(C.S.) of 2006 passed by the Federal Service Tribunal, Islamabad).

Accommodation Allocation Rules, 2002---

----Rr. 6 & 7---Allotment of residential accommodation to employees of Pakistan Institute of Medical Sciences which had its own residential colony---Allotment of residential accommodation had been made after the promulgation of Accommodation Allocation Rules, 2002, in order to set at rest the controversy of allotment of such accommodation to employees of Pakistan Institute of Medical Sciences---Supreme Court directed the departmental allotment committee to examine cases of employees, in the light of Accommodation Allocation Rules, 2002 and finalize the same within specified time.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad, D.A.-G. along with S. Zamir Naqvi, Superintendent P.I.M.S. and Raja Abdul Ghafoor; Advocate-on-Record for Respondents Nos. 1 and 2.

Muhammad Ashraf, J.E.O. for Respondent No.3.

Respondents Nos.5 and 6 in person.

Date of hearing: 11th February, 2008.

PLCCS 2008 SUPREME COURT 995 #

2008 P L C (C.S.) 995

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AZRA RIFFAT RANA

Versus

SECRETARY, MINSITRY OF HOUSING AND WORKS, ISLAMABAD and others

C.P.L.A. No.9 of 2008, decided on 7th April, 2008.

(On appeal from the judgment dated 24-12-2007 in Appeal No.296(R)CS/2005 passed by the Federal Service Tribunal, Islamabad).

(a) Accommodation Allocation Rules, 2002---

----O.M. No.F.1(8)-RU/89, dated 4-12-1991---Office Memorandum---Effect---Office memorandum being inconsistent with any statutory rule on the point, though cannot be given effect to as it does not stand on a higher footing than the statutory rules, yet where an office memorandum is expressed in precise terms, capable of being applied with particularity to a great number and variety of cases then the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant aspect and be regarded as supplementing them.

Secretary to the Government of the Punjab v. Abdul Hamid Arif 1991 SCMR 628 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

(b) Interpretation of statutes---

----Office Memorandum---Where an office memorandum is expressed in precise terms, capable of being applied with particularity to a great number and variety of cases then the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant aspect and be regarded as supplementing them.

Secretary to the Government of the Punjab v. Abdul Hamid Arif 1991 SCMR 628 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

----O.M. No.F.1(8)-R4/89, dated 4-12-1991---Promissory estoppel, doctrine of---Applicability---Issuance of Office Memorandum by Government whereby certain incentives including to retain accommodation till the age of superannuation and six months thereafter were provided and a large number of government employees, including the appellant availed the same, Government, by its conduct, was estopped to perform a somersault and say that since the policy introduced through the office Memorandum was contrary to the Accommodation Allocation Rules, 2002 it could not have been implemented---Government as per doctrine of promissory estoppel, was bound by the promise and the assurance contained in the Office Memorandum in question---Doctrine of promissory estoppel does not extend to legislative and sovereign functions, yet executive orders are not excluded from its operation---Appellant was entitled to retain official accommodation up to the age of superannuation and six months thereafter in terms of the Office Memorandum, and as per terms and conditions of allotment.

Pakistan through Ministry of Finance Economic Affairs anti another v. Fecto Belarus Tractors Limited PLD 2002 SC 208; Robertson v. Ministry of Pensions (1948) 2 All ER 767; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCMR 1904; Bhim Singh and others v. State of Haryana and others 1983 PSC 42; Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others PLD 1991 SC 546; Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCMR 916; Union of India and others v. Godfrey Philips India Limited AIR 1986 SC 806; Messrs Iit Ram Shiv Kumar and others AIR 1980 SC 1285; M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621; Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self-Government, Chandigarh and another AIR 1970 Punj. and Har. 462 ref.

(d) Estoppel--

----Promissory estoppel---True concept.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 quoted.

M. Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Nahida Mehboob Elahi, D.A.G., M.S. Khattak, Advocate on-Record and Sher Afzal Khan, Estate Officer for Respondents.

Date of hearing: 31st January, 2008.

PLCCS 2008 SUPREME COURT 1009 #

2008 P L C (C.S.) 1009

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ

Dr. ALTAF HUSSIAN GARDEZI

Versus

CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, LAHORE and another

Civil Petition No.602 of 2006, decide on 7th April, 2008.

(On appeal from the judgment and order of the Punjab Service Tribunal, Lahore, dated 12-4-2006, passed in appeal No.2170 of 2001).

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

----Constitution of Pakistan (1973), Art.212(3)---Removal from service on the basis of findings of the departmental enquiry conducted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 on the charges of a large number of appointments made by the civil servant, without advertising the posts, without preparation of the merit list and also over and above the sanctioned strength---Civil servant was exonerated in two consecutive enquiries, inquiry in the present case, was field ex parte and record showed that there were procedural flaws in the said enquiry---Validity---Authorities were to prove the acts of alleged misconduct against a civil servant and a civil servant could not be held guilty, of the charges' merely because he failed to participate in the proceedings---Civil servant was exonerated by the NAB authorities from the charge---Appeals by incumbent civil servants who were alleged to have been appointed in violation of law by the civil servant were accepted and their cases were remanded to the authorities for deciding each case on its own merits---Penalty of removal from service inflicted upon the civil servant, in circumstances, appeared to be harsh, inappropriate and out of proportion and penalty of compulsory retirement from service would be sufficient to meet the ends of justice---Petition for leave to appeal was converted into appeal by the Supreme Court and allowed accordingly.

Mehmood A. Sheikh, Advocate Supreme Court for Petitioner.

Mrs. Afshan Ghazanfar, A.A.-G., Punjab for Respondents.

Date of hearing: 7th April, 2008.

PLCCS 2008 SUPREME COURT 1143 #

2008 P L C (C.S.) 1143

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Zawwar Hussain Jaffery, JJ

FEDERATION OF PAKISTAN and others

Versus

AMIR ZAMAN SHINWARI, SUPERINTENDING ENGINEER

Civil Petition No.901 of 2007, decided on 1st January, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (197.3), Art.185(3)---Promotion, claim for---Implementation of order---Department had sought leave to file appeal against order of High Court whereby petitioner was directed by the High Court to promote the civil servant immediately in next grade---Civil Servant whose name was at serial No.3 of the seniority list, his case of promotion from, Superintending Engineer (BPS-19) to Chief Engineer (BPS-20) was deferred by General Selection Board without any tangible material, on unauthenticated and evasive ground, while his juniors whose names were at Serial Nos.6 and 7 of the seniority list with less score were promoted---Civil Servant feeling aggrieved thereby assailed order before the Service Tribunal which remanded case to the Department, with the direction to consider case of Civil Servant for promotion and in case he was clear for promotion, same would take effect from the date his juniors were promoted to the post of Chief Engineer BPS-20---Said order passed by the Service Tribunal having not. been implemented, Civil Servant filed constitutional petition against non-implementation of order of the Tribunal---High Court accepted petition with a direction to the Department to implement order of the Tribunal---High Court examining the attitude of the Department issued direction that he be promoted to the next grade with immediate effect with all back benefits---Factual position was conceded by the Department in the Service Tribunal as well as before High Court, but despite that the Department had failed to implement orders passed by the Service Tribunal---Attitude of Department was hostile and injustice was done to Civil Servant without any substantial ground---High Court had rightly examined the attitude of Department and had rightly issued direction that Civil Servant be promoted to the next grade with immediate effect with all benefits---Judgment passed by the Tribunal and impugned judgment passed by the High Court could not be set aside---Civil Servant having already retired, his emoluments were ordered to be released within stipulated period.

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.

Ms. Naheeda Mehboob Ellahi, D.A.G for Pakistan.

M.S. Khattak, Advocate-on-Record.

Tahir Mehmood Qureshi, S.O.

Ibrahim Shah, Law Officer.

PLCCS 2008 SUPREME COURT 1156 #

2008 PLC (C.S.) 1156

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan

and Ch. Ejaz Yousaf, JJ

FAZAL AHMAD NASEEM GONDAL

Versus

REGISTRAR, LAHORE HIGH COURT

Civil Appeals Nos.53, 54, 55 and 56 of 2008, decided on 29th April, 2008.

(On appeals from the judgments, dated 28-9-2007 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in S.A. Nos.49 of 2002, 17 of 2004, 11 of 2005 and 13 of 2005).

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

----Rr. 3(b)(c) & 4,--Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.4---Constitution of Pakistan (1973), Art.212(3)---Civil Judge-cum-Judicial Magistrate--Dismissal from service---Charges of misconduct and corruption---Dismissal of appeal by Service Tribunal---Plea of Civil Judge that he had 25 years' unblemished service at his credit without any complaint; that charges levelled against him were false; and that he was condemned unheard---Validity---While giving his findings, Inquiry Officer had considered reference sent by District and Sessions Judge, Resolution of District Bar and adverse remarks recorded in A.C.Rs. of Civil Judge, statements of prosecution witnesses and other material on record---Twenty one transfer applications containing allegations of corruption were made against Civil Judge .during his posting at place "R"---President and other members of District Bar at place "R" had been complaining against integrity and reputation of Civil Judge---Civil Judge in three transfer applications was accused of having flouted orders of District Judge and announced judgments despite stay orders of Appellate Court---Civil Judge had failed to clarify his position even though he had attended proceedings before Inquiry Officer and cross-examined witnesses---Supreme Court dismissed appeal filed by Civil Judge.

Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 and S.M. Tufail Ahmad v. Kafiluddin Ahmad and others 1986 PLC (C.S.) 393 ref.

M. Zakria Sh. Advocate Supreme Court for Appellant (in all Appeals).

Qazi M. Amin, Additional Advocate-General Punjab and M. Akram, D.R. (Conf.) Lahore High Court for Respondent (in all appeals).

Date of hearing: 29th April, 2008.

PLCCS 2008 SUPREME COURT 1161 #

2008 P L C (C.S.) 1161

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MEMBER (A.C.E. & S.T.), FEDERAL BOARD OF REVENUE, ISLAMABAD and others

Versus

MUHAMMAD ASHRAF and 3 others

Civil Petitions Nos.332 to 335 of 2008, decided on 28th March, 2008.

(On appeal from the judgment, dated 12-12-2007 of the Federal Service Tribunal, Lahore passed in Appeals Nos.223(L)(C.S.), 239(L)(C.S.), 240(L)(C.S.) and 241(L)(C.S.) of 2002).

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

----R. 4(1)(b)(i)---Fundamental Rules, R.29---Constitution of Pakistan (1973), Art.212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Reduction to five stages in time scale---Charges of casual and negligent attitude, procedural lapses and violation of instruction of Standing Order---Service Tribunal in appeal modified such penalty reducing same to two stages in time scale for two years---Validity---Petition for leave to appeal was barred by six (6) days---Penalty imposed by departmental authority upon civil servant did not specify length of time, thus, same was violative of Fundamental Rule 29---Penalty for indefinite period was not provided in law---Supreme Court upheld impugned judgment and refused to grant leave to appeal.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 ref.

Raja Muhammad Bashir, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th March, 2008.

PLCCS 2008 SUPREME COURT 1175 #

2008 P L C (C.S.) 1175

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

RIAZ HANIF RAHI and others

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others

Civil Petitions Nos. 401, 402 and 403 of 2008, decided on 15th May, 2008.

(On appeal from the judgment dated 7-4-2008 of the Lahore High Court, Lahore passed in Writ Petition No.864 of 2008).

Punjab Judicial Service Rules, 1994---

----R. 7---Eligibility of persons appearing in examination for the posts of Additional District and Sessions Judges---To allow the District Attorney, Deputy District Attorney or Assistant District Attorney or Prosecutors to be eligible candidates for the post of Civil Judges and disallow them to become candidates for the post of Additional District and Sessions Judges was highly discriminatory---Research Assistant in the office of Attorney-General and Prosecutor Anti-Narcotics Force who had been allowed to practice privately and who had retained their licence to practice, were also not included in the persons disqualified to appear---Principles.

Petitioners in person.

Ms. Afshan Ghazanfar, Assistant Advocate-General, M. Akram D.R. (Conf.) L.H.C. and Zahoor Ahmad, JA, L.H.C. for Respondents.

Date of hearing: 15th May, 2008.

PLCCS 2008 SUPREME COURT 1182 #

2008 P L C (C.S.) 1182

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

KHALID MANSOOR

Versus

DIRECTOR, F.I.A., RAWALPINDI and another

Civil Appeal No.1718 of 2007, decided on 12th May, 2008.

(On appeal from the judgment, dated 19-2-2007 of the Federal Service Tribunal, Islamabad in Appeal No.1775(R)(C.S.) of 2005).

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

----S. 3---Compulsory retirement from service---Charge of misconduct---Going abroad of two passengers on fake travelling documents during civil servant's duty at F.I.A. Immigration Check Post at Airport---Inquiry Officer recommended penalty of reduction to lower stage in time scale for period of three years---Competent Authority imposed penalty of compulsory retirement without recording specific reasons of his disagreement with recommendations of Inquiry Officer, but adding additional charges not mentioned either in the order of 'inquiry or statement of allegations or in final show-cause notice---Validity---Civil servant, despite having full opportunity to cross-examine witnesses, could not vindicate his position---Such passengers could not proceed abroad without blessing or inefficiency of civil servant---Recommendations of Inquiry Officer should have been given respect---Impugned penalty was set aside and that recommended by Inquiry Officer was maintained in circumstances.

M. Shoaib Shaheen, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Raja M. Irshad, D.A.-G., M.S. Khattak, Advocate-on-Record and Malik Tariq Mehmood, A.D., F.I.A. for Respondents.

Date of hearing: 8th May, 2008.

JIJDGMENT

IJAZ-UL-HASSAN KHAN, J.--- Above titled appeal, with leave of the Court granted on 7-11-2007, is meant to call into question the judgment, dated 19-2-2007 passed by Federal Service Tribunal, Islamabad, dismissing Appeal No.1775(R)(C.S.) of 2005, preferred by Khalid Mansoor, appellant.

Shortly narrated the facts necessary for disposal of instant appeal are, that appellant joined service of the Federal Investigation Agency (F.I.A.) as constable w.e.f. 13-9-1987. The appellant was proceeded under the provisions of Removal from Service (Special Powers) Ordinance, 2000, vide order, dated 17-9-2004 on the allegation that while posted at F.I.A. Immigration Check Post at Islamabad International Airport he committed acts constituting inefficiency and misconduct as two passengers namely, Mrs. Romeena Manzoor and Mr. Gulzar Hussain travelled to United Kingdom on fake passports and the appellant being on duty at General Checking Counter failed to check/stop them from proceeding to their destination. An Inquiry Officer was appointed to conduct a departmental inquiry and a charge-sheet was issued to the appellant. The appellant submitted his defence reply and denied the charges/allegations levelled against him and professed innocence. After the finalization of the inquiry proceedings, Inquiry Officer submitted his report to respondent No.1 i.e. Director, F.I.A. Rawalpindi Zone, Rawalpindi recommending that `appellant may be awarded major penalty of reduction to lower stage in time scale for a period of three years'.
On receipt of the inquiry report, respondent No.1, while disagreeing with the commendations of the Inquiry Officer, imposed major penalty of dismissal from service upon the appellant vide order, dated 8-11-2004. The appellant filed a departmental representation/ appeal before respondent No.2 i.e. Director, F.I.A. Headquarters, Islamabad, which was allowed. Dismissal order was set aside and appellant was reinstated in service with order of de novo proceedings. The appellant reported for duty. De novo proceedings were started against the appellant, a show-cause notice was issued and reply of the appellant having been found unsatisfactory, major penalty of compulsory retirement from service was imposed upon the appellant vide order, dated 1-6-2005. Against the aforesaid order, a departmental representation was made before respondent No.2, which remained unresponded. Feeling aggrieved, appellant filed an appeal before Federal Service Tribunal, which was dismissed through the impugned judgment.
Mr. M. Shoaib Shaheen, Advocate appearing on behalf of the appellant, in support of the appeal, contended with vehemence that the competent authority has no power to impose a major penalty upon the appellant without recording specific reasons of disagreement of the recommendations made by the Inquiry Officer in the departmental inquiry report; that the Tribunal instead of adjudicating upon the question assailed in appeal as to whether order of compulsory retirement was lawful, valid and legal or otherwise, took into consideration extraneous matters; that the appellant has been discriminated and given step-motherly treatment qua other officials involved in the case and that material on the file has not been appreciated in its true perspective and appellant has been condemned unheard. To augment the contentions, reliance has been placed on Dilawar Hussain Shah v. Maqbool Hussain Shah 1990 SCMR 994, Mukhtar Ahmad Bhatti v. Director Food, Punjab, Lahore, 1992 SCMR 1864, Chief Director, Central Directorate of National Savings, Islamabad v. Rahat Ali Sherwani 1996 SCMR 248, Deputy Inspector-General of Police v. Shafique-ur-Rehman 2000 SCMR 669, Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 and Shafaullah Khan Niazi v. Deputy Director, Food Department, Multan PLD 2004 SC 55.
Raja M. Irshad, learned Deputy Attorney-General on the other hand, controverted the arguments of learned appellant's counsel and supported the impugned judgment forcefully, maintaining that sufficient incriminating material was available on the record to connect the appellant with the guilt and in view of the gravity of the offence, appellant has been dealt with rightly and punished appropriately.
A perusal of the record would reveal that a detailed inquiry was conducted to probe into the matter and appellant was provided full opportunity of cross-examination of the witnesses but he failed to vindicate his position. The appellant also failed to prove that the two passengers boarded on the plane not by using some unauthorized passage thereby avoiding the immigration clearance. It stands established from the material on record that both the passengers succeeded to proceed abroad on fake travelling documents during appellant's duty at General Checking Counter and it was not possible for the said passengers to go abroad without the blessing of the appellant or at least because of his inefficiency. However, we find force in the contention of learned counsel for the appellant that the competent authority imposed major penalty upon the appellant without recording specific reasons of disagreement with the recommendations made by the Inquiry Officer and instead of adjudicating upon the question involved, added the additional charges which were neither contained in the order of inquiry nor in the statement of allegations or even in the final show-cause notice. The responsibility, in our considered view, could not have been solely placed on the appellant's shoulders. The recommendations of the Inquiry Officer should have been given respect.

PLCCS 2008 SUPREME COURT 1188 #

2008 PLC (C.S.) 1188

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

NOOR MUHAMMAD KHAN

Versus

REGISTRAR, LAHORE HIGH Court and another

C.As. Nos.1699 and 1700 of 2003 and C.Ps. Nos.1193-L to 1197-L of 2003, decided on 7th February, 2007.

(On appeal from the judgment of the Punjab Subordinate Judiciary Service Tribunal, Lahore, dated 11-4-2003 passed in Service Appeal No.19 of 1998).

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

----Ss. 3 & 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Constitution of Pakistan (1973), Art.212(3)---Imposition of penalty of dismissal from service---Conversion of penalty to compulsory retirement from service---Appellant against whom disciplinary proceedings were taken on ground of certain acts of misconduct and adverse remarks in his Annual Confidential Report, was dismissed from service---Inquiry was conducted against appellant and Inquiry Officer affirmed certain charges levelled against him---Competent Authority ordered dismissal of appellant from service and on filing appeal against judgment of the competent Authority, Service Tribunal altered penalty of dismissal from service into compulsory retirement from service---Validity---Questions involved in the appeal did not raise any substantial question of law of public importance within the purview of the expression employed in Art.212 of the Constitution---Service Tribunal did not find any adequate and concrete evidence for holding appellant guilty of corruption, but found him guilty of judicial impropriety, lack of mannerism, indiscipline and being a tactless Judicial Officer---Findings of fact did not appear to suffer from any legal infirmity or misreading of record---Service Tribunal was fully authorized and. empowered to confirm, modify, . vary and revise the quantum of punishment, which power was rightly exercised by the Tribunal---No substantial question of law of public importance and no ground for interference with the exercise of jurisdiction, having been made out, both appeals were dismissed by the Supreme Court.

Abdul Wahid Chaudhry, Advocate Supreme Court for Appellant (in C.A. No.1699 of 2003).

Farooq Zaman Qureshi, Advocate Supreme Court and Ch. M. Hussain, Addl. A.-G. Punjab for Respondents (in C.A. No.1699 of 2003).

Farooq Zaman Qureshi, Advocate Supreme Court for Appellant (in C.A. No.1700 of 2003).

Abdul Wahid Chaudhry, Advocate Supreme Court and Ch. M. Hussain, Addl. A.-G., Punjab for Respondent No.1 (in C.A. No.1700 of 2003).

Abdul Wahid Chaudhry, Advocate Supreme Court (in C.Ps. Nos.1193-L to 1197-L of 2003).

Nemo for Respondents (in C.Ps. Nos.1193-L to 1197-L of 2003).

Date of hearing: 7th February, 2007.

PLCCS 2008 SUPREME COURT 1194 #

2008 P L C (C.S.) 1194

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

LAHORE HIGH COURT, LAHORE

Versus

MASOOD UMAR KHAN and another

Civil Appeal No.1671 of 2003, decided on 14th December, 2006.

(On appeal from the judgment, dated 25-7-2003 passed by the Subordinate Judiciary Service Tribunal, Lahore in Appeal No.96 of 2001).

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Service Tribunal had misread the evidence on record---Courts/Tribunals, were duty bound to decide the case after judicial application of mind---Appeal, tin circumstances, was accepted and impugned judgment of the Service Tribunal was set aside by the Supreme Court with direction that case would be deemed to be pending adjudication before the Service Tribunal, which would be decided by the Tribunal afresh after affording opportunity of hearing to all concerned.

Mrs. Bilquis Begum's case 2003 PLC (C.S.) 187; K.M. Sohel's case 2001 PLC (C.S.) 1253 and Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

Farooq Zaman Qureshi, Advocate Supreme Court and Nazar Hussain, Deputy Registrar for Appellant.

Respondents: Ex parte.

PLCCS 2008 SUPREME COURT 1212 #

2008 P L C (C.S.) 1212

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Hamid Ali Mirza, JJ

GHULAM RASOOL RANJHA

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Province of Punjab, Lahore and others

Civil Petitions Nos.2742 to 2745 of 2004, decided on 8th January, 2007.

(On appeal from the judgment, dated 15-12-2004 in Service Appeals Nos.44, 56, 57 and 55 of 2001 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore).

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

----S. 5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr.3(b) & 4(1)(b)(iv)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Penalty of dismissal from service was imposed upon the petitioner after issuing him show-cause notice and holding inquiry against him on charges of misconduct and corruption---Allegation against petitioner was that he had received illegal gratification through his Naib Qasid---Inquiry Officer after holding inquiry against petitioner found him corrupt and recommended imposition of any major penalty---Authority, after affording petitioner opportunity of hearing, dismissed him from service---No legal or factual infirmity had been pointed out or asserted by the petitioner in the impugned judgment---Overwhelming evidence on record indicated that the charges of corruption and misconduct were proved against the petitioner beyond any reason of doubt---A.C.Rs. of the petitioner for the years 1997 to 1999 also indicated that petitioner was reputed to be corrupt and had bad reputation---Petitioner could not be granted any premium for his misconduct or corruption which was considered highest degree of disqualification of a Judicial Officer, which could not be permitted---No ground for conversion of punishment from dismissal to compulsory retirement was made out in view of the charge of corruption amounting to misconduct which stood proved beyond reason of doubt against the petitioner.

Petitioner in person (in all cases).

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 8th January, 2007.

PLCCS 2008 SUPREME COURT 1230 #

2008 P L C (C.S.) 1230

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Civil Appeal No.1341 of 2005

MUHAMMAD SADIQ

Versus

SUPERINTENDENT OF POLICE and others

(On appeal from the judgment, dated 15-7-2003 in Appeal No.407 of 2002 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1648 of 2005

MUZAFFAR ALI

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others

(On appeal from the judgment dated 2-10-2002 in Appeal No.2164 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1700 of 2005

Rana DILBAR HUSSAIN

Versus

SUPERINTENDENT OF POLICE (TRAFFIC), FAISALABAD and others

(On appeal from the judgment dated 22-5-2002 in Appeal No.375 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1880 of 2005

Syed ZAMIRUL HASSAN ZAIDI

Versus

PROVINCIAL DIRECTOR, LOCAL FUND AUDIT, LAHORE and others

(On appeal from the judgment dated 10-12-2002 in Appeal No.386 of 2002 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1893 of 2005

ZUBAIDA SAHAR

Versus

SECRETARY, EDUCATION, GOVERNMENT OF PUNJAB and others

(On appeal from the judgment dated 27-4-2002 in Appeal No.808 of 1998 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1923 of 2005

Dr. MUHAMMAD ISLAM ALI CHAUDHRY

Versus

DIRECTOR POULTRY INSTITUTE, RAWALPINDI and others

(On appeal from the judgment dated 11-7-2002 in Appeal No.530 of 1999 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.17 of 2006

MUHAMMAD AZEEM

Versus

SUPERINTENDENT OF POLICE, LAHORE CANTT. and others

(On appeal from the judgment dated 12-8-2002 in Appeal No.604 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.20 of 2006

ARIF HUSSAIN

Versus

D.I.-G. POLICE SARGODHA RANGE and others

(On appeal from the judgment dated 24-11-2005 in Appeal No.435 of 2005 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.21 of 2006

AKBAR ALI SHAHID

Versus

ADDITIONAL DIRECTOR-GENERAL L.D.A. and another

(On appeal from the judgment dated 20-7-2004 in Appeal No.1509 of 2003 passed by the Punjab Service Tribunal, Lahore).

C.P.L.A. No.2870-L of 2004

M. EHSAN KHAN SADOZAI

Versus

CHIEF SECRETARY, PUNJAB, CIVIL SECRETARIAT, LAHORE

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1649 of 2005

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

Versus

ZIA-UD-DIN

(On appeal from the judgment dated 13-9-2005 in Appeal No.280 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1680 of 2005

GOVERNMENT OF PUNJAB, LAHORE through Secretary Food and others

Versus

Syed AKHTER RAZA ZAIDI

(On appeal from the judgment dated 1-8-2003 in Appeal No.398 of 2003 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1894 of 2005

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB and others

Versus

ZUBAIDA SAHR

(On appeal from the judgment dated 27-4-2002 in Appeal No.808 of 1998 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.222 of 2006

CHIEF SECRETARY, PUNJAB CIVIL SECRETARIAT, LAHORE and others

Versus

MUHAMMAD EHSAN KHAN SADOZAI

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.223 of 2006

CHIEF SECRETARY, PUNJAB CIVIL SECRETARIAT, LAHORE and others

Versus

Malik SHAUKAT HUSSAIN

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.224 of 2006

CHIEF SECRETARY, PUNJAB, CIVIL SECRETARIAT, LAHORE and others

Versus

TANVEER ELAHI

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

C.P.L.A. No.2947-L of 2003

SECRETARY TO GOVERNMENT OF PUNJAB FOOD DEPARTMENT and another

Versus

Ch. IRSHAD-UL-HAQ

(On appeal from the judgment dated 12-8-2003 in Appeal No.1082 of 2003 passed by the Punjab Service Tribunal, Lahore).

Civil Appeals Nos.1341, 1648, 1700, 1880, 1893, 1923 of 2005, Civil Appeals Nos.17, 20, 21 of 2006, C.P.L.A. No.2870-L of 2004, Civil Appeals Nos.1649, 1680, 1894 of 2005, Civil Appeals Nos.222, 223, 224 of 2006 and C.P.L.A. No.2947-L of 2003, decided on 19th May, 2008.

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

----R. 4(1)(b)(i)---Fundamental Rules, R.29---Departmental authority though while inflicting punishment on a civil servant to a lower post or time scale or to a lower stage in a time scale, was competent to impose any sort of penalty permissible under R.4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 yet same could not be inflicted in disregard of Fundamental Rule 29, which provided that if a Government servant, on account of misconduct or inefficiency, was reduced to a lower grade or post, or to a lower stage in his time scale, then the Authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent---Competent authority, in the present cases, while inflicting punishment on the employees had not specified or fixed time for which the penalty had been imposed---Such orders, therefore, to that extent, were not sustainable---Reduction to a "lower post" did not mean reduction to the "lowest, post"---Rule 4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 provided reduction to "a" lower post or time scale or to a lower stage in a time scale, which implied that reduction to a lower post should normally be limited to one stage only and not beyond that---Use of word "a" in the provision was significant because it being multifaceted denoted not only "one" or "any" but at times was used in the plural sense as well and therefore, even if taken in its ordinary dictionary meanings, it might mean "one" when one is intended and it might mean anyone of a greater number---Principles.

Government of N.-W.F.P and others v. Farman Ali and others 2005 SCMR 774; Secretary (Schools), Government of the Punjab and others v. Muhammad Sharif Tirmazi 2004 SCMR 74; Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647; Government of Pakistan through Secretary, Establishment Division, Islamabad v. Muhammad Umer Morio 2005 SCMR .436; Muhammad Younus v. Secretary, Ministry of Communications and others 1993 SCMR 122 and Zafar Yasin v. Prime Minister of Pakistan 2002 SCMR 775 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1341 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, and M. Arshad Inspector, Legal, Okara for Respondents (in Civil Appeal No.1341 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1648 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, and Jamshed Farooq, D.S.P. Legal, Gujrat for Respondents (in Civil Appeal No.1648 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1700 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, Rai Allah Ditta, Inspector for Respondents (in Civil Appeal No.1700 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1880 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.1880 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1893 of 2005).

Ms. Afshan Ghazanfar, . A.A.-G. Punjab for Respondents (in Civil Appeal No.1893 of 2005).

Nemo for Appellant (in Civil Appeal No.1923 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.1923 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.17 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.17 of 2006).

Appellant in person (in Civil Appeal No.20 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab and M. Tafazzal, Inspector Legal for Respondents (in Civil Appeal No.20 of 2006).

Appellant in person (in Civil Appeal No.21 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.21 of 2006).

Nemo for Petitioner (in C.P.L.A. No.2870 of 2004).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondent (in C.P.L.A. No.2870 of 2004).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1649 of 2005).

G.N. Gohar, Advocate-on-Record for Respondent (in Civil Appeal No.1649 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1680 of 2005).

Nemo for Respondents (in Civil Appeal No.1680 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1894 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.1894 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab S. Riaz Hussain, Legal Officer for Appellants (in Civil Appeal No.222 of 2006).

Arshad Ali Chaudhry, Advocate-on-Record for Respondent (in Civil Appeal No.222 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.223 of 2006).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.223 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.224 of 2006).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.224 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in C.P.L.A. No.2947-L of 2003).

Respondent in person (in C.P.L.A. No.2947 of 2003).

Date of hearing: 19th May, 2008.