PLCCS 2009 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Service Tribunal
Federal Shariat Court
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Punjab Service Tribunal
Punjab Subordinate Judicial Service Tribunal
Quetta High Court Balochistan
Service Tribunal For Members Of Subordinate Judiciary
Service Tribunal Azad Kashmir
Supreme Court

Federal Service Tribunal

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 22 #

2009 P L C (C.S.) 22

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD SALEEM KHAN and 53 others

Versus

PRESIDENT, UNITED BANK LIMITED, KARACHI and others

Appeals Nos.905(L), 1747(L), 2061(L) of 1998, 1444(L) of 1999, 142(L)(C.E.), 351(L)(C.E.) of 2000, 23(L)(C.E.), 24(L)(C.E.), 38(L)(C.E.), 122(L)(C.E.), 123(L)(C.E.) to 125(L)(C.E.), 228(L)(C.E.), 290(L)(C.E.), 295(L)(C.E.), 313(L)(C.E.) to 317(L)(C.E.), 308(L)(C.E.), 330(L)(C.E.), 331(L)(C.E.), 335(L)(C.E.), 356(L)(C.E.), 361(L)(C.E.), 366(L)(C.E.) to 381(L)(C.E.), 387(L)(C.E.) to 391(L)(C.E.), 418(L)(S.E.) 421(L)(C.E.), 422(L)(C.E.), 424(L)(C.E.), 465(L)(C.E.) of 2001, 186(L)(C:E.) of 2003, 1528(L) of 1998 and 180(L)(C.E.) of 2002, decided on 3rd January, 2004.

(a) Privatization Commission Ordinance (LII of 2000)---

----Ss. 28, 31 & 42---Service Tribunals Act (LXX of 1973), S.2-A---Process of privatization---For all matters arising out of process of privatization, jurisdiction of Service Tribunal had been taken away and the powers to resolve such matters had been vested in the respective High Courts---All types of legal proceedings including proceedings initiated by employees of privatized Banks or against employees of such Banks in respect of terms and conditions of their services had been transferred to High Court by operation of S.31 of Privatization Commission Ordinance, 2000---Provisions of S.42 of Privatization Commission Ordinance, 2000 were overriding and by its implication, S.2-A of Service Tribunals Act, 1973, had become ineffective so far as employees of privatized Banks/Institutions were concerned--Privatization Commission Ordinance, 2000, was competently issued by the President of Pakistan when the National Assembly was not in session and process of privatization was completed under a valid Legislation---Contention that privatization process was completed by any unauthorized Authority, was repelled.

(b) Interpretation of statutes---

---Amendment made in procedural law---Effect---When any amendment was made in a procedural law, it would have retrospective effect and amendment would affect the pending cases as well as the causes of action which had arisen prior to the amendment.

---Ss. 28, 31 & 42---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Process of privatization---Appeal before Service Tribunal, maintainability of---By Privatization Commission Ordinance, 2000, procedural change had been made and said change would affect appeals before Service Tribunal and after promulgation of said Ordinance, appeals would be no longer competent before the Service Tribunal--Such appeals would stand transferred to the High Court by operation of law---After privatization of the Bank, appeals filed before Service Tribunal, were no longer maintainable in Service Tribunal as Tribunal had ceased to have jurisdiction.

1999 SCMR 92; 1998 SCMR 1603 and 1999 SCMR 197 ref.

Mian Mahmood Hussain, Sheikh Abdul Hameed, Nazeer Ahmad Quraishee, Ch. Munawar Ahmad Javed, Muhammad Ishaq Malik, Chaudhry Ghulam Qadir Cheema, Sultan Muhammad Momin, Zafar Iqbal Chohan for Appellants.

Appellant in person (in Appeal No.424(L)(C.E.) of 2001.

Muhammad Irshad with Muhammad Afzal, O.G.-II, R.H.Q., Lahore for U.B.L./Appellant.

Muhammad Irshad, Muhammad Akram Pasha, Amir Faraz, Imran Ahmad Malik, Mian Muhammad Saleem, Rashedeen Nawaz with Muhammad Afzal, O.G.-II, R.H.Q., Lahore for Respondents.

Respondent in person (in Appeal No.1528(L) of 1998.

Not present

Kh. Tariq Masood (in Appeals Nos.23, 24 and 38(L)(C.E.) of 2001).

Khan A. Hamid (in Appeal No.228(L)(C.E.) of 2001).

Ch. Muzaffar Ali Khan (in Appeal No.290(L)(C.E.) of 2001).

Ch. Zameer Ahmad (in Appeals Nos.308 and 361(L)(C.E.) of 2001).

Ch. Altaf Hussain (in Appeal No.1444(L) of 1998).

Asmat Kamal Khan (in Appeal No.1747(L) of 1998).

Muhammad Jehangir Asif (in Appeal No.905(L) of 1998).

Date of hearing: 3rd January, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 75 #

2009 P L C (C.S.) 75

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

EHSAN-UL-HAQ ADIL

Versus

PRESIDENT, HABIB BANK LIMITED, KARACHI and another

Appeal No.643(L)(C.E.) of 2000, decided on 11th December, 2003.

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

----R. 4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service on allegation of embezzlement---Appeal---Appellant serving as cashier in respondent Bank, was dismissed from service on charge of embezzlement which charge was admitted by appellant and embezzled amount was returned by him---Appellant had prayed that penalty of dismissal from service imposed upon him being very harsh and severe, same be reduced---Appellant who was guilty of tarnishing image of a National Institution, did not deserve reinstatement into service---Appellant having frankly admitted his guilt, order of his dismissal from service, was converted into his removal from service to enable him to earn his livelihood.

Ch. Muhammad Ikram Zahid for Appellant.

Muhammad Iqbal Khan for Respondents.

Date of hearing; 11th December, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 89 #

2009 P L C (C.S.) 89

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ZAFAR IQBAL

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN, KARACHI and 2 others

Appeal No.477(L) of 1998, decided on 8th December, 2003.

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

----R. 4(1)(b)(ii)---National Bank Employees Service Rules, 1980---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement from service---Appeal---Limitation---Appellant who was compulsorily retired from service after holding inquiry against him on charges of misconduct, filed departmental appeal after five months of his retirement and after rejection of said Departmental appeal, appellant instead of filing appeal before Service Tribunal, filed second appeal/representation which also was rejected---Appellant who should have filed appeal to Service Tribunal within 30 days after rejection of his departmental appeal, had filed appeal after more than seven months of rejection of first departmental appeal and after about three months from rejection of second departmental appeal/representation---National Bank Employees Service Rules, 1980 applicable to case of appellant, being not statutory in nature, appellant was not under any legal obligation to file a departmental appeal---Second departmental appeal being not warranted by law, time spent by appellant on his second appeal/representation could not be condoned---Even after rejection of said incompetent second departmental appeal, appeal before Service Tribunal was not filed by appellant within 30 days---In absence of any plausible explanation for said inordinate delay, appeal filed by appellant was barred by time and said delay could not be condoned and appeal was liable to be rejected being barred by time.

Zaheerullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826 ref.

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

----R. 4(1)(b)(ii)---National Bank Employees Service Rules, 1980---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement from service---Appeal---Appellant serving as Senior Assistant in Bank, was compulsorily retired from service after charge-sheeting him and holding inquiry against him on certain charges of misconduct---Respondent Authority had held fair inquiry against appellant after serving him charge-sheet, despite the fact that National Bank Employees Service Rules, 1980 applicable in the case were not statutory Rules---Reply of appellant was taken in detail by Inquiry Officer and was duly considered---Appellant had also confessed his guilt by submitting an affidavit---Though no pecuniary loss was caused to the respondent Bank by the acts of appellant as per report of Inquiry Officer, but that was sole reason for lesser punishment of compulsory retirement awarded to appellant, otherwise appellant would have been dismissed from service and matter might have been reported to the police---Extenuating circumstances existed in favour of the appellant for which compassion was shown to him by respondent Authority---Penalty imposed on appellant was not harsh or severe as alleged by appellant---Even if reasons were not given in orders passed by respondent Authority, but that technical omission did not cause any prejudice to appellant---Appeal by appellant could not succeed on ground that reasons were not mentioned by Competent Authority and by Departmental Appellate Authority in their respective orders---Appeal was dismissed as time-barred as well as on merits.

Sheikh Abdul Hameed for Appellant.

Nemo for Respondents.

Date of hearing: 8th December, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 117 #

2009 P L C (C.S.) 117

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Abdul Rashid Baloch, Members

KHAIR MUHAMMAD

Versus

CHAIRMAN, NADRA and 2 others

Appeal No.128(K)(C.S.) of 2002, decided on 25th February, 2004.

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

----Rr. 3(c) & 4(1)(b)(ii)---Civil Servants Act (LXXI of 1973), S.13---Compulsory retirement from service---Civil servant was proceeded under Government Servants (Efficiency and Discipline) Rules, 1973 on the charge of demanding illegal gratification from a person, and he was retired under provisions of S.13 of Civil Servants Act, 1973---No proceedings having taken place under S.13 of Civil Servants Act, 1973, order passed against civil servant had become null and void and same was set aside by Service Tribunal and civil servant was reinstated in service---Authorities were directed to conduct de novo proceedings within specified time against civil servant under relevant law affording him full opportunity to defend himself---Question of back benefits was to be decided upon the result of de novo proceedings.

2003 PLC 600 and 2003 SCMR 1720=2003 PLC (C.S.) 1303 ref.

Sanaullah Noor Ghauri for Appellant.

Asif Mangi for Respondents.

Date of hearing: 25th February, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 122 #

2009 P L C (C.S.) 122

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam fiayat, Members

ABDUL KHALIQ

Versus

MANAGING DIRECTOR (POWER) WAPDA, LAHORE and 2 others

Appeal No.811(L)(C.S.) of 2002, decided on 9th January, 2003.

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

----Ss. 2-A & 4---Appeal---Competency---Appellant not filing any departmental appeal against the impugned order---Effect---Remedy under S.4 of Service Tribunals Act, 1973, was available to a civil servant only when he had availed the departmental remedy---Section 2-A of the said Act had been inserted in Service Tribunals Act, 1973 and by fiction of law, appellant had become a civil servant and under said law, appellant had no right to file appeal without filing departmental appeal---Appeal by the appellant, was incompetent, in circumstances.

2001 SCMR 848 and 1992 SCMR 1789 ref.

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

----S. 4---Appeal---Limitation---Delay, condonation of---Corrigendum, in the present case, was issued after about six months from passing order against appellant and appeal before Service Tribunal was filed after more than two and half years from the passing of impugned order---Maximum period of limitation for filing appeal under S.4 of Service Tribunals Act, 1973 would start from the date when the impugned order was passed---Appeal filed by appellant, in circumstances, was time-barred---Even if period of limitation was computed from date when corrigendum was issued, appeal would still be, time-barred---In absence of any good ground for condonation of such inordinate delay, appeal was incompetent being barred by time and was liable to be dismissed on that ground alone.

2001 PLC (C.S.) 212 and 2001 T.D. (Service) 1 ref.

----S. 10---Service Tribunals Act (LXX of 1973), S.4---Transfer---Challenge to---Appeal---Appellant who was transferred from place of working C' to place of workingQ' had challenged the transfer on certain grounds including that transfer order was passed by an incompetent Authority and that he could not be transferred from the circle (in which he was appointed) to any other circle---Appellant had accepted his appointment on the basis of "appointment order"---Terms and conditions. incorporated in "appointment order" overruled all other circulars/instructions relating to terms and conditions of his appointment--One of the Conditions of "appointment order" clearly said that appellant would be required to serve the Authority anywhere within Pakistan---Appellant, in view of said condition, could be transferred anywhere in Pakistan and he could not claim that he could not be transferred from place C' to placeQ'---Contention of appellant that Executive Engineer who was his Appointing Authority only was competent to transfer him, was repelled in view of fact that Executive Engineer was only a delegatee of Authority in which appellant had been employed---Any other Authority which was higher in rank than Executive Engineer was competent to transfer the appellant---Appellant had been transferred competently by the Authority, which was higher than the Executive Engineer---Appellant was not an employee for one circle only, but he was employee for entire Pakistan and could be posted or transferred anywhere in Pakistan---Contention of appellant that he could not be transferred from the circle in which he was appointed, to any other circle, was repelled, in circumstances.

Mian Mahmood Hussain for Appellant.

Umer Sharif for Respondents.

Date of hearing: 9th January, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 178 #

2009 P L C (C.S.) 178

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

Hafiz SANA ULLAH

Versus

DIRECTOR (ADMN.) POWER-II, WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE and another

Appeal No.800(L)(C.S.) of 2000, decided on 30th January, 2004.

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

----S. 4---Appeal---Limitation---Appeal by appellant was resisted on ground that the same was time-barred as appellant had prayed for move-over w.e.f. 1-12-1996 whereas appeal had been filed on 13-9-2000---Validity---Appellant had a continuing cause of action as he had been deprived of extension of his pay by move-over---Every month appellant was getting lesser pay, a fresh cause of action was accruing in his favour every month---In view of provisions of S.23 of Limitation Act, 1908 which dealt with cases of continuing causes of action, appeal by appellant was not barred by time as he had a continuing cause of action and wrong done to him had not been redressed.

(b) Civil service---

----Move-over, entitlement to---Effect of minor penalty imposed on

employee---Authorities had not allowed move-over to employee for the reason that penalty of recovery of amount had been imposed on him---Minor penalty was not a hurdle in promotion of civil servant---When minor penalty was not a hurdle in promotion of a civil servant, it could never be a hurdle in grant of move-over to him because move-over was simply an extension in his pay scale---Imposition of penalty of recovery of amount from him, was not a ground for refusing move-over---Authorities stated that the facility of mover-over had been discontinued by Federal Government vide its notification---Said Notification did not have retrospective effect---Claim of employee was for a period much prior to issuance of said Notification---On basis of said letter/ Notification, Authorities were not justified in refusing grant of move over to employee from date it was due----Authorities were directed to grant move-over to employee from date it was actually due to him---Penalty of recovery of amount would not be a hurdle in grant of move-over to him.

1996 PLC (C.S.) 986 ref.

Muhammad Yasin Bhatti for Appellant.

Umar Sharif for Respondents.

Date of hearing: 30th January, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 186 #

2009 P L C (C.S.) 186

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

MUHAMMAD ARSHAD QURESHI

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY LAHORE and 3 others

Appeal No.32(L)(C.S.) of 2002, decided on 26th April, 2003.

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

----S. 4---Appellate jurisdiction of Service Tribunal---Scope---Appellant filed complaint with Federal Ombudsman which was decided in his favour---Respondents made a representation against order of the Federal Ombudsman which was accepted---Appellant made a fresh representation to the President of Pakistan for review---Service Tribunal could not issue any direction to the President of Pakistan to decide Review Petition filed by the appellant---If the appellant thought that the decision of Federal Ombudsman was correct and decision made by the President of Pakistan on representation of respondents was not correct then only remedy available to the appellant was to invoke the constitutional jurisdiction of High Court---Service Tribunal had limited jurisdiction and could not issue any instruction to the President of Pakistan for disposal of review petition by the appellant at the same time Service Tribunal had no authority to hold that decision of the President of Pakistan was against law.

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

----S. 4---Appeal before Service Tribunal---Limitation---Delay, condonation of---For redressal of grievances with regard to terms and conditions of service, a civil servant had every right to file appeal before Service Tribunal, but for coming to Service Tribunal, a departmental appeal had to be filed by civil servant within 60 days from the date of final decision was passed against him---Civil servant was to wait for 90 days for the decision of Appellate Authority and if that decision was not passed within 90 days, only then he could file appeal in Service Tribunal within next 30 days---If the decision was given by Appellate Authority, then appeal was to be filed within 30 days from the decision---No departmental appeal having been filed, appeal before Service Tribunal was not competent---Claim of appellant related to period from 11-12-1964 to 13-12-1965; but appeal was filed on 16-1-2002---Appeal was hopelessly time-barred---In absence of good ground for condonation of delay, prayer for condonation of delay, was not allowed---Appeal being time-barred was not competent.

Nazeer Ahmad Quraishee for Appellant.

Umar Sharif for Respondents.

Date of hearing: 26th April, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 193 #

2009 P L C (C.S.) 193

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

RIAZ MAHMOOD MIRZA

Versus

CHAIRMAN, WAPDA, LAHORE and another

Appeal No.639(L)(C.S.) 2001, decided on 10th May, 2003.

Civil Servants Act (LXXI of 1973)---

----S. 22---Service Tribunals Act (LXX of 1973), S.4---Fundamental Rules, R.18---Appeal---Maintainability---Appellant went abroad on deputation for a period of two years with the order of Competent Authority, but appellant remained there for more than five years after expiry of his deputation period of two years---On coming to Pakistan respondent Authority refused to take him back in service on the ground that since he had remained absent for a period of more than five years he had ceased to be their employee---Appeal filed by appellant was resisted by respondent Authority on ground that appellant had ceased to be a civil servant by operation of R.18 of Fundamental Rules---Fundamental Rule 18 was not ultra vires of Civil Servants Act, 1973, but it continued as a statutory rule on the strength of S.22 of Civil Servants Act, 1973 and no procedural requirement was needed to give effect to the same---Respondent Authority had passed a legal and valid order by which they had refused to take appellant back into service---Only remedy available to the appellant was to make an appeal to the President of Pakistan for redressal of his grievance.

PLD 1990 SC 666 and 2001 SCJ 130 ref.

Muhammad Anwar Lodhi for Appellant.

Umar Sharif for Respondents.

Date of hearing: 10th May, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 197 #

2009 P L C (C.S.) 197

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

WALI-UR-REHMAN and others

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

Appeals Nos.288(L)(C.S.) to 309(L)(C.E.) of 2002, 49(L)(C.E.), 50(L)(C.E.), 83(L)(C.E.) to 90(L)(C.E.) of 2003, decided on 10th December, 2003.

(a) Civil service---

----Revision of pay scale of retired employees and re-calculation of their retirement benefits---Retired employees of State Life Insurance Corporation had prayed for revision of their pay scale and re-calculation of their retirement benefits---Employees were retired on 5-12-2000 and Corporation enforced a revised pay structure for its officers and staff and said structure was to be implemented w.e.f. 1-1-2000 and was admissible to officers who were in service as on 31-12-2000-7-Employees at time of their voluntary retirement had given a clear undertaking that they would not make any claim of any nature even if pay scales were revised with retrospective effect---In presence of said undertaking employees could not claim re-fixation of their pay and pensionary benefits on the ground that a new pay structure had been introduced w.e.f. 1-1-2000---Undertaking given by employees was very clear and it was neither ambiguous nor uncertain and employees had voluntarily relinquished their claims, past and future---Employees, in circumstances could not claim re-fixation of pay and pensionary benefits on basis of pay structure enforced w.e.f. 1-1-2000.

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

----S. 4---Appeal---Competency---Where Departmental appeal was not filed in time, appeal in Service Tribunal was not competent.

1995 SCMR 1505 ref.

Asmat Kamal Khan for Appellants.

Rana Waqas Latif for Respondents.

Date of hearing: 10th December, 2003.

2009 P L C (C.S.) 251

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

GHULAM SAMDANI HASHAMI

Versus

NESPAK

Appeal No.176(L)(C.E.) of 2000, decided on 20th December, 2003.

Civil service---

----Dismissal from service---Employee who was appointed as typist, was promoted to the position of Accountant, but due to general retrenchment in the employer's establishment due to financial constraints, employer was compelled to drop certain projects and as a result thereof services of the employee along with other employees were dispensed with---Employee had claimed that no general retrenchment had taken place in the employers' establishment and that he was not employed on any particular project, but was an employee, and his services could not be dispensed with on the pretext of general retrenchment---Validity---Employer had to determine as to what was its financial condition and it was not for Service Tribunal to look into that matter---Employer was the best Judge of its financial position and as and when financial condition demanded, employer could lay off its employees, but for that principle to be adopted was `last in service, first to go'---Employee who was appointed as a typist subsequently was promoted as Accountant and in cadre of accountants he was junior-most---Services of the employee, in circumstances, were rightly dispensed with according to procedure.

1999 PLC (C.S.) 1032 and PLD 1987 SC 447 ref.

Nawab Saeedullah Khan for Appellant.

Jawad Hassan for Respondents.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 256 #

2009 P L C (C.S.) 256

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

INTIZAR HUSSAIN

Versus

MANAGING DIRECTOR, HOUSE BUILDING FINANCE CORPORATION, KARACHI and 4 others

Appeal No.79(L)(C.E.) of 2000, decided on 6th January, 2004.

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

----R. 4---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement from service---Appeal---Appellant was compulsorily retired from service on the charge of remaining absent from duty-Appellant who had received more than ten lacs of Rupees towards his pensionary benefits was informed that he would have to refund entire benefits taken by him together with interest in case of his reinstatement, but appellant had stated that he had not a single penny to pay to the respondent-Authority---Request of appellant that he be reinstated and amount received by him towards his pensionary benefits be adjusted from his monthly salary, could not be granted as he had to refund the entire amount received by him in lump sum on his reinstatement---Appellant having shown his inability to refund amount, his appeal against his compulsory retirement was not competent---Appellant, after having received entire pensionary benefits and refusal to refund the same, had no locus standi to file appeal.

Appellant in person.

M. Shamshir Iqbal Chughtai for Respondents.

Date of hearing: 6th January, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 260 #

2009 P L C (C.S.) 260

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL RAHMAN QURESHI

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and 5 others

Appeal No.540(L)(C.S.) of 2000, decided on 3rd December, 2003.

Civil service---

----Increment---When a civil servant reached the maximum of a pay scale and got promotion in the same scale, he could not get any increment---Grant of increment would mean crossing the maximum of that scale.

Nazeer Ahmad Quraishee for Appellant.

Kh. Tariq Masood and Kamran Babar with Sohail Abdullah Abbasi, Accounts Officer and Sanaullah Khan, Assistant Accounts Officer as Departmental Representatives for Respondent No.6.

Date of hearing: 3rd December, 2003.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 426 #

2009 P L C (C.S.) 426

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD SALEEM MALIK

Versus

CHAIRMAN, AGRICULTURAL DEVELOPMENT BANK LIMITED, ISLAMABAD and 6 others

Appeal No.1451(L) of 1999, decided on 10th February, 2004.

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

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Juniors to appellant were promoted, but he was not promoted from the date his juniors were promoted and he was promoted after about five years from their promotion---Promotion of appellant was deferred due to adverse entries in his service record---Alleged adverse remarks were conveyed to appellant, but he did not file any appeal in any judicial forum for expunction of said remarks within stipulated period---Present appeal, so far as it related to expunction of said adverse remarks, was time-barred---Appellant could not claim promotion because of said adverse remarks, from date his juniors were promoted---Even otherwise promotion was not a right, but to be considered for promotion was a right---Authority was competent to decide fitness of appellant for his promotion to higher grade---Appeal against the decision of Authority by which appellant was not found fit for promotion, was not competent.

(b) Mala fides---

----Very strong evidence was required to establish mala fides--Allegation of mala fides was to be substantiated with reality.

----Pro forma promotion---Grant of---Pro forma promotion was to be granted only when promotion was deferred---Pro forma promotion was not to be granted when a civil servant was superseded because of adverse service record.

Muhammad Iqbal Ahmad Khan for Appellant.

Date of hearing: 10th February, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 492 #

2009 P L C (C.S.) 492

[Federal Service Tribunal]

Before Rashid Mahmood Ahmed Ansari and Zaheer Ahmed, Members

SHOAIB IQBAL

Versus

CHAIRMAN/SECRETARY, RAILWAYS and others

Appeal No.668(R)(C.S.) of 2007, decided on 8th November, 2008.

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

----Ss. 3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service after charge-sheeting and holding inquiry against employee on charges of committing gross misconduct, negligence of duty and careless attitude---Inquiry Officer, who conducted the inquiry, found the employee guilty of the charges levelled against him---Major penalty of dismissal from service, however, was too harsh, especially when the co-accused of the employee had been awarded a minor penalty of withholding of increment for two years, which tantamounted to discrimination---Even otherwise charges of inefficiency, slackness and lack of control levelled against the employee did not warrant major penalty which was imposed on him---Impugned order was set aside and major penalty of dismissal from service was converted into minor penalty of withholding of increments for two years from the date of dismissal of the employee from service.

2005 SCMR 1617; 2003 PLC (C.S.) 317 and 2002 SCMR 610 ref.

Abdur Rehman Siddiqui for the Appellant.

Muhammad Shafi Mughal for Respondents.

Date of hearing: 5th November, 2008.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 534 #

2009 P L C (C.S.) 534

[Federal Service Tribunal]

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

IRSHAD NABI QURESHI

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS and others

Appeal No.51(K)(C.S.) of 2001, decided on 10th February, 2004.

(a) Civil service---

----Additional pay---Entitlement---Employee who was serving as Senior Science Teacher, took over charge as Headmaster of School from out going Headmaster, and officiated on that higher post of Headmaster, but was not granted additional pay---Employee having officiated in a higher post and dealt with higher responsibilities, it would be unjust and unfair to deny him any compensation for holding the higher post---Employee was allowed additional pay from the day he held the post of Headmaster.

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

----S. 9---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Promotion---Entitlement---Supersession---Appellant was considered for promotion in year 2000, but his case was deferred for promotion for want of his A.C.Rs. for the years 1996 to 1998 and two persons junior to him were promoted---Fact that appellant was subsequently promoted had indicated that no adverse entries were there in his A.C.Rs. for the years 1996 to 1998---In the event of deferment appellant had to be promoted from the date his next juniors were considered for promotion---Deferment of promotion was distinct from supersession and was absolutely unjust and unfair to deprive appellant of promotion along with his juniors---Appellant needed to be allowed promotion from the date his juniors were promoted on the principle of "next below rule".

1996 SCMR 1297; 2003 PLC (C.S.) 526; 1994 PLC (C.S.) 411; 1984 PLC (C.S.) 1616; 1992 PLC (C.S.) 1036; 1999 PLC (C.S.) 112; 1997 PLC (C.S.) 127; 1992 PLC (C.S.) 95; 1991 PLC (C.S.) 224; 1990 SCMR 92; 1994 PLC (C.S.) 138; 1998 SCMR 208; PLD 1991 SC 1118; PLD 1994 SC 539; 1997 PLC (C.S.) 127; 1998 SCMR 736; 1973 SCMR 304; 1985 SCMR 1349 and 1996 SCMR 850 ref.

----"Deferment of promotion" and "supersession"---Expressions having distinct concepts.

Sanaullah Noor Ghouri for Appellant.

Latif Saghar for Respondents.

Date of hearing; 27th January, 2004.

PLCCS 2009 FEDERAL SERVICE TRIBUNAL 604 #

2009 P L C (C.S.) 604

[Federal Service Tribunal]

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

ABDUL SAMI ANSARI

Versus

MANAGING DIRECTOR, HOUSE BUILDING FINANCE CORPORATION and others

Appeal No.1154(K)(C.E.) of 2001, decided on 10th February, 2004.

House Building Finance Corporation Service Regulations, 1957---

---Reglns. 4, 13 & 17---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Pre-mature retirement---Increment for the year of retirement---Entitlement---Appellant who joined the organization as L.D.C., rose up to post of Manager (Grade-11)---Appellant obtained pre-mature retirement, but increment for the year of his retirement was not included in his terminal benefits---Appellant filed representation to Authority claiming one increment as he worked for more than six months in the year of his retirement---Representation of appellant was rejected on basis of letter issued by Finance Division stating therein that employees of the organization did not fall within definition of "civil servant" and that instruction regarding six months' condition was applicable to "civil servants" only---Finance Division issued another clarification subsequently providing that civil servants retiring during period from 1st of June and 1st of December of a year, were entitled to usual annual increment---Appellant obtained premature retirement w.e.f. 1-11-1999---Regis. Nos.4 and 13 of House Building Finance Corporation Service Regulations, 1957, had clearly stipulated that Government Rules would be applicable in matters where there were no Regulations---In absence of Regulations, Government Regulations on the subject indicated in Finance Division's Office Memorandum would be applicable and appellant was entitled to one increment on his retirement which was 1-11-1999 as he, on that date had rendered more than six months service---Authority was directed to recalculate pensionary benefits of appellant by adding one increment as claimed by him.

2002 PLC (C.S.) 1416 and 1996 PLC (C.S.) 537 ref.

Sanaullah Noor Ghouri for Appellant.

Miss Sameera Usto for Respondents.

Date of hearing: 26th January, 2004.

Fareed-ul-Hassan Asstt. A.-G. Sindh for Government of Sindh.

Nemo for Punjab and Balochistan Governments.

Nemo for Federal Government.

Date of hearing: 17th February, 2009.

Islamabad

PLCCS 2009 ISLAMABAD 83 #

2009 P L C (C.S.) 83

[Islamabad High Court]

Before Sardar Muhammad Aslam, C. J. and Syed Qalb-e-Hasan, J

Dr. JAMAL ZAFAR

Versus

Dr. NIGHAT BILAL and 2 others

I.C.A. No.2 of 2003 in Writ Petition No.2334 of 2001, decided on 30th April, 2008.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.12(2) & Art.151---Intra-court appeal---Limitation---Constitutional petition was decided on 2-12-2002---Application for obtaining certified copy of impugned judgment was made on 4-12-2002, which was obtained on 19-12-2002---Intra-court appeal against decision of constitutional petition was filed on 3-1-2003---Validity---Appellant was not expected to hurriedly file an appeal without examining reasons given against him in impugned judgment---Time spent in obtaining such certified copy was excluded---Appeal was within time.

Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University, Islamabad and another v. Mst. Zahra PLD 2005 SC 153; Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974 SC 344; Wali Muhammad and others v. Wali Muhammad PLD 1974 SC 56; Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another PLD 1963 SC 147 and Khalid Mehmood Watoo v. Government of Punjab 1998 SCMR 2280 ref.

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

----Arts. 199 & 212---Civil Servants Act (LXXI of 1973), Ss.8 & 9---Constitutional petition---Civil servants' prayer for determination of his seniority for promotion to Grade-19---Validity---Such dispute of seniority related to terms and conditions of petitioner's service---High Court could not entertain and adjudicate upon such matter due to bar contained in Art.212 of the Constitution---Constitutional petition was dismissed in circumstances.

Khalid Mehmood Watoo v. Government of Punjab and others 1998 SCMR 2280 and Asad Ullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 ref.

----S. 9---Seniority---Contest between senior most regular employee of department and deputationist---Absorption of respondent in borrowing department on permanent basis upon directive of Prime Minister without considering case of such regular employee---Validity---Such absorption was contrary to law and policy governing appointment on deputation---Deputationist could not sit over head of such senior employee in the department.

Ibad-ur-Rehman Lodhi for Appellant.

Qazi Muhammad Jamil for Respondents.

PLCCS 2009 ISLAMABAD 291 #

2009 P L C (C.S.) 291

[Islamabad High Court]

Before Syed Qalb-i-Hassan, J

Miss NAGHMA SEHAR KHAN

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and 3 others

Writ Petition No.956 of 2007, decided on 15th December, 2008.

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

----Ss. 3, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Charge of absence from duty without permission--- Dismissal of departmental appeal on 20-2-2004---Conversion of such penalty into stoppage of annual increments by Service Tribunal on petitioner's appeal vide judgment, dated 12-1-2005---Dismissal of petition for leave to appeal by Supreme Court vide order, dated 16-10-2008---Non-implementation of Tribunal's judgment by authority---Plea of authority that constitutional petition stood abated in view of Supreme Court's judgment reported as PLD 2006 SC 602---Validity---Tribunal's judgment, dated 12-1-2005 after dismissal of petition for leave to appeal by Supreme Court had attained finality, which authority was bound to implement in letter and spirit---Such reported judgment of Supreme Court would not attract to facts of the present case---High Court directed authority to implement Tribunal's judgment within specified time.

Muhammad Mubeen-ul-Islam and others, v. Federation of Pakistan PLD 2006 SC 602 ref.

Muhammad Islam Sandhu for Petitioner.

Anees-ud-Din for Respondents.

Date of hearing: 3rd December, 2008.

PLCCS 2009 ISLAMABAD 305 #

2009 P L C (C.S.) 305

[Islamabad High Court]

Before Dr. Sajid Qureshi, J

SHAHIQ AHMAD KHAN

Versus

SENATE SECRETARIAT, ISLAMABAD through Secretary

Writ Petition No.121 of 2008, decided on 25th November, 2008.

Federal Treasury Rules---

----R. 215---Finance Division Office Memorandum No.F-4(2)R-2/96, dated 12-8-2002---Civil Service Regulations, Regln.361---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pay and allowances, recovery of---Petitioner was employee of National Construction Limited and his services were requisitioned by Senate Secretariat---Petitioner was directed to refund overpaid pay and allowances received by him during service---Validity---Employees of National Construction Limited were not civil servants and pay on appointment to a civil post under government was not protected under prescribed policy of Government circulated through Finance Division Office Memorandum No.F-4(2)R-2/96, dated 12-8-2002---National Construction Limited was not a pensionable organization although it had a contributory provident fund scheme for its retiring employees, therefore, service of petitioner rendered in National Construction Limited could not be counted towards pension in terms of Regln.361 of Civil Service Regulations---Overpaid pay and allowances could be recovered from petitioner under R.215 of Federal Treasury Rules---High Court declined to interfere in the demand made by authorities---Petition was dismissed in circumstances.

Chairman Minimum Wage Board Peshawar v. Fiaz Khan Khattak 1999 SCMR 1004; Chairman Selection Committee King Edward Medical College v. Wasif Zameer Ahmad 1997 SCMR 15; Abdul Hafeez Abbasi v. M .D., PIAC 2002 SCMR 1034; Abdul Samad v. Federation of Pakistan 2002 SCMR 71; Engineer Naraindas v. Federation of 'Pakistan 2002 SCMR 82 and Amjad Hussain v. Secretary Finance Division 1998 SCMR 1442 ref.

M. Shoaib Shaheen for Petitioner.

M. Waqar Abbasi and Shaukat Javed (Section Officer) for Respondents.

Date of hearing: 12th November, 2008.

PLCCS 2009 ISLAMABAD 323 #

2009 P L C (C.S.) 323

[Islamabad High Court]

Before Dr. Sajid Qureshi, J

Capt. (R.) S. MUMTAZ AHMED INAYATULLAH

Versus

CHIEF COMMISSIONER and others

Writ Petition No.1823 of 2007, decided on 29th April, 2008.

Pakistan Boy Scouts Association (Service) Rules, 1995---

----R. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate remedy---Petitioner was patron member of Pakistan Boy Scouts Association and had assailed appointment of respondent as Secretary of the Association---Validity---Minutes of National Council Meeting had clearly approved name of respondent as Secretary and due process had taken place for selection of candidate---Provision for appeal/representation was available under R.14 of Pakistan Boy Scouts Association (Service) Rules, 1995, whereby an employee aggrieved by any order, within thirty days of communication to him of such order, could make an appeal/representation against the same to the authority---Petition was not an aggrieved person nor an aggrieved party in the matter and even if he was affected, he had right to make representation/appeal by invoking a domestic remedy, which he failed to do---Authorities had followed rules and no illegal and unlawful appointment had been made---Petition was dismissed in circumstances.

Ali Murad Baloch for Petitioner.

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

Mujtiba Haider Sherazi and Moazam Ali Rizvi for Respondents Nos.2 and 3.

Respondent No.4 in person.

Date of hearing: 23rd April, 2008.

PLCCS 2009 ISLAMABAD 348 #

2009 P L C (C.S.) 348

[Islamabad High Court]

Before Muhammad Munir Peracha, J

ABDUL WADOOD KHAN

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN and 3 others

Writ Petition No.2795 of 2005, decided on 14th October, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Petitioner, a Grade 20 officer, was considered for promotion to BS-21 by the Central Selection Board in its meeting, but he was superseded---Supersession of the petitioner in the meeting of the Central Selection Board on the ground of negative reports from the Intelligence Agencies particularly when petitioner was not confronted with such reports, was illegal---Supersession of the petitioner after about 5 years from the date when he was found fit for promotion, was declared to have been made without lawful authority having no legal effect--Supersession of the petitioner would be treated to be a deferment.

Muhammad Ashraf V. Government of Pakistan through Secretary Establishment 2007 PLC (C.S.) 669; Muhammad Akbar Khan Hoti v. Federation of Pakistan 2006 PLC (C.S.) 619 and Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron v. Government of Pakistan, Pak Secretariat 2003 PLC (C.S.) 503 ref.

Abdul Rahim Bhatti for Petitioner.

M. Bilal, Babar Bilal and Ms. Shazia Bilal with Maqbool Elahi, Second Secretary, FBR for Respondent.

Date of hearing: 22nd September, 2008.

PLCCS 2009 ISLAMABAD 368 #

2009 P L C (C.S.) 368

[Islamabad High Court]

Before Syed Qalb-i-Hassan, J

MUHAMMAD ZULFIQAR AHMED and 25 others

Versus

CHAIRMAN, PAKISTAN ATOMIC ENERGY COMMISSION and 2 others

Writ Petitions Nos.1866 of 2006, 626, 1004, 1015, 2383, 2378 of 2005, 2089, 2237, 2736, 3113 of 2006, 1089, 1112, 1201 and 2449 of 2007, decided on 21st July, 2008.

National Command Authority Ordinance (LXX of 2007)---

----Ss. 3, 7, 9 & 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Counsel for the petitioners had argued that Pakistan Atomic Energy Commission, though had been absorbed in strategic organization; and its employees were deemed to be employees of National Command Authority, but National Command Authority Ordinance, 2007 by virtue of which the services of the petitioners were absorbed in the National Command Authority having been promulgated by the President of Pakistan being Chairman of National Command Authority; services of the petitioners were governed by statutory regulation under Employers Services Regulations, 2007; and that constitutional petitions filed by the petitioners, were maintainable---Further contention by the counsel for the petitioner was that, assuming without conceding, that the rules were not statutory in nature, even then the constitutional petitions were maintainable in view of bar provided in S.22 of National Command Authority Ordinance, 2007---Perusal of different provisions of National Command Authority Ordinance, 2007, showed that Authority established under S.3 of the Ordinance, had been fully empowered in respect of appointment of the officers and employees, including their terms and conditions and make rules and regulations for carrying out the objectives of said Ordinance---National Command Authority Employees Services Regulations, 2007 were promulgated in supersession of all existing regulations which were framed earlier for regulating the terms and conditions of strategic organizations---Where power to frame regulations was given to the Corporation or Authority; then such regulations were not to be treated as statutory rules/regulations, the breach whereof could be enforced by filing a suit and not by constitutional petition and that services of the employees of the Pakistan Atomic Energy Commission were not governed by statutory rules---Petitioners were being governed by non-statutory rules/regulations and the provisions thereof, could not be enforced through constitutional jurisdiction of High Court under Art.199 of the Constitution---Civil Courts were courts of ultimate jurisdiction and could examine exercise of powers by any special authority beyond its jurisdiction stated in law regulating special authority---Jurisdiction could not be taken away by the rules of non-statutory bodies---Petitioners could enforce their rights at appropriate forums---Constitutional petitions were dismissed.

Asad Bashir v. Chairman, Board of Intermediate and Secondary Education, Lahore and 2 others 2006 PLC (C.S.) 110 and M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and 2 others 1994 SCMR 1024 ref.

Haider Hussain, Mumtaz Ahmad, Syed Muhammad Ali Shah, Abdul Rahim Bhatti, Syed Muzaffar Ali Shah, M. Aslam Malik, Muhammad Ramzan Khan, Muhammad Shoaib Shaheen, Sajid Khan Tanoli, L.K. Sehraee, Sajjad Haider Malik for Petitioners.

Rizwan Ibrahim Satti, Shahid Mehmood Khokhar, Abdul Rehman Siddiqui, Ms. Shirin Imran for Respondents.

PLCCS 2009 ISLAMABAD 403 #

2009 P L C (C.S.) 403

[Islamabad High Court]

Before Raja Saeed Akram Khan, J

SAJID SOHAIL

Versus

SYNDICATE OF QUAID-I-AZAM UNIVERSITY, ISLAMABAD through Chairman and 2 others

Writ Petition No.219 of 2008, heard on 16th May, 2008.

(a) Quaid-i-Azam University Act (XXVIII of 1973)---

----Ss. 8, 13, 22, 33, 34 & 37---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Petitioner was appointed as Registrar of the University on regular basis, but his services were terminated by the vice-chancellor while exercising the powers under S.13(3) of Quid-i-Azam University Act, 1973---Validity---Vide appointment letter, services of the petitioner were on probation for the period of two years and he was yet to be confirmed---Object of probation seemed to be to assess the performance of the petitioner---Services of petitioner having not been found satisfactory, his services were terminated---Petitioner was governed by the terms and conditions in the appointment letter---Petitioner was appointed on probation for 2 years and his services were subject to the terms and conditions mentioned in the appointment letter---Before completion of probation period his services were terminated in view of Clause-B of the appointment letter on ground that his work was not found satisfactory by the competent authority---Petitioner being governed by the terms and conditions mentioned in the appointment letter, issuance of show cause notice to petitioner or providing opportunity of hearing was not required in his case---Even otherwise the petitioner was having remedy under S.34 of By-Laws of the University in the shape of filing of review against order passed by the authorities---Under Quaid-i-Azam University Act, 1973 notice was only required to be issued to the employees who had been appointed on permanent basis, whereas the petitioner was appointed on probation whose services were subject to terms and conditions mentioned in his appointment letter---Competent authority having found work of petitioner unsatisfactory, his services were rightly terminated---Petitioner was not having vested right of issuance of notice or opportunity of hearing before termination of service---Constitutional petition was dismissed.

Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Commission of Income Tax, East Pakistan v. Fazlur Rehman PLD 1964 SC 410; The University of Dacca through its Vice Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; 1994 SCMR 2232; Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330; Federation of Pakistan and others v. Tahir Latif 2007 SCMR 152; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali, 1992 SCMR 1093; Sindh Road Transport Corporation v. Muhammad Ali, 1990 SCMR 1404; Syed Match Company Ltd. v. Authority under Payment of Wages Act and others, 2003 SCMR 1493; Pakistan Railways v. Abdul Bari Kan and others, PLD 2001 SC 127; Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar 2003 PLC (C.S.) 285; Pakistan (Punjab Province) v. Riaz Ali Khan 1982 SCMR 770 and Amjad Ali and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125 ref.

(b) Words and Phrases---

----'Probation' defined and explained.

Punjab Road Transport Board v. Muhammad Fazil Hussain and an other PLD 1983 Lah. 531 ref.

Ch. Afrasiab Khan for Petitioner.

Sheikh Riaz-ul-Haq for Respondents.

Date of hearing: 16th May, 2008.

PLCCS 2009 ISLAMABAD 428 #

2009 P L C (C.S.) 428

[Islamabad High Court]

Before Syed Qalb-i-Hassan, J

GHULAM SHABBIR and 2 others

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and another

Writ Petition No.253 of 2007, decided on 11th July, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 19---Constitution of Pakistan (1973), Arts.199 & 25---Constitutional petition---Pensionary benefits---Entitlement---Petitioners who joined service, were retired; they applied for pensionary benefits, but same were refused---Validity---Authority had conceded the claim of the petitioners, whereas Federation of Pakistan had contested the petition on the ground that the petitioners were not eligible for grant of pensionary benefits as they had not completed 25 years service in the department---Contention of the counsel for the petitioners was that in another case of the same Department Service Tribunal as well as Supreme Court had allowed pensionary benefits to a retired Deputy Director of the department and that on the same analogy and principle, the petitioners were also entitled for the same benefits being employees of the same Department---Article 25 of the Constitution, which guaranteed the equal protection of law among the persons who were equally placed and fell under the same category, were entitled for the same benefit---Petitioners, in circumstances, were also found entitled to grant of pensionary benefits from the Authority---Authority was directed to grant pensionary relief to the petitioners.

Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; Federation of Pakistan and others v. Qamar Hussain Bhatti PLD 2004 SC 77 and Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477 ref.

Muhammad Bashir Khan for Petitioners.

Khalid Abbas Khan D.A.-G. for Respondents.

Date of hearing: 20th June, 2008.

----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Res judicata, principle of---Applicability---Respondents contested the petition on the ground that petitioners had applied earlier in similar matter before another High Court to join them as party which was decided against them which had created res judicata under S.11 C.P.C.---Validity---Plea of res judicata was not available to respondents for the reason that case of petitioners was not decided by that High Court on merits, nor even they were impleaded as a party in that earlier petition---As the case of petitioners was not finally decided by another High Court, therefore, bar of res judicata was not attracted in the circumstances.

Faiz Ghanghro for Petitioners.

Usman Shaikh for Respondents.

Badar Alam, D.A.-G. for the Federation.

Date of hearing: 15th May, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 28 #

2009 P L C (C.S.) 28

[Karachi High Court]

Before Azizullah M. Memon Actg. C.J. and Khalid Ali Z. Qazi, J

TANVEER-UR-REHMAN

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION

Constitutional Petition No.2042, 2043 and 2044 of 2007, decided on 3rd July, 2008.

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

----Arts. 185(3) & 189---Leave granting order passed by Supreme Court---Effect---Such orders are not binding in nature.

Shipyard K. Damen International Karachi v. Karachi Shipyard Engineering Works Ltd. PLD 2003 SC 191 and Major (R) Shehzad H. Khan v. Government of Punjab 2001 PLC (C.S.) 249 rel.

(b) Precedents---

----In case of any conflict, judgment of larger Bench of Supreme Court prevails.

Javed Iqbal v. Province of Sindh 2003 MLD 22 rel.

----Interlocutory order---Jurisdiction---Court/authority, which has the power to pass final order also has the power to pass an interlocutory order.

Sindh Employees' Social Security Institution v. Adamjee Cotton Mills PLD 1975 SC 32; Al-Jamiaul Arabia v. Syed Sibt Hasan 1999 YLR 1634 and Shahid Mehmood v. K.E.S.C. 1997 CLC 1936 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Injunctive relief---Principle---Where action of a statutory corporation is based upon mala fides, arbitrariness, unfairness and unreasonableness, the Court is empowered to grant injunctive relief.

(e) Master and servant---

----Concept of master and servant cannot be stretched to confer unbridled powers so as to act whimsically, capriciously or in violation of principles of natural justice and well-settled norms of law and justice.

Farasat Hussain v. P. N. S. C. 2004 SCMR 1874 rel.

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

----Art. 199---Civil Procedure Code (V of 1908), S.9---Constitutional petition/civil suit--- Seeking of declaration/injunction/direction---Maintainability---In case of employees of statutory corporation if service rules are not statutory, declaration, injunction or direction can be sought provided that the employer is an entity which is controlled or majority of which is owned by the government; that the action complained of is in violation of law or other standards found in public/administrative law---Categories found in public/administrative law cannot be treated as static since "as an ideation judicial review has always been a dynamic concept; that where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action for damages; and that the employer in addition or in alternative will also have the right to pursue the claim for damages in context of the particular case.

Shahid Mehmood v. K.E.S.C. 1997 CLC 1936; Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046; Messrs Presdson Manufacturing Ltd. v. Secretary, Ministry of Petroleum 1995 MLD 15 and Qaldaro v. The State 1997 MLD 1632 rel.

(g) Pakistan International Airline Corporation Act (XIX of 1956)---

----S. 30---Pakistan International Airline Corporation Employees (Service and Discipline) Regulations, 1985---Pakistan International Airline Corporation Administrative Order 17 of 2001---Cockpit Crew Service Rules, clause 4.1.4---Constitution of Pakistan (1973), Art.199---Constitutional petition--Contract employees---Seniority---Petitioners were pilots on contract basis and claimed seniority among other contract employees---Validity---Right to claim inter se seniority vis-a-vis contractual employees had to flow from the contract itself---Contracts/agreements of petitioners did not confer any such right upon them---If no seniority could be claimed by contractual employee it was meaningless whether such claim was pitched against regular employees or contractual employees--Petition was dismissed in circumstances---[Muhammad Asghar v. State Life Insurance 2007 PLC (C.S.) 138 dissented from].

Raziuddin v. Chairman, PIAC PLD 1992 SC 531; PIAC v. Shahabuddin 1993 PLC (C.S.) 1=1993 SCMR 299; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 194; Anwar Hussain v. A.D.P. PLD 1984 SC 170; Anisa Rehman v. PIAC 1994 SCMR 2232; Nadeem Ahmed v. PIAC 1998 PLC 19; Shahid v. PIAC 1998 PLC (C.S.) 773; H.B.L. v. Ziaul Hassan Kazmi 1998 SCMR 60; U.B.L. v. Ahsan Akhter 1998 SCMR 68; Muhammad Ashraf v. D.G., M.D.A. 2000 PLC (C.S.) 796; Abdul Hafeez Abbasi v. M.D. PIAC 2002 SCMR 1034; Ghulam Mustafa Khairati v. FOP and others 2005 PLC (C.S.) 417; Muhammad Mubeen-us-Salam and others v. FOP PLD 2006 SC 602; Pakistan v. Public-at-Large PLD 1987 SC 304; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Macdonal Layton v. Punjab Employees Social Security Institution PLD 1991 SC 1055; Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmed 1995 SCMR 1593; Government of N.-W.F.P. v. I.A. Sherwani PLD 1994 SC 72; R. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 QB 864; R v. Home Secretary, Ex parte Benwall (1985) QB 554; Council of Civil Service Union v. Minister for Civil Service (1985) AC 374; Malloch v. Aberdeen Corporation (1971) 1 WWLR 1578; Dehli transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 Sc 101; Bombay Telephone Canteen Employees Association v. Union of India AIR 1997 SC 2817; Jamal-ur-Rehman v. Secretary to Government PLD 1990 SC 719; Maj. (Retd.) Muhammad Matlub Khan v. G.O.P. 1993 SCMR 798 and Fida Muhammad Sanai v. Chairman F.S.T. Islamabad 1997 PLC (C.S.) 430 ref.

Muhammad Asghar v. State Life Insurance 2007 PLC (C.S.) 138 dissented from.

Umar Lakhani and Ishrat Alvi for Petitioners.

Khalid Javed for Respondent.

Date of hearing: 21st May, 2009.

2009 P L C (C.S.) 155

[Karachi High Court]

Before Khilji Arif Hussain and Bin Yamin, JJ

SOHAIL JABBAR MALIK

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petitions Nos.D-1619, 868, 1616, 1620 to 1623, 1646, 1650 to 1653, 1736, 1754, 1756, 1867 and 1888 of 2008, decided on 30th September, 2008.

Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance (XXIX of 2006)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of prosecutors---Procedure---Petitioners applied for the posts of prosecutors and all prescribed procedures were followed---After inviting applications through Press, Public Service Commission conducted written test and then conducted interviews of successful candidates, thereafter recommended their names for appointment---Authorities, after following all required procedure, issued offer of appointment to petitioners, who submitted required documents along with acceptance letter within prescribed time but authorities, declined to issue appointment letters---Validity---Authorities after accepting recommendations, could not recall the same and/or scrape recommendation once accepted---High Court directed the authorities to issue posting orders and in case such posting orders were not issued then petitioners would be entitled for payment/salary from such date--Constitutional Petition was allowed in circumstances.

Manthar Ali M. Jatoi v. The Government of Sindh 1988 PLC (C.S.) 344, Salman Adil Siddiqui and others v. Province of Sindh and others 2008 PLC (C.S.) 220; Chief Secretary, Sindh, Karachi and another v. Haji Muhammad Punjal Narejo 2007 PLC (C.S.) 343; Secretary, Finance and others v. Ghulam Safdar 2005 SCMR 534; Chairman Regional Transport Authority v. Pakistan Mutual Insurance Company PLD 1991 SC 14; Muhammad Rasheed v. Government of Punjab and others 2006 SCMR 1082 and Dr. Marvi Shah and others v. Province of Sindh and others C.Ps. Nos.D-1371, 1475 and 1395 of 2008 ref.

Anwar Mansoor Khan for Petitioner.

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

Abdul Saleem Memon.

PLCCS 2009 KARACHI HIGH COURT SINDH 182 #

2009 P L C (C.S.) 182

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Zafar Ahmed Khan Sherwani, JJ

Dr. MARVI SHAH and 9 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

C.Ps. Nos.D-1371, D-1475 and 1395 of 2008, decided on 24th July, 2008.

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

----Art. 199---Sindh Public Service Commission (Functions) Rules, 1990, R.4(i)---Constitutional petition---Medical Officer (BS-17), contract posts of---Non-issuance of appointment letters in favour of petitioners despite having cleared written tests held by authority and interviews held by Public Service Commission---Validity---Such posts were not permanent but were contractual for one year, thus, holding written test thereof through Commission was not mandatory in view of R.4(i) of Sindh Public Commission (Functions) Rules, 1990---Recommendations of Commission could not be brushed aside or distracted by new Government set up merely for reason that procedure followed was not according to their wishes---Petitioners had appeared in selection process according to procedure laid down by previous Government---Transparency would be required in appointments of all officers in Government service even on contract basis---Process of selection once completed in an orderly manner could not be upset in an arbitrary manner without disclosing a single instance of obscurity or foul play---Petitioners were being denied such appointments for no valid reasons---High Court directed Authority to either approve recommendations of Commission and issue appointment letters to petitioner within one month or pass a speaking order for declining same; and that if no decision was taken within such time, then recommendations of Commission would be deemed to have been approved by authority and petitioners duly appointed with effect from date of expiry of such time.

Salman Adil Siddiqui and others v. Province of Sindh and others 2008 PLC (C.S.) 220 fol.

(b) Civil service---

----Appointment of officers in Government service on contract basis---Criteria---Transparency would be required in such appointments---Process of selection once completed in an orderly manner could not be upset in an arbitrary manner without disclosing a single instance of obsecurity or foul play.

Muhammad Nawaz Sheikh and Syed Ghulam Nabi Shah for Petitioners.

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

2009 P L C (C.S.) 218

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Dr. Qammaruddin Bohra, JJ

ABDUL SALIM SARHADI

Versus

CIVIL AVIATION AUTHORITY and another

C.P. No.2291 of 2006, decided on 4th May, 2008.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer from one place of working to other place of working---Petitioner, who was serving as Specialist Vehicle Driver at place K' having been transferred to placeM', had challenged his said transfer in constitutional petition after his grievance was not redressed by competent authority---Validity---Petitioner was transferred after completion of prescribed tenure of three years to meet the urgent requirements due to shortage of Specialist Vehicle Drivers---No discriminatory attitude had been adopted by the competent authority and case of the petitioner had no relevance to other drivers as they had no training/experience for operation of specialist operational fire vehicles---Allegations of the petitioner regarding discrimination, unjust and mala fide treatment were misconceived and no misuse of power was undertaken by the authority in the case of the petitioner---Even otherwise transfer was a part of service and the petitioner was liable to serve at all places as per service requirement.

Z.U. Mujahid for Petitioner.

Faisal Kamal for Respondents Nos. 1 and 2.

Ms. Soofia Saeed Shah, Standing Counsel for Respondent No.3.

PLCCS 2009 KARACHI HIGH COURT SINDH 229 #

2009 P L C (C.S.) 229

[Karachi High Court]

Before Azizullah M. Memon, C.J. and Khalid Ali Z. Qazi, J

Mrs. NASEEM M. QADRI

Versus

FEDERATION OF PAKISTAN and another

C.P. No.D-1388 of 2007, decided on 12th August, 2008.

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

----S. 9---Promotion---If service benefits had actually accrued to an employee, but for one reason or the other such benefits could not be awarded to him, then irrespective of the fact whether he had retired from service or not, the department concerned would still have to 'consider his case for such promotion and to allow him/his benefits of such promotion, even after his retirement.

Noor Wali Khan Afridi and Dhani Bux Otho for Petitioner.

Aamir Raza Naqvi, D.A.-G.

PLCCS 2009 KARACHI HIGH COURT SINDH 245 #

2009 P L C (C.S.) 245

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Bin Yamin, JJ

Dr. Prof. Syed QASIM MEHDI

Versus

REGISTRAR, UNIVERSITY OF KARACHI and 2 others

C.P. No.D-635 of 2008, decided on 8th August, 2008.

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

----Art. 199---Constitutional petition---Contract employment--Termination of contract---Principle of natural justice---Petitioner was appointed as Director-General of an institution on contract basis for a period of four years---Authorities terminated the contract of petitioner without giving any opportunity of hearing to him, before completion of period of contract---Validity---Once statute conferred benefit .by advancing an onerous obligation under contract entered into, then employer or one of the executor of it could not deviate from the same without any reasoning---Rules and regulations framed under any Act, even if taken under the rule of master and servant did not confer on the employer unfettered power to act in violation of the principles of natural justice and well-settled norms of justice---Natural justice required that a person must be allowed an adequate opportunity to present his case where certain interests and rights might be adversely affected by a decision maker---Particularly an administrative decision must be based upon logical proof and material evidence---High Court, in exercise of constitutional jurisdiction, set aside the decision of authorities and directed the authorities to reinstate the petitioner in the institution---Constitutional petition was allowed in circumstances.

2001 SCMR 934; 2008 PLC (C.S.) 715; 2005 SCMR 57; 2004 SCMR 1874 and Pakistan State Oil Company Ltd. v. M. Akram Khan and others 2004 PLC (C.S.) 992 ref.

(b) Natural justice, principles of---

----Employee and employer---Principles of natural justice---Applicability---Concept of natural justice is not limited to proceedings before judicial or quasi-judicial authority but it extends to those authorities also who have been empowered by statute to decide and determine respective rights of parties---If once an employer itself has framed rules for its domestic purpose, then such employer is bound to follow the same---Any deviation from such rules and regulations would amount to violation of the principles of natural justice.

Abdul Qadir Khan and Mirza Sarfraz Ahmed for Petitioner.

Muhammad Tasnim and Asif Mukhtar for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 258 #

2009 P L C (C.S.) 258

[Karachi High Court]

Before Ali Sain Dino Metlo and Arshad Noor Khan, JJ

AFTAB AHMED KOLACHI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 2 others

Constitutional Petition No.D-22 of 2008, decided on 22nd May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Bank employee---Dismissal from service---Payment of back-benefits---Employee sought quashment of fresh inquiry on the ground that non-completion of the same within the period prescribed by the Service Tribunal vitiated the proceedings---Validity---Directions for the performance of official duties within a particular time were generally construed as directory and not mandatory unless expressly provided otherwise---Many statutes contained time frame for the completion of proceedings but that did not mean that non-completion of the same would have the effect of vitiating the proceedings---Constitutional petition was disposed of directing the bank to pay back-benefits to the petitioner and to complete inquiry expeditiously.

Zahooruddin Shaikh v. Pakistan Atomic Energy Commission 2007 PLC (C.S.) 959 ref.

Imdad Ali Ujjan for Petitioner.

Niaz Ahmed Shaikh for Respondents Nos.2 and 3.

PLCCS 2009 KARACHI HIGH COURT SINDH 263 #

2009 P L C (C.S.) 263

[Karachi High Court]

Before Abdul Rasheed Kalwar, J

Dr. NASAR ULLAH

Versus

ABDUL MAJEED SOOMRO and others

Civil Appeal No.2 and C.M.A. No.120 of 2008, decided on 24th December, 2008.

(a) West Pakistan Civil Servants Pension Rules, 1963---

----R. 1.6 (ii)---Pension and gratuity are the grants of government in favour of civil servant.

(b) Succession Act (XXXIX of 1925)---

----S.372---West Pakistan Civil Servants Pension Rules, 1963, Rr.1.6(ii), 4.7, 4.9 & 4.10---Federal Employees Benevolent Fund and Group Insurance Act (II of 1969), S.2(5)---Inheritance (Tarka) of deceased---Determination---Legal heirs, entitlement---Deceased civil servant was issueless and was survived by husband, two brothers and two sisters---All legal heirs applied for succession certificate regarding gratuity, group insurance, pension, salary of earned leave and financial assistance of deceased civil servant---Trial Court granted certificate to all legal heirs and directed to distribute the amounts according to their shares---Plea raised by husband of deceased was that only salary of earned leave was Tarka of deceased which could be distributed among all legal heirs and rest of the amounts did not include in definition of Tarka and, therefore, brothers and sisters of deceased were not entitled to any share therein---Validity---Pension and gratuity could not be distributed among brothers and sisters of deceased as they were excluded under the provisions of Rr.4.9 & 4.10 of West Pakistan Civil Servants Pension Rules, 1963, from receiving share of pension and gratuity due to survival of husband of deceased civil servant---Appellant being surviving husband of deceased government servant was exclusively entitled to pension and gratuity, whereas brothers and sisters of the deceased were not entitled to receive the same---Amount of financial assistance by its nature did not fall within the definition of Tarka as it was not the asset of deceased in her life time but the same was grant of government, granted on the death of civil servant---High Court declared husband of deceased civil servant as entitled to receive gratuity, pension and group insurance exclusively---Brothers and sisters as well husband of deceased civil servant were entitled to have their share according to Sharia in salary of earned leave and financial assistance---High Court in exercise of appellate jurisdiction, modified the order passed by Trial Court---Appeal was allowed accordingly.

PLD 1991 SC 731 and Mst. Amtul Habib v. Mst. Musarrat Parveen PLD 1974 SC 185 rel.

1999 YLR 759 and 2006 YLR 3236 distinguished.

Muhammad Sulleman Unar for Appellant.

K.B. Lohano for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 280 #

2009 P L C (C.S.) 280

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Khalid Ali Z. Qazi, J

Engineer SAMIULLAH MUGHAL

Versus

CHAIRMAN, PAKISTAN ENGINEERING COUNCIL and 2 others

Constitutional Petition No.D-2465 of 2007, decided on 13th December, 2008.

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

----Ss. 22 & 27---Pakistan Engineering Council Employees Service Rules, 1999, R.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Petitioner, a civil servant in BPS-18---Charges of unauthorized absence from duty and unpunctual in attending office---Denial of alleged charges by petitioner in his explanation to show-cause notice---Imposition of such penalty by authority after considering petitioner's explanation without holding inquiry into alleged charges---Petitioner challenging such penalty in constitutional petition without availing remedy of departmental appeal---Maintainability---Pakistan Engineering Council being a statutory entity controlled by Federal Government was amenable to writ jurisdiction of High Court---Requirements of natural justice were not only restricted to issuance of show-cause notice, natural justice had to be equated with "acting fairly"---Authority must have constituted a proper inquiry, in view of petitioners' denial of charges---Authority by non-holding inquiry had not discharged initial burden to substantiate alleged charges, thus, had acted unfairly---Failure of authority to discharge initial burden 'would amount to violation of principles of natural justice, which would be equated with violation of law warranting cognizance by High Court under Art.199 of the Constitution---Absence of two days and vague allegation of unpunctuality could not have warranted extreme action of termination---Pakistan Engineering Council Employees Service Rules, 1999 were not statutory---In order to constitute a bar towards maintainability of constitutional petition on account of availability of alternate remedy, statutory right of appeal would be required to exist---Termination of service as a result of non-acceptance of petitioner's explanation denying allegations contained in show-cause notice, could not be termed as a "termination simpliciter"---High Court accepted constitutional petition, set aside impugned order and reinstated petitioner in service with all back benefits.

Muhammad Ismail Shahid v. Executive District Officer (Revenue) 2008 SCMR 609; Mian Tariq Javed v. Province of Punjab 2008 SCMR 598; Naseeb Khan v. Divisional Superintendent, Pakistan Railways 2008 SCMR 1369; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Hanif Khan v. Pakistan 'and 2 others 1982 CLC 1396; Government of the Punjab through Collector Faisalabad v. Hudabia Textile Mills, Faisalabad through Chairman 2001 SCMR 209; Messrs Haroon Brothers v. Drugs Registration Board 1992 CLC 1017; PIAC v. Manzoor Ahmed Khan PLD 1989 SC 158; The Murree Bravery v. Pakistan through Secretary Government of Pakistan PLD 1972 SC 279; Messrs Abdullah & Company v. The Province of Sindh 1992 MLD 293; Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation PLD 1990 Kar. 186; Habib Bank Ltd. v. Ghulam Mustafa Khairati 2008 SCMR 1516; Abdul Salim v. Government of N.-W.F.P. 2008 SCMR 871; Ms. Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106; Divisional Engineer Phones, Phones Division Sukkur v. Muhammad Shahid and others 1999 SCMR 1526; Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others PLD 2001 SC 980; Muhammad Dawood v. F.O.P. 2007 PLC (C.S.) 1046; Tanweer-ur-Rehman v. PIAC C.Ps. Nos.D-2042, 2043 and 2044 of 2007; Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum 1995 MLD 15 and Qlandro v. The State 1997 MLD 1632 ref.

Shahid Mahmood v. K.E.S.C. 1997 CLC 1936; Administrative Law by Sir William Wade 6th Edition p.524; Basharat Ali v. The Director, Excise and Taxation 1997 SCMR 1543; Gulzar Hussain v. WAPDA 1989 PLC (C.S.) 292; Hussain Bibi v. Muhammad Din 1976 SCMR 395; Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Mushtaq Ahmed v. Islamabad Omni Bus Service 1976 PLC 254; Nadeem Ahmed v. PIAC 1998 PLC 19; Dr. Mazhar Naeem v. PIAC 2001 PLC (C.S.) 824; PIAC v. Dr. Mazhar Naeem (C.P.L.A No.1062-K of 1998 and J&S Enterprises (Pvt.) Limited v. Muhammad Jahangir 1996 PLC 188 rel.

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

----Art. 199---Constitutional petition---Breach of contract would not be actionable---Where aggrieved person sought enforcement of rights based upon violation of law or standards found in public/administrative law, then High Court would extend relief under Art.199 of the Constitution.

Muhammad Dawood and others v. Federation of Pakistan 2007 PLC (C.S.) 1046 fol.

----Allegations levelled against employee---Duty of employer to substantiate such allegations through concrete material or evidence.

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

----Art. 199---Constitutional petition---Alternate remedy of appeal or revision, non-availing of---Effect---Statutory right of appeal would be required to exist in order to constitute a bar towards maintainability of constitutional petition---Even a revision remedy could not, in particular circumstances of case, be construed as an alternate remedy---Principles.

Hussain Bibi v. Muhammad Din 1976 SCMR 395 rel.

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

----Ss. 3, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Alternate remedy of filing representation to departmental authority, non-availing of---Effect---Filing of such representation could be a pre-condition for filing appeal before Service Tribunal, but same could not be construed to be a pre-condition to filing of constitutional petition under Art.199 of the Constitution.

(f) Civil service---

----"Termination simpliciter"---Connotation---Termination of service as a result of non-acceptance of employee's explanation denying allegations contained in show-cause notice---Such termination could not be termed as a "termination simpliciter"---Illustration.

Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Mushtaq Ahmed v. Islamabad Omni Bus Service 1976 PLC 254; Nadeem Ahmed v. PIAC 1998 PLC 19; Dr. Mazhar Naeem v. PIAC 2001 PLC (C.S.) 824; PIAC v. Dr. Mazhar Naeem C.P.L.A No.1062-K of 1998 and J&S Enterprises (Pvt.) Limited v. Muhammad Jahangir 1996 PLC 188 rel.

Muhammad Nawaz Shaikh for Petitioner.

Siddiq Mirza for Respondents.

Date of hearing: 6th November, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 302 #

2009 P L C (C.S.) 302

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Khawaja Naveed Ahmed, J

SULTAN KHALID MASUD KHATTAK

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and another

C.P. No.D-1622 of 2007, decided on 31st October, 2008.

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

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Pro forma promotion---Entitlement to---Petitioner had asserted that after qualifying the Central Superior Services Examination, he had joined government service; that despite the fact that his performance was so good that his name was recommended for "Sitara-i-Imtiaz"; that on a very trivial mistake attributed to him, he was illegally and unjustly dismissed from service, however in appeal he was reinstated in service with all benefits; it was further asserted by the. petitioner that due to the pendency of enquiry proceedings against him, his name for promotion to grade 19 was deferred by the Promotion Board, while other officials of his batch, even junior to him and having less marks were promoted---Said assertions of the petitioner had not been denied, by the authorities which had conceded that the promotion of the petitioner was deferred by the Promotion Board for sole reason that enquiry was being conducted against him---Petitioner had suffered in the matter of his promotion for no fault on his part---After reinstatement of petitioner in service, awarding him "all back-benefits" he was also entitled to be considered for promotion---Constitutional petition filed by the petitioner was allowed in the terms that the decision of authorities contained in impugned letter, was declared to be illegal, without lawful authority and of no legal effect---Petitioner was allowed pro forma promotion as per his entitlement with all consequential benefits.

Raghib Baqi for Petitioner.

Ashraf Khan Mughal, D.A.-G. for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 310 #

2009 P L C (C.S.) 310

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Khalid Ali Z. Kazi, J

JAVED IQBAL AWAN

Versus

ZARAI TARAQIATI BANK LTD. through President and another

C.P. No.D-801 of 2008, decided on 4th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Reduction in rank---Service Tribunal set aside the order of departmental authority and case was remanded for de novo proceedings on the same charge sheet---Petitioner, after the process of such de novo proceedings, was not found guilty of the charges levelled against him and he was absolved and restored---Petitioner contended that for no fault on his part, he had been made to suffer for a long period, therefore, he was entitled for all reliefs in the form of back benefits for the said period---Validity---Held, petitioner was entitled for albs those benefits, which fell within the ambit of back benefits.

Abdul Sattar Mughal for Petitioner.

Sanaullah Noor Ghouri for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 317 #

2009 P L C (C.S.) 317

[Karachi High Court]

Before Khilji Arif Hussain and Dr. Qamaruddin Bohra, JJ

SAEED-UR-REHMAN

Versus

PROVINCE OF SINDH through Secretary and 2 others

C.P. No.D-1101 of 2008, decided on 12th December, 2008.

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

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Reinstatement---De novo inquiry---Retirement from service---Entitlement to revised pay and pension etc--Petitioner initially was removed from service on account of misconduct, but said removal order was set aside in appeal and the petitioner was reinstated in service---Subsequently de novo inquiry was conducted against the, petitioner and competent authority while taking lenient view retired the petitioner from service with immediate effect---Authority, however not only failed to determine pay of the petitioner, but also failed to process, finalize and release the pension funding to the petitioner on the ground that the petitioner had made manipulation in his date of birth---Petitioner was served with the charge-sheet alleging. therein about the manipulation of date of birth, but he was exonerated from said charge by the Investigating Officer as no said allegation was proved against the petitioner---Authority, without any inquiry or providing opportunity of hearing, could not deprive the petitioner from his right of pension funding benefit just on the allegation about manipulation in his date of birth---Authority, in circumstances, was directed to process, finalize and release pension after fixing pay in accordance with order passed by the department.

Muhammad Arshad Khan Tanoli for Petitioner.

A. Fateh Malik for Respondent No.1/Additional Advocate-General.

Sanaullah Noor Ghauri for Respondent No.2.

PLCCS 2009 KARACHI HIGH COURT SINDH 327 #

2009 P L C (C.S.) 327

[Karachi High Court]

Before Zia Perwez and Nadeem Azhar Siddiqi, JJ

Mst. SHABNAM

Versus

FEDERATON OF PAKISTAN through General Manager/Operations Pakistan Railways

Headquarters Office, Lahore and 3 others

Constitutional Petition No.591 of 2005, decided on 23rd January, 2007.

(a) Words and phrases---

----"Contradiction"---Defined.

Ghazala Tariq v. Federation of Pakistan 2005 PLC (C.S.) 271 and Concise Oxford English Dictionary tenth Edition ref.

(b) Interpretation of statutes---

----Meaning of words---Principles---Meanings should be given to each word used in a statute---Interpretation which renders any word as meaningless is to be avoided.

----S. 19(3)---Pakistan Railway (Pension Rules and Retirement Benefits for Railway Servants), R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pensionary benefits---Payment of pension and gratuity---Petitioner was widow of Railway employee and her grievance was that authorities had not paid her gratuity and monthly pension of her husband---Validity---Words "pension" and "gratuity" had been used separately in S.19(3) of Civil Servants Act, 1973, therefore, they had their respective meanings---Where both the words were not used but only the word "pension" was used with reference to benefits of an employee only then provisions of R.12 of Pakistan Railway (Pension Rules and Retirement Benefits for Railway Servants) would come into Play---Petitioner was entitled to 2/3rd of pension or gratuity as payable under S.19(3) of Civil Servants Act, 1973, while payment of G.P. Fund amount had already been received by her---High Court allowed fifteen days time to petitioner to exercise her option to accept either gratuity or pension and communicate the same in writing to authorities---Constitutional petition was allowed accordingly.

M.A. Hakeem for Petitioner.

Mahboob Malik for the Railways along with Naeem Ahmed Accountant and Muhammad Yousuf head Clerk Litigation, D.S. Railway Office Sukkur for Respondents.

A.R. Farooq Pirzada, D.A.-G.

PLCCS 2009 KARACHI HIGH COURT SINDH 334 #

2009 P L C (C.S.) 334

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Abdul Rasheed Kalwar, JJ

Mst. ATTIA JAVED

Versus

FEDERATION OF PAKISTAN through Divisional Superintendent Pakistan Railways, Sukkur and 5 others

Constitutional Petition No.D-308 of 2008, decided on 18th September, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Pensionary benefits---Damage to government property---Proof---Petitioner was wife of retired railway official whose whereabouts had not been known since he was on leave preparatory to retirement---Grievance of petitioner was that authorities had not paid her family pension and were bent upon to get railway quarter vacated from her---Plea raised by authorities was that during service husband of petitioner had caused damage to government property---Validity---Neither any report of alleged damage caused to government property had been placed on record nor any order of competent authority withholding pension and other benefits had been placed---Merely on verbal statement of causing damage to government property, an employee, after his retirement, could not be deprived of his pensionary benefits---Petitioner being legal heir of railway employee, after his missing, was entitled to pensionary benefits with monthly pension from the date of his retirement---Petitioner was also entitled to occupy quarter subject to payment of rent as settled by railway authorities as per rules---Petition was allowed accordingly.

M.A. Hakeem for Petitioner.

Muhammad Imran Khan for Respondents Nos.1 to 3.

PLCCS 2009 KARACHI HIGH COURT SINDH 338 #

2009 P L C (C.S.) 338

[Karachi High Court]

Before Syed Pir Ali Shah, J

ABDUL JABBAR ABRO

Versus

FEDERATION OF PAKISTAN through Secretary for Ministry of Law and Justice, Islamabad and 2 others

C.P. No.D-953 of 2007, decided on 24th November, 2008.

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

----Vol. V, Chap. 4-H, R.3---Matter was heard by Division Bench of High Court and short order duly signed by both the Members of the Bench was announced in open court---One member of the Bench, before signing the reasons for short order was appointed Judge of the Federal Shariat Court---Procedure---Held, in such a situation the judgment for detailed reasons may be authored by the other member of the Bench.

Ghulam Hussain v. The State PLD 1981 Kar. 711; Office Reference, dated 28-4-1981 PLD 1982 Kar. 250; Messrs Bismillah Textile Limited v. Habib Bank Limited and others 2008 CLC 504 and Aijaz Ahmed v. State Cement Corporation of Pakistan and others 2008 PLC (C.S.) 571 fol.

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

----Arts. 25 & 199---Constitutional petition---Civil service---Demotion---Discrimination---Petitioner was alleged to have committed misconduct, therefore, departmental proceedings were initiated against him and resultantly he was demoted---Validity---Authorities initiated departmental proceedings against petitioner in haphazard way; after the reply was furnished by petitioner, department had become vigilant and issued amended charge-sheet/statement of allegations---Stance taken by petitioner was in clear terms that on the relevant day he was on sanctioned leave---Statement of allegations and charges found against petitioner on the face of it were vague and irrelevant---Inquiry conducted in the matter reflected that the same was not in accordance with due procedure and as such, it deviated from normal rules and regulations---Defence put forth by petitioner was not taken into consideration at all---Penalty of another officer who was also penalized along with petitioner was later on converted into minor penalty while case of petitioner was at par with that of the other officer---Authorities had adopted discriminatory attitude against petitioner against whom not a single adverse action was taken in the part---If service record of petitioner had been dark, then the authorities might have been justified in adopting stern action against him---Order passed against petitioner was discriminatory, tantamounting to an act of nepotism and favouritism and the same could not be sustained in the eye of law---Petitioner had rightly invoked constitutional jurisdiction of High Court---Petition was allowed in circumstances.

Chaudhry Rasheed Ahmed for Petitioner.

D.A.-G. for Federation of Pakistan for Respondent No.1.

Note:

This matter was heard by a Division Bench comprising of Honourable Muhammad Afzal Soomro, C.J. (As his Lordship then was) and myself and by a short order, dated 15-4-2008 the same was allowed in open Court and short order was signed. Thereafter, reasons were recorded by me, but before signing the same my learned brother Muhammad Afzal Soomro, C.J. (As his Lordship then was) was appointed as Judge of Federal Shariat Court.

Rule 3 of Chapter 4-H of Volume V of High Court Rules ands Orders deals with such situation and provides as under:---

"Opinion recorded before delivery of judgment.---Where an appeal has been heard by a Bench of the Court, the written opinion of the Judges who heard the appeal, but have ceased to be attached to the Court before delivery of judgment, shall unless delivered by another Judge of the Bench which heard the appeal, be deemed to be minutes merely and not judgment."

Earlier the same situation was dealt by two separate learned Division Benches of this Court. In the reported case of Ghulam Hussain v. The State PLD 1981 Kar. 711 it was held as under:---

"... Although both the Judges of a Division Bench may have concurred in the decision and the short order; it is conceivable that the reasons for the conclusion reached may be different. In that case, if one of the Judges of the Division has ceased to be available, as in the instant case, the reasons given by the Judge who still continues to adorn the High Court, would not really be the reasons of the Bench in support of the conclusions reached or the short orders passed by it, but would be, in effect, the individual opinion of that learned Judge. However, such a written opinion would be of assistance to the Supreme Court, in case an appeal against the decision of a Division Bench is preferred to it."

In the reported case of Office Reference dated 28-4-1981 PLD 1982 Kar. 250 a learned Division Bench of this Court has held as under: --

"... the cases in which short orders have been recorded and signed. by the concerned Judges, these cases stand disposed of as these order are fully operative in law. In the last-mentioned cases the Judges who have ceased to hold office cannot record reasons, but in cases in which one of the Members of the Bench was a Judge who is still available, he may be requested to record his reasons in support of the decision which will, however, serve as minutes of his individual opinion for use as deemed fit by the Supreme Court in case appeals are filed against such orders."

Recently in the similar circumstances and situation reasons have' also been recorded by a Single Judge available on bench of this Court in cases reported in Messrs Bismillah Textile Limited v. Habib Bank `Limited and others 2008 CLC 504 and Aijaz Ahmed v. State Cement Corporation of Pakistan and others 2008 PLC (C.S.) 571.

As per order-sheet, dated 27-10-2008 Division Bench of this Court consisting of Mr. Justice Khilji Arif Hussain and Mr. Justice Dr. Qamaruddin Bohra have observed that in such a situation as has arisen in this case, the judgment may be authored by me for detailed reasons in respect of decision dated 15-4-2008.

Following the above pronouncements I have been required to record the following reasons/opinion in support of short order already announced and signed by both the members of the Bench.

(Sd.) Syed Pir Ali Shah, J.

PLCCS 2009 KARACHI HIGH COURT SINDH 367 #

2009 P L C (C.S.) 367

[Karachi High Court]

Before Faisal Arab and Abdul Rasheed Kalwar, JJ

MIR MUHAMMAD and another

Versus

PROVINCE OF SINDH through Secretary to Education and Literacy Department and 5 others

Constitutional Petition No.D-455 of 2008, decided on 2nd December, 2008.

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

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Grievance of the petitioners was that their order of promotion from Primary School Teacher to High School Teacher was withdrawn by the authorities---Counsel for the petitioners had stated that apart from merits of the order which would ultimately decide the petition, petitioners, at least should be given the salaries of Primary School Teachers, which would be without prejudice to the rights of the petitioners in the petition---Validity---Only the question of promotion being involved, petitioners were0entitled to get the salary of at least Primary School Teachers---Petitioners having the status of Primary School Tea .hers, their salaries should be paid to them within 15 days.

Muhammad Sachal Awan for Petitioners.

Allah Bachayo Soomro, Addl. A.-G. Sindh for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 415 #

2009 P L C (C.S.) 415

[Karachi High Court]

Before Azizullah M. Memon and Khalid Ali Z. Qazi, JJ

ZAFAR AHMED KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Islamabad and 2 others

Constitution Petitions Nos. D-1570, 1571 and 1572 of 2007, decided on 28th November, 2008.

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

----Art. 189---Judgment of Supreme Court---Scope---Even obiter observations of Supreme Court are binding on High Courts---Judgment is not binding authority and the same cannot be construed as "law declared" under Art. 189 of Constitution if no ratio decidendi is discoverable, the case particularly turns on facts and also that the matter is a result of exercise of discretion by Court.

M. Ismail and Sons v. Trans-Oceanic Steamship Co Ltd. PLD 1966 Dacca 296; Pir Baksh v. The Chairman, Allotment Committee PLD 1987 SC 145; Irshad Ahmad Shaikh v. The State 2000 SCMR 814 and Jurisprudence by R.W.M. Dias, 5th Edition, 1985, London Butterworth, page 141 rel.

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

----Arts. 199 & 189---Constitutional petition---Limitation---Time frame fixed by Supreme Court---Effect---No time limit is prescribed for filing of Constitutional petitions and the same are not hit by any time limit---Constitutional petitions under Art.199 of the Constitution may well be hit by delay and laches---In particular circumstances of any case, time frame having been prescribed by Supreme Court is binding on all courts and authorities below under Art.189 of the Constitution.

----Art. 199---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional petition---Maintainability---Appeal of petitioners pending before Service Tribunal stood abated in view of judgment passed by Supreme Court in case titled Muhammad Mubeenus Salam v. Federation of Pakistan, reported as PLD 2006 SC 602---Petitioners approached High Court in exercise of Constitutional jurisdiction beyond period of ninety days fixed by Supreme Court---Plea raised by petitioners was that orders passed by authorities were void being in violation of principles of natural justice and hence no time limit was attracted while assailing the same---Validity---Plea raised by petitioners could not be sustained---Supreme Court in the said judgment passed did not state that orders passed in breach of natural justice could be attacked even beyond prescribed period of ninety days---Even for void orders limitation period started from date of knowledge; it was not the case of petitioners that they were not in knowledge of orders passed by authorities---High Court declined to condone delay in filing of petition---Petition was dismissed in circumstances.

Muhammad Mubeenus Salam v. FOP PLD 2006 SC 602; Sardar Muhammad Yasin Khan v. Azad Jammu and Kashmir Government PLD 1979 AJ&K 1; Jumma Khan v. Province of Sindh PLD 1981 Kar. 311; Messrs Cap Gas (Pvt.) Ltd. v. Ministry of Petroleum 1991 MLD 2493; International Cargo Handling Co (Pvt.) Ltd v. Port Qasim Authority PLD 1992 Kar. 65; Anisa Rehman v. PIAC 1994 SCMR 2232; PIAC v. Nasir Jamal Malik 2001 SCMR 934; PLD 2002 Central Statutes 66; Collector Sahiwal v. Muhammad Akhtar 1971 SCMR 681; Nadeem Ahmed v. PIAC 1998 PLC 19; Shahid v. PIAC 1998 PLC (C.S.) 773; Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046; Abdul Hafeez Abbasi v. MD, PIAC 2002 SCMR 1034; Walayat Ali Mir v. P1AC 1995 SCMR 650; Shahid Hayat v. FOP Civil Appeal No.558 of 2008 (2009 SCMR 546); State Life Insurance Corporation v. Raz Muhammad Shanwari 2007 SCMR 1400; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Shahid Mahmood v. KESC 1997 CLC 1936 and Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 ref.

Abdul Mujeeb Pirzada and Khalid Ali Shah for Petitioners.

Shahid Anwar Bajwa for Respondents Nos.2 and 3.

Umer Hayat Sindhu, Deputy Attorney-General on Court notice.

Date of hearing: 6th August, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 446 #

2009 P L C (C.S.) 446

[Karachi High Court]

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

COMSET SERVICES LIMITED

Versus

HOLGER HAHN and another

H.C.A. No.240 of 2007, decided on 19th December, 2008.

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

----S. 42--Civil Procedure Code (V of 1908), Ss.20 & 96---Law Reforms Ordinance (XII of 1972), S.3---Jurisdiction of courts--Consent of parties---Scope---Damages---Determination---Plaintiff filed suit on the basis of service agreement between the parties and also claimed recovery of damages--Single Judge in the High Court decreed the suit in favour of plaintiff---Plea raised by defendant was that according to agreement between the parties only the Courts at U.K. had the jurisdiction to adjudicate the matter---Validity---Agreement was executed in Pakistan, therefore, agreement was subject to scrutiny under the law of the land---Non-exclusive jurisdiction clause agreed in between the parties did not oust jurisdiction of local courts, neither consent of parties could confer jurisdiction to a court which had no jurisdiction to entertain and decide the lis amongst parties---By virtue of service agreement between parties, trigger date had not been achieved, therefore, plaintiff was not entitled to any actual salary or allowances which were payable after achievement of trigger date---Plaintiff was only entitled to salary as well as housing allowance for 12 months in lieu of the notice and not entitled to whole claim awarded to him by the Single Judge---Division Bench of High Court in High Court appeal modified the decree passed by Single Judge accordingly.

Saba Shipyard (Pakistan) Limited v. Islamic Republic of Pakistan and another 2003 Lloyd's Law Reports 571; Masood Asif and others v. United Bank Limited 2001 CLC 479; HIT Entertainment Limited and others v. Gaffney International Licensing (Pvt.) Limited and another (2007) EWHC 1282 (Ch); Tradesmen International (Pvt.) Limited v. Federation of Pakistan and another 2005 MLD 541; 2008 CLC 1618; Messrs Eckhardt and Co. Marine GmbH v. Muhammad Hanif PLD 1993 SC 42 and CGM Compagnie General Maritime v. Hussain Akbar 2002 CLD 1528 distinguished.

1958 ALL ER 333; M.A. Chowdhury v. Messrs Mitsui O.S.K. Lines Ltd. and 3 others PLD 1970 SC 373; Messrs Mercantile Fire and General Insurance Co. of Pakistan Ltd., Karachi v. Messrs Arcepey Shipping Co. U.S.A. and another PLD 1978 Karachi 273; Far East Steamship Line and others v. The Union of India AIR 1973 Mad. 169 (V 60 C 52); The Black Sea Steamship U.L. Lastochkina Odessa and another v. The Union of India AIR 1976 Andhra Pradesh 103 and Light Industries (Pvt.) Ltd. Through Director v. Messrs ZSK Stickmaschinen GmbH and another 2007 CLD 1324 rel.

(b) Jurisdiction---

----Consent of parties---Scope---Whenever a Court or tribunal has been invested with jurisdiction to entertain and adjudicate upon lis in between parties, the consent of parties cannot oust jurisdiction of that Court or tribunal---In case, a Court or tribunal possesses no jurisdiction to entertain lis and adjudicate upon it, consent of parties cannot confer jurisdiction in such Court or Tribunal---Law of land cannot be brushed aside or ignored because of the consent of parties which consent cannot be termed to be lawful in view of the provisions of Contract Act, 1872.

Pir Sabir Shah v. Shah Muhammad Khan, Member Provincial Assembly N.-W.F.P. and another PLD 1995 SC 66; Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292; Mst. Rashida Begum v. Mst. Aisha Bibi and others 1979 CLC 509; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 and Muhammad Ramzan and 2 others v. Noor Muhammad and 4 others PLD 1987 Lah. 268 rel.

Abid S. Zuberi and Muhammad Masood Khan for Appellant.

Yousuf Ali Sayeed for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 25th November, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 497 #

2009 P L C (C.S.) 497

[Karachi High Court]

Before Mrs. Yasmin Abbasey and Arshad Noor Khan, JJ

ABDUL TAUHEED KHAN

Versus

DIRECTOR-GENERAL, C.A.A. KARACHI and others

C.P. No.D-1469 of 2006, decided on 13th September, 2008.

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

----Art. 199---Constitutional petition by Government controlled corporation---Maintainability---Such corporation would fall within ambit of Art.199 of the Constitution.

C.P. 1591 of 2006 and Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 rel.

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

----Art. 199---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Civil Aviation Authority, ex-employee of---Constitutional petition by such employee for his grievance after his appeal before Service Tribunal having been abated in view of judgment of Supreme Court in Mubeen-ul-Salam's case PLD 2006 SC 602---Maintainability---Petitioner was not civil servant, thus, his appeal before Service Tribunal would be deemed to have been abated---Tribunal had not finally disposed of such appeal---Petitioner was not required to obtain order of abatement from Service Tribunal---Constitutional petition was maintainable in circumstances.

Muhammad Mubeen-us-Salam and others v. Federal of Pakistan PLD 2006 SC 602 ref.

----S. 27---Constitution of Pakistan (1973), Art.199---Constitutional petition---Employee of Federal Government controlled body---Pensionary benefits, claim for ---Re-employment of petitioner by Civil Aviation Authority before six months in qualifying service of 10 years---Grant of gratuity for 9 years to petitioner, but denial of authority to give him pensionary benefits on account of not qualifying his old service of complete ten years---Petitioner's claim for single pension for his old service along with new service---Validity---By virtue of appointment letter and Authority being a Federal Government controlled Body with applicability of Pakistan Essential Services (Maintenance) Act, 1952, Regis. 259 & 807 of Civil Service Regulations, Rule 531 of Federal Government Rules, petitioner was entitled to claim one pension by counting both periods of service---High Court accepted constitutional petition in circumstances.

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

----S. 4---Limitation Act (IX of 1908), S.23---Appeal---Pensionary benefits, claim for---Correspondence in between appellant and authority continued till 27-2-2002, whereafter appeal was filed in same month---Validity---Fresh period of limitation would start from every denial of Authority to give appellant right to have such benefits---Appeal filed in February, 2002 was within time.

Dr. Shuja-ud-Din Khan v. Islamic Republic of Pakistan and others 2000 PSC 139 rel.

Muhammad Aslam Khan for Petitioner.

Ashfaque Hussain Rizvi for Respondents.

Rizwan Ahmed Siddiqui and Imran Ahmed, D.A.-Gs.

Date of hearing: 13th May, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 518 #

2009 P L C (C.S.) 518

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

SAIFULLAH KHAMISANI

Versus

FEDERATION OF PAKISTAN through Secretary and another

Constitutional Petition No.1748 of 2006, decided on 11th March, 2009.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan 1973, Arts.199 & 212(3)---Constitutional petition---Employee of Pakistan State Oil Company---Termination of service of large number of employees in year, 1997---Dismissal of all appeals of such employees including petitioner by Service Tribunal in year, 2000 for want of jurisdiction---Non-filing of further appeal before Supreme Court by petitioner---Remand of case by Supreme Court in year, 2004 in appeals filed by other employees against judgment of Service Tribunal---Setting aside of termination order of other employees by Service Tribunal---Petitioner seeking benefit of such judgment of Supreme Court by filing constitutional petition in year, 2006---Validity---Question as to whether termination from service of petitioner was legal or illegal being a mixed question of law and fact determinable by competent forum Service Tribunal had determined such question under its judgment, which had attained finality for not having been challenged before Supreme Court or High Court---Such judgment of Supreme Court might not have effect to set aside automatically both orders of petitioner's termination from service without challenging them through prescribed procedure---Petitioner's prayer in constitutional petition by implication would be for setting aside judgment of Service Tribunal---What could not be done directly could not be done indirectly---Constitutional petition before High Court against judgment of Service Tribunal would not be maintainable, even if limitation to file petition for leave to appeal to Supreme Court under Art. 212(3) of the Constitution had expired---Petitioner while approaching High Court had not explained laches on his part---High Court dismissed constitutional petition in limine.

Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD 2001 SC 980; Mrs. Aqeela Asghar Ali v. Miss Khalida Khatoon Malik PLD 1991 SC 1118; Tarachand v. Karachi Water and Sewerage Board 2005 PLC (C.S.) 368. Hameed Akhtar Niazi, 1996 SCMR 1185 and Chairman Pakistan Railways v. Muhammad Latif, 1984 SCMR 286 ref.

Mukhtar Ahmed for Petitioner.

Ashiq Raza, D.A.-G. for Respondent No.1.

Shahid Anwar Bajwa for Respondent No.2.

Date of hearing: 4th March, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 547 #

2009 P L C (C.S.) 547

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Faisal Arab, J

Dr. IRSHAD ALI SOOMRO

Versus

GOVERNMENT OF SINDH through Secretary Agricultural, Government of Sindh and 3 others

Constitutional Petition No.D-1819 of 2007, decided on 28th January, 2009.

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

----S. 3---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Reinstatement---Non-awarding of back-benefits---Petitioner, who was removed from service, was reinstated in service, but back-benefits were denied to him even by the Service Tribunal---Validity---Petitioner was not entitled for granting back-benefits in the routine manner as claimed by him without first determination of the fact that during the relevant period he was not gainfully employed or engaged anywhere else---Mere filing of affidavit-in-evidence by the petitioner before the Service Tribunal without being subjected to cross-examination, was of no avail---No factual inquiry had been conducted before any forum as to the genuineness on the claim of back-benefits of the petitioner---No mathematical format could be applied for grant of back-benefits to a party and for that purpose each case was to be decided on its own particular facts and circumstances---Petitioner having filed departmental appeal after 4/4-1/2 years of his termination of service and neither in his departmental appeal nor even in appeal before Service Tribunal anywhere the petitioner had stated about his claim that he was not gainfully engaged during the intervening period---Investigation as to the claim of back-benefits of the petitioner was primarily a question of fact to be decided after affording full opportunity to both the parties to lead their evidence or to produce document---Such aspect of the matter could not be considered in constitutional jurisdiction as jurisdiction of High Court under Art.199 of the Constitution, was purely discretionary in nature---No circumstance was on record in favour of petitioner who remained mum for 4-1/2 years after his removal from service to grant him any such relief in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602; Salahuddin and others v. Taj Muhammad Khanzada PLD 1975 SC 244; Muhammad Shafiq and 6 others v. Board of Intermediate and Secondary Education, Faisalabad PLD 2008 SC 1277; Sher Muhammad Shehzad and 22 others v. District Health Officer and another 2006 SCMR 421; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; General Manager/Circle Executive Muslim Commercial Bank Limited and another v. Mehmood Ahmed Butt and others 2002 SCMR 1064; Director, Public Instructions (E.E), Punjab and others v. Liaqat Ali Khan PLD 2003 SC 598; Shershah Industries Ltd. v. The Government of Sindh and 4 others PLD 1982 Kar. 653; Arabian Sea Enterprises Ltd. v. Government of Sindh and others 2007 CLC 1215; Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151; Gul Sher Khatyan v. Chief Secretary, Government of Sindh 2007 SLJ 1311 and Abdul Wahab and 2 others v. Secretary, Home Department, Government of Sindh Karachi 2007 SLJ 345 rel.

Shabbir Ahmed Awan for Petitioner.

Muhammad Yousuf Leghari, A.-G. Sindh for Respondents Nos.1 and 2.

Mansoorul Haq Ansari for Respondent No.4.

Date of hearing: 28th January, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 640 #

2009 P L C (C.S.) 640

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Syed MUNAWAR SULTAN and 6 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petitions Nos.D-2024, D-128, D-2329, D-2000, D-2106 and D-2126 of 2008, decided on 6th March, 2009.

(a) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance (XIX of 2006)---

----S. 8(4)---Sindh Prosecutors (Appointment and Conditions of Service), Rules, 2006, R.5---Constitution of Pakistan (1973), Art.199----Constitutional petition---Appointment of Prosecutor-General, Additional Prosecutor-General, District Public Prosecutor and Deputy District Public Prosecutor---Option for applying for such appointment given to District Attorney and Deputy District Attorney already functioning on regular basis---Non-inclusion of petitioners' names in final list though interviewed by Selection Committee---Validity---Petitioners had not challenged formation of Selection Committee constituted by Government---First part of proviso to S.8(4) of Sindh Criminal Prosecution Services (Constitution, Functions and Powers) Ordinance, 2006 relating to inviting of one time option was mandatory, while its second part was not mandatory giving discretion to Government to induct a person in prosecution department---One time option given to petitioners for their induction in prosecution department was subject to their selection by Selection Committee---Petitioners were interviewed by Selection Committee, but were declared unsuccessful---Petitioners in their declaration had affirmed to be bound by decision of Selection Committee---Sindh Prosecutors (Appointment and Condition of Service) Rules, 2006 relating to appointing of Additional Prosecution General, Deputy Prosecutor-General etc. on contract basis for three years on recommendations of Selection Committee had no nexus with proviso to S.8(4) of the Ordinance---Petitioners had rightly been refused induction in prosecution department---High Court dismissed constitutional petition in circumstances.

(b) Interpretation of statutes---

----Mandatory and directory provisions, nature of determination---Test stated.

No universal rule of absolute test exists for determining whether provision of' law is mandatory or directory, and it is to be determined according to intention of the legislature and the language which has been used. Where statute required a thing to be done in a particular way, it must be done by the authority in the manner as prescribed by statute as departure from the rules would invalidate things done in the manner other than prescribed by the rules.

----Preamble--Object of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2006.

The object of Ordinance, 2006 was to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutional independence in criminal justice system. Power of appointment of Prosecutor-General vests with the Government, for a fixed period, District Public Prosecutor, Additional Prosecutor-General and Deputy Prosecutor-General can be appointed on regular basis only on the recommendation of Sindh Public Service Commission, to give them independence and to induct competent person on merits in criminal prosecution service.

Muhammad Anwar Tariq and Habib-ur-Rehman Jiskani, Samiullah and Wasique A. Kehr for Petitioners.

Abdul Fatah Malik, Addl. A.-G. Sindh assisted by Adnan A. Karim, A.A.-G. for Respondent/State.

Date of hearing: 29th January, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 654 #

2009 P L C (C.S.) 654

[Karachi High Court]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

MUBARAK ALI RAJPUT

Versus

CHAIRMAN, PAKISTAN STEEL, KARACHI and another

Constitutional Petition No. D-516 of 2007, decided on 13th March, 2008.

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

----S. 3---Sindh Service Tribunals Act (XV of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Penalty of stoppage of three annual increments---Abatement of appeal---Penalty of stoppage of three annual increments having been imposed on the petitioner after charge-sheeting him for committing misconduct, he filed appeal against such order---Some identical petitions were heard by the Supreme Court in case reported in PLD 2006 SC 602 while interpreting provisions of S.2-A added in the Service Tribunals Act, 1973 and it was directed that appeals so pending before the Service Tribunal stood abated; later on, Supreme Court passed an order in some other connected matter; directing therein that the question as to whether or not a Service appeal, pending before the Service Tribunal stood abated, was to be heard and decided by the Tribunal itself on its judicial side; and that the Registrar or any other officer of said Tribunal was not competent to direct for such abatement---Petition was admitted and allowed with the direction that letter issued by Assistant Registrar of the Service Tribunal was set aside and appeal itself stood remanded to the Service Tribunal to hear the parties and then to decide the question on the judicial side as to whether or not appeal pending before it stood abated.

PLD 2006 SC 602 ref.

Rao Muhammad Shakir Naqshbandi for Petitioner.

Abbas Ali, Addl. A.-G., Sindh.

Imran Ahmed, Advocate.

Masood Mukhtar, Advocate.

PLCCS 2009 KARACHI HIGH COURT SINDH 662 #

2009 P L C (C.S.) 662

[Karachi High Court]

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

AZIZ-UR-REHMAN

Versus

FEDERATION OF PAKISTAN, ISLAMABAD through Secretary and 6 others

Constitutional Petition No.D-1055 of 2005, decided on 27th November, 2007.

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

----Rr. 5 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition-Transfer of place of inquiry---Petitioner had contended that enquiry in pursuance of the charge-sheet which was being conducted at place T' ought to be transferred from that place to another place---Authorities had strongly opposed said request by stating that fraud, embezzlement and malpractices had been charged in the charge-sheet and those were in respect of with respect to the working place of the petitioner which wasT'---Bank Branch and witnesses were also available at place `T'---High Court in constitutional jurisdiction could not transfer the enquiry as per desire of the petitioner---Petition being misconceived was dismissed.

Mehmood Habibullah for Petitioner.

Sanaullah Noor Ghouri for Respondents Nos.2 and 3.

Rizwan Ahmed Siddiqui, D.A.-G.

PLCCS 2009 KARACHI HIGH COURT SINDH 668 #

2009 P L C (C.S.) 668

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

AZIZ-UR-REHMAN CHAUDHRY

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and another

C.P. No.D-981 of 2008, decided on 2nd May, 2009.

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

----Ss. 2-A & 4--Constitution of Pakistan (1973), Art.199---Constitutional petition---Judgment passed by Service Tribunal---Implementation---Petitioner retired from service on 3-6-2003 and he filed appeal before Service Tribunal in year, 2004, which was allowed on 26-6-2006---On the basis of judgments passed by Supreme Court in the cases of Muhammad Mubeen-us-Salam reported as PLD 2006 SC 602 and Muhammad Idrees reported as PLD 2007 SC 681, authorities declined to implement judgment passed by Service Tribunal on the ground that judgment passed in favour of petitioner by Service Tribunal had abated---Validity---There was no observation in case of Muhammad Mubeen-us-Salam or in case of Muhammad Idrees to the effect that after announcement of such judgments by Supreme Court, judgments of Service Tribunal even if not assailed despite availability of limitation period, would stand abated automatically---Authorities failed to point out any para. from the judgments of Supreme Court out of which even such inference could be drawn which could support contention of authorities---High Court noted it with great concern that remedy provided to civil servant under Service Tribunals Act, 1973, was how far efficacious, as injustice done to petitioner for no fault of his but only because of the reason that forum provided to him for redressal of his grievance had no power to implement its own judgment---Such aspect which civil servants as a class were suffering on day to day basis in obtaining execution of orders passed in their favour should be taken care of and only way out was to make necessary amendment in service law empowering Service Tribunals to execute their own judgments---Purpose to establish Service Tribunals was to provide forum with exclusive jurisdiction to class of civil servants for redressal of grievances arising out of service matters and on other hand to decrease work load on regular Civil Courts including High Courts---High Court directed the authorities to implement judgment passed by Service Tribunal in favour of petitioner---Petition was allowed accordingly.

Mubeen-us-Salam's case PLD 2006 SC 602; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Haseeb-ul-Haq v. Federation of Pakistan C.P. No. D-303 of 2005; Abdul Hafeez Abbasi and others v. PIAC 2002 PLC (C.S.) 1083; Bakhtawar and others v. Amin and others 1980 SCMR 89; Khalid Mehmood v. Inspector-General of Police Punjab 1999 PLC (C.S.) 558; M.A. Rashid Rana v. Chief Secretary 1999 PLC (C.S.) 623; Ghulam Sarwar v. Federation of Pakistan 2001 PLC (C.S.) 198; Qazi Muhammad Anwar Barlas v. Federation of Pakistan and another 2000 PLC (C.S.) 1165; Muhammad Ikram Alvi v. Secretary to Government of the Punjab, Communication and Works Department, Lahore 2004 PLC (C.S.) 59; Fazal Elahi v. Pakistan Telecommunication Limited and others 2004 PLC (C.S.) 655; Ahmed Khan v. Secretary, Health Department, Quetta and 2 others 2001 PLC (C.S.) 794; C.Ps. Nos.761 of 2002, 829 and 1060 of 2005; Muhammad Siddique v. State Life Insurance Corporation of Pakistan 2005 PLC (C.S.) 946; Water and Power Development Authority v. Allah Dad Mashori 2008 PLC (C.S.) 260; Tariq Mehmood and 17 others v. Federation of Pakistan 2008 PLC (C.S.) 141 and Khan M. Matiur Rahman and others v. Government of Pakistan 2006 PLC (C.S.) 564 ref.

(b) Interpretation of statutes---

----Subordinate legislation cannot supersede principal legislation.

Petitioner in Person.

Khalid Javed for Respondent No.2.

Date of hearing: 16th April, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 696 #

2009 P L C (C.S.) 696

[Karachi High Court]

Before Mrs. Qaiser Iqbal, J

Messrs ROYAL GROUP through Admn. Manager

Versus

SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION through Commissioner and another

Miscellaneous Appeal No.17 of 2008, decided on 6th March, 2009.

Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 22 & 25---Issuance of notification making appellant liable to pay social security contribution---Demand of additional contribution from appellant as Authority during checking found 12 employees to be serving in his warehouse---Dismissal of appeal filed against such demand was upheld by High Court in circumstances.

Kohinoor Chemical Co. Limited v. Sindh Employees Social Security Institution PLD 1977 SC 197; Sindh Employees' Social Security Institution v. Messrs Quetta Textile Mills Limited 1989 PLC 993; Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888 and Sindh Employees Social Security Institution, Karachi v. Modern Textile Mills Limited 1999 PLC 210 ref.

S.M. Iqbal for Appellant.

Jawad A. Sarwana for Respondents.

PLCCS 2009 KARACHI HIGH COURT SINDH 705 #

2009 P L C (C.S.) 705

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

MANZOOR AHMED SHAIKH

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Gas, Islamabad 2 others

Constitutional Petition No.D-798 of 2007, decided on 11th March, 2009.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4-Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Civil service---Procedure---Past and closed transaction, principle of---Applicability---Petitioner was terminated on 28-8-1997 and he filed departmental representation on 18-9-1997, thereafter he kept on dispatching reminders to competent authorities till 19-10-2000---Petitioner did not file any appeal before Service Tribunal and sought his reinstatement on the basis of judgment passed by Supreme Court in Mubeen-us-Salam's case reported as PLD 2006 SC 602---Validity---Under the procedure petitioner was supposed to file departmental appeal within 30 days from the date of order of termination of service i.e. 28-8-1997, which he had filed on 18-9-1997---Departmental appeal having been filed in time, petitioner was supposed to wait for 90 days, from the date of filing of departmental appeal i.e. 18-9-1997, and 90th day when expired, petitioner could have challenged termination order within 30 days by way of filing appeal before Service Tribunal---Petitioner did not file any such appeal and he was merely pursuing departmental appellate authority to decide his departmental appeal---In the meanwhile S.2-A of Service Tribunals Act, 1973, was declared ultra vires of Arts. 240 and 260 of the Constitution, as decided by Supreme Court in Mubeen-us-Salam's case, reported as PLD 2006 SC 602---Termination of service of petitioner under the order dated 28-8-1997 passed by authorities had become past and closed transaction which could not be reopened at such belated stage on any equitable principle of law---Petitioner was not entitled to any equitable relief in extraordinary constitutional jurisdiction' of High Court---Petition was dismissed in limine.

Mubeen-us-Salam's case PLD 2006 SC 602; Tara Chand v. Karachi Water and Sewerage Board 2005 PLC (C.S.) 368; Hameed Akhtar Niazi's case 1996 SCMR 1185; C.P. No.D-743 of 2007; C.P. No.D-1748 of 2006; Muhammad Sohail v. Government of N.-W.F.P. 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SC.MR 1145 and Zulfiqar-ul-Hussain v. Oil and Gas Development Corporation 2003 PLC (C.S). 368 ref.

Barrister Zamir Hussain Ghumro for Petitioner.

Ashiq Raza, Dy. A.-G. for Respondent No. 1.

Ghulam Murtaza holding brief for Muhammad Humayon for Respondents Nos.2 and 3.

Date of hearing: 11th March, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 717 #

2009 P L C (C.S.) 717

[Karachi High Court]

Before Munib Ahmad Khan and Khalid Ali Z. Qazi, JJ

KHALID AHMED LARIK

Versus

PROVINCE OF SINDH through Chief Secretary, and 2 others

C.M.As. Nos.585 and 366 of 2006 and C.P. No.D-1334 of 2007(Karachi)/Constitutional Petition No.D-144 (Sukkur) and C.M.As. Nos.654, 313, 584, 917 of 2006 and C.P. No.D-98 of 2006, decided on 6th March, 2009.

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

----S. 24---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Terms and' conditions of service---Jurisdiction of Service Tribunal---Seniority, fixation of---Petitioners assailed notification of seniority issued by authorities---Validity---For the purpose of determination of terms and conditions of service, several factual positions in respect to appointment, transfer, option for transfer etc. as well as direction of government were to be assessed and keeping in view all such material, seniority was to be fixed---As there was contest of seniority between the parties, therefore, keeping in view Art.212 of the Constitution, Service Tribunal had exclusive jurisdiction in the matter--Jurisdiction by Service Tribunal was to be exercised keeping in view other necessary requirements which were to be fulfilled as per requirements of Service Laws---Before approaching Service Tribunal, grievance in shape of petition be submitted to department so that matter could be resolved and if not, then appeal could be filed before Service Tribunal---High Court declined to interfere in the matter in view of the bar contained in Art.212 of the Constitution---Petition was dismissed in circumstances.

1998 SCMR 1948; 1998 SCMR 2129 and 1998 SCMR 2280 rel.

1999 SCMR 483 distinguished.

Abrar Hassan assisted by Muhammad Azam Khan, Syed Masroor Ahmed Alvi and Haroon Khan for Petitioners (in Constitutional Petitions Nos.D-98 and D-144 of 2006).

Mukesh Kumar G. Karar for Respondent (in Constitutional Petitions Nos.D-98 and D-144 of 2006).

Liaqat Ali Shar, Addl. A.-G.

PLCCS 2009 KARACHI HIGH COURT SINDH 722 #

2009 P L C (C.S.) 722

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Muhammad Karim Khan Agha, J

HADI BAKSH

Versus

PROVINCE OF SINDH, through Chief Secretary and 3 others

Constitutional Petition No.D-1642 of 2008, decided on 24th March, 2009.

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

----Art. 199 (1)(b)(ii)---Writ of quo-warranto---Filing of petition---Locus standi---Plea raised by respondent being that petitioner being not an aggrieved person, therefore, petition was not maintainable---Validity---Petition under Art..199 (1)(b)(ii) of the Constitution could be filed by any person---Filing of petition did not have to be by any aggrieved party, therefore, petitioner had' locus standi to file petition against respondent---Petition was maintainable in circumstances.

Muhammad Naseem Hijazi v. Province of Punjab 2000 PLC (C.S.) 1310 rel.

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

----Art. 199---Constitutional petition---Quo-warranto, writ of---Respondent was removed from service on the allegation that he did not possess genuine certificates of LL.B.---Later on after four years, respondent was again appointed on the same post---Plea raised by respondent was that order of his removal from service was set aside by the government and he was reinstated in service---Validity---Nothing was shown to the effect that respondent ever possessed genuine certificates, in particular LL.B. which would qualify him to be appointed to the post of sub-inspector---Respondent was initially removed from service for having non-genuine certificates but he was reinstated because he did not have chance to be heard in person---Such reinstatement was not because respondent's degree had been found to be genuine but because he had not been given his right to be heard---Reinstatement of respondent was withdrawn on the basis of detailed inquiry carried out by Chief Minister's Inspection Team---Respondent failed to satisfy the Court of legal basis under which he held office of Sub-Inspector Anti-Corruption Establishment---Order passed by authorities, whereby respondent was reinstated in service was without jurisdiction, without lawful authority and of no legal effect---Petition was allowed in circumstances.

Muhammad Islam v. Government of N.-W.F.P. 1998 PLC (C.S.) 1430 and Gordhandas v. Water and Power Development Authority (WAPDA) 1989 SCMR 14 distinguished.

Muhammad Arshad Khan Tanoli for Petitioner.

Miran Muhammad Shah, Addl. A.-G. Sindh for Respondents Nos.1-3.

Anwar Mansoor Khan for Respondent No.4.

PLCCS 2009 KARACHI HIGH COURT SINDH 735 #

2009 P L C (C.S.) 735

[Karachi High Court]

Before Gulzar Ahmad and Malik Muhammad Aqil Awan, JJ

Dr. YOUNIS ASAD SHAIKH

Versus

PROVINCE OF SINDH through Secretary, Health Department, Government of Sindh

Constitutional Petition No.D-441(Hyderabad)/D-2381 of 2007 (Karachi), decided on 11th April, 2009.

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

----S. 10---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Maintainability---Transfer---Petitioner, who was appointed as Medical Officer on ad hoc basis, under notification was allowed to work as .Deputy Provincial Coordinator on deputation basis for three years---Petitioner having been repatriated/transferred from said post, he challenged his said transfer order---Validity---Under S.10 of Sindh Civil Servants Act, 1973 posting and transfer being the terms and conditions of service, same could not be challenged before High Court in its constitutional jurisdiction---Right from the promulgation of the Service Laws in the year 1973, consistent view of the Courts was that in case of an adverse order having been passed in respect of terms and conditions of service of a civil servant, remedy of appeal under S.4 of Sindh Service Tribunals Act, 1973 was efficacious and could be treated as an alternate, notwithstanding the fact that order impugned suffered from gross violation of law or not---Constitutional petition being not maintainable was dismissed in circumstances.

Aftab Ahmed Warsi v. Punjab Road Transport Corporation 1991 PLC (C.S.) 484; Asadullah Rashid v. Haji Muhammad Munir 1998 SCMR 2129; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Muhammad Akram Tahir v. Secretary Education, Government of Punjab, Lahore 1998 PLC (C.S.) 823 rel.

Shaikh Javed Mir for Petitioner.

Abdul Fateh Malik and Adnan Karim, A.A.-G. for Respondent.

Date of hearing: 27th March, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 743 #

2009 P L C (C.S.) 743

[Karachi High Court]

Before Anwer Zaheer Jamali, C.J. and Muhammad Karim Khan Agha, J

OMER ALI KHAN

Versus

FEDERATION through Secretary, Ministry of Production, Government of Pakistan, Islamabad and 5 others

C.P. No.D-2019 of 2008, decided on 13th March, 2009.

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

----S. 9---Pakistan Steel Officers Service Rules and Regulations, Para.2.34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Petitioner who was regular employee of Pakistan Steel Mills and was working as Manager was promoted to grade of Executive Engineer, was given certain adverse remarks in his ACR for the year 2003--Petitioner had alleged that such remarks were engineered in order to block future prospects of his promotion--Petitioner had claimed that he was a qualified and experienced person and deserved to be promoted as Deputy General Manager, but the officers who were junior to him were promoted and petitioner was discriminated due to alleged adverse remarks, in his ACR for 2003---Denial of promotion to petitioner was not based solely on the adverse remarks in his ACR; decision regarding promotion was largely guided by employee's ACR grading over a period of five years and not adverse comments alone---Paragraph 2.34 of Pakistan Steel Officers Service Rules and Regulations, had provided that process of promotion for employees from manager to Deputy General Manager was that of a Selection Post whereby employees were to be selected on a best out of best formula and not on seniority-cum-fitness basis by the Selection Board---Data on the ACR reports of the respondents had indicated that all who were promoted ahead of the petitioner, had better grading in their ACRs over the five years than the petitioner---Promotion criterion adopted, in circumstances was not based solely on adverse remarks, but largely was based on merits according to average ACR grading of each employee---Petitioner obtained 49.8% average marks for the last five years, while those appointed in all cases got a minimum average of over 67.49% for the last five years---Record had shown that petitioner was accorded an opportunity of being heard by the Promotion Board along with the other; it could not be said, in circumstances, that petitioner was discriminated against in any way during the promotion exercise---Petitioner was rightly denied promotion, in circumstances.

Shahid Amin Hyder v. Secretary, Ministry of Health 2002 SCMR 870; Khuda Bakhsh v: Deputy Commissioner, Capital Development Authority 1999 SCMR 1589 and Government of Pakistan v. Hameed Akhtar Niazi PLD 2003 SC 110 rel.

Abdul Razzak for Petitioner.

M.G. Dastagir for respondent.

PLCCS 2009 KARACHI HIGH COURT SINDH 753 #

2009 P L C (C.S.) 753

[Karachi High Court]

Before Anwar Zaheer Jamali, C. J. and Muhammad Karim Khan Agha, J

Lt.-Col. Syed JAWAID AHMAD (Retd.)

Versus

PAKISTAN DEFENCE OFFICER HOUSING AUTHORITY, KARACHI through

President Executive Board and 2 others

Constitutional Petition No.D-1933 of 2008, decided on 18th May, 2009.

(a) Pakistan Defence Officers' Cooperative Housing Authority Order (P.O. No.7 of 1980)--

----Art. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Petition lies against Defence Housing Authority.

Mustafa Lakhani v. Pakistan Defence Officers Housing Authority PLD 2005 Kar. 188 and Mustafa Lakhani v. Pakistan Defence Officers Housing Authority 2008 SCMR 611 rel.

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

----S. 11---Pakistan Defence Officers' Housing Authority Employees (Service) Rules, 1992, Chapter III, Para.5(a)---Constitution of Pakistan (1973), Art.199--- Constitutional petition-- Maintainability---Non-statutory service rules---Removal from service---Petitioner was employee of Defence Housing Authority whose services were terminated without holding any formal inquiry under the rules---Validity---Pakistan Defence Officers' Housing Authority Employees (Service) Rules, 1992, were non-statutory and their implementation was subject to challenge before High Court under Art.199 of the Constitution, especially as regards question of natural justice and right to be heard---As the Authority was statutory body and it fell within the purview of Art.199 of the Constitution, therefore, its employees were brought within the ambit of Removal from Service (Special Powers) Ordinance, 2000---It was unjust, immoral, unethical and against the spirit of fair play for any institution to terminate an employee, who had been in the service of institution for around 7 years, ostensibly on the grounds of misconduct without affording that employee an opportunity to respond to the allegations---Such practice was more so in a developing society which did not have a fully developed welfare State for affected employees to fall back on and who might find himself at the mercy of unscrupulous employers during recessionary times---Authorities were obliged to follow provisions contained in Removal from Service (Special Powers) Ordinance, 2000, before initiating any action against its employees as it had overridden Pakistan Defence Officers' Housing Authority Employees (Service) Rules, 1992---Order terminating service of petitioner was set aside and High Court directed the authorities to hold inquiry against petitioner by adopting all codal formalities under Removal from Service (Special Powers) Ordinance, 2000---Petition was allowed accordingly.

Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S.) 1046; Tanveer-ur-Rehman v. Pakistan International Airline Corporation 2009 PLC (C.S.) 28; Shakhawat Ali v. Deputy Commissioner/Chairman 1998 PLC 19; Imam Shah v. Government of N.-W.F.P. PLD 2004 SC 285; Ahmad Hassaan v. Government of Punjab PLD 2004 SC 694; Habib Bank Limited v. Ghulam Mustafa Khairati 2008 SCMR 1516; Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806; PIA Corporation v. Shahabuddin 1993 PLC (C.S.) 1; Zeba Mumtaz v. First Women Bank Ltd. PLD 1999 SC 1106; Raziuddin v. Chairman PIA Corporation PLD 1992 SC 531; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Principal, Cadet College, Kohat v. Muhammad Shoab PLD 1984 SC 170; Anwar Hussain v. Development Bank of Pakistan PLD 1984 SC 194; Anwar Hussain v. A.D.B.P. 1992 SCMR 1112; Habib Bank Limited v. Zia-ul-Hassan Kazmi 1998 SCMR 60; Muhammad Mumtaz Javed v. Pakistan. 1988 CLC 1965; Nazir Ahmad Panhwar v: Government of Sindh 2005 SCMR 1814; I.-G. Hq. Frontier Corps. and others v. Ghulam Hussain and others 2004 PLC (C.S.) 1187; Federation of Pakistan through D.G. Military Lands and Cantonment Rawalpindi and others v. Syed Ibrahim Shah and others 2007 PLC (C.S.) 1288; Azizullah Memon v. Province of Sindh and others 2007 SCMR 229 and Tanvir Hussain v. Divisional Superintendent, Pakistan Railway and 2 others PLD 2006 SC 249 rel.

Muhammad Arshad Khan Tanoli for Petitioner.

Khalid Javed for Respondent.

PLCCS 2009 KARACHI HIGH COURT SINDH 767 #

2009 P L C (C.S.) 767

[Karachi High Court]

Before Sajjad Ali Shah and Khadim Hussain M. Shaikh, JJ

Dr. ITEFAQUE HUSSAIN

Versus

DISTRICT ACCOUNTS OFFICER, HYDERABAD and 2 others

Constitutional Petition No.D-156 of 2007, heard on 5th March, 2009.

General Provident Fund Rules, 1938---

----R. 14(A)(2)---Government of Sindh, Finance Department Notification No. FD/BB&E/2(18)/75-94(P-VII), dated 15-10-2002---Constitution of Pakistan (1973), Art.199---Constitutional petition---General Provident (G.P.) Fund---Advance payment---Scope---Grievance of petitioner was that government accorded sanction of 40% non-refundable G.P. Fund in his favour but authorities had refused to pay him the same---Validity---Petitioner had already availed facility of 40% non-refundable G.P. Fund advance according to his age, as per criteria provided under amended R.14(A)(2) of General Provident Fund Rules, 1938 and there was no provision provided for, allowing such facility a second time to petitioner---Petitioner got order in his favour from government by concealing fact of earlier G.P. Fund advance taken by him and did not disclose entire facts---Order passed by Provincial Government in favour of petitioner was misconceived, having been based on no rule or policy and was ab initio void deserving to be ruled out of consideration---Authorities were not bound to make him payment as order passed by Provincial Government was -illegal and not tenable---Petitioner failed to point out any provision whereby he could claim second payment of non-refundable G.P. Fund per his present age---Petition was dismissed in circumstances.

Petitioner inn person.

Allah Bachayo Soomro, Addl. A.-G., Sindh for Respondents.

Date of hearing: 5th March, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 776 #

2009 P L C (C.S.) 776

[Karachi High Court]

Before Gulzar Ahmad and Malik Muhammad Aqil Awan, JJ

NAZEER AHMED CHAKRANI and 2 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural

Resources, Government of Pakistan and 2 others

Constitutional Petition No.D-1841 of 2008, decided on 16th April, 2009.

(a) Civil service---

----Retired employee---Benefits---Principle--Retired employees have been classified as separate class other than employees in service---Benefit granted by employer to employees in service cannot be extended to retired employees automatically for reason that such benefit is granted with retrospective effect.

2001 PLC (C.S.) 810 rel.

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

----Arts. 23, 24(1) & 199---Constitutional petition---Non-statutory instrument--Implementation-Pensionary benefits---Scope---Petitioners were retired employees of Pakistan State Oil Company and invoked constitutional jurisdiction of High Court for enforcement of minutes of meeting of Board of Management whereby salaries of employees were increased---Plea raised by authorities was that as petitioners wanted to implement non-statutory instrument, therefore, petition was not maintainable---Validity---High Court in constitutional jurisdiction could enforce a statutory rule to the extent if right of any employee was violated in defiance of such statutory rule---Ordinarily contractual obligation or obligations arising out of non-statutory instruments were not enforceable in extraordinary constitutional jurisdiction of High Court under Art.199 of the Constitution---Right to receive pension by government servant was property so as to attract Arts.23 and 24 (1) of the Constitution and any illegal denial of same to a Government servant would affect his fundamental right guaranteed under such provisions of the Constitution---High Court declined to interfere in the matter as petitioners were not entitled to any relief---Petition was dismissed in circumstances.

2001 PLC (C.S.) 810 distinguished.

I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 and Mubeen-us-Salam's case PLD 2006 SC 602 rel.

Sanaullah Noor Ghauri for Petitioners.

Ashiq Raza, D.A.-G. for Respondent No.1.

Asim Iqbal for Respondents Nos.2 and 3.

Date of hearing: 16th April, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 788 #

2009 P L C (C.S.) 788

[Karachi High Court]

Before Gulzar Ahmad and Malik Muhammad Aqil Awan, JJ

ZULFIQAR ALI RAJPUR and 2 others

Versus

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

Constitutional Petition No.D-2135 of 2007, decided on 8th May, 2009.

(a) Administration of justice---

----Judges are duty bound to consider the facts of judgments/precedents cited before them as a matter of assistance rendered by members of the Bar for resolving the controversy and in no circumstances should ignore the same---Similarly a duty is cast upon the members of the Bar to cite the case-law which is relevant on the point in issue and may provide some assistance to the court to reach a just conclusion/decision---When a counsel knowingly cites a case/precedent before a court which is absolutely irrelevant to the point in issue, he merely plays to the gallery in order to please his client and such type of conduct of the counsel amounts to misconduct which was deprecated by High Court.

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

----Art. 199---Constitutional petition---Laches---Termination of service---Petitioners/employees had purposely not filed the order of termination in order to misguide the court on the point of laches---Neither the date of first termination was mentioned nor the date of second termination was mentioned in the constitutional petition nor the said orders were filed along with the memo. of petition---Appointment and termination had taken place in the late 90's whereas petition for the relief of reinstatement was filed on 2-10-2007 with no explanation of such serious laches---Petition did not mention that petitioners had ever challenged their termination of service in any competent court of law including Labour Court or Service Tribunal, which meant that they had acquiesced in their termination of service and on account of such acquiescence they were estopped from challenging their termination of service at a belated stage---Termination of service of petitioners having taken place long before it had become past and closed transaction hind on no equitable principle of law, matter could be reopened at a belated stage---Constitutional petition, in circumstances, suffered from serious unexplained laches as 'well as acquiescence and was not maintainable.

Hameed Akhtar Niazi v. Secretary Establishment Division 1996 SCMR 1185; Tara Chand v. Karachi Water and Sewerage Board Karachi and others 2005 SCMR 499; Farhat Azeem v. Waheed Rasul PLD 2000 SC 18; Mirza Muhammad Iqbal v. The State PLD 1999 Lah. 109; Director, A.-G.'s Branch, Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988; Manzoor Ahmed Shaikh v. Federation of Pakistan C.P. No.D-798 of 2007 and Mubeen-us-Salam's case PLD 2006 SC 602 ref.

Director, Social Welfare N.-W.F.P., Peshawar v. Saadullah Khan 1996 SCMR 1350; House Building Finance Corporation v. Inayatullah Shaikh 1999 SCMR 311; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore, PLD 1971 SC 61; Muhammad Dawood and others v. Federation of Pakistan 2007 PLC (C.S.) 1046; Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik 2001 SCMR 934 and Pakistan and others v. Public-at-large PLD 1987 SC 304 distinguished.

----Art. 189---Failure to consider the judgment of Supreme Court which is relevant and applicable over the facts of the case makes the judgment passed by any competent court as per incuriam.

Mansoorul Haq Solangi for Petitioners.

Ms. Cookie Rawat, Standing Counsel for Respondent No.1.

Asim Iqbal for Respondent No.2.

Date of hearing: 9th April, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 799 #

2009 P L C (C.S.) 799

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Messrs AXACT PRIVATE LIMITED through Manager Administration

Versus

PROVINCE OF SINDH through Secretary, Labour, Government of Sindh and 4 others

Constitutional Petition No.D-593 of 2008, decided on 4th May, 2009.

Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 20, 22 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Social security contribution---Issuance of notice---Attachment of vehicle---Petitioner establishment contended that it was not entitled to pay contribution as its employees were getting more salary---Petitioner assailed notice of recovery issued by authorities and raised the plea that authorities had no power to attach its vehicle for recovery of contribution---Validity--Notice of recovery was silent to show that on what evidence or strength, authorities calculated arrears mentioned therein---Notice also did not speak about holding of any inquiry as envisaged under S.22 of Provincial Social Security Ordinance, 1965---Authorities had even not filed any counter-affidavit nor had brought any material on record to show that in what manner they had calculated amount towards contribution, nor it specified the number of employees who were getting salary below Rs.5,000 per month---Authorities did not adopt -,procedure provided in Provincial Social Security Ordinance, 1965, for assessing contribution and penalizing petitioner---After service of notice of contribution, authorities were not permitted under provisions of Provincial Social Security Ordinance, 1965, to attach any movable or immovable property of defaulter so as to compel the defaulter to deposit defaulted contribution---Attachment of vehicle of petitioner was in excess of power of authorities and could not be sustained under S.23 of Provincial Social Security Ordinance, 1965---Act of authorities in attaching vehicle of petitioner was declared as illegal, void ab initio, ultra vires and against the provisions of Provincial Social Security Ordinance, 1965---High Court directed the authorities to release the vehicle forthwith and adopt lawful methods for recovery of arrears of contribution, if any, in accordance with S.23 of Provincial Social Security Ordinance, 1965---Petition was allowed in circumstances.

Sunshine Diaries Ltd. v. Commissioner of Sindh Employees Social Security Institution reported in PLD 1976 Kar. 1228; Kohinoor Company and others v. Sindh Employees Social Security PLD 1977 SC 197 and Sindh Employees Social Security Institution v. Messrs Corn Pak Ltd 1988 PLC 115 rel.

Sindh Employees Social Security Institution v. Messrs Corn Pak Ltd 1988 PLC 115 distinguished.

Abdul Karim Khan for Petitioner.

Shafi Muhammad Memon, Addl. A.-G. for Respondent No.1.

Jawwad A. Sarwana for Respondents Nos.2 and 3.

Date of hearing: 24th February, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 817 #

2009 P L C (C.S.) 817

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Faisal Arab, J

Syed AIJAZ AHMED SHAH

Versus

FEDERATION OF PAKISTAN and others

C.P. No.D-1200 of 2007, decided on 13th January, 2009.

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

----Ss. 3 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Removal from service---Remedy of appeal was available to petitioner under S.10 of Removal from Service (Special Powers) Ordinance, 2000 which was quite adequate and proper---Under provisions of such special statute, constitutional petition was not competent---Petition was dismissed with the observation that petitioner could avail remedy of appeal available to him under S.10 of Removal from Service (Special Powers) Ordinance, 2000.

Anwar Pervez v. Chairman, Board of Intermediate and Secondary Education, Abbottabad 2005 SCMR 1603 ref.

Azizur Rehman for Petitioner.

Sanaullah Noor Ghouri for Respondents Nos.2 to 4.

PLCCS 2009 KARACHI HIGH COURT SINDH 819 #

2009 P L C (C.S.) 819

[Karachi High Court]

Before Gulzar Ahmad and Malik Muhammad Aqil Awan, JJ

RASHID AQEEL

Versus

PROVINCE OF SINDH through Chief Secretary and 6 others

Constitutional Petition No.D-2458 of 2007; decided on 1st June, 2009.

Sindh Government Rules of Business, 1986---

----R. 21(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance of the petitioner was that Authority had not . implemented the notification by which petitioner was promoted to the post of District Officer BS-19---Petitioner had contended that as he had acquired vested right to his promoted position, its non-implementation by the Authority was contrary to law---Validity---Petitioner was employed as Additional District Officer BS-18 and under the order of competent authority to streamline the work and redress the anomaly created among the officers, nomenclature of two posts of Additional District Officers including the petitioner had been changed as District Officer BS-19 and both were allowed to continue in scale B-19 which was allowed by move-over---Said orders were issued with the approval of competent authority---Competency to make appointment/promotion to BS-19 though lay with Chief Minister, but such powers in the case of the petitioner were exercised by the Chief Secretary under R.21(b) of Sindh Government Rules of Business, 1986 on the proposal of Administrative Department---No material was available before the court to determine that such move-over could not have been granted to the petitioner---Record did not show that any enquiry was conducted by the Authority to ascertain the fact whether order of change of nomenclature and move-over were fake and fictitious---Petitioner seemed to have been promoted to the post of District Officer BS-19 and notification to that effect was duly supported---Petition was allowed to the extent of promotion granted to the petitioner through notification.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 ref.

Muhammad Zahid Khan for Petitioner.

Adnan Kareem, A.A.-G., Sindh for Respondent Nos. 1 to 5.

Manzoor Ahmed for Respondent No.6.

Shabbir Ahmed Awan for Respondent No.7.

PLCCS 2009 KARACHI HIGH COURT SINDH 824 #

2009 P L C (C.S.) 824

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Muhammad Karim Khan Agha, J

Messrs HOLY FAMILY HOSPITAL through Administrator

Versus

GOVERNMENT OF SINDH and another

Constitutional Petition No.D-182 of 2008, decided on 26th May, 2009.

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

----Art. 199---Constitutional petition---Non-filing of comments or counter-affidavit by respondent in respect of constitutional petition---Effect---Factual pleas of petitioner would stand admitted.

(b) Provincial Employees' Social Security Ordinance (X of 1965)---

---Ss. 1(3) & 2(11)---Constitution of Pakistan (1973), Arts.25 & 199---Constitutional petition---Hospital working on non-profit basis registered under Societies Registration Act, 1860 and giving medical facilities to its employees---Notification of Government notifying such hospital as an "establishment" for purposes of Provincial Employees' Social Security Ordinance, 1965---Demand of social security contributions from such hospital in respect of its employees---Validity---While interpreting words "an organization whether industrial, commercial, agricultural or otherwise" as used in S.2(11) of Provincial Employees' Social Security Ordinance, 1965 on basis of rule of ejusdem generis, only other organization similar to industrial, commercial and agricultural would be included such as other profit making organizations---Such interpretation would exclude charitable non-profit making organizations like such hospital---Object and purpose of the Ordinance was to provide benefit to working population---Rule of ejusdem generis would not apply to Ordinance for same being progressive legislation to bring as many business as possible within its ambit over the score of time---Term "establishment" would be given widest interpretation---Excluding a class of employees from ambit of such beneficial legislation for happening to be working for a charitable organization would have effect of penalizing people working for good of community---Such hospital would fall within definition, of "establishment" and come within ambit of the Ordinance---Aim of Ordinance was to bring all hospitals within its ambit over the course of time---Such hospitals had not been discriminated in terms of impugned notification under Art.25 of the Constitution---High Court dismissed petition in limine.

Don Basco High School v. The Assistant Director, E.O.B.I. PLD 1989 SC 128; Holy Family Hospital Society v. Third Sindh Labour Court, Karachi PLD 1979 Kar. 529; Messrs Karachi Adventist Hospital v. Government of Sindh and another Constitutional Petition No.D-619 of 2005; Al-Riaz Memorial Educational Society v. Commissioner, Sindh Employees Social Security Institute, Karachi 2008 PLC 293; Muslim Educational Society v. Government of Sindh 2006 PLC 263; Liaquat National Hospital Association v. Government of Sindh 2006 PLC 364; Black's Law Dictionary, Sixth Edition; St. Bonaventure's Boys High Schools Tilak Incline and Qasimabad, Hyderabad v. Province of Sindh 2004 PLC 381; Adamjee Foundation v. First Sindh Labour Court PLD 1979 Kar. 510; Kohinoor Chem Co. Ltd. v. Sindh Employees Social Security Institution PLD 1977 SC 197 and Standard Printing Press v. Sindh E.S.S.I. 1988 SCMR 91 ref.

Muhammad Humayun for Petitioners.

Nemo for Respondent No.1.

Jawwad Sarwana for Respondent No.2.

PLCCS 2009 KARACHI HIGH COURT SINDH 837 #

2009 P L C (C.S.) 837

[Karachi High Court]

Before Sajjad Ali Shah and Sabihuddin Ahmed, JJ

BURHANULLAH KAZIM

Versus

UNIVERSITY OF KARACHI and others

Constitutional Petition No.D-1672 of 2007, decided on 19th November, 2007.

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

----S. 5---University of Karachi Act (XXV of 1972), S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment on ad hoc basis---Termination of service---Petitioner was appointed as Assistant Controller by the Vice-Chancellor, University of Karachi while exercising powers under S.14 of the University of Karachi Act, 1972 on ad hoc basis till the meeting of Selection Board---In response to an advertisement, the petitioner along with others applied for regular appointment---Petitioner who was not recommended, his services were terminated through impugned letter and petitioner had filed constitutional petition---Validity---Ad hoc employee would acquire no vested right to remain in service and his services were liable to be terminated the moment a regular appointee was chosen---Termination of service of the petitioner after the selection of regular appointee, was unexceptionable and unquestionable--Petitioner could not claim discrimination--Appointments on compassionate ground had hardly any legal justification and if called in question, in appropriate proceedings, could not be found strictly in accordance with law---No discrimination could be claimed on that basis---Constitutional petition was dismissed.

PIAC v. Shahzad Farooq Malik 2004 SCMR 158 ref.

Rafiq Ahmed Kalwar for Petitioner.

Moin Azhar Siddiqui for Respondents.

Zubair Qureshi, A.A.-G. on Court Notice.

Date of hearing: 24th October, 2007.

PLCCS 2009 KARACHI HIGH COURT SINDH 841 #

2009 P L C (C.S.) 841

[Karachi High Court]

Before Anwar Zaheer Jamali C. J., Khilji Arif Hussain, Sajjad Ali Shah, Nadeem Azhar Siddiqi and Muhammad Karim Khan Agha, JJ

RASHEED A. RAZVI and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petitions Nos.D-2404 of 2008 and D-38 of 2009, decided on 15th June, 2009.

Sindh Judicial Service Rules, 1994---

---Rr. 2 & 5---Sindh Government Notification No.S.O.R.-I (5GA&CD) 2-3/93, dated 4-12-2008---Constitution of Pakistan (1973), Arts.199, 4, 9; 14, 175 & 203---Constitutional petition---Grievance of the petitioners was that issuance of Notification No.S.O.R.-I(5GA&CD) 2-3493, dated 4-12-2008 was violative of Arts.4, 9, 14, 175 & 203 of the Constitution and also against the doctrine of separation of powers and independence of judiciary inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Pakistan (PLD 1989 Kar. 404), which was maintained by the Supreme Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) and following the directions contained in the said judgment, the Government of Sindh, in, exercise of its power under S.26, Sindh Civil Servants Act, 1973 framed Sindh Judicial Service Rules, 1994 for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto---In the terms of Sindh Judicial Service Rules, 1994 (before the issuance of impugned notification) the position was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under R.2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the "Provincial Selection Board"; however, after the issuance of Sindh Government Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 in this regard now the only authority left with .the High Court of Sindh was the formality of sending requisition to the "Commission" as defined under newly added R.2(aa) of the Sindh Judicial Service Rules, 1994---Moot question for consideration of the present five members Full Bench was, whether, despite clear and unambiguous directions of a Full Bench of Sindh High Court contained in Sharaf Faridi's case affirmed by the Supreme Court, Sindh Judicial Service Rules, 1994 framed in compliance of such directions, could be amended so as to negate the very spirit and directions in the said judgment and also to cause a serious blow to the sanctity of a separate and independent judiciary in the Province of Sindh---Held, result of impugned notification was that in a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of Civil Judges-cum-Judicial Magistrates had been completely eliminated, except to the extent of sending a requisition, which was nothing but a formality---Issuance of the impugned notification, amounted to negating the directions of Full Bench of the Sindh High Court contained in Sharaf Faridi's case---By issuing the impugned notification which amended the Sindh Judicial Service Rules, 1994, Government of Sindh took a step which was contrary to settled procedure and practice, unconventional and unilateral, which paralyzed the very basic structure of the recruitment process as earlier envisaged in the said Rules for appointment of Judicial Officers--Terms "recruitment" and "appointed" used in the Rules did not convey a symbolic authorization for the High Court to issue requisition to the Government for this purpose or to sign for or issue appointment letters of the Judicial Officers, leaving the other main crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities, rather they provided for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government. and consequent notification to that effect---If amended Rules as per notification were implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work would become only an authority, that has to make requisition to the Provincial Public Service Commission for such appointments with no further role or participation at any stage---Provincial Public Service Commission had no jurisdiction to play any role in the recruitment/appointment of Civil Judges and Judicial Magistrates, which exercise exclusively fell within the domain of the "Provincial Selection Board" formed under Sindh Judicial Service Rules, 1994, which was substantiated by the fact that Civil Judges-cum-Judicial Magistrates, after their recruitment, in judicial service, did not acquire the status of "civil servants"---All the members of the "Provincial Selection Board" established under Rule 2(e) of the Sindh Judicial Service Rules, 1994 were none else, but sitting Judges of the High Court of Sindh before whom most of the candidates who might have applied for such posts, must have been appearing frequently---Impact of the impugned notification over the Sindh Judicial Service Rules, 1994 was cutting at the very root of the concept of separation of power and independence of judiciary; on one hand by addition of sub-Rule (aa) to R.2, it introduced a new Institution (Sindh Public Service Commission) which was otherwise an alien to the Rules, and on the other hand, by amendment in R.5, it completely ousted the role of "Provincial Selection Board" and made the highest Court of the Province simply an Institution, that could only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise---Doctrine of separation, of Judiciary from the Executive and independence was not only to be gauged on the yardstick of the relevant constitutional provisions and settled law by the superior Courts, but also from the public perspective---Under the doctrine of separation of powers there was no room for any adversarial stance between the pillars of the State viz. Legislature, Executive and Judiciary, rather said system could flourish and become strong when each of three organs of the State function strictly within their domain and jurisdiction, with respect of each other and spirit of harmonious working without any overlapping or sharing of powers---Independence of judiciary was something, which was to be jealously guarded and could not be compromised at any cost---Initial appointment/recruitment of Civil Judges/Judicial Magistrates was its integral part, forming its foundational stone, thus, the impugned notification negating said position and transgressing the limits of judicial independence was liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution---High Court, declared that amendments made in Rules 2 & 5 of the Sindh Judicial Service Rules, 1994 and the Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 were without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires the Constitution and that the amendments made in -Rr.2 & 5 of the Sindh Judicial Service Rules, 1994 were illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to, and in violation of Arts.4, 9, 14, 175 & 203 of the Constitution---Principles exhaustively recorded by High Court with comparative survey of the system of recruitment of Judicial Officers and independence of judiciary of other countries of the world and examined constitutional history of Pakistan and Reports submitted at different times in the past on the subjects.

Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Government of Balochistan through Additional Chief 'Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416; Chandra Mohan v. State of U.P. AIR 1966 SC 1987; State of Kerala v. A. Lakshimikutty AIR 1987 SC 331; State of Assam v. Kusseswar AIR 1970 SC 1617; Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595; Syed Imam Shah and others v. Government of N.-W.F.P. PLD 2004 SC 285; Federation of Pakistan v. Ammar Textile Mills, (Pvt.) Limited and others 2002 SCMR 51C;, Nawaz Ali Sher v. Province of Sindh 1988 PLC (C.S.) 337; Manthar Ali Jatoi Vs. The Government of Sindh 1988 PLC (C.S.) 344; "Constitutional & Administrative Law" by Hilaire Barnett (Fifth Edition published in the year 2004); De 1'Esprit des lois' (The Spirit of the Laws) (1748); Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Haji Hashmatullah v. K.M.C: PLD 1971 Kar 514; Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lah. 49; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26; Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 and Muhammad Mubinus Salam and others v. Federation of Pakistan and others PLD 2006 SC 602 ref.

Petitioner No.1 in person assisted by Tahmasp R. Razvi and Mrs. Umaimah A. Razvi (in C.P. No.D-2404 of 2008).

Petitioner No.2 Sindh High Court Bar Association (in C.P. No.D-2404 of 2008) through Petitioner No.1.

Petitioner No.1 in person in (C.P. No.D-38 of 2009). Petitioner No.2 Sindh Bar Council (in C.P. No.D-38 of 2009) through Petitioner No.1.

Muhammad Yusuf Leghari, Advocate-General Sindh along with Muhammad Sarwar Khan, Addl., A.-G. Sindh for Respondents Nos.1 and 2 (in both the petitions).

Ashraf Mughal, Deputy Attorney-General for Respondent No.3 (in both the petitions).

Dates of hearings: 10th and 15th June, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 888 #

2009 P L C (C.S.) 888

[Karachi. High Court]

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

ABDUL REHMAN

Versus

PRESIDENT HABIB BANK LIMITED and others

Constitutional Petition No.D-882 of 2007, decided on 17th January, 2008.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition, maintainability of---Dismissal from service---Petitioner, who was dismissed from service after issuing him show-cause notice and holding inquiry against him, filed departmental appeal against dismissal order---Said departmental appeal having been dismissed, the petitioner filed constitutional petition---Employer had contended that constitutional petition was not maintainable in law as employer Bank after privatization had no concern with the affairs of Federation or a Province, which was condition precedent for maintainability of constitutional petition and that petition was liable to be dismissed on that score alone---Article 199 of the Constitution provided an adequate remedy when no alternative remedy was available---High Court could make an order directing a person .performing within, territorial jurisdiction of the court functions in connection with the affairs of the Federation, a Province or a Local Authority to refrain from doing any thing he was not permitted by law to do, or to do any thing which it was required by law not to be done or declare that any act done or proceedings taken by a person performing functions in connection with the affairs of Federation, a Province or a Local Authority had been done or taken without lawful authority and was of no legal effect---After privatization of employer Bank, it was run by a private party---Employer Bank, in circumstances, had no concern with the affairs of Federation or a Province, which was condition precedent for maintainability of constitutional petition---Petition in circumstances was not maintainable in law, which was dismissed accordingly.

Khalid Mehmood v. Habib Bank Limited and others 2005 MLD 1798; Zainul Abidin v. Multan Central Cooperative Bank Ltd., Multan PLD 1966 SC 445; Sheikh Rasheed Ahmed v. United Bank Ltd. and others PLD 1987 Pesh. 144; 2000 PLC (C.S.) 1355 and 2001 PLC (C.S.) 207 ref.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 17th January, 2008.

PLCCS 2009 KARACHI HIGH COURT SINDH 891 #

2009 P L C (C.S.) 891

[Karachi High Court]

Before Amir Hani Muslim, J

MUSHTAQUE HUSSAIN QAZI

Versus

FEDERATON OF PAKISTAN through Secretary Revenue Division/Chairman, Federal Board of Revenue and others

Suit No. Nil of 2008, decided on 7th November, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for ad interim injunction---Plaintiff had been transferred four times since August, 2008, which ex facie, appeared to be violative of the principle of Policy governing the transfer of the government servants---Such indiscriminate actions could be taken note of by the court---Case of ad interim injunction having been made out, order of defendant/Authority transferring the plaintiff was suspended---No further transfer would be ordered by the defendants during pendency of application.

Director-General, Health Service v. Nazakat Iqbal Karim 2000 SCMR 67 rel.

Khalid Jawed Khan for Plaintiff.

Fazlur Rehman, Federal Counsel for Defendant No.1.

Irfanullah holding brief for Jawaid Farooqi for Defendant No.3.

PLCCS 2009 KARACHI HIGH COURT SINDH 914 #

2009 P L C (C.S.) 914

[Karachi High Court]

Before Gulzar Ahmed and Malik M. Aqil Awan, JJ

AZIZ-UR-REHMAN CHAUDHRY

Versus

FEDERATON OF PAKISTAN and another

C.P. No.D-91 of 2008, decided on 2nd May, 2009.

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

----S. 4---Constitution of Pakistan (1973), Arts.199 & 212(3)---Constitutional petition---Jurisdiction of High Court to implement judgment of Service Tribunal---Scope---Short question of law involved in the constitutional petition was as to whether High Court was competent to implicate the legal and valid judgment of the Service Tribunal in its constitutional jurisdiction---Service Tribunal having no power to execute its judgment, constitutional petition for implementation of judgment of Service Tribunal was maintainable---Counsel for authorities had failed to point out any provision of law which disentitled the High Court in its constitutional jurisdiction to implement the judgment of Service Tribunal---Constitutional petition was allowed.

Mubeen-us-Salam and others v. Federation of Pakistan and others PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank and others PLD 2007 SC 681; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Bakhtawar and others v. Amin and others 1980 SCMR 89; Khalid Mehmood v. Inspector-General of Police, Punjab 1999 PLC (C.S.) 558; M.A. Rashid Rana v. Chief Secretary 1999 PLC (C.S.) 623; Nazi Muhammad Anwar Barlas v. Federation of Pakistan and another 2000 PLC (C.S.) 1165; Muhammad Ikram Alvi v. Secretary to Government of the Punjab Communication and Works Department, Lahore 2004 PLC (C.S.) 59; Ahmed Khan v. Secretary, Health Department, Quetta and 2 others 2001 PLC (C.S.) .794; Muhammad Siddique v. State Life Insurance Corporation of Pakistan 2005 PLC (C.S.) 946; Water and Power Development Authority v. Allah Dad Mashori 2008 PLC (C.S.) 260; Tariq Mahmood and 17 others v. Federation of Pakistan 2008 PLC (C.S.) 141 and Khan M.. Matiur Rahman and others v. Government of Pakistan 2006 PLC (C.S.) 564 ref.

(b) Service Trib6nals Act (LXX of 1973)---

---S. 3---Purpose of establishment of Service Tribunals---Very purpose to establish Service Tribunals was to provide a forum with exclusive jurisdiction to the class of civil servants for redressal of the grievances arising out of service matters; and on the other hand to decrease the work load of regular civil courts including the High Courts.

Petitioner in person.

Khalid Javed for .Respondent No.2.

Date of hearing: 16th April, 2009.

PLCCS 2009 KARACHI HIGH COURT SINDH 925 #

2009 P L C (C.S.) 925

[Karachi High Court]

Before Munib Ahmad Khan and Muhammad Ismail Bhutto, JJ

MANZOOR HUSSAIN CHANDIUO through attorney, and 201 others

Versus

PROVINCE OF .SINDH through Secretary Education and 4 others

C.M.As. Nos.2542, 2332, 2015, 1739 and C.P. No.603 of 2.008, decided on 14th July, 2009.

Constitution of Pakistan (1973)---

----Art. 199--- Constitutional petition---Civil service---Regularization of services---Petitioners were appointed in the year 2007 in lower post of Naib Qasid, Driver and Chowkidar; they performed their duties in different educational institutions, but they had not been paid any salary despite the fact that they were issued offer letters and they submitted their joining reports and there was no complaint against them from their immediate bosses in past more than a year---Main objection of Authority was that some of the petitioners were appointed by the Assistant District Officer who was not competent to issue appointment letters---No complaint was on the record from the concerned officers of the Institutions that the petitioners were not working or not attending the office---Nothing was on record that any disciplinary action 'was taken against Assistant District Officer who allegedly appointed the petitioners unauthorisedly---Two persons who had been appointed by said Assistant District Officer had been paid salaries---Education Department had failed to discharge its responsibility by not taking the process of appointment in proper way---Petitioners who had been working on their posts for a long period, could not be deprived of their posts on the excuses that something had been done by incompetent official under the very nose of senior officers---Such aspect itself needed strict action against the persons found involved in all that melee---Conduct of government officials could not be approved and appreciated as internal management and governance was responsibility of the Government---Petition was allowed with the direction that all the petitioners be adjusted on the posts they were working and be paid salaries and their dues within specified period and action be taken against the officers who were found involved in dereliction of their duties.

Ahmed Ali Ghumro for Petitioners.

Imtiaz Ali Soomro, Asstt. A.-G. along with Asghar Ali Leghari, E.D.O. Education, Ghotki, Assistant District Accounts Officer, Ghotki and District Accounts Officer, Sukkur on behalf of Secretary Finance.

PLCCS 2009 KARACHI HIGH COURT SINDH 928 #

2009 P L C (C.S.) 928

[Karachi High Court]

Before Anwar Zaheer Jamali, C.J. and Syed Pir Ali Shah, J

ROOPA SYED

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

C.P. No.D-101 of 2007, decided on 20th November, 2008.

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

----Art. 199---Constitutional petition---Civil service---Regularization of' service---Case of the petitioner was that instead of regularizing her after completion of one year of service, Corporation continued to extend the contract of her service---Petitioner had alleged that the respondent/ Corporation had acted arbitrarily, and capriciously and did not regularize her service, whereas services of her juniors had been regularized---Performance of the petitioner was being appreciated by her superiors which had reflected that she was devotedly working with the respondent's institution---At no time she was charge-sheeted or disciplinary and administrative action was initiated against her for any lapse, acts or omissions on her part---Deficiency, if any, on the part of the petitioner seemed to be that at time of consideration of her regularization along with others, she was on maternity leave and on account of which her case was deferred for regularization---After she had availed maternity leave, she applied for her regularization in service, but she was neither heard nor she was regularized---Petitioner was not afforded proper hearing, rather she was condemned unheard---Employee was not assigned any reason as to why she was not regularized since long---Juniors of the petitioner were actually regularized---No valid, legal and cogent reason had been assigned for such discriminatory action---It would be in the fitness of the things that the petitioner would appear before Suitability/Regularization Board of the employer Corporation, who would examine the case of the petitioner for regularization on merits in accordance with law and would decide the case accordingly.

Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.) 1131; Water and Power Development Authority through Chairman WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Abid Hassan and others v. PIAC and others 2005 SCMR 25; Government of N.-W.F.P. through Secretary Education and others v. Rukhsar Ali and others 2005 SCMR 22; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Agha Saliin Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930; Municipal Committee, Sirsa v. Munshi Ram AIR 2005 SC 792; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; 1998 PLC 19 and 1994 SCMR 2232 rel.

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

----Art. 199---Constitutional petition---Scope---Constitutional petition could be filed when there was no ocher adequate remedy provided by law.

Khalid Javed Khan for Petitioner.

Shahid Anwar Bajwa for Respondent.

Lahore High Court Lahore

PLCCS 2009 LAHORE HIGH COURT LAHORE 1 #

2009 P L C (C.S.) 1

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mrs. KHALIDA AMJAD

Versus

GOVERNMENT OF THE PUNJAB through Secretary of Education, Lahore and another

Writ Petition No.5840 of 2008, decided on 4th July, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---De novo inquiry---Limitation---Departmental inquiry was initiated against civil servant and Inquiry Officer appointed by department had exonerated him but departmental authority ordered for de novo proceedings---Plea raised by civil servant was that de novo inquiry could not be ordered after thirty days of submission of inquiry report---Validity---Departmental authority was empowered to order for de novo proceedings but strictly in accordance with the provisions of S.8 of Punjab Removal from Service (Special Powers) Ordinance, 2000, which provision did not permit the authority to do after a lapse of thirty days of submission of inquiry report, wherein civil servant was exonerated---Competent authority did not adhere to plain language of S.8 of Punjab Removal from Service (Special Powers) Ordinance, 2000, hence the order for de novo inquiry having been passed in excess of jurisdiction, was set aside---Petition was allowed in circumstances.

Asmat Kamal Khan for Petitioner.

Naeem Masood, Asstt. A.-G. with Muhammad Azhar, Assistant for Respondents.

PLCCS 2009 LAHORE HIGH COURT LAHORE 40 #

2009 P L C (C.S.) 40

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMD AFZAL KHAN

Versus

GOVERNMENT OF PUNJAB through Secretary to Government of the Punjab, C&W Department and another

Writ Petition No.5857 of 2008, decided on 20th June, 2008.

(a) Civil service---

---Promotion cannot be claimed as matter of right---Principles.

The civil servant cannot claim promotion as a matter of right, but it is an inalienable right to every civil servant that he be considered for promotion along with his batch mates, if he fulfills eligibility criteria.

(b) Civil Service---

---Promotion, consideration for---Meaning---Consideration for promotion means a just and fair consideration and not as a matter of routine.

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Non-consideration of petitioner's case for promotion by Selection Board repeatedly on ground of pendency of enquiry against him---Validity---Pendency of enquiry and minor penalties could not come in way of promotion----Enquiry must be concluded within a specific period---Enquiry proceedings pending against petitioner for an indefinite period smacked of arbitrariness and mala fide---Hanging sword on head of a civil servant in form of pendency of enquiry would reflect only to deprive him of his lawful right of promotion---Treatment meted out to petitioner could not sustain in eye of law---Consideration for promotion would mean a just and fair consideration and not as a matter of routine---High Court directed authority to place petitioner's case before Selection Board within specified time, which would consider his case fairly, justly and independent of pendency of enquiry, if not finalized on day of consideration of his case for promotion.

Zarar Khan v. Government of Sindh and others PLD 1980 SC 310; Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637; Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645; Ch. Yar Muhammad Durraina v. Government of the Punjab and another 1992 PLC (C.S.) 95; Sh. Muhammad Riaz v. Government of the Punjab 2003 PLC (C.S.) 1496 and Writ Petition No.2573 of 2000 ref.

(d) Civil Service---

----Promotion---Pendency of enquiry and minor penalties against civil servant not a hurdle in way of his promotion.

Masood Ahmad Riaz for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab with Humayun Akhtar Sabi, Deputy Director Legal for Respondents.

PLCCS 2009 LAHORE HIGH COURT LAHORE 44 #

2009 P L C (C.S.) 44

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD SALEH ASIM

Versus

SECRETARY SCHOOLS EDUCATION, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.8329 of 2008, decided on 7th July, 2008.

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

----S. 9----Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Transfer---Maintainability---Right of civil servant to approach High Court directly instead of departmental authority and Service Tribunal and order to be passed by High Court in such matter---Circumstances and scope stated.

In transfer matters, of course, the remedy for aggrieved civil servants lies before the Service Tribunal and for that they have to file departmental appeal/representation within 30 days of the issuance of transfer order and. they have to wait for a period of 90 days or to wait till the disposal of departmental representation before invoking the jurisdiction of Service Tribunal, meaning thereby that the aggrieved civil servants can knock at the door of Service Tribunal only after a lapse of certain periods and fulfilment of condition of departmental appeal/representation, whereas for that very particular period, the aggrieved civil servant could not be left without remedy provided he had a genuine claim, which could be established through some documentary evidence like: (i) when transfer order was passed not in the exigency of service, but on the directions of some MPA/MNA/Minister; (ii) when civil servant was made a rolling stone by way of frequent transfers within days/weeks; and (iii) when aggrieved civil servant was going to be superannuated in a year or so, but he was dislocated from his place of posting without any cogent reason like complaint etc., against him and that too without enquiring into the said allegations.

In such-like situations, the aggrieved civil servant can approach High Court invoking the provisions of Art. 199 of the Constitution of Pakistan and High Court can come to his rescue, but to the extent only of directing the concerned authorities to examine the matter in its true perspective, hear the petitioner and other aggrieved persons and then decide afresh within a. stipulated time and till then the aggrieved civil servant be not disturbed and no adverse order be passed against him.

Secretary, Revenue Division v. Muhammad Saleem 2008 SCMR 948 rel.

Malik Amjad Pervaiz for Petitioner.

Naeem Masood, Asstt. A.-G. on Court's call.

Date of hearing: 7th July, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 58 #

2009 P L C (C.S.) 58

[Lahore High Court]

Before Hafiz Tariq Nasim, J

NAZIA JAVED

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Education Department, Lahore and another

Writ Petition No.5339 of 2008, decided on 25th June, 2008.

Punjab Public Service Commission Ordinance (II of 1978)---

----S. 7---Punjab Public Service Commission (Functions) Rules, 1978, R.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recruitment of posts of Subject Specialist in Mathematics (Female)---Cancellation of interview call-letter issued to petitioner by Commission after she qualified written test---Rejection of petitioner's representation by Commission---Validity---Petitioner had applied for such post before closing date---Petitioner had disclosed in application that her result was being awaited---Result of petitioner was declared in July, 2007 before issuance of letter to her by Commission for appearance in written test held in November, 2007---Issuance of interview call-letter to petitioner after qualifying written test had resulted into accrual of lawful right in her favour for appearance in interview---Commission before cancelling interview call had neither issued show-cause notice to petitioner nor heard her---Petitioner was not at fault in entire exercise, rather action of functionaries of Commission was against all canons of justice, equity and law, which had resulted into serious miscarriage of justice ruining her further career, who was a legitimate expectant for appointment on such post---High Court declared impugned orders to be illegal and without lawful authority while holding petitioner to be entitled for interview and directing Commission to 'rectify its wrong to accommodate her by taking all steps within specific time.

Atta Ullah Mehr v. Punjab Public Service Commission 1983 CLC 2903; Ahmed Sultan Waris v. Punjab Public Service Commission PLD 1997 SC 382 and Secretary, Revenue Division v. Muhammad Saleem 2008 SCMR 948 rel.

Mian Manzoor Hussain for Petitioner.

Naeem Masood, Asstt. A.-G.

Mian Ghulam Shabbir Thaheem with Syed Hassan Raza and Muhammad Ali, Assistant, PPSC.

Date of hearing; 25th June, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 70 #

2009 P L C (C.S.) 70

[Lahore High Court]

Before Sayed Zahid Hussain, J

NAZIR AHMED NASIR

Versus

State LIFE INSURANCE CORPORATION OF PAKISTAN and 3 Others

Writ Petitions Nos.11476 of 2006, 10147, 9843, 9249, 11806, 10169, 10729, 5780, 11479, 10094, 10190, 10176, 11547, 11293, 10136, 9844, 9931, 10845, 11934, 9946, 6815, 10342 and 8834 of 2006, decided on 10th January, 2007.

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

----S. 47---State Life Employees (Service) Regulations, 1973---Service Tribunals Act (LXX of 1973), S.2-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Terms and conditions of service---Petitioners were employees/ex-employees of State Life Insurance Corporation---After insertion of provisions of S.2-A in Service Tribunals Act, 1973, said employees had been seeking remedy before Federal Service Tribunal---Contention of the petitioners was that after the Supreme Court had announced judgment in case titled Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others reported as PLD 20 6 SC 602, remedy about any of their grievance regarding conditions o service was before High Court---Petitioners also contended that State Life Employees (Service) Regulations, 1973, were statutory in nature having been framed under the enabling provisions of Art.49 of Life Insurance (Nationalization) Order, 1972---Plea raised by Insurance Corporation was that petitioners' service in the Corporation was not governed by any statutory rules or regulations---Validity---Jurisdiction of High Court under Art.199 of the Constitution could not be invoked---Petitioners should seek remedy from proper forum---Petition was dismissed in circumstances.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 PLC 595; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; The Managing Director, U.P. Warehousing Corporation and others v. Vijay Narayan Vajpayee AIR 1980 SC 840; The Principal, Cadet College Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854; Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302; The Superintendent of Police, Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387; Anwar Parvez v. Chairman, Board of Intermediate and Secondary Education, Abbottabad and 2 others 2005 SCMR 1603; Federation of Pakistan through D.G. Military Lands and Cantonment Rawalpindi and others v. Syed Ibrahim Shah NLR 2006 Service 51 and Muzaffar Hussain v. the Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442 ref.

Abdul Latif Chaudhry, Ali Akbar Qureshi, Hafiz Tariq Nasim, Sh. Abdul Hameed, Umar Alvi, Tanvir Ahmed Ghuman, Syed Muhammad Nisar Safdar Shah, Muhammad Sohail Bhatti, Akhtar Masood Khan, Salman Riaz Chaudhry, S.M. Zaman, Ch. Muhammad Anwar Warraich, Munawar Ahmed Javed for Petitioners.

Sher Zaman Khan, Jehanzeb Khan Bharwana, Ibrar Ahmed, Umar Sharif for Respondent.

Date of hearing: 19th December, 2006.

PLCCS 2009 LAHORE HIGH COURT LAHORE 76 #

2009 P L C (C.S.) 76

[Lahore High Court]

Before Sayed Zahid Hussain, J

MUSHTAQ AHMAD JAVED and others

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

Writ Petition No.10140 of 2006, decided on 23rd January, 2007.

General Clauses Act (X of 1897)---

----S. 24-A---Representation qua their grievances by employees of a statutory corporation---Statutory functionaries are duty bound to consider such representations and decide the same in accordance with law.

Ali Akbar Qureshi for Petitioners.

Ibrar Ahmed for Respondents.

PLCCS 2009 LAHORE HIGH COURT LAHORE 94 #

2009 PLC (C.S.) 94

[Lahore High Court]

Before Iqbal Haeemdur Rahman, J

Mrs. ZAHIDA PERVEEN

Versus

SECRETARY HEALTH, GOVERNMENT OF PUNJAB, LAHORE and 8 others

Writ Petition No.4686 of 2007, decided on 18th September, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Transfer order passed against civil servant (petitioner) at directive of Chief Minister conveyed over telephone---Copies of such order forwarded by authority to Additional Secretary and Deputy Secretary to Chief Minister with reference to his such telephonic direction---Subsequent order passed by authority during pendency of constitutional petition creating new post for petitioner while forwarding its copies to concerned departments omitting therefrom names of Additional Secretary and Deputy Secretary to Chief Minister---Validity---Authority had passed transfer order on political considerations; subsequent order was passed with a view to rectify its mistake made in transfer order and both such orders were passed in violation of the directions of Supreme Court made in Zahid Akhtar's case PLD 1995 SC 530---High Court set aside both such orders in circumstances.

Zahid Akhter's case PLD 1995 SC 530 rel.

Sardar Muhammad Sarfraz Dogar for Petitioner.

M.R. Khalid, Addl. A.-G. and Ijaz Farrukh, Senior Law Officer Health Department for Respondents.

PLCCS 2009 LAHORE HIGH COURT LAHORE 209 #

2009 P L C (C.S.) 209

[Lahore High Court]

Before Syed Hamid Ali Shah and S. Ali Hassan Rizvi, JJ

ABDUL RASHID KHAN

Versus

REGISTRAR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 5 others

I.C.A. No.19 of 2008 in Writ Petition No.5286 of 2007, decided on 2nd April, 2008.

Civil service---

----Posting---Grievance of the petitioner was that he was posted from one department to another department by the University administration--Constitutional petition filed by the petitioner was dismissed---Plea raised in the intra-court appeal was that employees of the University were governed under statutory rules and as such, constitutional petition by employees was competent and that transfer order was tainted with mala fides---Validity---Employees of the University neither hold statutory posts, nor their terms and conditions were governed under statutory rules---Order of Vice-Chancellor qua the impugned transfer of the employee was not assailable in constitutional jurisdiction---Originally transfer was challenged in constitutional petition and impugned order also pertained to that order only---Employee had filed amended petition without permission of the court---Validity---Amended petition could not be considered as transfer order, impugned in the petition, was no more in the field, due to subsequent transfer order of the employee---order which was no more in the field, could not be assailed and subsequent events also could not be considered as they fell outside the ambit of the impugned order---Intra-court appeal was dismissed in limine in circumstances.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 and Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381 ref.

Pir Muhammad Asif Rafi Shah for Appellant.

PLCCS 2009 LAHORE HIGH COURT LAHORE 234 #

2009 P L C (C.S.) 234

[Lahore High Court]

Before Zubda-tul-Hussain, J

AZHAR RASHEED

Versus

BOARD OF REVENUE

Writ Petition No.2929 of 2004, decided on 13th August, 2008.

(a) Civil Service---

----Deputation---Absorption---Vested right---Scope---Person appointed by initial recruitment or by promotion if transferred or deputed to any other office/department, retains his lien with parent department as is admissible under the Rules and is terminated only by competent authority in accordance with law/Rules---After transfer or deputation such employee unless absorbed in department to which he has been transferred or deputed continues to be employee of his parent department and it is lawful for competent authority to seek his repatriation to parent department/office---Transfer or deputation from one department to another does not by itself create a vested right in favour of transferred or deputed official to claim his employment with the latter department / office before his absorption in such department.

(b) West Pakistan General Clauses Act (VI of 1956)---

----S.20---Locus poenitentiae, principle of---Scope---Authority which can pass order is entitled to vary or to rescind the same but such, power does not include the power or authority to take away a validly acquired right---Power of rescinding till decisive steps are taken is also exercisable for replacing or rectifying wrong steps taken by concerned authority---Such power is not available to such authority when decisive steps have already been matured---Decisive step is deemed to have been ?taken when order takes effect and certain rights are created in favour of beneficiary of such order---Authority which has passed. an order can withdraw same but only before decisive steps have been taken---Moment the matter has been finalized and the other party has also acted upon it, valuable rights created thereby cannot be jeopardized by rescinding such order.

----Capital Development Authority Act, 1976, S.25---Notification No.1(66)RP/P&D/90, dated, 10-3-1993---Capital Development Authority employees---General Provident Fund---Scope---Petitioner was an employee of Capital Development Authority and was on deputation in another government department---Petitioner was concerned about his General Provident Fund which he had been getting deducted during his service on deputation---Validity---Benefits which were not admissible under Rules framed or adopted by Capital Development Authority could not be claimed by its employees as of right---Contribution towards General Provident Fund on the credit of employees of Capital Development Authority was their own property, reimbursement of which could be claimed by them at any time---Any clog or restriction under General Provident Fund Rules could not restrain payment of deposit to employees of Capital Development Authority because they were not governed by such Rules and as such the restriction did not apply to their deposit---As deduction was made and amount remained in the custody of government/concerned office, the usual interest would be given on the contribution.

(d) Capital Development Authority (Appointment and Conditions of Service) Rules, 1993---

----R. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seniority list---Petitioner was employee of Capital Development Authority and remained on deputation with a government department along with other employees of the Authority---Plea raised by petitioner was that a separate seniority list inter se the employees on deputation be prepared---Validity---Petitioner was appointed by initial recruitment, he was always an employee of Capital Development Authority and never remained on the service roll of the other department where he remained on deputation Seniority list of employees of one and the same organization, unless provided under Rules, could only be maintained jointly among the employees of a specific category---Petitioner could not claim for maintaining a separate seniority list---Authorities had stated that seniority list would be maintained strictly in accordance with the provisions of R.8 of Capital Development Authority (Appointment and Conditions of Service) Rules, 1993---Petitioner did not contend that in joint seniority list he was placed on wrong place---High Court declined to interfere with the seniority list prepared by the authorities---Petition was dismissed in circumstances.

Wajid Aftab Misson for Petitioner.

Sh. Masood Ashraf for Respondent.

Date of hearing: 13th August, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 297 #

2009 P L C (C.S.) 297

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD YASIN BUTT

Versus

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

Writ Petition No.5232 of 2008, heard on 21st July, 2008.

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

----R. 3(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Absorption of surplus staff---Petitioner, who was appointed as Deputy Director BS-17 in the year 1996 on regular basis in Punjab Highway Authority, was declared surplus on the abolition of said Authority---Case of the petitioner for absorption under R.3(1) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 along with two other colleagues were sent to Punjab Public Service Commission, through letter, but the petitioner was waiting the outcome of result of the said letter for the last. more than 10 years---Such type of conduct of the Departmental Authority smacked of arbitrariness, maladministration, slackness resulting into inhuman attitude---High Court had ample power to interfere and issue a writ of mandamus in circumstances---If something was required to be done in a particular manner, it must be done in that manner and not otherwise---Due to the lapses/inaction of the Departmental Authorities the individuals/ government officials should not suffer, rather the persons responsible for such lapse must be taken to task---Petitioner though could not insist for his absorption against a particular post, but he had lawful right to be assessed/determined for his permanent absorption against a vacant post of his own status---Authorities, in circumstances, were directed to send a requisition to the Public Service Commission following the provisions of R.3(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 against any existing vacancy including advertised posts of B.S.-17 and Public Service Commission was directed to finalize case of the petitioner fairly, justly without being influenced by any extraneous matter within specified period.

Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 ref.

Syed Ghazanfar Ali for Petitioner.

Ch. Naeem Masood, A.A.-G. with Mrs. Asifa Murtaza, S.O. (E-I) S&GAD for Respondents.

Date of hearing: 21st July, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 312 #

2009 PLC (C.S.) 312

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SHAZIA MUNAWAR

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary

Writ Petitions Nos.1563, 1564 and 1694 of 2008, decided on 6th November, 2008.

Punjab Judicial Service Rules, 1994---

----R. 7---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.27---Punjab Legal Practitioners and Bar Councils Rules, 1976, Rr.7.10 & 7.12---Constitution of Pakistan (1973), Art.199---Constitution petition---Post of civil Judge-cum-Judicial Magistrate--Petitioners applying for such posts not possession on date of advertisement experience of two years as practising profession of law---Rejection of petitioners' application by Public Service Commission---Validity---Noncompliance of provisions of Rr.7.10 & 7.12 of Punjab Legal Practitioners and Bar Councils Rules, 1974 would bar an Advocate to practise profession of law---Cut of date for calculating such experience under R.7 of Punjab Judicial Service Rules, 1994 was date of advertisement---Petitioners were not having such requisite experience on date of advertisement---Out of 1510 candidates contesting for 106 posts, 84 candidates had passed tests and after interview, Commission had selected 47 candidates including petitioners being at Serial Nos.11, 14 and 28 on merit list---High Court dismissed constitutional petition while observing that competent authority may consider cases of petitioners in circumstances.

Mushtaq Ahmed Mohal and Mian Abdul Ghaffar for Petitioner (in Writ Petition No.1564 of 2008).

Muhammad Irfan Khan for petitioner (in Writ Petition No.1694 of 2008).

Tahir Munir Malik, Addl. A.-G. along with Muhammad Farooq Raja, Deputy Director (Legal) P.P.S.C. for Respondent.

Dates of hearing: 22nd October, 5th and 6th November, 2008.

2009 P L C (C.S.) 359

[Lahore High Court]

Before Syed Shaheen Masud Rizvi, J

ZARINA BEGUM

Versus

SECRETARY EDUCATION

Writ Petition No 5.673 of 2007, decided on 23rd June, 2008.

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

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Regularization of service---Award of Basic Pay Scale---Petitioner, who was appointed as Arabic Teacher on 15-2-1990, her service was regularized from date of her joining in B.P.S.9 vide order dated 15-1-1991---Petitioners along with others was terminated from service on audit objection---Petitioner along with some teachers filed appeal before Director Education against order of their termination of services---Some other teachers had assailed order of their termination in constitutional petition, which was disposed of by the High Court with direction to the Director Education to dispose of appeal filed before him within specified period---High Court had further directed that until the appeals filed by the petitioners were disposed of; status quo would be maintained in respect of their services---Petitioner along with others, in circumstances, continued in service and termination order was not given effect---Director Education, vide notification, set aside termination order and petitioner along with others were allowed to continue their services according to terms and conditions laid down by the appointing authority---All others having been awarded BPS-9 and the petitioner was ignored, she filed service appeal before Service Tribunal, who directed District Officer to award BPS-9 to the appellant and petitioner was awarded BPS-9 immediately w.e.f. 13-7-2005 which had been assailed in the constitutional petition, contending that she should have been awarded BPS-9 from the date when her services were regularized on 15-1-1991 and not from immediate effect---Validity---Petitioner having continued her duties under the injunctive order passed by the High Court, it was right of the petitioner that she should have been granted BPS-9 from 15-1-1991 when her service was regularized---Petitioner was entitled to the relief as prayed for in constitutional petition.

Syed Shahbaz Ali Rizvi for Petitioner.

Muhammad Qasim Khan, A.A.-G. for Respondent.

PLCCS 2009 LAHORE HIGH COURT LAHORE 362 #

2009 P L C (C.S.) 362

[Lahore High Court]

Before Sayed Zahid Hussain, J

NAZIR AHMED NASIR and others

Versus

STATE LIFE CORPORATION OF PAKISTAN through Chairman and others

Writ Petitions Nos.11476, 5780, 10147, 9843, 9249, 11806, 10169, 10729, 5780, 11479, 10094, 10190, 10176, 10170, 11574, 11293, 10136, 9844, 9931, 10845, 11934, 9946, 6815, 10342 and 8834 of 2006, decided on 10th January, 2007.

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

----Art. 49---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.10---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition, maintainability of---After insertion of provision of S.2-A in Service Tribunals Act, 1973; petitioners had been seeking remedy before Service Tribunal---Petitioners had thought that their remedy about any of their grievances qua conditions of service lay before High Court after judgment of Supreme Court PLD 2006 SC 602---Counsel for petitioners had contended that as a consequence of said judgment of the Supreme Court, their remedy lay before the High Court in view of the State Life Employees (Service) Regulations, 1973, which, according to them, were statutory in nature having been framed under the. enabling provisions of Article 49 of Life Insurance (Nationalization) Order, 1972---State Life Employees (Service) Regulations, 1973 had been regarded and treated by the High Court as non-statutory in nature---Even any attempt to assail the judgment of the Service Tribunal, could not be countenanced in view of provisions of Art.212 of the Constitution as remedy against any such judgment/order of the Service Tribunal lay before the Supreme Court and not before the High Court---Another category of cases was where the action was taken under Removal from Service (Special Powers) Ordinance, 2000---Said Ordinance was a special law providing special remedies and forum---Under S.10 of Removal from Service (Special Powers) Ordinance, 2000, appeal lay before Service Tribunal against any order passed against the aggrieved person---Prima facie the implications of judgment of Supreme Court PLD 2006 SC 602, were not invocable to such a case---Jurisdiction of High Court under Art.199 of the Constitution could not be invoked by the petitioners, in circumstances---Petitions being not maintainable, were dismissed accordingly.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary Ministry of Defence and others PLD 2006 SC 602; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; National Bank of Pakistan v. Punjab, Labour Court No.5, Faisalabad and 2 others 1993 PLC 595; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; The Managing Director, U.P. Warehousing Corporation and others v. Vijay Narayan Vajpayee AIR 1980 SC 840; The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854; Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302; The Superintendent of Police, Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387; Anwar Parvez v. Chairman Board of Intermediate and Secondary Education, Abbottabad and 2 others 2005 SCMR 1603; Federation of Pakistan through. D.-G. Military Lands and Cantonment Rawalpindi and others v. Syed Ibrahim Shah NLR 2006 Service 51 and Muzaffar Hussain v. The Superintendent of Police District Sialkot 2002 PLC (C.S.) 442 ref.

Sher Zaman Khan, Jehanzeb Khan Bharwana Ibrar Ahmed and Umar Sharif for Respondents.

Date of hearing: 19th December, 2006.

PLCCS 2009 LAHORE HIGH COURT LAHORE 374 #

2009 P L C (C.S.) 374

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Syed IJAZ HUSSAIN and 2 others

Versus

SECRETARY (SCHOOLS), EDUCATION DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 5 others

Writ Petition No.493 of 2009, decided on 15th January, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Point of law decided by the Supreme Court---Extension of its benefit to the persons not party before the Court---Supreme Court in its judgment reported as 1996 SCMR 1185, had, once for all, resolved that if a point of law was decided by the Supreme Court, similarly placed persons who were not party before the Court, were also to be extended the same benefits without compelling them to agitate the matter in independent proceedings---Present case revolved around the same controversy, which had already been resolved by the High Court in one of its constitutional petitions---Said judgment of the High Court was based on the law laid down by the Supreme Court in its said judgment---Departmental authorities/respondents were left with no other option, except to extend the benefit to the petitioner and similarly placed colleagues---Authorities were directed to resolve the matter within specified period.

1996 SCMR 1185 rel.

Agha Intizar Ali Imran for Petitioners.

Ch. Naeem Masood, A.A.-G. for Respondents.

PLCCS 2009 LAHORE HIGH COURT LAHORE 440 #

2009 P L C (C.S.) 440

[Lahore High Court]

Before Hafiz Tariq Nasim, J

IRFAN ALI ABBASI

Versus

DIRECTOR-GENERAL, LAHORE DEVELOPMENT AUTHORITY (L.D.A.), LAHORE and another

Writ Petition No.14091 of 2008, heard on 16th December, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion, eligibility for---Petitioner, who was Diploma holder, joined the department as Sub-Engineer (BS-11) and thereafter was promoted to BS-16 and then BS-17, on contract basis on acting charge basis---Petitioner was considered for regular promotion as S.D.O. (BS-17) and Departmental Promotion Committee recommended his name and on said recommendation he was regularly promoted and was awarded move-over to (BS-18)---Petitioner was expecting his regular promotion to BS-18 in view of his eligibility, but he was deprived of the same on the ground that Rules applicable to the department, did not permit a Diploma holder for promotion as XEN (BS-18)---Earlier, petitioner, despite his status as Diploma holder, was promoted to the post of S.D.O. against 20% quota as per regulations---Counsel for department after consulting the record had conceded the above fact---Regulation/ eligibility/criteria for promotion to the post of Deputy Director (Engineering) (BS-18) conveyed a clear message that no condition of passing B.Sc. (Engineering) was there and there was not the slightest bar/embargo on the promotion of any Diploma holder to the post of Deputy Director (Engineering), provided that employee was the holder of post of Assistant Director (Engineering)/Junior Maintenance Engineer/S.D.O. with at least 5 years service in Grade-17---Petitioner was posted as Assistant Director (Engineering)/S.D.O. on regular basis and since his promotion he had put more than seven years against said post, which was mandatory requirement for further promotion to the rank of Deputy Director (Engineering)---Petitioner in circumstances was eligible for promotion to the rank of Deputy Director (Engineering)---Department was directed to place the petitioner's promotion case in the forthcoming meeting of the Departmental Promotion/Selection Committee who would consider the case of the petitioner, fairly and justly.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701 ref.

(b) Administration of justice---

----If a thing was required to be done in a particular manner, it must be done in that manner only and not otherwise.

----Rule of harmonious 'interpretation was to be followed in case of interpretation.

Accountant General, Sindh and others v. Ahmad Ali U. Qureshi and others PLD 2008 SC 522 ref.

Mushtaq Ahmad Mohal for petitioner.

Nayyar Iqbal Ghori for Respondent.

Date of hearing: 16th December, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 471 #

2009 P L C (C.S.) 471

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Raja MUHAMMAD ASHRAF

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and another

Writ Petition No.12382 of 2005, heard on 23rd September, 2008.

(a) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil Judge, post of---Petitioner being a candidate for such post already serving as Extra-Assistant Commissioner after having served as Private Secretary in the High Court---Recommendations of petitioner in year 2000 for his appointment on such post by Public Service Commission after qualifying written test and interview---Withdrawal of such recommendations by Public Service Commission alleging petitioner's date of birth to be wrong---Validity---Chief Justice of High Court at petitioner's request had ordered for correcting his date of birth in his service record maintained by High Court at the relevant time---Petitioner's correct date of birth had been recorded in revised Matric Certificate issued by Board of Intermediate and Secondary Education---Basis of non-suiting 'petitioner had already been washed away from field---Petitioner had been non-suited for no fault on his part---Lawful right had accrued to petitioner after his recommendations for such post, which could not be recalled without any justification and further in view of principle of locus poenitentiae---High Court declared impugned withdrawal of recommendation illegal and directed Public Service Commission to recommend petitioner for appointment as Civil Judge to competent authority by adjusting him with due, regard of seniority etc., against one of future vacancies advertised in press.

Fakhar-ul-Islam v. Additional Chief Secretary and others Writ Petition No.19138 of 1998 and Member Board of Revenue, Lahore v. Khuda Bakhsh and others 2008 SCMR 1189 rel.

(b) Administration of justice---

----Party cannot be made to suffer or to be prejudiced by an act of commission or omission of public functionaries.

Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 rel.

----Dismissal from service on charge of registration of criminal case---Validity---Where employee was acquitted later on, then such dismissal could not be insisted to be retained in field.

Muhammad Sardar Khan v. Senior Member (Establishment, Board of Revenue Punjab, Lahore 1985 SCMR 1062 and Shmas-ud-Din Khawaja v. Government of Pakistan through Secretary Establishment, Islamabad and 2 others PLD 2003 SC 187 rel.

Muhammad Ghani for Petitioner.

Akhtar Ali Qureshi, A.A.-G. with Mian Ghulam Shabbir Thaheem, Director Legal, P.P.S.C. for Respondents.

Date of hearing: 23rd September, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 481 #

2009 P L C (C.S.) 481

[Lahore High Court]

Before Mian Saqib Nisar, J

SHAUKAT ALI WAHLA

Versus

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB

Writ Petition No.2398 of 2002, heard on 29th January, 2009.

(a) Interpretation of statutes---

----While construing the provisions of a statute courts shall apply that rule of interpretation which makes the statute purposeful.

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

----R. 2(e)---Punjab Civil Servants (Change in Nomenclature of Service and Abolition of Classes), Rules, 1974---Punjab Waqf Properties Ordinance (IV of 1979), S.25(2)(e)---"Superintendent" in the Auqaf Organization---Status of---"Officer" has neither been defined in the Punjab Waqf Properties Ordinance, 1994 nor in the Punjab Auqaf Organization (Appointment and Conditions of Service) Rules, 1994, therefore it is on the basis of S.25(2)(e) of the Ordinance read with Rules that it should be ascertained as to what is the status of the "Superintendent" in the Auqaf Organisation---Constitution of "functional units" under the Auqaf organization---Purpose---Obvious purpose of creating two functional units in the organization is, that one is meant for the Administration and the Management thereof clearly envisaging the posts and the people who shall be responsible for its operation, who shall hold an office of trust, the authority and command; while the other unit from its very nomenclature relates to the posts/people who shall perform functions on instructions instead of their own discretion or the judgment, therefore, the latter category cannot be termed to be "officers" in terms of the relevant law---Superintendent in the Auqaf Organization, may be gazetted officer, as per the Rules, but he shall be only governed in context of law. alone---Superintendent who is related to the posts/people, who shall perform functions on instructions instead of their own discretion or, the judgment cannot be termed to be officer in terms of the relevant law---Only reason, that a Superintendent might ever be transferred to such a post, would not mean that the post of Superintendent, while the person is functioning in the ministerial unit, necessarily attains the character of an "officer".

----Where a statute itself provides an answer to the proposition, it should not be resolved on the basis of another legislation, to which reference has been made in the relevant law.

Ahmad Waheed Khan for Petitioner.

Ch. Muhammad Rafique Warraich for Respondent.

Date of hearing: 29th January, 2009.

PLCCS 2009 LAHORE HIGH COURT LAHORE 527 #

2009 P L C (C.S.) 527

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD TAHIR

Versus

SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT

OF THE PUNJAB, LAHORE and another

Writ Petition No.13522 of 2008, heard on 3rd February, 2009.

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

----S. 8---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rr.9 & 13---Punjab Service Tribunals Act (IX of 1974), S.4(1)(b)---Constitution of Pakistan 1973, Art.199---Constitutional petition---Promotion of Sub-Engineer in year, 1996 to post of Assistant Engineer/S.D.O. against permanent vacancy in reserved quota on recommendations of Departmental Promotion Committee on seniority-cum-fitness basis---Reversion of petitioner in year, 2008 to post of Sub Engineer after rendering twelve years' satisfactory regular service as Assistant Engineer/S.D.O. on the ground that his promotion was on officiating basis---Validity---Question involved in petition revolved around determination of petition to hold post of Assistant Engineer or not---Jurisdiction of Service Tribunal was barred to determine fitness of an employee to hold a particular post or not---Word "officiating" used in petitioner's promotion order for being illegal could not convert his regular promotion into officiating or otherwise---Conditions of R.13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 would not attract to petitioner's promotion order---High Court set aside impugned order for being illegal and declared petitioner's promotion as Assistant Engineer/S.D.O. in year, 1996 to be on regular basis for all purposes.

PLD 1996 SC 837 and 2008 PLC (C.S) 715 ref.

Government of N.-W.F.P. through Chief Secretary and others v. Iqbal Jahangir Khan and another 1995 SCMR 82; Secretary to Government of iv.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Administrator, District Council, Larkana and another v. Ghulab Khan and ,5 others 2001 SCMR 1320; Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others 2004 SCMR 639; Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451; Sarwar Ali Khan v. Chief Secretary to Government of Sindh and another 1994 PLC (C.S.) 411; Pakistan Railways through G.M., Lahore and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730; Director of Education Schools, Lahore Region, Lahore and others v. Muhammad Abbas 1998 SCMR 215; Punjab Workers Welfare Board, Government of Punjab and Human Resources Department, Lahore v. Mehr Din 2007 SCMR 13; Federation of Pakistan v. Ameer Zaman Shanwari 2008 SCMR 1138 and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 rel.

Mahmood Ahmad Qazi for Petitioner.

Naeem Masood, A.A.-G. with Humayun Akhtar Sahi, Deputy Director (Legal), C&W Department for Respondents.

Date of hearing: 3rd February, 2009.

PLCCS 2009 LAHORE HIGH COURT LAHORE 572 #

2009 P L C (C.S.) 572

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD ANWAR

Versus

DIRECTOR LAHORE MUSEUM

Writ Petition No.15266 of 2008, decided on 4th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Fixation of salary---Recovery of salary drawn by the petitioner---Petitioner after retirement from Pakistan Army joined Museum as a Security Guard, drew salary according to the last pay drawn by him at the time of his retirement from Pakistan Army---Salary so fixed not only was stopped, but recovery was directed to be made from petitioners---Held, so far as the matter regarding refixation of salary and its legality/illegality was concerned, it would be appropriate to refer the matter to the Chairman, Board of Governors of the Museum with a direction to treat the constitutional petition as representation, who would go through the same and then decide the controversy strictly in accordance with law, within specified period---Impugned recovery order, however, could not sustain---Same was set aside on the strength of law laid down by the Supreme Court in case reported as PLD 1992 SC 207---Department as well as the Accountant General/Audit officers were directed not to recover any amount from the salary of the petitioner.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Ch. Muhammad Naveed Shabbir Goraya for Petitioner.

Naeem Masood, Asstt. A.-G.

Malik Muhammad Awais Khalid with Asghar Nadeem Syed Director/Respondent.

PLCCS 2009 LAHORE HIGH COURT LAHORE 580 #

2009 P L C (C.S.) 580

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD AFZAL and another

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.1697 of 2009, decided on 30th January, 2009.

Constitution of Pakistan (1973)---

----Arts. 199, 35 & 38---Constitutional petition---Transfer of civil servant under Wedlock Policy---Petitioner who was a Federal Government employee was posted at place and his wife was a teacher in the Provincial Government posted at place B'---Husband had applied through his Department to the Provincial Education Department for transfer of petitioner's wife at placeL' under the Wedlock Policy of Provincial Government---Petitioner's wife who was sought to be transferred to place `L' had made no application to the defendant---Petitioner did not have a mature grievance against the department for determination by the High Court---Husband claimed a right for his wife and the two were treated as having common interest under the Wedlock Policy---Wife could apply to the department seeking her transfer under the Wedlock Policy to the station of her husband---If she would approach the department, department would consider such representation strictly in accordance with law and decide the same expeditiously---Order accordingly.

Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department Lahore and another 2004 PLC (C.S.) 622 and Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325 rel.

Ch. Muhammad Naveed Shabbir Gorraya for Petitioner.

PLCCS 2009 LAHORE HIGH COURT LAHORE 586 #

2009 P L C (C.S.) 586

[Lahore High Court]

Before Zubda-tul-Hussain, J

MUHAMMAD ASGHAR WASEER and others

Versus

SECRETARY, LOCAL GOVERNMENT and others

Writ Petitions Nos.1582 and 1690 of 2008, heard on 4th November, 2008.

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

----Art. 199---Constitutional petition---Civil service---Selection of petitioner against advertised post after conducting his test and interview by Selection Committee headed by appointing authority as its Chairman---Minutes of Selection Committee contained a direction for issuance of appointment letter in favour of selectee---Non-issuance of appointment letter by authority due to announcement of general elections and subsequent imposition of ban on postings/transfers and recruitments---Validity---Process of petitioner's appointment was completed before announcement of general elections and imposition of such ban, which factors could neither operate retrospectively to nullify such selection and appointment nor as an impediment in way of issuance of appointment letter as per direction of Appointing Authority being Chairman of Selection Committee---Rule of locus poenitentiae would not apply to impugned inaction of authority as process of recruitment was complete and all decisive steps had been taken for petitioner's appointment---Lapse or delay in executing simple clerical or consequential formalities could not render such process incomplete or indecisive---Nothing on record to show selection of petitioner to be against merit or rules---Right had accrued to petitioner for job against vacancy for which he was selected---Impugned inaction of authority was against law and spirit of recruitment policy of government---High Court accepted constitutional petition and directed authority to issue formal appointment letter to petitioner within specified period.

Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

Muhammad Ismail and others v. Secretary Education, Government of Punjab and another 2000 PLC (C.S.) 112 and Secretary of Government of N.-W.F.P. C&W Department and 3 others v. Jamal Abdul Nasir 2003 PLC (C.S.) 977 rel.

(b) Civil service---

----Ban on appointment imposed subsequent to completion of process of selection without violating any rule or law would not nullify such selection and appointment---Policy regarding imposition of ban on appointment would always operate retrospectively---Order of appointment, if given effect or acted upon, could not be rescinded by authority concerned.

----Administrative instructions cannot be applied retrospectively so as to nullify a completed process and matter, which is past and closed.

Khan Iqbal Saeed Alam for Petitioners (in both Petitions).

Muhammad Aslam Khan Dhukkar for Respondent No.1.

Abdul Khaliq Saddozai for Respondents Nos.2, 3 and 4.

Date of hearing: 4th November, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 600 #

2009 P L C (C.S.) 600

[Lahore High Court]

Before Zubda-tul-Hussain, J

IFTIKHAR AHMAD and others

Versus

E.D.O. (HEALTH)

Writ Petitions Nos.2100/BWP and 2099 of 2008, decided on 23rd October, 2008.

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

----Art. 199---Constitutional petition---Civil service---Appointment of petitioner against advertised post after his selection on merits in test and interviews by Selection Committee---Non-payment of salary to petitioner after one month of his joining duty by District Accounts Officer for his failure to join duty within stipulated period, non-receipt of appointment order, non-submission of educational certificates and non-signing of his appointment order by Appointing Authority---Validity---Such objections had nothing to do with constitution of Selection Committee, which was competent to conduct process of recruitment---If Chairman of Selection Committee was not Appointing Authority, then Committee could send its recommendations to Appointing Authority---Petitioner having performed duty was entitled to salary, which was not a State bounty---Failure of concerned authority to remove such objections was not petitioner's fault---Such objections could be dealt with and decided by Appointing Authority itself---After allowing petitioner to join duty, presumption would be that competent authority had relaxed condition or extended his joining time--Dispatch and receipt of appointment order by post to Accounts Officer was matter of procedure---Accounts officer should have accepted undisputed appointment order for sanction of salary bill---Deficiency in documents, if any, could be removed at level of concerned office, where petitioner was performing duty---High Court directed District Accounts Officer to sanction petitioner's salary within specified period.

(b) Civil service---

----Salary---Not a State bounty, but a right of incumbent performing duty against his appointment.

Malik Manzoor Ahmad Misson for Petitioner (in Writ Petitions Nos.2100 of 2008/BWP and 2099 of 2008/BWP).

Ch. Shafi Muhammad Tariq, A.A.-G. with Dr. Muhammad Sadiq, E.D.O., Health and Abdul Wahid Bajwa, Litigation Clerk from the office of E.D.O. (Health) Rahim Yar Khan.

PLCCS 2009 LAHORE HIGH COURT LAHORE 648 #

2009 P L C (C.S.) 648

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD AFZAL, PATWARI CIRCLE SALAMATPURA, LAHORE CANTT. and 6 others

Versus

DISTRICT COORDINATION OFFICER, LAHORE and 9 others

Writ Petition No.2334 of 2009, decided on 9th February, 2009.

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

----Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impugned order could not be termed an adverse order against the petitioner, because its plain language had revealed that certain Patwaries were entrusted the additional charge of certain Patwar Circle where the petitioners were already performing their duties---By entrusting additional charge to some employees, the incumbents of the post could not be termed as an `aggrieved persons' particularly when the incumbent was not put in any less favourable condition or to any disadvantageous stage---Apprehension of the petitioners that they would be victimized due to the impugned order, was misconceived because if any adverse action was to be taken against them that could not be finalized without resorting to the procedure envisaged under the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

Government of Punjab Food Department v. United Sugar Mills Ltd. 2008 SCMR 1148 ref.

Muhammad Ahab A lam for Petitioners.

2009 P L C (C.S.) 747

[Lahore High Court]

Before Muhammad Ashraf Bhatti, J

MUHAMMAD IRSHAD

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, LAHORE and 2 others

Writ Petitions Nos.2994/S, 2915/S and 2993/S of 2006/BWP, decided on 25th September, 2008.

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

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Voluntary retirement---Recalling orders of voluntary retirement---In view of Government Policy circulated vide letter, providing a package/incentive for voluntary retirement, petitioners opted for voluntary retirement and availed benefits of ensuing therefrom---However later on when said policy was held in abeyance, petitioner approached the Authority to get recalled the. orders of their voluntary retirement as they were ready to pay back the gratuity etc. and other emoluments---Deputy Commissioner accepted the request of the petitioners on conditions that the petitioners would repay amount of pension gratuity with interest; and that intervening period would be treated as earned leave on half pay---Petitioners, instead of compliance of said conditions, sought reversal of the "return order of gratuity etc." or in the alternate sought for payment of the same in instalments, but in vain---Counsel for the petitioners had submitted that grievance of the petitioners would be redressed if direction was passed that the petitioners, if made representation for rejoining, same would be dealt with and disposed of after affording opportunity of hearing to the petitioners treating it a case of hardship---Direction was issued that Authority would treat petitions as representations (written requests) on the part of the petitioners, hear them and then treating same a case of hardship, dispose those of4in accordance with law with a view to explore possibility to accommodate them.

M. Shamsher Iqbal Chughtai for Petitioner.

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

Ch. Abdul Latif Shahid for Respondent.

PLCCS 2009 LAHORE HIGH COURT LAHORE 750 #

2009 P L C (C.S.) 750

[Lahore High Court]

Before Sayed Zahid Hussain, C.J. and Umar Ata Bandial, J

M.D. PASSCO

Versus

M. ZUBAIR

I.C.A. No.284 of 2007, heard on 23rd September, 2008.

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Single Judge of High Court had directed the employer, a statutory corporation to reinstate its employee into service on the basis of Supreme Court judgment in Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 to the effect that appeal filed in the Supreme Court by the Corporation against the judgment of Service Tribunal had abated and judgment of the Service Tribunal reinstating the employee had attained finality and was liable to be implemented---Validity---Ultimate direction given by the single Judge of the High Court though was not consistent with the view expressed by Supreme Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681, but the employee, in the present case, had himself approached the Labour Court for redress of his grievance on merits---Division Bench of the High Court, therefore, refrained from dilating on the subject any further except by observing that Labour Court would proceed in the matter strictly in accordance with law uninfluenced by any observation or view expressed in the judgment of single Judge and shall expeditiously decide the employee's petition pending before it.

Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

Muhammad Akram Khawaja for Appellant.

Mian Mehmood Hussain for Respondent.

Date of hearing: 23rd September, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 752 #

2009 P L C (C.S.) 752

[Lahore High Court]

Before Umar Ata Bandial, J

BUSHRA IMRAN

Versus

WAPDA and others

Writ Petition No.12742 of 2008, decided on 16th December, 2008.

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

----S. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance of petitioner, a WAPDA employee, was that the condition of qualifying departmental promotion examination imposed by WAPDA should be waived to be in line with the policy of Federal Government---Validity---Provisions of S.18, Water and Power Development Authority Act, 1958 had conferred exclusive authority upon WAPDA to determine the terms and conditions of service of its employees---Policy of Federal Government did not have binding effect on the terms and conditions of employees of WAPDA---Constitutional jurisdiction of High Court under Art.199 of the Constitution in the present case was exercised to promote justice and taking executive measures that promoted merit and transparency---Petitioner's effort to avoid objective reassessment of candidate for promotion, therefore, did not meet with success---Constitutional petitioner was dismissed.

Sh. Muhammad Ali for Petitioner.

Munawar Iqbal Dugal for Respondents Nos.2 and 4.

Aurengzeb Mirza for Respondent No.3.

PLCCS 2009 LAHORE HIGH COURT LAHORE 763 #

2009 P L C (C.S.) 763

[Lahore High Court]

Before Umar Ata Bandial, J

MUSHTAQ AHMED MOHAL

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.8456 of 2006, decided on 11th December, 2006.

Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 8(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Advertisement for appointment on contract basis in Criminal Prosecution Service of Government of Punjab---Three years contract service period offered in the impugned advertisement suggests that the process of regular appointment in the service is not anticipated to be completed in such a length of time---Such proposal, prima facie, detracts from the statutory mandate of the Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006 which must be carried out in all earnest and with expedition---Statutory mode of appointment through an institutionlised process provides merit based transparency---Any different process of recruitment and appointment to posts in the service, howsoever sound and fair, cannot be at par with such process; firstly, because it deviates .from the statutory mandate and secondly, because it shall be ad hoc and, therefore, open to dispute--Principles.

Petitioner in person.

Ch. Mushtaq Ahmad Khan, P.-G. and Ata-ur-Rehman Sheikh, Addl. P.-G. for Respondent No.2.

Inayat Ullah Niazi for Respondent.

Ghulam Shabbir Taheem for PPSC.

PLCCS 2009 LAHORE HIGH COURT LAHORE 770 #

2009 P L C (C.S.) 770

[Lahore High Court]

Before Kh. Farooq Saeed, J

SHAKEEL ASGHAR KHAN

Versus

DISTRICT COORDINATION OFFICER, RAHIM YAR KHAN and 3 others

Writ Petition No.2183/S of 2008/BWP, decided on 11th March, 2009.

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

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Posting---Petitioner who was graduate was appointed as `Junior Clerk' in BPS-5 in Health Department-Some posts of Junior Clerks were found lying vacant in Revenue Department---Petitioner who, by that time, had passed LL.B., applied for the same and he was consequently appointed/adjusted to said post-Subsequently authorities issued an order to repatriate the petitioner to his earlier Department/Health Department and petitioner had impugned said repatriation---Case of authorities was that it was only an adjustment from Health Department to Revenue Department---Petitioner had neither been transferred nor was sent on deputation, but he was adjusted/posted in new job in Revenue Department---Validity---Petitioner had acquired a vested right in terms of locus poenitentiae---Authorities having posted the petitioner to a new post depriving him from the benefit of earlier service, had for all practical purposes posted the petitioner by way of new appointment---Right having been accrued to the petitioner in new job, he could not be reverted to his earlier post having been absorbed in new Department--Besides, he could not have been sent back without giving a right of being heard because an individual who was likely to be adversely affected by the orders of some Authority, was entitled to hearing before any decision against him was made---Action of the authorities to transfer the petitioner back to his parent/earlier Department was considered without any authority--Impugned order was set aside and petitioner was directed to be posted with all back-benefits.

Muzaffar Ali Khan Additional Director-General (Horticultural) L.D.A., Lahore v. Lahore Development Authority through Director-General and 3 others 2000 PLC (C.S.) 924 ref.

(b) Words and phrases---

----"Adjust", defined and explained.

State of Assam v. Rangs Muhammad (1967) 1 SCWR 219 and AIR 1967 SC 930 ref.

Muhammad Shamsher Iqbal Chughtai for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. with Shabbir Hussain Mirani, Naib-Tehsildar, Staff Officer, of D.O.R., Rahim Yar Khan.

Abdul Wahid, Litigating Officer, Office of E.D.O.(R), Rahim Yar Khan.

PLCCS 2009 LAHORE HIGH COURT LAHORE 783 #

2009 P L C (C.S.) 783

[Lahore High Court]

Before Umar Ata Bandial, J

ABDUL JABBAR and others

Versus

P.T.C.L.

Writ Petitions Nos.11481, 12584, 13138, 12027, 12005, 12591, 12635, 13536, 14252, 13869 of 2008, heard on 27th October, 2008.

(a) Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----S. 36(2)(3)---Pakistan Telecommunication Corporation Limited Service Regulations, 1996---Constitution of Pakistan (1973), Art.199---Constitutional petition---Introduction of a Voluntary Separation Scheme for its employees by the Corporation---Said scheme was offered universally to all employees of the Corporation who were classified in two groups for the financial benefits: Employees in BS-16 and below and those in BS-17 and above---Scheme, inter alia, provided for pay out of severance pay, separation bonus, medical benefits, leave encashment, commutation, provident fund and pension, housing allowance etc. and in the matter of housing allowance, the scheme distinguished only between the employees availing Corporation housing and those without such housing---Contention of the aggrieved employees was that Corporation selectively granted extra favour of housing for extended period- to the optees of the scheme from its senior management---Corporation attributed such extension as being an obligation under long-standing classification made in the Pakistan Telecommunication Corporation Limited Service Regulations, 1996---Validity---Held, Pakistan Telecommunication Corporation Limited Service Rules, 1996 were not applicable to alter the scheme---Scheme did not classify PTCL employees for the purpose of providing housing benefits, nor did it refer to or rely on another legal instrument to import classification in such employees---Vintage of the Service Regulations of the Corporation, their non-mention in the scheme, the subject-matter and the express uniform classification of option under the scheme itself---Principles.

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

----Art. 199---Constitutional petition---Parties, during the course of proceedings are at liberty to change their positions in order to curtail or conclude their controversy and thereby the proceedings---In the present case, the respondents had modified their stand in order to avoid its actual or perceived conflict with law, they were free to do so---Court was bound to take judicial notice of such a change because that affected the existence of the original controversy which had been rendered academic and did not need adjudication.

Ch. Ishtiaq Ahmed for Petitioner.

Ijaz-ul-Ahsah for Respondent.

Date of hearing: 27th October, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 805 #

2009 P L C (C.S.) 805

[Lahore High Court]

Before Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ

CHANCELLOR G.C. UNIVERSITY, FAISALABAD and 4 others

Versus

MUHAMMAD MUSHTAQ, REGISTRAR, G.C. UNIVERSITY, FAISALABAD

I.C.A. No.288 of 2005 in Writ Petition No.5506 of 2005, heard on 15th December, 2008.

Civil service---

----Termination of service---Respondent/employee who was duly appointed in BS-19 for a period of three years, assumed the charge, performed his duties and vide notification his terms and conditions of service were notified, however, only after four days of issuance of the said notification, employee was ousted from service through notification causing a serious prejudice to the employee, who invoked constitutional jurisdiction of High Court under Art.199 of the Constitution which petition having been allowed by the High Court and termination order having been set aside---Validity---Employee having been terminated from service on basis of some allegation, it was obligatory on the part of the establishment to afford a fair chance to the employee to defend himself; and that through the course of regular inquiry, where he must have been associated, but that aspect was altogether ignored by the Establishment while dealing with the case---High Court not only had discussed each and every aspect agitated by the establishment in the impugned judgment in the depth, but had relied upon the law as laid down by the Supreme Court---No illegality or any infirmity had been found in the impugned judgment passed by the Judge of High Court---Intra-court appeal being devoid of any force, was dismissed, in circumstances.

Muhammad Amjad v. WAPDA 1998 PSC 337; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R. Lahore PLD 1962 SC 142; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; A.R. Azar, Deputy Chief Engineer, West, North-Western Railway Lahore and others v. The Federation of Pakistan and another PLD 1958 (W.P.), Lahore 185; Commissioner Income Tax, East Pakistan v. Fazal-ur-Rehman PLD 1964 SC 410; Province of East Pakistan and another v. Noor Ahmad and another PLD 1964 SC 451; PIAC through Chairman v. Nasir Jamal Malik and others 2001 SCMR 934; Pakistan State Oil Company Limited v. M. Akram Khan and others 2004 PLC (C.S.) 992; Farasat Hussain and others v. Pakistan National Shipping Corporation 2004 SCMR 1874; Arshad lamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468 and PIA v. Nadeem Murtaza Khan 2007 PLC (C.S.) 334 ref.

Mian Ehsan-ul-Haq Sajid, Addl. A.-G. for Appellants.

Tariq Mahmood Gill for Respondent.

Date of hearing: 15th December, 2008.

PLCCS 2009 LAHORE HIGH COURT LAHORE 893 #

2009 P L C (C.S.) 893

[Lahore High Court]

Before Maulvi Anwarul Haq, J

HUMA MUMTAZ and others

Versus

DISTRICT AND SESSIONS JUDGE, LAHORE and others

Service Appeal No.20 of 2006, heard on 19th February, 2009.

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Appellant was removed from service without issuing him show-cause notice and charge-sheeting---Under S.3(2) of Punjab Removal from Service (Special Powers) Ordinance, 2000, it was mandatory upon the competent authority before passing removal order under S.3(1) of said Ordinance to inform appellant by order in writing of the action proposed to be taken against him and the grounds of said action---Notices sent to the appellant hardly met with the said mandatory requirement of law---Confidential Dossier was not present in the service record of the appellant---Even otherwise no adverse report was found against the appellant---Impugned order of removal from service passed against appellant who had died, was set aside---Appellant would be deemed to have been reinstated---Emoluments payable to appellant till his death as also the pensionary benefits would be payable to him under the Pension Rules,, which would be worked out accordingly and paid in accordance with law.

Appellants in person.

Mustanser Hussain Shah, Addl. Registrar (G&S) with record.

PLCCS 2009 LAHORE HIGH COURT LAHORE 1033 #

2009 P L C (C.S.) 1033

[Lahore High Court]

2009 P L C (C.S.) 275

[Peshawar High Court]

Before Muhammad Alam Khan, J

CHAIRMAN NABI QASIM INDUSTRIES PVT. LTD. through Attorney

Versus

ROIDAD KHAN

Civil Revision Application No.314 of 2006, decided on 15th September, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VII, Rr.10, 11 & S.20--Suit for specific performance of service agreement and recovery of amount against the defendant---Question of jurisdiction of the court---Return of the plaint---Legal objections by defendant in written statement were that the Court 4 place "B" where suit was filed had no jurisdiction and the plaint was liable to be returned to the plaintiff for presentation to the proper court---Attorney for the defendant subsequently, filed an application under O.VII, R.11, C.P.C. on the ground that plaint was liable to be rejected as the cause of action had allegedly accrued to the plaintiff at place K' and defendant was also residing at place 'K' and that civil court at place 'B', where suit was filed had no jurisdiction to entertain the suit---Trial Court rejected the plaint and simultaneously ordered that plaint along with documents and court-fee be returned to the. plaintiff for presentation before the court of competent jurisdiction---Appellate Court accepting said appeal, set aside impugned order of the Trial Court and sent the case to the civil court at place for disposal of the same on merits---Validity---Initial contract of service between the parties was executed at placeK' in which the terms and conditions of service of the plaintiff were determined and he had based his suit on that agreement---Relevant clause in the agreement pertaining to law suits, revealed that no legal proceedings would be entertained outside the place law suits against the company must be proceeded at place K'---Said agreement was accepted by the plaintiff unreservedly by affixing his signature on the same---Jurisdiction of the courts was thus determined under provisions of S.20, C.P.C.---Defendant was residing at placeK', agreement of service was executed at that place and service of the plaintiff was also terminated at said place K' which resulted in the accrual of the cause of action--Court at place according to service agreement executed between the parties, had the exclusive jurisdiction to try the suit between the parties---Impugned judgment and order of the Appellate Court, was set aside and that of the Trial Court was restored---Case was sent to civil court at placeB' with direction to return the plaint to the plaintiff for presentation to the proper court under O.VII, R.10, C.P.C.

Chaudri Mehtab Ahmad and others v. Mir Shakeel-ur-Rehman and 4 others 2004 MLD 662; WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780; Ravi Glass Mills Limited v. ICI Pakistan Power Gen Limited 2004 YLR 2503; Messrs Father Motors Rawalpindi v. National Motors Karachi and 3 others 1992 SCMR 1174 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Salim 1987 SCMR 393 ref.

Syed Asif Shah for Petitioner.

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 15th September, 2008.

PLCCS 2009 PESHAWAR HIGH COURT 294 #

2009 P L C (C.S.) 294

[Peshawar High Court]

Before Muhammad Alam Khan, J

WAHEEDULLAH

Versus

VICE-CHANCELLOR, GOMAL UNIVERSITY, D.I. KHAN and 3 others

Civil Revision No.115 of 2007, decided on 15th September, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Suit for declaration and permanent injunction---Plaintiff had brought a declaratory suit with a prayer for permanent injunction to the effect that he had been posted as office Assistant and authorities were going to illegally remove him from service and said action of authorities was illegal, without jurisdiction, not binding on the rights of the plaintiff and that a decree for permanent, prohibitory and mandatory injunction be passed and the defendants be restrained from interference in the service and other privileges of the plaintiff---Both the Trial Court and Appellate Court, had dismissed the suit---Validity---Initial order of appointment of the petitioner was made as an ad hoc appointment on payment of fixed emolument---Said order was extended for further six months, but finally, services of the plaintiff were terminated---Appointment of the plaintiff was purely on temporary basis with no guarantee of either its extension or confirmation---Plaintiff, in circumstances, had no vested right to be agitated in the civil court and he had no locus-standi to claim automatic confirmation as of right---Findings of the two courts below were strictly in accordance with law, justice and equity and were based on established principles of appreciation of evidence which could not be interfered with by the High Court in its revisional jurisdiction---Petition was dismissed.

Allah Nawaz Khan for Petitioner.

PLCCS 2009 PESHAWAR HIGH COURT 389 #

2009 P L C (C.S.) 389

[Peshawar High Court]

Before Dost Muhammad Khan and Zia-ud-Din Khattak, JJ

Dr. RIZWANULLAH and 42 others

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary, N.-W.F.P., Peshawar and 4 others

Writ Petitions Nos.1510, 1509, 1742, 1741, 1721, 1677, 1842, 1846, 2088, 1682, 2090, 242, 2002 of 2007 and 739, 27, 365, 460, 908 of 2008, decided on 18th November, 2008.

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

----Ss. 2, 19 [as amended by S.2(2) of North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005) w.e.f. 23-7-2005)] & S.25---North-West Frontier Province Public Service Commission (Functions) Rules, 1983, R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointments on contract basis against advertised posts by Selection Committee/Departmental Authority after conducting tests and interviews of petitioners---Consistent renewal of contract period of petitioners by competent authority and their working on respective posts till promulgation of North-West Frontier Province Civil Servants (Amendment) Act, 2005---Non-regularization of petitioner's contract services by authority after promulgation of Amending Act, 2005---Plea of authority was that selection of civil servants on contract basis for BPS-11 and above was within jurisdiction of Public Service Commission, thus, petitioners for not having been appointed in "prescribed manner" were not entitled to benefit of S.2(2) of Amending Act, 2005---Validity---Appointment of persons on contract basis by Governor or any person authorized by him in exercise of powers under S.25 of North-West Frontier Province Civil Servants Act, 1973 did not fall within the ambit of Public Service Commission for not being regular civil servants under S.2(2) thereof---By virtue of deeming phrase and words "all such persons" as used in S.2(2) of Amending Act, 2005, petitioners on its promulgation automatically stood regularized and deemed as civil servants for all purposes except pensionary benefits, thus, issuance of notification/executive order in this regard was only a formality to be done by departmental heads and petitioners were not required to approach them for such purpose---Petitioners could not be blamed for inaction of authority---Authority had no power to undo what was intended by Legislature, except to determine inter se seniority of petitioners on strength of their service---Petitioners by rendering continuous services for 4 to 10 yeas efficiently had acquired rich experience in relevant field thus, they would be of much worth as compared to new selectees of Public 'Service Commission for not possessing such long experience---High Court directed authority to do the needful within specified time---Principles.

Miss Shagufta Sayed and others v. Government of N.-W.F.P. Writ Petition No.1731 of 2006 and Mst. Naveed Yousaf, PST and 21 others v. E.D.O. and others Writ Petition No.1648 of 2007 fol.

(b) Interpretation of statutes---

----Delegated powers of rules making, exercise of---Object and scope stated.

The object of delegation of rules making powers is always aimed at to carry out and achieve the objects and purposes of an Act of Legislature. Thus, a rule making authority cannot enact a rule to override or render the main Statute ineffective.

When any rule/regulation or executive order made/passed by any authority under delegated powers of legislation comes in conflict with the statute made by the Legislature, then it shall be void to that extent and shall give way to the parent statute, which shall have overriding and superimposing effect.

Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 fol.

----Estoppel would not operate against a Statutes.

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

----Art. 201---Decision of a former Division Bench on a point of law---Validity---Subsequent Division Bench, though could not differ with opinion of former Bench, but if wished to differ with same, it might ask Chief Justice to constitute a larger Bench or leave such matter for decision of Supreme Court.

The Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; The Province of East Pakistan v. Sirajul Huq Patwari PLD 1966 SC 854; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 423; Haji Ali Khan and Company, Abbottabad v. Messrs Allied Bank of Pakistan Limited PLD 1995 SC 362 and Sidheswar Ganguly v. State of West Bengal PLD 1958 SC India 337 rel.

Roohul Amin for Petitioners.

Qaiser Rashid, Addl. A.-G., Dr. Alam Dar, Asstt. Director Health and Bughdad Shah, S.O; Health for Respondents.

Date of hearing: 18th November, 2008.

Malik Javed Iqbal, District Attorney for Respondents.

Date of hearing: 29th January, 2004.

Punjab Subordinate Judicial Service Tribunal

PLCCS 2009 PUNJAB SUBORDINATE JUDICIAL SERVICE TRIBUNAL 623 #

2009 P L C (C.S.) 623

[Punjab Subordinate Judiciary Service Tribunal]

Before Justices Syed Hamid Ali Shah and Zubda-tul-Hussain, Members

MUMTAZ MUNAWAR KHAN NIAZI

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.18 of 2005, decided on 4th July, 2008.

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

----S. 8 [as amended under Punjab Civil Servants (Amendment) Act (III of 2005)]---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Promotion, eligibility for---Appeal, competency of--Appellant, who was considered for promotion to the rank of District and Sessions Judge by the Promotion Committee in April, 1997, his case was subsequently reconsidered in December, 1997, and was deferred for a period of three years on same adverse remarks in the period from September, 1999 to December, 1999----Adverse remarks were expunged on the representation and appellant was accorded promotion as Additional District and Sessions Judge in October, 2002---Representation for pro forma promotion w.e.f. April, 1997, however, had been declined---Competency of appeal was objected to on the ground that after retirement of appellant his appeal was not competent---Validity Amendment in S.8 of the Punjab Civil Servants Act, 1974 which was made on 13-4-2005, had prospective effect---Appellant was retired on 8-4-2004; i.e. prior to the amendment in S.8 of the Punjab Civil Servants Act, 1974---Said section, in circumstances, had no application to the case of the appellant---Retirement of the appellant being prior to the amendment and appeal also being prior to the said amendment, appeal for according the appellant, pro forma promotion was competent---Appellant was eligible for promotion in April, 1997 and adverse remarks, which resulted into deferment, were subsequently expunged, when his representation was accepted---Sole reason for deferment of the promotion of the appellant was existence of adverse remarks, which having stood expunged, he was accorded pro forma promotion w.e.f. 1-4-1997 as prayed by the appellant.

N.A. Qureshi v. Government of the Punjab and 2 others PLD 1982 Lah. 242; Dr. Waseem Asmat Chaudhry v. Chairman and Dean Sheikh Zayyed Hospital and Post-Graduate Medical Institute, Lahore 1999 SCMR 2364; Sheikh Muhammad Riaz v. Government of the Punjab and another 2003 PLC (C.S.) 1496; Tajammal Hussain v. Inspector General of Police, Punjab, Lahore and 25 others 1985 PLC (C.S.) 848; Nazir Ahmad v. Deputy Inspector-General of Police, Faisalabad and 30 others 1986 PLC (C.S.) 228 and Capt. Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637 ref.

Government of the Punjab and another v. Rana Ghulam Sarwar and 111 others 1997 SCMR 515 and Federation of Pakistan v. Syed Muhammad Farooq and another 2005 PLC (C.S.) 1424 rel.

Mian Jaffar Hussain for Appellant.

Nayyar Iqbal Ghori for Respondent.

Quetta High Court Balochistan

PLCCS 2009 QUETTA HIGH COURT BALOCHISTAN 355 #

2009 P L C (C.S.) 355

[Quetta High Court]

Before Amanullah Khan Yasinzai, C. J. and Akhtar Zaman Malghani, J

SHAFI MUHAMMAD MUGHAL

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 5 others

Civil Petition No.606 of 2007, decided on 9th June, 2008.

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

----S. 9---Balochistan Service Tribunals Act (V of 1974), S.4(1)(b), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition-Maintainability-Promotion, withholding of---Petitioner had challenged recommendation of Departmental Promotion Committee for supersession of his promotion from B.S.17 to B.S.18; he had also impugned notification of supersession of his promotion and promotion of respondents from B.S.-17 to B.S.18---Petitioner had alleged that no reason had been mentioned in impugned notification for superseding him---Counsel for respondents had objected to maintainability of constitutional petition on the ground that petitioner had remedy before Service Tribunal for his grievance---Promotion of the petitioner was not withheld on the ground of eligibility for promotion, but he was not found fit for promotion on the basis of his service record and other documents---Service Tribunal had no jurisdiction in the matter, in view of clause (b) of proviso to subsection (1) of S.4, Balochistan Service Tribunals Act, 1974, and constitutional petition was maintainable as it related to the fitness and promotion of the petitioner to the next higher grade.

PLD1994 SC 539 ref.

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

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Supersession of promotion---Respondents were promoted from BS-17 to BS-18 vide notification, but petitioner was superseded---No, reason whatsoever had been mentioned in notification about supersession of the petitioner, nor copy of minutes of the Departmental Promotion Committee had been filed along with parawise comments by the respondents from which it could be ascertained the grounds on which the petitioner was superseded---Respondents, in their parawise comments, had agitated that petitioner was superseded after taking into consideration his service record, his previous punishment, integrity, reputation and report of Army vigilance---Validity---On account of previous punishment or report of Army vigilance, petitioner was already superseded in year 2000---In accordance with Estacode after earning PERs for two full years, petitioner was entitled for consideration for promotion and such punishment or reports could not have been legally considered, particularly when petitioner had subsequently earned PERs "good" and "very good" for the years 2004, 2005 & 2006---No other material had been placed on record on the basis whereof integrity or reputation of the petitioner could have been adjudged by the Departmental Promotion Committee---Promotion of the petitioner, in circumstances, was withheld on the basis of no evidence---Supersession of the petitioner was declared illegal and without lawful authority---Official respondents were directed to consider the case of petitioner for promotion in the relevant rules and law.

M. Aslam Chishti for Petitioner.

Muhammad Ishfaq Butt for Respondent.

Ch. Mumtaz Yousaf, Standing Counsel.

Date of hearing: 20th May, 2008.

PLCCS 2009 QUETTA HIGH COURT BALOCHISTAN 656 #

2009 P L C (C.S.) 656

[Quetta High Court]

Before Mehta Kailash Nath Kohli and Ahmed Khan Lashari, JJ

Dr. HAFIZ MUHAMMAD RAFIQUE and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and 3 others

Constitutional Petitions Nos.565 of 2003 and 495 of 2007, decided on 13th October, 2008.

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

----S. 9---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, Rr.1(2), 7, 8 & 9---Constitution of Pakistan (1973), Arts.199, 4 & 27--- Constitutional jurisdiction--- Scope---Promotion, entitlement to---Petitioners who were senior most Doctors having service of couple of decades, were working in the subordination of Junior Doctors---Section 9 of Balochistan Civil Servants Act, 1974, had clearly provided the criteria of promotion to be made according to seniority-cum-merit in relation to selection posts---Government functionaries had failed to demonstrate that petitioners were not senior to respondents or they were meritless to be appointed to the specific posts---Record had further reflected that the Rules were flagrantly violated and various Doctors who were eligible to be posted and promoted according to their seniority, had been deprived of their lawful rights---Article 27 of the Constitution had provided that no person, otherwise qualified for appointment in the service, would be discriminated against in respect of any such appointment, while Art.4 of the Constitution had provided equal treatment---Court had to see that when not only fundamental rights were violated, but there was also structural collapse, the court should exercise the jurisdiction---Regarding objection that High Court had no jurisdiction to adjudicate upon the matter, suffice to observe that superior courts had jurisdiction to direct enforcement of fundamental rights by issuing writ of mandamus and prohibition---Department, in the present case, having failed to abide by the provisions of law as well as Rules framed thereunder; junior doctors had been assigned higher posts, while senior doctors had been made subordinate to them---Department was directed by the High Court to issue revised seniority list and implement the provisions of Balochistan Civil Servants Act, 1974 and the Rules framed thereunder.

Karachi Building Control Authority v. Saleem Akhtar and others 1993 SCMR 1451 and Messrs Ellahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance Islamabad and 6 others PLD 1997 SC 582 ref.

H. Shakil Ahmed for Petitioners (in Constitutional Petition No.565 of 2003).

Syed Ayaz Zahoor and Muhammad Mohsin Javed for Respondents (in Constitutional Petition No.565 of 2003).

H. Shakil Ahmed for Petitioners (in Constitutional Petition No.495 of 2007).

Naeetn Akhtar for Respondents (in Constitutional Petition No.495 of 2007).

Date of hearing: 13th October, 2008.

Service Tribunal For Members Of Subordinate Judiciary

PLCCS 2009 SERVICE TRIBUNAL FOR MEMBERS OF SUBORDINATE JUDICIARY 379 #

2009 P L C (C.S.) 379

2009 P L C (C.S.) 908

[Service Tribunal (AJ&K)]

Before Malik Abdul Rashid, Chairman and Azhar Saleem Babar, Member

MUHAMMAD MUSHTAQUE

Versus

D.P.I. SCHOOLS ELEMENTARY, MUZAFFARABAD and 9 others

Service Appeal No. 372 of 2008, decided on 20th November, 2008.

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

----Ss. 4 & 9---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4-Transfer-Appeal-Appellant who was serving as Junior Teacher in School at place D.B' was transferred in School at placeB'---Appellant had urged that order of his transfer was against the Government Policy because there was a complete ban on transfers and that the orders of transfers in the school cadre could be issued in the months of June and July, whereas he was transferred in the month of September---Validity---Order of transfer which was final in its nature was challenged by the appellant after about one year of his transfer, which was time-barred, whereas the appellant was well in picture of the order of his transfer---Limitation in the case would run from the date of issuing of said order and not from the date of endorsement---Order of transfer was never suspended or kept in abeyance by the authorities--Order of transfer being within the knowledge of the appellant, had not been challenged within limitation---Appeal filed by the appellant against said order was barred by limitation---Appellant could not succeed in indicating any violation of transfer policy---Appellant could not rebut that his period of stay at his present place of posting was more than 10 years whereas the respondents had also a stay of more than 3 years at their respective stations---Impugned order had been issued by the competent authority after getting relaxation on bans---Moreover the compulsory period of stay had also been completed by the incumbents---No policy or law had been violated by Authority by issuing impugned order of transfer---Appeal had been filed by the appellant without any justification which merited no consideration at all---Appeal was dismissed, in circumstances.

Mansoor Pervez Khan for Appellant.

Muhammad Bashir Khan Standing Counsel for Respondents Nos.1 to 5 and 8 to 10.

Sardar M.R. Khan for Respondents Nos.6 and 7.

Date of hearing: 20th November, 2008.

PLCCS 2009 SERVICE TRIBUNAL AZAD KASHMIR 911 #

2009 PLC (C.S.) 911

[Service Tribunal (AJ&K)]

Before Malik Abdul Rashid, Chairman and Azhar Saleem Babar, Member

HAFEEZ-UR-REHMAN ABBASI

Versus

AZAD GOVERNMENT through Chief Secretary, Azad Kashmir, Muzaffarabad and 3 others

Service Appeal No.119 of 2009, decided on 9th April, 2009.

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

---Ss. 4 & 9---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Transfer---Appeal---Appeal had been addressed against Notification, whereby appellant had been ,transferred---Appellant felt aggrieved of said notification of transfer for the reason that he was the senior most in the list of Sub-Engineers and the charge of the post of Sub-Divisional Officer could not be snatched away from him by reason of simple transfer---Appellant also contended that in the presence of a senior employee, the charge of senior post could not be given to a junior person---Power of assigning the additional charge of a senior post was not provided by the service laws---Recognized modes of promotion under, the provisions of service laws were current charge, officiating basis and regular promotion---Assigning the additional charge of a senior post could be considered as nothing more than a stop-gap arrangement and it could not be claimed as' a right---It could not be overlooked that appellant was a Sub-Engineer who was performing his functions as such at "N" and through the impugned notification he had been transferred to the post of Sub-Engineer at "M"---Nothing wrong appeared to have been committed in such a situation---Possessing additional charge of a senior post was not a vested right of a senior employee---Appeal did not merit any further consideration--If the plea of seniority was considered, appellant did not fall within the definition of an "aggrieved person" because one senior to him had not approached the court nor had he been arrayed as party in the line of respondents---Appellant, in circumstances, not falling within the definition of "aggrieved person", his appeal was dismissed.

Kh. Muhammad Naseem for-Appellant.

Muhammad Dawood Khan Abbasi, Standing Counsel for Respondents Nos.1 to 3.

Raja Muhammad Arif Rathore for Respondent No.4.

Date of hearing: 9th April, 2009.

Supreme Court

PLCCS 2009 SUPREME COURT 19 #

2009 P L C (C.S.) 19

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

NASEEB KHAN

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE and another

Civil Petition for Leave to Appeal No.466 of 2008, decided on 26th May, 2008.

(On appeal from the judgment, dated 23-1-2008 passed by Federal Service Tribunal in Appeal No.397(R) of 2007).

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

----S. 5---Misconduct---Dismissal from service---Non-holding of departmental Enquiry---Violation of principles of natural justice---Effect---Held, in case of imposing a major penalty, the principles of natural justice required that a regular enquiry was to be conducted in the matter and opportunity of defence and personal hearing was to be provided to the civil servant proceeded against, otherwise civil servant would be condemned unheard and major penalty of dismissal from service would be imposed upon him without adopting the required mandatory procedure, resulting in manifest injustice.

Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316 and Inspector-General of Police, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 2007 ref.

Abdul Rehman Siddiqui, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Qamar Zaman, Clerk, Litigation Branch for Respondents.

Date of hearing: 26th May, 2008.

PLCCS 2009 SUPREME COURT 47 #

2009 P L C (C.S.) 47

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

Civil Appeals Nos.113 to 116 of 2005

INSPECTOR-GENERAL (PRISONS) N.-W.F.P., PESHAWAR and another

Versus

Syed JAFFAR SHAH, EX-ASSISTANT SUPERINTENDENT JAIL and others

(On appeal from the judgment of Service Tribunal, N.-W.F.P., Peshawar, dated 7-6-2003 passed in Appeals Nos.62, 118, 79 and 124 of 2002).

Civil Petitions Nos.665-P, 682-P and 1803 of 2003

MAQSOOD AHMAD and others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Home Department, Peshawar and others

(On appeal from the judgment of Service Tribunal, N.-W. F. P., Peshawar, dated 7-6-2003 passed in Appeals Nos.62, 118, 79 and 124 of 2002).

Civil Appeals Nos.113 to 116 of 2005, Civil Petitions Nos.665-P, 682-P and 1803 of 2003, decided on 21st November, 2005.

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

----S. 3---Pakistan Prison Rules 1978, Rr.340(i)(iv), 341, 342, 1168, 1024 & 1072(1)---North-West Frontier Province Service Tribunals Act (I of 1974), Ss.4 & 7(1)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Jail officials---Facilitating escape of prisoners from jail, charge of---Service Tribunal in appeal converted such penalty into reduction in time scale by three stages and reinstated civil servants in service with back-benefits--Plea of department was that reduction in quantum of penalty and exoneration of civil servants from charges had potential tendency of encouraging perpetuation of further indiscipline in the members of disciplined force contributing to the ever deteriorating law and order situation contrary to the deterrent aspect of punitive administration of justice, which substantially was a question of public importance within contemplation of Art.212(3) of the Constitution---Supreme Court granted leave to appeal to consider such plea.?

(b) Pakistan Prison Rules, 1978---

---Rr. 340(i)(iv), 341 & 342---Condemned prisoner---Duties of Warder, Head Warder, Assistant Superintendent Jail, Deputy Superintendent Jail and Superintendent Jail stated.

According to Rule 340(i)(iv) of Pakistan Prison Rules (Jail Manual) not more than one condemned prisoner should be permitted to occupy the courtyard for half an hour except with special permission of Superintendent Jail. It is the duty of Warder to personally watch the cell of prisoner, but door must be opened in his presence and similarly Head Warder is bound to visit the cell occupied by a condemned prisoner, and in case of any suspicion, he shall report the matter to Deputy Superintendent Jail as provided under Rule 341 thereof.?

The Superintendent Jail has to keep close watch on his subordinates regarding performance of their duties in accordance with Rules and must be vigilant about all affairs of the jail. The Superintendent Jail being responsible for the administration of jail had collective responsibility for the lapses on the part of his subordinates; therefore, he must suitably adopt preventive measures to avoid any unpleasant incident.?

----S. 3---Pakistan Prison Rules, 1978 Rr.340(i)(iv), 341, 342, 1168, 1024 & 1072(1)---North-West Frontier Province Service Tribunals Act (I of 1974), Ss.4 & 7(1)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Warder, Head Warder, Assistant Superintendent Jail, and Superintendent Jail---Facilitating escape of prisoners from jail, charge of---Service Tribunal in appeal altered such penalty into reduction in time scale by three stages and reinstated civil servants in service with back-benefits---Plea of department was that such reduction in quantum of penalty would encourage perpetuation of indiscipline amongst jail officials---Validity---Ladder being used for white wash had been kept within reach of condemned prisoner who was in possession of pistol also---Without connivance of jail staff, prisoner could not implement scheme of escape from jail---Such incident was result of direct involvement of civil servants---Superintendent Jail was overall responsible for administration of jail, Assistant Superintendent Jail was on supervisory duty at relevant time, Head Warder was deputed for search of cell, and Warder in the courtyard was responsible for search of condemned prisoners and visitors---Civil servants being grossly negligent in performing their duty had rightly been found guilty of charge---In cases of extreme negligence and gross misconduct, such alternation of punishment or unnecessary laxity and leniency in matter of punishment might not be justified as retention of an irresponsible person in sensitive service of Jail Department would be against the policy of administrative law---All civil servants being equally responsible for such incident, would deserve equal treatment in matter of punishment---Supreme Court accepted appeal, set aside impugned judgment and imposed penalty of compulsory retirement on civil servants.

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

----S. 7(1)---Power of Service Tribunal to vary or modify penalty awarded by competent authority--Scope---Where quantum of punishment did not commensurate with charge, then Service Tribunal in its discretion in a suitable case may modify penalty in the light of charge---Such discretionary power must be exercised in a judicious manner and in the spirit of law---Interference in quantum of impugned punishment would not be proper without showing reasonable ground that penalty awarded by competent authority was harsh as compared to nature of charge---Exercise of discretion in an improper manner would definitely be a legal question of immense importance as wrong exercise of discretion or misuse of discretionary jurisdiction might defeat the purpose of law---Principles.?

Muhammad Saeed, A.A.-G., N.-W.F.P., Peshawar for Appellants (in C.As. Nos.113 to 116 of 2005).

Khushkhadil Khan, Advocate Supreme Court for Respondent (in C.A. No.113 of 2005).

Khalid Khan Advocate Supreme Court for Respondents (in C.As. Nos.114 and 116 of 2005).

Shah Abdur Rashid Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent (in C.A. No.115 of 2005).

Khalid Khan, Advocate Supreme Court for Petitioner (in C.Ps. Nos.665-P and 682-P of 2003).

Shah Abdul Rashid, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.P. No.1803 of 2003).

Nemo for Respondents.

Date of hearing: 21st November, 2005.

PLCCS 2009 SUPREME COURT 79 #

2009 P L C (C.S.) 79

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD ASHFAQ

Versus

MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB; LAHORE and another

Civil Petition No.242-L of 2005, decided on 16th July, 2008.

(On appeal from the judgment dated 1-12-2004 of the Punjab Service Tribunal Lahore passed in C.M.No.600 of 2004 in Appeal No.56 of 1991).

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

----S. 4---Civil Servants Act (LXXI of 1973), S.2(b)---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Right of appeal has been given to a civil servant and there is no provision in Service Tribunals Act, 1973 to provide any remedy to his successors-in-interest.

Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Islamabad 1991 SCMR 1192 ref.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Delay of 13 years---Condonation of---Incumbent upon a litigant to explain the delay of each and every day for not approaching the court of law within the prescribed period of limitation---Application filed by the petitioner, which otherwise, was not maintainable, being barred by 13 years, there was no sufficient cause to condone such delay---Service Tribunal, in circumstances, was right to refuse to condone the delay.

----S. 4---Appeal to Service Tribunal---Appellant civil servant, died during pendency of his appeal, which had been filed against the order of his removal/dismissal from service---Service Tribunal was justified in law in passing the order of abatement of appeal in circumstances.

Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Islamabad 1991 SCMR 1192 ref.

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

----Art. 212(3)---Petition for leave to appeal---No substantial question of law of public importance within the parameters of law being involved in the case and no case for grant of leave having been made out, petition for leave to appeal was declined.

Dr. Akmal Saleemi, Advocate Supreme Court for Petitioner.

Mian Abbas Ahmad, Addl. A.-G. for Respondents.

Date of hearing: 16th July, 2008.

PLCCS 2009 SUPREME COURT 98 #

2009 P L C (C.S.) 98

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

CENTRAL BOARD OF REVENUE through Chairman/Secretary, Revenue Division, Islamabad

Versus

SHAFIQ MUHAMMAD and another

Civil Appeal No.717 of 2007, decided on 14th April, 2008.

(On appeal from the judgment/order, dated 6-12-2006 passed by Federal Service Tribunal in Appeal No.1081(R)(C.S.) of 2004).

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

----R. 5(1)(iii)---Service Tribunals Act (LXX of 1973), Ss.4(1)(a) & 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to examine as to whether the Service Tribunal had condoned the delay of 4 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the civil servant from the office of petitioner for 5 years can be condoned when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years' absence was properly explained but there was no ground to justify the absence for another 5 years which finding of the department dated 10-9-1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15-03-2000.

Per Muhammad Nawaz Abbasi J, Ijaz-ul-Hassan Khan J, agreeing Mian Hamid Farooq, contra, [Majority view]---

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

---Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Power of Service Tribunal under S.5, Service Tribunals Act, 1973---Scope---Service Tribunal may confirm, set aside, vary or modify the order appealed against, in an appropriate manner-Only limitation on the power of Service Tribunal is to satisfy the test of reasonableness---Service Tribunal, in the present case, having considered the question of law and facts raised in the appeal formed an opinion that the extreme penalty of dismissal from service was not in consonance with the nature and gravity of charge of absence from duty without leave-However while exercising powers under S.5, Service Tribunals Act, 1973 it converted major penalty of dismissal from service into stoppage of two increments for a period of two years---Such exercise of power by the Service Tribunal would not suggest that discretion exercised by the Tribunal was beyond the scope of law---Department had not been able to satisfy that Tribunal had committed any wrong in exercising the jurisdiction on the basis of test of reasonableness or any settled principle of law on the subject, which might be treated a jurisdictional error calling for interference by Supreme Court---Order of Service Tribunal, in circumstances, was in accordance with the concept of substantial justice.

----Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Absence from duty---Dismissal from service without regular enquiry---Hardship case---Exercise of discretion by Service Tribunal and conversion of dismissal from service by Service Tribunal into stoppage of increments for two years and condonation of delay in filing appeal before it--Interference by Supreme Court under Art.212(3) of the Constitution---Scope and extent.

The scope of interference of the Supreme Court in a case under Article 212(3) of the Constitution is confined to the extent of satisfaction of the court regarding involvement of substantial question of law of public importance, therefore, unless the order passed by the Tribunal is found to have been passed without jurisdiction, or coram non judice, mala fide or illegal, in respect of substantial question of law, Supreme Court may not interfere in the matter in exercise of its powers under Article 212(3) of the Constitution. In the present case, it appears that Tribunal firstly exercised discretion in favour of condonation of delay for the consideration that absence without leave may not be deliberate and intentional rather it was due to the abnormal situation which prevented the civil servant to return Pakistan and secondly, keeping in view the nature of charge and the circumstances under which he could not resume duty, it exercised discretion in favour of lesser penalty in the interest of substantial justice. The law authorizes the Tribunal to make a decision on the question of penalty awarded to a civil servant by the departmental authority and substitute the quantum of punishment in an appropriate manner in a suitable case in its discretion within the statutory command and this is settled law that a judicial power exercised in discretionary jurisdiction, is not supposed to be interfered by a higher judicial forum for collateral consequence in its discretion.

It is clear that Tribunal has to follow the limitations and restrictions of law in exercise of discretion in a manner, which may not offend the spirit of law. The concept of discretion in judicial power is to advance the cause of justice and exercise of this power in a judicious manner in aid of justice and not to perpetuate injustice whereas the executive authorities-have different considerations for exercise of such power. The judicial norms do not permit to encourage continuation of exercise of jurisdiction by a State functionary to deprive a person from his legitimate rights. It would be highly unlikely that Supreme Court imbued the discretionary action of a public functionary if the same was done in violation of the recognized principles of exercise of discretionary power. The distinction in the recognition of an action of a person and governmental authorization of public officer can be demonstrated by the test of determination whether deprivation of a right was the result of such an action of individual or the breach of law by a public authority. Where deprivation of some right or privilege is caused in consequence of an official act and the party charged with the deprivation is a person who acted as public functionary, the judicial powers necessarily have to be exercised in aid of protecting the rights and must not be exercised in aid of injustice. In the light of the facts and circumstances of the present case, the exercise of discretion by the Tribunal in condoning the delay as well as disposal of appeal with reduction of punishment without remand of case to the departmental authority for holding inquiry was quite in accordance with the concept of substantial justice in such a case of hardship.

The civil servant, in the present case, proceeded abroad with the permission of department and was also subsequently allowed ex-Pakistan leave on humanitarian ground, therefore, the element of wilful absence is not present in view of repeated explanation of civil servant regarding his difficulty, and his seeking extension in ex-Pakistan leave. The department at the first instance treating it a hardship case allowed ex-Pakistan leave and subsequently without change of circumstances, taking a harsh view, initiated departmental proceedings against him and ultimately awarded him extreme penalty of dismissal from service. In such circumstances, the remand of the case to the department would be futile. The regular inquiry in the departmental proceedings is a rule and dispensation is an exception depending on the facts of a case, therefore, the question whether regular inquiry in a case is necessary or not, it is to be kept in mind as to whether an adverse inference drawn without making probe into the facts in the light of explanation of a civil servant, would not amount to condemn a person unheard. The courts must not ignore cardinal principle that the hearing simpliciter does not mean providing of opportunity of written explanation to the show-cause notice rather in the facts of each case, it must be seen that the enquiry is just, proper and fair, therefore, no general rule can be laid down for dispensation of regular inquiry. The departmental proceeding on the charge of misconduct is a sort of semi-criminal proceeding in which initial burden is on the department to prove the charge and if the allegations are denied by the accused official the charge cannot be proved without producing evidence. In the present, case, the stand of civil servant, right from beginning, was that his absence was not wilful rather due to unavoidable circumstances, he was prevented from resuming duty. In view thereof, the procedure of dispensation of inquiry adopted by the department, was contrary to the law and consequently, the finding of the Tribunal in the peculiar facts and circumstances of the present case, that regular inquiry was essential to ascertain as to whether the question of wilful absence and dispensation of such an inquiry was not in accordance with the spirit of law in the given facts, was unexceptional. In view thereof, the major penalty of dismissal from service without regular inquiry was not justified. The contention that the Tribunal should have remanded the case instead of disposal of appeal on merits was not raised before the Tribunal and now it is too late to undertake such a futile exercise of remanding the case at this stage.

Appeal before the Tribunal appeared to be time barred but in view of circumstances pleaded therein, no exception could be taken to the condonation of delay by the Tribunal as the objection could conveniently be overruled in view of the fact that when the order of dismissal of appeal was conveyed to the civil servant he immediately filed the appeal. Therefore, in view of his bona fide, the objection of limitation, may have no significance. A civil servant could wait till communication of decision of departmental appeal and would not be non-suited on technical grounds.

The discretion exercised by the Tribunal in condoning the delay and disposal of appeal on merits with conversion of penalty of dismissal from service into stoppage of increment, was not illegal or improper exercise of jurisdiction. The departmental proceedings were initiated against the civil servant in the year 1998 which continued for a period of about 10 years and the impugned judgment having been already given effect, civil servant was performing his duty and in view thereof, it was not proper for the Supreme Court to interfere in the judgment of the Tribunal at this stage on technical grounds. The discretionary jurisdiction exercised by the Tribunal in respect of condonation of delay and conversion of penalty was not arbitrary, illegal or un-reasonable to attract the jurisdiction of Supreme Court under Article 212(3) of the Constitution.

Nawab Khan v. Government of Pakistan PLD 1994 SC 222; Secretary, Government of the Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Basharat Ali V. Director Excise and Taxation 1997 SCMR 1543; Managing Director, S.S.G.C. Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776 ref.

Per Mian Hamid Farooq, J Contra.---[Minority view].

Mst. Hajran v. Sardar Muhammad PLD 1970 SC 287; Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 22 ref.

Raja Muhammad Bashir, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 14th April, 2008.

PLCCS 2009 SUPREME COURT 114 #

2009 P L C (C.S.) 114

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, M. Javed Buttar and Nasir-ul-Mulk, JJ

MUHAMMAD RAFIQUE and others

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. and others

Civil Petitions Nos.565-K to 569-K and 828-K of 2003, decided on 13th May, 2005.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Appeals filed by the petitioners were dismissed by the Service Tribunal on the ground that same were time-barred as same were not filed within 120 days from the date of termination order---Departmental appeals filed by petitioners before competent Authority were not responded and no decisions were communicated to petitioners---Authority, on reminder, informed the petitioners that their departmental appeals were rejected---Appeals filed by the petitioners before the Service Tribunal within 30 days from receipt of communication that departmental appeals of petitioners were rejected, could not be said to be time-barred---Finding of the Tribunal that appeals filed by the petitioners were time-barred thus, could not be sustained---Petitions were converted into appeals and allowed, impugned orders passed by the Tribunal were set aside and appeals were remanded to the Tribunal for decision of the same on merits after hearing the parties.

Syed Ishfaq Haider, Advocate Supreme Court for Petitioners.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents.

PLCCS 2009 SUPREME COURT 119 #

2009 P L C (C.S.) 119

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

Haji PEER BAKHSH

Versus

UNION COUNCIL, BOLHARI and others

Civil Petition No.366-K of 2005, decided on 29th September, 2005.

West Pakistan Civil Services Pension Rules---

----Constitution of Pakistan (1973), Art.212(3)---Civil Service---Appeal filed by petitioner before Service Tribunal was tune-barred---Contention raised by petitioner that petitioner, a temporary employee of Union Council, on completion of 10 years service superannuated, would be entitled to the pensionary benefits under West Pakistan Civil Services Pension Rules, required consideration---Leave to appeal, was granted in circumstances.

Ansari Abdul Latif, Advocate Supreme Court and Ahmedullah Faruqi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2009 SUPREME COURT 127 #

2009 P L C (C.S.) 127

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

NAJAM-UZ-ZAMAN and others

Versus

ENGINEER-IN-CHIEF, G.H.Q., RAWALPINDI and 2 others

Civil Petitions Nos.1135-K, 1229-K and 1233-K of 2002, decided on 26th April, 2005.

(On appeal from a common judgment of Federal Service Tribunal, dated 18-10-2001 passed in Appeals Nos.427-K, 482-K and 598-K of 1999).

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

----S. 4---Civil Procedure Code (V of 1908), O.XLI, Rr.30 & 31---Appeal to Service Tribunal---Delay in announcement of judgment by the Tribunal---Prejudice to a party or defeat of ends of justice---Civil Procedure Code, 1908, as a whole, though was not applicable to the proceedings in the appeals before Service Tribunal, but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of O.XLI, Rr.30 & 31, C.P.C.---Remand of the case on the ground of delay in announcement of judgment defeating the ends of justice and causing prejudice to a party---Desirability---Supreme Court while disapproving the practice of delayed announcement of judgments observed that all judicial or quasi-judicial forums, must announce the judgments within reasonable time---Although Courts and Tribunals must announce the judgment within reasonable time but mere delay in announcement of judgment, would not be considered sufficient ground to set aside the same and remand the case if no prejudice was caused to any party on the merits---Principles.

In principle, there can be no departure from the rule that if due to the unnecessary delay in the announcement of the judgment, any prejudice was caused to any party, the case should be sent back to the lower Court/forum for rehearing and decision afresh. Civil Procedure Code as a whole, is not applicable to the proceedings in the appeals before the Service Tribunal but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of Order XLI, rules 30 and 31, C.P.C. The delay even of a lesser period in announcement of judgment in a case, may cause prejudice to a party or defeat the ends of justice, therefore, all forums discharging judicial and quasi-judicial functions, are supposed to follow the law in letter and spirit and must discharge their functions in a judicious manner. In the present case, the Service Tribunal has dealt with all the points and contentions raised in the appeals before it in proper manner and no legal defect or factual infirmity in the judgment causing any prejudice to the petitioners on merits had been found and consequently, remand of the case on this ground was not proper. However, Supreme Court while disapproving the practice of late announcement of judgments, held that all judicial or quasi-judicial forums, must announce the judgments within reasonable time.

Courts and Tribunals must announce the judgment within reasonable time but the mere delay in announcement of judgment, would not be considered sufficient to set aside the same and remand the case if no prejudice was caused to any party on the merits.

Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669; Muhammad Bakhsh v. State 1989 SCMR 1473; Sami-ul-Haq v. Maqbool Hussain Butt 2001 SCMR 1053 and Ali Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 ref.

(b) Civil service---

----Departmental inquiry---Methodology of departmental enquiry and requirements of law elucidated.

The Qanun-e-Shahadat, 1984 has been made applicable to all judicial and quasi-judicial proceedings before any Court, Tribunal or authority when exercising such powers or jurisdiction but in a departmental inquiry, the strict application of rule of evidence is not the requirement of law and an Inquiry Officer need not follow the method of recording the statement of a person by a regular Court or a Tribunal established under the law, therefore, the manner of recording the statement of the petitioner by the Inquiry Officer in question and answer form, would not render their statements inadmissible in evidence. In the departmental inquiry, the statement of a witness or an accused official is not recorded on oath, therefore, it was not necessary for the Inquiry Officer to record the statements of the petitioners in narrative form and their statements recorded by the Inquiry Officer in question and answer form containing their admissions of misappropriation of Government funds were admissible in evidence which could safely be relied upon as conclusive proof of their guilt. In the present case record had not shown that the admissions made by the petitioners in their replies to the questions put to them by the Court of Inquiry, were obtained through coercion and were not voluntary. Law does not emphasise for the strict application of Qanun-e-Shahadat, 1984 to the departmental inquiries rather the applicability of general principles of law of evidence would sufficiently meet the ends of justice, therefore, the objection regarding the method of recording the statements of the petitioners would be of no significance. However, it is an essential requirement of law that the charge must be specific and capable of conveying the exact nature of allegation so that accused officer could meet the charge and he should also be provided proper opportunity of making his defence. This is correct that the proceedings in the departmental inquiry are not judicial proceedings and the Inquiry Officer is not required to strictly follow the procedure of a judicial inquiry but nevertheless, the inquiry cannot be held in an arbitrary manner and rules of natural justice must be followed. In short, in the departmental inquiries, the principles of natural justice and fairness must be adhered to and the Inquiry Officer must provide fair chance to the accused official of cross-examination to the witnesses and production of evidence in rebuttal but the Inquiry Officer is not required to strictly observe requirement of the procedural law in the manner as is followed by the regular Courts and Tribunals established under law. The general practice is that the statement of a witness or an accused official, in the departmental inquiry is recorded in the narrative form but in the present case, the Inquiry Officer had chosen to record these statements in question and answer form and since no specific method was provided in law for recording the statement of a person by the Inquiry Officer, therefore, the manner in which the statements of the petitioners were recorded, was not in violation of law. The Inquiry Officer being not well-conversant with the law, could not be expected to strictly follow the procedure and consequently a procedural mistake, if any, would neither affect the inquiry proceedings nor the ultimate result on merits. It is also not the requirement of law that department must produce large number of witnesses in support of the allegation rather evidence of sole witness or admission of an accused official, can be considered sufficient to prove the charge. In the present case the perusal of the statements of the petitioners made by them before the Inquiry Officer, would show that they consciously and voluntarily admitted their involvement in the transactions without any outside pressure or influence and their admissions having been found correct on the record, would alone be sufficient to fix their responsibility, therefore, no other evidence was required to prove the charge of misappropriation of funds.

----Allegation of embezzlement against employees---Accused employees had not been able to satisfy the Court from the record that they were not provided fair and reasonable opportunity of hearing or the charge was not proved against them in a satisfactory manner---Mere general assertion that accused employees were not provided proper opportunity to defend themselves at the inquiry, would not be sufficient to hold that accused employees were not allowed opportunity to cross-examine the witnesses or inspection of record and production of evidence in rebuttal---Employees were found guilty of the charges by the Inquiry Officer and the competent Authority having gone through the record, had agreed with the findings of Inquiry Officer and further the Service Tribunal having found them guilty of the charges, dismissed their appeals---Supreme Court, in circumstances, declined to take any exception to the concurrent findings of three forums, qua the guilt of the employees and dismissed the petition for leave to appeal.

Abdul Rahim Kazi, Advocate Supreme Court for Petitioner (in C.P. No.1135-K of 2002).

M.M. Aqil Awan, Advocate Supreme Court for Petitioner (in C.P. No.1229-K of 2002).

Manzoor Ali Khan, Advocate Supreme Court and Fiazanul Haq, Advocate-on-Record for Petitioner (in C.P. No.1233-K of 2002).

Sajjad Ali Shah, Dy. A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondents (in all cases).

Date of hearing: 26th April, 2005.

PLCCS 2009 SUPREME COURT 141 #

2009 P L C (C.S.) 141

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Shakirullah Jan and M. Javed Buttar, JJ

SECRETARY, MINISTRY OF DEFENCE and another

Versus

ZAHOOR AHMAD JAVED

Civil Appeal No.1521 of 2001, decided on 22nd March, 2005.

(On appeal from the judgment dated 4-11-2000 of the Federal Service Tribunal passed in Appeal No.42(R)/C.S. of 2000).

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

----S. 4---Pakistan Army Act,(XXXIX of 1952), Ss.2(1)(c), 7 & 8(1)---Civil Servants Act (LXXI of 1973), S.2(1)(c)---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.5 & 6---Constitution of Pakistan (1973), Art.212(3)---Appeal---Dismissal from service---Misconduct, charge of---Lower Division Clerk in Special Communication Organization (a component of Pakistan Army)---Service Tribunal reinstated respondent in service on the ground that he was a civil servant; and that minor offences would be governed by Pakistan Army. Act, 1952, while major offences would be dealt with under provisions of Government Servants (Efficiency and Discipline) Rules, 1973---Supreme Court in view of such contradiction in impugned judgment granted leave to appeal to consider as to whether respondent was a civil servant and was liable to be dealt with under provisions of Government Servants (Efficiency and Discipline) Rules, 1973 or he was to be dealt with under Pakistan Army, Act, 1952 for the purpose of disciplinary action.

Muhammad Yousaf v. Secretary, Ministry of Defence 1997 PLC (C.S.) 852 and Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664 rel.

(b) Pakistan Army Act (XXXIX of 1952)---

----Ss. 2(1)(c), 7 & 8(1)---Expression "on active service" as used in Ss.2(1)(c), 7 & 8(1) of Pakistan Army Act, 1952---Connotation---Applicability of Pakistan Army Act, 1952 to non-combatant civilian employees of an organization of Pakistan Army---Essential conditions---Term "active" would mean in action---Term "service" in meaning of employment would be civil service, military service or public service---Expression "on active service" in relation to military services would mean a person engaged in any military operation as defined in S.8(1) of Pakistan Army Act, 1952---Person, if member of military service and subject to Pakistan Army Act, 1952, would be deemed on active service---Civilian employee in a Defence Organization, if attached with an active force engaged in any military operation, would be deemed to be on active service---Active service in terms of Notification under S.7 of Pakistan Army Act, 1952 was not distinct and different to active service mentioned in S.8(1) thereof---Active service under S.8(1) of Pakistan Army Act, 1952 would mean as applying to all such persons, who were subject to Pakistan Army Act, 1952 and attached to or formed part of a force engaged in military operation---Persons not otherwise subject to military laws and not directly falling within ambit of Pakistan Army Act, 1952 would be deemed to be on active service and would become subject to Pakistan Army Act, 1952, if they were employed by or in service or were followers of or accompanying any portion of regular army on active service in camp or on the march or at any frontier post specified by Federal Government in Notification under S.7 thereof---Principles.

The term "active" means in action, and the term "service" in the meaning of employment is civil service, military service or public service, and expression "on active service" in relation to the military services means a person, who is engaged in any military operation as defined in section 8(1) of Pakistan Army Act, 1952.

In the light of above definition of "on active service", a person, who is member of military service and is subject to Pakistan Army Act, 1952, is deemed to be on active service, but a person, who is not otherwise subject to this Act and is a civilian employee in an Organization of Army, is considered to be on active service at the time during which he is attached or forms part of the force in the manner as described in subsection (1) of section 8 of Act, 1952, and thus, a civilian employee in Defence Organization, while attached with the force, which is an active force being engaged in any military operation, will be deemed to be on active service. The Federal Government with reference to an area in which any person or class of persons may be serving or with reference to any provision of Act, 1952 or other Law for the time being in force in exercise of its powers under section 7 of Act, 1952, may, by Notification, direct that such persons are on active service, and the active service in terms of Notification under section 7 of Act, 1952, is not distinct and different to the active service mentioned in subsection (1) of section 8 of Act,- 1952. Section 7 of Act, 1952 provides that the Federal Government may, by a Notification with reference to an area or any provision of Act, 1952 or any other law for the time being in force, direct that any person or class of persons subject to Act, 1952 shall be deemed to be on active service, and active service under section 8(1) means as applied to all those persons subject to Act, 1952, who being attached to or form part of the force or are attached with force, which is engaged in military operation. There is complete harmony of section 8(1) with section 7.

The plain reading of sections 2(1)(c), 7 & 8(1) of Act, 1952, may, without any conflict, lead to an inference that only a person, who is subject to Act, 1952 and engaged in any military operation, is on active service. The expression "active service" has been used in these provisions with reference to the persons subject to Act, 1952 and section thereof, wherein it is provided that Federal Government may direct, by issuing a Notification, that a person or class of persons subject to Act, 1952 with reference to any area in which they may be serving or with reference to all or any of the provisions of Act, 1952 or any other Law for the time being in force, shall be deemed to be on active service within the meaning of Act, 1952 notwithstanding anything contained in section 8(1) of Act, 1952, would create no distinction. It is, therefore, quite clear that foil the purpose of section 7 of the Act, 1952, a person who is subject to the Act, even if not engaged in any of the military operations, would be treated on active service, if the Federal Government by Notification directs that such persons or class of persons will be deemed to be on active service in the area in which they are serving or with reference to any provision of Act, 1952 or any other Law for the time being in force. The effect of the issue of Notification under section 7 of Act, 1952 is that all those persons, who are mentioned in section 2(a)(b)(bb) and are subject to Act, 1952 serving anywhere are deemed to be on active service within the meaning of Act, 1952 and any other person, who is serving with a person on active service, would also be deemed to be on active service within the meaning of section 2(1)(c) read with section 7 of Act, 1952. The expression "active service" has been used in the different provisions of Act, 1952 with reference to a person, who is in military service in terms of section 2(a)(b)(bb) thereof and is subject thereto. The careful examination of section 2(1)(c) would convey the, meaning that a person not otherwise subject to Act, 1952, if is accompanying a portion of Army or a person on active service, would be deemed to be on active service and a person, who is on active service is deemed to be subject to Act, 1952. The result is that the civilian employees in any Defence Organization, which is attached with a force, which is on active service while engaged in military operation, would be deemed to be on active service. The interpretation of the expression "subject to this Act" with reference to section 2(1)(c) will be read in respect of a person, who is not otherwise subject to Act, 1952, when he is attached with a person or persons on active service, who are engaged in military operation. The intention was to bring all those persons within the ambit of Act, 1952, who being not otherwise subject to Army Law have been directly and indirectly formed part of the force, because of their attachment with the person or class of persons, who while engaged in military operations were on active service. The intention and purpose behind section 2(1)(c) of Act, 1952 in the light of above discussion, is to be collected from the cause and necessity of the enactment of this provision. The Notification under section 7 of Act, 1952 issued by the Federal Government in the following manner on 3-1-1975 is still holding the field:--

"In exercise of the powers conferred by section 7 of the Pakistan Army Act, 1952 (XXXIX of 1952) and in suppression of this Ministry's Notification No. 4852/325/PSIA/4484/D-2(A)171, 23rd November, 1971, the Federal Government is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act."

The expression "active service" was used in this Notification in the context to the persons, who are subject to Act, 1952, and from reading of this Notification in the light of the provisions of section 2(1)(c) read with sections 7 and 8(1) of Act, 1952, it would be clear that all those persons, who are not otherwise subject to the Military Laws and do not directly fall within the ambit of Act, 1952, would be deemed to be on active service, who are employed by or in service or followers of or accompanying any portion of the regular Army on active service in camp or on the march or at any frontier post specified by the Federal Government under section 7 of Act, 1952.

The non-combatant civilian employees of an Organization or an establishment of Pakistan Army, which is part of the Defence, who are not subject to Act, 1952 cannot be ordinarily brought within the purview of this Act, but the persons, who are not otherwise subject to Act, 1952 while in the employment or in the service of an Organization of Pakistan Army, which is engaged in any military operation and is on active service, would be deemed to be on active service and would become subject to Act, 1952. The civilian employees in Defence are generally excluded from the purview of Act, 1952, but the civilian employees attached with a portion of Pakistan Army on active service being engaged in military operation would become subject to Act, 1952 by virtue of section 2(1)(c) read with section 7 thereof and the Notification issued thereunder.

Muhammad Yousaf v. Secretary, Ministry of Defence 1997 PLC C.S. 852 and Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664 rel.

----S. 4---Pakistan Army Act (XXXIX of 1952), Ss.2(1)(c), 7 & 8(1)---Civil Servants Act (LXXI of 1973), S.2(1)(c)---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.5 & 6---Constitution of Pakistan, 1973, Art.212(3)---Appeal---Lower Division Clerk in Special Communication Organization (Defence)---Dismissal from service---Misconduct, charge of---Imposition of penalty without issuing charge-sheet and providing opportunity of hearing to respondent---Reinstatement in service by Service Tribunal treating respondent to be a civil servant---Validity---Such Organization was an integral part of Pakistan Army and was on active service---Respondent, though not being a regular member of Armed Forces, but was serving in such Organization attached with the force on active service engaged in military operation---Respondent would be deemed to be on active service by virtue of S.2(1)(c) read with S.8(1) and Notification dated 3-1-1975 issued under S.7 of Pakistan Army Act, 1952---Jurisdiction of Tribunal was confined to matters relating to terms and conditions of civil servants governed by service laws---Respondent being subject to Pakistan Army Act, 1952 was not a civil servant at relevant time thus, could not avail remedy of appeal before Service Tribunal---Supreme Court accepted appeal and set aside impugned judgment.

Muhammad Yousaf v. Secretary, Ministry of Defence 1997 PLC C.S. 852 and Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664 rel.

M. Munir Peracha; Advocate Supreme Court with Lt.-Col. Iqbal Hashmi, Assistant J.A.G., GHQ for Appellants.

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 22nd March, 2005.

PLCCS 2009 SUPREME COURT 161 #

2009 P L C (C.S.) 161

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

NAZIR AHMAD PANHWAR

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh and others

Civil Petition No.720-K of 2003, decided on 30th August, 2005.

(On appeal from the judgment, dated 24-7-2003 passed by Sindh Service Tribunal, Karachi in Appeal No.26 of 2000).

(a) Locus Poenitentiae---

----Principle of---Concept---Applicability---Scope---Concept of locus poenitentiae is a power to recede till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and a past and closed transaction---If the order was illegal then perpetual right could not be gained on the basis of such an illegal order---Principle of locus poenitentiae can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law---Said principle would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and the order so passed was not in violation or contravention of any law and/or rules made thereunder.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

(b) Maxim---

----Audi alteram partem---Applicability---Limitations---Right of personal hearing to a person against whom an adverse order is to be made is to be equated with fundamental right and an adverse order made without affording him an opportunity of personal hearing is to be treated as a void order---Application of said principle has its limitations--Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdraw/cancel such order without affording an opportunity of personal hearing to the affected party---Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him---Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice.

Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769 ref.

----S. 2(b)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.7----Constitution of Pakistan (1973), Art.212(3)---Services of the person working in BS-17 were placed at the disposal of Provincial Department for his absorption against the post in BS-19 in a corporation---Said order was given effect to and the person assumed the charge in BS-19---Absorption of said person however, was cancelled and he was repatriated to the parent department---Parent department was under the process of being disbanded as such he was absorbed in another department in BS-17---Notification by which his absorption was cancelled and he was repatriated to the parent department was assailed by the employee by way of departmental appeal which was not decided within 90 days, therefore, he filed appeal before the Service Tribunal which was dismissed---Validity---Material on record established that post on which he was ordered to be absorbed was a cadre post and the same could not be filled in by a non-cadre officer meaning thereby that only an officer who belonged to a regular service and who was a civil servant as defined in Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 could be posted, as such the order of his absorption in BS-19 was in violation of Rules and could not be treated as a valid and proper order---Contention of the employee that the order of his absorption in BS-19 having been acted upon, a vested right had been conferred on him to continue on that post in view of principle of locus poenitentiae, was misconceived---Petition for leave to appeal against order of the Service Tribunal was dismissed being without substance.

M.M. Aqil Awan, Advocate Supreme Court and Ms. Wajahat Niazi, Advocate-on-Record for Petitioner.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondents Nos.1 and 2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 30th August, 2005.

PLCCS 2009 SUPREME COURT 176 #

2009 P L C (C.S.) 176

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chairman and 3 others

Versus

Messrs MUHAMMAD SAEED WAZIR, former General-Manager, (T&R) PTCL and another

Civil Petition No.1136 of 2003, decided on 6th May, 2005.

(On appeal from the judgment dated 9-4-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.87-P (CS) of 2001).

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

----Ss. 3(1)(a)(b)(c)(d)(e) & 5---Government Servants (Efficiency and Discipline) Rules, 1973---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Contention of the petitioner was that civil servant having entered into a plea bargain with National Accountability Bureau, could be dismissed under S.3(1)(c)(iv) of the Removal from Service (Special Powers) Ordinance, 2000---Validity---Issuance of show-cause notice and holding of inquiry, in the given circumstances, was necessary under S.3, Removal from Service (Special Powers) Ordinance, 2000---When neither any show-cause notice was issued nor any inquiry was held, Service Tribunal had rightly set aside the impugned order of dismissal---Regardless of whether the proceedings were taken under Government Servants (Efficiency and Discipline) Rules, 1973 or under Removal from Service (Special Powers) Ordinance, 2000, a dismissal without notice and without inquiry could not be ordered in circumstances of the present case---Petition for leave to appeal was dismissed.

The insertion of sub-clauses (c) (iv) in subsection (1) of section 3 of the Removal from Service (Special Powers) Ordinance, 2000 merely makes an addition to the grounds for action from (a) to (e) and does not authorize the competent authority to pass any order without enquiry. The closing paragraph of section 3 subsection (1) clearly lays down that if conditions given under sub-clauses (a) to (e) are available; the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under section 5, may dismiss or remove the civil servant from service or take any other action alluded to in the aforementioned para.

The issuance of show-cause notice and the holding of inquiry, in the given circumstances was necessary under section 3 of Removal from Service (Special Powers) Ordinance, 2000. In the present case, neither any show-cause notice was issued nor any inquiry was held and thus, Tribunal had rightly set aside the impugned order of dismissal. Regardless of whether the proceedings were taken under Government Servants (Efficiency & Discipline) Rules 1973 or under Removal from Service (Special Powers) Ordinance 2000, a dismissal without notice and without inquiry could not be ordered in the circumstances of the present case.

Hafiz S.A. Rehman, Advocate Supreme Court with M.A. Zaidi Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Date of hearing: 6th May, 2005.

PLCCS 2009 SUPREME COURT 206 #

2009 P L C (C.S.) 206

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

GOVERNMENT OF BALOCHISTAN, DEPARTMENT OF HEALTH through Secretary, Civil Secretariat, Quetta

Versus

Dr. ZAHIDA KAKAR and 43 others

Civil Appeal No.1236 of 2000, decided on 1st February, 2005.

(On appeal from the judgment, dated 4-9-2000 passed by the High Court of Balochistan, Quetta in Civil Petition No.202 of 2000).

(a) Civil service---

---Contract appointment---Scope---Such appointment terminates on the expiry of contract period or any extended period on the choice of employer or appointing authority---Prima facie, such appointment does not create any vested right.

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

---Art. 185 (3)---Interim injunction, setting aside of---Concession in competitive examination---Effect---Respondents were appointed by Provincial Government on contract basis for a period of six months extendable for a period of two years---On the expiry of extension, services of respondents were terminated---Authorities notified that respondents might apply to Public Service Commission for their selection---Grievance of respondents was that the Government had earlier undertaken to award 5% to 10% extra marks in view of the experience attained by them due to their contract employment---Respondents invoked Constitutional jurisdiction of High Court wherein High Court granted ad interim injunction and the authorities were directed to maintain status quo order---Validity---If concession of 5 to 10 percent of marks was given to any candidate in competitive examination, his marks might increase in arithmetical progression but his ranking on merit qua the other candidates would always increase by geometrical progression---As such the same would tantamount to conferring predetermined undue advantage to one category of candidates over the rest of the candidates which, by all canons of justice, was a glaring discrimination---Instances were there when Public Service Commission, while advertising certain posts, provided for some experience of desired nature, desired in such cases experience of any candidate was taken into consideration without discrimination---If any experience was demanded by Public Service Commission itself during open competition, that being of general nature and applicable to every candidate, was neither objectionable nor discriminatory---Interim order passed by High Court had resulted in disturbing the normal functions of Government as well as the Commission---Such injunction also blocked the chance of early competitive examination for candidates at large, other than respondents---Interim injunction issued by High Court was set aside and withdrawn---Appeal was allowed.

Sala-ud-Din Mangel, Advocate-General Balochistan and Tariq Bilal, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 1st February, 2005.

PLCCS 2009 SUPREME COURT 215 #

2009 P L C (C.S.) 215

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUHAMMAD ISHAQUE and others

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others

Civil Appeal No.1981 of 2000, decided on 8th March, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 16th September, 1999 passed in Appeal No.1092 of 1993).

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

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether civil servants could legally claim to be governed by the rules which prevailed at the time of their induction in service, or they had no vested right to claim so and they would be governed by the amended rules; whether appeal before Service Tribunal suffered from laches/undue delay and misjoinder of parties; and whether joint appeal before the Board by all the civil servants was not competent.

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

----S. 4---Promotion---Principles---Civil servants were aggrieved of not being promoted---Service Tribunal dismissed the appeal filed by civil servants---Validity---Promotion was not vested right of an employee and Government was always competent to enhance educational qualification for the purposes of promotion---Civil servants could not claim that their promotion should be regularized according to the Rules/Laws to their service---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Appeal was dismissed.

Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143 fol.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Appellants.

Dr. Mohyuddin Qazi, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Respondents Nos.2 and 3.

Respondents Nos.1 and 4: Ex parte.

Date of hearing: 8th March, 2005.

PLCCS 2009 SUPREME COURT 225 #

2009 P L C (C.S.) 225

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

Dr. AZAM SARFRAZ

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment Division; Islamabad and others

Civil Appeal No.922 of 2004, decided on 11th January, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 8-12-2003 passed in Appeal No.1890 of 2002.)

(a) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance (XXXII of 2001)]---Constitution of Pakistan (1973), Art. 212 (3)---Dismissal from service--Service Tribunal, jurisdiction of---Civil servant contended that rejection of his appeal by Federal Service Tribunal as well as by Provincial Service Tribunal declining to exercise the power vested in them, had resulted into miscarriage of justice---Civil servant also contended that he had been knocked out by both the Tribunals without adjudicating the matter on merits and that the conflicting decisions of the Tribunals required just, fair and equitable decision purely in accordance with the law laid down by Supreme Court---Leave to appeal was granted by Supreme Court to consider the contentions, and to see whether the findings of both the Tribunals on the point of jurisdiction were tenable.

(b) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance (XXXII of 2001)]---Service Tribunals Act (LXX of 1973), S.4---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Service Tribunal, jurisdiction of---Determination---Question of limitation---After having been dismissed from service, civil servant filed appeal before Federal Service Tribunal which was withdrawn on the objection of the Tribunal on point of jurisdiction---Objection of Federal Service Tribunal was that due to amendment in Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983, the civil servant had become provincial employee---Civil servant approached Provincial Service Tribunal but appeal was dismissed on the ground of lack of jurisdiction---Validity---Federal Service Tribunal had misinterpreted and misconstrued the provisions as contained in Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001---Amendment was made applicable with effect from 25.7.2001, whereas the civil servant was dismissed on 17.5.2001, by Federal Government---Civil servant was dismissed much before the promulgation of Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001, and the question of its application with retrospective effect did not arise---For all practical purposes in the case of civil servant, the provisions as enumerated in Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983, would be applicable---Civil servant for redressal of his grievance had rightly approached. Federal Service Tribunal by means of appeal and the order passed by Federal Service Tribunal was set aside---Appeal of the civil servant would be treated as pending before Federal Service Tribunal for decision---Supreme Court directed the Tribunal to decide question of limitation in view of chequered history of the case as no fault could be attributed to the civil servant---Case was remanded.

M. Bilal, Senior Advocate Supreme Court for Appellant.

Mrs. Naheeda Mahboob Elahi, Dy. A.-G. for Respondent No.3.

Respondents Nos.1, 2, 4 and 5: Ex parte.

Date of hearing: 11th January, 2005.

PLCCS 2009 SUPREME COURT 231 #

2009 PLC (C.S.) 231

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

Mst. AMEERAN KHATOON

Versus

Mst. SHAMIM AKHTAR and others

Civil Petition No.2573-L of 2003, decided on 30th December, 2004.

(On appeal from the order, dated 24-9-2003 passed by Lahore High Court, Lahore in Civil Revision No.526 of 2003).

Islamic Law---

----Inheritance---Amount of Benevolent Fund and Group Insurance would devolve upon the heirs of the deceased being his "Tarka"---Mother of the deceased, who was nominee, would not be entitled exclusively to claim such amounts except to the extent of her share as per Shariat with other legal heirs of the deceased.

Wafaqi Hakomat-e-Pakistan v. Awamunas PLD 1991 SC 731 and Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185 ref.

Ghulam Nabi Bhatti, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Abdul Rauf Farooqui, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 30th December, 2004.

PLCCS 2009 SUPREME COURT 241 #

2009 P L C (C.S.) 241

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD ILYAS and 3 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence Secretariat Building, Islamabad and 2 others

Civil Petitions Nos.494-K to 497-K of 2003, decided on 29th December, 2004.

(On appeal against the judgment, dated 5-5-2003 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.1650(K)CE, 1651(K)CE, 1652(K)CE, 1653(K)CE and 1654(K)CE of 2001).

(a) Civil service---

----Reinstatement in service without granting back-benefits---Civil servant alleged to have filed affidavit before Service Tribunal affirming that he remained unemployed during period of termination of service---Validity---Neither date of affidavit nor date of its filing before Service Tribunal was given---Such affidavit appeared to have surreptitiously placed on record---Civil servant had not satisfactorily established that he remained unemployed during period of termination of service---Civil servant could not take advantage of his own failure---Case for grant of consequential benefit to civil servant was not made out---Supreme Court dismissed petition and refused leave to appeal.

Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415; Ali Nawaz v. Pakistan Railway 1999 SCMR 1873; General Manager v. Mehmood Ahmed Butt 2002 PLC (C.S.) 982 and House Building Finance Corporation v. Muhammad Ali Gohar Zaidi 2004 PLC (C.S.) 1488 ref.

Abdul Hafeez Abbasi v. Managing Director, PIA 2002 SCMR 1034 rel.

(b) Civil service---

----Reinstatement in service---Back-benefits, entitlement to---As a rule and in the interest of safe administration of justice, question of such entitlement must be agitated before and determined by initial forum.

M.M. Aqil Awan, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate-on-Record for Petitioners.

Syed Ziauddin Nasir, Standing Counsel for Respondent No.1.

Syed Shahanshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents Nos.2 and 3.

PLCCS 2009 SUPREME COURT 351 #

2009 P L C (C.S.) 351

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ijaz-ul-Hassan Khan, JJ

GHULAM SHABBIR SHEIKH

Versus

CHIEF EXECUTIVE OFFICER, QUETTA ELECTRIC SUPPLY COMPANY (QESCO), QUETTA and another

Civil Petition No.1341 of 2008, decided on 16th December, 2008.

(On appeal against the judgment, dated 9-8-2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No.2240(R)(C.E.) of 2005).

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Departmental proceedings--- Regular inquiry, dispensing with---Grievance of civil servant was that he was compulsorily retired from service without holding any regular inquiry and without providing him proper opportunity to defend his case---Validity---Except in extraordinary and exceptional circumstances, dispensation of regular inquiry in case involving factual controversy would amount to withholding right of fair opportunity of a person to rebut the charges against him---Civil servant was proceeded departmentally and he was duly informed of charges levelled against him and high power committee was constituted to probe into the matter---Civil servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough to provide opportunity of defence---It was for competent authority to decide whether formal inquiry was required or not in terms of provisions of S.5(4) of Removal from Service (Special Powers) Ordinance, 2000---Service Tribunal had rightly dismissed appeal filed by civil servant assigning sound and cogent reasons, which were not open to legitimate exception---Civil servant failed to point out any misreading or non-reading of material on file or any infirmity, legal or factual, calling for interference by Supreme Court---No substantial question of law of public importance could be raised within the meaning of Art.212(3) of the Constitution---Leave to appeal was refused.

Secretary to Government of N.W-.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; Inspector-General of Police, Police Headquarter Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207; Syed Yaqoob Shah v. XEN PESCO (WAPDA), Peshawar and another PLD 2002 SC 667; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer 2004 SCMR 294 and Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 distinguished.

Haider Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2008.

PLCCS 2009 SUPREME COURT 376 #

2009 P L C (C.S.) 376

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan

and Ch. Ejaz Yousaf, JJ

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

Versus

SAMEENA PARVEEN and others

Criminal Petitions Nos.71-L and 72-L, Civil Petitions 215-L, 216-L, 217-L, 218-L, 224-L to 236-L of 2006, decided on 29th April, 2008.

(On appeal from the judgment, dated 29-1-2008 of the Lahore High Court, Lahore passed in Cr.O.P. No.370/W and 561/W of 2007, Writ Petitions Nos.11525, 11263, 11516, 11662, 11663, 11766, 11881, 11835, 12136 and 12185 of 2007, 86, 123, 274, 345, 599, 643 and 11619 of 2008).

Civil service---

----Administration of justice---If a Tribunal or the Supreme Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation, instead of compelling them to approach the Tribunal or any other legal forum---All citizens are equal before law and entitled to equal protection of law as per Art.25 of the Constitution.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 fol.

Mst. Muqqadas Akhtar and another v. Province of Punjab through Secretary Education Department, Government of Punjab and another 2000 PLC (C.S.) 867 ref.

Ms. Afshan Ghazanfar, A.A.-G., Punjab and Rana Abdul Qayyum, D.S. (Education) Punjab for Petitioners.

S.M. Tayyab, Senior Advocate Supreme Court for Respondents (in Cr.Ps. Nos.71-L, 72-L and C.P.224-L of 2008).

Nemo for other Respondents.

PLCCS 2009 SUPREME COURT 385 #

2009 P L C (C.S.) 385

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

CENTRAL BOARD OF REVENUE through Chairman, Government of Pakistan, Islamabad

Versus

MUHAMMAD NADIR KHAN HOTI and others

Civil Petition No.237 of 2008, decided on 27th May, 2008.

(On Appeal from the judgment, dated 8-12-2007 of the Federal Service Tribunal, Islamabad in Appeal No.1467(R)(C.S.) of 2005).

Civil service---

----Promotion---Civil servant met with the required threshold and other relevant ingredients required for promotion but according to minutes of Central Selection Board. he did not meet the criteria of having completed seventeen years service and excellence and comparative merit---Authorities had failed to show the reasons of junior civil servants having been found to be better qualified for promotion---Case of civil servant had not been considered in its true perspective, he was appointed/ promoted on acting charge basis on recommendation of the Board and approval of the Prime Minister---Civil servant became eligible for promotion on completion of seventeen years of service, but his case was not referred to the Central Selection Board with due diligence and authorities had failed to show any reason for such delay---Supreme Court declined to interfere in the judgment of Service Tribunal wherein it was directed that case of civil servant be immediately placed before the Central Selection Board for promotion to BPS-20 and dismissed petition for leave to appeal against judgment of Service Tribunal.

Raja Muhammad Bashir, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Raja M. Ibrahim Satti, Advocate Supreme Court and M. Akram, Advocate-on-Record for Respondent No.1.

Sardar M. Ghazi, Advocate Supreme Court and Khalid Masood Khan, Superintendent (Establishment) for Respondent No.2.

PLCCS 2009 SUPREME COURT 401 #

2009 P L C (C.S.) 401

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPER LIMITED/ CHAIRMAN, NATIONAL PRESS TRUST, ISLAMABAD

Versus

JAMIL-UR-REHMAN and others

Civil Petitions Nos.2708-L to 2709-L of 2004, decided on 11th May, 2005.

(On appeal from the judgment, dated 27-7-2004 of the Federal Service Tribunal at Lahore, passed in Appeals Nos.713 and 714(L) of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Employees were dismissed from service simply on remaining absent from duty for two hours in case of one employee and for seven hours in case of the other---Service Tribunal set aside orders terminating services of said two employees and remanded case to employer for fresh proceedings in accordance with law to be held by a fair and impartial officer of the employer---Employer could not point out any illegality or infirmity in impugned judgment of Tribunal which could qualify petitioner for grant of leave to appeal in terms of the Art.212(3) of the Constitution---Disciplinary proceedings against employees had been held by a privately engaged Advocate whose impartiality and independence was found to be open to exception---No exception could be taken to opinion of Tribunal or to impugned judgment which had left the employer free to hold fresh proceedings in the matter to determine the guilt or otherwise of the employees---Employer having dragged employees unnecessarily into litigation, employer was directed to pay costs to the employees.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner (in both Petitions).

Sh. Khizar Hayat, Advocate Supreme Court with Ch. Talib Hussain, Advocate-on-Record (absent) for Respondent No.1 in both Petitions).

M. Rafiq Shad, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2 in both Petitions.

Date of hearing: 11th May, 2005.

PLCCS 2009 SUPREME COURT 409 #

2009 P L C (C.S.) 409

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD JAMIL KHAN

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and another

Civil Appeal No.351 of 2006, decided on 17th June, 2008.

(On Appeal from the judgment, dated 14-4-2003 passed by the Peshawar High Court, Peshawar in SJSA No.7 of 1999).

(a) North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---

----R.5---Constitution of Pakistan (1973), Art.212---Appeal to Supreme Court---Removal from service---Appellant, while posted as Additional District Judge, had unauthorisedly `awarded' a number of weapons i.e. the case property to various private persons including his brother and to himself without any justification nor had he any competence to do so---Release of weapons being patently illegal and in access of jurisdiction not vested in the appellant he was rightly punished by the competent authority---Law relating to release of such weapons etc. elucidated---Impugned judgment of the High Court, therefore, did not suffer from any legal infirmity so as to call for interference by Supreme Court--Keeping in view the fact that all the weapons were returned and no pecuniary loss was caused to the Government or the State and that appellant, prior to the incident had more than 18 years service at his credit, the penalty of removal from service inflicted on the appellant was a bit on the higher side and ends of justice would be met with if removal from service was converted into compulsory retirement from service---Order accordingly.

(b) West Pakistan Arms Ordinance (XX of 1965)---

----S. 20---North-West Frontier Province Arms Rules, 1922, R.(ix)---Disposal of confiscated arms---Procedure.

----S. 10---Disposal of confiscated arms---Procedure.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant.

Sh. Riazul Haq, Advocate Supreme Court for Respondent No.1.

Zia-ur-Rehman, Advocate-General, N.-W.F.P. for Respondent No.2.

Date of hearing: 17th June, 2008.

PLCCS 2009 SUPREME COURT 431 #

2009 P L C (C.S.) 431

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Saiyed Saeed Ashhad and Mian Hamid Farooq, JJ

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

Versus

Dr. ABIDA IQBAL and another

Civil Appeal No.2175 of 2004, decided on 31st July, 2008.

(On appeal from the judgment, dated 10-7-2004 passed by the Punjab Service Tribunal, Lahore in Appeal No.708 of 2004).

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

----S. 9---Postings and transfers---In the present case, "N" was appointed as Assistant Professor through the channel of Public Service Commission while "A" could not succeed in the competition of appointment of Assistant Professor and did not appear before the Public Service Commission for the post of Associate Professor---"A", however had served outside the institution in another government institution by holding a general cadre post of Assistant Professor, it was therefore, not understandable as to why "A" and "N" could be treated differently for post of Associate Professor---Every civil servant is liable to serve anywhere within or outside the Province in any post under the Provincial Government---When both the civil servants were similarly placed, they were entitled to equal protection of law.

(b) Privately Managed Schools and Colleges (Taking Over) Order, 1972 [M.L.O. No.118]---

----Para. 7(2)(b)---Teachers of nationalized colleges were given protection of such scales of pay and other benefits as were not less favourable than those to which the teachers of equivalent qualification, seniority and experience in the colleges maintained by the government were entitled---Protection afforded by the Legislature was personal to the incumbents and there was no guarantee for the higher posts.

Province of Punjab v. Bashir Ahmed Bukhari PLD 1982 SC 27 and Shamaun v. Secretary, Education, Punjab Government and another 1981 SCMR 802 ref.

----Posting, transfer or promotion---Held, there was no fundamental right with regard to the posting, transfer or promotion as such.

(d) Civil service---

----Appeal against promotion etc. of civil servant was pending before Supreme Court when the civil servant retired from service---Supreme Court declined to record findings adverse to the interest of retired civil servant observing that the same may prejudice her cause, who was no more in service and would have surrendered her claim and promotion and that benefits including the retirement benefits derived by her shall remain intact.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

Mian Tariq Ahmed, Additional Advocate-General with Ejaz Farrukh, Senior Law Officer for Appellants.

Amir Alam Khan, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 31st July, 2008.

PLCCS 2009 SUPREME COURT 444 #

2009 P L C (C.S.) 444

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

FAZAL MUHAMMAD

Versus

GOVERNMENT OF N.-W.F.P. and others

Civil Petition No.316-P of 2007, decided on 25th August, 2008.

(On appeal from the judgment, dated 28-2-2007 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeal No.224 of 1996).

Civil service---

----Seniority---Both the incumbents were selected and appointed in the same batch---Mere fact that one of them assumed the duties earlier would not adversely affect the seniority position of the one who assumed the duties later.

Siddiq Haider Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th August, 2008.

PLCCS 2009 SUPREME COURT 464 #

2009 P L C (C.S.) 464

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GOHAR ALI and another

Versus

Messrs HOECHST PAKISTAN LIMITED

Civil Appeals Nos.2763 and 2764 of 2001, decided on 3rd July, 2008.

(On Appeal from the judgments, dated 19-9-2001 of the Peshawar High Court Peshawar passed in R.F.As. Nos.35 and 36 of 1999).

Damages---

----Master and servant---Wrongful dismissal---Recovery of damages---Quantum, determination of---Principles---Plaintiffs sought recovery of damages against employer company for terminating their services on false and baseless grounds---Suits filed by plaintiffs were decreed in their favour but High Court, in exercise of appellate jurisdiction, set aside the judgment and decree passed by Trial Court resultantly suits were dismissed---Validity---Application of master and servant rule was that an employee of a corporation, in absence of violation of law or any statutory rule could not press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service---Remedy for wrongful dismissal was to claim damages---There could be no yardstick or definite principle for assessing damages in such cases---Damages were meant to compensate a party who suffered an injury; it might be a bodily injury, loss of reputation, business and also mental shock and suffering---Nervous shock depended upon the evidence produced to prove nature, extent and magnitude of such suffering---Even on such basis it would become difficult to assess a fair compensation; it was discretion of Judge who, on facts of the case and considering how far the society would deem it to be a fair sum, could determine amount to be awarded to a person who had suffered a damage--Conscience of court should be satisfied that damages awarded would, if not completely, but satisfactorily compensate the aggrieved party---Judgment passed by High Court was set aside and that of Trial Court was restored in favour of plaintiffs---Appeal was allowed.

Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60 ref.

Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 rel.

Nazeer Ahmad Bhatti, Advocate Supreme Court, Waseem-ud-Din Khattak, Advocate Supreme Court and Ch. Muhammad Akram Advocate-on-Record for Appellants.

Neel Keshov, Advocate Supreme Court for Respondent.

Date of hearing: 3rd July, 2008.

PLCCS 2009 SUPREME COURT 469 #

2009 P L C (C.S.) 469

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SALEEM KHAN

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN and others

Civil Petition No.982 of 2007, decided on 14th April, 2008.

(On Appeal from the judgment, dated 31-10-2007 of the Federal Service Tribunal, Islamabad passed in Appeal No.992(R)(C.S.) of 2004).

Civil service---

----Promotion---Adverse remarks in the ACR which were not communicated to the civil servant would be ignored in case of promotion---If a civil servant, who had not been considered for promotion at a stage and was subsequently promoted and no order for inter se seniority had been passed by the competent authority, then such civil servant would be considered to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates.

Abdul Jabbar Khan v. Government of Sindh 1996 SCMR 850 and Muhammad Farooq Chauhan v. The Province of Punjab PLD 1987 SC 271 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Nahida Mehboob Ellahi, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 2.

Nemo for Respondents Nos.7, 11, 12, 20, 21, 24.

Other respondents in person.

PLCCS 2009 SUPREME COURT 477 #

2009 P L C (C.S.) 477

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ZARAI TARAQIATI BANK LTD., ISLAMABAD and another

Versus

AFTAB AHMED KOLACHI and another

Civil Petition No.1024 of 2008, decided on 27th August, 2008.

(On Appeal from the judgment and order of the High Court of Sindh, Bench at Larkana, dated 22-5-2008 passed in Constitution Petition No.22 of 2008).

Civil service---

----Dismissal from service---Back-benefits---Service Tribunal, on appeal, reinstated the employee and allowed the employers to conduct a fresh enquiry and left the question of back-benefits dependant upon the result of fresh enquiry proceedings---Service Tribunal further directed, that in case of failure of the employers to initiate and conclude the de novo proceedings within a period of four months the employee shall be entitled to all the back benefits---Employee, however, could get the relief of his reinstatement only by resorting to the constitutional petition before High Court---High Court had not debarred the employers/Bank from conducting the enquiry but had passed directions for completing the enquiry expeditiously preferably within the period of three months and direction to the employee to cooperate in holding the enquiry---Employers/Bank, however could not initiate enquiry proceedings within the period of four months stipulated by the Service Tribunal, as a consequence thereof, they had been directed to make payment of back benefits to the employee---Effect---Held, such directions of the High Court were neither perverse nor fallacious, rather absolutely just and proper as the employers could not be permitted to seek premium for the acts of apathy, stoicism and impassivity, displayed by them---No case for grant of leave to appeal to Supreme Court was, thus made out---Petition for leave to appeal was dismissed--Constitution of Pakistan (1973), Art.185(3).

Haider Hussain, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 27th August, 2008.

PLCCS 2009 SUPREME COURT 486 #

2009 P L C (C.S.) 486

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sh. Hakim Ali, JJ

Dr. MUHAMMAD SHAHBAZ MUFTI

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and others

C.P.L.A. No.1547-L of 2008, decided on 30th October, 2008.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 22-8-2007 passed in Appeal No.1598 of 2007).

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

----S. 5(1)(a) & Explanation---Constitution of Pakistan (1973), Art.212(3)---Communication to accused civil servant, the charges and the statement of allegations by the Inquiry Committee---Enquiry Officer had been saddled with the duty only to communicate to the accused/civil servant the charges and the statement of allegations, otherwise, the statement of allegations and charges were to be prepared and issued by the competent authority, and if the competent authority had directly issued and served the charge-sheet and statement of allegations upon the civil servant, the aim, purpose and spirit was duly served by the provisions of S.5(1)(d) & Explanation, Punjab Removal from Service (Special Powers) Ordinance, 2000.

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

----S. 7---Enquiry Officer was conferred with the powers under S.7, Punjab Removal from Service (Special Powers) Ordinance, 2000 to regulate its own procedure.

---Ss. 5 & 7---Constitution of Pakistan (1973), Art.212(3)---Communication of charges and allegations against accused civil servant---In the present case, first charge levelled against the civil servant was wilful absence from duty for about seven months---While submitting written reply, no specific explanation, as to how the allegation was incorrect or that the civil servant had been attending the office or to his assigned work, was mentioned---No proof was appended to the written reply to disprove the allegation; same was the case with the other charges levelled against the civil servant which were considered to have, been proved against him---Judgment rendered by Service Tribunal against the civil servant could not be held to be illegal, and amenable to be interfered with by the Supreme Court---Petition for leave to appeal by civil servant was dismissed.

Talaat Farooq Sheikh, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Akhtar Ali Qureshi, A.A.-G. Punjab for Respondents.

Date of hearing: 30th October, 2008.

PLCCS 2009 SUPREME COURT 495 #

2009 P L C (C.S.) 495

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SHAFI MUHAMMAD SAND

Versus

GOVERNMENT OF SINDH and another

Civil Petition No.267-K of 2008, decided on 4th November, 2008.

(On appeal against the judgment, dated 31-1-2008 passed by Sindh Service Tribunal at Karachi in Appeal No.368 of 2005 (Shafi Muhammad Sand v. Government of Sindh and another).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Departmental order of reinstatement nowhere mentioned any minor penalty for the civil servant---Contention of the civil servant was that in view of reinstatement order no minor penalty could be imposed without notice to the civil servant and a proper inquiry under the Rules, consequently the civil servant was entitled to be proceeded against under the relevant Rules which exercise had yet not been taken---Validity---Held, prima facie it appeared that the civil servant was condemned unheard---Supreme Court while granting leave, converted the petition for leave to appeal into an appeal and directed the same to be listed in due course.

Ansari Abdul Latif, Advocate Supreme Court and Mazher Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th November, 2008.

PLCCS 2009 SUPREME COURT 506 #

2009 P L C (C.S.) 506

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sheikh Hakim Ali, JJ

MUHAMMAD ANWAR SIDDIQUI

Versus

LAHORE DEVELOPMENT AUTHORITY and 2 others

C.P.L.A. No.1651-L of 2007, decided on 23rd October, 2008.

(On appeal from judgment of Lahore High Court, Lahore, dated 25-9-2007 passed in I.C.A. No.135 of 2007 in Writ Petition No.10782 of 2006).

(a) Civil service---

----Increments, withholding of---Discriminatory treatment---Effect---Record showed that civil servant had been treated discriminately qua the other employees having the cases of similar nature---No reasonable explanation was provided by the authorities for refusal of the release of advance increments after their sanction by the competent authority in the case of civil servant---Plea of authorities of uniform policy could not be accepted in the case of civil servant, as the increments were sanctioned in favour of civil servant in the year 1996, with effect from 10-11-1996, while the trumpeted uniform policy had come into existence in the year 2002, after more than 6 years of the order of sanction which could not be applied with retrospective effect, so as to exclude the lone case of civil servant---Supreme Court, in circumstances, directed the authorities to pay the sanctioned advance increments to the civil servant within a period of two months.

(b) Lathes---

---Applicability---Scope---Rule of laches being not a rule of universal application, had to be applied to the facts and circumstances of its own case---Principles.

Petitioner in person.

M. Rashid Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 23rd October, 2008.

PLCCS 2009 SUPREME COURT 513 #

2009 P L C (C.S.) 513

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

GOVERNMENT OF BALOCHISTAN through Secretary, Services and General Administration Department and another

Versus

Khawaja MUHAMMAD NASEER

Civil Petition No.53-Q of 2004, decided on 21st April, 2006.

(Against the judgment dated 25-3-2004 passed by Balochistan Service Tribunal Quetta in S.A.No.21 of 2000).

Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Appeal before Service Tribunal---Implied condonation of delay---Question of limitation---Waiver---Departmental appeal was filed with a delay of 5-1/2 years, which appeal was dismissed by competent authority---Service Tribunal without deciding question of limitation as raised by the authorities, partially allowed appeal of civil servant---Validity---Unless competent authority had condoned the delay with conscious application of mind, question of limitation would remain open for consideration of Service Tribunal---No waiver on question of limitation, particularly if question of limitation in filing appeal or representation before departmental authority was raised before Service Tribunal---Service Tribunal was bound to examine such question and record its decision---Concept of implied condonation of delay did not fit in the scheme of law of limitation because application had to be made for seeking condonation, showing sufficient cause to the satisfaction of the forum concerned, who might grant or decline the same---Discretion had to be exercised in a just and legal manner and it could not be exercised arbitrarily or fancifully---Vice of accepting implied condonation of delay was that in absence of grounds and reasons for condonation of delay, it was not possible for Court of appeal to examine the question as to whether delay was rightly condoned---Service Tribunal in assuming that the delay stood condoned impliedly was clearly in error---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Appeal was allowed.

Muhammad Younis and 3 others v. The Chairman, WAPDA, Lahore and another 1989 SCMR 174; The Chairman PIAC and others v. Nasim Malik PLD 1990 SC 951; Anwarul Haq v. Federation of Pakistan through Secretary Establishment Division, Islamabad and 13 others 1995 SCMR 1505; State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; Inayatullah and others v. Director-General and others 2006 SCMR 535; Zafar Mahmood, Ex-Line Superintendent, WAPDA v. WAPDA through Superintending Engineer (Electricity) and another 1991 SCMR 640; Anwar Muhammad v. General Manager, Pakistan Railways, Lahore and another 1995 SCMR 950; Israr Ahmad Khan v. Government of N.-W.F.P. and others 1990 SCMR 1356 and Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 fol.

Salah ud Din Mengal, A.-G. for Petitioners.

Mushtaq Ahmad Anjum, Advocate Supreme Court for Respondent.

Date of hearing: 21st April, 2006.

PLCCS 2009 SUPREME COURT 523 #

2009 P L C (C.S.) 523

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Mehar MUHAMMAD NAWAZ

Versus

MANAGING DIRECTOR, SMALL BUSINESS FINANCE CORPORATION and 2 others

Civil Appeal No.427 of 2005, decided on 23rd October, 2008.

(On appeal from the judgment, dated 9-1-2003 passed by the Federal Service Tribunal, Islamabad in Appeal No.755(R)(C.E.) of 2000).

Constitution of Pakistan (1973)---

----Arts. 212 & 25---Dismissal from service of an employee of a Corporation---Contention of the counsel of the appellant was that the dismissal of appellant be converted into compulsory retirement as he had been discriminated and treated unfairly qua his colleagues, similarly placed; that appellant had passed away during pendency of appeal leaving behind a widow, a son and three daughters, wholly dependant on the deceased and that they were entitled for pension and pensionary benefits of the appellant---Validity---Held, while dealing with the case where the aggrieved party had alleged discrimination, the Court could not overlook the implication thereof---Equal treatment of all similarly situated was the basic principle on which rested justice under the law---If evenhanded justice was not administered, same could have many adverse and negative effects on a society and could cause discontentment and frustration in the social set up and there could be no denial that social justice was an objective and enshrined in the Constitution---Supreme Court, in circumstances, partly accepted the appeal, set aside the impugned judgment and converted the dismissal of the appellant from service into compulsory retirement---Legal representatives of the appellant, held, shall be entitled to the pensionary benefits admissible under the law.

Dr. Qamar-uz-Zaman Ch. v. Syed Afzal Muhammad Farooq and others 2005 PLC (C.S.) 1424 rel.

Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan through its Secretary, Islamabad 1991 SCMR 1192; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others, PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others, PLD 2007 SC 681 ref.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

F.K. Butt, Advocate Supreme Court for Respondents.

Date of hearing: 9th October, 2008.

PLCCS 2009 SUPREME COURT 539 #

2009 P L C (C.S.) 539

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY, MINISTRY OF EDUCATION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Versus

MUHAMMAD AZAM CH. and another

Civil Petition No.1124 of 2008, decided on 19th September, 2008.

(On appeal from the order, dated 7-6-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.980(R)(C.S.) of 2006).

(a) Civil service---

----Appointment on probation for one year---Termination of service---Civil servant admittedly assumed the charge with effect from 12-7-2004---Even assuming that the period of probation stood extended by one year, the same came to an end on 11-7-2006, whereafter, civil servant became a permanent employee---Termination of service of such civil servant by a notification dated 23-8-2006 with effect from 22-2-2006 without assigning any reason during his probationary period, was not tenable.

(b) Civil service---

----Appointment on probation for one year---Reversion and then termination of service---If, in the opinion of the government, the work and conduct of the civil servant during probationary period was found unsatisfactory, government may discharge/revert him forthwith or extend his probationary period for further one year as it may think fit---Nothing was, however, available on record to show that the competent authority did form the opinion that the work of civil servant was unsatisfactory or that his probationary period was liable for extension for further one year---No specific extension in probationary period of civil servant was on the record---Order first of reversion and then of termination was without lawful authority---Order of termination which was passed with retrospective effect was also a nullity in the eye of law---Civil servant, having continuously worked on the post, his lien against the said post was terminated and reversion was without legal efficacy on that ground as well.

----Departmental appeal---Object and purpose.

The object and purpose of the departmental appeal is to provide a tangible forum to the appellant for redressal of his grievance before he was obliged to approach the Service Tribunal for adjudication of his claim. Obviously the requirement of filing a departmental appeal prior to approaching the Tribunal is not to create a hurdle in the way of a bona fide litigant but to facilitate him to avoid unnecessary expense and effort in pursuing his appeal in a legal forum. While much furore is raised for filing of the mandatory departmental appeal, a vast majority of government departments do not take the departmental appeal with any seriousness. More often than not the departmental appeals remain unactioned. It can never be the intention of the legislature to make the filing of departmental appeal as a hurdle in the way of an appellant. Invariably the requirement of the departmental appeal is used as stumbling block for the appellant rather than facilitating him in the pursuit of his relief.

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

----Art. 212(3)---Reversion/termination of services of a probationer civil servant---When Service Tribunal had recorded a detailed and well-reasoned judgment discussing all the aspects of the case, leaving no room for further consideration; there was no illegality or infirmity, legal or factual, in the impugned judgment, calling for interference; no misreading or non-reading of the record had been pointed out by the petitioner department; services of the civil servant could not be terminated without assigning any reason/disciplinary action and civil servant should have been given a fair opportunity to clarify his position qua unsatisfactory performance attributed to him, Supreme Court declined interference and dismissed petition for leave to appeal.

Tasnim Ali Mir v. The Federation of Pakistan and others PLD 1959 (W.P) Karachi 62; Muhammad Afzal Khan v. Superintendent of Police, District Montgomery and others PLD 1961 (W.P) Lah. 808; Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary, Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435 and Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others 1999 SCMR 1680 ref.

Muhammad Siddiq Javaid v. The Government of West Pakistan PLD 1974 SC 393; Punjab Road Transport Board v. Muhammad Fazil Hussain and another PLD 1983 Lahore 531; Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435; Amir Ahmed v. Secretary, Finance Division; Islamabad and another; 1993 SCMR 114; Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat; Islamabad and 2 others 1996 SCMR 284; The Secretary, Government of the Punjab through Secretary; Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 and Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others; 2003 PLC (C.S) 1421 distinguished.

Niaz Ahmed Rathore, D.A.-G. and M.S. Khattak, Advocate-on-Record for Petitioners.

M. Shoaib Shaheen, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.1. .

Nemo for Respondent No.2.

Date of hearing: 19th September, 2008.

PLCCS 2009 SUPREME COURT 555 #

2009 P L C (C.S.) 555

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

ZAHID HUSSAIN and others

Versus

SENIOR MEMBER, BOARD OF REVENUE and others

Civil Petitions Nos.1311-L, to 1324-L and 1462 to 1476-L of 2006, decided on 24th August, 2006.

(On appeal from the judgments, dated 1-7-2006 by the Punjab Service Tribunal, Lahore. passed in Appeals Nos.2709 to 2720 and 2892 to 2895 of 2005).

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

----S. 8---Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, Schedule, column 10---Constitution of Pakistan (1973), Art.212 (3)---Promotion---Vested right---Illegal order---Criteria for promotion from Patwari to Kanungo---Passing of departmental examination---Out of total 170 Patwaris for promotion as Kanungos, 147 were ruled out of consideration for the reason that they had not passed departmental promotion examination and 23 Patwaris who were junior to the remaining 147 Patwaris were promoted as Kanungos-Service Tribunal, with the consent of parties, remanded the matter to the authorities for reconsideration---Plea raised by 23 promoted Patwaris was that they had a vested right to hold the post of Kanungos---Validity---Posts of Kanungos, under Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, were to be filled in by promotion from amongst the Patwaris who had put in three years service on the basis of seniority-cum-fitness---Passing/clearance of departmental examination and completion of training was essential for confirmation as Kanungo, under Column 10 of Schedule to Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, and not for promotion to the post of Kanungo---Departmental Promotion Committee had illegally laid down the condition of passing of departmental examination for promotion of Patwaris to the post of Kanungos---Such condition resulted in ruling out of consideration 147 Patwaris out of total 170 Patwaris for promotion of Kanungos for no fault of theirs, as there were neither any adverse entries about their competence and efficiency nor their integrity or honesty was in doubt---Majority of 147 Patwaris were senior to the 43 Patwaris who were found eligible for promotion---Patwaris who were declared fit for promotion, were promoted in complete disregard of the time honoured principle requiring promotion on the basis of seniority-cum-fitness---No vested right was created in favour of promoted Patwaris to continue to hold the post of Kanungos on regular basis as their promotion was not in accordance with law and was illegal thus not conferring any right on them to claim their promotion---Judgment passed by Service Tribunal was just and fair providing substantial justice to all aggrieved/affected parties and did not require to be interfered by Supreme Court---Leave to appeal was refused.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.1311 to 1324-L of 2006).

Nemo for Respondents (in C.Ps. Nos.1311-1324-L of 2006).

Riaz Kayani, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners (in C.Ps. Nos.1462 to 1476-L of 2006).

Nemo for Respondents 1 to 3 (in C.Ps. 1462 to 1476-L of 2006).

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Respondent No.4 (in C.Ps. Nos. 1462 to 1476-L of 2006).

Date of hearing: 24th August, 2006.

PLCCS 2009 SUPREME COURT 568 #

2009 P L C (C.S.) 568

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Zia Perwez and Syed Sakhi Hussain Bokhari, JJ

FARHAT ABBAS

Versus

I.-G. and others

Civil Appeal No.116 of 2006, decided on 8th September, 2008.

(On appeal from the judgment, dated 15-6-2005 of the Punjab Service Tribunal, Lahore in Appeal No.1919 of 2004).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to examine question of animus-revertendi in the case on recall of order of promotion upheld by judgment of Service Tribunal.

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

----S. 8---Promotion, out of turn---Diligence and efficiency---Appreciation---Principle---In appreciation of his excellent and extraordinary performance, civil servant was awarded out of turn promotion under the instruction of Inspector General of Police---Subsequently the civil servant was reverted to his earlier rank on the ground that promotion could only be granted on the basis of seniority cum fitness and such promotion resulted in injustice to his seniors and had become cause of frustration and heart burning to those who were superseded---Validity---Performance of duty with due diligence and efficiently deserved due appreciation but it could not be over appreciated out of proportion so as to make out a case of grievance to other employees in service of department---If a case of glaring favouritism was made out resulting in mala fide action, the same had to be rectified in accordance with law to avoid injustice---Supreme Court declined to set aside valid order passed by authorities merely on conjectures or surmises---Practice of such out of turn promotion would encourage a person to obtain any order using underhand means or otherwise and then to claim immunity for such acts which would, therefore, result in rewarding the person using such means by allowing him to continue to enjoy fruits of such ill-gotten gains and thus could perpetuate injustice--Supreme Court declined to interfere with order of reversion passed by authorities and maintained by Service Tribunal---Appeal was dismissed.

Raja Muhammad Anwar v. Government of the Punjab 1981 SCMR 523; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Ali Nawaz v. Pakistan Railways through Chairman/Secretary and others 1999 SCMR 1873 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Respondents Nos. 1 to 3: Ex parte.

Date of hearing: 8th September, 2008.

PLCCS 2009 SUPREME COURT 574 #

2009 P L C (C.S.) 574

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zia Perwez and Sabihuddin Ahmed, JJ

Dr. Syed SHARAF ALI SHAH and, 2 others

Versus

PROVINCE OF SINDH and others

Civil Petitions Nos.233-K to 235-K of 2008, decided on 31st October, 2008.

(On appeal from the order, dated 27-2-2008 passed by High Court of Sindh, Karachi in Constitutional Petitions Nos.2229, 2231 and 2232 of 2006).

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

----Art. 185(3)---Civil Service---Residential accommodation for employees---Allotment, restoration of---Change in policy---Retrospective effect---Applicability---Privileges, taking away of---Scope---Petitioners were employees of Provincial Government and notices were issued to them to vacate their residential flats allotted to them by the government---Authorities raised the plea that by change in allotment policy, petitioners had become unauthorized occupants or allotments in their favour which became liable to cancellation---Validity---Contention of authorities did not merit any serious consideration---Any executive dispensation or change of policy could never have retrospective effect or impair vested rights--Government could be well within its rights to change its allotment policy but such change could only apply to allotments made after its enforcement---Change in policy could never affect rights of old allottees which could only be taken away through legislative dispensation given retrospective effect---Certain rights were created in favour of petitioners through allotment orders issued by government and such rights, even if in the nature of privileges, could not be taken away by subsequent executive action or change in policy---Such privileges could only be impaired through legislative dispensation expressly given retrospective operation---Notice issued by authorities to petitioners for vacating their residential flats and judgment passed by High Court in exercise of Constitutional jurisdiction were. set aside---Appeal was allowed.

Multiline Associates v. Aredeshir Cowasjee and 2 others PLD 1995 SC 423; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917 ref.

(b) Public functionary---

----No public power can be exercised arbitrarily at whims of those on whom same was bestowed.

Naraindas C. Motiani, Advocate Supreme Court for Petitioners.

Masood A. Noorani, Additional Advocate-General Sindh, for Respondents.

Date of hearing: 31st October, 2008.

PLCCS 2009 SUPREME COURT 581 #

2009 P L C (C.S.) 581

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SHAKTI RAM RATHORE

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No.332 of 2006, decided on 4th November, 2008.

(On appeal against the judgment, dated 12-12-2005 passed by Federal Service Tribunal (Karachi Bench) in Service Appeal No.73/K(C.S.) of 2003).

Civil Servants Act (LXXI of 1973)---

----S. 13---Compulsory retirement---Average and below average Annual Confidential Report---Non-communication to civil servant---Effect---Civil servant was compulsorily retired from service on the allegation of getting average and below average Annual Confidential Reports---Order passed by authorities was maintained by Service Tribunal---Plea raised by civil servant was that reports in question were never communicated to. him---Validity---Average remarks in Annual Confidential Reports were not communicated to civil servant hence he had no opportunity to meet the same---Annual Confidential Reports in question having been made ground for premature retirement of civil servant, therefore, same should have been communicated to him and finalized accordingly before any action could be taken against him under S.13 of Civil Servants Act, 1973---Average entry in Annual Confidential Report was not adverse unless disciplinary action was initiated on such ground and communicated to the civil servant---Order of compulsory retirement and judgment of Service Tribunal were set aside by Supreme Court and civil servant was reinstated in service with back benefits---Appeal was allowed.

Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707; Ejaz Ahmed Qazi v. Province of Sindh 2003 SCMR 1080; M.D. Sui Southern Gas Company v. Ghulam Abbas PLD 2003 SC 724; Chairman, WAPDA, Lahore v. Gul Bat Khan 1996 PLC (C.S.) 376=1996 SCMR 230; WAPDA through Chairman v. Fida Muhammad Khan 1996 SCMR 639=1996 PLC (C.S.) 700; Shaikh Abdul Aziz v. Collector, Muzaffargarh and 2 others NLR 1983 Service 175; Ali Muhammad v. Commissioner, Afghan Refugees 1995 SCMR 1675; Pakistan Railways v. Ghulam Rasool 1997 SCMR 1581; Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144; Province of Punjab v. Sardar Noor Ilahi Leghari 1992 SCMR 1427; Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1992 SCMR 544 and Federation of Pakistan through the Secretary, Health Division v. Dr. Najmul Ghani Khan PLO 1995 SC 556 ref.

M.M. Aqil Awan, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Appellant.

Amir Naqvi, D.A.-G. for Respondents Nos.1 and 2.

Lateefur Rehman Sarwary, Advocate Supreme Court for Respondent No.3.

Date of hearing: 27th October, 2008.

PLCCS 2009 SUPREME COURT 593 #

2009 P L C (C.S.) 593

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sabihuddin Ahmed, JJ

Qazi CHAND MUHAMMAD

Versus

PROVINCE OF SINDH and others

Civil Petition No.655-K of 2007, decided on 22nd October, 2008.

(On appeal from the judgment, dated 9-10-2007 passed by Sindh Service Tribunal, Karachi in S.A. No.69 of 2004).

Sindh Civil Service Manual---

----Para. 171--Age of civil servant---Correction---Procedure---Age of civil servant was altered by authorities on the basis of seniority list---Appeal of civil servant against order of departmental authority, rejecting his plea for rectification of his date of birth was dismissed by Service Tribunal---Validity---Provincial Government had plenary powers to correct a wrongly entered date of birth in service records without any limit of time---Such power could be exercised by government only fairly and honestly upon careful consideration of all facts and material brought to its notice and after giving reasonable opportunity to be heard to affected person in accordance with established principles of natural justice---All the more important was to hold proper inquiry when serious allegation of forgery, being quasi criminal in nature, was levelled---No such exercise was undertaken nor any specific order stating to correct civil servant's date of birth was placed on record---Supreme Court rejected view of Service Tribunal that Provincial Government could pass order altering date of birth of civil servant merely through seniority list without following due process of law---Supreme Court converted petition for leave to appeal into appeal and set aside orders passed by authorities as well as by Service Tribunal---Appeal was allowed.

Abdul Haq v. Province of Sindh 1989 PLC 300 and Inspector-General of Police, Punjab v. Mushtaq Ahmed Warriach and others PLD 1985 SC 159 ref.

M.M. Aqil Awan, Advocate Supreme Court for Petitioner.

Masood A. Noorani, Additional Advocate-General and Alam Subhani, Acting A.I.-G. (Legal) for Respondents.

Date of hearing: 22nd October, 2008.

PLCCS 2009 SUPREME COURT 608 #

2009 P L C (C.S.) 608

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

GOVERNMENT OF N.-W.F.P. through Secretary, Education Department, Peshawar and others

Versus

QASIM SHAH

Civil Petition No.248-P of 2007, decided on 18th November, 2008.

(On appeal from the judgment, dated 14-2-2007 of the Peshawar High Court, Abbottabad Bench passed in Writ Petition No.369 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Selection of candidates--Principles---Waiting list of candidates---Four posts on which successful candidates did not join were left vacant by authorities to be filled after fresh advertisement---High Court directed the authorities to consider respondent and other remaining successful candidates for appointment against first available vacancy---Validity---When some of the candidates did not join the service, such vacant posts remained vacant and it was imperative for the department to have considered remaining candidates for appointment against such posts---If some selected candidates were still available on waiting list, then such posts could not be kept vacant till the next process of recruitment---Four posts were not filled in, the remaining four persons were entitled to be considered for appointment---Failure of authorities to appoint respondent and others in earlier process was not in accordance with fair practice of recruitment---Respondent was one of the candidates who were selected during earlier recruitment process whereby twenty persons qualified the. test and remaining selected candidates, including respondent, were ignored despite availability of seats---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others 1993 SCMR 1124 distinguished.

Zia-ur-Rehman, Advocate-General, N.-W.F.P. for Petitioners.

Nemo for Respondent.

PLCCS 2009 SUPREME COURT 616 #

2009 P L C (C.S.) 616

[Supreme Court of Pakistan]

Present: Zia Perwez and Sabihuddin Ahmed, JJ

SHIBLI FAROOQUI

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No.1056 of 2005 arising out of Civil Petition No.665-K of 2003, decided on 9th October, 2008.

(On appeal against the judgment, dated 3-7-2003 passed by Federal Service Tribunal, Islamabad in S.A. No.7(K)(C.S.) of 2001).

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

----Art. 212(3)----Leave to appeal was granted by Supreme Court to consider; whether allegations against civil servant, even if correct, amounted to misconduct within the meaning and terms of relevant rules or could be merely considered as irregularities which stood cured by depositing amounts inadvertently long before issuance of charge sheet; whether authority was justified in imposing penalty severer than the one proposed by authorized officer without recording any reasons; and whether infliction of penalty of removal from service, in any event, was too harsh and disproportionate to acts attributed to civil servant.

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

----Rr. 4(1)(b) & 5(1)(iv)---Removal from service---Penalty not recommended by authorized officer---Effect---Technical irregularity--Inquiry against civil servant---Authorized Officer recommended reduction of pay by two stages in time scale for period of two years but competent authority imposed penalty of removal from service---Validity---Competent authority, without taking into consideration recommendations of authorized officer to the status of Auditor General of Pakistan, completely overlooked his recommendations and went on to impose extremely harsh penalty of removal from service---If authority was not inclined to agree with findings of authorized officer, it was required to record proper reasons for doing so after notice to affected civil servant---Public power could not he exercised arbitrarily or capriciously---Competent authority did not record any reason for not following recommendations of authorized officer--Supreme Court set aside penalty of removal from service being unwarranted and since certain allegations against civil servant stood established, those could not be allowed to go un-noticed altogether---Supreme Court reinstated civil servant with back-benefits and remanded the case to competent authority to decide whether penalty proposed by authorized officer or such lighter penalty as it could consider fit, ought to be imposed in the interest of justice--Appeal was allowed.

Chief Director-General Directorate of National Savings v. Rahat Ali 1996. SCMR 248 fol.

----Effects and scope---When such decision is rendered by an administrative authority it is essential that appropriate balance must be struck between adverse effects which decision may have on rights or interests of person concerned and purpose which authority is seeking to pursue, proportionately.

Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533 rel.

M.M. Aqil Awan, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellant.

Rizwan Ahmed Siddiqui, D.A.-G. and A.A. Siddiqui, Advocate-on-Record for Respondent No. 1.

Ali Mumtaz Hassan, Advocate-on-Record (absent) for Respondents Nos.2 to 4.

Date of hearing: 9th October, 2008.

PLCCS 2009 SUPREME COURT 627 #

2009 P L C (C.S.) 627

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD SAFDAR RANA

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others

Civil Petition No. 1143-L of 2007, decided on 30th September, 2008.

(On appeal from the judgment, dated 23-5-2007 passed by Punjab Service Tribunal, Lahore in Appeal No.101 of 2007).

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4. Constitution of Pakistan (1973), Art.212(3)---Promotion---Service Tribunal had decided appeal brought by the petitioner alter appraisal of entire material available on record and it was a well reasoned judgment---As per seniority list, case of petitioner was not a fit case for his promotion---Petitioner had since retired---No substantial question of law of public importance was involved in the petition---Impugned judgment was just and proper and no illegality or infirmity was found in said judgment so as to warrant interference by the Supreme Court---Petition lacking in merits was dismissed and leave refused.

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner.

Mian Tariq Ahmed, Additional Advocate-General, Ms. Shama Zia, D.S. Education Department and Inayat Ullah Niazi, Section Officer, Education Department for Respondents.

Date of hearing. 30th September, 2008.

PLCCS 2009 SUPREME COURT 634 #

2009 P L C (C.S.) 634

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

FEDERATION OF PAKISTAN and others

Versus

TAHIR LATIF

Civil Appeal No.765 of 2002 in C.P. 2838 of 2001, decided on 11th September, 2006.

(Against the judgment, dated 28-6-2001 passed by the Federal Service Tribunal Lahore Bench, Lahore, in Appeal No.9(L) of 1999).

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

----Rr. 3 & 5---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to re-examine the submissions made before Service Tribunal and to consider; whether judgment passed by the Tribunal could be sustained in law; and whether under Government Servants (Efficiency and Discipline) Rules, 1973, more than one minor penalties could be imposed on an employee as a result of disciplinary proceedings.

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

----Rr. 3(d) & 5---Absence from duty---Minor penalty---Regular inquiry, non-holding of---Civil servant was selected for a two years course abroad---Course was not completed in due time, therefore civil servant sought ex-Pakistan .leave, which was sanctioned---Civil servant sought further extension of leave on the ground that the course was not completed, such further extension was refused by the authorities- -Civil servant overstayed for about six months and the period of overstay was treated as absence from duty---After issuing show-cause notice, disciplinary proceedings were conducted against civil servant and penalty of withholding of increment for one year was imposed---Penalty imposed by the Authorities was set aside by Service Tribunal---Validity---Authorities had passed the order against civil servant without holding regular inquiry---In present case the contents of show-cause notice and reply if put in a juxtaposition, it would be clear that matter could not be decided without holding regular inquiry---Competent authority had not passed speaking order against civil servant without holding regular inquiry in terms of R.5 of Government Servants (Efficiency and Discipline) Rules, 1973---Such action of authorities was not in consonance with the settled law laid down by Supreme Court---Clause (d) of R.3 of Government Servants (Efficiency and Discipline) Rules, 1973, was an independent clause which was code in itself---To take action under R.3(d) of Government Servants (Efficiency and Discipline) Rules, 1973, its pre-conditions must exist meaning thereby that it would also he necessary to hold that on such account, retention of civil servant in service was prejudicial to national security---Mere remaining outside the country during his stay period, after submitting his application for extension of leave to the competent authority, did not fall within the parameters prescribed in R.3(d) of Government Servants (Efficiency and Discipline) Rules, 1973---Authorities failed to raise any substantial question of law of public importance as contemplated in Art 212(3) of the Constitution Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Ghulam Muhammad Khan's case 1996 SCMR 802 and Nawab Khan's case NLR 1954 Service 54 rel.

----S. 24-A--Administrative order----Scope---Under S.24-A, General Clauses Act, 1897, it is the duty and obligation of competent authority to award minor punishment alter application of mind with reasons.

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

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

---Art. 212(3)---Supreme Court---Jurisdiction---Findings of fact---Supreme Court is not a court of appeal to reappraise evidence while exercising power under Art.212 (3) of the Constitution---Findings of fact given by Service Tribunal cannot be disturbed in constitutional jurisdiction.

Ms. Naheeda Mehboob Elahi, D.A.-G. with Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Rai Muhammad Nawaz, Advocate Supreme Court for Respondent.

PLCCS 2009 SUPREME COURT 650 #

2009 P L C (C.S.) 650

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

CHIEF ELECTION COMMISSIONER OF PAKISTAN and others

Versus

Miss NASREEN PERVEZ

Civil Petition No.748 of 2008, decided on 4th December, 2008.

(On appeal against the judgment, dated 8-5-2008 passed by Federal Service Tribunal, Karachi in Appeal No.92(K)(C.S.) of 2006).

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

----Ss. 3 & 5(4)---Dismissal from service---Procedure---Before imposing such penalty, regular inquiry must be held to determine factual basis of allegations required to be proved in accordance with law---When allegations required explicit proof, then holding of inquiry could not be dispensed with---Principles.

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

---Ss. 3, 5(4) & 10---Service Tribunals Act (LXX of 1973), S.3---Civil Servants Act (LXXI of 1973), S.2(b)---Election Commission of Pakistan Rules, 1989, Rr.5, 10 & 12---Constitution of Pakistan (1973), Ars.199 & 221---Constitutional petition before High Court---Employee of Election Commission of Pakistan---Compulsory retirement from service--Charge of misconduct---Imposition of such penalty after finding petitioner's reply to show-cause notice as unsatisfactory without holding regular inquiry---Validity---Before imposing such penalty, regular inquiry must have been held to determine factual basis of such allegations, which were required to be proved in accordance with law---When allegations required explicit proof, then holding of inquiry could not be dispensed with---Election Commission was performing functions in connection with affairs of Federation---Chief Election Commissioner in exercise of powers under Art.221 of the Constitution and with approval of the President had framed rules relating to terms and conditions of employment in Commission notified as S.R.O.128(I)/89, dated 5-2-1989---Petitioner would be considered a civil servant as his terms and conditions of service were determinable by Federal Legislature under Art.221 of the Constitution and governed by statutory rules---Allegations levelled in show-cause notice did not constitute "misconduct" as defined in Removal from Service (Special Powers) Ordinance, 2000---Impugned order was set aside and petitioner was reinstated in service with all back-benefits.

Muhammad Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 603 rel.

Aamir Raza Naqvi, D.A.-G and A.S.K. Ghori, Advocate-on-Record for Petitioners.

Respondent in person.

PLCCS 2009 SUPREME COURT 663 #

2009 P L C (C.S.) 663

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, M. Javed Buttar and Tassaduq Hussain Jillani, JJ

FEDERATION OF PAKISTAN and another

Versus

IRFAN TARIQ and others

Civil Petition No.725 of 2008, decided on 26th February, 2009.

(Against the order of the Islamabad High Court, Islamabad, dated 14-4-2008 passed in Writ Petition No.918 of 2005).

Competitive Examination Rules, 2002---

----Para. 11---Candidate from N.-W.F.P. having succeeded in C.S.S. Competitive Examination, 2003 was deprived of the department of his first choice, on the ground that said seat was utilized in advance for another candidate who appeared in C.S.S. Competitive Examination, 2001 and he had domiciled from N.-W.F.P. and there was a court order for such utilization of the seat---Public Service Commission had never requested or advised the Establishment Division to substract a seat from N.-W.F.P. quota for the said department in advance i.e. for C.S.S. Competitive Examination for the year 2003---Such substraction/deduction which neither had the backing of law, rules or any departmental instructions or order, had the effect of depriving the candidate of a seat which otherwise would have accrued to him---Held, the procedure adopted by the authorities was against the law.

Federation of Pakistan v. Muhammad Tayyab 2006 SCMR 326 fol.

Shah Khawar, D.A.-G. and M.S. Khattak, Advocate-on-Record for Petitioners.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.2.

Hafiz Zahoor, Admn. Officer for Respondent No.3.

Date of hearing: 26th February, 2009.

PLCCS 2009 SUPREME COURT 679 #

2009 P L C (C.S.) 679

[Supreme Court of Pakistan]

Present. Abdul Hameed Dogar, C.J., Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ

CIVIL AVIATION AUTHORITY through Director-General

Versus

JAVED AHMAD and another

Civil Appeals Nos.509 and 571 of 2008, decided on 20th March, 2009.

(On appeal from the judgment, dated 23-4-2008 passed by the High Court of Sindh at Karachi, In Constitutional Petition No D-970 of 2007).

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

---Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Misconduct---Compulsory retirement---Employee was neither dealt with fairly nor any enquiry was conducted in the matter---Departmental authorities, in spite of remand of the case by the Service Tribunal, dilated upon the merits of the case and formed its earlier opinion and became prejudiced towards the employee on the basis of other complaints and no opportunity in defence was provided to him---Department, in spite of reinstatement order, passed by High Court, did not allow the employee to join service which reflected that department had made up its mind to deprive the employee of his right---Departmental action on the statement containing 23 allegations which included additional allegations, was taken on malice and predetermined desire to get rid of the employee---Appeal of employee before the Service Tribunal having been abated High Court had the power to give directions to the effect that the employee may be reinstated in service however, in the present case, High Court wrongly observed that his intervening period may be treated as extraordinary leave without salary---No jurisdictional error, infirmity and illegality having been found in the impugned judgment, the same was maintained by the Supreme Court.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 200;, SC 602: Raja Riaz v. Chairman, Pak Space and Upper Atmosphere Research Commission 2008 SCMR 402; Muhammad Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681 ref.

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

---Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional jurisdiction of High Court---Scope---Held, after abatement of service appeal and Service Tribunal having taken another view by entertaining service appeal involving departmental penalties and there being no appropriate remedy under the law available to agitate the grievance by the employee, High Court rightly entertained and disposed of the constitutional petition.

Makhdoom Ali Khan, Senior Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record and M. Iqbal Chief Human Resources, Civil Aviation Authority for Appellant (in Civil Appeal No.509 of 2008).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Respondent No.1 (in Civil Appeal No.509 of 2008).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant (in Civil Appeal No.571 of 2008).

Babar Ali, Advocate Supreme Court, Ch. Akhtar Ali, Advocate?-on-Record, Obaidul Rehman Abbasi, Regional Legal Officer, Civil Aviation Authority for Respondents (in Civil Appeal No.571 of 2008).

Date of hearing: 19th February, 2009.

PLCCS 2009 SUPREME COURT 701 #

2009 P L C (C.S.) 701

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk and Zia Perwez, JJ

ABID HUSSAIN

Versus

CHAIRMAN, NESCOM, ISLAMABAD and another

C.P.L.A. No.33 of 2009, decided on 26th January, 2009.

(On appeal from judgment, dated 16-12-2008 of Federal Service Tribunal, Islamabad passed in Appeal No.1107(R)(C.W.) of 2004).

(a) Civil service---

----Removal from service---Charge against the civil servant was that he attempted to rape a lady who had visited the place of his work---Said charge was fully proved during regular inquiry conducted by the Committee; he had fully been associated with the proceedings; the witnesses were examined in his presence; he cross-examined them according to his choice, was given show-cause notice and above all, he had confessed his guilt in writing---Charge against the accused having been proved, no exception could be taken to such action against him.

(b) Civil service---

----Recommendations of Enquiry Committee---Inquiry Officer had recommended the stoppage of promotion for a period of 14 years but competent authority, not agreeing with the quantum of punishment, ordered removal of civil servant from service---Validity---Competent authority had every jurisdiction and power to disagree with the Inquiry Officer, especially on the quantum of punishment---In the present case, show-cause notice was served on the civil servant after submission of inquiry report and it was clarified to him that the punishment involved could include dismissal from service---Civil servant, in circumstances, was not condemned unheard.

2008 SCMR 1174 distinguished.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th January, 2009.

PLCCS 2009 SUPREME COURT 712 #

2009 P L C (C.S.) 712

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MUHAMMAD FARID KHATTAK and others

Versus

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

Civil Appeals Nos.650 to 652 of 2000, decided on 29th August, 2008.

(On appeal from the judgment, dated 6-1-2000 in Appeals Nos.13 of 1996, 14 of 1996 and 15 of 1996 passed by the N.-W.F.P. Service Tribunal, Peshawar).

(a) Civil service---

----Gradation and presumption of certain terms and conditions of a particular post---Held, it was for the government to place a particular post in any grade or prescribe certain terms and conditions therefor, as per its policy, and incumbents of a particular post could not claim as of right for settlement of prescription or provision of certain terms and conditions according to their own choice and it was always open for a candidate to accept or not the terms and conditions prescribed for a particular post.

Province of Punjab v. Kamaluddin and others PLD 1983 SC 126 and Ahmad Hussain v. Director of Education 2001 SCMR 955 distinguished.

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

---S. 4---Nobody has a vested right in policy decision of the Government and Service Tribunal is divested of power to indirectly set aside the public policy decision in exercise of its power under Service Tribunals Act, 1973 or rules framed thereunder.

---Grant of status to a civil servant with retrospective effect---Scope---Held, a particular status could not be legally bestowed upon a civil servant with retrospective effect, even by a competent authority as he could not be legally made what he had never been---Persons discharging similar duties appointed in different departments may claim that they may be given the same status and benefits but a person, whose nature of duties is altogether different and his terms and conditions were also not alike, could not claim as of right that he may be allowed the same benefits and emoluments which were not part of and covered by the terms and conditions of his service---Government had the prerogative to determine terms and conditions of service of a particular post which could not be challenged.

Ahmad Hussain v. Director of Education 2001 SCMR 955 and Province of Punjab v. Kamaluddin and others PLD 1983 SC 126 distinguished.

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

. ----S. 4---Up-gradation of status---Civil servant, under the garb and cloak of financial benefits' could not demand upgradation of the post retrospectively from Service Tribunal, such being outside the scope and ambit of the Service Tribunal.

Syed Asif Shah, Advocate Supreme Court for Appellants (in all Appeals).

M. Bilal, Senior Advocate Supreme Court for Advocate-General, N.-W.F.P. for Respondents.

Date of hearing: 29th August, 2008.

PLCCS 2009 SUPREME COURT 728 #

2009 P L C (C.S.) 728

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ZIA-UR-REHMAN

Versus

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, ABBOTTABAD and others

Civil Petition No.404 of 2009, decided on 22nd April, 2009.

(Against the judgment, dated 27-12-2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No.20(P)(C.S.) of 2007).

(a) Civil service---

----Departmental appeal---Limitation---Appellate authority was justified to dismiss time-barred appeal.

(b) Civil service---

----Leave---Mere submission of application for leave by an employee to his department would hot mean that leave has been granted in his favour, he is duty bound to enquire from the department himself about the fate of his request for grant of leave.

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Service Tribunal had given findings of fact against the petitioner after reappraisal of evidence and upheld the order of the department that his' departmental appeal was time-barred,' therefore, appeal before the Service Tribunal was not maintainable---Petitioner thus, had challenged' the vires of the concurrent orders of the- department and impugned judgment of the Service Tribunal through petition under Art.212(3) of the Constitution and had failed to raise any question of public importance---Validity--Supreme Court, held, could not interfere with the concurrent findings of fact arrived at by the courts below while exercising powers under Art.212(3) of the Constitution in circumstances---Principles.

Iftikhar Ahmed Malik's case 2005 SCMR 806; Tahir Latif's case 2007 SCMR 152; Ch. Muhammad Azim's case 1991 SCMR 255; Chairman PIA and others v. Nasim Malik PLD 1990 SC 951 and Muhammad Aslam v. WAPDA and others 2007 SCMR 513 ref.

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

---S. 4---Appeal to Service Tribunal---Scope---Service Tribunal had no jurisdiction to convert the penalty, while observing that appellate authority dismissed the appeal of civil servant as time-barred.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2009 SUPREME COURT 797 #

2009 P L C (C.S.) 797

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

SECRETARY (FUNDS) ECONOMIC ADVISOR

Versus

IMTIAZ MEHMOOD and others

Civil Petition No.196-L of 2008, decided on 22nd April, 2009.

(Against the judgment, dated 2-2-2008 passed by Punjab Service Tribunal, Lahore in Appeal No.2964 of 2006).

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

----Ss. 3, 5 & 10---Removal from service---Non-affording of opportunity of hearing to appellant before awarding him such punishment---Validity---Opportunity of hearing would include providing of relevant record to appellant for preparing defence and cross-examination---Impugned order could not withstand test of judicial scrutiny---Service Tribunal set aside impugned order, reinstated appellant into service and directed authority to appoint new Inquiry Officer for holding de novo inquiry and provide copies of documents demanded by appellant.

Faisal Zaman Khan, Advocate Supreme Court for Petitioner.

Farooq Zaman Qureshi, Advocate Supreme Court for Respondent No.1.

PLCCS 2009 SUPREME COURT 936 #

2009 P L C (C.S.) 936

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, and Mahmood Akhtar Shahid Siddiqui JJ

Dr. M. SOHAIL KARIM HASHMI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another

Civil Petitions Nos.912 and 913 of 2009; decided on 13th July, 2009.

(On appeal from the judgment, dated 28-4-2009 in Appeals Nos.657(R)(C.S.) of 2008 and 314(R)(C.S.) of 2009).

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

---Ss. 9(1) & 35---Civil Servants (Confirmation) Rules, 1993, R.6 (4)---Fundamental Rules, R.14-A---Constitution of Pakistan (1973), Art.212(3)---Lien, retention of---Principle---Appointment by Council---Scope---Appellant was an employee of Ministry of Health and applied for the post advertised in press by Pakistan Medical and Dental Council---Later on inquiry was conducted against appellant under S.35 of Pakistan Medical and Dental Council Ordinance, 1962, alleging against him acts of omission and commission, constituting inefficiency, misappropriation, misuse of power and misconduct, resultantly he was repatriated to Ministry of Health---Plea raised by appellant was that after successful completion of his probation, he had become a regular employee of Council and as such could not be repatriated to his previous department---Validity---Provisions relating to retention of lien or right of reversion were beneficial provisions vis-a-vis the government servants---Such provisions had to be construed accordingly to the advantage of government servants and not to their detriment---On his selection and appointment having relieved, appellant to join that post, Ministry of Health should have retained his lien---On completion of his probation, appellant should have been given option to rejoin his parent department and in case of his failing to do so, his lien should have been terminated and he should have been apprised of same accordingly---Appointment of appellant could not be challenged on the ground of irregularities. having been committed by concerned authorities in Pakistan Medical and Dental Council or Ministry of Health---Authorities initiated disciplinary proceedings against appellant, got inquiry conducted against him and finally issued him notice to show cause why action be not taken against him---When authorities were required by High Court to determine as to who was competent authority in respect of disciplinary proceedings initiated against appellant, authorities took somersault and came up with the stance that appellant was a civil servant having lien with Ministry of Health and thus 'repatriated him---If according to authorities, appellant was guilty of misconduct on all or any of the charges levelled against him in the charge-sheet, how he could be. repatriated to his parent department---Service Tribunal completely overlooked such aspect of the matter in the judgment and allowed to go unnoticed the self-contradictory stance taken and zigzag path followed by authorities from time to time---Judgment passed by Service Tribunal and order passed by authorities repatriating appellant to Ministry of Health were set aside---Appeal was allowed.?

Secretary to the Government of N.-W.F:P. v. Saadullah Khan 1996 SCMR 413 rel.

(b) Pakistan Medical and Dental Council ' Ordinance (XXXII of 1962)---

----S. 35 & Preamble---Medical and Dental Council---Object and scope---Inquiry Commission---Pakistan Medical and Dental Council is a statutory body, which is controlled and regulated by provisions of Pakistan Medical and Dental Council Ordinance, 1962---Council carries out purpose of Pakistan Medical and Dental Council Ordinance, 1962, by means of Regulations framed from time to time---Federal Government has power to appoint Commission of inquiry and may amend Regulations of the Council, or make such provision or order or take such other steps as may seem necessary to give effect to recommendations of the Commission---At any rate, the Council remains an independent body, which performs its functions subject to statutory controls and limits.?

M. Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, D.A.-G., Mumtaz Ahmed, Section Officer (Adam.) Ministry of Health, Government of Pakistan, Islamabad for Respondent No.1.

Abdur Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th June, 2009.

PLCCS 2009 SUPREME COURT 951 #

2009 P L C (C.S.) 951

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar, Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division

Versus

SHAHID HAYAT and another

Civil Review Petition No.110 of 2008, decided on 21st April, 2009.

(For review of judgment, dated 12-6-2008 of this Court passed in, Civil Appeal No.558 of 2008).

Civil Servants Act (LXXI of 1973)---

----S. 13(1)(i) & (ii)---Government Servants (Efficiency and Discipline) Rules, 1973, R.3---Constitution of Pakistan (1973), Arts.13 & 25--Suspension of civil servant for involvement in criminal case---Validity---Suspension was provided in law having a complete mechanism of its own---Civil servant proceeded against under disciplinary laws could not be said to have been dealt with in derogation of Arts.25 etc. of the Constitution.

Shah Khawar, Deputy Attorney-General, Ch. Muhammad Akram, Advocate-on-Record and Mumtaz Ali Khan, D.S.(Estt.) for Petitioner.

Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondent.

Date of hearing: 21st April, 2009.

PLCCS 2009 SUPREME COURT 953 #

2009 P L C (C.S.) 953

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar, Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

SAJJAD AHMAD JAVED BHATTI

Versus

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

Civil Petition No.1546 of 2008, decided on 21st April, 2009.

(On appeal from judgment, dated 17-11-2008 of the Islamabad High Court, passed in I.G.A. No.61 of 2008).

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

----Ss. 10, 13 & 14---Posting as an Officer on Special Duty (O.S.D.)---Retirement of petitioner (BS-21) from service on attaining age of superannuation---Petitioner's prayer for grant of an extension or re-employment in service (in BS-21/22) for period he remained posted as an O.S.D.---Dismissal of Intra-Court Appeal by High Court filed by petitioner---Validity---Service as an O.S.D. for all practical purposes and legal consequences would be treated as on duty without any break or interruption in service, thus, such period could not be excluded from age of superannuation---Petitioner had not remained out of service during his posting as an O.S.D.---Petitioner for such period had drawn his salary and allowances having been counted towards his pensionary benefits---Petitioner's entitlement to grant of BS-22 would give him only benefit of revision of pay and pension etc., but not right to further extension or re-employment in Government service for such reason---Retiring or retired civil servant could not demand re-employment as a matter of right---No extra tenure could be given to a civil servant by way of extension or re-employment in service on ground that he was prevented from performing his official duties for a certain period on account of circumstances beyond his control or for which he was not at fault or for any other cause---Completion of age of superannuation could not be postponed for reason that civil servant remained on an erratic posting for certain period or was prevented from discharging his official duties for any other cause such as suspension or forced leave or withholding of promotion---Suspension from service on disciplinary grounds or committal to prison would result in temporary severance from office, but civil servant would continue to be in service of Government-Supreme Court refused to grant leave to appeal in circumstances.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab and another 2006 SCMR 1360 ref.

Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605 and Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321 rel.

(b) Civil service---

----Post of Officer on, Special Duty (O.S.D.)---Creation of and appointment on such posts---Purpose stated.

Post of O.S.D. can be created to cater for various contingencies including the period during the Government servant remains on training in Pakistan or abroad or for doing work of a special nature such as O.S.D. (Inquiries) or to overcome a technical difficulty.

----S. 10---Posting as Officer on Special Duty (O.S.D.)---Legal effect stated.

Posting of a civil servant as O.S.D. does not affect continuity of his service or lien to his substantive post. The service as an O.S.D. is for all practical purposes and legal consequences is treated as on duty and there is no interruption or break in service. Therefore, it does not stand to reason as to how the period of service spent by a civil servant as an O.S.D. can be excluded from the age of superannuation. By virtue of provisions of section 10 of the Civil Servants Act, 1973, every civil servant is liable to serve any where within or outside Pakistan in any equivalent or higher post under the Federal Government or any Provincial Government or local authority or a Corporation or body set up or established by any Government.

(d) Civil service---

----Posting as Officer on Special' Duty (O.S.D.)---Such posting for considerably long period deprecated by Supreme Court---Principles.

At times, civil servants are made O.S.D. or kept without any posting, in case they have become persona non grata. Therefore, the posting of such officers as O.S.D. for considerably long period is deprecated by the Court. It may be unfair and unjust to keep a Government servant on tenterhooks without getting any work from him. The right to work is a valuable right of a person as visualized by Article 3 of the Constitution, a provision meant to ensure social and economic justice to the people of Pakistan.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab and another 2006 SCMR 1360; Pakistan and others v. Public-at-large and others PLD 1987 SC 304; P.K. Chinnasamy v. Government of Tamil Nadu and others AIR 1988 SC 78; Not the Whole Truth by late Mr. Justice M.R. Kayani; The Discipline of law pages 188 and 189, 1979 Edition by Late Lord Denning and Langston v. AUEW (1974) WLR 185 rel.

Petitioner in person.

Shah Khawar, D.A.-G. for Pakistan to Respondents.

Date of hearing: 21st April, 2009.

PLCCS 2009 SUPREME COURT 963 #

2009 P L C (C.S.) 963

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ANWAR ALI and another

Versus

CHIEF EXECUTIVE HESCO (WAPDA), HYDERABAD and others

Civil Petitions Nos.315-316 of 2009 and Civil Petitions Nos.457 of 458 of 2009, decided on 22nd May, 2009.

(On appeal from the judgment, dated 26-12-2008 passed by Federal Service Tribunal, Islamabad in Appeals Nos.400(R)(C.S.) of 2008 and 401(R)(C.S.) of 2008).

Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 5---Dismissal from service---Bogus academic certificates---Service Tribunal, decision of---Principle---Civil servants produced bogus academic certificates at the time of their selection, therefore, they were dismissed from service---Service Tribunal partially allowed appeals filed by civil servants and converted dismissal from service into compulsory retirement with pensionary benefits---Validity---Had the Service Tribunal gone through documents placed before Inquiry Officer, there could have no occasion to show any leniency in favour of civil servants---Service Tribunal might have recommended department for further criminal action against such persons so that it might serve deterrence for likeminded persons in future---Instead of doing so, civil servants who were found guilty of gross misconduct and fraud, had been benefited by converting penalty of dismissal from service into compulsory retirement only for the reason that they had served department for about 27 years---Such reasons prevailed upon Service Tribunal were not acceptable in any context---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Supreme Court recommended authorities to examine possibility of getting registered criminal case against civil servants so that that in future no one should dare to commit such misconduct in government departments---Appeal was allowed.

Postmaster-General, AJK v. Muhammad Zorab 1996 SCMR 280 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Ch. Naseer Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 22nd May, 2009.

PLCCS 2009 SUPREME COURT 966 #

2009 P L C (C.S.) 966

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

GOVERNMENT OF PAKISTAN through Director-General, Ministry of Interior, Islamabad and others

Versus

FARHEEN RASHID

Civil Appeal No.538 of 2009, decided on.26th May, 2009.

(On appeal from the judgment, dated 17-11-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.961(R)(C.S.) of 2006).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether reasons advanced by Service Tribunal in converting dismissal of service into minor penalty of stoppage of two increments for a period of two years was justified under facts and circumstances of the case in view of allegations that she on having found wallet of complainant did not immediately report about the incident to shift and arrival Incharge, rather kept the wallet for several hours though complainant right after losing his wallet had come over to her counter several times but she did not bother to inform him of finding the wallet.

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

----S. 24-A---Speaking order---Public functionaries are bound to decide cases of their subordinates after application of mind with cogent reasons within reasonable time.

Messrs Airport Support Services case 1998 SCMR 2268; Aslam Warraich's case 1991 SCMR 2330 and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 rel.

----S. 5---Service Tribunal, duty of---Scope---Service Tribunal is obliged to decide appeal of civil servant after application of mind with reasons.

Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

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

----Arts. 4 & 5--Protection of law---Scope---Every citizen has inalienable right to be treated in accordance with law as envisaged by Art. 4 of the Constitution---Public functionaries are obliged to act within four corners of mandate of Constitution and Law--Even Chief Executive of Country is not above the Constitution and is bound to obey command of Constitution as envisaged under Art.5(2) of the Constitution.

Ch. Zahur Illahi's case PLD 1975 SC 383 and Zahid Akhtar's case PLD 1955 SC 530 rel.

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

----Art. 4---"Law"---Connotation---Word "law" used in Constitution includes all such principles as having binding force on account of moral, customary or other sociological reasons.

Begum Agha Abdul Karim Shorish Kashmiri's case PLD 1969 SC 14 rel.

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

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.21(3)---Convertion of penalty---Service Tribunal, jurisdiction of---Charge-sheet---Object and scope---Major penalty of dismissal from service was converted by Service Tribunal into minor penalty of stoppage of annual increments for a period of two years without cumulative effect---Authorities contended that as civil servant committed theft, therefore, criminal case should have been registered against her---Plea raised by civil servant was that no such allegation was made in charge sheet by the authorities---Validity---Charge sheet was precise formulation of specific accusation made against a person who was entitled to know its nature at early stage---Object of charge-sheet was to tell accused as precisely or/and concisely as possible the matter in which civil servant was charged and must convey her with sufficient clearances and certainty what department intended to prove against her and of which she would have to clear herself during disciplinary proceedings---Service Tribunal did not advert to contents of charge-sheet, show-cause notice, inquiry report and dismissal order as Inquiry Officer recommended for registration of criminal case against civil servant with regard to recovery of stolen amount of complainant from her---Contents of charge-sheet and show-cause notice did not contain such allegations---Service Tribunal had ample power to convert major penalty into minor penalty subject to record reasons for the same---Supreme Court declined to interfere in judgment passed by Service Tribunal as authorities failed to raise any substantial question of public importance as contemplated under Art.212(3) of the Constitution---Leave to appeal was refused.

Ghulam Mohi-ud-Din's case PLD 1964 SC 829; Zulfiqar Ali's case PLD 1988 SC 693; Muhammad Idrees Khan's case 2006 SCMR 104 and Akif Javed's case 2005 SCMR 752 rel.

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

----Art. 212(3)---Appeal to Supreme Court---Substituting findings of fact---Scope---Supreme Court while exercising power under Art.212(3) of the Constitution, has no jurisdiction to substitute its own finding in place of finding of Service Tribunal below.

Khan Dil Muhammad Alizai, Deputy Attorney-General for Appellants.

Respondent in person.

2009 P L C (C.S.) 1001

[Supreme Court Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and another

Versus

MUHAMMAD ZAHID and 29 others

Civil Appeal No.351 of 2005, decided on 22nd June, 2009.

(On appeal from the judgment, dated 28-4-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in I.C.A. No.164 of 2002).

(a) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court inter alia to examine as to whether respondents were employees of the Pakistan Telecommunication Company Limited or Telecom Foundation; if so to what effect.

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

----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Scope application and analysis of certain provisions of both the statutes stated.

----Art. 199(5)---Jurisdiction of High Court---Scope---"person" as used in Art.199(5) of the Constitution with reference to the scope of extraordinary jurisdiction of High Court stated.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.

(d) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Constitution of Pakistan (1973), Arts.199, 2-A, 4 & 25---Constitutional jurisdiction of High Court---Scope---"Person" as mentioned in Art.199(5) of the Constitution---Connotation---Employees of erstwhile Telegraph and Telephone Department transferred to the Corporation under the relevant provisions of the Pakistan Telecommunication Corporation Act, 1991 and later on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as operators had been inducted permanently or regularized subsequently under the rules necessarily relate to one of the "affairs of the Federation" within the purview of provisions of Art.199 of the Constitution---Similar duties and functions in the International Gateway Exchange being discharged by the employees as operators could not be distinguished and said that the same did not relate to the "affairs of the Federation" though conferred upon the Corporation and finally upon the PTCL---Subject which pertained to one of the important "affairs of the Federation" discharged now through PTCL essentially fell within the context of "person" as defined in Art.199(5) of the Constitution, therefore, employees were amenable to the constitutional jurisdiction of the High Court---Case of the employees/respondents was that they were employed on daily wages and not regularized despite having rendered service for period of more than 2 years as contract employees renewed from time to time; that they were being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course as operators in the International Gateway Exchange performing similar functions in Exchange amounted to having been grossly violated as against the guaranteed rights under Arts.2-A, 4 & 25 of the Constitution by depriving them of their emoluments besides all other service benefits being paid to other operators performing service in the said Exchange and similarly placed---High Court judgment that such-like employees were for all purposes regular employees and to be dealt with as such was unexceptionable irrespective of the status of the employees which might be that of a "worker" or a "civil servant" or the "contract employees" having no nexus to the maintainability of the constitutional petition on the ground of discrimination meted out to them---Principles.

Muhammad Manwar Mumtaz v. Pak Arab Refinery Limited, (PARCO) through Managing Director Corporate Headquarters Korangi, Karachi and 6 others 2009 PLC 13; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others PLD 2006 SC 602; Messrs Soofi Textile and Printing Mills Ltd., Karachi v. Abdul Aziz 1975 PLC 260; Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur and another PLD 1976 Lah. 1169; Masood Ahmed and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41; Raza Muhammad alias Rajib Ali and another v. The State 2001 YLR 1743; Nagina Bakery v. Sui Southern Gas Limited and 3 others PLC 2001 SC 760; Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888; Atchison College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Muhammad Boota and 2 others v. National Construction Company and 2 others 1984 CLC 256 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.

S. Naeem Bokhari, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondents Nos. l to 14.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos. 15 to 28.

Nemo for Respondent No.29.

Date of hearing: 27th April, 2009.