PLCCS 2010 Judgments

2010 PLC (C.S.) 57

[Federal Service Tribunal]

Before Salim Gul Shaikh and Syed Mehar Hussain Shah, Members

KHALID SHAHAB ANSARI

Versus

GOVERNMENT OF PAKISTAN and 4 others

Appeal No.309(K)(C.S.) of 2003, decided on 15th January, 2009.

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

----Ss. 3, 5, 6, 11 & 13---Government Servants (Efficiency and Discipline) Rules, 1973, R.5(iii)---Service Tribunals Act (LXX of 1973), S.4---Awarding major penalty of dismissal from service---Appeal---Appellant who was dismissed from service under Government Servants (Efficiency and Discipline) Rules, 1973, his departmental appeal against said dismissal order was rejected and the appellant filed appeal before Service Tribunal under S.4 of Service Tribunals Act, 1973---Service Tribunal set aside dismissal order and allowed the department to proceed against appellant afresh by giving him an opportunity to defend himself---Appellant was reinstated into service and fresh action was initiated against him by waiving inquiry against the appellant under R.5(iii) of Government Servants (Efficiency and Discipline) Rules, 1973 on same charges---Request of the appellant for the regular inquiry was not accepted by the department and punishment of dismissal from service was imposed on the appellant without holding regular inquiry---Appellant after exhausting existing remedies, had filed appeal to Service Tribunal---Counsel for the appellant had maintained that Government Servants (Efficiency and Discipline) Rules, 1973 were no longer in force when the show-cause notice was served on the appellant because the Removal from Service (Special Powers) Ordinance, 2000 was in field at the relevant time---Department was not justified to initiate de novo disciplinary proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973 because Removal from Service (Special Powers) Ordinance, 2000, which was overriding law under S.11 of said Ordinance, was holding the field---In order to determine the question of guilt or innocence of an accused employee, it was essential to afford him a fair and reasonable opportunity to make his defence which was his inalienable right---Where imposition of major penalty was involved, it was necessary to establish the facts against the official, which could only be done by holding a regular inquiry under prescribed rules---Order imposing major penalty of dismissal from service on the appellant, passed after waiving inquiry under R.5(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, was set aside and appellant was reinstated into service with back benefits as admissible under the rules. ?

Pakistan Telecommunication Company Limited through Chairman and 3 others v. Messrs Muhammad Wazir, Former General Manager, (T&R) PTCL and another 2005 SCMR 1225; Daud Shah and another v. Pakistan Water and Power Development Authority and another 2007 PLC (C.S.) 281; Azizullah Memon v. Province of Sindh and another 2007 SCMR 2209; Abdul Qayyum v. D.G. Project Management Organization JS HQ Rawalpindi and 2 others 2003 SCMR 1110; Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 PLC (C.S.) 817; Saghir-ud-Din Babar v. S.P. City Division and another 2006 PLC (C.S.) 953; Zahooruddin Shaikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; Bhero Lal Virjani v. The President Pakistan Telecommunication Limited, Islamabad and, 3 others KLR 2005 Labour and Services Cases 410; Azizullah Memon v. Province of Sindh and another 2007 SCMR 299; Naseeb Khan v. D.S. Pakistan Railways 2008 SCMR 1369; Alamgir v. Divisional Forest Officer, Multan 1993 SCMR 603; Nawab Khan v. Government of Pakistan (Ministry of Defence) PLD 1994 SC 222 and Basharat Ali v. Director Excise and Taxation Lahore 1997 SCMR 1543 ref.

Sans Ullah Noor Ghauri for Appellant.

S.M. Iqbal Shah for Respondents.

Date of hearing: 13th January, 2009.

2010 P L C (C.S.) 1163

[Federal Service Tribunal]

Before Justice (R.) Tanveer Bashir Ansari, Chairman and Syed Mehar Hussain Shah, Member

BOOTA MASIH

Versus

DIRECTOR, NATIONAL INSTITUTE OF CHILD HEALTH and 2 others

Appeal No.23(K)(C.S.) of 2004, decided on 24th February, 2009.

Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Procedure Code (V of 1908), S.17---Claim for selection grade---Appeal to Service Tribunal---Appellant was removed from service as a result of disciplinary action---Said order of removal from service was set aside in appeal filed by the appellant and appellant was directed to be reinstated on the same position from which he was removed from service---When the appellant stood removed from service, authorities had granted Selection Grade to at least 10 juniors of the appellant, but due to his removal from service appellant could not be considered for grant of said Selection Grade---Appellant had filed appeal against the order whereby his request for grant of Selection Grade was rejected---As appellant was ordered to be reinstated in service on the same position from which he was removed from service, upon reinstatement the seniority and all other incidental rights/prospects of service would be restored in favour of the appellant---Grant of Selection Grade, however depended upon the particular percentage of posts upon seniority basis---No illegality was found for the grant of Selection Grade to the 10 juniors of the appellant at the time when the appellant stood removed from service--Grant of Selection Grade to the juniors of the appellant would create a vested right in them even though the appellant might have been reinstated in service---Case of grant of Selection Grade to the appellant could be considered only if any selection grade post as per rules was still available without disturbing the status of the juniors who had since been granted the Selection Grade.?

Sana Ullah Noor Ghauri for Appellant.

Mukhtar Ahmed Mughal, Federal Counsel for Respondents.

Date of hearing: 21st February, 2009.

2010 P L C (C.S.) 1178

[Federal Service Tribunal]

Before Salim Gul Shaikh and Sayed Mehar Hussain Shah, Members

RUKHSANA RAHOOJA

Versus

MINISTRY OF FINANCE, GOVERNMENT OF PAKISTAN and others

Appeal No.208(K)(C.S.) of 2008, decided on 28th April, 2009.

Civil service---

----Recovery of alleged unauthorized payment of house rent---Appeal to Service Tribunal---Employee who was appointed in BS-19 for Works and Housing Research of Ministry of Science and Technology, was being paid house-rent allowance from the time of her appointment in service---During the audit of the accounts of the department it was discovered that payment of rent was being made to employee in violation of instructions issued by the Ministry of Finance as employee was living with her husband who was an employee of Civil Aviation Authority and had been allotted official residence---Department not only stopped the payment of house-rent, but it was also ordered that recovery of unauthorized payment should be effected from her---Both husband and wife were serving in different departments and both were legally entitled to the house-rent/accommodation in pursuance of the terms and conditions of their service---Order of recovery of payment made to the employee was also hit by the principle of locus poenitentiae as benefits once given to an employee could not be taken away.

Razi Begum v. Ministry of Finance 1986 PLC (C.S.) 754; Abdul Rasheed and others v. Accountant General, Pakistan Revenues, Islamabad and 2 others 1999 PLC (C.S.) 464; 1997 SCMR 1026; Hameed Akhtar Niazi v. Secretary, Establishment Division reported in 1996 SCMR 1185 and Haji Nazar Ahmed v. Member (Revenue) BOR, Punjab 1993 SCMR 606 ref.

Shabbir Ahmed Awan for Appellant.

Mukhtar Ahmed Mughal for Respondents.

Date of hearing: 14th April, 2009.

2010 P L C (C.S.) 1205

[Federal Service Tribunal]

Before Salim Gul Shaikh and Syed Mehar Hussain Shah, Members

SUNIL KUMAR

Versus

CHAIRMAN, C.B.R., ISLAMABAD and others

Appeal No.216(K)(C.S.) of 2003, decided on 20th November, 2009.

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

----Ss. 3, 5, 6 & 10---Fundamental Rules, R.29---Imposition of major penalty of reduction to lower post---Appeal against---Said penalty was imposed upon the appellant after issuing him show-cause notice and holding inquiry against him on certain charges---Inquiry report was quite comprehensive and had been painstakingly prepared---Allegations which required the statement of witnesses had been handled accordingly, which included the statement of the elder brother of the appellant as well as the Inspector, who testified that appellant was found sitting at the car show-room, which was his family business, during office hours, instead of performing duty in the office---Allegations pertaining to audit work was verifiable from the record and had been addressed accordingly---Inquiry report, however, did not clear the appellant from the charges of accepting bribe which was a serious misconduct---Since matter had been under litigation for a long time, same could not be prolonged any further---Appellant had undergone the punishment for sufficient time---Appellant should have been reinstated, if the respondents had acted in accordance with FR.29 by specifying the duration of the penalty---Appellant having been appointed in the same grade/post, he could not have been reduced to a lower post---Appeal had been lingering for almost 6 years---Punishment imposed on the appellant being not in accordance with the law, same was modified to stoppage of one increment for a period of one year.

NLR 1982 Ser. 272; 2009 SCMR 412; 2008 SCMR 1165=2008 PLC (C.S.) 1161; 2009 PLC (C.S.) 833; PLD 2008 SC 392 and 2006 PLC (C.S.) 1259 ref.

Sanaullah Noor Ghouri for Appellant.

S.M. Iqbal Shah for Respondent.

Date of hearing: 26th August, 2009.

2010 P L C (C.S.) 1454

[Federal Service Tribunal]

Before Justice (R) Tanveer Bashir Ansari, Chairman and Syed Mehar Hussain Shah, Member

MUHAMMAD AYUB BALOCH

Versus

SECRETARY, (COMMUNICATIONS DIVISION), MINISTRY OF COMMUNICATIONS AND RAILWAYS, ISLAMABAD

Appeal No.83(K)CS of 2003, decided on 18th February, 2009.

Civil service---

----Temporary appointment---Completion period---Termination of service---Appeal against---Appellant had been terminated from service upon 14 days notice in terms of one of the clauses of his appointment letter---Said clause of appointment letter had authorized the termination of service of an employee on a 14 days notice---However, subsequent development, such as the completion of the probationary, period, the performance of functions of the appellant on various projects and his repatriation to his parent department after his deputation, would all go to show that appellant had acquired the status of a confirmed and permanent employee; and his services could not be terminated, otherwise than due process of law---With the passage of time and the happening of the said developments, said clause of the appointment letter had become an anachronism as the appellant had acquired a status of a confirmed and permanent employee---Neither a show-cause notice was issued to the appellant nor any disciplinary proceedings in any other manner were initiated against him---Simplistic approach of having recourse of said clause of appointment letter, was not only illegal, but was also mala fide---Impugned order was set aside and appellant was reinstated in service, however, authorities were not burdened with grant of back-benefits to the appellant, when the appellant had contributed substantially to prolonging the pendency of appeal and he could not be allowed premium of his own default.

Muhammad Hanif v. Chairman, Income Tax Appellate Tribunal, Karachi 1994 PLC (C.S.) 24 ref.

Agha Zafar Ahmed for Appellant.

Mukhtar Ahmed Mughal, Federal Counsel for Respondents.

Date of hearing: 18th February, 2009.

2010 P L C (C.S.) 78

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

BIBI SHAHJAHAN known as SHAHJAHAN SAIMA

Versus

AZAD GOVERNMENT through Chief Secretary and 3 others

Writ Petition No.189 of 2008, decided on 18th June, 2009.

(a) Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991---

----Rr. 4 & 7---Appeal against adverse order---Disposal of---Conveying result of appeal to the appellant---Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 had made it obligatory for the Authority to decide an appeal of a civil servant whenever, an adverse order was challenged---After the disposal of the appeal by the Authority or the delegatee the result was to be conveyed to the appellant under Rule 7 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991---Civil servant, in circumstances had statutory right to have a decision on his/her appeal or representation as the case could be.

Rafiq Ahmed Khan v. Secretary to Government of Sindh, Food Department, Karachi and others 1987 PLC 171; Muhammad Uris Khaskheli v. Sindh Agriculture University and 2 others 2005 PLC (C.S.) 298; Muhammad Nawaz Khan v. Chief Engineer (Admn.) WAPDA, Lahore and 2 others 1995 PLC (C.S.) 603; Union of India v. C. Rama Swamy and others AIR 1997 SC 2055; Director of Technical Education and another v. Smt. K. Sitadevi AIR 1991 SC 308; Government of the Punjab v. Prof. Mrs. Jamida Malik 1999 SCMR 861; Ghulam Sarwar v. Chairman, C.T.T. Board (Chairman PTCL), Islamabad and another 1999 SCMR 1544 and Maulana Ghulam Din's case 1998 SCR 194 ref.

(b) Azad Jammu and Kashmir Financial Code---

----R. 67(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Correction of date of birth---No doubt it was provided in sub-rule (2) of Rule 67 of Azad Jammu and Kashmir Financial Code that declaration of age, made at the time of or for the purpose of entry into the government service would be deemed, absolutely conclusive; as no revision of such a declaration should be allowed to be made at a later stage for any purpose, whatsoever, however, it was nowhere provided in said Rules that the Government was deprived of from making the necessary correction when a genuine claim was brought before it---High Court had the jurisdiction to issue a direction to the public functionary compelling the same to perform a statutory duty.

Ch. Muhammad Din Kausar's case 2004 PLC (C.S.) 897; Mst. Zubaida Begum v. Azad Government of the State of Jammu and Kashmir 1998 PLC (C.S.) 292 and Azad Jammu and Kashmir Government and others v. Syed Shakir Shah and others 2002 PLC (C.S.) 821 ref.

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

----S. 44---Azad Jammu and Kashmir Service Tribunal Act, 1975, Preamble---Writ jurisdiction, exercise of-Scope-Powers conferred on the High Court through Azad Jammu and Kashmir Interim Constitution Act, 1974, could be exercised, notwithstanding the promulgation of Azad Jammu and Kashmir Service Tribunal Act, 1975---Such bar was attracted only when any matter which was triable by the Azad Jammu and Kashmir Service Tribunal, was brought before the High Court, otherwise, ouster of jurisdiction could not be pleaded.

Kh. Ahmed Din's case 1994 SCR 142 ref.

Raja Muhammad Hanif Khan for Petitioner.

Syed Tayyab Gillani for Respondents.

2010 P L C (C.S.) 109

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

JAHANZEB KHIZER and others

Versus

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

Writ Petitions Nos.221 and 253 of 2009, decided on 20th August, 2009.

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

----S. 44---Writ petition---Civil service---Appointments as Conservator in Forest Department---Petitioners who competed for appointment as Assistant Conservator Forest (B-17) and Range Officer (B-16), after qualifying the written test, were required to qualify 6 Km. mandatory race within 40 minutes, but they completed said race respectively in 45.7, 47.45 & 44.55 minutes and Public Service Commission refused to call them for interview---Petitioners had claimed that the time consumed by them beyond 40 minutes was liable to be condoned in view of the spirit of the syllabus and the circumstances of the case because the word about' having been used before the word6 Km.', it could not be said that the candidates were bound to complete exact 6 Km. within 40 minutes---Time spent by the petitioners being more than prescribed period of 40 minutes, could not be condoned because it would have an effect of amending the syllabus---As the petitioners had completed the race taking much more time than prescribed period of 40 minutes, even by taking a liberal view, the shortfall was not condonable---Petitioners could not be declared successful in circumstances---Even otherwise, the deletion of the race from syllabus would not serve any purpose because if a favourable order was passed by the Prime Minister, that would operate from a future date and the petitioners could not be benefited, retrospectively.

Al-Nawazash Commercial Corporation, Karachi v. Messrs Commerce Bank Ltd., Karachi PLD 1977 Kar. 369 ref.

(b) Words and phrases---

----'About'--Scope and connotation, explained.?

Al-Nawazash Commercial Corporation, Karachi v. Messrs Commerce Bank Ltd., Karachi PLD 1977 Kar. 369 and Messrs Abdullah Agency? Karachi v. Government of Pakistan and another PLD 1971 Kar. 479 ref.

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

----S. 44---Writ petition---Aggrieved person---To become an aggrieved person, it was not necessary that one should have a right in stricto sensu; it was sufficient, if a petitioner had a tangible interest.

?

M. Tabassum Aftab Alvi and Kh. Attaullah Chak for Petitioners (in Writ Petition No.221 of 2009).

Ch. Muhammad Ibrahim Zia and Abdul Hameed Khan Shahid for Respondents (in Writ Petition No.221 of 2009).

Ch. Muhammad Ibrahim Zia for Petitioners (in Writ Petition No.253 of 2009).

M. Tabassum Aftab Alvi and Kh. Attaullah Chak for Respondents (in Writ Petition No.253 of 2009).

2010 P L C (C.S.) 145

[High Court (AJ&K)]

Before Rafiullah Sultani, J

Ch. MUHAMMAD RASHEED

Versus

CONTROLLING AUTHORITY AZAD JAMMU AND KASHMIR BOARD OF EDUCATION, MIRPUR and 3 others

Writ Petition No.160 of 2006, decided on 10th October, 2009.

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

----S. 44---Avid Jammu and Kashmir High Court Procedure Rules, R.32(2)---Writ petition---Laches---Non-appending of impugned order with petition---Effect---Civil service---Removal from service---Petitioner who was serving as Supervisor in Board of Education was ousted from service on the basis of charge of leakage of question papers---Appeal filed by the petitioner against order of ousting from service had been dismissed by the Service Tribunal---Validity---Impugned order was not traceable from the file and copy of said order had not been appended along with writ petition---Under R.32(2) of Azad Jammu and Kashmir High Court Procedure Rules, it was mandatory for the petitioner to append copy of impugned order along with writ petition---Notification which sought to be struck down by the petitioner, was also not available in prayer clause of the petition---Writ petition challenging the validity of order, was filed after lapse of 7 years and Notification was challenged after lapse of 8 months---No satisfactory explanation had been offered by the petitioner for such delay---Doctrine of laches was fully applicable in the petition---Contention of the petitioner that impugned orders were passed against him without providing him opportunity of being heard, was not supported by the record of the case---Record showed that petitioner was fully aware about the inquiry and he joined the inquiry conducted by the Authority before his dismissal from service---Impugned order was passed against the petitioner by competent authority in accordance with relevant chapter of the calendar of the Authority---Contention of the petitioner that he having been acquitted from criminal case against him, departmental inquiry could not be conducted against, was not tenable in the eye of law and had no effect on disciplinary proceedings---Petitioner could not say that no regular inquiry was conducted by the Authority to probe into the matter---Acquittal order of the petitioner from criminal case would not, per se, absolve departmental liability of civil servant as both departmental and criminal proceedings were entirely different and not inter-linked; one was related to criminal liability and the other to discipline of service---Petition was dismissed, in circumstances.

?

2005 CLC 1816; 2007 PLC (C.S.) 1303; 2008 PLC (C.S.) 975; 2000 SCR 179; Mahmood-ur-Rehman v. Atta Ullah Atta and 3 others PLD 1998 SC (AJ&K) 1; Azad Government of the State of J&K and others v'. Haji Samundar Khan and others, Azad Government of the State of J&K and others v. Ch. Muhammad Din and Azad Government of the State of J&K and others v. Gulzaman and others 1995 MLD 1350; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192 and Government of N.-W.F.P through Secretary Finance, Excise and Taxation Department, Peshawar and 2 others 2003 SCMR 338 ref.

Kamran Tariq for Petitioner.

Sardar Muhammad Azam for non-Petitioners.

2010 P L C (C.S.) 154

[High Court (AJ&K)]

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

BOSTAN CHAUDHRY

Versus

AUDIT AND ACCOUNTS DEPARTMENT through Accountant-General and 6 others

Writ Petition No.135 of 2005, decided on 8th May, 2009.

Civil service---

----Pension---Contractual appointment---Right of pension was creation of the statute and in absence of statutory backing, same could not be extended to the contractual appointment---In case of contractual appointment, it could be claimed only when it was one of the conditions of the contract.

Petitioner in Person.

Sardar Abdul Sami Khan for Respondents.

2010 P L C (C.S.) 209

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

TAHIRA QURESHI

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 8 others

Writ Petition No.370 of 2008, decided on 28th October, 2009.

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

----S. 44---Writ petition---Civil service---Appointment---District Education, Officer issued an advertisement for appointment of Primary Teachers---Three posts were for Union Council "N" and two were for Union Council "B"---Petitioner who competed against the posts/quota of Union Council N', after test and interview was placed at serial No.3 of the merit list---Petitioner was to be appointed against the vacant post of Union Council but the department filled in said third post through transfer by transferring respondent . and appointed the petitioner in school in Union CouncilB'---Appointment of the petitioner in Union Council `B' was vacated vide judgment on the ground that she could not be appointed in another Union Council---High Court had already vacated the appointment of the petitioner on the ground that she had been appointed in another Union Council---Department had filled in the 3rd post through transfer which was advertised for Union Council "N"---Such action of the department was totally illegal and mala fide---If the department wanted to accommodate some one else it could do so after appointment of the petitioner therein---Where appointment was set aside on technical grounds, the merit position obtained by the candidate would still remain intact and she should have been appointed on availability of the post---Authority in such like cases had jurisdiction to undo the wrong---Party should not be made to suffer for action or inaction of the authority who was obliged to follow the law and responsible for taking an appropriate action---Action of the department was not only arbitrary and against the law, but also militated against the good governance---Petitioner had suffered for the failure of the authorities to perform their duty in accordance with law and had deprived the petitioner from her lawful adjustment in her native Union Council---Petition was accepted with costs and it was ordered that the petitioner should be appointed on the third post of Union Council "N" as was advertised.

Mst. Naziran Bibi v. Director-General Health and 2 others 2001 PLC (C.S.) 400; Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298; Sajjad Ahmed Javed Bhatti v. Secretary Establishment Division Islamabad and 11 others 1996 PLC (C.S.) 652 and PLD 1984 SC (AJK) 150 ref.

Asghar Ali Malik for Petitioner.

Sahibzada Mehmood Ahmed, Addl. A.-G., Sardar K.D. Khan and Syed Tayyab Gillani for Respondents.

2010 P L C (C.S.) 288

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

ABDUL HAMID

Versus

DISTRICT EDUCATION OFFICER (ELEMENTARY), BAGH and 4 others

Writ Petition No.214 of 2007, decided on 19th May, 2008.

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

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Appointment---Petitioner had challenged appointment of respondent on the ground that he being matric, could not be appointed as Naib Qasid as minimum qualification for such appointment as per rules and advertisement was only primary---Claim of the petitioner was that as he was serving on ad hoc basis, was entitled to be appointed/adjusted on said post---Validity---Under relevant rules, though minimum qualification for appointment of peon/Naib Qasid was Primary, but it could not be laid down as a rule that a person possessing higher qualification, if aspired to be appointed on a lower grade, could not be appointed---Such contention of counsel for the petitioner was devoid of any force---Respondent who was matric, had secured merit position in the test and interview---Mere allegation that some favour had been shown to respondent, without any support from the record, would not make his appointment illegal---Allegation regarding mala fide, malice or political influence, without there being any cogent evidence, could not be accepted nor finding of fact returned by the Selection Committee could be upset in writ jurisdiction, unless it was shown that the Selection Committee had travelled beyond the relevant Rules or had committed any illegality---Fitness determined by the Departmental Selection Committee, could not be substituted in exercise of writ jurisdiction---Contention of counsel for the petitioner that it was enjoined upon the Selection Committee to reject the application of the respondent, had no substance---Selection Committee had rightly allowed respondents to participate in the test and interview because certificate regarding being State Subject and Domicile could be produced at a later stage.

Rashida Awan v. D.E.O. 2007 SCR 406; Munir Hussain Shah v. Secretary, Forests Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad and another 1993 PLC (C.S.) 1153; N.-W.F.P. through Chief Secretary and another v. Dr. Irfan Mir and 2 others 1995 SCMR 1690; Muhammad Fayaz and 5 others v. Shah Nawaz ad 32 others 1999 PLC (C.S.) 1493; Sakhawat Ali v. Deputy Commissioner/Chairman, Recruitment Committee, Narowal and others 1998 PLC (C.S). 19 and Mst. Nazmeen's case 2007 YLR 1776 ref.

Maqsood Ahmed Sulehria for Petitioner.

Ashfaque Hussain Kiani for Respondents Nos.1 to.4.

Raja Muhammad Iqbal for Respondent No.5.

2010 P L C (C.S.) 336

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

NADEEM AHMED and another

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary add 6 others

Writ Petition No.12 of 2008, decided on 12th September, 2008.

(a) Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994---

----R.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Appointment---Both, petitioner and private respondents, applied for appointment as Assistant Commissioner (B-17); they were allowed provisionally to participate in the written test---Petitioner, despite having qualified the written test securing 444 marks, was not called for interview, whereas the private respondents, after the test and interview, were recommended by the Public Service Commission and vide hand-out they were appointed accordingly---Petitioner, who was not called for interview despite qualifying written test, had filed writ petition---Public Service Commission, in its written statement, had alleged that the petitioner was not considered for interview because his application was incomplete as neither it was signed nor the copy of the State-Subject Certificate was appended therewith---Validity---Non-signing the application was mere an irregularity for which a candidate could not be sorted out from the competition---Such irregularity could be cured by directing the petitioner to sign the application---Similarly non-appending the copy of State-Subject Certificate was also an irregularity which could be cured by directing the petitioner to furnish said copy---Said defects could be removed by hearing the petitioner, but the petitioner, who had secured highest marks in the written test, had been. deprived in violation of R.4 of Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 and had been condemned unheard and in circumstances had not only been discriminated, but had been deprived of his fundamental rights to compete for appointment against the post---For genuine reason a document which was in existence at the time of advertisement, but could not be filed, could be accepted at later stage---Private respondents who, after their appointments, had been deputed for departmental training, could not be punished for the fault of Public Service Commission, however the petitioner could also not be punished---Only relief to which the petitioner was entitled was that rejection of his application was declared illegal and without lawful authority---Application of petitioner would be deemed pending and he would be allowed to place copy of State-Subject Certificate on the file, sign his application, thereafter, Public Service Commission would interview him and in case he would qualify the same, he would be recommended against the post of Assistant Commissioner.

Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056; Dr. Muhammad Nazir Khan v. Government of the Punjab through Secretary, Health Civil Secretariat, Lahore and 2 others 1997 CLC 354; Shakeel Shahid v. Muhammad Younis Zahid and others PLD 2005 Lah. 357; Pervaiz Akhtar v. Government of Pakistan through Secretary Finance and Economic Affairs Islamabad and 4 others PLJ 2005 Tribunal Cases 302; Abdul Shakoor and others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2004 PLC (C.S.) 208 Muhammad Waris Shad v. Federal P.S.C. PLD 1984 Lah. 491; Ghulam Mohi-ud-Din and another v. Noor Dad and 4 others PLD 1988 SC (AJ&K) 42; Dr. Faroukh J. Setha v. Punjab Public Service Commissioner and another 1994 CLC 447; Dr. Muhammad Sarwar Ahmad v. The University of Azad Jammu and Kashmir and 6 others 1998 SCR 350; Muhammad Farooq Khan v. Muhammad Shakeel Khan and others 2001 PLC (C.S.) 153; Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714; Sardar Zaheer Ahmed Khan and another v. Azad Government and 4 others 2005, SCR 89; Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298; Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3; Azad Government and 6 others v. Faqir Hussain Shah and another 2004 SCR 23; State v. Naseer Ahmed and another PLD 2004 SC (AJ&K) 40; Muhammad Saleem v. Azad Government and 4 others 2006 SCR 88; Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others 2006 SCR 312; Inhabitants of Singola through Muhammad Hanif Khan and another v. Azad Government and others 2001 YLR 3190; Farkhanda Ikram and another v. Dr. Ejaz Ahmad and others Civil Appeal No.73 of 1995; Amanat Khan v. Motor Registration Authority, Chakwal and 2 others 1999 CLC 1597; Umar Hayat v. Azad Government and others 1999 PLC (C.S.) 93; Muhammad Fayyaz and 5 others v. Shah Nawaz Khan and 32 others 1999 PLC (C.S.) 1493; Habibur Rehman v. Government of Pakistan and others 1979 SCMR 121 and Dr. Zia Sulemdn Faroogi v. Punjab P.S.C. PLD 1994 Lah. 55 ref.

(b) Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994---

----R. 15---Adopting and framing Policy for selection of candidate---Contention that Public Service Commission was a statutory body and was entitled under R.15 of Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 to adopt and frame any Policy for selection of candidate and same was immune from challenge, was correct, but Policy framed under said Rule 15 could not be framed in the manner that the object of the other provisions of the Rules was frustrated---Where Public Service Commission had properly taken proceedings for selection, a court could not substitute its wisdom nor it was function of High Court to hear appeals over the decision of the Public Service Commission however, when the proceedings had been taken in violation of the Statutory Rules and adversely affected the fair selection, High Court was not precluded from scrutinizing the action of the Public Service Commission---Rules were framed for carrying out the purpose of the Act; their strict compliance was mandatory, but the Rules of Procedure could not be applied in the manner that an innocent citizen was deprived of his vested or lawful right.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Nishat Mills Ltd. v. Superintendent of Central Excise Circle-II and 3 others PLD 1989 SC 222; Chairman Selection Committee/Principal King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore 1994 Lah. 3 and Muhammad Ishaque Khan v. Khurshid Aziz and 3 others 1998 PLC (C.S.) 358 ref.

(c) Malts fides---

----Plea of mala fides was to be proved through cogent evidence---Bare statement could not be believed.

Raja Muhammad Hanif Khan and Mushtaq Ahmed Janjuha for Petitioners.

Raja Gull Majeed Khan, A.-G., Raja Ibrar Hussain and Syed Nazeer Hussain Shah Kazmi for Respondents.

2010 P L C (C.S.) 416

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

Dr. SHEHLA WAQAR and another

Versus

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

Writ Petitions Nos.597 and 692 of 2009, decided on 11th November, 2009.

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

----S. 44---Azad Government of State of Jammu and Kashmir Rules of Business, 1985, Rr.8(g), 9(4) & 13(3)---Writ petition---Civil service---Implementation of order of the Prime Minister---Secretary Finance, sent a summary for approval to the Chief Executive, wherein it was suggested that two posts of BPS-20 i.e. Director General, Budget and Director General, Monitoring and Implementation, in the Finance Department could be created---File was routed through the Chief Secretary---Prime Minister approved the proposal and sent the file back to the Chief Secretary for further process---Petitioners in their writ petitions had sought direction to the Chief Secretary for implementation of said order of Prime Minister---Petitioners had alleged that Chief Secretary had not implemented the order of the Prime Minister, which was his statutory duty and that procrastination and non-implementation of the order of the Prime Minister was subversion of the Constitution and the Rules of Business---Rules of Business which had been framed under S.58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, their strict compliance was mandatory for smooth functioning of the government as well as governance---Order which was passed in violation of the Rules of Business, could not be implemented---Chief Secretary was responsible to go by the Rules of Business---Order sought to be implemented had not been given on a duly processed file in the light of the mandatory procedure visualized by the Rules of Business---Approval of the Prime Minister being void for having been issued in violation of the Rules of Business, High Court could not direct the Chief Secretary to notify a void order regarding the creation of the posts and approval of Rules---Order would be void ab initio, if it was passed by an authority, lacking jurisdiction or was made in complete disregard of mandatory provisions of law---Some additional reasons for dismissal of petitions were also available on the ground that petitioners were not aggrieved persons---Where an order passed by the Prime Minister/Minister was illegal or had been passed in total departure from Rules, then under R.9(4) of Azad Government of State of Jammu and Kashmir Rules of Business, 1985, it was the duty of the officer next below the officer, making the order to point out the departure/illegality etc.---Said Rules nowhere laid down that any officer could keep the file for a pretty long time.

Muhammad Rashid Khan v. Chairman MDA and 6 others 1997 SCR 5; Ejaz Ahmed Await and 5 others v. Syed Manzoor Ali and another 1999 PLC (C.S.) 1439; Azad Jammu and Kashmir Government through its Chief Secretary and others v. Messrs Spintex Limited 1998 PSC 868; Sardar Muhammad Arshad Khan's case 1998 PLC 217; Farooq Ahmed Khan and 3 Others v. Shoukat Jan Bauch and 2 others 1998 PLC (C.S.) 425; Kh. Nazir Ahmed Qadri v. Azad Government of the State of Jammu and Kashmir, 2003 PLC (C.S.) 460; PLD 1978 SC (AJ&K) 37; The Chairman District Screening Committee, Lahore- and others v. Sharif Ahmed Hashmi PLD 1976 SC 258; Muhammad Ayub Khuhro v. Pakistan through the Minister of Interior Government of Pakistan and 2 others PLD 1960 SC 237 and Ch. Sadiq Ali's case, PLD 1996 SC (AJ&K) 29 ref.

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.33(3)---Writ petition---Scope---Writ petitions were regulated by Chapter VIII of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 and sub-rule (3) of R.33 of the Rules, postulated that a Bench, hearing a petition for admission, could before admitting the same direct the issuance of a notice to the other party affected to show-cause as to why the petition could not be admitted; and could fix date on which the notice was returnable---Pre-admission notice, in the light of the said Rules were sent to the heads of the Departments/ Government for the purpose that if some sufficient cause was shown, then the parties could not be dragged into un-necessary and frivolous litigation.

Mushtaq Ahmed Janjua for Petitioners.

Ch. Muhammad Lateef for Private Respondents.

Asghar Ali Malik for Official Respondents.

2010 P L C (C.S.) 439

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

Raja MUHAMMAD NASEEM KHAN

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 4 others

Writ Petition No.408 of 2007, decided on 19th May, 2008.

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

----Ss. 8 & 6(2)---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.10-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Writ jurisdiction---Scope---Civil Service---Notional promotion after retirement---Entitlement---Petitioner who had retired from Police Service after attaining the age of superannuation, had sought direction to authorities to consider his case for notional promotion to the post of S.S.P./A.-I. G. (B-19)---Case of the petitioner was that a working paper for promotion against two posts fell vacant and besides him names of four other Police Officers were included therein for consideration---Petitioner claimed that at relevant time he was the only candidate who fulfilled said requirement but was not considered and he stood retired---Two persons having been promoted on acting charge basis, on basis of said working paper, it was alleged by the petitioner, that he was discriminated---Authorities contended that the petitioner was not an aggrieved person and that grievance agitated through the petition fell in the ambit of terms and conditions of service, High Court had no jurisdiction to issue direction sought for by the petitioner and that proper forum for adjudication of the same was Service Tribunal as jurisdiction of High Court stood ousted under S.47 of Azad Jammu and Kashmir Interim Constitutional Act, 1974---Validity---Ouster of jurisdiction of High Court could be pressed only to the extent of those matters, which were in exclusive jurisdiction of the Service Tribunal---Service Tribunal had not been vested with power to issue writs of mandamus, quo warranto and prohibition---It could not be said in circumstances that said power of High Court conferred by Constitution had been taken away by the establishment of the Service Tribunal---As the petitioner had only sought a direction to the Authorities to consider ` his case in light of his accrued right before his retirement objection raised by the Authorities, with regard to jurisdiction of High Court, was repelled---Petitioner could be given only benefit of the higher grade after his retirement---Notional or presumptive promotion could be given to a civil servant without disturbing the others---Authorities were directed to consider petitioner for promotion in B-19.

Mst. Zubbaida Begum v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 4 others 1998 PLC (C.S.) 292; Azad Jammu and Kashmir Government and others v. Syed Shakir Shah 2002 PLC (C.S.) 821 and Muhammad Aslam Khilji v. Azad Government of Jammu and Kashmir and another PLC 1991 (C.S.) 128 ref.

Sardar Shahid Hameed and Raja Raza Ali Khan for Petitioner.

Raja Gul Majeed Khan, A.-G. for Respondents.

2010 P L C (C.S.) 645

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD AMJAD

Versus

SECRETARY, EDUCATION, AJ&K MUZAFFARABAD and others

Writ Petitions Nos.47 of 2004, 349, 328, 359, 348 and 364 of 2003, decided on 3rd February, 2010.

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

----S. 44---Writ petition---Civil service---Appointment against posts which were temporary in nature---Termination of service---Appointments of the petitioners were made against the posts, which were temporary in nature and on contract basis vide notification---Services of the petitioners were against the project and said project was completed and after completion of the project, services of the petitioners were terminated---Validity---Services of the petitioners being on contract basis, same were to be governed under contract, and contract employment contained specific terms and conditions of service under the contract, which were different from the general terms and conditions of service of non-contract employees---Petitioners being contract employees, could not invoke writ jurisdiction of High Court under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 against the termination of their services in accordance with specific terms and conditions of services contained in the contract---Appointments of the petitioners were temporary in nature which did not create any legal right in favour of the petitioners to be brought their jobs on permanent basis---General terms and conditions of non-contract employees would not apply to contract employees---Islam ordained that a contract was to be followed as it was intended at the time of agreement between the parties; and when the contract had been acted upon, then either party could not claim contrary to what he had accepted by executing the said contract---Petitioners were not in position to escape from the specific terms and conditions of contract, which were agreed between the parties at the time of joining the service---Writ petition was dismissed.

Muhammad Yaqoob Khan Mughal for Petitioners (in Writ Petitions Nos.364, 328, 348 and 349 of 2003).

Ashfaque Hussain Kiani for Petitioner (in Writ Petition No.47 of 2004).

Sardar M.R. Khan for Petitioners (in Writ Petition No.359 of 2003).

Saibzada Mehmood Ahmed, A.A.-G. for Respondents (in Writ Petitions Nos.47 of 2004, 364 and 349 of 2003).

Syed Arshad Gillani for Respondents (in Writ Petitions Nos.328 and 359 of 2003).

Sardar Muhammad Riaz Khan for Respondents (in Writ Petition No.348 of 2003).

2010 P L C (C.S.) 1051

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

Syed MURTAZA AHMED BUKHARI

Versus

PUBLIC SERVICE COMMISSION, AJ&K through Chairman and 3 others

Writ Petition No.509 of 2008, decided on 11th March, 2009.

(a) Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994---

----R.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ Petition---Application for appointment---Rejection of application---Petitioner in response to an advertisement, applied to Azad Jammu and Kashmir Public Service Commission for appointment as Lecturer of Physics---Application of the petitioner was rejected on the ground that it was incomplete as domicile certificate was not attached with said application---Review petition filed by the petitioner before Chairman Public Service Commission was also dismissed and the petitioner had filed writ petition---Categoric stand of the petitioner was that he had, filed a complete application and that copy of the domicile certificate was also annexed therewith---Same stand was taken by him in his review petition, but Public Service Commission, without holding an inquiry and affording him an opportunity of hearing, rejected his application and his review petition---Validity---Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, were to be interpreted in beneficial manner in order to advance the cause of justice---Strict view could not be taken in all cases until public policy so demanded---Neither a regular inquiry had been conducted in the light of the allegation levelled by the petitioner nor he had been heard before disposing of his review petition---Public Service Commission, no doubt, was within its authority in rejecting the application under the relevant rules, but the exercise of power and interpretation of rules by the Public Service Commission, in view of referred case law, could not be approved by the High Court---Action taken by the Public Service Commission was declared to have been taken without lawful authority--Petitioner having qualified the test and interview, he would be appointed on the post of Lecturer of Physics.

Zain Yar Khan's case 1998 SCMR 2419=1998 PLC (C.S.)1484; Syed Mukadar Hussain Shah v. Board of Intermediate and Secondary Education Mirpur through its Chairman 1995 CLC 1594; Habib-ur-Rehman's case 1979 SCMR 121 and Dr. Zia Suleman Farooqi v. Punjab Public Service Commission PLD 1994 Lah.55 ref.

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

----S.24-A---Duty and obligation of quasi-judicial or Administrative Authority---It was obligatory that a quasi-judicial or an Administrative Authority, which would decide a case brought before it, had to give reasons for its cancellation---Where no reasons were given, then the powers exercised by such Authority, could not be saved on the ground that the action was taken strictly under the provisions of relevant rules.

Mushtaq Ahmed Janjua for Petitioner.

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

2010 P L C (C.S.) 997

[Islamabad High Court]

Before Sardar Muhammad Aslam, C J

Hafiz TARIQ SAEED, EX-DE PTCL, GUJRANWALA

Versus

FEDERATION through Secretary, (IT & Telecom Division), Ministry of Information Technology, Islamabad and another

Writ Petition No.81 of 2008, decided on 19th June, 2008.

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

----Ss. 9, 10, 11 & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Imposition of penalty of removal from service---Reinstatement order---Implementation of order of reinstatement---Petitioner was charge-sheeted for improper supervision of certain maintenance works executed by his attached officer---Inquiry officer proposed imposition of minor penalty on petitioner, but the designated Authority inflicted the penalty of removal from service---On filing appeal by the petitioner against imposition of said major penalty of removal from service, Appellate Authority set aside petitioner's removal from service and directed his reinstatement---Petitioner having not been reinstated, petitioner through his constitutional petition had sought implementation of order of Appellate Authority, whereby petitioner was reinstated---Validity---If the Authority was dissatisfied with the appellate order whereby petitioner was reinstated, a right was available to it to seek its remedy provided under Removal from Service (Special Powers) Ordinance, 2000---By not invoking the remedy available under the law, the judgment of the Appellate Authority, had been accepted---Authority, in circumstances, had no escape in law except to give effect to the order of Appellate Authority by its implementation---Non-compliance of the order was not only an insubordination, but was in sheer violation to the principle of hierarchy, which not only uprooted the principle of rule of law, justice and acceptability but also caused sheer frustration to officials, deprived by such acts---Inaction of designated authority could not be seen with favour which was directed to comply with the order of the Authority within specified period.

Muhammad Alam for Petitioner.

Haji Akram Malik for Respondents.

2010 P L C (C.S.) 1003

[Islamabad High Court]

Before Muhammad Munir Peracha, J

ASSOCIATED PRESS OF PAKISTAN CORPORATION through Managing Director, Islamabad

Versus

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

Writ Petition No.2233 of 2004, decided on 11th May, 2009.

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss.12-A & 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Powers of the Tribunal---Respondent who, on his retirement, was paid Provident Fund calculated on the basis of his basic salary with the averment that he was entitled to get the provident fund calculated on the basis of his wages, approached the Tribunal constituted under S.12-A of the Newspaper Employees (Conditions of Service) Act, 1973---Despite objection that Tribunal had no jurisdiction in the matter, Tribunal concluded that it had the jurisdiction and decided the matter---Only question to be determined was whether the Tribunal had the power to pass impugned order---Tribunal had a very limited jurisdiction; it could exercise jurisdiction only with regard to the implementation of the decision of the Wage Board---If the claim of newspaper employee was based upon the provisions of S.4, 5, 6, 7 or 8 of the Newspaper Employees (Conditions of Service) Act, 1973 or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or any agreement or settlement or an award, other than an award of the Wage Board or upon rights guaranteed under any other law, the employee could invoke the jurisdiction of the Labour Court or the National Industrial Relations Commission---Jurisdiction of the Tribunal could only be invoked, if claim was based on the decision of the Wage Board---In the present case, the claim of respondent was based on the provision of S.5 of the Newspaper Employees (Conditions of Service) Act, 1973---Implementation Tribunal constituted under S.12-A of the Newspaper Employees (Conditions of Service) Act, 1973, had no jurisdiction in the matter---Respondent having retired was not covered by the definition of `worker' within the meaning of S.25-A of Industrial Relations Ordinance; he had a remedy of filing a civil suit---Order passed by the Implementation Tribunal was declared to have been passed without lawful authority having no legal effect.?

Shahid Mehmood Khokhar for Petitioner.

Respondent No.3 (in person).

Date of hearing: 30h April, 2009.

2010 P L C (C.S.) 1013

[Islamabad High Court]

Before Sardar Muhammad Aslam, C J

MUHAMMAD FURQAN

Versus

SPEAKER NATIONAL ASSEMBLY and 4 others

Writ Petition No.411 of 2003, decided on 29th July, 2008.

Civil Servants (Revised) Leave Rules, 1980---

----Rr. 5(a) & 9---Constitution Pakistan (1973), Art.199---Constitutional petition---Two salaries, drawing of---Recovery of one salary---Good governance---Petitioner availed long leave with full pay and joined an organization abroad during that period, petitioner had been drawing two salaries one from his department in Pakistan and other from abroad---Later on authorities declared long leave availed by petitioner as Extraordinary Leave without pay and on joining duty by petitioner, started deducting the amount already received by him during his long leave---Validity---Two colleagues of the petitioner similarly placed and circumstanced, joined the same organization abroad and withdrew their salaries from Pakistan also---Both of the colleagues, when confronted had deposited the amount received by them, petitioner was the only exception---Recovery was also being made from the salary of the petitioner in instalments per month---Any exercise in constitutional jurisdiction, could not be made in aid of injustice---Excess amount received by petitioner was not a bounty---Exchequer could not be deprived of its legitimate right of recovery, being guardian of public revenue collected through direct/indirect taxation---Interest of exchequer should be jealously safeguarded to facilitate running of the economy---Good governance required recovery of amount paid to any of the civil servants in excess of his dues---When there was no work, there was no pay and that recovery had rightly been effected from the petitioner---Petition was dismissed in circumstances.

The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Mst. Sajida Javed v. Directorate of Secondary Education, Lahore Division and others 2007 PLC (C.S.)364 ref.

Syed Niaz Hussain Shah Bukhari, Technician (Process) v. Oil and Gas Development Corporation Limited through Chairman, OGDC Head Office, Islamabad, 2003 SCMR 228 fol.

Afnan Karim Kundi for Petitioner.

Iftikhar Ahmad Bhatti, Federal Counsel.

2010 P L C (C.S.) 1018

[Islamabad High Court]

Before Muhammad Munir Peracha, J

Sheikh ANSAR AHMED

Versus

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

Writ Petition No.1128 of 2008, decided on 18th September, 2008.

Constitution of Pakistan (1973)---

----Arts.199 & 212---Constitutional petition---Maintainability---Bar of jurisdiction---Scope---Discrimination---Plea raised by petitioner was that Art.212 of the Constitution did not impose absolute bar on the jurisdiction of High Court to issue writ, if order assailed before it was passed without lawful authority---Petitioner also raised the plea that discriminatory treatment was made with him at the time of considering him for promotion---Validity---Merely on the ground that bar of jurisdiction was not mentioned in Art.199 of the Constitution itself, it could not be assumed that bar of jurisdiction under Art.212 of the Constitution was not absolute---All provisions and Articles of the Constitution had to be given effect---It might be true that Service Tribunal was constituted under an ordinary law, viz. Service Tribunals Act, 1973, but once the Tribunal had been constituted, the bar of jurisdiction was provided in the Constitution and it had not been imposed by any ordinary law---If civil servant had challenged service rules and also pleaded ground of discrimination the Service Tribunal had the jurisdiction to examine the rules as well as ground of discrimination---Remedy of petitioner was to approach Service Tribunal and jurisdiction of High Court was barred under Art.212 of the Constitution---Petition was dismissed in circumstances.

Mujeeb-ur-Rehman for Petitioner.

2010 P L C (C.S.) 1244

[Islamabad High Court]

Before M. Bilal Khan, C.J. and Muhammad Ramzan Chaudhry, J

Miss SANIA SAFDAR KHAN and another

Versus

AMEER ABBAS and 3 others

Intra-Court Appeal No.37 of 2009 in Writ Petition No.41 of 2009, decided on 27th April, 2009.

Civil Service---

----Allotment of residential quarter to civil servant---Quarter in question was allotted to the predecessor-in-interest of the appellants who passed away in June, 1995, whereupon the appellants who were his legal heirs had been occupying said quarter for the last fourteen years---Appellants who were clinging on to the residential quarter for the last almost fourteen years could not assert that concerned department had no authority to allot the quarter in question to someone else---Competent Authority, in circumstances, had rightly allotted plot in question to another civil servant---Equity and fair play demanded that impugned order of Competent Authority should be sustained---Appellants/occupants were directed to hand over possession of the quarter to the Estate Officer on or before the specified date which will be given to the new allottee.

Mushtaq Hussain for Appellants.

Raja M. Aleem Khan Abbasi, Deputy Attorney-General of Pakistan.

Syed Muhammad Tayyab for Respondent No.1.

Qaiser Mahmood, Joint Estate Officer, Estate Office, Islamabad.

2010 P L C (C.S.) 76

[Karachi High Court]

Before Mushir Alam and Muhammad Karim Khan Agha, JJ

Syed MATLOOB AHMED

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No.D-767 of 2009, decided on 7th July, 2009.

Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer---Petitioner, who was employee in Workers' Welfare Board, constituted under S.3 of Workers' Welfare Fund Ordinance, 1971 was transferred through impugned notification---Contention of the petitioner was that Welfare Board was an autonomous body and appointment therein was regulated by its governing body---Petitioner had placed on record the decision of the Governing Body whereby it was advised that no recruitment, appointment, posting/transfer in any cadre/grade be made without prior approval of the Workers' Welfare Fund Secretary---Secretary of the Department had conceded that the instructions were circulated by Workers' Welfare Board to all authorities to refrain from creating any new post or recruitment and appointment, even against already created vacant posts---It seemed that such instructions were not given any heed---Workers' Welfare Fund was a Federal subject and its appointment was regulated and managed by its Governing Board and the Provincial Authorities had no say in the matter of appointment and/or transfer of its employees---Such being the legal position, impugned notification was struck down and petition was allowed.

Ikram Siddiqui and Zaheer-ul-Hassan Minhas for Petitioner.

Safdar Janjua for Respondent No.4.

Shafi Muhammad Memon State Counsel.

2010 P L C (C.S.) 88

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

Dr. ABDUL AZIZ

Versus

FEDFRATION OF PAKISTAN through Secretary, Ministry of Petroleum,. Islamabad and 2 others

Constitutional Petition No.628 of 2006, decided on 15th July 2009:

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

----S. 20---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order with regard to pay pensionary benefits---Implementation of order---Service Tribunal by its order, directed respondent to recalculate pensionary benefits of the petitioner in accordance with full permissible length of his service and make payment to him accordingly---Employer Corporation challenged said judgment of the Service Tribunal by filing petition before Supreme Court, which was dismissed for non-­prosecution---Contention of counsel for the petitioner was that in view of dismissal of the petition by the Supreme Court, petitioner was entitled to the judgment of Service Tribunal---Petitioner in his constitutional petition had sought implementation of order of the Service Tribunal---Petitioner was a civil servant and respondents were State Controlled Corporation---Even if status of respondents could have changed through process of privatization, it was nowhere pointed out that the process of their privatization, liability in respect of petitioner incurred was not taken up by the respondents---Agreement of privatization had shown that not only the liabilities of all the employees of the respondents were taken over by the new entity, but it was even informed of the liabilities and litigations involving the respondents, which was to be discharged by new entity created through the process of privatization---On the dismissal of the civil petition for non-prosecution by the Supreme Court, judgment of the Service Tribunal would not merge into the order of Supreme Court, but judgment of Service Tribunal would remain in field intact and fully operational for being implemented---Judgment of Service Tribunal, was liable to be given effect and implemented, in circumstances---Petitioner having made out a case for the implementation of judgment of Service Tribunal, petition was allowed with direction to the respondents to implement said judgment in its letter and spirit within specified period.

Muhammad Mobinul Islam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agriculture Development Bank of Pakistan PLD 2007 SC 681; Muhammad Siddique v. State Life Insurance Corporation of Pakistan 2005 PLC (C.S.) 946; Water and Power Development Authority v. Allandad Moshori 2008 PLC (C.S.) .260; Tariq Mahmood v. Federation of Pakistan 2008 PLC (C.S.) 141; Joyder Agarwala v. Baitul Mal Karkhana Limited PLD 1965 SC 37 and Habibullah v. Wali Muhammad 1986 CLC 1227 ref.

Syed Mazharul Haq and Akhtar Hussain for Petitioner.

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

Asad Abbas Zaidi for Respondent No.2.

Asim Iqbal for Respondent No.3.

Date of hearing: 28th May, 2009.

2010 P L C (C.S.) 97

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

MUJAHID HUSSAIN MEMON and another

Versus

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

Constitutional Petition No.D-743 of 2007, decided on 11th March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service--Termination from service---Judgment in rem---Applicability---Principle of laches---Petitioners did not assail judgment passed by Service Tribunal but wanted to be reinstated on the basis of judgment passed by Supreme Court in some other case---Validity---Question relating the termination of service of petitioner whether same was legal or illegal, was a mixed question of fact and law to be determined by competent forum which was determined by Service Tribunal and order of Service Tribunal had attained finality---Neither judgment passed by Service Tribunal was called in question by petitioners nor they had challenged their termination order before Supreme Court---Judgment of Supreme Court relied upon by petitioners might not have the effect of setting aside the order of Service Tribunal automatically without challenging the same in accordance with prescribed procedure---Judgment relied upon by petitioners was passed by Supreme Court on 17-3-2004, whereas constitutional petition before High Court was filed by petitioners on 28-9-2006 without explaining laches on their part---Petition was dismissed in circumstances.

Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD 2001 SC 980; Tarachand v. Karachi Water and Sewerage Board 2005 PLC (C.S.) 368; Hameed Akhtar Niazi's case 1996 SCMR 1185 and Chairman, Pakistan Railways v. Muhammad Latif 1984 SCMR 286 distinguished.

Zameer Hussain Ghumro for Petitioners.

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

Shahid Anwar Bajwa for Respondents Nos.2 and 3.

Date of hearing: 11th March, 2009.

2010 P L C (C.S.) 107

[Karachi High Court]

Before Mrs. Qaiser Iqbal and Arshad Siraj Memon, JJ

ZAKRIYA

Versus

PROVINCE OF SINDH through Chief Secretary to Government of Sindh/Home Department and 4 others

Constitutional Petition No. D-292 of 2009, decided on 12th March, 2009.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner was awarded punishment of `reduction in rank', however, on representation before the competent authority by the petitioner, penalty awarded to him was set aside, but that fact had not been approved by the defendant---Petitioner, in circumstances, was directed to be allowed to attend the next training course---Constitutional petition was disposed of accordingly.

Naveed Ali Khokhar for Petitioner along with Petitioner present in person.

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

Muhammad Salam D.S.P. on behalf of Respondent No.4.

2010 PLC (C.S.) 118

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

Syed SHUJAAT ALI

Versus

PAKISTAN STEEL MILLS CORPORATION through Chairman and another

Constitutional Petition No. D-340 of 2007, decided on 13th July, 2009.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Imposition of penalty of reversion---Setting aside order of reversion and restoration to original post---Entitlement to back­-benefits---Petitioner who was employed as Deputy Manager, was proceeded against under Removal from Service (Special Powers) Sindh Ordinance, 2000 and he was inflicted penalty of reversion to one lower grade post that of Assistant Manager---Service Tribunal set aside order of reversion and restored the petitioner to the post of Deputy Manager with all back-benefits at the post of Deputy Manager---Petitioner, despite having been restored to original post of Deputy Manager with all back-benefits, had not been paid back-benefits---Validity---Petitioner having been restored to the post of Deputy Manager by dint of judgment of Service Tribunal with all back-benefits, there was no reason as to why the petitioner should remain deprived of such benefits, when authorities through their own conduct had acquiesced in accepting the judgment of Service Tribunal which had to be given its full effect.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

Ansari Abdul Latif for Petitioner.

Khalid Imran Siddiqui for Respondents Nos.1 and 2.

Ashiq Raza, D.A.-G.

2010 P L C (C.S.) 137

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

GUL MUHAMMAD HAJANO

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 3 others

C.P. No.D-284 of 2006, decided on 14th July, 2009.

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

---Ss. 3, 9, 20 & 26---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Claim for benefit of premature increment on account of move-over---Petitioner had prayed for issuance of writ of mandamus directing the respondents to allow him benefit of premature increment on account of his move-over from BS-19 to BS-20 and further prayed that he could be granted additional pension and gratuity on the basis of addition of premature increment---Validity---Grant or refusal of the premature increment or advance increment, being regulated under the relevant rules framed in pursuance of S.26 of Sindh Civil Servants Act, 1973, was one of the terms and conditions of service---Entitlement of the civil servant to pension, though was the fundamental right of such civil servant, but the calculation of such pension being regulated under the relevant Rules, would fall within the purview of terms and conditions to show that the relevant claim made in the petition did not fall within the purview of terms and conditions of the service---Petition was dismissed for want of jurisdiction under Art.212 of the Constitution.

Government of Punjab and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696; Syed Muhammad Rafique Shah v. Government of Punjab 2008 PLC (C.S.) 880; Government of N.-W.F.P. through Chief Secretary and 2 others v. Rizwanullah, Registrar, Labour Appellate Tribunal and others 1999 SCMR 2475; Province of Punjab v. Mirza Ahmad Khan 1994 SCMR 1263; Province of Sindh v. Malik Ghulam Hussain 2002 SCMR 911; Maqsood Ali Khan v. National Bank of Pakistan 2003 PLC (C.S.) 226 and Mst. Samra Ashfaq v. Government of N.-W.F.P. 1996 SCMR 273 ref.

(b) Jurisdiction---

----Where the jurisdiction of the Court was disputed, it had to be decided first before proceeding an inch further in the matter---If the Court would come to conclusion that it had no jurisdiction, in such eventuality no findings on merits were to be recorded for the obvious reason that the case of litigant should not be prejudiced before a competent forum where he could approach for redressal of his grievances.

Petitioner in Person.

Mrs. Haleema Khan, A.A.-G. for Respondents Nos.1 to 3.

Date of hearing: 15th May, 2009.

2010 P L C (C.S.) 151

[Karachi High Court]

Before Sarmad Jalal Osmany, C.J. and Sajjad Ali Shah, J

NAYAR AHMED MAZHARI

Versus

BOARD OF INTERMEDIATE EDUCATION through Chief Executive and 2 others

Constitutional Petition No.D-1880 of 2007, heard on 7th August, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Removal from service---Reinstatement---Claim for grant of back benefits---Petitioner had prayed for the grant of back-benefits w.e.f. initial appointment till retirement including the period he remained dismissed from service on the ground that such benefits were granted to one co-worker placed in similar position---Validity---Petitioner was awarded major penalty of removal from service, whereas major penalty of compulsory retirement was awarded to said co-worker---Petitioner, however was reinstated in service, whereas co-worker had attained age of superannuation during his suspension---Authorities, while reinstating the petitioner imposed a condition as to non-payment of arrears for the period during which he remained out of service---Once competent Authority concluded upon its satisfaction that the order of dismissal from service was not in accordance with law or without lawful authority; and the employee was not at fault in any manner, then the employee could not be deprived of his salary and other benefits during the period for which he had been wrongfully kept out of service by the department by not deciding the appeal, provided he was able to establish that during such period he was not engaged gainfully---High Court declined to decide as to whether the petitioner remained unemployed for the entire period of 15 years during which he remained out of service as it required leading of evidence---Petitioner could be provided treatment at par with said co-worker who had been granted certain benefits by the authorities, which were denied to the petitioner as there appeared to be no difference between the case of the petitioner and his co-worker---Petitioner, in circumstances, could not be denied equal treatment with said co-worker.

Sher Muhammad Shehzad and others v. District Health Officer 2006 SCMR 421; Qadeer Ahmed v. Punjab Labour Appellate Tribunal Lahore and others PLD 1990 SC 747; Ali Nawaz v. Pakistan Railways 1999 SCMR 1873; Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 and Sher Muhammad Shahzad and others v. District Health Officer 2006 SCMR 421 ref.

Ansari Abdul Lateef for Petitioner.

Arshad Lodhi for Respondents Nos.1 to 3.

Date of hearing: 7th August, 2009.

2010 P L C (C.S.) 158

[Karachi High Court]

Before Munib Ahmed Khan, Sajjad Ali Shah and Khalid Ali Z. Qazi, J

Syed Agha ZIA-UL-USMAN ALI SHAH and 55 others

Versus

BOARD OF TRUSTEE OF KARACHI PORT TRUST through Chairman and another

Constitutional Petitions Nos.D-753, 1332, 1412, 1605, 1673, 1686, 1709, 1743, 1747, 1759, 1767, 1800, 1852, 1894, 1895, 1896, 1897, 1930, 1946, 1948, 1956, 1957, 1971, 2014, 2073, 2118, 2123, 2141, 2152, 2333, 2411 of 2006, D-95, 274, 332, 339, 340, 405, 473, 498, 636, 537, 539, 563, 574, 606, 617, 618, 619, 709, 740, 754, 813, 815, 824, 865, 1086, 1320, 1331, 1505, 1772, 1817, 1905, 1926, 1943, 2012, 2013, 2145, 2307, 2464, 2564 of 2007 and D-259 of 2008, decided on 30th March, 2009.

Civil Servants Act (LXXI of 1973)---

----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Appeal, abatement of---Question to be determined in the case was, whether abatement of appeals/proceedings had been automatic (without any formal orders) or whether a judicial order was needed by Service Tribunal---Supreme Court, in its judgment PLD 2006 SC 602, had held that cases of the employees under S.2-A of Service Tribunals Act, 1973, which did not fall within the definition of "civil servant" as defined in S.2(1)(b) of Civil Servants Act, 1973, would have no remedy before the Service Tribunal, functioning under Art.212 of the Constitution and they would be free to avail appropriate remedy---After the judgment of the Supreme Court certain appeals were abated before the Service Tribunal and in some of those appeals the Registrar of the Tribunal made stereotype order which was challenged before the Supreme Court---Supreme Court in judgment 2008 SCMR 402 had held that separate order was required to be passed in every case by the Service Tribunal after providing opportunity to the parties---Following said order of the Supreme Court, Service Tribunal had started passing judicial order with the signature of Presiding Officer of the Tribunal---Thirty days' time was given to the petitioners to approach the Service Tribunal for making an application for judicial order on their appeals---Cases which were not subject-matter of the question to be determined, should be placed before the relevant Benches.

2007 PLC (C.S.) 1046; 2008 SCMR 402; 2007 PLC (C.S.) 1046; PLD 2006 SC 602 and 2009 PLC (C.S.) 497 ref.

Khalid Javed Khan, Farogh Naseem, Asim Iqbal, Moin Azhar Siddiqui, Manzoor Ahmed, Rana Ikramullah, Qazi Abdul Harmed, Khalid Javed, M.M. Tariq, Khalid Javed Imran, Latif Saghar, R.F. Virjee, Jaffer Hussain, Niaz Ahmed, Masood Mukhtar Naqvi, Latifur Rehman Serwary, Muhammad Yaqoob, Shakeel Ahmed, Mansoorul Haq Solangi, Sohail Zafar Bhatti, Syed Toqeer Hassan, Islam Hussain, Muhammad Tasleem, Muhammad Asif Khan, Khilji Bilal, Muhammad Azam Khan, Ghulam Qadir Jatoi, Muhammad Junaid Farooqui, Dilawar Husain, Ainuddin Khan, Advocates for Parties.

2010 P L C (C.S.) 184

[Karachi High Court]

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

Prof. MUMTAZ AHMED KHAN

Versus

INSTITUTE OF BUSINESS ADMINISTRATION (I.B.A.) through Director, Karachi University and 2 others

Constitutional Petition No.D-1124 of 2007, decided on 22nd May, 2009.

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

----Ss. 3 & 5---Institute of Business Administration Act (XX of 1994), Ss.3, 4, 12, 13 & 18(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Institute of Business Administration---Assistant Professor (BS-18)---Compulsory retirement from service without issuance of show-cause notice, charge sheet or statement of allegations---Plea of respondent that Institute did not fall within purview of Art.199 of the Constitution, thus, such petition was not maintainable---Validity---Institute being a statutory body was created under Institute of Business Administration Act, 1994---Provincial Government had major control over the Institute, which was performing functions in connection with affairs of the Province--Institute was receiving funds from University Grants Commission--Key appointments under the Act, were made by Governor as Patron and controlling authority of the Institute---Board of Governors of the Institute having significant functions under the Act, consisted either of nominees of Governor or persons connected with Provincial or Federal Government---Institute had proceeded against petitioner under Removal from Service (Special Powers) Ordinance, 2000---Such petition was maintainable in circumstances.

Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S.) 1046; Muhammad Iqbal, v. WAPDA 2002 SCMR 922; Government of Balochistan v. Marjan Khan 2003 PLC (C.S.) 245; Nazeer Ahmed Chakrani v. Government of Pakistan 2004 SCMR 623; Osman Ghani v. Federal Service Tribunal 1986 SCMR 1875 and Executive Engineer v. Ejaz Ahmad 2007 SCMR 1860 ref.

Qamar-ul-Islam v. Institute of Chartered Acctt. 1993 MLD 1362; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Limited PLD 1975 SC 244; Muhammad Zubair Ikram v. Aitchison College, Lahore PLD 2000 Lah. 489; and Aitchison College v. Muhammad Zubair PLD 2002 SC 326 rel.

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

----Ss. 3 & 5---Institute of Business Administration Act (XX of 1994), Ss.9, 12(1), 13 & 15(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Institute of Business Administration--Assistant Professor (BS-18)---Compulsory retirement from service---Absence from duty without leave, charge of-Non-participation of petitioner in inquiry proceedings despite being given countless opportunities to do so---Plea of petitioner that impugned order was passed by Director of the Institute, while competent authority in his case was Board of Governors---Validity---Petitioner had failed to show any prejudice, which he might have suffered on account of procedure followed in his case---According to findings of Inquiry Officer, petitioner had obtained foreign service leave, but he instead of going abroad joined another local institute, which was a gross violation of the rules on the subject---Discretionary powers under Art.199 of the Constitution would be exercised in order to meet the ends of justice and equity---Petitioner had not come to the Court with clean hands---High Court dismissed constitutional petition in limine.

Khiali Khan v. Nazir PLD 1997 SC 304 and Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 rel.

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

----Art. 199---Relief under Art.199 of the Constitution, granting of---Nature stated.

The Court's powers to grant relief under Article 199 are of a discretionary nature, which are to be exercised in order to meet the ends of justice and equity.

Abrar Bukhari for Petitioner.

Ch. Muhammad Jamil for Respondents.

Date of hearing: 6th May, 2009.

2010 P L C (C.S.) 215

[Karachi High Court]

Before Gulzar Ahmed and Bin Yamin, JJ

FAZAL AHMED SAMTIO

Versus

PROVINCE OF SINDH through Secretary Local Government and 3 others

Constitutional Petition No.D-721 of 2009, decided on 17th June, 2009.

(a) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 28(1), 196(2), proviso---Sindh Councils Unified Grade Service Rules, 1982, Rr.3 & 11(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Transfer---Petitioner who initially was appointed as Sub-Engineer BPS-11 finally was promoted to the post of Assistant Executive Engineer BPS-17---Petitioner, thereafter was transferred and posted on current/acting charge as Town Municipal Officer, but after about 2-1/2 years was transferred from that post and ordered to report to Sindh Local Government Board for further posting---Petitioner had challenged said transfer---Maintainability of constitutional petition had been questioned by respondents on the ground that petitioner being a civil servant, his remedy lay before Sindh Service Tribunal, because question agitated in the petition being that of transfer and posting, same was a matter of terms and conditions of the petitioner---Validity---Petitioner from the date of his initial appointment was working in Sindh Councils Unified Grade Service and his service was regulated by the Sindh Councils Unified Grade Service Rules, 1982---Service of petitioner, in circumstances was a different service from that of service defined under S.2(b) of Sindh Civil Servant Act, 1973---Petitioner in circumstances was not a civil servant, but was an employee of Sindh Councils Unified Grade Service to whom Sindh Councils Unified Grade Service Rules, 1982 were applicable and he would continue to remain amenable to the jurisdiction of High Court under Art.199 of the Constitution---Rule of master and servant was inapplicable to cases where there was violation of statutory provisions or of any other law and constitutional petition challenging the same would be maintainable before High Court.

Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 rel.

(b) Sindh Councils Unified Grade Service Rules, 1982---

----Rr. 3 & 11(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer--Petitioner who initially was appointed as Sub-Engineer BPS-11 finally was promoted to the post of Assistant Executive Engineer BPS-17---Petitioner thereafter was transferred and posted on current/acting charge as Town Municipal Officer, but after about 2-1/2 years of such appointment, he was transferred from that post of Town Municipal Officer and was ordered to report to Sindh Local Government Board for further posting---Petitioner had challenged such transfer---Petitioner was a Grade-17 Officer and that of holding the post of Town Municipal Officer was a Grade-18 post on acting charge basis---Even otherwise petitioner belonged to Engineering Branch service under Sindh Councils Unified Grade Service Rules, 1982, whereas post of Town Municipal Officer belonged to Administrative Branch under said Rules---Rule 3 of Sindh Councils Unified Grade Service Rules, 1982, had clearly shown that petitioner who belonged to Engineering Branch was not eligible for transfer to a post which belonged to another Branch namely the Administrative Branch---Petitioner who belonged to Engineering Branch, his posting as Town Municipal Officer was contrary to sub-rule (4) of R.3 of Sindh Councils Unified Grade Service Rules, 1982---Respondent being a Grade-18 officer and belonging to Administrative Branch, was qualified for holding the post of Town Municipal Officer and posting of a qualified officer could not be sacrificed at the altar of petitioner who was serving such post merely on current/acting charge basis and who did not fulfil the qualification for holding such post---Petitioner who was validly transferred from post of Town Municipal Officer, could not say that his transfer was premature or was made for political reasons.

Zahid Akhtar v. Government of Punjab and 2 others PLD 1995 SC 530; Director-General Health Services, N.-W.F.P Peshawar and others v. Dr. Nizakat Iqbal Karim and another 2000 SCMR 76; Roshan Khan, SET Government High School Kuz Pao, District Shangla v. Director Schools and Literacy, N.-W.F.P Peshawar and 4 others 2007 SCMR 599 and Muhammad Younus Aarin v. Province of Sindh 2007 SCMR 134 ref.

Khalid Javed Khan for Petitioner.

Adnan Karim, A.A.-G. Sindh for Respondents Nos.1, 2 and 3.

Zia-ul-Haq Makhdoom for Respondent No.4.

M.A. Khan for Respondent No.5.

2010 P L C (C.S.) 224

[Karachi High Court]

Before Nadeem Azhar Siddiqi and Khadim Hussain M. Shaikh, JJ

Syed NAJMUL HASSAN WASTI

Versus

PROVINCE OF SINDH through Secretary Excise and Taxation and 2 others

Constitutional Petition No.878 of 2009, decided on 24th July, 2009.

(a) 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-Frequent transfer of petitioner from one post to other within four months before his retirement to be due within one year---Validity---Transfer and posting was part of terms and conditions of service---Employer in his wisdom could use services of petitioner according to his ability---Petitioner had no legal right to claim or ask to be posted on a particular post---Transfer and posting, even if mala fide, could not be challenged before High Court due to bar contained in Art.212 of the Constitution---High Court dismissed constitutional petition in circumstances.

M.S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and others PLD 1970 Lah. 195; Messrs Colgate Palmolive (Pakistan) Ltd. v. Federation of Pakistan and others 2004 PTD 2516; Mahar Maqbool Ahmad, Manager, Auqaf, Rahimyar Khan v. Auqaf Department, Punjab, Lahore through its Chief Administrator, Auqaf and another 1997 PLC (C.S.) 639; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 ref.

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

----Art. 199---Constitutional petition---Civil Service---Officer not made party to proceedings---Effect---No finding could be given against such officer.

Shabbir Ahmed Awan for Petitioner.

Adnan Kareem, Asstt. A.-G. Sindh for Respondents.

Date of hearing: 17th July, 2009.

2010 P L C (C.S.) 261

[Karachi High Court]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

ASIF HUSSAIN BHUTTO

Versus

WATER AND POWER DEVELOPMENT AUTHORITY, through Chairman and 2 others

C.P. No.D-182 of 2008, decided on 8th December, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---WAPDA employee---Charges of installation of bogus meter and misappropriation of official materials---Disciplinary proceedings---Major penalty, imposition of---Validity---Petitioner had participated in inquiry proceedings and had been confronted with allegations levelled against him---Enquiry proceedings contained questions asked by members of Inquiry Committee and answers given by petitioner---Impugned penalty had been imposed on basis of proper material after proper inquiry---High Court dismissed constitutional petition in circumstances.

Mehmood Hussain Siddiqui for Petitioner.

Jawaid I. Bukhari for Respondents.

2010 P L C (C.S.) 276

[Karachi High Court]

Before Mushir Alam and Muhammad Athar Saeed, JJ

JAW AID GHAFOOR

Versus

PAKISTAN CIVIL AVIATION AUTHORITY and another

Constitutional Petition No.D-390 of 2009, decided on 6th January, 2010.

(a) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 23---Industrial Relations: Ordinance (XXIII of 1969), S.1(3)---Industrial Relations Act (IV of 2008), S.1(4)---Constitution of Pakistan, (1973), Art.199---Constitutional petition---Maintainability---Employee of Civil Aviation Authority (CAA)---Termination of service through oral order---Industrial Relations Ordinance, 1969 and Industrial Relations Act, 2008 not applicable to any person in service of Civil Aviation Authority---Irrespective of an employee of a State Controlled Corporation not being a civil servant, such corporation would remain amenable to jurisdiction of High Court under Art.199 of the Constitution---Rule of master and servant would not apply in cases of violation of statutory provisions or any other law---CAA was a statutory Authority and had statutory Service Regulations---Constitutional petition was maintainable in circumstances.

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

----Art. 199---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Constitutional petition--- Maintainability--- State Controlled Corporation, employee of---Such employee was not a civil servant---State Controlled Corporation would remain amenable to jurisdiction of High Court under Art.199 of the Constitution.

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

(c) Master and servant---

----Rule of-Applicability-Scope-Such rule would not apply where there was violation of statutory provisions or any other law.

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

(d) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 23---Civil Aviation Authority Service Regulations, Reglns.2.09, 2.20, 2.46, 2.50, 3.5, 3.31 & 3.33---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of petitioner as helper on daily wages against a vacant permanent post---Dismissal of petitioner from service verbally without any show-cause notice after 10 years of uninterrupted service and recruitment of fresh candidate in his place by authority---Validity---According to Regln.3.31 of Civil Service Regulations, authority could appoint a person on casual basis to meet an immediate/operational requirement, but not against a permanent, temporary or leave vacancy---Authority had appointed petitioner for a period not exceeding 89 days with intermittent gap, usually of one day, which practice continued for about 10 years---Authority had created such artificial break in petitioner's service to avoid his acquiring status of permanent employee---Authority had adjusted several similar employees against permanent vacancies---Permanent vacancies were still available with authority---Authority had misused Regln.3.31 of Civil Aviation Authority Regulations---Impugned action of authority was illegal and discriminatory---High Court set aside impugned order and directed authority to issue appointment letter to petitioner and counting his previous service towards retirement and pensionary benefits---Principles.

Mubin-us-Salam's case PLD 2006 SC 602; Ikram Bari and 524 others v. National Bank of, Pakistan 2005 SCMR 100; Muhammad Shoiab v. Government of N.-W.F.P. 2005 PLC (C.S.) 1056; Abdul Hameed Khan v. Maqbool Ahmed Khakwani Civil Appeal No.2 of 1996 ref.

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

----Arts. 5 & 199---Discharge of functions by public functionary including statutory authorities and bodies in accordance with Constitution and law would lessen public miseries and litigation---Principles.

Every person is obligated under Article 5 of the Constitution of Pakistan to abide by and follow the Constitution and law, such obligation is more onerous on public functionaries including statutory authorities and bodies as they are repository of public trust and confidence, they should not be swayed by their whims and fancies or extraneous consideration. Laws are framed to advance good and suppress mischief. Where a public functionary or authority misuses or oversteps authority or misapplies law, it in fact commits breach of public trust and violate law, warranting correction in exercise of power of judicial review vested in this Court. It may not be out of place to mention that lack of good governance, unbridled exercise of authority, brazen violation of law, whimsical exercise of discretion by the public functionaries/authorities are but few maladies that adds salt to public suffering and miseries driving sufferers to approach the courts of law for the redressal of their grievance, clogging the Courts of law with undesired and uncalled for litigation, which could be easily avoided if the public functionarie/bodies discharge their duties honestly, fairly, diligently, in accordance with Constitution and law and by conscious and judicial application of mind.

M. Aslam Khan for Petitioner.

Sanaullah Noor Ghouri for Respondent No. 1.

Aashiq Raza, D.A.-G. for Respondent No.2.

Date of hearing: 25th August, 2009.

2010 P L C (C.S.) 303

[Karachi High Court]

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

MUHAMMAD ASGHAR

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and 3 others

C.P. No.D-2020 of 2007, decided on 19th March 2008.

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

----Ss. 3, 5, 6 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from service---Petitioner had alleged that he was removed from service without affording an opportunity of - hearing and issuance of show-cause notice on the charge of misconduct---Validity---Before removing the petitioner from service, enquiry was conducted and he was given an opportunity to plead his case---Fact of conducting enquiry proceedings had been admitted by the petitioner in his departmental appeal---Such fact found support from the non-denial of respondent's statement in his parawise comments about the participation of the petitioner in enquiry proceedings---After said admission, arguments advanced by the counsel for the petitioner that in terms of S.3(2) of Removal from Service (Special Powers) Sindh Ordinance, 2000 he was not informed by the competent Authority for the action to be proposed against him; and no opportunity of hearing was provided to him, had no weight as proper opportunity to defend his case was given to the petitioner---Petitioner was terminated/removed from service after due enquiry, which was apparent from the documents placed by the petitioner and the statement made by the authorities in their parawise comments as to the holding of enquiry against the petitioner.

Executive Engineer, Qadirabad Barrage, Division Qadirabad and others v. Ejaz Ahmad 2007 SCMR 1860; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 and Anwar Parvez v. Chairman, Board of Intermediate and Secondary Education, Abbottabad and 2 others 2005 SCMR 1063 ref.

M. Arshad Khan Tanoli for Petitioner.

Ch. Abdul Rasheed for Respondents.

2010 P L C (C.S.) 392

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

MUSHTAQ ALI SHAH

Versus

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI through

Vice-Chairman and 3 others

Constitutional Petition No.D-1882 of 2007, decided on 20th March, 2009.

(a) N.E.D. University of Engineering and Technology Act (III of 1977)---

----Ss. 28(iv), 46.1(a) & Statutes, Cls.36, 37(i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Compulsory retirement from service on completion of 25 years qualifying service ,without making any allegation against petitioner by University---Validity---University under Cl.37(i) of its statutes had power to retire an officer, teacher or other employee from service on such date after he had completed 25 years of service qualifying for pension or other retirement benefits---Petitioner being aggrieved with impugned order had filed appeal before Syndicate, which had rejected same after providing personal hearing to him---High Court dismissed constitutional petition in circumstances.

Chairman, Central Board of Film Censors, Islamabad and others v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707; Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (C.S.) 1389 and Government of Sindh, through Secretary, Cooperative Department, Karachi and another v. Attaullah Anjum 2008 PLC (C.S.) 412 rel.

(b) N.E.D. University of Engineering and Technology Act (III of 1977)---

----S. 46(1)(a) & Statutes---General Clauses Act (X of 1897), S.3(47)---Constitution of Pakistan (1973), Art.199---Statutes in respect of terms and conditions of service of its employees framed by University in exercise of powers delegated under S.46(1) of N.E.D. University of Engineering and Technology Act, 1977---Constitutional petition for enforcement of rights conferred on employees under such Statutes of University---Maintainability---Legislature possessing wide powers of delegation could not delegate essential legislative functions, but could permit delegation of ancillary or subordinate legislative functions i.e. to fill up details---Such rules making powers of University was not subject to any restriction or qualification to place Rules before National Assembly to make them effective---Validly framed rules, statutes, regulations under delegated authority would be deemed to form part of the Act itself---Such rules being statutory would be read as part of N.E.D. University of Engineering and Technology Act, 1977 itself--Constitutional petition in such cases would be maintainable---Principles.

Iftikhar Ahmad alias Gulla and another v. The State and another PLD 1999 SC 820; Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (C.S.) 1389; Riazuddin v. Pakistan International Airlines Corporation and others PLD 1992 SC 531 and Mrs. M.N. Arshad v. Miss Naeema Khan and others PLD 1990 SC 612 ref.

Riazuddin v. Chairman, PIAC and 2 others PLD 1992 SC 531; Anisa Rehman v. Pakistan International Airline Corporation and others 1994 SCMR 2232; Pakistan International Airline Corporation v. Nisar Malik Jamal 2001 SCMR 934; Messer Video Electronic (Pvt.) Ltd. and another v. State of Punjab AIR 1990 SC 820; Tata Iron and Steel Co. Ltd. v. Commissioner of Central Excise and Customs AIR 2000 SC 1045; Commissioner of Income Tax Bombay v. Messer Gwalior Rayon Silk Manufacturing Co. Ltd. AIR 1992 SC 1782; Hirjina Salt and Chemicals (Pak) Ltd. v. The Union Council Gharo PLD 1972 Kar. 145 and Abdul Sattar Chughtai Malik v. Pakistan Bar Council PLD 2007 Lah. 170 rel.

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

----S. 3(47)---Validly made rules, statutes and regulations under delegated authority would be deemed to form part of the Act itself---Principles.

Delegated legislation permitted by enabling Acts powers appearing under different names without there being any clear demarcation between all of them. "Rules" and "Orders" are by far the most common names under which delegation legislation is permitted. Section 3(47) of General Clauses Act, 1897 define "Rule" means Rule made in exercise of power conferred by any enactment, and shall include a regulation made as a rule under any enactment. The legislature possess wide powers of delegation, however legislature cannot delegate essential legislative functions which consists in the determination of choosing of legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted, therefore, is the delegation of ancillary or sub-ordinate legislative functions that is to say fill up details. The power delegated by the legislature can be conditional one or without any condition.

Validly made rules, statutes, regulations under delegated authority shall be deemed to form part of the Act itself.

Riazuddin v. Chairman, PIAC and 2 others PLD 1992 SC 531; Anisa Rehman v. Pakistan International Airline Corporation and others 1994 SCMR 2232; Pakistan International Airline Corporation v. Nisar Malik Jamal 2001 SCMR 934; Messer Video Electronic (Pvt.) Ltd. and another v. State of Punjab AIR 1990 SC 820; Tata Iron and Steel Co. Ltd. v. Commissioner of Central Excise and Customs AIR 2000 SC 1045; Commissioner of Income Tax Bombay v. Messer Gwalior Rayon Silk Manufacturing Co. Ltd. AIR 1992 SC 1782; Hirjina Salt & Chemicals (Pak) Ltd. v. The Union Council Gharo PLD, 1972 Kar. 145 and Abdul Sattar Chughtai Malik v. Pakistan Bar Council PLD 2007 Lah. 170 rel.

Muhammad Nawaz Shaikh for Petitioner.

Tasnim Ahmed for Respondent.

Umar Hayat Sandhu, D.A.-G.

2010 P L C (C.S.) 426

[Karachi High Court]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

GHULAM MUSTAFA KHAN

Versus

FEDERATION OF PAKISTAN through Secretary and another

Constitutional Petition No.D-1767 of 2006, decided on 26th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Double jeopardy, principle of---Applicability---Petitioner was reinstated by Service Tribunal in earlier round of litigation, and the judgment was maintained by Supreme Court but permission was granted to authorities that fresh inquiry could be initiated---Authorities initiated fresh inquiry and on the basis of previous allegation and ground once again dismissed the petitioner from service---Validity---Authorities were not given licence to proceed against petitioner on the basis of same set of allegations and grounds, which could not be proved before Service Tribunal and were declared to be insufficient ground for awarding major punishment to petitioner---Such finding of facts was never disputed nor the same was reversed or set aside by Supreme Court---Authorities, with pre-determined mind to penalize petitioner on the same set of allegations, could not be allowed to fill-up legal lapses prevailed during first round of proceedings against petitioner in the second round of proceedings which tantamount to double jeopardy---Entire proceedings undertaken by authorities were predetermined, based on mala fides and could not be sustained in -law---High Court in exercise of constitutional jurisdiction, declared the order of dismissal from service to be null and void and of no legal consequence---High Court directed the authorities to reinstate the petitioner in service with back-benefits accrued to him during the period---Petition was allowed accordingly.

Messrs Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S.) 1046; Muhammad Mubeenul Islam v. Federation of Pakistan PLD 2006 SC 602; Nasir Said v. WAPDA PLD 1987 SC 421; Abdul Bashir and 9 others v. Government of Balochistan through Chief Secretary, Civil Secretariat, Quetta and 3 others 2001 PLC (C.S.) 771; Muhammad Saifullah v. Province of Sindh and others 1985 PLC (C.S.) 1108; Muhammad Khaliq v. Board of Intermediate and Secondary Education, Faisalabad and another 2000 PLC (C.S.) 1373; The Director-General (Field), Agricultural Department, Lahore and another v. Haji Abdul Rehman 1989 SCMR 1224; General Manager (Operation), WAPDA v. Javaid Aziz Qureshi and others 1998 PLC (C.S.) 1288/1291; Syed Mir Muhammad v. N.-W.F.P Government through Chief Secretary PLD 1981 SC 176; Syed Altaf Hussain v. The President, National Bank of Pakistan and others 1991 MLD 1834 and Engineer Samiullah Mughal v. Chairman, Pakistan Engineering Council and 2 others 2009 PLC (C.S.) 280 rel.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chaudhry PLD 1961 SC 531; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Ms. Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Habib Bank Limited and others v. Syed Zia-­ul-Hassan Kazmi 1998 SCMR 60 and United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68 distinguished.

Muhammad Naseem for Petitioner.

Khalid Jawed for Respondent Iio.2.

Mian Mushtaq, D.A.-G. for Federation of Pakistan.

Date of hearing: 29th October, 2010.

2010 P L C (C.S.) 446

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Dr. ANWAR ALI SAHTO

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, and 6 others

Constitutional Petition No.D-2217 of 2008, decided on 18th March, 2009.

Constitution of Pakistan (1973)---

----Arts. 25(a) & 199---Constitutional petition---Civil service---Equal protection of law---Scope---Petitioner succeeded in granting his reinstatement in review petition filed by him before Supreme Court---Grievance of petitioner was that he was not absorbed in the service like other trainee engineers---Validity---As the employer had itself absorbed one of the trainee engineers, therefore, treating the case of all such employees at par they were also directed to be absorbed in service with specific observation---Petitioner and one doctor belonged to same class, therefore, former was also entitled to equal protection of law in respect of privileges conferred and liabilities imposed in terms of Art.25(a) of the Constitution---Basic salary and allowances allowed to petitioner by the employer were from the date of judgment passed by Supreme Court but as the doctor was reinstated long before the case of petitioner, therefore, she being constantly in service had an opportunity of yearly increment and other service benefits, therefore, to that extent monetary benefits of doctor and petitioner could not be equated---Petition was dismissed in circumstances.

Petitioner in person.

Umer Hayat Sandu, D.A.-G. for Respondent No.1.

Asim Iqbal for Respondents Nos.2 to 6.

Kalyandas for Respondent No.7.

Date of hearing: 3rd February, 2009.

2010 P L C (C.S.) 461

[Karachi High Court]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

Pir ABDUL AZIZ QURESHI and another

Versus

WAPDA through Chairman and 4 others

Constitutional Petition No.D-204 of 2006, decided on 23rd December, 2009.

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

----S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Equivalence of degrees---Petitioners were possessing B. Tech. (Hons.) degrees and were not considered for promotion as their degrees were not recognized by Pakistan Engineering Council equivalent to B.E./B.Sc. Engineering degree---Validity---According to memorandum issued by Ministry of Education Government of Pakistan B. Tech. (Hons..) degree had been treated equivalent to B.E./B.Sc. Engineering degree---Water And Power Development Authority was under Water and Power Ministry and after receiving memorandum from Ministry of Education, the Authority did not raise any question regarding legality/authenticity of treating B.Tech. (Hons.) equivalent to B.E./B.Sc. Engineering decree---Water And Power Development Authority was not governed by any rule, regulation or provision of Pakistan Engineering Council---Services of petitioners were governed by Water And Power Development Authority Service Rules and not by Pakistan Engineering Council Act, 1976 or Rules and for all purposes the promotion or upgradation of petitioners was regulated by Pakistan Water And Power Development Authority Act, 1958/Rules---Authorities could not place before High Court any provision of Water And Power Development Authority Service Rules showing that B.Tech. (Hons.) holders were not entitled to promotion to higher ranks/grade---High Court directed the authorities to consider case of petitioners for promotion or upgradation keeping in view their seniority; fitness and eligibility---Petition was allowed in circumstances.

PLD 1995 SC 710; Pakistan Diploma Engineers Federation (Registered) through Chairman v. Federation of Pakistan, through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807 and Muhammad Azeem Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others 1999 PLC (C.S.) 637 ref.

Muhammad Solat Rizvi for Petitioner.

Allah Bachayo Baloch, Addl. A.-G., Sindh for Respondent.

Irfan Ahmed Meo for Respondent/WAPDA.

2010 P L C (C.S.) 573

[Karachi High Court]

Before Gulzar Ahmed and Irfan Sadat Khan, JJ

AYAZUDDIN and another

Versus

PROVINCE OF SINDH and another

Constitutional Petition No.D-1942 of 2009, decided on 8th March, 2010.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Civil service---Promotion--Petitioners in their constitutional petition had impugned notification whereby their promotions were kept in abeyance--Degrees possessed by the petitioners apparently were not recognized by the Pakistan Engineering Council whose function was to give recognition to the foreign engineering qualification under the Pakistan Engineering Council Act, 1976---Question of petitioners procuring and providing to the department the certificate of Mehran University of Engineering and Technology, alleged to be fake and forged had yet not been determined---Enquiry about the petitioners for their alleged illegal acts being underway, constitutional jurisdiction to grant relief to the petitioners could not be exercised, even if the impugned action was presumed to be not sustainable in law for the reasons the legitimacy of the petitioners enjoying the post of Assistant Directors in BS-17 was yet to be determined through holding of proper enquiry by the department.

Raja Muhammad Nawaz v. Government of Punjab 1981 SCMR 523; Chairman Selection Committee King Edward Medical College v. Wasif Zamir 1997 SCMR 15; I.-G.P. Punjab v. Muhammad Ameer Abdullah Khan 1990 SCMR 1414; Zohra v. Government of Sindh PLD 1996 Kar. 1; Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999; Qadir Bux v. Government of Balochistan 1978 PLC (C.S.) 80; Muhammad Afzal Khan v. K.D.A. PLD 1984 Kar. 114; Mst. Raj Bibi and others v. Province of Punjab and 5 others 2001 SCMR 1591; Miss Reeta v. Government of Sindh and others 2001 CLC 1825; Fida Hussain v. Secretary Kashmir Affairs PLD 1995 SC 701; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 rel.

M.M. Aqil Awan for Petitioners.

Abdul Fateh Malik, A.A.-G. Sindh for Respondents.

Haji Soukat Ali Rahimoon for Interveners.

Dates of hearing: 6th November and 4th December, 2009.

2010 P L C (C.S.) 536

[Karachi High Court]

Before Munib Akhtar and Muhammad Ather Saeed, JJ

SHAFQAT ALI

Versus

GOVERNMENT OF SINDH through Chief Secretary and 3 others

C.P. No.D-542 of 2009, decided on 2nd February, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had prayed that he could be appointed to the post of JST in the education department on the deceased quota being son of deceased who had expired during service---Vide Notification dated 2nd September, 2002, certain amendments were made in which it was provided that the Appointing Authority could appoint one of the children of civil servant who died during service to a post if such child was otherwise eligible for the post---Said notification would apply to the children of all the government servants who died even before coming into force of said notification and not only to the children of those government servants who died after coming into force of that notification---Petitioner applied for the post of JST as his late father was Head Master in a government school before his death---During that period a new notification came into force which had provided that application would be made within two years of the death of said civil servant---Such subsequent notification issued after filing of the application by the petitioner, could not be interpreted to apply retrospectively to the application which had been filed before coming into force of that notification---All officers of the education department had proposed that the petitioner be appointed as JST and summary in the regard was sent to the Chief Minister, which had already been approved, but Chief Minister had without giving any reason had stated that the summary was not in line with the policy and had regretted appointment of the petitioner---Regret shown by the Chief Minister without explaining as to why it was not in line with the policy, was an order which could not be sustained---High Court, allowing constitutional petition, cancelled the order on summary passed by the Chief Minister, with direction to the department to appoint the petitioner as JST, if he possessed basic qualification necessary for such appointment within specified period.?

Zulfiqar Ali Sangi for Petitioner.

Liaquat Ali Shar, Addl. A.-G. along with Aziz Mangi and Shabir Ahmed Memon of EDO(E) Office, Khairpur for Respondents.

2010 P L C (C.S.) 542

[Karachi High Court]

Before Gulzar Ahmed and Irfan Sadaat Khan, J

QAISER ALI KHAN

Versus

PROVINCE OF SINDH through Chief Secretary and another

Constitutional Petition No.D-1757 of 2009, decided on 24th February, 2010.

(a) Sindh Judicial Service Rules, 1994---

----R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Judicial service---Concealment of facts---Penalty---Effect---Petitioner filed constitutional petition, in the year 2008 for correction of his date of birth, which was dismissed in limine, on the ground that the petitioner had not moved within two years, prescribed on the date on which his service book was opened, for correction of his date of birth---Petitioner filed application to the Registrar of High Court for change of his date of birth suppressing the fact of dismissal of his earlier constitutional petition---Chief justice of the High Court allowed said application---Petitioner prayed for implementation of the Chief Justice's order---Validity---Government being the appointing authority, the matter regarding correction of date of birth of the petitioner in term of R.4 of the Sindh Judicial Service Rules, 1994, could only be decided by the Government---Chief Justice of High Court had no power of changing the date of birth of a judicial officer except that he might send his recommendations to the Government which apparently would become binding unless for some reason not brought to the knowledge of the Chief Justice, recommendations might not be accepted rather such aspect of the matter would have to be brought to the knowledge of Chief Justice for consideration---Administrative orders were always subordinate to the judicial orders---By obtaining administrative order merely that of recommendatory nature, the petitioner could not be allowed to overreach or nullify the decision in his own earlier petition---Petitioner had been seeking implementation of the order of Chief Justice knowing fully well that there existed already a judicial decision disallowing his request for changing his date of birth which decision apparently had not been challenged by the petitioner rather the petitioner had embarked upon a journey which was totally uncalled for and illegal---High Court dismissed the constitutional petition with cost of Rs. 20,000.?

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

----Art. 201---Court decision---Binding---Effect---Scope---Decisions of the court given in a lis were judicial determination of case whereby parties' rights and obligations were decided by the court---Under Art.201 of the Constitution, decisions of the court were binding on all Organs of the State including the Government---Government could not take any steps contrary to judicial decision of the court.?

Ms. Rana Khan for Petitioner.

Shafi Muhammad Memon, Addl. A.-G., Sindh for Respondents.

2010 P L C (C.S.) 552

[Karachi High Court]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Dr. RUBINA MANGI

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petitions Nos. D-1909, D-2041, D-2131, D-2132, D-2274 and D-2079 of 2008, decided on 25th February, 2010.

(a) Sindh Public Service Commission (Functions) Rules, 1990---

----R. 4(1)---Civil Servants Transfer and Posting Rules, 1974, S.2(b)---Constitution of Pakistan (1973), Art.199--Constitutional petition---Civil service---Contract employee---Appointment of---Vested right---Effect---Petitioners/incumbents could neither be termed as civil servants in terms of definition of `civil servant' provided in S.2(b) of Civil Servants Transfer and Posting Rules, 1974 nor could they claim any vested right more particularly in absence of approval/appointment by the competent authority---Contract employees were specifically excluded from such definition---Rule 4(1) of Sindh Public Service Commission (Functions) Rules, 1990, had imposed bar for conducting test for recruitment to post which were to be filled on a contract for a specified period---Petitioners had no vested right to claim their appointment through the constitutional petitions---Constitutional petition was dismissed by High Court.

Abdul Majeed Zafar v. Government of Punjab 2007 SCMR 330; Syed Munawar Sultan and 6 others v. Province of Sindh through Chief Secretary and 2 others 2009 PLC (C.S.) 640; Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Zahida Kakar 2005 SCMR 642; Abdul Khaliq v. University of Karachi through Registrar and 2 others, 2003 SCMR 817 and Secretary, Finance and others v. Ghulam Safdar, 2005 SCMR 534 ref.

(b) Sindh Public Service Commission (Function) Rules, 1990---

----R. 4(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contract employees---Appointment of---Vested right---Effect---Exercise undertaken during the period of interim government for recruitment to posts on contract basis by the department and interview/viva voce through Sindh Public Service Commission (SPSC) was not in accordance with law---In absence of the approval/ appointment by the competent authority no vested right had been accrued in the incumbents/petitioners.

Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Zahida Kakar 2005 SCMR 642; Abdul Khaliq v. University of Karachi through Registrar and 2 others 2003 SCMR 817 and Secretary, Finance and others v. Ghulam Safdar 2005 SCMR 534 rel.

Habib Ahmed, Muhammad Nawaz Shaikh, Zameer Ghumro, Irfan Ahmed Meo for Petitioners.

Abdul Fatah Malik, A.A.-G. along with Adnan Karim, A.A.-G. for Respondents.

Dates of hearing: 22nd October, 2009 and 16th February, 2010.

2010 P L C (C.S.) 569

[Karachi High Court]

Before Mushir Alam and Muhammad Athar Saeed, JJ

TARIQ LATIF ANSARI and others

Versus

FEDERATION OF PAKISTAN and others

Constitutional Petition No.D-1040 of 2002, decided on 28th August, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Voluntarily Severance Scheme introduced by National Bank of Pakistan (NBP) for officers of defunct National Development Finance Corporation (NDFC) after its amalgamation with the Bank---Benefits mentioned in such Scheme reduced by Government---Constitutional petition filed by some officers against such reduction accepted by High Court---Benefit of such earlier judgment of High Court claimed by other officers, who were not party thereto---Validity---High Court while disposing of earlier constitutional petition observed that Bank could grant similar benefits in interest of equity and fairness, which had been granted to other employees in similar circumstances---Present petitioners were also entitled to same benefits, which had been provided to other personnel under such Scheme---High Court accepted constitutional petition filed by present petitioners in circumstances.

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

Khalid Javed Khan for Petitioners.

Masood Anwar Ausaf for Respondents Nos.2 and 3.

Mian Khan Malik, D.A.-G.

2010 P L C (C.S.) 630

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MASROOR HUSSAIN and 45 others

Versus

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES and another

Constitutional Petition No.D-930 of 2009, decided on 1st April, 2010.

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

----Art. 199---Constitutional petition---Laches---Determination of question of lathes---Circumstances essential to be considered by Court stated.

Foundation of the principle of laches, jurisprudentially speaking, is the same as that of statutes of limitation. However, in contradistinction to limitation, where statute fixes the period for pursuing the claim, equity resorts to consideration of the circumstances, and two circumstances are critical, firstly, acquiescence on part of the complainant, and secondly, any change of position that has occurred on part of the defendant. Acquiescence would be sufficient when it is found that the complainant/petitioner was not ignorant of his rights and yet he remained inactive. Even if the petitioner is ignorant of his rights if as a reasonable and prudent man, he should have discovered his right, laches necessarily follow. The second aspect is where any change has been made by the defendant/respondent in the intervening period.

A petitioner is bound to prosecute his claim without undue delay because equity refuses its aid to stale demands if a petitioner who has slept upon his right and has acquiesced for a great length of time.

In deciding the question of laches, two things weigh with the Court, firstly, acquiescence of the petitioner and secondly, change of position that has occurred on respondent's part.

Question of laches is to be always considered in the light of the conduct of the person invoking the constitutional jurisdiction of High Court.

It is for petitioner to explain reason for not approaching High Court within reasonable time.

For acquiescence, it is not necessary to prove that the petitioner had knowledge of his right. It would be sufficient to establish that the petitioner could have discovered the truth or have reasons to have done so.

As far as change in defendant's position is concerned, it is only such change, which has resulted in causing a delay on part of the petitioner in bringing his action.

In service matters, delay of more than 6 months would be normally fatal to the claim of the petitioner.

Halsbury's Laws of England Fourth Edition, Volume 16 pp.829-831; Abrar Ahmed Khan v. Sindh Labour Appellate Tribunal and 2 others PLD 1997 Kar. 444; Iqbal Ahmed and others v. Government of Sindh through Secretary Home Department, Karachi and others PLD 2007 Kar. 353; Eastern Pakistan Railway Workshop Employees' League v. Chairman, East Pakistan Railway Board PLD 1968 Dacca 681; Allah Nawaz Shaikh v. Punjab Labour Appellate Tribunal Lahore and another, 1996 PLC 297; Muhabbat Ali v. Province of Punjab and other, 1995 PLC 667 and L.D.A. through Director-General and another v. N.I.R.C, through Chairman and 49 others 2003 PLC 320 rel.

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

----Art. 199 ---Constitutional petition in service matters---Delay of more than 6 months---Effect---Normally, such delay would be fatal to petitioner's claim.

(c) Sacked Employees (Reinstatement) Ordinance (II of 2009)---

----Ss. 2(a) & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pakistan International Airlines Corporation (PIAC), employees of---Removal from service in year 1982 under Martial Law Regulation No. 52 without assigning any reason---Re­employment of petitioners in year 1990 instead of reinstatement in service on recommendations of Review Board---Reinstatement of 250 other petitioners by PIAC in year 2009 in terms of provisions contained in Sacked Employees (Reinstatement) Ordinance, 2009---Petitioners seeking same reinstatement relief with full back financial benefits as given by PIAC to such 250 employees---Validity---Sacked Employees (Reinstatement) Ordinance, 2009 would apply only to an employee of a corporation, who was recruited during November 1993 to November, 1996 and removed during November, 1996 to December, 1998--Benefit of the Ordinance could not be given to an employee of a corporation not meeting both such conditions concurrently ---Petitioners were removed from service in year 1982 and re-employed in year 1990, but were not sacked employees at time of promulgation of Sacked Employees (Reinstatement) Ordinance, 2009---PIAC had no statutory rules---High Court dismissed constitutional petition for being not maintainable.

Pakistan International Airline Corporation v. Tanweer-ur-Rehman Civil Appeal No.172-K of 2009; R.T. Janjua v. National Shipping Corporation, PLD 1974 SC 146 and Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi, PLD 1984 SC170 rel.

Asad Masroof Hameedi for Petitioners.

Syed Shafqat Ali Shah Masoomi for Respondents.

Date of hearing: 1st April, 2010.

2010 P L C (C.S.) 662

[Karachi High Court]

Before Bin Yamin and Agha Rafiq Ahmed Khan, JJ

ASADULLAH MEMON

Versus

PAKISTAN ELECTRIC POWER COMPANY (PEPCO) and others

Constitutional Petition No.D-3 of 2008, decided on 16th January, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitutional petition---Maintainability---Civil service---Transfer---Application for grant of interim relief---Petitioner had challenged his transfer from one place of working to another---Application for grant of interim relief was also filed by the petitioner---Petitioner had been transferred by authorities which was exercising control over the employer companies created in different areas---No documentary proof had been brought on record to show that the authorities were not competent to issue transfer order---Petitioner had been relieved from his present posting to join his new assignment---One could not claim the posting of his choice while remaining in (Government) service---Administration of the department/company had the prerogative as to where an employee was to be posted to get maximum benefits of his capability---No prima facie case had been made out by the petitioner for grant of interim relief---If the temporary injunction was issued, it would amount to interference in the affairs of the authorities which according to law was not permissible---No case for grant of interim relief having been made out, application for the same was dismissed---Main constitutional petition was also dismissed being not maintainable and same had become infructuous after handing over the charge by the petitioner.

S. Muhammad Saulat Rizvi for Petitioner.

Javed I. Bukhari for Respondents.

2010 P L C (C.S.) 668

[Karachi High Court]

Before Maqbool Baqar and Tufail H. Ibrahim, JJ

Syed AHSAN ALI

Versus

FEDERATION OF PAKISTAN through Secretary, Information Technology and 4 others

Constitutional Petition No.D-299 of 2008, decided on 16th March, 2010.

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

----Arts. 25 & 199---Constitutional petition---Employee of Pakistan Telecommunication Company Limited---Retirement from service under Voluntary Separation Scheme (VSS)---Acceptance of such offer by petitioner having served company for full 20 years---Calculation of amount payable to petitioner under VSS on basis of his 16 years service instead of 20 years while excluding amount of monthly pension---Plea of petitioner that such calculation was discriminatory as company had refused to take into account his 4 years service on ground to be an ad hoc period, while in case of other employees had taken into account ad hoc period and benefit had been extended to such employees for that period---Validity---Petitioner had been deprived of such payment for last more than three years---Refusal to grant relief of due payment to petitioner urgently required by him for subsistence would put him and his family in distress---Petitioner had been discriminated against, thus, constitutional petition was maintainable---High Court directed authority to pay petitioner claimed balance amount and monthly pension within one month, otherwise non-compliance thereof would attract contempt of Court proceedings against its officers responsible therefor.

Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Tanveer-ur-Rehman v. Pakistan International Airline Corporation 2009 PLC (C.S.) 28; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 and Pakistan Telecommunication Company Limited v. Muhammad Zahid and 29 others 2009 PLC (C.S.) 1001 ref.

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

----Art. 199---Employment contract, breach of---Alternative remedy available to employee under law---Constitutional petition--Maintainability---Principles stated.

Firstly, where the facts are not controverted and the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then it would be proper for the Court to entertain the writ petition. Secondly, in case where the grievance of an employee is merely in respect of a breach of contract and no violation of law or the standards found in public or administrative law is established, the remedy available to the employees is an action of the damages and further in such case rule of Master and Servant will apply and the petition would not be entertainable.

S. Muhammad Saulat Rizvi for Petitioner.

Mehmood Hussain Siddiqui for Respondents Nos.2 to 5.

Muhammad Ali Shaikh, D.A.-G. for Respondent No.1.

Date of hearing: 16th March, 2010.

2010 P L C (C.S.) 691

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

ABDUL REHMAN

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum, Islamabad and 3 others

Constitutional Petition No.2224 of 2007, decided on 29th March, 2010.

(a) Civil Service---

----Retirement dues and other benefits available to an employee at eve of his retirement from service could not be curtailed or changed to his detriment unilaterally, and if done so, then same would operate prospectively and apply only to employees retiring subsequent to such change---Principles.

An employee who retires from service acquires vested right to his retirement dues so also the other benefits which were existing at the time of his retirement and such benefits cannot unilaterally be curtailed or amended to the detriment of an employee who has already retired. If any such unilateral change is effected, the same will operate prospectively and will only apply to the employees, who retire subsequently to such change. The earlier retired employees will get the same benefits to which they became entitled at the time of their retirement.

It is not merely a question of fulfilment of contractual obligations, but inherently it includes obligations of morality and a social order devoid of inequity and its application and result across the board.

Legally, a person who has retired from service is entitled to continuation of all the benefits, which were available to him at the eve of retirement; it is not available to the employer to make any change in such benefits in respect of any such employee, who has already retired.

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

----Arts.9 & 199---Constitutional petition---Retired employee of Gas Company---Unilateral change by company in retirement benefits including medical facilities available to petitioner at eve of his retirement from service---Plea that Constitutional petition filed against company was not maintainable for same being a private organization and not having statutory rules---Validity---Government of Pakistan was holding controlling shares of the company---Memorandum of Association of the company was signed by 7 persons connected with an institution of Pakistan Army---Controlling shares were still retained by Government of Pakistan---Such Company exercising public power was a person within contemplation of Art.199 of the Constitution---Constitutional petition did not involve question of Master and Servant as petitioner was not pleading for reinstatement---Retirement dues and other benefits available to an employee at eve of his retirement could not be curtailed or changed to his detriment, and if done so, then same would operate prospectively and apply only to employees retiring subsequent to such change---Right to receive medical treatment particularly by a senior citizen like petitioner claiming to be of 73 years age would include in right of life---Such company being a person within contemplation of Art.199 of the Constitution could not be allowed to violate such legal obligation---High Court directed the company to allow petitioner same benefits as were applicable in his case at eve of his retirement and not to make any change therein to detriment of petitioner or any other person after his retirement.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal Nos.172-K to 175-K to 182-K of 2009; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Shehla Zia v. WAPDA PLD 1994 SC 693; Arshad Mehmood and other v. Government of Punjab, through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 rel.

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

----Art. 38---Principles of policy---Binding effect stated.

Although the directives of policy do not confer legal rights and do not create legal remedy, they appear to be like an instrument of instructions or general recommendations addressed to all authorities in the State reminding them of the basic principle of the new social and economic order, which Constitution aims at building.

Ms. Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar.342 rel.

Petitioner in person.

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

Gohar Iqbal for Respondents Nos.2 to 4.

2010 P L C (C.S.) 731

[Karachi High Court]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

Dr. JALIL QADIR

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 2 others

Constitutional Petition No. D-575 of 2009, decided on 27th April, 2010.

(a) Sindh -Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr.6-A & 8---Sindh Civil Servants Act (XIV of 1973), S.10---Constitution of Pakistan (1973), Arts.199(1)(b) (ii) & 212(3)---Sindh Service Tribunals Act (XV of 1973), S.4---Quo warranto, writ of---Post of Director Laboratories/Chemical Examiner in Health Department (BS-20)---Appointment of respondent on such post on acting charge basis---Plea of petitioner that respondent for not possessing requisite qualification was not eligible to be posted on such post---Validity---Issue of qualification of respondent raised by petitioner being a after relating to terms and conditions of service was exclusively within jurisdictional domain of Service Tribunal---High Court declined to consider such plea of petitioner in circumstances---Constitutional petition was dismissed.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 rel.

(b) Civil service---

----ESTACODE, applicability of---Scope---ESTACODE containing laws and rules etc., issued by Federal Government not directly applicable to employees of Provincial Government, but some principles thereof in certain cases could be borrowed as guide for resolving matters of such employees---Principles.

ESTACODE incorporates the laws, rules, regulations, notifications, orders issued by Federal Government and its Ministries/ Departments and they mostly relate to the employees of Federal Government. In a way, what is contained in the ESTACODE has no direct application to the employees of the Provincial Government, but some principles dealing with the terms and conditions of service of the employees of Provincial Government, which are not specifically dealt with by the laws, rules, regulations, notifications, orders made by the Provincial Government and its ministries/departments could be borrowed as guide for resolving the matter. Beyond this, the ESTACODE will not apply to the terms and conditions of service of the employees of Provincial Government.

(c) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974)--

----R. 6-A---Sindh Civil Servants Act (XIV of 1973), S.10---Appointment on current or acting charge basis---Validity---No specific period provided in rules for holding of a post on acting charge basis---Such appointments should not continue indefinitely and efforts should be made to fill posts through regular appointments in shortest possible time.

Pakistan Railway v. Zafar Ahmed 1997 SCMR 1730 fol.

(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr. 3, 6-A, 7, 8, 8-A, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Post of Director Laboratories/Chemical Examiner (BS-20) in Health Department---Respondent holding post on regular basis in (BS-19) appointed by Chief Secretary on such post in (BS-20) in his own pay and scale until further order---Validity---Chief Secretary could transfer respondent in his own basic scale i.e. of (BS-19) and not in higher post and scale---Respondent was awaiting posting, and his posting by Chief Secretary was temporary---Case of respondent seemed to be that of appointment on acting charge basis as he had been posted to a higher post from one which he was holding---Appointment of respondent to such higher post could be made by appointing authority and that too on recommendation of Departmental Promotion Committee or Provincial Selection Board---Appointing authority for appointing respondent on acting charge basis in (BS-20) was Chief. Minister and not Chief Secretary---Such Committee or Board had not recommended appointment of respondent on acting charge basis in (BS-20)---High Court quashed impugned order of Chief Secretary in circumstances.

Aijaz Mustafa Samtio, Advocate v. Government of Sindh and others 2002 PLC (C:S.) 117; Abdul Ghafoor, Supervisor/ Inspector, N.H.A. v. National Highway Authority and 12 others 2002 SCMR 574; Z.A. Javed Raja, Administrative Officer, Federal Directorate of Education, Islamabad v. Secretary Establishment Division, Islamabad and 3 others 1996 SCMR 329, Dr. Munir A. Abroo v. Federation of Pakistan and others 2000 PLC (C.S.) 231; Pakistan Railway v. Zafar Ahmed 1997 SCMR 1730; Order dated 30-3-2006 passed by honourable Supreme Court of Pakistan in Constitutional Petition No.679-K of 2005; Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others PLD 1990 SC 1013; Ayyaz Anjim v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ghulam Abbas Mujahid v. Executive District Officer Agriculture, Multan and 3 others PLC 2008 (C.S.) 585; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Pakistan Tobacco v. Tahir Raza 2007 SCMR 97 ref.

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

----Art. 19 (1)(b)(ii)---Quo warranto, writ of---Nature and object stated.

Writ of quo warranto is in the nature of laying information before a Court against a person, who claims to hold public office, franchise or liberty requesting for holding an inquiry to enable him to show authority under which he supports his claim or right to public office, franchise or liberty. The object of writ of quo warranto is to determine legality of the holder of a statutory or constitutional office and decide as to whether he is holding such office in accordance with law or is unauthorizedly occupying the public office. The Court would be under an obligation to enquire whether the incumbent is holding public office under the orders of competent authority and also to examine whether he would be legally qualified to hold the office and to remain in the same.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 rel.

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

----Art. 199 (1)(b)(ii)---Quo warranto, writ of---Laches---Holding of public office by respondent, if illegal, would be a continuing cause of action, against which no laches would operate.

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

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Illegal appointment of respondent-civil servant challenged by his colleague civil servant (petitioner)---Plea of respondent that petitioner himself being a civil servant could not maintain petition of quo warranto---Validity---Such plea might have some weight, if petitioner claimed relief for himself or raised his own grievance or had grudge against respondent---Petitioner in the present case had simply laid information before court regarding illegal appointment of respondent---High Court repelled plea of respondent in circumstances.

Faiz Ghanghro for Petitioners.

Shafi Muhammad Memon, A.A.-G. Sindh for Respondents Nos.1 and 2.

Irfan Mir Halepota for Respondent No.3.

Date of hearing: 10th March, 2010.

2010 P L C (C.S.) 748

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Dr. ISHAQUE MUHAMMAD SHAH

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and 2 others

Constitutional Petition No.D-2184 of 2008, decided on 29th April, 2010.

(a) National Bank of Pakistan (Staff Service) Rules, 1980---

----National Bank of Pakistan (Staff Service) Rules, 1973---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Part-tune Medical Officer---Separation of petitioner from Bank service at age of 60 years without notice and payment of pension/gratuity---Petitioner seeking extension in service on the ground that he was discriminated as his predecessor-in-office had been allowed to serve upto age of 86 years; and Bank had allowed extension in service to their employees beyond 60 years ---Validity---Petitioner had joined Bank on monthly consolidated retainership fee without payment of any allowances, fringe benefits, facilities etc.---Appointment letter of petitioner stipulated that his appointment would be of purely temporary nature and Bank would have right to cancel his appointment at any time without assigning any reason and without any notice---Petitioner had joined service after accepting such letter---Petitioner had been separated from service on basis of decision of Operations Committee of Bank after giving him separation package as allowed by Bank to its Senior Vice President on retirement on superannuation---Nothing on record was available to show confirmation of his employment by Bank---Status of petitioner as part-time Medical Officer continued till his separation, though with passage of time his retainer-ship fee was increased and he was given status of Senior Vice President---Granting extension in service was within domain and discretion of management of Bank, which domain/discretion could not be questioned, more so where case being of a temporary/contractual employee---Merely allowing his predecessor-in-office to serve up to age of 86 years would not furnish ground to petitioner either of claiming discrimination or for extension in service as his employment being of purely temporary/contractual nature would not confer upon him any right of being provided extension in service---Petitioner did not cite any rule to have violated by Bank while passing the impugned order---National Bunk of Pakistan (Staff Service) Rules, 1980 were not statutory, whereas rules applicable to petitioner were National Bank of Pakistan (Staff Service) Rules, 1980 to be statutory rules---Petitioner's service being purely of temporary/contractual nature was liable to be terminated at any time without any notice---Petitioner not being a permanent employee was not entitled to payment of pension, gratuity and leave encashment---High Court dismissed constitutional petition in circumstances.

National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1993 SCMR 105 rel.

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

----Art. 199---Constitutional Petition---Maintainability ---Statutory body, employee of---Termination of service without notice---Petitioner had to show that he was governed by statutory rules of service; and that employer while terminating his service has violated such rules---High Court would come to rescue petitioner, if such fact of violation was established.

Umar Farooq Khan for Petitioner.

Chaudhry Muhammad Ashraf Khan for Respondents Nos.1 and 2.

Ashiq Raza, D.A.-G.

2010 P L C (C.S.) 795

[Karachi High Court]

Before Mashir Alam and Aqeel Ahmad Abbasi JJ

TASLEEM AKHTER

Versus

PAKISTAN through Secretary Revenue, Islamabad and 3 others

C.P. No.D-355 of 2010, decided on 21st May 2010.

(a) Civil Service---

----Fact-finding inquiry---Object and scope---Where competent authority is not clear as to delinquency of an employee, before formally charge-sheeting the delinquent, may consider expedient to carry a fact finding or preliminary inquiry-Fact-finding or preliminary inquiry neither exonerates nor punishes the delinquent, it only enables the authority to objectively make a decision whether substantial material and justification exists to embark upon formal departmental disciplinary proceedings within the contemplation of disciplinary law---Purpose of preliminary or fact-finding or preliminary inquiry is neither to exonerate nor to punish the delinquent, it is only held for the purpose of collecting evidence in support of allegation for holding regular inquiry under relevant disciplinary rules and or regulations--Fact-finding or preliminary inquiry is not compulsory but it depends on case to case basis and where competent authority is prima facie convinced that there is substantial material before it to proceed against delinquent, there is no need to embark on fact-finding expedition and regular inquiry can be initiated directly---No procedure is prescribed to hold such fact-finding inquiry, delinquent may or may not be examined, it may be ex parte and it all depends on the nature of delinquency complained of---If any material or evidence collected during fact-finding process is to be used to charge-sheet the delinquent, it has to be confronted to the delinquent in a formal inquiry, otherwise evidence collected behind the back of delinquent cannot be used against such person.

Province of Punjab v. Abdul Rehman Durrani PLD 1979 SC 711; Champaklal Chimanlal Shah v. Union of India AIR 1964 SC 1854 and Inspector-General of Police v. Shafqat Mehmood 2003 SCMR 207 rel.

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

----Ss.3 & S---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disciplinary proceedings---Holding of inquiry, dispensing with---Scope---Petitioner was aggrieved of initiating of proceedings against him under the provisions of Removal from Services (Special Powers) Sindh Ordinance, 2000---Validity---Where authority was possessed of sufficient documentary evidence against delinquent and for the reasons to be recorded in writing, it was satisfied that there was no need of any inquiry, might also dispense with holding inquiry, before inflicting any penalty under the law---Where no such tangible material was available before forming an opinion as to guilt or otherwise of a delinquent on any count under S.3 of Removal from Service (Special Powers) Sindh Ordinance, 2000, the authority might carry out investigation into allegations/charges through inquiry officer/committee---No charge-sheet or show cause notice was issued to petitioner prior to the order in inquiry assailed before High Court, charging petitioner of the acts of omission and commission constituting inefficiency, misconduct and corruption---Petitioner before replying to charge invoked jurisdiction of High Court---High Court directed the petitioner to file written defence in terms of S.5(1)(b) of Removal from Service (Special Powers) Sindh Ordinance, 2000---Petition was dismissed in circumstances.

Muhammad Azhar v. General Manager (Operation). Power WAPDA PLD 1990 Lah. 352; Muhammad Khaliq v. Board of Intermediate and Secondary Education 2000 PLC (C.S.) 1373; Gursewak v. State AIR 1954 Pepsu 129; Javed Maqbool Bhatti v. Secretary Irrigation and Power Department 1998 PLC (C.S.) 208; Aftab Ahmed Jafri v. Pakistan 2004 PLC (C.S.) 52; Union of India v. K.D. Panday and another (2002) 10 SCC 471; Samiullah Khan Marwat v. Government of Pakistan 2003 SCMR 1140; Muhammad Hayat Superintending. Engineer v. Government of West Pakistan PLD 1964, Lah. 264; Khalida Amjad v. Government of Punjab 2009 PLC (C.S.) 1; M. Siddique Mirza v. Assistant Director E.E Cell (FIA) 1990 MLD 1588 and Mansoor Ahmed v. The State 2003 MLD 1050 ref.

Ms. Pooja Kalpana for Petitioner.

Mian Khan Malik, D.A.-G., for Respondent No.1.

Zain Jatoi for Respondent No.2.

Raja M. Iqbal for Respondents Nos. 3 and 4.

Date of hearing: 3rd April, 2010.

2010 P L C (C.S.) 832

[Karachi High Court]

Before Mushir Alam, J

SURRIYA BEGUM

Versus

CITY NAZIM, CITY DISTRICT GOVERNMENT, KARACHI and 4 others

Constitution Petition No. D-586 of 2008, decided on 4th September, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Pro forma promotion---Petitioner claimed that she was given pro forma promotion upto date as grade 17 vide order dated 1-10-1995---Contention of counsel for respondent authority was that as the petitioner had retired, was not entitled for post of BPS-17 without the approval of the competent Authority---If the petitioner's promotion was on the basis of some impropriety, it should have been recalled or at least cancellation order of her promotion ought to have been made---Counsel for the authority had stated that such facts had been stated in the counter­-affidavit---Mere assertion on oath in the counter-affidavit was not sufficient to dispel an admitted order of promotion for recall of any promotion on any ground whatsoever by the competent authority-High Court directed that petitioner's retirement benefits be calculated according to BPS-17 w.e.f. 1-10-1995, when she was given pro forma promotion.

Ms. Erum Khan for Petitioner.

Manzoor Ahmed for Respondents.

2010 P L C (C.S.) 856

[Karachi High Court]

Before Anwer Zaheer Jamali, C.J. and Ghulam Dastagir A. Shahani, J

Engineer MAJEED AHMED MEMON

Versus

LIAQUAT UNIVERSITY OF MEDCIAL AND HEALTH SCIENCES JAMSHORO through Principal Executive and 3 others

Constitutional Petition No.D-1202 of 2008, decided on 28th November, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Scope---Civil Service---Probationer---Termination of service---Petitioner was on probation period and on the allegations of irregularities, malpractices and misappropriation of university funds, his services were terminated---Validity---Jurisdiction of High Court under Art.199 of the Constitution was discretionary and equitable in nature, which was to be exercised only to foster cause of justice and not to provide shield of technicalities to protect interest of litigants---Petitioner, according to the report of Inquiry Committee was found involved in some irregularities for which he could not offer any satisfactory reply---To avoid cumbersome procedure of inquiry, authorities intelligently opted for other course for relieving petitioner from their institution on the ground that his services were no more required by University, such course adopted by authorities was unexceptionable---Termination of service of petitioner during probation period was duly warranted by law and he was not entitled for any relief from High Court---Petition was dismissed in circumstances.

2006 CLC 92; 2003 SCMR 1840; 2001 SCMR 1822; 2000 SCMR 1827;1999 SCMR 856; PLD 1992 SC 825; 1987 SCMR 1119; 1987 SCMR 1543; 2007 PLC (C.S.)909; SBLR 2007 (sic)134; PLD 2006 SC 175; 2003 SCMR 1720=2003 PLC (C.S.)1303; 2001 PSC 166; 2001 SCMR 269; 2001 SCMR 256; 1998 PLC (C.S.)1272; 1996 SCMR 127; PLD 1970 Pesh. 176; PLD 1965 SC 90; PLD 1974 SC 106 and Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 ref.

Ansari Abdul Lateef for Petitioner.

Kamaluddin for Respondents.

Date of hearing: 13th November, 2008.

2010 P L C (C.S.) 868

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Dr. SHAHNAZ IMDAD KEHAR

Versus

JINNAH POST GRADUATE MEDICAL CENTER through Executive Director, J.M.P.C. Karachi and 2 others

Constitutional Petition No.D-1551 of 2008, decided on 20th March, 2009.

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

----R. 3(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Non-consideration for---Grievance of petitioner was that though she possessed required qualification and experience but she was not promoted and instead fresh candidates from different provinces were appointed---Validity---Jinnah Postgraduate Medical Centre (J.P.M.C.) was federally administered entity and Federal Government had allocated quota of all provinces---By virtue of allocation of posts, 50% seats were allocated to Punjab, 19% seats to province of Sindh, which was further sub-allocated as 11.4% to Sindh (Rural) and 7.6% to Sindh (Urban) and 11.5% seats to North-West Frontier Province, 6% to Balochistan as well as 4% to NA/FATA and 2% to Azad Government of Jammu and Kashmir---Posts in the Institution had been allocated province-wise by Federal Government as such maintaining quota prescribed by government and the same could not in any way be termed to be illegal---Petitioner did not qualify for the purpose of her next promotion as Professor in BPS-20 on the day when post of Professor had become vacant as still she had not completed the length of her service as Associate Professor as well as two requisite research papers, therefore, petitioner was not found fit for her promotion as Professor in BPS-20---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Petition was dismissed in circumstances.

Dr. Anjum Syed v. Federal Public Service Commission through Chairman, Islamabad and others 2006 CLD 1852; Luqman Zareen and others v. Secretary Education, N.-W.F.P. and others 2006 SCMR 1938; Muhammad Arshad Khan Tehsildar v. Azad Government of State of Jammu and Kashmir through Chief Secretary, Muzaffarabad 2000 PLC (C.S.)247; Ashfaq Hussain v. Chief Secretary, Government of Punjab and others 2006 PLC (C.S.)491 and Niaz Muhammad v. Federation of Pakistan through Chief Secretary, Ministry of Commerce Islamabad, and other 2008 PTD 1517 distinguished.

Wasiq Ahmed Keher and Ms. Darakhshan Jehan for Petitioner.

Umer Hayat Sandhu, D.A.-G. for Respondent.

Date of hearing: 13th February, 2009.

2010 P L C (C.S.) 876

[Karachi High Court]

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

MEHTAB AHMED

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, KARACHI and 2 others

Constitutional Petition No.D-70 of 2008, decided on 4th November, 2008.

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

----Ss. 3(c)(iv)/5(5)---National Accountability Ordinance (XVIII of 1999), Ss. 25(a), 25(b) & 15---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Removal of petitioner from service---Validity---No authorization had been made for investigation against the petitioner and prior to the same petitioner, in pursuance of the notice issued by an official of the National Accountability Bureau had placed all his assets before the Chairman NAB, as a result whereof Rs.15,00,000 offered by him had been accepted by NAB per S.25(a) of the National Accountability Ordinance, 1999---Case of petitioner thus did not fall under section 15 of the National Accountability Ordinance, 1999---Letter of acceptance of the amount and closure of the inquiry had been duly conveyed to the Collector of Customs, but despite that he had issued a show-cause notice to the petitioner intimating him that his discharge under section 25(a) of the Ordinance amounted to corruption---In response to the said show-cause notice petitioner contended that voluntary return having been made by him to NAB, under section 25(a) of the National Accountability Ordinance, 1999, he had been discharged from all liabilities and his case did not fall under section 25(b) of the said Ordinance and that the show-cause notice issued to him under section 3(c)(iv) read with section 5(5) of the Removal from Service (Special Powers) Ordinance, 2000, was liable to be set aside, but even then the petitioner had been removed from service vide impugned order---No one could be penalized twice for the same offence under the law---Petitioner (accused) had a clean record and no separate enquiry had been conducted against his alleged corruption---Proceedings had been initiated against the petitioner employee with mala fide intention and in violation of statutory provisions of law---High Court, therefore, could exercise jurisdiction under Article 199 of the Constitution---Impugned order of dismissal of petitioner on the basis of voluntary return under section 25(a) of the National Accountability Ordinance, 1999, was vague, illegal and based on mala fides and the same was consequently set aside---Constitutional petition was allowed accordingly.

Syed Ali Nawaz Shah and 2 others v. The State and others PLD 2003 SC 837; Government of Sindh v. Fahad Naseem and 3 others 2002 P.Cr.LJ 1765; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan and others 2006 PLD SC 602; Muhammad Dawood and others v. Federation of Pakistan and others SBLR 2007 Sindh 495; Government of West Pakistan v. Begum Aga Abdul Karim Sorish PLD 1969 SC 14 & 31 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

(b) Maxim---

----"Nemo bis puniture aut vexatur pro eodem delicto"---Protection against double punishment---Rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "nemo bis puniture aut vexatur pro eodem delicto" which means that no one should be penalized twice for the same offence.

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

----S.2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified---Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies---Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before the Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation---Cases in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602---Supreme Court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing on the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

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

----S. 2-A---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Where proceedings have been initiated against the employees with mala fides or in violation of statutory provisions or of any other law, High Court can exercise jurisdiction in' the matter for redressing the wrong.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan and others 2006 PLD SC 602; Muhammad Dawood and others v. Federation of Pakistan and others SBLR 2007 Sindh 495; Government of West Pakistan v. Begum Aga Abdul Karim Sorish PLD 1969 SC 14 & 31 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

Muhammad Ashraf Qazi for Petitioner.

Raja Muhammad Iqbal and Ch. Muhammad Iqbal ADGPA NAB for Respondents.

Dates of hearing: 28th April and 20th May, 2008.

2010 P L C (C.S.) 894

[Karachi High Court]

Before Zafar Ahmed Khan Sherwani and Bin Yamin, JJ

RIAZ AHMED and 2 others

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh, Board of Revenue at Hyderabad and 3 others

Constitutional Petitions Nos.D-458 and D-692 of 2008, decided on 10th November, 2008.

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

----Art.201---Judgment of equal Bench---Effect---Earlier judgment of equal Bench in High Court under Art.201 of the Constitution, only on question of law and its interpretation is binding upon second Bench.

(b) Precedent---

----Decision given in a case is meant primarily to apply to facts of that case and can have little weight in a case where facts are different.

S. Muhammad Din and Sons Ltd. v. Assistant Director, Labour Welfare (Conciliation) Lahore Region, Lahore PLD 1968 Lah. 1012 rel.

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

----Art.199---Constitutional petition---Laches---Concealing of material facts---Effect---Grievance of petitioners was that they were selected in year, 1998, but were not called for training and fresh process of selection had been completed in due course of time---Validity---Authorities had done similar exercise in year, 2004, and had demanded applications for trainees but petitioners did not challenge the same, therefore, their petition suffered from lathes---Authorities had completed regular process of selection of trainees after holding test, the petitioners filed their petition without disclosing earlier selection process which was initiated by authorities in year, 2004---Petition was dismissed in circumstances.

Multi Line Associates' case 1995 SCMR 362 ref.

Habibullah G. Ghouri for Petitioners (in C.P. No.458 of 2008).

Inayatullah Morio for Petitioner (in C.P.No.692 of 2008).

Abdul Hamid Bhrgari, Addl. A.-G.

Date of hearing: 7th November, 2008.

2010 P L C (C.S.) 902

[Karachi High Court]

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

NABI BUX JAHEJO and 14 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Agriculture and 3 others---Respondents

Constitutional Petition No. D-2052 of 2007, decided on 26th March, 2009.

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

----Art. 4---Dealing in accordance with law---Scope---Constitution provides a right for individuals to be dealt with in accordance with law---To be treated in accordance with law is inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

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

----Art.25---Discrimination---Categories---Discrimination can fall into various categories such as racial, sexual, on account of caste, colour, or creed etc.---Such are the obvious forms of discrimination, which may arise in many other ways.

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

----Arts. 25 & 199---Constitutional petition---Civil service---Reasonable classification---Principle of intelligible differentia---Applicability---Petitioners possessed diplomas of Associate Engineers and were working in BPS-16 while officials having degrees in Agricultural/Civil/Mechanical engineering were placed in BPS-17---Grievance of petitioners was that they had been discriminated by the authorities by not placing them in BPS-17---Validity---In order to determine whether a classification was reasonable, it should be based on intelligible differentia which distinguished persons or things that were grouped together from those who had been left out---Differentia should have rational nexus to object sought to be achieved by such classification---Law applying to one person or one class of persons might be constitutionally valid if there was sufficient basis or reason for the same---Classification which was arbitrary and was not founded on any rational basis was no classification as to warrant its exclusion from the mischief of Art.25 of the Constitution---Classification of BPS-16 to Diploma Holders and BPS-17 to Graduates was neither arbitrary nor founded on any unreasonable or irrational basis---Decision of authorities was based on the type of educational qualification, which officials held---High Court did not find any discrimination against petitioners---Petition was dismissed in circumstances.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC at 341; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 at page 1445; Muhammad Asghar Zardari and others v. C.D.A. and others PLC 2008 C.S. 1219 and Water and Power Development Authority v. Muhammad Jehangir 2007 SCMR at page 1900 rel.

Muhammad Nawaz Shaikh for Petitioners.

Miran Muhamamd Shah, A.A.G. Sindh.

2010 P L C (C.S.) 911

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

MEHBOOB AHMAD SOOMRO

Versus

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

Constitutional Petition No.342 of 2008, decided on 9th February, 2009.

Per Arshad Noor Khan (J)--

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Compulsory retirement---Recommendations of inquiry officer---Inquiry officer recommended stoppage of two years' salary of petitioner but competent authority compulsorily retired him from service---Plea raised by petitioner was that competent authority did not follow recommendation of inquiry officer---Validity---In absence of any allegation against inquiry officer it could not be said that inquiry conducted by inquiry officer against petitioner required reconsideration---Conduct and report of inquiry officer was purely a question of fact which could not be entertained and decided in constitutional jurisdiction of High Court---Authorities were not under obligation to follow recommendation of inquiry officer and maximum punishment provided under law could be inflicted by competent authority which ,had been done by the authority---Inquiry had proved that petitioner was responsible for opening fake accounts and sanctioning of loan against such fake accounts and was found guilty of charge and embezzlement---Petitioner did not point out any illegality in proceedings of inquiry which culminated against him---High Court declined to interfere in the order passed against petitioner by authorities---Petition was dismissed in circumstances.

Habib Bank Ltd. v. Ghulam Mustafa Khairati 2008 SCMR 1516 and Khalid Mehmood v. Habib Bank Ltd. 2005 MLD 1798 distinguished.

Per Khilji Arif Hussain (J) agreeing with conclusion of Arshad Noor Khan, J.

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

----Ss.2 (a), 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Compulsory retirement---Show-cause notice was issued to petitioner for committing embezzlement, inquiry officer recommended stoppage of two years' salary but competent authority compulsorily retired petitioner from service---Plea raised by respondent-bank was that constitutional petition was not maintainable against privatized bank---Validity---Respondent-bank was neither corporate body setup, established or owned under management or control by government, therefore, Removal from Service (Special Powers) Ordinance, 2000, was not applicable to respondent bank---After show cause notice, opportunity of hearing was provided and order against petitioner was passed by authorities---Respondent-bank was not covered by definition of `person' given under Art.199 of the Constitution as it was not a corporation under control of Federal or Provincial Government---High Court declined to interfere in the order passed against petitioner by respondent-bank---Petition was dismissed in circumstances.

Zulfiqar Ali v. Allied Bank of Pakistan in C.P.No.D-109 of 2005; Abdul Rehman v. The President, Habib Bank Limited and others C.P.No.D-882 of 2007 and Abdul Malik v. Habib Bank Limited in C.P.No.226 of 2007 fol.

Chairman, Canara Bank, Bangalore v. M.S. Jasra and others AIR 1992 SC 1100; Federal Bank Ltd. v. Sagar Thomas (2004)120 Company Case 63 and Allied Bank of Pakistan Ltd. v. Muhammad Ayub Tanweri and another 2001 PLC 607 ref.

Petitioner in person.

Shahid Anwar Bajwa for Respondents.

2010 P L C (C.S.) 920

[Karachi High Court]

Before Munib Ahmed Khan, Sajjad Ali Shah and Khalid Ali Z. Qazi, JJ

Dr. MUHAMMAD ZUBAIR YOUSFANI

Versus

SECRETARY, REVENUE DIVISION/CHAIRMAN, CENTRAL BOARD OF REVENUE, ISLAMABAD and 6 others

Constitutional Petitions Nos.D-753, 1332, 1412, 1605, 1673, 1686, 1709, 1743, 1747, 1759, 1767, 1800, 1852, 1894, 1895, 1896, 1897, 1930, 1946, 1948, 1956, 1957, 1971, 2014, 2073, 2118, 2123. 2124, 2152, 2333, 2411 of 2006; C.Ps. Nos. D-95, 274, 332, 339, 340, 405, 473, 498, 636, 537, 539, 563, 574, 606, 617, 618, 619, 709, 740, 754, 813, 815, 824, 865, 1086, 1320, 1331, 1505, 1772, 1817, 1905, 1926, 1943, 2012, 2013, 2145, 2307, 2464, 2564, of 2007 and C.P. No.D-259 of 2008, decided on 30th March, 2009.

Service Tribunals Act (LXX of 1973)---

----S.2-A---Constitution of Pakistan (1973), Arts.189, 190 & 199---Constitutional petition---Abating of proceedings---Judgment passed by Supreme Court---Implementation---Plea raised by petitioners was that after passing of judgment by Supreme Court whether appeals / proceedings filed by petitioners before Service Tribunal had abated automatically or judicial order was needed---Validity---Keeping in view the difficulties pointed out by petitioners, High Court allowed thirty days' time to petitioners to approach Service Tribunal for making application for judicial order on their appeals---High Court directed that present petitions were considered to be pending and would be taken up after the decision from Service Tribunal was filed---Order accordingly.

2007 PLC (C.S.) 1046; 2008 SCMR 402; PLD 2006 SC 602; SBLR 2008 Tribunal 133 and 2009 PLC (C.S.) 497 ref.

Khalid Javed Khan, Farogh Naseem, Asim Iqbal, Moin Azhar Siddiqui, Manzoor Ahmed, Rana Ikramullah, Qazi Abdul Hameed, Khalid Javed, M.M. Tariq, Khalid Imran, Latif Saghar, R.F. Virjee, Jaffer Hussain, Niaz Ahmed, Masood Mukhtar Naqvi, Latifur Rehman Serwary, Muhammad Yaqoob, Shahkeel Ahmed, Mansoor-ul-Haq Solangi, Sohail Zafar Bhatti, Syed Toqeer Hassan, Islam Hussain, Muhamamd Tasleem, Muhammad Asif Khan, Khilji Bilal, Muhammad Azam Khan, Ghulam QadirJatoi, Muhammad Junaid Farooqui, Dilawar Hussain, Ainuddin Khan, Advocates for the Parties.

2010 P L C (C.S.) 957

[Karachi High Court]

Before Faisal Arab and Shahid Anwar Bajwa, JJ

KAMRAN SHEHZAD SIDDIQUI and 2 others

Versus

ADMINISTRATION COMMITTEE and 2 others

Constitutional Petitions Nos.D-1508 and 1563 of 2009, decided on.22nd April, 2010.

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

----Art. 199---Constitutional petition---Civil Service---Recruitment of---Additional District and Sessions Judges---Process and criteria---Different standard---Plea of---Effect---Petitioners challenged the criteria and process for recruitment and selection for vacant posts of Additional District and Sessions Judges on the ground that two different standards had been adopted for two tests and the candidates who even secured less than 50% marks had been called for interview---Further contention raised by petitioners was that previous practice had been that any one who secured 50% marks was allowed to sit in the second test; in the second test neither a pass percentage nor a top skimming level was fixed and there appeared to be discordance between the criteria followed in the first test and process and criteria followed in the second test---Validity---High Court allowed constitutional petitions with direction that all those candidates who secured more than 50% marks in the first test and who were not allowed to sit in the second test be given an opportunity of the second test.

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

----Art. 199---Constitutional petition---Civil Service---Recruitment of---Additional District and Sessions Judges---Conduct of test for---Authority---Scope---Authority to conduct said test was vested in the High Court and if Administration Committee of the High Court for reasons that "National Testing Services" being a Specialized Agency would be more attuned for conducting tests for general knowledge, verbal ability and similar other characteristics, no fault could be found with such a decision by Administration Committee.

Waseem Abid Sheikh (in person).

Kamran Shahzad Siddiqui (in person).

Abdul Qadeer Soomro, Registrar High Court of Sindh and Yousuf Leghari, Advocate-General, Sindh for Respondents.

Date of hearing: 14th April, 2010.

2010 P L C (C.S.) 1118

[Karachi High Court]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

IRFAN MAJEED

Versus

UNIVERSITY OF KARACHI through Vice-Chancellor/Registrar, University Campus, Karachi and another

Constitutional Petition No.D-556 of 2008, decided on 17th June, 2009.

(a) Civil service---

---- "Selection "---Connotation---Selection means selected by Selection Committee and appointment made on the basis of selection by Selection Committee is treated in law as regular appointment particularly when it is made against a substantive post.

(b) Civil service---

----"Permanent" and "temporary" posts---Difference---Temporary post is time bound post which lives only for the period it is sanctioned for and any other post which is created for unlimited period is deemed in law to be permanent post.

(c) University of Karachi Act (XXV of 1972)---

---S. 28(1)(g)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Temporary appointment on permanent post---Effect---Petitioner was appointed after his selection as Office Assistant temporarily but later on he was re-designated as Superintendent and declared as regular and confirmed employee---Subsequently petitioner was demoted and then his appointment was converted into contract appointment---Validity---Appointment against temporary post when permanent post was available on the date of appointment, should be deemed to have been appointed against permanent post from the date of appointment---High Court struck down the order passed by authorities whereby petitioner was demoted and his appointment was declared as temporary, resultantly, petitioner would continue to be in service as regular employee as Superintendent and would be entitled to all monetary benefits including salary admissible to the post of Superintendent---Petitioner was entitled to count his seniority in the grade and post of Superintendent---High Court directed that if any junior to petitioner had been promoted, authorities should consider him for such further promotion being a consequential benefit of his status as regular employee from the date of his initial appointment---Petition was allowed accordingly.

Aneesa Rehman v. PIA 1994 SCMR 2232 and Muhammad Dawood v. Federal Government 2007 PLC (C.S.) 1046 ref.

I.-G.P. v. Ali Abbas NLR 1984 SER 162 (sic) R 163; 1985 SCMR 946; Secretary and Ministry of Defence v. Muhammad Miskeen 1999 SCMR 1296 rel.

Gohar Iqbal for Petitioner.

Muhammad Tasnim for Respondents.

Date of hearing: 22nd May, 2009.

2010 P L C (C.S.) 1150

[Karachi High Court]

Before Nadeem Azhar Siddiqi, J

AMERICAN LIFE INSURANCE COMPANY (PAKISTAN) LTD.

Versus

COMMISSIONER, SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION and others

Miscellaneous Appeal No.13 of 2006, decided on 23rd May, 2009.

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

----S. 59---Civil Procedure Code (V of 1908), O.XXIX, R.1---Companies Ordinance (XLVII of 1984), S.17---Appeal by company through a person having authority letter of its Chief Executive Officer---Maintainability---Resolution of Board of Directors of company authorizing its Chief Executive Officer through power of attorney to institute and defend legal proceedings with further powers to delegate such powers to another person---Authority letter not signed by Chief Executive Officer, but signed by someone else on his behalf---Validity---Documents creating rights and liabilities could be signed only by a person duly authorized under a valid document---Person having signed authority letter was not shown to be sub-delegatee of Chief Executive Officer/attorney of company---Authority letter was not signed by a person authorized by company to act on its behalf or delegate such powers to another person---Chief Executive Officer/attorney of company should have himself either filed appeal or authorized another person to file same---Filing of suit/appeal on behalf of company by an unauthorized person was not an act, which could be ratified by a subsequent resolutions-Legal proceedings on behalf of company instituted through a person not duly authorized would be nullity in eye of law---High Court appeal dismissed for being not maintainable.

Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62; Dr. S.M. Rab v. National Refinery Limited and another PLD 2005 Kar. 478; Messrs Razo (Pvt.) Limited v. Director, Employees' Old Age Benefit Institution 2005 CLD 1208 and Javedan Cement Limited v. Director, SESSI and others 2008 PLC 312 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XXIX, R.1---Suit or appeal on behalf of company filed by an unauthorized person not an act to be ratified by a subsequent resolution---Such proceedings would be nullity in eye of law---Principles.

Filing of a suit/appeal by an unauthorized person is not an act, which can be ratified or clothed with legality by a subsequent resolution/ authorization conferring on him such powers.

The law requires that the person filing/instituting legal proceedings on behalf of a company should be duly empowered/ authorized to do so. Therefore, if any legal proceedings on behalf of a company are filed by a person not duly empowered/authorized to do so; such legal proceedings would be nullity in the eye of law.

(c) Administration of justice---

----When law required doing of a thing in a particular manner, then same could be done in such manner only or not at all.

Khurram Rasheed for Appellant.

Jawwad Sarwana for Respondent.

2010 PLC (C.S.) 1157

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, J

ZAHID ALI LAKHO---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MIRPURKHAS through Chairman and 6 others---Respondents

Constitutional Petition No. D-2575 of 2009, decided on 12th May, 2010.

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

----S. 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Departmental proceedings---Forged documents---Repatriation to parent organization---Petitioner during his deputation to borrowing department was absorbed in that department on the basis of a letter which proved to be forged and fake letter---Effect---Petitioner disowned the letter on the basis of which letter borrowing department regularized his services---Parent department stated the letter to be a forgery---Letter having not been issued by parent department, there was no document on the basis of which it could be concluded that consent of parent department was obtained by borrowing department before absorption of petitioner in its service---Borrowing department acted upon the basis of letter which proved to be a forged document, therefore, basis desideratum of decision to absorb petitioner in employment had disappeared---It was only the employer who could take domestic disciplinary action against his employee and a stranger though he' might resort to civil remedy or criminal action, could not initiate domestic action against a person who was claimed to be no more his employee---It was legal obligation on parent department to take back the petitioner in employment and was at liberty to proceed against him on the basis of show-cause notice already issued to him---While taking disciplinary action against petitioner, parent department should in no way be influenced by contents of its earlier letter or proceedings of inquiry conducted by borrowing department---Petition was dismissed accordingly.

Province of Punjab, through Secretary C&W Department and others v. Ibrar Younas Butt, 2004 SCMR 67 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814 ref.

M. Arshad Khan Tanoli for Petitioner.

Qazi Khalid Ali for Respondent No.1.

Adnan Karim, Addl. A.-G. for Respondents.

Date of hearing: 29th April, 2010.

2010 P L C (C.S.) 1169

[Karachi High Court]

Before Imam Bux Baloch and Nisar Muhammad Sheikh, JJ

GUL MUHAMMAD and 4 others

Versus

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

Constitutional Petition No.D-994 of 2009, decided on 27th May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Petitioners urged for direction to the authorities to regularize their services against permanent/vacant posts---Contention of the petitioners was that being low paid employees, they were working honestly upto the satisfaction of their superiors and no complaint was ever made against them---Petitioners further contended that they were working since 2004 on daily wages basis and had applied to the competent authority for their regularization but the competent authority had not considered their request---High Court allowed the constitutional petition with direction to Executive District Officer (Revenue) to regularize the services of the petitioners on the posts, on which they were working, within one week.

Mustafa Hussain and others v. Province of Sindh and others C.P. No.D-1194 of 2009 and C.P. No.D-901 of 2009 rel.

Qazi Manzoor Ahmed for Petitioners.

Abdul Hamid Bhurgri, Addl. A.-G. for Respondents.

2010 P L C (C.S.) 1208

[Karachi High Court]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Mrs. RUBINA FAIZ

Versus

UNIVERSITY OF KARACHI through Vice-Chancellor and 5 others

Constitutional Petition No.D-1849 of 2008, decided on 11th March, 2009.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition--Termination of service---Grievance of petitioner was that she had been wrongly terminated from service---Validity---Post of Secretary to Director-General fell in BPS-17 and appointment for the post was completely within the domain of Selection Board, on whose recommendation Secretary in BPS-17 could be appointed---Petitioner was never recommended by Selection Board and she was simply appointed by Director-General for limited period on contract basis, which period had expired---Petitioner was relieved from the charge after expiry of her contract period and was no more in service---High Court in exercise of constitutional jurisdiction declined to interfere in the order terminating service of petitioner---Petition was dismissed in circumstances.

Gohar Iqbal for Petitioner.

Muhammad Tasneem for Respondents.

2010 P L C (C.S.) 1233

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

TAHIR AHMED and others

Versus

NAEEM IQBAL and others

Constitutional Petitions Nos.D-135 and D-286 of 2007, decided on 26th June, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Policy matters---Benefits of employees, determination of---Petitioners/employees opted for separation from bank under Scheme announced in year, 2005---Grievance of petitioners was that they had not been given further benefits which were available in Scheme announced in year, 1997---Validity---Payments to optees of Scheme of year, 1997, in respect of purchase of future payments was based on certain calculation and High Court in constitutional jurisdiction could not undertake .exercise to determine as to what should be life expectancy of a person at a particular age---Such was the job for professionals and no material had been placed on record by petitioners to demonstrate any fallacy or unreasonableness in table designed by the Actuaries---Petitioners exercised their option and received benefits in accordance with their option under Scheme of year 2005---Scheme of year, 1997 was different Scheme, where some of the benefits were paid to employees and other benefits were held to be payable over a span of an employee's life and in case of death of such employee or his widow's life---Two Schemes were materially different---Repurchase Scheme must have been designed keeping in view commercial considerations of organization and High Court declined to interfere with decision by management which decision was based on commercial considerations---Petition was dismissed in circumstances.

Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325; Imdad Magsi and others v. Karachi Water and Sewerage Board and others PLD 2002 SC 728=2002 PLC (C.S.) 1361; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; State Bank of Pakistan v. Khyber Zaman and other, 2004 PLC (C.S.) 1213; Syed Nasim Ahmed Shah and others v. Sate Bank of Pakistan and others C.P. No.D-1708 of 2008 and New Jubilee Insurance Employees' Union v. SLAT Karachi and another 1982 PLC 1012 ref.

United Bank Limited v. Shahmim Ahmed Khan and 41 others. PLD 1999 SC 990 rel.

Zamir Ghumro for Petitioners (in C.P. No.D-135 of 2007).

Abdul Mujeeb Pirzada for Petitioners (in C.P. No.D-286 of 2007).

A.I. Chundrigar for Respondents.

Date of hearing: 5th May, 2010.

2010 P L C (C.S.) 1254

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUSTAFA ALI KHAN

Versus

PROVINCE OF SINDH through Secretary, Local Government, Government of Sindh and 2 others

Constitutional Petition No. D-499 of 2009, decided on 25th May, 2010.

Karachi Water and Sewerage Board Employees (Promotion, Confirmation and Seniority) Rules, 1987---

----R. 15(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil Service---Regularization of Ad hoc appointment with retrospective effect---Petitioner who was employed as Overseer in BPS-11, was promoted to the post of Assistant Executive Engineer in BPS-17 with immediate effect---Subsequently when post of Executive Engineer Scale 18 was created, petitioner worked on that post on ad hoc basis from the creation of said post---Petitioner claimed regularization of his ad hoc appointment with retrospective effect from the date he worked on said post---Petitioner contended that if an employee was posted on a higher grade, either on ad hoc basis or officiating basis and performed higher duties, he was entitled to be paid the benefits of such higher post---Validity---No doubt, it was provided that if a civil servant was posted on higher post and performed higher duties, he had been made entitled to benefits of such higher post as per the prescribed rules applicable to civil servants, however, it was not a general principle of law that a person given ad hoc or officiating charge of higher post or to perform higher duties, automatically would become entitled to benefits of higher post or of higher duties---Petitioner had neither pleaded in the petition the criteria of eligibility and qualification for being appointed as Executive Engineer in BS-18, nor that he fulfilled the said criteria---Record did not show that the petitioner, in fact was eligible and possessed the qualification for being appointed as Executive Engineer BS-18---Constitutional petition was dismissed.

Federation of Pakistan v. Shehzada Shahpur Jan 1986 SCMR 991; Abdul Qayyum v. Secretary Ministry of Defence 1993 SCMR 1097 and Ch. Faqeer Muhammad v. Secretary to Government of Punjab 2009 SCMR 405 ref.

Abdul Kareem Khan for Petitioner.

Syed Tassawar Hussain for Respondents.

Date of hearing: 8th April, 2010.

2010 P L C (C.S.) 1258

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD RAHIM SHEIKH

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. through Chief Executive Officer and 3 others

Constitutional Petition No. D-825 of 2009, decided on 24th March, 2010:

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had sought relief to the effect that (a) to declare that Civil Servants Rules and Removal from Service Special Powers Ordinance, 2000 were. not applicable to the employees of Pakistan Telecommunication Company; (b) to declare the impugned order/notification, passed without any lawful authority null and void and without any legal effect and same was liable to be set aside; (c) to restrain the PTCL Management/respondents from evacuating the petitioner from departmental accommodation and other facilities, till the final disposal of the matter---In the present case employer/respondent was PTCL, which did not have any statutory rules of service and even the major portion of the company had been privatized---Counsel for the petitioner in support of his claim had relied upon judgment of Supreme Court dated 22-6-2009, whereunder Supreme Court had maintained filing of constitutional petition by the employees of PTCL and had proceeded to grant relief to them---Supreme Court in its subsequent judgment 12-3-2010 hade decided that in the event where service in a statutory Corporation was not governed by statutory rules of service and where no violation of statutory rules of service was alleged, constitutional petition before the High Court could not be maintained; as the principles of master and servant would apply and employee would have remedy for suing for damages---Constitutional Petition was disposed of with directions to the petitioner to avail remedy in accordance with law.

Gohar Iqbal for Petitioner.

Mahmood Abdul Ghani for Respondents Nos. 1 to 3.

2010 P L C (C.S.) 1277

[Karachi High Court]

Before Faisal Arab and Abdul Hadi Khoso, JJ

Syed IRFAN HYDER SHAH and 10 others

Versus

PROVINCE OF SINDH through Secretary, Education and Literacy Department, Karachi and 4 others

Constitutional Petitions Nos.D-863 of 2009 and 276 of 2010, decided on 1st July, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Appointment of petitioners as Primary School Teachers---Failure to pay salaries to the petitioners---Petitioners had joined the services and started working, but they were not paid salaries---Plea of Additional A.-G. was that only 32 posts were to be filled, but Executive District Officer issued appointment letters in excess of those 32 posts; and as budgetary allocation was only for 32 posts, salaries could not be paid in excess of 32 posts---Petitioners who after issuance of appointment letters were given posting and they having rendered services, had at least become entitled for remuneration for the period for which they had worked---Petitioners having been appointed on contract basis for a period of three years, they did not fall within the jurisdiction of Service Tribunal---In case of the petitioners did not fall within the first 32 posts to be determined in accordance with the marks, they obtained on merits, then the department would be at liberty to terminate their contracts, however, till then they could not be deprived of their remuneration for service rendered---Department would be at liberty to take appropriate legal action for recovery of excess amount from Executive District Officer, who, without any authorization had issued appointment letters in excess of the sanctioned strength---High Court directed that the petitioners be paid salaries for the entire period for which they had been working.

Ahsan Gul Dahri for Petitioners.

Abdul Latif Ansari for Petitioners (in C.P. No. D-276 of 2010).

Allah Bachayo Sommro, Addl. A.-G. along with Shahid Hussain Khahro, Administrative Officer E.D.O.(E) Matiari and Aftab Ahmed Junejo, District Accounts Officer, Matiari for Respondents.

2010 P L C (C.S.) 1360

[Karachi High Court]

Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ

SHAHID MEHMOOD USMANI

Versus

HOUSE BUILDING FINANCE CORPIJRATION through Managing Director and others

Constitutional Petitions Nos.D-2705 of 2009, D-1768, D-1771, D-1871, D-1872, D-1894 to D-1897, D-2018, D-2031, D-1918, D-405 of 2006, D-563, D-574, D-795, D-871, D-1320, D-1331, D-1643, D-1648, D-1951 and D-2464 of 2007, decided on 3rd June, 2010.

(a) Interpretation of statutes---

----Statutory rules---Scope---Parliament in any Act itself confers authority upon government or another body, with or without condition to make rules and regulations---Such rules and regulations are called statutory rules, which have the same force as that of statute---As statutory rules derive their power from statute and if any provision in statutory rules is inconsistent with any provision of the Act itself, it would be ultra wires-Subject to such conditions, statutory rules have the same force as that of Act itself.

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

----Ss. 10 & 14-B---Constitution of Pakistan (1973), Art.199---Constitutional petition--Maintainability---Removal from service---Remedy---Non-statutory rules---Petitioners were employees of different corporations owned or controlled by government and were removed from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Petitioner approached Service Tribunal by filing appeals under S.10 of Removal from Service (Special Powers) Ordinance, 2000, but their appeals abated after pronouncement of judgment by Supreme Court in case titled Muhammad Mubeen-us-Slam v. Federation of Pakistan and others reported as PLD 2006 SC 602--Authorities raised objection to maintainability of petition on the ground of rules being non-statutory---Validity---When Parliament decided to regulate any aspect of employment of employee of a Corporation owned or controlled by government, the Parliament might decide to do the same on its own (through an Act) or to grant power of legislation to a State authority or Board of Directors with or without such conditions as the Parliament might choose---First was the case where Parliament could regulate terms ad conditions through statute and second was the case where Parliament chose to regulate terms and conditions of employment through statutory rules---Both, one directly and other by virtue of legislating fiat, regulated employment related matters---High Court observed that it was strange to argue that if Parliament had chosen to regulate through statutory regulation---High Court, in exercise of its constitutional jurisdiction, could step in but if Parliament chose to regulate employment or any aspect of it through a statute itself, High Court would have no jurisdiction to scrutinize such action of administrative authority---If any employee of a State owned/ controlled organization was proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, 2000, and no other remedy was available to him (as remedy was available to workmen under S.41 of Industrial Relations Act, 2001), such employee would be entitled to maintain a constitutional petition under Art 199 of the-Constitution---Petition was maintainable in circumstances.

Muhammad Mubeen-us-Slam v. Federation of Pakistan and other PLD 2006 SC 602; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal No.172-K of 2009; Executive Council, Allama Iqbal Open University, Islamabad, through Chairman and another v. Dr. M. Tufail Hashmi C.P. No.1863 of 2009; Muhammad Idrees's case PLD 2007 SC 681; Humayun Akhtar and Others v. WAPDA House, Lahore and Others, SBLR 2008 Tr. 133; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; House Building Finance Corporation, through Managing Director Karachi and another v. Inayatullah Shaikh, 1999 SCMR 311; Civil Aviation Authority, through its Director General v. Javed Ahmed and another 2009 SCMR 956; Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi, PLD 1999 SC 1126; Munir Ahmed Shaikh v. Federation of Pakistan, through Secretary Establishment Division and another 2002 PLC (C.S.) 394; Malik Taj Muhammad and others v. Secretary Minister of Interior, Government of Pakistan, Islamabad and others, 2009 PSC 1072; Pakistan Telecommunication Company Ltd. v. Muhammad Zahid 2010 SCMR 253; Muhammad Rehan Butt and others v-. PIAC and others 2008 PLC (C.S.) 734; Mehram Ali and others v. Federation Pakistan and others PLD 1998 SC 145; Government of Balochistan, through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Muree Brewery Co. Ltd.' v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others, PLD 1972 SC 279; The Secretary Irrigation Department, Sindh, Karachi v. Nasir Khan and others 1985 PLC 1060 and Government of Sindh through Mechanical Engineer v. Muhammad Husshin and others 1992 PLC 31 ref.

Muhammad Aqil Awan, Mughees Ahmed Samdani (on his own behalf as well as holding brief for Ch. Muhammad Ashraf Khan), Aziz­-ur-Rehman Akhund, Shaukat Ali Shaikh, Noor Muhammad and Irfan Mir Halepota for Petitioner.

Petitioners in Person (in C. Ps. Nos.1871 and 1872 of 2006).

Asim Iqbal, Niaz Ahmed Khan, Sanaullah Noor Ghori, Khalid Imran, Asghar Aloi, Muhammad Junaid Farooqui, Masood Ahmed Khan, Adnan Karim, Additional Advocate-General and Ms. Cookie Rawat, Standing Counsel, for Respondents.

Khalid Jawaid Khan Amicus Curiae.

Dates of hearing: 14th and 24th May, 2010.

2010 P L C (C.S.) 1377

[Karachi High Court]

Before Sarmad Jalal Osmany, C.J. and Ahmed Ali M. Shaikh, J

LAL KHAN

Versus

EMPLOYEE OLD AGE BENEFIT INSTITUTION through Chairman and 2 others

Constitutional Petitions Nos.D-57 to D-69, D-83 to D-85, D-97, D-145, D-368, D-863 to D-865, D-874, D-927, D-928, D-992, D-993, D-996 to D-1000, D-1003, D-1133 and 1157 of 2010, decided on 30th June, 2010.

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

----S. 10---Powers of Government/authority under S. 10 of Sindh Civil Servants Act, 1973---Scope---Government/authority could neither change cadre of civil servant nor absorb or induct him in another department by changing his cadre.

(b) Civil service---

----Deputationist, rights of---Scope---Deputationist had no vested right to remain on post forever or for a stipulated period---Deputationist could not challenge order of his repatriation as he could be repatriated back to parent department at any time.

PLD 1981 SC 531 and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer Labour Court and others (1990) 3 Supreme Court Cases 682 ref.

Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378; Government of East Pakistan vs. Federation of Pakistan PLD 1962 Kar. 353; Munir Hussain v. Government of N.-W.F.P. through- Secretary Elementary and Secondary Education Department N.-W.F.P. Peshawar and 3 others 2009 PLC (C.S.) 733; Dr. Younis Asad Shaikh v. Province of Sindh through Secretary Health Department, Government of Sindh 2009 PLC (C.S.) 735; Justice Khurshid Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483; Punjab Land Development and Reclamation Corporation Ltd vs. Presiding Officer Labour Court and others (1990) 3 Supreme Court Cases 682 and Human Rights Case No.8340-G of 2009 rel.

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

---Art. 189---Decision or obiter dictum of Supreme Court on legal principle or meaning of law---Binding effect stated.

When the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 of the Constitution and is binding on all courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to the apex place which the court holds in the hierarchy of courts in the country, enjoy a highly respected position as if it contains a definite expression of the court's view on a legal principle or the meaning of the law.

Justice Khurshid Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483 rel

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

----S. 40---Practice of posting outsiders on basis of deputation in other departments by changing their cadre---Validity---High Court deprecated such practice for being against justice, equity and good governance---Exception stated.

By inducting outsiders in various departments of the Government, the civil servants who are already serving in their respective departments after qualifying the departmental examinations and/or going through the selection process, have been adversely affected and their reasonable expectation vis-a-vis their promotion, seniority etc., has been snatched away in this fashion. By posting outsiders on the basis of deputation in various departments of the Government and by changing the cadres of the civil servants and inducting/absorbing them in various departments of the Government of Sindh unrest and sense of deprivation have been created amongst the employee already working there, therefore, such practice is against justice, equity and good governance.

However, in dire need, the borrowing department can obtain the services of an employee serving in another department, provided the lending department has consented to it and that no fit and suitable person commensurate to such post is available in the borrowing department, after undertaking a proper exercise for the said purpose. Neither the Chief Minister has power to pass any order with regard to deputation of any officer/official nor do the rules authorize him to do so without following the proper procedure, as by such practice the concept of "good governance" is totally vitiated and being the custodian of the law, High Court cannot allow/justify such practice.

M.M. Aqil Awan for Petitioners (in C.Ps. Nos.D-57 to 69; 83 to 85 of 2010).

Muhammad Nawaz Shaikh along with Asif Ali for Petitioners (in C.Ps. Nos.D-97 and 368 of 2010).

Gohar Iqbal for Petitioners (in C.Ps. Nos.D-992 and D-993 of 2010).

Masaud A. Noorani for Petitioners (in C.Ps. Nos.D-678 and 864 of 2009).

Muhammad Arshad Pathan for Petitioners (in C.P. No.D-159 of 2010).

Kassim Mairaj along with Zamir Ghumro for Petitioners (in C.P. No.D-1856 of 2009).

Khalid Javed Khan for Petitioners (in C.Ps. Nos.D-864 of 2009 and 158 of 2010).

Moharram G. Baloch for Petitioners (in C.P. No.D-145 of 2010).

Mahmoodul Hassan for Petitioners (in C.P. No.D-864 of 2010).

Abdul Salam for Petitioners (in C.P. No.D-1003 of 2010).

Ms. Azeema Naseer for PTCL (in C.Ps. Nos.D-58 and 63 of 2010).

Mirza Adil Baig for Respondent.

Khilji Bilal for Respondents Nos.5, 8 and 10 (in C.P. No.864 of 2010).

Muhammad Zubair Qureshi for Respondent No.1 (in C.P. No.D-67 of 2010).

Ali Azhar Tunio for Respondent/B.I.S.I., Larkana (in C.P. No.D-68 of 2010).

Muhammad Fateh Malik, A.A.-G. for Government of Sindh.

2010 P L C (C.S.) 1395

[Karachi High Court]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

NAVEED IQBAL WADHO and others

Versus

PROVINCE OF SINDH and others

Constitutional Petitions Nos.712 to 714, 716, 726, 748, 715, 743, 750 of 2009 and 160 of 2010, decided on 31st May, 2010.

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

----Arts. 4, 25, 38 & 199---Constitutional petition---Civil service--Regularization of services---Workers on daily wages basis---Appointment---Preferential right---Scope---Petitioners sought directions against authorities to regularize their services and release salaries on the basis of the same---Contention raised by petitioners was that they were appointed on daily wages basis awl their services were regularized by District Government after completing all codal formalities---Petitioners being low paid employees were performing their respective duties and had gained much experience in their respective fields---Preferential right had been created in their favour to regularize them on their respective posts instead of making new appointments---No show-cause notice under relevant rules had been served upon the petitioners with regard to regularization of their services---High Court allowed constitutional petitions with directions to authorities to pay to petitioners their salaries according to their respective pay scales as regular employees since date of regularization of each of the petitioner and petitioners should be treated as regular employees from the date, when District Government would regularize their services.

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

----Art. 199---Constitutional petition---Government functionaries---Constitutional limitations---Government, acting through its officers, was subject to certain constitutional and public law limitations, it must follow, a fortiori, that Government, when it acted through the agency of a corporation, the latter should equally be subject to the same limitations in exercise of its power or discretion---Every action taken by the Government functionaries must be in conformity with the principles which should meet the test of justice, reason, fairness, equality of treatment and must qualify standards and norms that were not arbitrary, irrational, whimsical and discriminatory and must not be guided by extraneous considerations.

Faiz Muhammad Larik and Habibullah Ghauri for Petitioners.

Abdul Hamid Bhrgri, Addl. A.-G. for Respondents.

Date of hearing: 26th May, 2010.

2010 P L C (C.S.) 1415

[Karachi High Court]

Before Gulzar Ahmed and Irfan Sadat Khan, JJ

ALLAUDDIN ABBASEY

Versus

PROVINCE OF SINDH through Chief Secretary, New Sindh Secretariat, Karachi and 3 others

Constitutional Petition No.D-163 of 2008, decided on 18th February, 2010.

(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr. 6-A & 7(3)---Sindh Civil Servants Act (XIV of 1973), S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Transfer of Assistant Director FIA (BS-19) to Police Department and his permanent absorption as Superintendent of Police (BS-19) in relaxation of rules---Petitioner's pleas were that Chief Minister had no power to relax rules; that post of Senior Superintendent of Police was to be filled in from Provincial Police Cadre; that respondent was medically unfit; that such transfer was politically motivated; and that petitioner himself was a Superintendent of Police (BS-18) in Provincial Police Cadre and by induction of respondent, his own prospect for promotion as Senior Superintendent of Police had been brought at naught---Petitioner at time of commencement of hearing abandoned plea of his personal grievance and confined his relief to the extent of declaring induction of respondent as without lawful authority---No personal dispute, thus, existed between petitioner and respondent---Only motivation seemed to be emanating in pursuing such petition by petitioner was and appeared to be of ensuring transparency in making appointments in Provincial Police Cadre---Constitutional petition was maintainable in circumstances.

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

----Art. 199---Quo warranto, writ of---Duty of Court---Court while dealing with such petition would inquire into conduct and motive of relator and examine as to whether he had been motivated on account of his personal dispute with respondent in filing such petition, and as to whether he had claimed any relief for himself.

(c) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

---Rr. 6-A, 7(3) & 17---Sindh Civil Servants Act (XIV of 1973), S.24---Rules of Business, R.7(iii)---Constitution of Pakistan (1973), Art.199---Quo warranto, writ of---Transfer of Assistant Director FIA (BS-19) to Police Department and his permanent absorption in post of Superintendent of Police (BS- 19) with immediate effect in relaxation of rules---Petitioner's pleas were that Chief Minister had no power to relax rules by waiving requirement of seeking recommendations of Provincial Selection Board; that post of Senior Superintendent of Police was to be filled in from Provincial Police Cadre; that respondent was medically unfit; and that such transfer was politically motivated---Validity---Under Rr.6-A & 7(3) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, appointments by promotion and transfer had been bracketed with special pay only to BS-18, but not to post above BS-18---Respondent being that of BS-19 would squarely fall within ambit of Rr. 6-A and 7(3) of Rules, 1974 in absence of mention of special pay for BS-19 therein---Orders passed by Chief Minister would be deemed to be orders passed by Government by virtue of R.7(iii) of Rules of Business---Power to be exercised under S.24 of Sindh Civil Servants Act, 1973 was specifically meant to be exercised by Chief Minister---Nothing was available on record to show that in exercising power under S.24 of Sindh Civil Servants Act, 1973 by Chief Minister, vested rights of any other civil servants had been violated or impugned upon or prejudiced or taken away interest or right of a third person---Had vested right of other civil servant been violated by induction of respondent, then they would have definitely agitated for its enforcement before proper forum---Chief Minister was competent to make such absorption---Nothing on record available to show as to what qualifications were required to be possessed for holding post of Senior Superintendent of Police (BS-19) or there was a requirement of having a police training for such post---Nothing was on record to show that respondent was not qualified for such post held by him; that there was a requirement of filling in post of Superintendent of Police from Provincial Police Cadre only and that respondent was not capable of performing his duties despite suffering from malady---Question of medical fitness was liable to be considered at time of initial appointment and not at subsequent transfer or postings---Petitioner had not produced any certificate of Medical Officer or Medical Board certifying that respondent was incapable to perform duties of post held by him---Nothing was on record except bare allegation of petitioner that the transfer and absorption of respondent on such post was politically motivated---High Court declined to issue writ of quo warranto against respondent and dismissed such petition in circumstances.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Idrees v. Government of Pakistan and others 1998 PLC (C.S.) 239; Dr. Neelam Hussain v. Dr. Razia Parveen Quresbi and 2 others 2003 PLC (C.S.) 1222; Mrs. Shamim Rizwan v. Province of Punjab and others PLD 1997 Lah. 580; Government of Punjab and others v. Muhammad Naseemand others 1999 SCMR 2063; Muhammad Iqbal and others v. Executive District Officer Revenue and others 2007 SCMR 682; Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi PLD 1991 SC 14; order dated 31-3-2009 passed in Constitutional Petition No.D-1595 of 2005; Ahsanullah A. Memon v. Government of Sindh and 3 others 1993 PLC (C.S.) 937; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Mukhtar Ahmed and 37 others v. Government of West Pakistan and another PLD 1971 SC 846; Khalid Mehmood v. Tariq Janjua Executive Engineer Local Government Department and Rural Development Department Gujranwala 1993 PLC (C.S.) 623; Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam 1989 MLD 1351; Shah Abdur Razzaq Gillani v. Government of N.-W.F.P. 1991 PLC (C.S.) 374; Muhammad Iqbal Khokhar and 30 others. v. Government of Punjab and 2 others PLD 1991SC 35; Ahmed Salman Waris v. Nadeem Akhtar PLD 1997 SC 382; Akhtar Mehmood v. Deputy Commissioner, Gurjrat and another 2003 PLC (C.S.) 1146 and Syed Nazar Abbas Jaffri v. Secretary to Government o the Punjab and another 2006 SCMR 606 ref.

Ahsanullah A. Memon v. Government of Sindh and 3 others 1993 PLC (C.S.) 937; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 rel.

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

----Art. 199---Quo warranto, writ of---Object stated.

The object of writ of quo warranto is to determine legality of the holder of a statutory or constitutional office and decide whether he is holding the same in accordance with law or unauthorisedly occupying a public office. The court would be under an obligation to enquire whether the incumbent is holding public office under the order of competent authority and also to examine whether he is legally qualified to hold the office and remain in the office.

Khawaja Shamsul Islam for Petitioner.

Muhammad Sarwar Khan, Addl. A.-G. Sindh for Respondents Nos.1 to 3.

M.M. Aqil Awan for Respondent No.4.

Dates of hearing: 22nd October, 10th and 11th November, 2009.

2010 P L C (C.S.) 1436

[Karachi High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

MONAZZA OBAID and others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC), through Managing Director, and others

Writ Petitions Nos.D-2812 of 2009, D-430, D-126 of 2010, decided on 18th August, 2010.

(a) Pakistan International Airlines Corporation Personnel Policies Manual---

----Para 2.01.01---Constitution of Pakistan (1973), Arts.4, 25 & 199---Constitutional petition---Pakistan International Airlines Corporation Trainee Airhostesses Hostel at Karachi---Permanent female employees of Corporation staying in such Hostel---Issuance of notice to such employees to vacate hostel for same being reserved for trainees or female crew arriving for training from outside of Karachi---Petitioners' plea that allotment of residence in such hostel was on account of concession given by employer, which could not be withdrawn without any fault on part of petitioners---Validity---Question of right to life of an employee would not involve in a case of cancellation or withdrawal of his residential accommodation---According to prevalent rules, such hostel was meant for trainees and that after completion of training, a female cabin crew member could stay therein for a maximum period of one year after date of her passing out---Trainee just inducted into training or still in first year of her employment and belonging to a place other than Karachi, would belong to a different category---Such classification was reasonable and permitted by law and not violative of Art. 25 of the Constitution---No document or law was pointed out by petitioners entitling them to continuance of such concession--Impugned action was not shown to be arbitrary, whimsical or unreasonable---If Corporation allowed to stay in Hostel any other female cabin crew member not entitled to stay there, then petitioner would be entitled to continue to stay there---Discrimination between persons belonging to same category could not be permitted under any circumstances---High Court dismissed constitutional petition while granting three months time to petitioner for arranging alternate accommodation.

Dr. Syed Sharaf Ali Shah and 2 others v. Province of Sindh and others 2009 PLC (C.S.) 574; Syed Ahsan Ali v. Federation of Pakistan through Secretary; Information and Technology arid 4 others; 2010 PLC (C.S.) 668; Abdul Rehman v. Federation of Pakistan through Secretary Ministry of Petroleum, Islamabad and 3 others 2010 PLC (C.S.) 691; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Muhammad Mumtaz Javed v. Pakistan; through Secretary Ministry of Communication, Government of Pakistan and 2 others 1988 CLC 1965; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Zeba Mumtaz v. "First Women Bank Ltd. and others PLD 1999 SC 1106; United Bank Limited v. Ahsan Akhtar 1998 SCMR 68; Tanweer-ur-Rehman v. Pakistan International' Airlines Corporation 2009 PLC (C.S.) 28 and Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 ref.

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

----Art. 199---Constitutional petition---Factual contention raised by petitioner not spelt out either explicitly or by necessary intendment in the body of constitutional petition---Validity---Such contention could not be allowed to be raised at arguments stage.

(c) Master and servant---

----Neither a servant can be thrust upon an unwilling master nor can a master be thrust upon an unwilling servant.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 fol.

Masood A. Noorani for Petitioners.

Shafquat Ali Shah Masoomi for Respondents.

Umer Hayat Sindhu, D.A.-G.

Date of hearing: 9th August, 2010.

2010 P L C (C.S.) 1299

[Khyber Pakhtunkhaw Service Tribunal]

Before Sultan Mehmood Khattak and Noor Ali Khan, Members

FAHAM DIL KHAN

Versus

GOVERNMENT OF N.-W.F.P. (K.P.K.) through Chief Secretary, Peshawar and another

Appeal No.1462 of 2009, decided on 21st May,.2010.

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

----Ss. 3, 6, 7 & 10---Imposition of penalty of stoppage of annual increments---Penalty of stoppage of three annual increments was imposed upon appellant after charge-sheeting him and holding inquiry against him on certain allegations of omission, irregularities, embezzlement, misappropriation of government money etc.---No proper procedure had been adopted by the department---Inquiry had been conducted in questionnaire form, which practice had disapproved---Neither any witness had been examined in presence of the appellant nor any opportunity of cross-examination was provided to him to defend himself properly---Besides, no period had been mentioned by the authority while awarding the impugned penalty to the appellant, which was in clear violation of relevant law/rules---Proper approval with regard to drawing of advance money was obtained from the competent authority---No embezzlement/misappropriation of government money had been proved against the appellant---Impugned order, in circumstances, was nullity in the eyes of law---Appellant had made out a case for indulgence of the Service Tribunal in circumstances, which was set aside.

Muhammad Asif Yousafzai for Appellant.

Jamal Abdul Nasir, Addl. Government Pleader for Respondents.

Date of hearing: 21st May, 2010.

2010 P L C (C.S.) 1

[Lahore High Court]

Before Mian Saqib Nisar, Iqbal Hameed-ur-Rahman and Umar Ata Bandial, JJ

MUHAMMAD SALEEM and 12 others

Versus

SECRETARY PROSECUTION, GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.9394 of 2008, decided on 4th December, 2009.

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

----Preamble---Object and purpose of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006.

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

----S. 2(j)---Word "prescribed" occurring in S.2(j), Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 means as prescribed by Rules and Regulations under the Act.

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

----S. 8(3)(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispensing with services of District Public Prosecutors etc.---Allegation of political victimization etc. by present Provincial Government---In the present case Selection Committee was constituted (prior to the present government) pursuant to the order, dated 11-12-2006 passed in Writ Petition 8456 of 2006; interviews commenced from 12-4-2007 and the process was completed by 12-4-2008 and by this time, the present regime had not taken over; anybody, who participated as a stranger (not member of the Committee constituted) in the interviewing process, was not during the time of the present government, rather prior thereto, neither there were any allegations in the main writ petition to which reference could be made nor (there) was any material on the record on account of which it could be judicially concluded if the Selection Committee was influenced and the interviews and the result had been manipulated by the present government, present government rather had simply acted on the result, which had been declared by the Selection Committee---Held, impugned action (dispensing with services) was neither the result of any mala fide, political victimization, dishonesty of purpose on behalf of the present Government (of the Province of Punjab) nor it was tainted with any ulterior motive/object to illegally displace the functionaries (petitioners) and/or to appointment at their place their persons---Such allegations were nothing except rhetoric, loud, bald, baseless and unsubstantiated.

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

----Ss. 8(3)(4), 16 & 2(j)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---Recruitment Policy/Contract Policy, 2004---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maxim: res ipsa loguitur---Appointments and dispensing with services of District Public Prosecutors etc. and those retained in service---Nature---Appointment of said officials was subject to Rules and Regulations as mentioned in S.2(j) of Punjab Prosecution Service (Constitution, Functions and Powers) Act, 2006, which Rules/Regulations had not been framed till 27-7-2007 admittedly not when the advertisements were published on 12-7-2006 and 15-8-2006 and even when considerable number of appointments of said functionaries had already been made---Advertisements had stated that appointments shall be on the contract basis and under the caption of "terms and conditions" it was provided that "all the recruitments will be made according to the Recruitment Policy/Contract Policy, 2004"---Appointments made under the Recruitment Policy/Contract Policy, 2004 could not be made to the posts of BS-11 and above without interview whereas all the posts in question were above the said scale---Interview could only be conducted by a Selection Committee meant for the purpose; if the selection was to be made at the Provincial level, by a Committee comprising of, where appointing authority was Chief Minister, the Administrative Secretary concerned being the Chairman, while two officers of the Department to be nominated by the Administrative Department with the approval of Minister Incharge and one officer of S&GAD to be nominated by the Regulations Wing---Before making the appointment of said functionaries no interview was ever conducted by any Committee of any sort, though such a Committee was claimed by the Government/Prosecution Department to have been formed---Recruitment Policy/Contract Policy, 2004 had further prescribed that though appointment on contract basis was excluded from the purview of the Provincial Public Service Commission, however, the department should preferably adopt the channel of Public Service Commission for "contract appointments" against posts, which otherwise fell within the purview of Public Service Commission by seeking relaxation of relevant rule from Chief Minister; besides, under the Policy, a Contract Appointment Regulation Committee had been constituted---Said process was also not followed qua the appointments in the present case--- Validity---Held, in the light of the judgment of the High Court (Lahore) passed in 'Writ Petition No.8456 of 2006, to hold their appointments as regular shall be a feign, a farce and a sham---Said appointments were nothing more but a stopgap, pro tempore, standby, interim, ephemeral and a transitory arrangement, which were meant for the moment, and for the time being, awaiting the appointments on the regular basis or if and when permissible (especially after the promulgation of Rules) on account of the "contract"---Appointments were subject to the fundamental, imperative and a condition sine qua non i.e. "that the appointment will be subject to review/confirmation by Selection Committee constituted for the purpose" and all the appointees shall only be eligible for the "contract employment" once they cross the threshold of the review/confirmation by the Selection Committee---Committee constituted pursuant to the judgment of High Court, which was accepted by all the stakeholders shall be deemed to be the one formed under the noted condition and therefore, all those who had passed through the test of the Committee may be retained by the Government in the service only as the "contractual employees", -whereas who failed to qualify their services could be dispensed with---All those who had failed to pass the interview, notwithstanding any recommendee of Public Service Commission shall have to go, as having been removed, instead of termination, which expression in the facts of the present case, was not apt to use---Some of the appointments had been made even before any advertisement was issued to initiate the process of recruitment, not only that there was no reference in the various summaries sent to the Chief Minister for the appointment of the petitioners/retainees specifying their qualifications, those summaries were not shown to accompany even the applications of the candidates, their profile or Curriculum Vitae (CV) from which the competent authority could evaluate, assess and determine their caliber for handling such an important office, all seemed to be either conspicuously missing or not established to have been looked into for the purpose of due application of mind of the competent authority, yet the appointments had been made---High Court expressed its sheer disappointment and felt perturbed at the way very important offices connected with the judicial system of the country had been filled, and observed that such significant State assignments surely were not a bounty, alms or a charity from the people in authority, rather should be awarded to those who were deserving and behaved to the office and in the present cases, all this had been done in vain and on this account maxim res ipsa loguitur (the thing speaks for itself) was duly attracted to the matter---Held further that constitutional petitions, which pertained to all those petitioners who were interviewed by the original Committee of four members and had failed were dismissed; those regarding the candidates/petitioners who were interviewed by three members of the original Committee and had failed excluding the numbers of the "stranger" were also dismissed---Constitutional petitions relating to the petitioners/candidates, who had been interviewed by the Committee in which either two original members or one original member participated, those were allowed with the direction to the authorities to constitute a fresh Committee, hold interview and to decide their cases, this shall also be applicable to all the persons who had been retained on account of the interview conducted by a Committee comprising of either two original members or one, those could also be reassessed and their cases be decided accordingly---Retainees who on account of the data provided by the prosecution department had failed due to the exclusion of the marks granted to them by the `stranger', the department shall treat such persons retainees as "fail"---All the Additional Prosecutors-General and Deputy Prosecutors-General mentioned in S.8(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 shall also be subjected to interview by the newly constituted Committee---Reasons detailed.

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

----Ss. 8 & 16---Appointments---Terms and conditions of service---Delegation of authority---Scope and principles-Maxim delegatus non potest delegare: delegated authority cannot be redelegated---Applicability---Scope.

There are three kinds of the authorities, which. can be delegated/sub-delegated under the law: Firstly: Relating to the agencies regulated under the law of Contract/Agency, if the principal has expressly conferred upon his agent for further delegation of power/authority that can only be so delegated to the extent provided, otherwise not; in this behalf the legal principle about the sub-delegation by necessary implication on account of the specific nature of agency cannot be ruled out. Anyhow (subject to the above) a power of attorney should be strictly construed and applied. Secondly, the statutory authority, the rule, where the law requires an act to be-done/performed in a particular manner it should be so performed and not otherwise, and that what cannot be done directly cannot be done indirectly, can be attracted. If the express provision of law has conferred power for the exercise of an authority by a particular person or body, it should only be exercised strictly in accord thereto. And if there is no provision for the delegation/sub-delegation in the law, under no rule or principle of law, such power could be exercised by any other person/body, on the basis of delegation by whom, such power is exercisable under the law. Thirdly, the administrative authority, which is not only akin to the above two, rather embeds the trails of both the categories. In the matter pertaining to statutory/administrative authority, there is a judicial consensus and a bias against the permissibility of the delegation of power, which is reflected in the maxim delegatus non potest delegare. The central question for the delegation/sub-delegation has always been (in cases of statutory and administrative powers) what was/is the intention of the law, which tilts towards non-delegation until so lucidly permissible. In the present case, power to form the Selection Committee vested with the Chief Minister, who had originally appointed the four members committee for the purposes thereof. In the order of the Chief Minister, which was in the nature of the approval of the summary, no power had been delegated to the members of the committee who in fact shall be deemed to be the nominees of Chief Minister's administrative authority to further delegate their power to anybody. Such delegation could neither be done collectively by the committee nor singularly by any member, may be the Prosecutor-General or the Secretary of the service. This could also not be so done in the garb of formulating any procedure for regulating the affairs or conducting the business of the Selection Committee, therefore, it was the originally constituted committee, which could only conduct the interview and none else. In this regard, the person .if any who participated in the proceedings of the committee was a `stranger' and, therefore, his evaluation/allocation of marks could not be counted towards the selection process.

(f) Delegation of authority---

----Kinds---Scope and principles---Maxim: delegatus non potest delegare---Applicability---Scope.

Farooq Amjad Mir, Dr. A. Basit, Dr. Khalid Ranjha, Tahir Mehmood Khokhar, Atir Mehmood, Muhammad Ahmad Qayyum, Muhammad Aslam Nagi, Irfan Malik, Khurram Khan, Ahmad Awais and Fahad Ahmad Siddiqui for Petitioners.

Mr. A.K. Dogar for the candidates, who passed the interview and retained by the Prosecution Department.

Kh. Haris Ahmad, Ahmad Rauf, Muhammad Raza Qureshi, Saad Rasul, Syed Zahid Hussain Bokhari, Prosecutor-General, Shaigan Shareef, Secretary to Government of Punjab, Prosecution Department, Lahore, Rana Maqbool Ahmad Khan, Secretary to Government of Punjab, Prosecution Department, Lahore and Ishtiaq Qadeer Moussavi, Director (Appeals), Prosecution Department, Lahore for Respondents.

Dates of hearing: 16th, 21st, 22nd, 27th, 28th, 29th, 30th April, 4th, 6th, 7th, 26th May, 23rd June, 7th July, 29th September, 1st 22nd, 26th, 28th, 30th October and 3rd November, 2009.

2010 P L C (C.S.) 51

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

Dr. GHAZANFFARULLAH and 2 others

Versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, LAHORE and 6 others

Writ Petition No.18551 and C.M. No.5 of 2009, decided on 12th October, 2009.

(a) 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---Civil service---Transfer---Petitioners had challenged orders whereby they were transferred---Plea of the petitioners was that they had no alternate remedy because once they had filed representation before competent Authority under the Punjab Service Tribunals Act, 1974, they had to wait for 90 days before they could file an appeal; that they were left `remediless' for 90 days and it was that period that constitutional petition could be maintained---Validity---Article 199 of the Constitution was "subject to the Constitution", while Art.212 being a non-obstante Article would prevail over Art.199---Article 212 had clearly stated that "no court would grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extended"-High Court, in circumstances had no jurisdiction to entertain a matter that stood barred under Art.212 of the Constitution---Contentions of the counsel for the petitioners that he had been left remediless after filing his representation under S.4 of Punjab Service Tribunals Act, 1974, was without force---Filing of the representation before a Departmental Authority, was itself initiation of the remedy under S.4(1)(a) of Punjab Service Tribunals Act, 1974---Pendency of the representation for a maximum period of 90 days was a part of procedure/remedies prescribed for a civil servant, which then culminated into right to file an appeal---Pendency of representation before the Departmental Authority, could not be taken to mean that the petitioners had been left remediless; petitioners, in fact had invoked the remedy and the remedial process had been set in motion---Even if a writ was issued during that period of 90 days, it would make a mockery of the statutory process provided under S.4(1)(a) of Punjab Service Tribunals Act, 1974, rendering the final right to appeal in 90 days totally meaningless---Constitutional jurisdiction could not be put to use to frustrate statutory remedial process---Once High Court had no jurisdiction under S.212 of the Constitution same could not be conferred on it just because after filing the representation under S.4 of the Punjab Service Tribunals Act, 1974 the petitioners had been rendered "remediless ", it was not the question of alternate remedy, but of bar of jurisdiction---High Court had no jurisdiction to even entertain proceedings that fell within the domain of Punjab Service Tribunals Act, 1974 as per Art.212 of the Constitution.?

Muhammad Saleh Asim v. Secretary Schools Education, Government of Punjab, Lahore and 4 others 2009 PLC (C.S.) 44; Dr. Tasnim Tahira Rehman v. Government of the Punjab and others NLR 2009 Service 56; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 ref.

(b) Jurisdiction---

----Concept---Jurisdiction was a right to adjudicate concerning a particular subject matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the court---Jurisdiction, denoted the authority for the courts to exercise judicial power---Where jurisdiction ceased to exist the court could not proceed to pronounce judgment on the merits; and the only function remaining to the court was that of announcing the fact and dismissing the case--If there was no jurisdiction, the question of exercise of judicial power would not arise.?

Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457 ref.

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

----S. 4---Appeal to Service Tribunal---Reference to S.4(1)(b) of Punjab Service Tribunals Act, 1974 and reference to the window available in the matters of fitness, had no co-relationship with S.4(1)(a) of the Punjab Service Tribunals Act, 1974.?

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 ref.

Syed Ijaz Qutab for Petitioners.

Khawaja Suleman Mahmood, Asst. A.-G. for Respondents.

2010 P L C (C.S.) 64

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mirza QAMAR-UZ-ZAMAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Home Department, Lahore and 3 others

Writ Petitions Nos.8393 and 8394 of 2009, heard on 8th June, 2009.

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion, entitlement to---Implementation of order of Service Tribunal---Petitioners had prayed that authorities be directed that judgment passed by the Service Tribunal in their favour be implemented in letter and spirit and they should be promoted/given pro forma promotion to the rank of DSP (Legal), with effect from the date when respondent was so promoted with all consequential benefit---While granting relief to respondent, the then Additional Inspector General of Police, specifically made it clear that the benefit extended to respondent would not be a precedent for others---Service Tribunal while allowing appeal of the petitioners had found that order of Additional Inspector-General putting a condition that his order granting promotion to respondent would not be quoted as precedent, could not be sustained in the eye of law---Said judgment of the Service Tribunal having attained finality, it was incumbent upon the authorities to implement the same in letter and spirit---Petitioners were entitled for the same relief which was extended to respondent in its true spirit---Authorities were directed to implement the judgment of the Service Tribunal in letter and spirit---Petitioner should be granted pro forma promotion as DSP (Legal) with effect from the date when respondent was granted promotion.

M.A. Rashid Rana v. Chief Secretary 1999 PLC (C.S.) 623; Ghulam Sarwar v. Habib Bank Limited and others 2001 PLC (C.S.) 198; Muhammad Siddique Detho v. State Life Insurance Corporation and others 2005 PLC (C.S.) 946 and Mehar Muhammad Nawaz v. Managing Director, Small Business Corporation and 2 others 2009 SCMR 187 ref.

Petitioner in person.

Akhtar Ali Kureshi, A.A.-G. with Naseer Ahmed D.S.P. (Legal) for Respondents.

Date of hearing: 8th June, 2009.

2010 P L C (C.S.) 68

[Lahore]

Before Umar Ata Bandial, J

MUSHTAQ AHMAD

Versus

PROVINCE OF PUNJAB through Secretary Industries, Lahore and 5 others

Writ Petitions Nos.15613, 19000 of 2009 and C.M. No.3889 of 2009, decided on 29th October, 2009.

Boilers and Pressure Vessels Ordinance (CXXI of 2002)---

----S. 29---Pakistan Boiler Rules, 2007, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Qualification of Chief Inspector of Boilers---Petitioner who was a Deputy Chief Inspector of Boilers and serving as acting Chief Inspector of Boilers, was aggrieved by two notifications whereby the prescribed qualification of Chief Inspector of Boilers had been confined to M.Sc. Mechanical Engineering or B. Tech. (Honour) (Mechanical)---Petitioner was holding a diploma in the subject which would be the prescribed qualifications for the post of Chief Inspector, if the notifications in question were excluded from consideration---Petitioner challenged the competence of the Provincial Government to issue the notifications after $.29 of the Boilers and Pressure Vessels Ordinance, 2002, a federal law, had vested rule making power in the Federal Boiler and Pressure Vessel Safety Board instead of the Provincial Government---Petitioner contended that qualification laid down in R.3 of Pakistan Boiler Rules, 2007 had overriding effect for the appointment of the Chief Inspector and that notifications issued by the Provincial Government that purported to alter the qualification of eligibility for the post of the Chief Inspector were allegedly incompetent for exceeding the qualifications laid down in R.3 of Pakistan Boiler Rules, 2007---Validity---Petitioner was a civil servant in the Provincial Government and his terms and conditions of service were regulated by the Recruitment Rules framed under the Punjab Civil Servants Act, 1974---By questioning the vices of the Provincial Recruitment Rules on the touchstone of the Federal Boiler Rules, was a matter that concerned the eligibility of the petitioner for appointment to office of Chief Inspector---Competent forum to determine his terms and conditions of service was the Punjab Service Tribunal---By the nature of the dispute, the matter was liable to be dealt with by the Service Tribunal---No view was expressed by High Court on the merits of the petitioner's challenge which would be determined by the Tribunal in accordance with law---Order accordingly.

Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153 ref.

Rizwan Mushtaq and Ashfaq Qayyum for Petitioner.

Ch. Abdus Sattar for Petitioner (in Writ Petition No.19000 of 2009).

Sharjeel Adnan Sheikh, A.A.-G. with Muhammad Jamil, Section Officer, Industries Department.

Hafiz Tariq Nasim for Respondent No.6 and Applicant (in Civil Miscellaneous No.3889 of 2009).

Mian Ghulam Shabbir Thaheem, Director Legal, PPSC.

2010 P L C (C.S.) 71

[Lahore High Court]

Before Ijaz-ul-Ahsan, J

MUHAMMAD ARSHAD KHAN

Versus

DIRECTOR-GENERAL AGRICULTURE (WATER MANAGEMENT) PUNJAB, LAHORE and 2 others

Writ Petition No.16560 of 2009, decided on 23rd October, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Transfer---Withholding the salary---Petitioner on transfer contacted concerned department to issue relieving certificate so that he could join his next place of posting---In the meantime an inquiry was initiated against petitioner for alleged unauthorized absence from duty---Petitioner had contended that unless such certificate was issued, it would not be possible for Aim to receive his salary---Despite the petitioner had joined new place of working last pay certificate and relieving report was not issued to the petitioner, in consequence the petitioner was not being given his salary---Validity---No lawful reason was available to withhold last pay certificate and relieving report---Inquiry pending against the petitioner was stated to be in limbo, which could not furnish sufficient cause for the department to withhold the salary of the petitioner---Allowing petition, High Court directed the department to issue last pay certificate and relieving report to the petitioner within specified period.

Muhammad Zaman Khan and Muhammad Noman Shams Qazi for Petitioner.

Rana Shamshad Khan, A.A.-G. with Muhammad Saeed, Superintendent.

2010 P L C (C.S.) 93

[Lahore High Court]

Before Mian Saqib Nisar, J

HABIB BANK LTD. through President and others

Versus

Rana MUHAMMAD ASHIQ KHAN

Civil Revision No.2285 of 1990, decided on 5th June, 2009.

Specific Relief Act (I of 1877)---

---S. 42---Civil service---Suit for declaration---Maintainability---Suit having concurrently been decreed by the Trial Court and Appellate Court, defendant/bank had filed revision against said concurrent judgment and decree---Counsel for defendant/bank had not challenged merits of the case, but had only submitted that the suit was incompetent because reinstatement order could not have been passed as relationship inter se the parties was that of master and servant---Validity---Where the organization was controlled and run by the Government, the service of its employees would be governed by the statutory rules---Order of removal etc. of said employees if made against the rules or was illegal for any other reason, could be annulled by the Civil Court, while exercising its plenary jurisdiction---Impugned judgments and decrees being in line with law referred to by the counsel for the plaintiff, revision against said concurrent judgments and decrees was dismissed.

Muslim Commercial Bank Ltd. and 2 others v. Muhammad Umar Malik PLD 1993 Lah. 281; Sheik Rasheed Ahmad v. United Bank Limited and 3 others PLD 1987 Pesh. 144; Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519; Nazir Ahmad and 3 others v. Member (Admn.) Central Board of Revenue, Islamabad and 2 others 1992 PLC (C.S.) 450; Mushtaq Ahmad Ex-General Manager, Ittehad Chemicals Ltd. v. The Secretary to Government of Pakistan, Ministry of Production, Islamabad PLD 1994 Lah. 417; Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Rustam Ali Khan v. Allied Bank of Pakistan Ltd. Lahore and others 1990 SCMR 1544; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; Muhammad Ashraf v. Director-General, Multan Development Authority Multan and another 2000 PLC (C.S.) 796; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Muhammad Ikram v. Board of Intermediate and Secondary Education, Faisalabad through Chairman and 3 others 2008 CLC 766; Board of Intermediate and Secondary Education and others v. Khalil Ahmad and others 2008 SCMR 116 ref.

Abid Aziz Sheikh for Petitioner.

MalikNoor Muhammad Awan for Respondent.

Date of hearing: 25th May, 2009.

2010 P L C (C.S.) 101

[Lahore High Court]

Before Hafiz Tariq Nasim, J

TAHIR HUSSAIN

Versus

FEDERATION OF PAKISTAN, MINISTRY OF DEFENCE, GOVERNMENT OF

PAKISTAN through Secretary, Defence and 3 others

Writ Petition No.1975 of 2003, decided on 26th May, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 13---Constitutional petition---Retirement of petitioner from military service---Conversion of retirement into dismissal---Petitioner while serving as Major in Pakistan Army was retired from service and aggrieved by said order of retirement, he filed representation---Not only said representation was rejected, but simultaneously his retirement was converted into his dismissal vide the impugned order---Petitioner was condemned unheard before retirement and neither any show-cause notice was served on him nor any opportunity of personal hearing was afforded to him---Conversion of retirement order into dismissal from service, was also made arbitrarily without affording chance of personal hearing to the petitioner---Such was a sufficient ground for setting aside impugned order, being violative of principles of natural justice, which otherwise amounted to violation of fundamental rights and was also a visible violation of Art.13 of the Constitution, which had prohibited double punishment/ double prosecution---Exercise of powers of discretion must be fair, unbiased and transparent---Appellate Authority, no doubt could reverse the order, but before passing such order, if the Appellate Authority thought to enhance the penalty, then without issuance of show-cause notice and without giving an opportunity of personal hearing the penalty could not have been enhanced---Appellate Authority, while doing so through impugned order, had acted in excess of its jurisdiction, violating the specific provisions of Art.13 of the Constitution---Impugned order was declared illegal, without jurisdiction and was set aside---Resultantly order of retirement, would hold field and the petitioner would be entitled to the pensionary benefits.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Instisar Ali v. Federation of Pakistan and others 2008 PLC (C.S.) 975; Chairman Regional Transport Authority, Rawalpindi's case PLD 1991 SC 14; Abid Hassan v. PIAC 2005 SCMR 25; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; PIA v. Nasir Jamal Malik 2001 SCMR 934=2001 PLC (C.S.) 890; The Director-General (Field), Agriculture Department, Lahore and another v. Haji Abdul Rehman 1989 SCMR 1224 and Shakeel Ahmad v. I.-G. Punjab Police; Lahore and others 2007 SCMR 192 ref.

Petitioner in person.

Ch. Muhammad Ashraf Khan, Dy. A.-G. for Respondents.

Date of hearing: 20th May, 2009.

2010 P L C (C.S.) 125

[Lahore High Court]

Before Ch. Naeem Masood, J

ASIFA FARHAT

Versus

DISTRICT COORDINATION OFFICER (D.C.O.), VEHARI and 3 others

Writ Petition No.4449 of 2003, decided on 8th June, 2009.

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

----Ss. 2(b) & 11---Punjab Service Tribunals Act (IX of 1974), Ss.2(b) & 4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Termination of service---Petitioner whose services were terminated filed constitutional petition against order of termination---As the petitioner was not stigmatized, he had no case to agitate before the High Court---Even otherwise case of the petitioner was hit by Art.212 of the Constitution, which incorporated that the Service Tribunal would exercise exclusive jurisdiction in respect of the matters relating to terms and conditions of persons in the service of respective Provinces---Punjab Service Tribunal having been established and being functional, petitioner, was bound to agitate her grievance with regard to termination of her services before the Punjab Service Tribunal under S.4 of Punjab Service Tribunals Act, 1974---Matters relating to the terms and conditions of persons serving the Federal or Provincial Governments, must be agitated before respective Service Tribunals constituted to resolve such matters and constitutional petition was not maintainable in that respect.

Iqqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153 ref.

Nemo for Petitioner

Zafarullah Khan Khakwani, Asstt. A:-G. Punjab for Respondents.

2010 P L C (C.S.) 133

[Lahore High Court]

Before Hafiz Tariq Nasim , J

MUHAMMAD ASLAM

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2616 of 2007, decided on 8th June, 2009.

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

----S. 12(6)--Contract Appointment Policy of Punjab, 2004---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seniority-cum-fitness---Post reserved for in-service quota---Interference---Scope---Petitioner was eligible for promotion as Assistant on the basis of seniority-cum-fitness for the post reserved for selection from within office---Authorities took plea that Secretary Education of the Provincial Government had directed the Board to shift the mode of recruitment from regular to contract and to make all appointments against the post reserved for selection from within the office and direct recruitment on merit and to make strictly in accordance with provisions of Contract Appointment Policy, 2004---Validity---Petitioner, a legitimate expectant for the post, had applied in the year 2006, his ability was not disputed, any condition contained in the directions issued by the Secretary Education of Government of Punjab could not be applied in the petitioner's case in any respect, at the most direct recruitment by the Board could be made on contract following the Contract Policy of the Government of Punjab but the posts reserved for in-service quota could not be amenable to the letter issued by the Government of Punjab---Application of the petitioner and his colleagues of the year 2006 against the posts of Assistants should be deemed to be pending, which should be considered and finalized independent of letter issued by the Government Punjab, Education Department---Constitutional petition was allowed by High Court.

Hafiz Ghulam Mohayuddin v. Government of the Punjab and others 2000 PLC (C.S.) 95 and Rana Muhammad Ilyas and others v. Board of Intermediate and Secondary Education PLD 2001 SC 531 ref.

Hafiz Ghulam Mohayuddin v. Government of the Punjab and others 2000 PLC (C.S.) 953 and Rana Muhammad Ilyas and others v. Board of Intermediate and Secondary Education PLD 2001 SC 531 rel.

Malik Noor Muhammad for Petitioner.

Akhtar Ali Kureshi, A.A.-G. for Respondent No.1.

Muhammad Naeem, Assistant B.I.S.E. for Respondents Nos.2 and 3.

2010 PLC (C.S.) 204

[Lahore High Court]

Before Hafiz Tariq Nasim, J

TARIQ JAMEEL BUTT and another

Versus

PAKISTAN ENGINEERING COMPANY LTD. (PECO) through Managing Director and another

Writ Petition No.16637 of 2008, decided on 7th May, 2009.

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

----Art. 199---Establishment of the Office of Wafaqi Mohtasib Order, (1 of 1983), Art.9(2)---Constitutional petition---Civil service---Compulsory Separation Scheme---Refusal to pay gratuity---Petitioners were terminated from their service in the year 2004 under the "Compulsory Separation Scheme" but were not awarded benefits thereunder at the time of termination of their service---Petitioners approached the Wafaqi Mohtasib who turned down request of the petitioners on the point of jurisdiction---Employer-Company declined to award benefits ancillary to the Compulsory Separation Scheme'---Petitioners asserted that old rates, of gratuity to officers not entitled to pension having been restored by the competent authority with retrospective effect so the petitioners relieved from their service under theCompulsory Separation Scheme' during the years 2004 and 2005 respectively, would not be denied benefits of such office order on the ground that office order dated 11-5-2006 issued by the employer-Company was not applicable to the officers of the Company and its units who had already left the job---Petitioner further asserted that the impugned matter pertained to mere implementation of the orders made by concerned Ministry but unfortunately the petitioners were being discriminated due to arbitrary exercise of powers of discretion---If the petitioners' length of service with employer-Company is taken into consideration then it should be clear that petitioners were also entitled for the gratuity at the rate of 60-days per year against their qualifying period of service---Discretion exercised by employer-Company in the impugned matter was not a proper and in transparent manner rather the petitioners were deprived of their right of gratuity in an arbitrary manner---High Court declared refusal to pay gratuity at the rate of 60-days per year to the petitioners illegal---Petitioners were entitled for relief claimed for as per prayer in the constitutional petition.

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

----Art. 199---Establishment of the Office of Wafaqi Mohtasib Order, (1 of 1983), Art.9(2)---Constitutional petition---Maintainability---Civil service---Petitioners were terminated from their service in the year 2004 under the "Compulsory Separation Scheme" but were not awarded benefits under the same, at the time of termination of their service---Petitioners approached the Wafaqi Mohtasib who turned down the request of the petitioners---Employer-Company asserted that the petitioners' matter had already been decided by the Wafaqi Mohtasib and the petitioners could not complain against the same through the constitutional petition---Wafaqi Mohtasib found that, the matter raised in the complaint pertained to personal grievance of the complainant in relation to his service and such matters could not be investigated by the Mohtasib---Petitioners could not be estopped to approach High Court under Art.199 of the Constitution if they felt aggrieved---Constitutional petition was maintainable.

Federation of Pakistan v. Zulfiqar Ahmad Khan 2007 SCMR 1313 and Civil Aviation Authority v. Wafaqi Mohtasib PLD 2001 Kar. 304 rel.

(c) Administration of justice---

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

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

----Art. 199---Constitutional petition---Maintainability---Violation of codified law is not only the ground for the interference by the High Court rather Government/Government run departments' instructions/ office memorandums have also the status of law and they must be adhered to.

Tariq Masood for Petitioners.

Javed Iqbal for Respondents.

2010 P L C (C.S.) 238

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

KHAN MUHAMMAD

Versus

SECRETARY EDUCATION (SCHOOLS), GOVERNMENT OF THE PUNJAB, EDUCATION DEPARTMENT and another

Writ Petition No.19387 of 2009, decided on 7th October, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Transfer---Petitioner had called in question the validity of order whereby he was transferred from one school to another---Constitutional petition under Art.199 of the Constitution against the order transferring a government servant from one place to another, was not maintainable in view of the bar contained in Art.212 of Constitution; as the posting and transfer of a government servant related to terms and conditions of his service---In such-like matters, the Service Tribunal had the exclusive jurisdiction---Petitioner had failed to point out any political victimization done to him for his transfer and simple narration of a paragraph in the petition would not establish any political victimization---High Court declined to interfere in the transfer order of the petitioner.

Zafar Iqbal Chohan for Petitioner.

2010 P L C (C.S.) 240

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

AYESHA SABOHI

Versus

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

Writ Petition No.18958 of 2009, decided on 8th October, 2009.

(a) Punjab Police College Manual, 2002---

----R. 13(iii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal from training course---Suspension---Doctrine of proportionality---Applicability---Petitioner was probationer Assistant Sub-Inspector and was sent on training but due to her absence without leave for two days, she was dropped from training and was suspended by Commandant Training School---Validity---Commandant had no power to remove petitioner from training---Petitioner was not afforded opportunity of hearing or show cause to explain her position---Commandant proceeded on assumption that petitioner was not interested in training and she had exhibited wilful absence, which facts were irrelevant and were no more than figment of imagination, of Commandant---Competent authority of petitioner was Capital City Police Officer as her appointment letter showed, therefore, Commandant had no power to suspend petitioner---Petitioner arrived at course just two days late supported with valid reason but was thrown out of year long course at very beginning of her career, as such the same rendered discretion of Commandant unreasonable and disproportionate to gravity of lapse committed by petitioner, therefore, could not be sustained---Order passed by Commandant was without legal authority and without legal effect---High Court directed Commandant to take petitioner back into course---Petition was allowed accordingly.

Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; KBC Authority v. Hashwani S and S Ltd. PLD 1993 SC 210; Law of Writs by V.G. Ramachandran's Chapter 4 Volume 2; Halsbury's Laws of England (4th Edition); Bhagat Ram v. State of H.P. AIR 1983 SC 454 and 1997 SCMR 641 rel.

(b) Discretion---

----Public functionaries, use of discretion---Principle---Discretion to be exercised by public functionary must be structured, which means regularizing it, organizing it, producing order in it so that decision should achieve higher quality of justice---Exercise of discretion should not be unreasonable, irrational or disproportionate.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 rel.

Ch. Rashid Abdullah for Petitioner.

Kh. Salman Mahmood, Asstt. A.-G. along with Muhammad Siddique, D.S.P. (Legal), Sihala and Naseer Ahmad, D.S.P. (Legal), C.P.O. Office, Lahore.

2010 P L C (C.S.) 257

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

Mst. NUSRAT RAFI

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), FAISALABAD and 3 others

Writ Petition No.16557 of 2009, decided on 3rd December, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Appointment of Secondary School Educator (Computer Science)---Preferential qualification prescribed for such post being M.Sc. Computer Science---Filing of application by petitioner on 14-5-2009 date fixed in advertisement---Result of M.Sc. Computer Science was notified on 15-5-2009, but its official result card was issued to petitioner on 27-6-2009, whereafter he was interviewed on 28-6-2009---Merit List showed petitioner at serial No.2, whereas candidate at serial No.1 declined to join service---Rejection of petitioner's application on 5-9-2009 by authority for not possessing Master's Degree on last date of filing application i.e. 14-5-2009---Validity---Petitioner had complied with requirements of advertisement by filing application along with. educational testimonials including a certificate issued by University certifying that he had completed his M. Sc. Computer Science on 5-5-2009 and had obtained 3.43 Cumulative Grade Point---Petitioner had qualified M.Sc. Computer Science on 5-5-2009 before date of filing of application and was simply awaiting for detailed result card to be issued by University---Date for filing application fixed in advertisement was an administrative act, thus, same could not be considered to be substantive cut off date or a date after which case of petitioner could not be processed---Advertisement did not specify or underline importance of date fixed therein for filing application, thus, same would have no more importance than that of administrative convenience---Real cut off date was the date, when evaluation process was set in motion---Result card had been issued to petitioner much before interview and during evaluation process, all documents were in place and he was placed at serial No.2 of Merit List---Impugned order was in violation of Recruitment Policy as well as substantive process of evaluation---Petitioner after having submitted his documents had acquired vested right as well as legitimate expectations that his case would be considered for evaluation---Petitioner had supplied documents before evaluation process was set in motion, thus, his vested right and legitimate expectations could not be taken away by impugned order---Authority had unlawfully attached undue importance to date of filing application i.e. 14-5-2009---Nigh Court set aside impugned order and directed authority to place petitioner's name at serial No.2 of Merit List and consider him for appointment in accordance with law.

Miss Breshna Haq Tareen v. Selection Committee, Bolan Medical College Quetta and others 2005 SCMR 351; Zahra Zando v. King Edward Medical College, Lahore and 2 others 2005 YLR 1703; PLD 1963 SC 382 and PLD 1994 Lah. 55 rel.

Mubeen-ud-Din Qazi for Petitioner.

Kh. Salman Mehmood, A.A.-G., Mian Mazhar-ul-Haq and Muhammad Laqman, Litigation Officer for Respondents.

Date of hearing: 19th October, 2009.

2010 P L C (C.S.) 264

[Lahore High Court]

Before Arshad Mahmood, J

MUHAMMAD ZUBAIR KHAN BANGASH, INSPECTOR OF POLICE and 3 others

Versus

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

Writ Petition No.5261 of 2009, decided on 26th June, 2009.

Constitution of Pakistan (1973)---

----Arts. 189 & 199---Constitutional petition---Civil service---Judgment of Supreme Court; binding effect of---Petitioner and three others had sought a direction to authorities for decision of their case in accordance. with the judgment of the Service Tribunal and Supreme Court of Pakistan in other cases---Contention of the petitioners was that their case was at par with the case of persons whose appeals were decided by the Service Tribunal and Supreme Court; and that they (petitioners) also deserved the same treatment---Article 189 of the Constitution had commanded that judgment of the Supreme Court was binding upon each and every organ of the State and they were bound to honour and respect the same---Authorities were directed to consider the case of the petitioners and also extend benefit to them, if their case was found at par with the persons whose appeals were accepted by the Supreme Court.

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

Mian Tanvir Iqbal Arain for Petitioners.

2010 PLC (C.S.) 266

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

MUHAMMAD ASLAM

Versus

VICE-CHAIRMAN and others

Writ Petitions Nos.2767 to 2776, 2810 and 2811 of 2008, heard on 11th November, 2009.

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

----S. 24-A---Public functionaries---Scope---Public functionaries must act justly, fairly and in accordance with law.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

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

----Art. 4---Equal protection of law---Contractual employees---Scope---Provision of Art.4 of the Constitution comes to the rescue of every citizen in Pakistan and does not distinguish between contractual employee or regular employee---Every person has to be treated in accordance with law and is entitled to equal protection of law, even if he is contractual employee.

New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Rana Asif Nadeem v. Executive District Officer, Education District Nankana and 2 others 2008 PLC (C.S.) 715 rel.

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

----Arts. 9, 14 & 199---Constitutional petition---Condemned unheard---Contractual employment---Scope---Petitioners were employed on contract basis for one year but their contracts were terminated just after eight months, without providing them any opportunity of hearing--Validity---Petitioners, even though being contract employees, had all legitimate expectations to complete their terms of contract, especially after having worked for eight months and after having drawn their salaries for that period---Appointment of petitioners was for their livelihood and to deprive them of their livelihood without due process had offended Art.9 of the Constitution, which included. the right to life and right to livelihood---Petitioners also enjoyed protection of Art.14 of the Constitution which related to dignity of a person---Order passed by authorities had offended dignity of employees and reduced them into a chattel who could be thrown out of service without any notice and in the most unkindest manner extinguishing his legitimate expectations and trampling upon his dignity and livelihood which was not permissible under the Constitution---In the matter of contractual employees, their termination was to be governed strictly in accordance with the terms settled in appointment letter---Duty of public functionaries to act justly, fairly and . in accordance with law fully covered responsibility on their part to honour terms and conditions settled for contractual employees---No adverse order could be passed against a person without affording him chance of hearing or without issuing him with notice---High Court set aside order terminating contract of petitioners as the same was unlawful and unconstitutional---High Court directed that petitioners would complete their terms of contract---Constitutional petition was allowed accordingly.

The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others 1994 SCMR 1548; General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2061 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

(d) Good governance---

----Concept---Working of institutions---Principle---Institutions can only be strengthened if they respect rule of law and fundamental rights of each and every employee working with them---It is arbitrary, haphazard and unreasoned orders which weaken institutions, generate corruption and cripple democracies---Good governance is to have accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics.

Ch. Manzoor Ahmad and Ahmad Mansoor Chishti for Petitioner.

Masood Ashraf Sheikh for Respondent.

Muhammad Ramzan Abid, Superintendent General C.D.A.

Date of hearing: 11th November, 2009.

2010 P L C (C.S.) 284

[Lahore High Court]

Before Iqbal Hameed-ur-Rehman, J

UZMA SALEEM

Versus

POSTMASTER GENERAL PUNJAB CIRCLE, LAHORE and 5 others

Writ Petition No.10517 of 2009, decided on 8th October, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Higher designation and claim for salary---Petitioner had prayed that she be designated as an Assistant Mistress in BPS-14 in the line with order passed by the Authority and further claimed that she be given the salary by treating her as Assistant Mistress BPS-14 from the date she was serving as teacher on attachment basis against the vacant seat---Grievance of the petitioner with regard to designation of Assistant Mistress in BS-14, related to the terms and conditions of service, which High Court was barred under Art.212 of the Constitution---Petitioner had not been able to show that any discriminatory attitude was being adopted towards her---Petitioner had only urged that she was entitled to the grant of BPS-I4 on the ground that she had been working on the said post as a stop-gap arrangement---Petitioner, could not claim promotion as of right on the basis of said claim---Promotion was not a vested right of civil servant, because it depended upon the eligibility­-cum-fitness-Claim of the petitioner for the payment of her salary and allowance for a period with effect from date she performed duties as Assistant Mistress in BPS-14, seemed to be genuine---Petition was accepted to the extent of the claim regarding payment of the salary and allowance of the post of Assistant Mistress as claimed by her.

1998 SCMR 882; Zafarullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Sh. Amar Maftoon v . Government of the Punjab through Secretary Education and another 1992 SCMR 1869; Federation of Pakistan v. Shahzada Shahpur Jan and 2 ,others 1986 SCMR 991 and Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General„ N.-W.F.P. Peshawar and another 1978 SCMR 289 ref.

Muhammad Iqbal Mohal for Petitioner.

Amar Rahman, D.A.-G. for Respondents.

2010 P L C (C.S.) 310

[Lahore High Court]

Before Sh. Azmat Saeed, J

MUHAMMAD DAWOOD KHAN

Versus

DISTRICT COORDINATION OFFICER, MIANWALI and 2 others

Writ Petition No.15814 of 2009, decided on 15th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Recruitment policy---Applicability---Status of school---Determination---Petitioner applied for the post of teacher and claimed extra marks on the basis of his experience of teaching in a school---Authorities did not grant him extra marks on the ground that the school where he had been teaching was not a government school---Plea raised by petitioner was that employees of similarly placed institutions have already been held by Supreme Court to be civil servants---Validity---In view of the judgment of Supreme Court, High Court had no option but to hold that the school in question was a school of Federal Government and, therefore, petitioner was entitled to extra marks for experience in terms of recruitment policy applicable-.-Petition was allowed accordingly.

Managing Committee, PAF, Model Inter-College, Sargodha through Charmin and 4 others v. Malik Muhammad Pervaiz Akhtar 1997 ' SCMR 1957 fol.

Syed Zeshan Temoor Gilani for Petitioner.

Ch. Aamir Rehman, Dy. A.-G. for Pakistan with Aman Ullah Khan Niazi, A.E.O. Office of EDO (Edu.), Mianwali for Respondent.

Date of hearing: 23rd December, 2009.

2010 P L C (C.S.) 374

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

AZHAR AHMAD KHAN and 8 others

Versus

CHIEF SECRETARY GOVERNMENT OF THE PUNJAB, LAHORE and 12 others

Writ Petitions Nos.19365 of 2009 and 988 of 2010, decided on 26th January, 2010.

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

----S. 4(1)(a)---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition--- Maintainability--- Petitioners assailed appointment of 80 Sub-Divisional Officers through process of Departmental Selection Committee---Plea raised by authorities was that in view of Art. 212 of the Constitution, the petition was barred---Validity---No final order was passed against petitioners by departmental authority in respect of terms and conditions of service of petitioners---Petitioners challenged summary for appointment and subsequently notification and action of authorities for selection in question on contract basis, therefore, High Court had jurisdiction to entertain petition under Art.199 of the Constitution---No appeal, under S.4 (1)(a) of Service Tribunals Act, 1974, could be filed before Service Tribunal against such act or action and notification, therefore, matter did not fall under the ambit of Art. 212 of the Constitution---Even if act or action of authorities was protected by Constitutional provisions by ouster clause, the superior courts still had jurisdiction to interfere with three categories\ of cases, namely without jurisdiction; coram non judice; and mala fide---Petition was maintainable in circumstances.

Executive District Officer Schools and Literacy District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; 1995 PLC (C.S.) 377; 1995 PLC (C.S.) 765 and Iftikhar Ullah v. The Secretary, Irrigation and Power Department, Government of Punjab, Lahore and others 2002 PLC (C.S.) 720 rel.

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

----Rr. 10(b) & 13---Constitution of Pakistan (1973), Arts.3 & 199---Constitutional petition---Appointment on current charge basis---Recruitment on contract basis---Petitioners assailed appointment of 80 Sub-Divisional Officers through process of Departmental Selection Committee---Validity---Posts of Sub-Divisional Officers had already been filled by department by appointment on current charge basis till the arrival of regular incumbents in view of specific provisions of Rr. 10 (b) and 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---No justification was available to the authorities for advertising posts in question for recruiting on contract basis till the arrival of regular incumbents---Petitioners were performing their duties as Sub-Divisional Officers on current charge basis, having qualification of B.Sc. in civil engineering from recognized universities till the arrival of their regular incumbents of posts in question, therefore, there was no justification for authorities to make appointments against the posts on contract for temporary period---Such action of authorities was declared as illegal, arbitrary, mala fide and violative of specific provisions of Art. 3 of the Constitution---High Court directed the authorities to make appointments of Sub-Divisional Officers through Public Service Commission---High Court also restrained the authorities from making selection against posts in question through Departmental Selection Committee on contract basis as against which posts some of the petitioners were already working on current charge basis till arrival of regular incumbents having requisite qualification of B.Sc. in civil engineering from recognized Universities---Petition was allowed accordingly.

?

Amanullah Khan's case PLD 1990 SC 1092; PLD 2007 Lah. 61; 1992 PLC 962; 2007 PLC (C.S.) 811; 2009 SCMR 605; 2006 SCMR 1163; Pakistan International Airlines Corporation through Chairman and others PLD 2005 SC 831; Zahid Akhtar's case PLD 1995 SC 530; L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82 and Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948 ref.

(c) Civil service---

----Ad hoc appointment---Scope---If a post is filled on ad hoc basis, which is liable to be terminated on availability of regular incumbent, termination of such-like ad hoc appointee before arrival of regular incumbent is illegal and ad hoc appointee is entitled to perform his duties till the arrival of regular incumbent---Concept of ad hoc appointment against post in public sector is a stop-gap arrangement which is not a permanent characteristic of civil service---Not proper in public sector to occupy posts required to be filled through the method prescribed by law by making ad hoc appointments and allow incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis.?

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; 1995 PLC (C.S.) 377 and 1995 PLC (C.S.) 765 rel.

Syed Muhammad Kaleem Ahmad Khurshid and Ch. Fiaz Ullah for Petitioners Nos.1 to 3.

Mahmood Ahmad Qazi for Petitioners Nos.4 to 9.

Abdul Naeem Qureshi for Respondents Nos.1 to 5.

Faisal Najeeb Chaudhry for Respondents Nos.6 to 9.

Muhammad Azeem Malik Addl. A.-G.

Date of hearing: 19th January, 2010.

2010 P L C (C.S.) 406

[Lahore High Court]

Before Sh. Azmat Saeed, J

KHURRAM SHAHZAD and 56 others

Versus

DISTRICT EDUCATION OFFICER (COLLEGES), SIALKOT and 3 others

Writ Petitions Nos.15444, 15565, 15590, 21643, 19303 and 18632 of 2009, decided on 1st December, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Termination of service---Petitioners were appointed on contract basis, but their services having been terminated, they had challenged the termination order---Validity---No doubt the petitioners were appointed on contract basis, but the orders/letters impugned did not constitute to urination simpliciter, but were purportedly issued pursuant to the orders of the Provincial Ombudsman, which categorically provided right of hearing to the petitioners which had not been granted---In that view of the matter the impugned orders/letters of termination could not be sustained; and were set aside---Authorities were directed to proceed further in the matter after affording of opportunity of hearing to the petitioners.

Mehmood Ahmad Qazi, Muhammad Javed Iqbal, Muhammad Iqbal Mohal and Sh. Muhammad Siddique for Petitioners.

Kh. Adnan Ahmad, A.A.-G. with Naseer Ahmad Shaiq, D.E.O. (Colleges) and Muhammad Arshad Butt, Dy. D.E.O. (Colleges), Sialkot.

2010 P L C (C.S.) 471

[Lahore High Court]

Before Ijaz-ul-Ahsan, J

MUHAMMAD SHARIF NAZ and 14 others

Versus

GOVERNOR, STATE BANK OF PAKISTAN and 3 others

Writ Petition No.3346 of 2009, decided on 1st February, 2010.

(a) State Bank of Pakistan Banking Services Corporation (Bank) Staff Regulations, 2005---

----Reglns. 17(i) & 18(iii)---Constitution of Pakistan (1973), Arts.25 & 199---Constitutional petition---Voluntary retirement from service in September, 2006---Grant of dearness allowance by Bank w.e.f. 1-9-2006 at rate of 17% of monthly monetized salary of each employee as on 30-6-2006 as a separate allowance not calculable for pensionary benefits---Receipt of retirement dues by petitioners on basis of monetized salary (i.e. lump sum salary including all allowances)---20% increase in monetized salary of existing staff of Bank w.e.f. 1-6-2007 including such dearness allowance---Petitioners' prayer after having received retirement dues for merger of dearness allowance in monetized salary for calculating their retirement benefits w.e.f. June 2006 and grant of arrears accordingly---Validity---Petitioners during their tenure had not objected to grant of dearness allowance---Subsequent increase in monetized salary by 20% of existing staff would henceforth would be used as a basis. for calculation of pension, gratuity, provident fund etc.---According to Art.25 of the Constitution, all persons equally placed i.e. falling under same category or belonging to same group, would be entitled to equal treatment---Petitioners, after having severed their connections with Bank constituted a different class as compared to those still in service falling in a different category---Petitioners had not been discriminated---Petitioners had not disclosed recent increase in their pensions, thus, to such extent they had not approached the court with clean hands---No restriction could be placed on right of employer to provide additional benefits/incentives to its existing employees---Petitioners were estopped by their conduct to claim such merger after having voluntarily opted for and accepted benefits of pre-mature retirement package offered to them by Bank---High Court dismissed constitutional petition in circumstances.

?

Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079 rel.

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

----S. 25---Equally placed persons (i.e. all persons belonging to same group or falling in same category) would be entitled to equal treatment---Principles.

Article 25 of the Constitution guarantees equal protection of law. Such equality is guaranteed amongst persons, who are equally placed. All persons, who fall under the same category or belong to the same group, are entitled to the same treatment. However, in case there is a differentiation and the same is based upon a valid classification, which does not have the taint of arbitrariness, the same does not fall in the definition of `discrimination'.

'Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079 rel.

Bashir Ahmad Shah Hashmi for Petitioners.

Rehan Nawaz for Respondents.

Date of hearing: 9th December, 2009.

2010 P L C (C.S.) 478

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Syed ALI ABBAS GARDEZI and another

Versus

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

Writ Petitions Nos.24410 and 24451 of 2009, heard on 27th January, 2010.

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

----Art. 199---Constitutional petition---Civil Service---Customs and Excise Groups, employees of---Creation of new Inland Revenue Service for merging therein Sales Tax, Income Tax and Federal Excise wings---Office memorandum calling options from petitioners for inclusion or otherwise in Inland Revenue Service Group---Petitioners' plea that by means of such memorandum, their service, structure and future prospects of seniority and other allied matters would be seriously affected-v-Validity---Commissioner of Inland Revenue Service stated before Court that option under such memorandum was not compulsory for petitioners or others; that creation of Inland Revenue Service would not affect their future promotion prospects, if they opt or not; and that persons giving their option would retain their actual inter-se seniority---Petitioners had no grievance in view of such categorical statement of high rank representative of the department---Promotion Policy in vogue would remain same as being adopted for other occupational groups and there would be no separate Promotion Policy after creation of Inland Revenue Service---Option was always available to petitioners and they were not bound to exercise same compulsorily---Petitioners could maintain their present group and retain their seniorities---Petitioners had no enforceable vested rights, and if at all they had, then same were not being infringed through such memorandum---Creation of new department or merger of any department into some other being a policy matter to be taken by executive or legislature---Any action taken by courts disturbing policy matters in such like affairs would be excessive use of jurisdiction, if not beyond jurisdiction---Use of such a jurisdiction would frustrate tracheotomy of powers provided in the Constitution---Merger of Sales Tax, Federal Excise and Income Tax into Inland Revenue Service was neither contrary to fundamental rights of petitioners nor would affect tax collection---Writ could not be issued on mere apprehension or to block future eventualities---High Court dismissed constitutional petition in circumstances.

?

Garton Industries Ltd. v. Government of Pakistan and others 1999 SCMR 1072; 1998 SCMR 91; PLD 1995 SC 423 and 2006 PLC (C.S.) 131 ref.

Col. Subah Sadiq v. M. Ashiq and others' 2006 SCMR 276 rel.

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

----Art. 199---Writ could not be issued on mere apprehension or to block future eventualities---Principles.?

Hafiz Tariq Nasim and Muhammad Nawaz Cheema for Petitioners (in Writ Petition No.24410 of 2009).

Zafarullah Khan for Petitioner (in Writ petition No.24451 of 2009).

Muhammad Ilyas Khan, Saeed Ahmad Zaidi, Shamshad Ullah Cheema, Tariq Naseem and Ibrar Ahmed for Respondents Nos.4 and 12.

Raja Muhammad Irshad, Sardar Muhammad Ghazi and Ibrar Ahmad for Respondents Nos.2 to 3.

Muhammad Nawaz Waseer, Standing Counsel for Federation of Pakistan.

Mushtaq Ahmad Qazi, Commissioner and Syed Nadir Hussain, Deputy Director, F.P.S.C.

Date of hearing: 27th January, 2010.

2010 P L C (C.S.) 485

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMED

Versus

NATIONAL COLLEGE OF ARTS through Principal, National College of Arts and another

Writ Petition No.22006 of 2009, decided on 2nd February, 2010.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Civil service---Vacancy of---Professor in an educational institution---Filling of such post from direct quota instead of prescribed promotion quota---Validity---According to Notification dated 16-8-1995 issued by Ministry of Education, posts of Professors had to be filled 50% by promotion and 50% by direct recruitment---Last appointment of Professor had been made by direct recruitment, thus next Professor's post would be filled by promotion---Post of Professor becoming vacant on retirement of another Professor in June 2008 would be filled by promotion---Petitioner already working as Associate Professor having sufficient experience and eligible had a right to be considered for promotion to such post---Petitioner having a vested right to be promoted to such post had been ignored by authority with mala fide intention---High Court declared impugned action as illegal and directed the authority to fill such post by promotion considering petitioner's name and not by direct recruitment.

Dr. Arif Majeed v. Dr. Shuja-ud-Din Khan and 5 others 2000 PSC 600 and Sarwar Ali Khan v. Chief Secretary to Government of Sindh and another PLD 1994 SC 233 rel.

Hafiz Tariq Nasim for Petitioner.

Bilal Hassan Minto for Respondents Nos. 1 and 2.

2010 P L C (C.S.) 492

[Lahore High Court]

Before Syed Zulfiqar Ali Bokhari, J

AZMAT SHER QAISRANI

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.4891 of 2007, decided on 21st April, 2009.

North-West Border Military Police Act, 1904---

----S. 6---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Civil service---Appointment---Petitioner who was recruited as Dafadar was promoted as Acting Military Jammadar--Name of the petitioner was recommended for promotion on regular basis by the competent Authority, but no action was taken on the pretext that rules had not yet been notified in that respect in the official Gazette---Respondent, however was appointed as Jamadar against a vacant post in relaxation of provisions of recruitment policy---Petitioner had challenged said appointment on the ground that same was without lawful authority as said post had already been occupied by the petitioner and he was performing his duties as Jammadar--Maintainability of constitutional petition by the petitioner was challenged on the ground that the petitioner was a civil servant and dispute related to the terms and conditions of service, which could not be raised in constitutional petition being barred under Art.212 of the Constitution---Validity---Petitioner being a civil servant had not prayed for his promotion or any other relief which would come under the `terms and conditions' of his service; no question of bar of Art.212 of the Constitution would arise, in circumstances---Present was a petition for quo warranto, which could only be filed by an interested person---Petitioner who was expecting his regular promotion for the post, had challenged appointment of the respondent---Constitutional petition by the petitioner, was maintainable, in circumstances---Order of appointment of respondent, was declared to be null and void, without lawful authority, in violation of law and result of political motivation, which was set aside by High Court.

Qamar-uz-Zaman Butt for Petitioner.

Malik Waqar Haider Awan for Respondent No.5.

Mubashar Latif Gill, A.A.-G. for other Respondents.

2010 P L C (C.S.) 502

[Lahore High Court]

Before Khawaja Muhammad Sharif, CJ

SHAH JAHAN DOGAR

Versus

FEDERAL BOARD OF REVENUE through Chairman and 6 others

Writ Petition No.16199 of 2009, decided on 14th September, 2009.

Constitution of Pakistan (1973)---

----Art. 199--Constitutional petition---Civil service---Termination of service---Petitioner challenged the show-cause notice of termination of his service from the Customs Department on the ground that matter had been inquired under the law which had been repealed, and date of its repeal was 17-10-2006 while he was charged in the year 2009---Department contented that constitutional petition was not maintainable and that petitioner had an alternate remedy and he could approach to the Service Tribunal---Validity---Petitioner was suspended by the Customs Department, an alternate remedy was available to hint---Petitioner could file an appeal before Service Tribunal---Constitutional petition was dismissed by High Court.

1985 SCMR 63 ref.

Muhammad Sadiq Khokhar v. Engineer in Chief Pakistan Army GHQ and another 1985 SCMR 63 rel.

Dr. A. Basit for Petitioner.

Izhar-ul-Haque, Legal Advisor Custom Department.

2010 P L C (C.S.) 515

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

NASURALLAH KHAN and 2 others

Versus

UNIVERSITY OF GUJRAT through Vice-Chancellor and 4 others

Writ Petition No.18997 of 2009, decided on 24th February, 2010.

University of Gujrat Act (IX of 2004)---

----Ss. 3, 8 & 51---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of government colleges to the university---Status of employees of transferred colleges---College which had been transferred to the university had been made part and parcel of the university---All the properties owned or possessed and all the employees, regular or on contract basis serving in the said transferred colleges were transferred to the university---All employees of transferred colleges in circumstances, were to be treated the employees of the university for all practical purposes and were entitled to the benefits which were being allowed to other employees of the university---University had granted one step high scale to its employees who had been directly inducted by the university---Direct employees of the university were being given house rent at the rate of 45% of regular pay, whereas the employees of transferred colleges were being paid the house rent at the rate of 30% of the basic pay---Validity---According to subsection (1) of S.3 of University of Gujrat Act, 2004, all constituent/transferred colleges were given the status of the university and no where it was mentioned that said colleges or the university had any different status---Employees of transferred colleges did not remain employees of the Government and were not to be treated according to the terms and conditions on which they were recruited in transferred/constituent colleges---Since the employees of the constituent colleges were the employees of the university, they were entitled to the benefits which being allowed to other employees of the university---By not allowing the same benefits to-the said employees, discriminatory treatment had been made out. to them---University had failed to point out any specific classification to deprive the employees of transferred colleges from the relief sought for---Said employees were declared to be the employees of the university and were entitled to get the benefits as prayed for.

Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and HRCR and 2 others v. Government of Pakistan and others PLD 2009 SC 507 ref.

Muhammad Irfan Malik for Petitioners.

Naseem Sabir Chaudhry for Respondent No.1 with Muhammad Arif, Deputy Registrar and Akhtar Hussain, Senior Auditor University of Gujrat.

Waqas Qadeer Dar, A.A.-G.

Date of hearing 20th January, 2010.

2010 P L C (C.S.) 538

[Lahore High Court]

Before Ijaz Ahmad, J

QAMAR ABBAS and 7 others

Versus

INSPECTR-GENERAL OF POLICE, (PROVINCIAL POLICE OFFICER), PUNJAB and 2 others

Writ Petition No.1772 of 2006, decided on 10th March, 2010.

(a) Police Rules, 1934---

---Rr. 13.6 & 13.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Petitioners had already qualified the list A' examination and their names appeared in the list "A"---Petitioners had already availed three chances for passing of the said examination necessary for being promoted to the listB-1' of the constables---Petitioners, who failed despite availing three chances, reappeared in the examination and were declared successful---District Police Officer sought advice of Inspector General of Police whether the petitioners could avail over and above three chances that they had already availed of---Inspector General Police vide his letter opined that a constable who failed in the examination of list B-1 despite availing of three chances, was not to be provided further opportunity to reappear in the examination for promotion---Authorities instead of promoting the petitioners to list B-1, excluded their names from list "A"---Validity--Police Rules, 1934 did not prescribe any number of chances that could be availed by the candidates for promotion to the list B-1---In absence of such an embargo, the possible interpretation was that the number of such chances was infinite till a specific circumscription was introduced by amendment in the Rules---Petitioners, in the absence of such provision, could not be denied their right of being enlisted in list B-1 of the constables---Impugned order excluding the names of the petitioners from list A, was set aside---Authorities were directed to prepare the list B-1 of the constables afresh after including the names of the petitioners therein.

(b) Interpretation of statutes---

----While interpreting the law, the interpretation that favoured an individual, should be preferred over one that favoured law makers.

Jaffar Hussain Kiani and Muhammad Bashir Khan for Petitioners.

Rashid Hafeez, A.A.-G. and Bashir Hashmi, D.S.P. Legal Attock for Respondents.

2010 P L C (C.S.) 546

[Lahore High Court]

Before Hafiz Abdul Rehman Ansari, J

WAQAR AHMAD

Versus

DIRECTOR PUBLIC INFORMATION (COLLEGES), PUNJAB GOVERNMENT, LAHORE and 5 others

Writ Petition No.314 of 2010, decided on 18th January, 2010.

Constitution of Pakistan (1973)---

----Arts. 199 & 212(3)---Service Tribunal---Appeal against order of Service Tribunal---Jurisdiction---Scope---High Court had no jurisdiction to interfere in the judgment passed by Service Tribunal.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859 ref.

Syed Hamid Hassan Peerzada for Petitioner.

2010 P L C (C.S.) 589

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Mst. PARVEEN JAHAN

Versus

ADMINISTRATOR, PUNJAB PROVINCIAL COOPERATIVE BANK LIMITED, LAHORE and 4 others

Writ Petition No.2391 of 2010, decided on 18th February, 2010.

Revised Efficiency and Discipline Rules of Punjab Provincial Cooperative Bank, 2004---

----R. 10---Cooperative Societies Act (VII of 1925), S.64---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate remedy---Non filing of appeal---Effect---Petitioner challenged the office order of Inquiry Committee, for her dismissal from service from the bank along with recovery of pecuniary loss of Rs.350,000---Petitioner asserted that impugned order had been passed by the incompetent authority and the members of the Inquiry Committee were biased--Further assertion of the petitioner was that no proper opportunity had been provided to her to defend herself---Respondents contended that an alternate remedy, by way of filing of appeal, was available to the petitioner and the constitutional petition was not maintainable---Validity---Petitioner had an alternate remedy by way of filing an appeal, before the Administrator under R.10 of the Revised E&D Rules, 2004 of the bank and the same should be exhausted first and all the grounds available to the petitioner might be urged before the competent authority, which would give its independent decision---High Court disposed of the constitutional petition with a direction that the office should transmit a copy of present petition along with all its annexures to the Secretary, Co-operative Societies/Administrator, who should treat same as an appeal and to decide in accordance with law within a fortnight after affording opportunity of hearing to all the parties concerned.

The Lahore Central Cooperative Bank Ltd. v. Saif Ullah Shah PLD 1959 SC 210; Faiz Ahmad v. The Registrar, Co-operative Societies, West Pakistan, Lahore PLD 1962 SC 315; Zainul Abaidin v. Multan Central Co-operative Bank Ltd, Multan PLD 1966 SC 445; PI.D 1966 SC 848 and PLD 1971 Lah. 748; 1998 SCMR 1452, PLD 1972 Lah. 316; PLD 1984 SC 75 and 2003 PLC (C.S.) 770 ref.

Ali Akbar Qureshi for Petitioner.

Muhammad Ilyas Khan for Respondents.

2010 P L C (C.S.) 619

[Lahore High Court]

Before Syed Zulfiqar Ali Bokhari, J

Mst. FAHIM MUMTAZ

Versus

SECRETARY (SCHOOLS)

Writ Petition No.256 of 2009, decided on 18th June, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Appointment---Seat to be filled was that of Subject Specialist in Urdu and petitioner who applied for said seat was the only candidate qualified to be posted at said seat, but respondent was posted though she was not eligible for that post being Subject Specialist in Arabic---Petitioner had challenged the posting of respondent on the ground that she was not eligible for the same---Petitioner being an interested party could file the petition---Bar under Art.212 of the Constitution, would not come in the way of writ of quo warranto---Secretary of the department had conceded that fact that respondent was not eligible, however, she was posted against that vacant seat, because at that time no other candidate was available for posting against said vacancy--Impugned notification issued by department was set aside with direction to consider candidature of the petitioner for posting against the said seat in accordance with law.

Syed Muhammad Amin Shah for Petitioner.

Muhammad Javed Iqbal for Respondent No.4.

Mubasher Latif Gill, A.A.-G. for Respondent

2010 P L C (C.S.) 626

[Lahore High Court]

Before Fazal-e-Miran Chauhan and Parvaiz Ali Cheema, JJ

MUHAMMAD NAWAZ CHEEMA and others

Versus

PRINCIPAL SECRETARY TO CHIEF MINISTER PUNJAB, LAHORE and others

I.C.A. No.302 of 2009 in Writ Petition 5500 of 2009, decided on 29th June, 2009.

Civil service---

----Appointment---Cancellation of appointment---Appellant and others applied for the post concerned in response to an advertisement---Public Service Commission issued call letters for interview, but later on the Commission cancelled the interview suddenly without assigning any reason---Subsequently appellant was appointed through a directive---Appellant having been appointed in clear violation of the rules, his appointment was rightly cancelled by Single Judge of High Court being illegal, tainted with mala fide and politically motivated---Counsel for the appellant had failed to point out any illegality or irregularity in the impugned order---Impugned order not suffering from any illegality or irregularity, could not be interfered with in Intra-Court appeal.

Khalid Pervaiz Warraich for Appellant.

Respondent No.4 in person.

2010 P L C (C.S.) 652

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

QAISAR ALI SHEIKH

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2218 of 2010, heard on 7th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Withdrawal of special allowance allowed to the employees---Grievances urged by the petitioners were that one month running pay allowed to them had been withdrawn by the authorities in view of the risk allowance salary package of the Punjab Police--Petitioners had been allowed special allowance of one month additional basic pay in addition to their pay---Same was allowed as incentive given to all the Police Prosecutors working as DSP Legal and Inspector Legal; and the same had duly been paid to the petitioners---Enhancement in the salaries of the Police Officials through special package was introduced to rationalize disparity in the salaries of various units, ranks of the Police and to bring same at par with the salary of Islamabad and Motorway Police ---From the order whereby benefits were withdrawn it was quite obvious that special incentive allowance offered to the petitioners of one additional basic pay scale per month had not been withdrawn and the petitioners could not be deprived of the said special allowance---Petitioners, in circumstances were entitled to the same---Authorities were directed by High Court to allow the payment of special allowance to the petitioners; arrears should also be paid to them; and if any recovery had been made same be reimbursed.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and The Engineer­-in-Chief branch through ministry of defence, Rawalpindi v. Jalaluddin PLD 1992 SC 207 ref.

Petitioners in person.

Muhammad Azeem Malik, Addl. A.-G. along with Naseer Ahmad, D.S.P. Legal for Respondents.

Date of hearing: 7th April, 2010.

2010 P L C (C.S.) 695

[Lahore High Court]

Before Tariq Javaid, J

MUHAMMAD AJMAL KHAN

Versus

GOVERNMENT OF PUNJAB through Secretary Schools Education, Lahore and 6 others

Writ Petition No.6404 of 2009, decided on 17th February, 2010.

Constitution of Pakistan (1973)---

----Art. l99---Constitutional petition---Civil Service---Appointment---Disabled person---Not in the merit list---Effect---Petitioner challenged appointment of one of the candidates for the post of Elementary School Educator on the ground that he had qualified interview and ought to have been offered posting in place of the candidate selected as disabled person---Contention of the petitioner was that he was eligible for the posting and such posting could not be denied on the pretext that a disabled person had been appointed in the school of his choice---Validity---Petitioner could not be made to suffer for the sole reason that 22 disabled candidates had already been accommodated whereas under the rules only 5 were to be accommodated as per 2% quota---High Court directed the authorities to appoint the petitioner on any available vacancy near to his place of abode as he could not be made to suffer in circumstances wherein there were still vacancies available---Constitutional petition was allowed.

Sahibzada Mehboob Ali Khan for Petitioner.

Muhammad Javaid Saeed Pirzada, A.A.-G. along with Masood Nadeem Malik, E.D.O. (Education), Muzaffargarh.

2010 P L C (C.S.) 697

[Lahore High Court]

Before Hafiz Abdul Rehman Ansari, J

ALTAF HUSSAIN

Versus

DISTRICT COORDINATION OFFICER/CHAIRMAN RECRUITMENT COMMITTEE, MUZAFFARGARH and 3 others

Writ Petition No.7278 of 2009, decided on 19th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Appointment on the basis of a Policy---Petitioner being Secondary School Educator, had challenged the appointment of the respondent as Secondary School Educator on the ground that another applicant had also filed application for his posting in the same institution in which petitioner was appointed and his appeal was pending to be decided first by the Executive District Officer (Education)---Petitioner further asserted that prior to decision by the said officer in appeal, the respondent was appointed in the said institution and the petitioner was aggrieved by such appointment---Validity---Record revealed that in the merit list, prepared for appointment in the said institution, respondent was at serial No. 1 where he had been rightly appointed---Appointments were made according to the policy formulated by the Government---Constitutional petition was dismissed by High Court.

M. Aamer Khan Bhutta for Petitioner.

Abdul Rehman Khan Laskani for Respondent No.4.

Aurangzeb Khan, A.A.-G with Riaz Hussain Qureshi, Litigation Officer, Education Department, Muzaffargarh.

2010 P L C (C.S.) 699

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mrs. PARVEEN AKHTAR and 3 others

Versus

DISTRICT EDUCATION OFFICER (W) ELEMENTARY EDUCATION, JHANG and 2 others

Writ Petition No.4452 of 2009, decided on 6th April, 2009.

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

---Ss. 3(e) & 6---Constitution of Pakistan (1973), Art.199--- Constitutional Petition---Fake appointment---Issuance of show-cause notice---Petitioners in their constitutional petition had challenged show-cause notice issued to him---Appointment of the petitioners having been challenged on the ground of fake documents, a shorter procedure of show-cause notice was adopted, instead of holding a regular inquiry which was neither justified nor covered under law, particularly when the petitioners were agitating vigorously that they were being victimized with no fault of their, rather on extraneous consideration---Authorities were directed to issue charge-sheet/statement of allegations to the petitioners, get their replies, appoint an independent Inquiry Officer, afford a fair chance to produce their defence in addition to afford a fair opportunity to rebut evidence of the department---Inquiry Officer, then could submit a report before the competent Authority.

Government of Punjab through Secretary Education Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 ref.

Syed Faiz-ul-Hassan for Petitioner.

Akhtar Ali Qureshi, A.A.-G. with Ghulam Mustafa Sumbal, DEO(E) and Hussain Gulshan, DEO(ME) for Respondents.

2010 P L C (C.S.) 701

[Lahore High Court]

Before Ijaz-ul-Ahsan, J

NAZAR MUHAMMAD WARAICH and 7 others

Versus

ZONAL HEAD, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, PARIS ROAD, SIALKOT and another

Writ Petition No.12525 of 2009, decided on 10th March, 2010.

(a) Sacked Employees (Reinstatement) Ordinance (II of 2010)---

----S. 3---Constitution of Pakistan (1973), Arts.199 & 25---Constitutional petition---Contention of the petitioners was that while the authorities had commenced reinstatement of similarly displaced employees, petitioners were left out of the process---Validity---Section 3 of Sacked Employees (Reinstatement) Ordinance, 2010 made no distinction as to cause termination for cause, and termination without any cause---Relevant provision only provided for a time period within which an employee was appointed and thereafter terminated for any reason---Petitioners were discriminated against, without lawful reason, which was violative of fundamental rights---Petitioners being entitled to the benefit of S.3 of the Ordinance, Constitutional petition was allowed.

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

----Art. 25---Article 25 of the Constitution guarantees equality before the law and nondiscrimination between equally placed persons---Policy of pick and choose on the part of State functionaries was an anathema to the right of equal treatment and non discrimination; guaranteed to citizens under the Constitution.

Rao Abdul Jabbar Khan for Petitioners.

Sher Zaman Khan for Respondents.

2010 P L C (C.S.) 707

[Lahore High Court]

Before Ch. Muhammad Tariq, J

SHAHID MAHBOOB RANA and another

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others

Writ Petition No.3061, decided on 22nd March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Respondent, a deputationist, filed a civil suit against orders of his repatriation to the parent department by the University---Trial Court entertained the suit and ordered to maintain status quo---Appeal by University also failed---Validity---Held, in case of a deputationist, it was for the parent department to recall his service---Officer on deputation did not fall in the definition of "civil servant" till he had been repatriated to his parent department---Impugned orders of lower courts did not suffer from any illegality---Constitutional petition was dismissed.

Muhammad Shahzad Shoukat for Petitioner.

Rai Muhammad Zafar Bhatti for Respondent No.3.

2010 P L C (C.S.) 718

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

ABDUL RAUF ZAHID

Versus

PUNJAB TEXT BOOK BOARD and others

Writ Petitions Nos.13843, 13844, 13845 and 14861 of 2009, decided on 7th April, 2010.

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

----S. 7---Punjab Text Book Board Ordinance (XLI of 1962), S.24(2)---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Promotion, claim for---Petitioners had sought direction to the authorities to consider their case for promotion to the posts of Senior Subject Specialist (BS-18) on the principle of seniority-cum-fitness; and for restraining authorities from making promotion to said post on the basis of any promotion policy/promotion formula which was not approved by the Government as required under S.24(2) of the Punjab Text Book Board Ordinance, 1962 as amended in 1971---Validity---Petitioners who were appointed as Assistant Subject Specialist and had been working as Subject Specialist in BS-17, had claimed that they were entitled to be promoted as Senior Subject Specialist in BS-18, but were being denied the same on account of adopting an illegal method of preparing seniority list by the authorities other than the combined seniority list already prepared in accordance with the Punjab Text Book Board employees Regulations, 1980---Authorities had shifted to the specific policy of the Cadre of Subject Specialist, which had been made without seeking any amendment as required under S.24(2) of the Punjab Text Book Board Ordinance, 1962---Illegalities committed by the Authorities in clear violation of their own rules and regulations, could not be allowed---Present was a fit case where extraordinary constitutional jurisdiction of High Court could be exercised and bar under Art.212 of the Constitution would not deter High Court in striking down the illegal act on behalf of the authorities---Departmental specified policy was struck-down and authorities were directed to consider the petitioners for the promotion to the posts of Senior Subject Specialist (BS-18) on the basis of the combined seniority list as previously had been done by the authorities.

Muhammad v. Pakistan Railways and others 2004 YLR 521; Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan and others 2006 SCMR 1240; Government of the Punjab,. Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605 ref.

Agha Abul Hassan Arif assisted by Mahmood Ahmad Qazi for Petitioner.

Khalifa Shujat Hussain for Respondents Nos.1 and 2.

Muhammad Azeem Malik, Addl. A.-G.

Liaqat Ali Channar, Legal Asstt. P.T.B.

Rana Farman Ali Sabir for Respondent.

Date of hearing: 7th April, 2010.

2010 P L C (C.S.) 724

[Lahore High Court]

Before Sh. Azmat Saeed and Muhammad Farrukh Irfan Khan, JJ

SITWAT SALEEM

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and 6 others

Intra-Court Appeal No.129 of 2010, decided on 27th April, 2010.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Civil Service---Appellant who was employed as an Air Hostess with Airline/Corporation, was served with a letter whereby on account of alleged refusal of appellant to accept the charge in duty pattern, she was directed to tender her unconditional apology, otherwise disciplinary proceedings would be initiated against her---Further that she would remain removed from all international flights till finalization of the case---Constitutional petition filed by the appellant had been dismissed----Validity---High Court, in intra-court appeal could not interfere with the inquiry proceedings or in the management of employer/Airline Corporation regarding transfer from a particular flight to another---Appellant, however, could not be punished by being deprived of international flights without such inquiry being concluded-Infra court appeal was disposed of with the instructions that appellant would be dealt with strictly in accordance with law and not be punished by being deprived of international flights without the inquiry being concluded, however nothing in the order would interfere with the regular or ordinary transfer policy of the employer/Corporation in that behalf.

Umar Abdullah for Appellant.

Umar Sharif for Respondents.

2010 P L C (C.S.) 725

[Lahore High Court]

Before Syed Sajjad Hussain Shah, J

SAMEEN ASGHAR

Versus

FEDERATION OF PAKISTAN through Principal Secretary to the Prime Minister and 12 others

Writ Petitions Nos.903, 904 and 912 of 2007, decided on 6th June, 2007.

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

----Art. 199---Constitutional petition---Civil service---Promotion policy---Violation of---Effect---Petitioner, being qualified and eligible for promotion for the post from BPS-19 to BPS-20 were superseded by their juniors, having less merits, had challenged the promotion on the ground that respondents were promoted in violation of Promotion Policy by the Central Selection Board---Petitioner contended that his promotion was withheld on the ground of adverse reports of unspecified intelligence agency which were neither communicated nor confronted with the same---Validity---Petitioner was superseded by the Central Selection Board merely because of the reports of the Intelligence Agencies, but admittedly neither these reports were communicated to him nor was he confronted with the same---Neither details of reports were found in the proceedings of the Central Selection Board nor the same were in the comments submitted by them---High Court allowed the constitutional petition and disposed of the same in terms of its earlier constitutional petitions whereunder the reports of the Intelligence Agencies were declared as without lawful authority and directed Central Selection Board to reconsider the case of the petitioner strictly in accordance with the terms of the said judgments.

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, Government of Pakistan, Pak. Secretariat Islamabad 2003 PLC (C.S.) 503 ref.

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

----Art. 199---Constitutional petition---Maintainability---Civil Service---Appeal not competent before Service Tribunal---Remedy---Case of petitioner did not fall in the terms and conditions of civil servant merely because against the decisions/orders of departmental authorities regarding fitness or otherwise of the petitioner for promotion to a higher post, no appeal was competent before the Service Tribunal---Constitutional petition was maintainable.

Shafi Muhammad Mughal v. Secretary Establishment Division and others 2001 SCMR 1446 rel.

Abdul Raheem Bhatti for Petitioners.

Raja Muhammad Irshad, D.A.-G. for the Federation of Pakistan.

2010 P L C (C.S.) 729

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD BABAR AKBAR

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through General Manager and 3 others

Writ Petition No.4315 of 2010, decided on 18th May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Termination of contract employees from service---Petitioner who was working in Government Vocational Training Institute as Foreman (Electrical), had been terminated from service---Validity---Petitioner who was a contract employee, had accepted the terms and conditions of the contract at the time of his appointment by signing the contract---Services of the petitioner were terminated by enforcing a clause of the contract/agreement affording him one month's notice---Rule of master and servant was that an employee of a corporation in absence of violation of law or any statutory rule, could not press into service constitutional jurisdiction of High Court for seeking relief of reinstatement in service---For enforcement of contract, remedy did not lie under constitutional jurisdiction for no contract could be enforced through constitutional petition---Constitutional petition was dismissed in circumstances.

Gohar Ali and another v. Messrs Hoechst Pakistan Limited 2009 SCMR 109; Hira Farooq and another v. Pakistan International Airline through Managing Director, Office at PIA Head Office Quaid-e-Azam International Airport Karachi and 2 others 2005 MLD 466 and Muhammad Azam Suhail and others v. Government of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others 1998 SCMR 1549 ref.

Salman Riaz Chaudhry for Petitioner.

Umer Abdullah for Respondents.

2010 P L C (C.S.) 744

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

GHULAM ABBAS

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), GUJRAT and another

Writ Petition No.15279 of 2009, decided on 28th April, 2010.

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

----S. 9---Constitution of Pakistan (1973), Arts.199 & 212--Constitutional petition---Civil service---Transfer---Petitioner who was transferred and posted in place of respondent, joined the duty, but thereafter within a period of four months respondent was posted back vide impugned order which order had been challenged by the petitioner through constitutional petition---Petitioner had not been able to show or establish that the same had been made on account of any political influence moreover; said transfer fell within the terms and conditions of service which was barred by under Art.212 of the Constitution---High Court, in circumstances, had no jurisdiction to entertain the matter for which the petitioner had adequate remedy under S.4 of Punjab Service Tribunals Act, 1974.

Peel Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 ref.

Khadam Hussain Khokhar for Petitioner.

Agha I.A. Imran for Respondent No.2.

Muhammad Azeem Malik, Addl. A.-G. for Respondent.

2010 P L C (C.S.) 746

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

SUMERA YASMIN

Versus

D.C.O. and others

Writ Petition No.9290 of 2009, decided on 26th May, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Grievance of the petitioner was that she was 20 years and one month of age at the time of filing of application for the post of Educator and was fully qualified, but the call letter was not being issued to her for appearance in interview on the excuse that she was less than 20 years of age on the date when the Policy was made---Validity---Held, it was always of the Policy of Government to consider the age on the last date of filing of application for any post---When application was filed by the petitioner for the post, she was qualified to be considered as according to last date she was more than 20 years of age---No justification was available as put forward by the Authorities with regard to the age of petitioner---Petitioner had been deprived of her right to contest the post of Educator being eligible for the same---Petition was accepted with the direction that petitioner would be issued call letter in response to the application already tendered by her; and on a date fixed by the authorities, she would be interviewed by the competent Authority and considered along with the other candidates for the post of Educator.

Rana Muhammad Aqeel Nasir for Petitioner.

Mian Ihsan-ul-Haq Sajid, Addl. A.-G.

Aman Ullah Niazi, AEO Office of EDO.

2010 P L C (C.S.) 769

[Lahore High Court]

Before Sh. Azmat Saeed, J

Dr. SHAHID MEHBOOB RANA

Versus

PROVINCE OF PUNJAB through Secretary and 2 others

Writ Petitions Nos. 15425 of 2009 and 1411, 1673 and 5356 of 2010, decided on 26th April, 2010.

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

----Art. 199---Constitutional petition---Vice-Chancellor, selection and appointment of---Discrimination---Plea of---Effect---Petitioners had challenged the process of selection and appointment of Vice-Chancellor of the University on the ground that the advertisement soliciting applications for the selection of the office of the Vice-Chancellor was illegal and the eligibility criteria for the said office did not conform to the instructions issued by Higher Education Commission---Petitioners further contended that local qualified Ph.Ds. were being discriminated against---Authorities asserted that no instructions, decisions or advice of the Higher Education Commission had been violated---Eligibility criteria mentioned in the disputed advertisement needed to be examined in juxtaposition with the guidelines issued by the Higher Education Commission---Record revealed that local Ph.Ds. had not been excluded from consideration by way of the disputed advertisement---Only a preference had been shown to those holding such a degree from a reputable foreign university which appeared to be in accordance with the letter and spirit of guidelines issued by Higher Education Commission---Petitioners had been unable to point out any contradiction between the eligibility criteria mentioned in the advertisement and the guidelines issued by Higher Education Commission---Constitutional petitions were dismissed by High Court.

Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi and another v. Federation of Pakistan and others PLD 1997 SC 84; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and others PLD 2009 SC 879; Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166; Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Muhammad Anwar Durrani v. Province of Balochistan through Chief Secretary and 10 others PLD 1989 Quetta 25; Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873; and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723 ref.

Sindh High Court Bar Association through its Secretary and others v. Federation of Pakistan through Secretary Ministry of Law and Justice Islamabad and others PLD 2009 SC 879 rel.

(b) Government College University Faisalabad Ordinance (LXX of 2002)---

----Ss. 9(7) & 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Vice-Chancellor---Appointment of---Temporary vacancy---Chief Minister---Advice of---Effect---Held, notification/ orders pertaining to the appointment of Vice-Chancellor having been passed and issued by the Chancellor in performance of his functions under S.12(2) of the Government College University Faisalabad Ordinance, 2002, in absence of advice of the Chief Minister, was without any legal effect or consequence on account of S.9(7) of the said Ordinance, hence could not in law operate as an impediment for the appointment of a regular Vice-Chancellor in accordance with law.

Muhammad Shahzad Shaukat for Petitioner.

Haris Ahmed, Advocate-General Punjab assisted by Shujat Ali Khan, A.A.-G. for Respondents.

Date of hearing: 17th March, 2010.

2010 P L C (C.S.) 783

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

NAUBAHAR ALI

Versus

VICE-CHANCELLOR and others

Writ Petition No.9713 of 2007, decided on 24th February, 2010.

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

----Arts.4, 2A & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Temporary employees (BS-1) of University terminable under service contract on one month's notice or salary in lieu thereof---Termination of service of petitioner without notice on account of unsatisfactory work---Validity---University, if desired to terminate petitioner's service, was obliged to issue him notice or pay him one month's salary under service contract---Failure to issue notice as envisaged under service contract being violative of provisions of S.24 of General Clauses Act, 1897 and Art.4 of the Constitution---Element of fairness must exist in all government actions, which were missing in the present case---Requirement of notice backed by Art.4 of the Constitution would apply to all employees either contractual or governed by non-statutory rules, and in either case termination could not be ordered without due process of law---Petitioner belonged to a less privileged segment of society with limited social and economic choices in life---Petitioner had an unequal bargaining position compared to University---Denial of right of hearing to petitioner had offended concept of social justice provided in Objectives Resolution (Art.2A of the Constitution) being a substantive part of the Constitution---University had violated terms and conditions settled by themselves while offering appointment to petitioner---Term of petitioner had already expired, thus, he could not be allowed to resume service---High Court set aside impugned order and directed University to pay immediately one month's salary in lieu of notice to petitioner.

Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.) 1131; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Amjad Ali and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125; Capt. Retd. Dr. Muhammad Iqbal v. Defence Housing Authority, Lahore 2004 PLC (C.S.) 276; I.C.A. No.160 of 2009; and Muhammad Afzal (through legal heirs) v. House Building Finance Corporation, Kar. PLD 1976 Karachi 1121 ref.

The Shorter Constitution of India, 13th Edition by Durga Das Basu, Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

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

----Art. 4---Word "law" as used in Art.4 of the Constitution would include principle of natural justice---Principles.

"Law" in Article 4 includes the cardinal principle of natural justice. Article 4 is a loud and clear constitutional guarantee and reminder that every citizen and every person for the time being in Pakistan must enjoy the protection of law and be treated in accordance with law.

Law is here not confined to statute law alone, but is used in its generic sense as connoting all that is treated as law in Pakistan including even the judicial principles laid down from time to time by the Superior Courts. In this sense it is as comprehensive as the American "due process" clause in a new garb.

An integral, intrinsic and incidental part of "Law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is therefore constitutionally guaranteed in Pakistan and makes Pakistan Constitution stand out proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principles of natural justice, procedural fairness and procedural propriety of the English Jurisprudence and procedural due process of the American Jurisprudence. Constitution of Pakistan had boldly recognized this right to be an inalienable right of every citizen or of any other person for the time being in Pakistan.

Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan PLD 1999 SC 1126; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966 rel.

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

---Art. 4---Employment either contractual or governed by non-statutory rules---Termination of service without complying with requirement of notice as envisaged in service contract---Validity---Requirement of notice backed by Art.4 of the Constitution would apply to all such employees---Termination of service in either case could not be ordered without due process of law.

Mushtaq Ahmad Mohal for Petitioner.

Muhammad Shazad Shaukat for Respondents.

2010 P L C (C.S.) 822

[Lahore High Court]

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

THE STATE

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others

Suo Motu Writ Petition No.9728 of 2010, heard on 12th May, 2010.

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

----Art. 199(1)(b)(ii) & (c)---Press news showing issuance of notification by Provincial Government posting respondent as Capital City Police Officer---Respondent already found to be responsible for acts of commission and omission in a very serious incident as a result of judicial inquiry held by Judge of High Court on asking of Provincial Government---Suo motu exercise of constitutional jurisdiction by High Court while treating such news item as a petition under Art. 199(1)(c) of the Constitution---Validity---Respondent was serving as Regional Police Officer when said tragic incident took place, wherein number of Christians lost their lives and their houses were burnt---Respondent was held responsible for acts of commission and omission by such Tribunal, which had already forwarded its recommendations to Federal Government along with statements of allegations for initiating proceedings against him---Government instead of taking any action against respondent had awarded him premium of such negligent performance of his duties by giving him most important assignment as Capital City Police Officer---Suo motu proceedings being corrective measures, whereby High Court could enquire from holder of a public office to show that under what authority he/respondent was holding said office (Capital City Police Officer) particularly in view of recommendations rendered against him by Tribunal and forwarded to Federal Government---If respondent was found to be responsible for such acts of commission and omissions, then how could he be allowed to work during interregnum, when he was not qualified for such post---High Court declared such notification to be without lawful authority and of no legal effect while directing respondent to relinquish charge forthwith.?

State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523 distinguished.

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

----Art. 199(1)(c)---Fundamental Rights guaranteed under the Constitution---Validity---Such rights would be regarded as inviolable under all conditions and could not be abridged by any legislative or executive orders, except by virtue of provisions of the Constitution---Constitutional jurisdiction of High Court to enforce such rights was wide---Principles.

The powers of High Court for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution, it can pass any order which would be appropriate in the facts and circumstances of a case. The expression "as may be appropriate for the enforcement of any of the Fundamental Rights" appearing in Article 199 confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The object of having declaration of Fundamental Rights in the Constitution is that rights should be regarded as inviolable under all conditions. According to Article 199, the Fundamental Rights guaranteed in the Constitution are not mere a pious enunciation of the principles on which the Constitution is based, but are made specifically justiciable in Article 199(1)(c). They are not liable to be abridged by any legislative or executive orders except by virtue of the provisions of the Constitution. Where there is clear abuse of powers/authority, the High Court is under constitutional duty to ensure that people are dealt with in accordance with law.?

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

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Jurisdiction of High Court---Scope stated.

The writ of quo warranto in its nature is an information laying against a person, who claimed to retain such office. The court is not only to see that the incumbent is holding the office under the order of a competent Authority, but it goes behind that and see as to whether he is legally qualified to hold the office or to remain in the office. The court has also to see if statutory provisions have been violated in making the appointment of such a person against whom certain recommendations have been made and if that being so, the court cannot close eyes and has every constitutional powers to declare such appointment to be without lawful authority and of no legal consequences. Article 199 is intended to enable the court to control executive actions so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be passed, which will relieve the citizen of the effects of illegal action. High Court under Article 199(1)(c) of the Constitution has the power to issue a declaration in respect of any act done or proceeding taken within its territorial jurisdiction by performing functions in connection with affairs of the Federation, a Province or a local authority to be without lawful authority or of no legal effect.?

Khawaja Haris Ahmad, Advocate-General Punjab assisted by Muhammad Hanif Khatana, Additional Advocate-General, Nadeem Hassan Asif, Home Secretary Punjab, Tariq Saleem, Inspector-General Punjab and Sikandar Raja, Secretary Services Punjab for respondents.

Date of hearing: 12th May, 2010.

2010 P L C (C.S.) 961

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

MUHAMMAD SAEED and 2 others

Versus

EXECUTIVE DISTRICT OFFICER (AGRICULTURE), KHANEWAL and another---Respondents

Writ Petition No.1829 of 2008, decided on 27th January, 2010.

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

----Arts. 4, 5 & 199---Constitutional petition---Civil service--Termination from services---Requirement of notice---Non-compliance of---Effect---Petitioners challenged termination of their services as 'Veterinary Assistants on the ground that they were terminated without providing one month's notice as against the terms and conditions of the service contract--Authorities contended that there was no requirement of notice where the appointment had been obtained on the basis of forged/bogus document or through deceit of any means under terms and conditions of the contract---Validity---Services of the petitioners were terminated without notice on the ground that the duration of the certificates of Veterinary Assistant, course provided by the petitioners had a duration of less than one year which was against the required qualification as advertised and as provided in the Service Rules---Order for termination of services of the petitioners clearly violated the terms of the contract---Constitutional petition was allowed by High Court with direction to authorities to revert/reinstate the petitioners on their original appointment made in the year 2007.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; New Jubliee Insurance Company Ltd. Karachi v. National Bank of Pakistan PLD 1999 SC 1126; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966; Ramsharan Autyanuprasi and another v. Union of India and others AIR 1989 SC 549; Chameli Singh and others v. State of U.P. and another AIR 1966 SC 1051 and Air India Statutory Corporation and others v. United Labour Union and others AIR 1997 SC 645 rel.

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

----Arts. 4 & 199---Constitutional petition---Right to a fair procedure---Article 4 of the Constitution was a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of English Jurisprudence and procedural due process of American Jurisprudence---Constitution of Pakistan had boldly recognized the right of fair procedure to be an inalienable right of every citizen or of any other person for the time being in Pakistan.

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

---Arts. 9---Right to life---Concept---Right to life included right to a lawful and meaningful livelihood.

Abdus Salam Alvi for Petitioners.

Muhammad Javaid Saeed Pirzada for Asstt. A.-G.

Syed Khadim Hussain Pirzada for Respondents.

Khalid Mahmood, D.O., Livestock, Zulfiqar Ahmad, Superintendent Office of EDO (Agriculture) and Mukhtar Ahmad, Assistant.

2010 P L C (C.S.) 967

[Lahore High Court]

Before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ

SHAIKH ZAYED HOSPITAL AND POST GRADUATE MEDICAL INSTITUTES through Chairman and Dean and another

Versus

Dr. MUHAMMAD SAEED and another

I.-C.A. No.32 of 2010, decided on 6th May, 2010.

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

----S.(9)(3)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.6---Rules of Business (1973), Rr. 11, 15(2) & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Chairman and Dean of Postgraduate Medical Institute (selection post of BS-22), appointment of---Appointment of respondent on such post through fresh extension of three years for third tenure by Prime Minister without recommendations of Selection Board---Validity---Such institute was established and given autonomous character by Ministry of Health through its Resolution dated 20-5-1986---According to Para 4 of said Resolution, institute had to perform functions through Board, Executive Committee and Chairman---"Board" under such Resolution would mean Board of Governors of the institute---Such post was being filled since year 1997 by Prime Minister on basis of a summary put by Cabinet Division--Institute was being run as a Government department under administrative control of Cabinet Division---According to S.9(3) of Civil Servants Act, 1973 and R.6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, appointment to post of BS-22 could be made by Prime Minister without recommendations of Selection Board---Process of appointment to such post would entail search and selection of a panel of prospective candidates by Board of Governors of institute, summary prepared by Cabinet Division, consultation with Establishment Division and final summary put up before Prime Minister (hereinafter referred to as "summary preparation process")---Summary preparation process being an intrinsic and integral part of final discretion exercised by Prime Minister as quality of his discretion would fundamentally depend on quality of summary put up before him---Decision of Prime Minister could not be judicially reviewed without "summary preparation process"---Failure of discretion at any stage of "summary preparation process" would result in collapse of entire discretionary edifice including final order---According to Para 8 of the Resolution, Chairman of institute must be an eminent person of scientific and medical repute---Such post was not a promotion post or cadre post restricted to existing employees of institution, rather appointment thereto was open to all fulfilling required qualification thereof---Previous appointment process and process of impugned appointment did not- show uniformity, transparency, certainty or structure about process---In absence of Rules and Regulations of institute or Rules under Civil Servants Act, 1973, process employed was unguided, unplanned, unsystematic, arbitrary, aimless, perfunctory, mechanical, haphazard, discrete and unreasonable---Process had never been geared to search and select best man for such post---Such an unguided and unstructured process of appointment for being facially discriminatory would block merit, cripple opportunities and impair access of talented doctors to such post---Office Memorandum No.6-4-96-R-3, dated 10-5-1997 issued by Cabinet Division still in force laid down procedure for appointment of Chief Executive/Head of autonomous/semi autonomous organizations under Federal Government by Prime Minister on basis of recommendations made by Selection Board after considering from a panel of three names for each vacancy---Procedure provided in such office memorandum was followed in year 2003, but was abandoned subsequently for unknown reasons---Rules 11, 15(2) & 18 of Rules of Business (1973) and the office memorandum had not been adhered to in the present case---Selection procedure provided in such office memorandum was not in conflict with Rules of Business (1973)---While selecting most eminent person of scientific and medical repute for such post, requirement of objective criteria for exercise of discretion would become fundamental--Exercise of authority for selection of a Chairman and Dean of a medical institute was a sacred trust to be discharged diligently and responsibly---Impugned order did not show as to why respondent had been allowed to embark upon his 3rd tenure---Medical science being a growing and developing field would require a person with demonstrable skill set and pioneering approach towards medical science and technology---Respondent holding post for last six years had been given extension for other three years---Respondent could be most competent mind in country for such post, but in absence of proper search for most eminent person of scientific and medical repute, his extension became suspect---Treatment given to three options placed before Prime Minister in summary put up by Cabinet Division was not satisfactory and showing structured discretion---High Court set aside impugned order and directed the Authority to initiate selection process for such post by following its guidelines.?

Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Abid Hassan and others v. P.I.A.C. and others 2005 SCMR 25; Abdul Bashir and 9 others v. Government of Balochistan through Chief Secretary Civil Secretariat, Quetta and 3 others 2001 PLC (C.S.) 771 and Abdul Qayyum Khan v. District Officer, Passenger and Freight Transit Terminal, Lahore General Bus Stand, Badami Bagh, Lahore 2003 MLD 670 ref.

Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Sharp v. Wakefield 1891 AC 173, R. v. Askew, [(1768)4 Burr 2186; Judicial Review of Administrative Action, by De Smith (1995); Union of India v. Kuldeep Singh [(2004)2 SCC 590; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 and Tariq Aziz-ud-Din's case HRC 8340/G/2009 ref.

(b) Civil service---

----Appointment or selection without any guideline or criteria---Effect.

Appointment or selection without any guideline or criteria for selection is recipe for disaster. Recruitment process that is unguided and unstructured can be easily hijacked by the influential and strong of the society, thereby depriving the right person the opportunity to hold the spot. Such a loose structure of selection process allows corruption, nepotism and jobbery to make its way into the system thereby crippling the foundation of the institutions.?

Father of the Nation Quaid-e-Azam Muhammad Ali Jinnah said in his Presidential Address to the Constituent Assembly of Pakistan at Karachi on 11th August 1947, "The next thing that strikes me is this: here again it is a legacy which has been passed on to us. Along with many other things, good and bad, has arrived this great evil-the-evil of nepotism and jobbery. This evil must be crushed relentlessly. I want to make it quite clear that I shall never tolerate any kind of jobbery, nepotism or any influence directly or indirectly brought to bear upon me. Wherever, I will find that such a practice is in vogue or is continuing anywhere, low or high, I shall certainly not countenance it."?

Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.

(c) Discretion---

----Exercise of discretion by public functionaries---Guidelines stated.

Public institutions cannot flourish and good governance cannot take root in this country unless public functionaries upheld the rule of law at all times and act strictly in accordance with law. To ensure that public functionaries act in accordance with law, fundamental function that needs to be meticulously regulated is their "exercise of discretion". Discretion of the public functionaries must strictly be within the framework of the law. In the absence of legislation, it must stand the test of fairness, procedural propriety, reasonableness, logic, transparency and good governance.?

Structuring the exercise of discretion means that decision arrived at by the public functionary and the competent authority is based on the objective criteria.?

Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.

(d) Civil service---

----Selection post, appointment on---Objective criteria stated.

Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on objective criteria.?

The objective criteria now-a-days is based on objectively quantifiable evaluation basis, which is publicly known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery. The final order of the appointing authority must speak for itself clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectivety and without comparative assessment of the candidates available in the talent pool.

Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.

Imran Aziz Khan for Appellants.

Aamir Rehman, Deputy Attorney General and Mian Bilal Bashir for Respondents.

Dates of hearing: 8th, 9th, 10th, 11th, March; 6th, 7th, 12th, 13th, 14th 15th April, 2010.

2010 P L C (C.S.) 1023

[Lahore High Court]

Before Asad Munir, J

MUZAMMAL AHMED KHAN

Versus

IMRAN MEER and others

Writ Petition No.2774 of 2009, decided on 15th January, 2010.

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

----Art.199---Quo warranto',mandamus', certiorari' andprohibition', writs of---Distinction stated.

A writ of quo warranto though a prerogative writ like other writs of mandamus, certiorari or prohibition is a different specie with its own peculiar features, which are also recognized by Article 199(1)(b)(ii) of the Constitution. One of the key features that distinguishes a writ of quo warranto from the other prerogative writs is that it can be sought by any person even though he is not aggrieved. Another important characteristic that sets it apart from the other writs is that a writ of quo warranto is directed against a person, who holds a public office, whereas the other writs only lie "against a person performing functions in connection with the affairs of the Federation or Province or local authority". Furthermore, a writ of quo warranto is confined to the limited object of an inquiry into the appointment of a person holding a public office to show under what authority of law the incumbent claims to hold that office, whereas the other writs seem to be wider in scope as they seek relief in respect of an act, which is either to be refrained from for being not permitted by law or to be done for being required by law or to be declared to be without lawful authority.

A writ of quo warranto is more in the nature of a public interest litigation where undoing of a wrong or vindication of a right is sought by an individual not for himself, but for the good of the society or as a matter of principle.

Civil Petition No.1362 of 2009 and Civil Petition No. 331 of 2009 ref.

Gul Muhammad Hajano v. Federation of Pakistan 2000 PLC (C.S.) 46 rel.

(b) Pakistan Television Corporation Employees Service Rules, 1977---

----Rr. 5.05, 6.04, 6.08 & 6.12---Constitution of Pakistan (1973), Arts.2-A, 18 & 199(1)(b)(ii)---Quo warranto, writ of---Post of Head of News & Current Affairs Channel at PTV-News Section of Pakistan Television Corporation (PTVC)---Appointment of respondent on such post in a clandestine manner by Minister without following prescribed codal formalities---Validity---Grievance of petitioner was not in respect of his own terms and conditions of service, but was against unlawful appointment of respondent---Term "holder of public office" as defined in S.5(m) of National Accountability Ordinance, 1999 would include persons engaged in management of corporations, institutions or organizations established, controlled or administered by Federal Government---Respondent holding a senior management position in State-owned and controlled Television Corporation could be described as holder of a public office'---Television Corporation was being funded by public in form of PTV licence fee being charged and recovered through electricity bills issued by Government owned Electricity Supply Companies---Amenability of State-owned and controlled company would not merely dependent uponits receiving funds from Government---Television Corporation as agent of Federal Government was performing public service in public interest of keeping people informed, thus, such writ was maintainable against any of its employee holding a substantive post like respondent---Television Corporation as per its Service Rules could appoint an outsider in case of non-availability of suitable candidate from among service employees, but after advertising such vacancy---Corporation being an agency of Government was expected to enforce its rules---Respondent had not been appointed by Board of Directors or Managing Director of the Corporation, but had been appointed under directive of Minister for Information---Such post was not provided by rules or organization charter of Television---Respondent had been appointed without due publicity depriving others to compete and be considered for such post---Impugned appointment was violative of constitutional requirements and safeguards outlined in Arts.2-A & 18 of the Constitution---Respondent could not show any authority of law under which he was holding such post---High Court declared impugned appointment as unlawful in circumstances.

Hamdullah v. Saifullah Khan PLD 2007 SC 52; Gul Muhammad Hajano v. Federation of Pakistan 2000 PLC (C.S.)46; Civil Petition No.1362 of 2009 and C.P.No.331 of 2009; Writ Petition No.1080 of 2008; Hotel Metropole Ltd. V. Government of Sindh PLD 1982 Kar.810; Masud-ul Hassan v. Khadim Hussain PLD 1963 SC 203; Maqbool Elahi v. Khan Abdul Rehman PLD 1960 SC 266 and Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 ref.

Aitchison College v. Muhammad Zubair PLD 2002 SC 326; Muhammad Aslam Salimi v. PTV Corporation PLD 1977 Lah.852; Federal Government Employees Housing Foundation v. Muhammad Akram Alizai PLD 2002 SC 1079; Abdul Jabbar Memon and others 1996 SCMR 1349; Captain (Retd.) Muhammad Naseem Hejazi v. Province of Punjab 2000 SCMR 1720 and Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court Lahore and others 1997 SCMR 1043 rel.

Dr. G.S. Khan for Petitioner.

Ibad-ur-Rehman Lodhi, Shahid Mahmood Khokhar, Aftab Ahmad Khan, Azhar Maqbool Shah for Respondents.

Date of hearing: 29th October, 2009.

2010 P L C (C.S.) 1035

[Lahore High Court]

Before Asad Munir, J

NERGIS SHAZIA CHAUDHRY

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

F.A.O. No.1 of 2010, heard on 17th March, 2010.

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

----S. 7---Appeal---Recruitment to posts in BS-17 in Central Superior Services (CSS),---Reservation of 10% quota for employment of females by direct recruitment in all services including CSS in addition to their participation in open merit---Position of appellant being 344th in all Pakistan merit list of 684 qualified candidates, 222nd in Punjab merit list of 428 qualified candidates and 53rd in order of merit among 90 qualified female candidates from Punjab---Non-selection of appellant on women quota in Punjab despite having 13th position on merit among 19 qualified females---Plea of authority that out of 19 posts reserved for female candidates from Punjab, 13 posts had been allocated by upgrading female candidates qualified on merit for being among top 160 successful candidates in Punjab---Validity---According to Press Note, number of posts reserved for women in Punjab were 19 in addition to 24 posts on all Pakistan basis and 160 posts for Punjab out of which females could also take posts on merit in contest with male candidates---Out of 160 sears earmarked for candidates from Punjab, 120 male and 40 female candidates had become entitled to such posts---Requirement of recruitment of females on account of additional women quota could not be confused with upgradation---Females with higher merit had to be upgraded according to their order of preference---Benefit of upgrading had gone to 12 male candidates below 160th position in order of merit from Punjab---Commission should have clubbed together 40 posts earned by females on merit with 19 woman quota posts, and then should have allocated all such 59 posts among female successful candidates in accordance with merit and after giving due regard to their order of preference---Commission had failed to observe women quota of 19 posts as only 6 females had been appointed leaving 13 of them out in the cold---Appellant for holding 13th position on merit among 19 females was qualified to be appointed against women quota---High Court accepted appeal and directed Commission to select appellant forthwith against reserved women quota.?

Abdul Rehman Khan for Appellant.

Babar Ali Standing Counsel for Respondents.

Date of hearing: 17th March, 2010.

2010 P L C (C.S.) 1109

[Lahore High Court]

Before Abdul Sattar Goraya, J

RIAZ AHMAD KHAN

Versus

DISTRICT ACCOUNTS OFFICER, RAHIM YAR KHAN and 3 others

Writ Petition No.2316 of 2006/BWP, decided on 8th April, 2009.

Revised Leave Rules, 1981---

----R. 18(2)---Constitution of Pakistan (1973), Arts.3 & 199---Constitutional petition---Leave Preparatory to Retirement---Cancellation---Petitioner applied for Leave Preparatory to Retirement and after sanction, got the same cancelled and joined duty but authorities did not release his salary---Contention of authorities was that Leave Preparatory to Retirement could only be withdrawn by the officer next higher in rank who granted the same---Validity---Petitioner had a right to change his mind before maturity of date of superannuation---No order of retirement was passed, therefore, it was not necessary for petitioner to go before next higher authority---It was open to civil servant who had expressed his desire to retire from service and apply for Leave Preparatory to Retirement to withdraw his request and ask for cancellation of permission and he could be allowed to do so as long as he continued in service and matter of retirement was not finally decided---Even if appointment order of petitioner was found to be illegal or for any reason was suffering from some irregularity, once department had implemented the order, government servant was entitled to salary for the period he had served in the department---State was to ensure under Art.3 of the Constitution, elimination of all forms of exploitation and fulfilment of fundamental principle from each according to his ability to each according to his work---Petitioner was entitled to salary for the period he had worked in department on the basis of order cancelling Leave Preparatory to Retirement---Action of authorities withholding salary of petitioner was declared to be without lawful authority and of no legal effect---High Court directed the authorities to make suitable arrangements for payment of salary to petitioner within two months---Petition was allowed accordingly.

NLR 1980 TD-109; Rafi Ullah v. The Division Forest Officer, Gujrat and 2 others 1984 PLC (C.S.) 1191; Jai Ram v. Union of India AIR 1954 SC 584; Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792; Muhammad Salim Khan v. Director-General, Bureau of Emigration and Overseas Employment, and another 1991 SCMR 440; Government of Sindh through Secretary, S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964 and Chairman State Life Insurance Corporation Karachi v. Abdul Rashid 2005 SCMR 97 ref.

Jamshaid Akhtar Khokhar for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. along with District Accounts Officer Muhammad Iqbal Tahir for Respondent.

2010 P L C (C.S.) 1148

[Lahore High Court]

Before Tariq Javaid, J

Mst. SHAHIDA KAUSAR

Versus

DISTRICT EDUCATION OFFICER (W-EE), MUZAFFARGARH and 3 others

Writ Petition No.6475 of 2009, decided on 18th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment of teacher---Withdrawal of appointment order---Petitioner who was at the top of the merit list, was appointed and she joined the service, but subsequently her appointment order was withdrawn; and instead respondent who neither filed application for the post nor her name appeared on the merit list, nor she appeared in the interview, was appointed on the said post---According to advertisement only qualification required for the post was B.A Arabic as optional subject along with Arabic teaching course from Allama Iqbal Open University---Petitioner having M.A. in Arabic was qualified for the post and she was rightly selected---If respondent had not been selected due to negligence of authorities, then it was not open for the authorities to re-call appointment letter issued in favour of the petitioner---Even if the respondent had better merit than the petitioner, still once the petitioner had been appointed, she had secured vested right and her services could not be terminated at the pleasure of the authorities---No lawful reason having been shown for re-calling appointment order of the petitioner, same was held to be illegal and without lawful authority---Petitioner was ordered to be reinstated with all back-benefits.

Sahibzada Mehboob Ali Khan for Petitioner.

Makhdoom Syed Muhammad Mumtaz Hussain Shah for Respondents.

Javaid Saeed Pirzada, A.A.-G. along with Mrs. Nasreen Saleem Akhtar, D.E.O., Muzaffargarh, Munawar Shaheen Litigation Officer, D.E.O. Office, Jamshed Akhtar, Junior Clerk, D.E.O. Office.

2010 P L C (C.S.) 1211

[Lahore High Court]

Before Hafiz Tariq Nasim, J

A.A. ZUBERI

Versus

ADDITIONAL ACCOUNTANT-GENERAL PAKISTAN REVENUE, LAHORE

Writ Petition No.2147 of 2009, heard on 11th February, 2009.

Civil Service---

----Pension---50% commuted portion of pension, revival of---Increases in pension given by authority from time to time during 15 years before revival of 100% pension---Non-granting of such increases on such commuted portion of pension after its revival on completion of 15 years---Validity---Civil servant had opted to receive a lump sum amount equating to 50% of total amount at start of his pension while remaining amount was to be paid through monthly' payment for a period of 15 years---Pension of civil servant had to be revived to 100% after expiry of 15 years---Impugned action of authority was highly discriminative for firstly allowing civil servant such increases on 50% monthly payments of pension, but depriving him of such increases in revived 50% pension by violating principle of consistency---Authority was estopped by its own actions for firstly having reflected such increase in 50% monthly payments of pension, and thus, after revival of 100% pension it could not be allowed to back out from its action and leave out increases in revived amount as such practice would amount to sheer exploitation of employees and their service---Civil servant had worked almost his life and served Government to earn his right of pension---Non-giving such requisite hard earned share to civil servant would not only amount to exploiting his rights, but also discourage civil servants as a whole---High Court accepted constitutional petition and directed authority to calculate civil servant's revived pension amount reflecting all such increases from date of expiry of period of 15 years and pay him arrears of such period.

Syed Abrar Hussain Naqvi for Petitioner.

Ch. Muhammad Ashraf, D.A.-G. with Faryad Ali, Assistant Accounts Officer.

Date of hearing: 11th February, 2009.

2010 P L C (C.S.) 1223

[Lahore High Court]

Before Malik Saeed Ejaz, J

Dr. ARIF ASHFAQ KHAN and 3 others

Versus

GOVERNMENT OF PUNJAB through Secretary Health Punjab, Lahore and 2 others

Writ Petitions Nos.2811, 2803, 2703, 2537, 1209, 590, 817 and 718 of 2007, decided on 16th April, 2009.

Civil service---

----Appointment---Assistant Professor (BS-18) in different disciplines of Medical College, vacant posts of---Selection of candidates by Special Selection Committee after fulfilling all requisite formalities as per Recruitment Policy---Non-issuance of appointment order by competent authority while directing to re-advertise posts without giving any reason therefor---Validity---Neither there was any rival contestant against petitioner nor was lodged any complaint against recommendations of their names by Selection Committee---Petitioners did possess requisite minimum qualification to be selected for such posts---When there was only one eligible candidate for the seat, then any formal procedural lacuna, if existed, could be ignored as same was not affecting right of anyone else---Impugned order did not point out any illegality or irregularity committed by Committee in selection process---If any complaint was made to competent authority that criteria laid down in Recruitment Policy was not strictly followed then best course for him could be to scrutinize individual case, and if he found such objections to be valid, then he could refer matter back to Committee for strict observance of Recruitment Policy---Petitioners after going through entire process of selection and ultimate recommendations of their names by Committee had earned a legal and legitimate expectancy to be appointed as such, which right could not be taken away or rescinded to their detriment summarily without pointing out any abuse of process of law---Striking down entire process of selection without any reason was not only against principles of natural justice, but was derogatory to the Constitution---Competent authority was supposed to issue notices to petitioners before passing impugned order and must have applied his independent mind and assigned reasons to justify its order---High Court accepted constitutional petition while directing competent authority to issue order of appointment to petitioners.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; PLD 1993 Lah. 141; PLD 1989 SC 166; Muhammad Ismail and others v. Secretary Education, Government of Punjab and another 2006 PLC (C.S.) 112 and Samia Rashid and another v. Vice-Chancellor, Azad Jammu and Kashmir University, Muzaffarabad and others 2000 YLR 1422 rel.

Mehmood Ashraf Khan for Petitioners.

Zafarullah Khan Khakwani, Asstt. A.-G., Haji Muhammad Aslam Malik, Behzad Anwar, Deputy Secretary Health and Muhammad Qasim, Litigation Officer, Nishtar Medical College, Multan for Respondents.

Date of hearing: 16th April, 2009.

2010 P L C (C.S.) 1247

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Mst. AZRA BIBI

Versus

EXECUTIVE DISTRICT OFFICER EDUCATION, DISTRICT NAROWAL and 3 others

Writ Petition No.3717 of 2009, heard on 2nd June, 2009.

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

----Art. 199--Constitutional petition---Civil service---Appointment by Departmental Recruitment Committee---Notice for termination on ground of void appointment---Petitioner was appointed as teacher on recommendation of the Departmental Recruitment Committee in the year, 1995 but later on she was terminated from the service--petitioner filed an appeal/representation before the Director Education---During pendency of the appeal/representation, petitioner was reinstated into service by orders of High Court in constitutional petition in the year 2000---Petitioner had been served with the impugned notice challenging her appointment in the year, 2009---Petitioner asserted that by serving impugned notice, authorities in an indirect way wanted to oust petitioner from the service on the alleged point of void appointment order, which was against all canons of justice and fair play, rather it amounted to exploitation---Petitioner had put in a number of years with the Government Department and that too without any complaint whatsoever and now at such belated stage i.e. after a span of fifteen years of her service, issuance of such like notice amounted to colourable exercise of powers and that too in an arbitrary manner--Impugned notice was nothing but an exploitation---High Court allowed constitutional petition and set aside the impugned notice---Constitutional petition was allowed.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 PLC (C.S.) 1027; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation and others 2002 SCMR 1034; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630 rel.

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

----Art. 199---Constitutional petition---Civil service---Exploitation by departmental authority---Notice of void appointment---Petitioner's appointment was termed as void after a span of 14 years of her service---Departmental representative, despite having clear record insisted that there was an allegation that petitioner's appointment made in 1995 was void and now in the year, 2009, the department was at liberty to examine the vires of said appointment order---Attitude of departmental authorities was mere exploitation and nothing else which had offended the provisions of the Constitution specially in case of females---Such-like attitude of departmental authorities could not be approved---High Court accepted the constitutional petition and directed the concerned authorities to desist from their exploitative activities---Constitutional petition was allowed.

Ghulam Farid Sanotra for Petitioner.

Akhtar Ali Kureshi, A.A.-G. with Arshad Qamar, Litigation Officer for Respondents.

Date of hearing: 2nd June, 2009.

2010 P L C (C.S.) 1260

[Lahore High Court]

Before Tariq Javaid, J

IRAM ZAHRA and 3 others

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President/C.E.O., Headquarters, Islamabad and 5 others

Writ Petition No.9257 of 2009, decided on 5th May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Civil service---Claim of daily wagers(of PTCL) for salary and allowance according to the scale of regular employees---Petitioners who were working as daily wagers were transferred to Telecom Foundation in different batches, but under the law they remained as employees of the PTCL for whose benefits they had been working---Employer Company approved to adjust daily wagers---Contention of the petitioner was that they had become permanent after rendeling service of 180 days---Petitioners had also sought for the salary and allowances according to the regular employee of the PTCL---Validity---Workers who had worked for more than two years were allowed to be permanent employees of the PTCL and were entitled to the same relief.

G.M. Optical Fiber System Telecomm Co. Ltd. v. Abdul Rasheed Khan, Member NIRC 2000 PLC (C.S.) 180 ref.

Malik Muhammad Tariq Rajwana for Petitioners.

Abdul Aziz Khan Niazi for Respondents.

2010 P L C (C.S.) 1262

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MAQBOOL AHMAD BHUTTA

Versus

SECRETARY LOCAL GOVERNMENT and others

Writ Petition No.434 of 2008, decided on 2nd April, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Withdrawal of Project Allowance---Petitioners had voiced their grievance against the withdrawal of Project Allowance to the employees working in the project---Plea of Deputy Project Manager of the project was that Project Allowance to the petitioner was denied because Government of Punjab had decided that such allowance was admissible only when there was an approval of Chief Minister---Petitioners according to relevant Part "C" of P.C-1 fell in the category of staff entitled to receive the Project Allowance at the rate of Rs.5,000 per month---Allowance which had already been accorded in P. C-1, could not be withdrawn merely on the pretext that such allowance required approval of Chief Minister---Stance of authorities appeared to be contrary as notification reflected that the Project Allowance was sanctioned by the Governor to the various officers/employees and it was not approved by Chief Minister---Equal pay for equal work and an allowance was admissible to an employee, vesting to the duties, which such employee performed---Person performing duties in the project was entitled to Project Allowance and there could be no discrimination---Authority had already recommended Project Allowance to the petitioner, but the matter had not been decided---High Court observed that it would be in the fitness of things that at the first instance, the petitioner be directed to approach the Government for rederessel of their grievance---Order accordingly.

Tariq Zulfiqar Ahmad for Petitioners.

Malik Muhammad Ramzan Khalid, Addl. A.-G. along with Malik Tassaduq Hussain, Deputy Project Manager, SPBUSP in Person.

2010 P L C (C.S.) 1280

[Lahore High Court]

Before Hafiz Tariq Nasim, J

ANJUM PERVAIZ and 2 others

Versus

GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAYS, LAHORE and 4 others

Writ Petition No.5291 of 2009, heard on 17th April, 2009.

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

----Art. 199---Quo warranto, writ of----Locus standi---Any citizen of Pakistan could file such writ---High Court had ample power to go into vires of notification/appointment of any person.

Muhammad Afzal and another v. Government of Balochistan through Secretary, Services and General Administration Department Quetta and 4 others 1995 PLC (C.S.) 567 and Cap. (R) Muhammad Nasim Hajiazi v. Province of Punjab 2000 SCMR 1720 rel.

(b) Civil service---

---Appointment---Modes---Three modes of appointment i.e. (i) initial/direct, (ii) through promotion and (iii) transfer.

(c) Pakistan Railways Act (IX of 1890)---

----S. 4---Rules of Business, (Federal), R.15(a), Sched. V(a), Sr.No.23---Constitution of Pakistan (1973), Art.199---Quo warranto, writ of---Inspector of Railways (BS-21), appointment of---Notification of such appointment issued by Chairman, Pakistan Railways without approval of Prime Minister---Validity---According to Rules of Business, competent authority was Prime Minister and not anyone else---High Court set aside impugned notification for having been issued by incompetent authority.

Nasir Saeed v. WAPDA through its Chairman and another PLD 1987 SC 421 and House Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh 1999 SCMR 311 rel.

(d) Pakistan Railways Act (IX of 1890)---

----S. 4---Constitution of Pakistan (1973), Art.199---Quo warranto, writ of---Inspector of Railways, vacancy of---Appointment of an Officer of Traffic Railways on such post---Validity---Such post involved duties of civil engineering nature, and entire history of Railways showed that such post was held by a civil engineer---Respondent being an officer of Traffic Railways was alien to duties of civil engineer---Non-engineer could not hold post of an engineer in presence of a consistent practice and established mode of appointing Inspector of Railways from amongst civil engineers---Departure from such practice would do injustice to such post and defeat legitimate expectations of other Civil Engineers and would be disadvantageous to department for not appointing a right person on a right job---Appointment of non-engineer on such post was not barred by S.4 of Pakistan Railways Act, 1890---Civil Engineers had been appointed on such post since a long time---High Court declared impugned appointment as illegal in view of such well-settled long practice and directed department to treat such post as vacant and make arrangement for its filling from amongst Civil Engineers with approval of competent authority within specified time.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225; 2004 PTD (Trib.) 1077 and Pakistan Tabacco Board and anothers v. Tahir Raza and others 2007 SCMR 97 rel.

(e) International Law---

----Customs and practices---Long-standing practices and customs, in absence of express statutory provisions, would be regarded as an essential source of law---Principles stated.

Practices and customs have been regarded as a strong and reliable source of law even in prehistoric times when statutory law was unavailable and even today are regarded as an essential source of law where statutes are even not expressed on a particular proposition or where there is total unavailability of statute.

International Law till today is heavily relit on customs and practices which have developed through a long terms and usage and where express statutory provisions are not available. Practices and customs give a fair understanding as to how a particular proposition is to be dealt with keeping in view the long term consistency of following a particular course in a particular set of circumstances which is acceptable and has been accepted as a whole by the society or the concerned quarters which are governed by such customs or practice. To give a few examples where customs and practices are being used as a source of law in Pakistan the field of trade, international trade, custom and tax laws and even Islamic law can be cited where customs and practices are still used as a source of law. Any derogation from the established practices is often made with ridicule by the courts and it is often ensured that the practices which have been settled since a long time should be adhered to by the authorities in order to ensure that no rights are infringed of legitimate expectants, who relied on the consistency of following such practices as are developed through usage over a period of time.

Not only a court should be in its decisions but an authority especially a Government authority should also be consistent in its practice, procedure and decisions where it has been since a long period of time, as a sudden departure from its own practice creates serious doubt on the transparency and fairness of this decisions.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225; 2004 PTD (Trib.) 1077 and Pakistan Tabacco Board and anothers v. Tahir Raza and others 2007 SCMR 97 rel.

Mahmood Ahmad Qazi for Petitioners.

Umar Sharif for Respondents Nos.1, 2 and 4.

Tahir Latif Sheikh for Respondent No.3.

Raja Abdul Razzaque, Deputy Attorney-General for Respondent No.5.

Date of hearing: 17th April, 2004.

2010 P L C (C.S.) 1308

[Lahore High Court]

Before Tariq Javaid, J

Syed WAJIH-UL-HASSAN

Versus

MUHAMMAD KHALID ALVI and 3 others

Writ Petition No.156 of 2010, heard on 4th May, 2010.

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

----Ss. 21, 31 & Sehed.---National Judicial (Policy Making) Committee Ordinance (LXXI of 2002), S.4---Constitution of Pakistan (1973), Arts.199, 207(2), 240 & 260---Constitutional petition---Post of Project Director (Law) in Law College of Baha-ud-Din Zakariya University---Appointment of respondent on such post on contract basis after three months of his retirement from office of Judge of High Court---Plea that such appointment being below status/dignity of a High Court Judge was violative of National Judicial Policy, 2009; and that office of Project Director (Law) was an office of profit in Service of Pakistan---Validity---Term "Service of Pakistan" had been used in broader context as compared to term "civil servant" as one might be in Service of Pakistan without being a civil servant---Whether a "post" being in "Service of Pakistan" or not, a statutory declaration to such effect would be mandatory---Absence of such statutory declaration would bring such post out of definition of "Service of Pakistan", thus, respondent could not be said to be holding an office of profit in Service of Pakistan---University was statutory body headed by Chancellor, who was Governor and its Pro Vice-Chancellor was appointed by Chancellor deriving powers under Baha-ud-Din Zakariya University Act, 1975 and discharging a State function of providing education to its citizens---Nature of job of Project Director (Law) included supervision of construction work and execution of decisions made by Senate of University---Impugned appointment was controlled and regulated under S.21 of Baha-ud-Din Zakariya University Act, 1975---Such post could not be said to be equal to office of a High Court Judge---Actions of Chancellor/Vice-Chancellor and Project Director (Law) were amenable to jurisdiction of High Court---National Judicial Policy, 2009 formulated by statutory body having a force of law would be binding on all Courts and Judges of superior Courts even after their retirement from office of a Judge of a superior Court---High Court declared impugned appointment to be illegal.

Masudul Hassan v. Khadim Hussain and others PLD 1963 SC 203; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Syeda Abida Hussain v. Tribunal for NA 69 Jhang-IV and others PLD 1994 SC 60; Aitcheson College, Lahore through Principal v. Muhammad Zubair and another PLD 2001 SC 326; PLD 1994 SC 123; Salah-ud-Din and 2 others v. Frontier Sugar Mills Ltd. PLD 1975 SC 244; 2010 SCMR 253; Muhammad Muucen-us-Salam and other v. Federation of Pakistan and others PLD 2006 SC 602; PLD 2005 Lah 428; PLD 1983 SC 457 and PLD 1972 SC 139 ref.

Salah-ud-Din and 2 others v. Frontier Sugar Mills Limited PLD 1975 SC 244; Syeda Abida Hussain v. Tribunal for NA 69 Jhang-IV and other, PLD 1994 SC 60; Aitcheson College, Lahore through Principal v. Muhammad Zubair and another PLD 2001 SC 326; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Capt. (Retd.) Muhammad Naseem Hijazi v. Province of the Punjab 2000 SCMR 1720 and Hafiz Hamdullah v. Saifullah Khan and other PLD 2007 SC 52 rel.

(b) National Judicial (Policy Making) Committee Ordinance (LXXI of 2002)---

----S. 4---National Judicial Policy, 2009---National Judicial Policy would be followed by all organs of the State, Courts and Judges of superior Courts even after their retirement---Principles.

National Judicial (Policy Making) Committee being a statutory body comprising of the Chief Justice of Pakistan as its Chairman and Chief Justice of Federal Shariat Court and Chief Justices of all the four Provincial High Courts has formulated a policy, which undoubtedly has a force of law. It is binding on all the courts and thus all the Judges of the superior Courts are bound to follow the same even after their retirement from the office of a Judge of a superior Court. Similarly all organs of State are bound to follow and implement the Judicial Policy in letter and spirit.?

Kanwar Intizar Muhammad Khan for Petitioner.

Syed Muhammad Ali Gillani, Ameen-ud-Din Khan, Muhammad Ameer Bhatti, Waqar Haider Awan for Respondent No.1.

Mian Abbas Ahmed for Respondent No.2.

Khawaja Noor Mustafa D.A.-G.

Date of hearing: 4th May, 2010.

2010 P L C (C.S.) 1322

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

ATTIQUE AHMAD KHAN

Versus

LESCO through Managing Director, PEPCO, WAPDA House, Lahore and 3 others

Writ Petition No.2618 of 2010, decided on 31st May, 2010.

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

----S. 5---Government Servants (Efficiency and Discipline) Rules, 1973, R.6---Inquiry Officer or Inquiry Committee, appointment of---Scope---Inquiry officer or members of Inquiry Committee must always be senior in rank to officer proceeded against---Principles.

Rule 8(1) of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 specifically provided that Inquiry Officer must be senior in rank to the person proceeded against.

No such provision or requirement exists in the Removal from Service (Special Powers) Ordinance, 2000 or Civil Servants (Efficiency and Discipline) Rules, 1973.

Rule 8(1) of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 appears to be based on logic and reason. It is hard to imagine that a junior officer will be equipped with necessary confidence and the requisite experience to inquire into the allegations levelled against his senior officer. A junior officer, who might still continue in service after the inquiry under the senior officer, might not be able to do justice to the inquiry entrusted to him. Even on touchstone of good governance, a junior officer does not appear to be competent as well as experienced enough to be able to conduct a meaningful inquiry of his senior officer. The requirement of an inquiry officer senior in rank to the officer proceeded against is not mentioned in the Removal from Service (Special Powers) Ordinance, 2000 or the Civil Servants (Efficiency and Discipline) Rules, 1973, it is also not specifically excluded on the other hand. Being a matter of due process, fairness, equity and procedural propriety, this principle can be safely read into the said rules, in the larger interest of carrying out a meaningful, effective and transparent inquiry and in order to strengthen good governance. Therefore, the principle that in order to carry out an effective inquiry, the inquiry officer must be senior to the person inquired against in the manner laid down in "Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lahore-264" can be conveniently read into the Civil Servants (Efficiency and Discipline) Rules, 1973 and the Removal from Service (Special Powers) Ordinance, 2000.

S.M.E. Bank Limited through Kaiser H. Naseem, President v. Mehfooz Elahi Piracha and 2 others 2003 PLC (C.S.) 1282; Civil Aviation Authority through Director General v. Javed Ahmad and another 2009 SCMR 956; Mian Muhammad Yayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lah.264; Mian Nisar Ahmed v. Secretary Government of Pakistan, Ministry of Finance, Islamabad and others 1996 MLD 2045; Muhammad Gul Kakar v. Province of Baluchistan 1986 PLC (C.S.) 560; Messrs Holy Family Hospital through Administrator v. Government of Sindh and another 2009 PLC (C.S.) 824 and Nisar Ahmad Kiyani v. Azad Government of the State of Jammu and Kashmir and another 1992 PLC (C.S.) 1135 ref.

Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lah. 264 fol.

(b) Civil service---

----Disciplinary proceedings---Pendency of criminal proceedings against Inquiry Officer or any member of Inquiry Committee---Effect---In 'absence of definite judicial finding of a Court of competent jurisdiction against such officer/member, pendency of criminal proceedings against him could not be used as a ground to argue his mala fides or partiality.

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

----Art. 199---Factual controversy raised before High Court in constitutional jurisdiction---Validity---Such controversy could not be subject matter of proceedings exercised by High Court.

Hafiz Tariq Nasim for Petitioner.

Anwar Kamal for Respondents.

Date of hearing: 6th April, 2010.

2010 P L C (C.S.) 1333

[Lahore High Court]

Before Hafiz Tariq Nasim, J

SHAH JAHAN KHAN

Versus

FEDERAL SERVICE TRIBUNAL, LAHORE BENCH, LAHORE and 3 others

Writ Petition No.14784 of 2008, heard on 23rd December, 2008.

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

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Bar of jurisdiction---Scope---Prayer of petitioner revealed that neither any final nor appellate order of departmental authorities was under challenge before High Court, rather direction was sought which could be issued in exercise of powers under Art.199 of the Constitution---Petition was maintainable in circumstances.

Secretary Revenue v. Muhammad Saleem 2008 SCMR 948 rel.

(b) Administration of justice---

----Legal formalities---Scope---Principal object behind all legal formalities is to safeguard paramount interest of justice---Legal precepts have been devised in order to certainty, consistency and uniformity to administration of justice, to secure same against arbitrariness, errors of individual judgments and mala fides.

Mrs. Munawar Sanni v. Director Army Education 1991 SCMR 135 and Administrator District Council Larkana and others v. Gulab Khan and 5 others 2001 SCMR 1320 rel.

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

----Arts. 199 & 25---Constitutional petition---Equal treatment---Discrimination---Petitioner sought direction to authorities for his entitlement of Special Judicial Allowance---Validity---Record showed that similarly placed employees of High Courts, Office of Punjab Bar Councils, Office of Attorney-General of Pakistan, Federal Tax Ombudsman and Wafaqi Mohtasib were getting the benefits but petitioner and his colleagues were being deprived of the same---Action of authorities was violative of Art.25 of the Constitution and could not be allowed to remain in field---Petitioner and his colleagues working in offices of Federal Service Tribunal were entitled to relief claimed---High Court directed the authorities to extend benefit of such allowance to petitioner and all employees of Federal Service Tribunal from the date when employees of Attorney-General of Pakistan were granted that benefit---Petition was allowed accordingly.

Sadaqat Ali v. Government of Punjab and others 2008 PLC (CS.) 1047; Hameed Akhtar Niazi v. Secretary Establishment Division 1996 SCMR 1185; Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499; Hussain Badsha and another v. Akhtar Zaman and others 2007 PLC (C.S.) 157; Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others 2007 PLC (C.S.) 285; Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 and Mehar Muhammad Nawaz v. M.D. Small Business Corporation (C.A.No.427 of 2005) rel.

Mian Muhammad Hussain for Petitioner.

M. Naseem Ahmad Kashmiri, Deputy Attorney-General for Respondents.

Date of hearing: 23rd December, 2008.

2010 P L C (C.S.) 1376

[Lahore High Court]

Before Umar Ata Bandial, J

Hafiz SHABBIR HUSSAIN and others

Versus

D.E.O. and others

Writ Petition No.13104 of 2010, decided on 5th July, 2010.

Constitution of Pakistan (1973)---

----Arts. 204 & 199---Constitutional petition---Contempt of court---Main grievance of the petitioners was that the respondents had been appointed as Chowkidar although their names were not mentioned in the merit list---Contempt petition was disposed of on account of statement made by respondent/District Education Officer, that petitioners' grievance had been decided---Present constitutional petition was filed to agitate that although the petitioner had attended the proceedings before District Education Officer, no order whatsoever had been issued by the District Education Officer in the matter of the petitioners' grievance---District Educational Officer was under a duty to provide the grounds of his decision on the petitioners' application---Order accordingly.

M. Arshad Rana for Petitioner.

Zaka-ur-Rehman Awan, Addl. A.-G. and Muhammad Akhtar S.C. for D.E.O.(C.), Sialkot for Respondent.

2010 P L C (C.S.) 1399

[Lahore High Court]

Before Shaukat Umar Pirzada, J

Khawaja MAJID JAMEEL and 21 others

Versus

GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND RURAL DEPARTMENT through Secretary and 2 others

Writ Petition No.6494 of 2009, decided on 31st May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Withholding of salaries---Petitioners who were eligible and qualified to be appointed, their appointments were made after fulfilling of the codal formalities, and in view of their performance, their services were later on, regularized---Petitioners were performing their duties regularly, but Tehsil Nazim was unable to pay them their salaries on account of restraint imposed by authorities---Petitioners who were low paid employees, had been deprived of their salaries, despite the fact that they were in service and were performing their duties regularly---Such was cruelty on the part of the authorities, who were busy in blame game without realizing the agony and hardship being faced by the families of the petitioners due to non-disbursement of their salaries which act of the authorities was deprecated in strong terms---Case of the petitioners stood on much better footings than those whose services were terminated, but were reinstated---Impugned directions of authorities were hit by the principle of Locus Poenitentiae---Withholding of salaries of the petitioners under the present compelling economic conditions, was not only illegal, unjust, but also cruel and not sustainable---Impugned orders were set aside and authorities were directed to disburse up-to-date salaries, including arrears, to the petitioners.

Dr. Nighat Bibi, Physician General Medicine PIMS, Islamabad v. Secretary, Ministry of Health, Government Pakistan Islamabad and others 2009 SCMR 775 ref.

Khadim Nadeem Malik for Petitioners.

Rana Muhammad Hussain, A.A.-G. for Respondents Nos.1 and 3.

Ch. Muhammad Atta-ul-Haq for Respondent No.2.

Mazhar Mahmood Hayat Tiwana, T.M.O., Kot Adu and Mian Muhammad Muzamil Bhatti, Director Local Government Funds Audit.

2010 P L C (C.S.) 1404

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Miss IFFAT TAHIRAH

Versus

SECRETARY SCHOOLS and others

Writ Petition No.16769 of 2009, decided on 24th June, 2010.

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

----R. 17-A---Constitution of Pakistan (1973), Arts.25 & 199 ---Constitutional petition---Death of Secondary School Teacher during service---Married daughter of deceased civil servant already serving as Elementary School Educator---Petitioner's application for appointment on advertised post of Secondary School Educator---Refusal of authority to award 10 additional marks in aggregate to petitioner for being a non-dependant daughter of deceased civil servant---Validity---No distinction between a male, female, dependent or non-dependant child was provided under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Awarding such marks to only male married child, but refusing to award same to female on ground that she was married and dependent on her husband would be entirely discriminatory and violative of Art. 25 of the Constitution---Such additional mark could be awarded to one unemployed child of deceased irrespective of being male or female, married or unmarried---Intention of Legislature to frame R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was to assist one child of deceased civil servant with ultimate object to provide stability to family of deceased---Petitioner for being already an employed civil servant was not entitled to award of such marks---High Court dismissed constitutional petition in circumstances.

Syed Shujhat Hussain Kazmi v. Mst. Nazish Kazmi 2007 CLC 1771 and Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 ref.

(b) Interpretation of statutes---

----Words used in a statute, if clear and unambiguous, then literal construction would be followed---Intention of Legislature would be seen from words themselves without introducing foreign element.

Syed Samar Hussain Shah for Petitioner.

Shahid Mubeen, Addl. A.-G. along with Asghar Abbas Shah, Assistant E.D.O.(E), Sargodha.

2010 P L C (C.S.) 1408

[Lahore High Court]

Before Sh. Azmat Saeed, J

Dr. MUHAMMAD ANWAR KHAN GONDAL

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary, Lahore and another

Writ Petitions Nos.9758 and 10225 of 2010, decided on 25th June, 2010.

(a) Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---

----Constitution of Pakistan (1973), Art.199---Constitutional petition---Additional Prosecutor-General (BS-19), posts of---Application by serving Civil Judge-cum-Judicial Magistrate---Participation of petitioner in written examinations held pursuant to first advertisement dated 9-1-2010 and second advertisement dated 11-4-2010---Amendment in Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 effected on 29-4-2010 making persons with S years judicial service eligible for such post---Rejection of petitioner's candidature for not being qualified on dates of both such advertisements as Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 did not cater for his experience as Judicial Officer---Validity---For determining qualification for selection/appointment in a recruitment process, law as applicable on date of interview and appointment would be relevant and not which existed on an earlier date---Petitioner was not qualified on date of first advertisement and date of interview in pursuance thereof---Closing date for submission of applications under second advertisement was 26-4-2010, but before holding of written examination. and interview thereunder, Rules, 2007 were amended on 29-4-2010---mended Rules, 2007 would apply to petitioner on date of his interview yet to be held---Petitioner had cleared written examination held pursuant to second advertisement, thus, he was qualified to be considered for such post---Authority should have issued corrigendum to second advertisement would be proper so as to bring same in conformity with amended Rules, 2007---Petitioner could not be penalized for such failure of authority---High Court directed authority to declare result of written examination of petitioner, if he passed the same, then he be interviewed and considered for selection pursuant to second advertisement.

Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160 ref.

Mushtaq Ahmad Mohal and others v. The honourable Lahore High Court, Lahore and others 1997 SCMR 1043 fol.

(b) Civil service---

----Selection/appointment in service---Determination of qualification with reference to either on date of advertisement or interview/ appointment---Scope---Law as applicable on date of interview and appointment would be the relevant law and not which existed on an earlier date.

Mushtaq Ahmad Mohal and others v. The honourable Lahore High Court, Lahore and others 1997 SCMR 1043 fol.

Mushtaq Ahmad Mohal for Petitioner.

Ghulam Shabbir Thaheem for 'P. P. S. C.

Ahmad Rauf, Addl. A.-G., Punjab.

Ch. Jamshaid Hussain D.P.G.

Muhammad Mumtaz, Law Officer Prosecution Department.

Muhammad Farooq Raja, Deputy Director (Legal) PPSC, Lahore.

Muhammad Sultan, Deputy Director (Exams.) PPSC, Lahore.

2010 P L C (C.S.) 1427

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

Constable MUHAMMAD AZEEM and 5 others

Versus

DISTRICT POLICE OFFICER, KHANEWAL

Writ Petition No.1730 of 2010, decided on 16th June, 2010.

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

----R. 17-A---Constitution of Pakistan (1973), Art.199 ---Constitutional petition---Recruitment of Constables in Police Department on Family Claim Basis by orders of Inspector-General of Police---Issuance of show-cause notices to petitioners for terminating their service alleging their appointment to be illegal and against the Rules---Validity---According to rules contained in Standing Order No. 1 of 2008 and Letter No. 126-260, dated 5-1-2009 issued by Inspector-General of Police, son of Police Officer/official could claim his appointment on Family Claim Basis only "when his father dies or declared invalidated/ incapacitated for post or martyred"---Fathers of petitioners were alive and serving in Police Department---Appointment orders of petitioners were issued and implemented in letter and spirit by competent authority two years back---Vested rights had accrued in favour of petitioners due to irregularity/illegality committed by department itself---Appointment orders of petitioners in such circumstances could not be withdrawn or rescinded to their detriment---High Court declared impugned show-­cause notices as illegal and void.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Bashir Ahmad Solangi v. Chief Secretary Government of Sindh Karachi and others 2004 SCMR 1864; Fuad Asadullah Khan v. Federation of Pakistan through Secretary, Establishment and others 2009 SCMR 412 and District Coordination Officer, District Dir Lowe and others v. Rozi Khan and others 2009 SCMR 663 rel.

Ch. Ghulam Haider for Petitioners.

Muhammad Javaid Saeed Pirzada, A.A.-G. and Muhammad Arif D.S.P. (Legal) for Respondents.

2010 P L C (C.S.) 1444

[Lahore High Court]

Before Ijaz-ul-Ahsan, J

Mrs. SAMIA IQBAL and 6 others

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary, Punjab, Lahore and another

Writ Petitions Nos.20381 and 9734 of 2009, decided on 6th August 2010.

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

---Arts. 199 & 212---Constitutional jurisdiction---Scope---Civil service---Upgradation of post---Petitioners appointed in BPS-16 contended that they were entitled to upgradation as other government employees with same qualification were inducted in BPS-17, therefore, their induction in BPS-16 amounted to discrimination without just cause---Earlier petition by the petitioners for the same relief was disposed of by High Court by referring the matter to the Chief Secretary to be resolved within three months by constituting a high-powered Committee---Said Committee did not recommend upgradation of the scale but allowed petitioners a special allowance equivalent to one month basic pay---Validity---Upgradation of post was a matter of policy and could not be interfered with by High Court in constitutional jurisdiction---Upgradation could not be claimed by an employee as a matter of right---High Court's constitutional jurisdiction was barred in matter relating to terms and conditions of service under Art.212 of the Constitution---Petitioners could approach Service Tribunal which had all the requisite powers to redress their grievance---Constitutional petition was dismissed in circumstances.

PLD 1983 SC 100; PLD 1995 SC 530; 1998 SCMR 2280 and 1999 SCMR 784 ref.

Muhammad Farid Khatak v. Chief Secretary, Government of N.-W.F.P. and others 2009 SCMR 980 fol.

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

----Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction under Art.199 of the Constitution was barred in matters relating to terms and conditions of service under Art.212 of the Constitution.

Ali Akbar Qureshi for Petitioners (in Writ Petition No.20381 of 2009).

Syed Sabahat Hussain Tirmazi for Petitioners (in Writ Petition No.9734 of 2009).

Faisal Zaman Khan, Addl. A.-G. for Respondents.

2010 P L C (C.S.) 1468

[Lahore High Court]

Before Sh. Azmat Saeed, J

UZMA NAZIR

Versus

SECRETARY, EDUCATION PUNJAB LAHORE and 4 others

Writ Petition No.23614 of 2009, decided on 30th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Petitioner, a school teacher, had challenged cancellation of transfer order in constitutional petition on the ground that same was cancelled on political interference---High Court declined to interfere in the transfer order in constitutional jurisdiction; however directed the Provincial Secretary Schools to look into the matter and see if the petitioner could be accommodated nearest to her place of residence, which appeared to be the real issue---Constitutional petition was dismissed by High Court.

Malik Muhammad Imtiaz Mahal for Petitioner.

Malik Bashir Ahmad Awan for Respondent No.5.

Zubair Khan Deputy Secretary.

2010 P L C (C.S.) 1472

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Malik MAZHARUL HAQ and another

Versus

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, ISLAMABAD and 3 others

Writ Petition No.10303 of 2004, heard on 30th June, 2010.

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

----Ss. 30 & 31---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Non-statutory rules---Principle of master and servant---Applicability---Petitioners initially provided their services to the Corporation through a contractor and claimed that later on they were employed by the Corporation directly---Plea raised by petitioners was that after continuous service of 180 days they had become permanent employees of Pakistan International Airlines Corporation and could not be terminated---Validity---Regulations in Pakistan International Airlines Corporation were framed by its Board of Directors in pursuance of S.30 of Pakistan International Airlines Corporation Act, 1956 and it was not established that regulations had been framed with previous sanction of Federal Government or that those were gazetted and laid before. National Assembly in terms of S.31 of Pakistan International Airlines Corporation Act, 1956, and as such Pakistan International Airlines Corporation Regulations could not be treated as statutory rules of the nature which entitled the employees of the Corporation to claim relief of reinstatement on the ground of breach of statutory provision---Employees of Pakistan International Airlines Corporation, in absence of violation of law or statutory rules, could not be pressed into service the constitutional jurisdiction for their reinstatement in service and only remedy available to petitioners was to claim damages---Petitioners were not employed by the Corporation, they were the employees of. contractor, who was not party to petition and as such they had no claim against respondent and relationship of master and servant did not exist between the parties and petitioners were not entitled to be reinstated---Petition was dismissed in circumstances.

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

Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.) 1131; Masood Ahmed and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S) 41; Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Raziuddir4 v. Chairman PIAC PLD 1992 SC 531; Habib Bank Ltd. v. Syed Zia-ul-Hasan Kazmi 1998 SCMR 60 and Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806 ref.

Qamar Zaman Qureshi for Petitioner.

Muhammad Umer Sharif for Respondents.

Date of hearing: 30th June, 2010.

2010 P L C (C.S.) 1477

[Lahore High Court]

Before Abdul Sattar Goraya, J

Dr. NAJAM IQBAL AHMED

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.1916 of 2007/BWP, heard on 2nd April, 2009.

(a) Administration of justice---

----Right of appeal or review---Scope---Such right is creature of statute and if someone is performing functions while sitting in appeal or where there is conferment of power, that person authorized in that behalf can annul the order passed by competent authority.

(b) Judicial action---

----Connotation---Judicial action may be defined as adjudication upon rights of parties who in general appear or are brought before Tribunal by notice or process and upon whose claim such decision or judgment is rendered---Such act of administrative or ministerial officer does not become judicial simply because it requires some discussion and judgment but it becomes judicial only when there is opportunity to be heard and production and weighing of evidence and decision to be taken therein.

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

----Arts. 129 & 139---Provincial Minister, judicial authority of---Scope---Minister can only perform administrative functions and cannot exercise judicial authority.

(d) Civil Service---

----Recruitment policy---Object and scope---Recruitment policy is constituted for purpose to provide guidelines for making appointment under Contract policy---Recruitment policy can neither achieve status of statutory rules nor law promulgated by Assembly or Parliament---In order to qualify statutory rules capable of conferring right and obligation enforceable at law, departmental instructions must have been issued by same Authority, who has power in law to make rules or draw policy instructions referable to specific statutory provisions of law having power to issue statutory rules.

Mst. Saeeda Bukhari vs. Secretary, Ministry of Education, Government of the Punjab, Lahore and another PLD 1988 Lah. 553 rel.

(e) Punjab Medical and Health Institutions Act (IX of 2003)--

----Ss. 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Special Selection Board---Recommendation---Administrative department, authority of---Petitioner was aggrieved of appointment order passed in favour of respondents by Administrative Department---Validity---No power or remedy was available with Administrative department to upset choice of Special Selection Board validly constituted for the purpose--- Single person appointed out of bureaucracy could not be permitted to sit upon choice of Special Selection Board---Only remedy for person aggrieved of an order of appointment by competent authority was to approach High Court for issuance of appropriate writ, order or direction in exercise of power of judicial review under Art.199 of the Constitution, if there was some violation of merit or action---High Court quashed appointment order passed in favour of respondents and remitted the matter to same Special Selection Board to scrutinize record of all contesting candidates and on the basis of meritorious position held by them fresh merit list to be drawn---High Court directed competent authority to issue appointment order on the basis of recommendation drawn by Special Selection Board---Petition was allowed accordingly.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 1 others PLD 1972 SC 279; Pakistan National Shipping, Corporation v. Rent Controller, Lahore and 2 others PLD 1992 Lah. 305; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 and Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710 ref.

Chaudhry Naseer Ahmad for Petitioner.

Ch. Tariq Muhammad Shafi, A.A.-G. for Respondent No.1.

Mian Faraz Samad for Respondents Nos.2 and 3.

Ijaz Ahmad Chaudhry and Zulfiqar Ali Chaudhry for Respondents Nos.4 and 5.

Prof. Dr. Syed Ejaz Ahmad Shah, Principal, Riaz Ahmad Khan, Senior/Litigation Clerk, QMC, Bahawalpur.

Date of hearing: 2nd April, 2009.

2010 P L C (C.S.) 123

[Northern Areas Chief Court]

Before Muzaffar Ali, J

PROVINCIAL GOVERNMENT through Chief Secretary, N.As. Gilgit and 4 others

Versus

Mst. KHALIDA KHANUM and 5 others

Civil Second Appeal No.1 of 2009, decided on 18th June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---General Clauses Act (X of 1897), S.21---Suit for declaration---Notification issued by the competent Authority, withdrawal or recession of----Authorities appointed the plaintiffs as teachers initially on contract basis and later on plaintiffs were regularized in BPS-9 by notification---However, after lapse of some time authorities reversed the pay scale of the plaintiffs from grade 9 and placed them in BPS-7 and also recovered amount paid to the plaintiffs---Suit for declaration filed by the plaintiffs was dismissed by the Trial Court, but they succeeded to get the impugned decree before Appellate Court, which set aside judgment and decree of the Trial Court---Validity---Order or a notification once made or issued by a competent authority could not be withdrawn or rescinded when the same had taken legal effect; and certain rights were created in favour of any individual under S.21 of General Clauses Act, 1897---Judgment and decree of the Trial Court was maintained.

2009 SCMR 775(2) ref.

Asstt. A.-G. for Appellants.

Abdur Rahim for Respondents.

Date of hearing: 18th June, 2009.

2010 P L C (C.S.) 331

[Chief Court Northern Areas]

Before Raja Jalal-ud-Din, C.J. and Muzaffar Ali, J

HANIFULLAH

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, NA'sGilgit and 3 others

Writ Petition No.33 of 2005, decided on 18th November, 2008.

Civil Servants Act (LXXI of 1973)---

---Ss. 5 & 11---General Clauses Act (X of 1897), S.21---Nothern Areas Council Legal Framework Order, 1999, S.19-A---Writ petition---Appointment and termination of service---Petitioner who was appointed as teacher in BPS-9, joined his service in pursuance of 'appointment order, but thererafter his services were terminated all of a sudden without any shams cause notice to the petitioner, simply stating that appointment was ordered without fulfilling codal formalities and mandatory rules of appointment---Practice of dismissal or removal of the service of individual without due inquiry or giving ample opportunity to the individual to meet the allegations against him was depricated---Petitioner having joined his services in pursuance of appointment order, said order could not be rescinded in exercise of the powers conferred by S.21 of General Clauses Act, 1897 as no locus poenitentiae was available to the authorities for the reasons that order was effected and a valuable right was created in favour of the petitioner---One show-cause notice having been issued to the petitioner prior to the termination of his service and no ample opportunity having been granted to him to meet the allegation against him, termination order was hit by the principle of audi alteram partem and was not sustainable in the eyes of law---Writ petition was accepted and the termination orders were cancelled with effect from its issuance and the authorities were directed to pay the salary and other service benefits to the petitioner from the date of his appointment.

1997 SCMR 15; 1993 PLC (C.S.) 588; 1996 SCMR 1390 and 2004 SCMR 158 rel.

Latif Shah for Petitioner.

A.-G. for Respondents.

Willayat Ali Legal Advisor for Respondents Nos.2 to 4.

2010 P L C (C.S.) 521

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

Mst. SADIQA BANO

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, N.As., Gilgit and 5 others

Writ Petition No.39 of 2005, decided on 2nd June, 2009.

Northern Areas Legal Framework Order, 1999---

----S. 19-A---Writ petition---Civil service---Appointment---Petitioner in response to an advertisement had appeared in the written test and not only passed the written test and interview, but also stood first in the list of the successful candidates---Petitioner being on the top of the list was entitled to be appointed as teacher in her respective union council, but authorities malafidely denied appointment to the petitioner on the pretext of some cases being sub judice before the court of law against the authorities in respect of some posts, but not against the present post claimed by the petitioner---Authorities during that period appointed another person against a vacant post without making any pretext of court cases, which had shown discriminatory attitude of authorities against the petitioner---Petitioner being entitled to be appointed against the said post as teacher, authorities were directed to appoint the petitioner against the said post and she was also declared to be entitled to get all service benefits including salary.

Rehmat Ali for Petitioner.

Assistant Advocate-General for Respondents.

Date of hearing: 2nd June, 2009.

2010 P L C (C.S.) 753

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

MUHAMMAD HABIL

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, N.As., Giilgit and 3 others

Writ Petition No.30 of 2008, decided on 14th April, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Writ petition---Civil service---Promotion---Petitioner, a government servant, serving as Administrative Officer (BPS-16) had assailed the finding of Departmental Promotion Committee, whereby his case for promotion against the post of Assistant Director (BS-17) was deferred---Petitioner was senior most in the category of employees and he fulfilled all the pre-requisites---Post available had to be filled in on the basis of seniority/fitness amongst the eligible incumbents as it fell against the promotion quota---No adverse reporting or disciplinary actions were noted to be on record or under way against the petitioner---Assistant Advocate-General and Departmental Counsel were not in a position to identify any other deficiency---Promotion of a government servant could not be withheld on the frivolous excuse and unacceptable in the eyes of law---Petitioner was fully qualified for promotion, but Departmental Promotion Committee had without any legal infirmity deferred his case for promotion---Authorities were directed to promote the petitioner to the post of Assistant Director (BS-17) after having resort to the procedure provided under relevant laws/rules from the date when his case was deferred.

Amjad Hussain for Petitioner.

Asstt. A.-G. for Respondents.

Date hearing: 14th April, 2010.

2010 P L C (C.S.) 127

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

AGHA KHAN EDUCATION SERVICE, PAKISTAN and 6 others

Versus

SULTAN ALI and 8 others

Civil Review No.5 of 2008, heard on 19th October, 2009.

(a) Supreme Appellate Court Northern Areas (Amended) Rules, 2008---

----O. XXVI--- Northern Areas Governance Order, 1994, Arts.27 & 35---Application for review of order of Supreme Appellate Court---Supreme Appellate Court after considering the matter on merits, proceeded to declare the order of termination of employees from service as illegal and also had granted the consequential relief of reinstatement in service with full back-benefits---Employers had sought review of judgment passed by Supreme Appellate Court---Supreme Appellate Court in the judgment under review had held that employer company being not an autonomous or government funded body, was not amenable to writ jurisdiction of the Chief Court, but in view of the nature of case the Supreme Appellate Court had converted petition for leave to appeal into a direct petition under Art.27 of Northern Areas Governance Order, 1994 read with Art.184(3) of Constitution of Pakistan---Employer company was a welfare organization in private sector which was functioning in the education field throughout Pakistan including Northern Areas and was engaged in public service as a registered body under the Companies Ordinance, 1984---Said welfare organization despite being not a statutory body, had much importance and was recognized as an educational institution---Company had to follow its rules and organizations in respect of tights of individual---Objection that a private organization engaged in activities connected with the basic right of people, was not amenable to the original jurisdiction of Supreme Appellate Court, was not acceptable as general proposition---Notwithstanding the status of an organization or institute, whether private or public, Supreme Appellate Court in a proper case of public importance involving enforcement of a fundamental right could in exercise of its original jurisdiction under Art.27 of Northern Areas Governance Order, 1994 read with Art.61(1) of Gilgit Baltistan (Empowerment and Self Governance) Order, 2009, pass an appropriate order in the interest of complete and substantial justice---Technical objection that writ petition filed by the employees against the judgment of the Chief Court could not be converted into a direct petition by the Supreme Appellate Court in the original jurisdiction under Art.27 of the Northern Areas Governance Order, 1994, would be of no significance.

PLD 2008 SC 30; 2008 SCMR 763; PLD 2006 SC 602; 1997 CLC 1936; PLD 1988 Kar. 489; PLD 1961 SC 531; PLD 1947 SC 146; PLD 1956 (W.P.) Pelence 72; 1994 SCMR 1548; 1994 SCMR 1555; 1994 SCMR 2061; 2003 SCMR 1241; 2004 SCMR 521; 1998 SCMR 2129; 2001 PLC (C.S.) 1239; 2003 SCMR 1241 and 2007 PLC (C.S.) 1046 ref.

(b) Supreme Appellate Court Northern Areas (Amended) Rules, 2008---

----O. XXVI--- Northern Areas Governance Order, 1994, Arts.19-A & 27---Constitution of Pakistan (1973), Art.9---Review of Supreme Appellate Court judgment---Right of earning---Conversion of petition for leave to appeal into a direct petition by Supreme Appellate Court---Validity---Right of earning was part of the right of life under Art.9 of Constitution of Pakistan, read with Art.19-A of Northern Areas Governance Order, 1994 and Gilgit Baltistan (Empowerment and Self Governance) Order, 2000---Infringement of right of service in an illegal manner would amount to deprive a person from right of earning which was curtailment of the basic necessity attached with the fundamental right of life---Public importance of the mutter was evident from the fact that the service of a large number of employees of petitioner/a private organization were terminated by a collective order passed in general terms in departure to the law of natural justice and consequently the aggrieved employees were denied a legitimate right of service---Supreme Appellate Court, in circumstances had rightly converted the petition for leave to appeal into a direct petition under Art.27 of the Northern Areas Governance Order, 1994---Contention of petitioners that petition under Art.27 of the Northern Areas Governance Order,1994 was not maintainable before Supreme Appellate Court and no question of public importance relating to the enforcement of fundamental rights was involved in the matter, had no substance---Supreme Appellate Court having found the termination order void, set aside the same and granted consequential relief to the employees and the counsel for the employer had not been able to point out any material illegality or legal defect in the judgment calling for interference in review application---Employees were allowed back-benefits by the Chief Court from the date of termination of their services, but their counsel had submitted that same could be granted from the date of their reinstatement in service in pursuance of the judgment of the Chief Court---Supreme Appellate Court directed accordingly.

Naghman Haider Zaidi for Petitioners.

Muhammad Issa for Respondents.

Date of hearing: 19th October, 2009.

2010 P L C (C.S.) 141

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

In the matter of: UP-GRADATION OF JUDICIAL OFFICERS/STAFF AND ALLOWANCE ETC.

S.M.C. Nos.16-17 of 2009, decided on 16th November, 2009.

Gilgit Baltistan (Empowerment and Self Governance) Order, 2009---

---Arts. 9, 61 & 76---Upgradation of judicial officers of the subordinate judiciary---Petitioners had prayed for upgradation of Judicial Officers, Staff and allowances---Gilgit Baltistan, was part of Pakistan and by following Judicial Policy enforced in Pakistan, the judiciary of Gilgit Baltistan would certainly be benefited and the disparity in the standard of Judicial Service of Gilgit Baltistan would certainly be removed which would advance the cause of independent judiciary---Concept of independence of judiciary was not confined only to the person of judicial officers, rather judicial independence mostly depended on administrative and financial independence---Interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly could affect the independence of judiciary---Better service status with better terms and conditions, could ensure the independence of judicial officer to the expectation of a common man---Under Northern Areas Governance Order, 1994 and now under Gilgit Baltistan (Empowerment and Self Governance) Order, 2009, the superior judiciary of Gilgit Baltistan had been placed at par to the superior judiciary of Pakistan and on the basis of same principle, the subordinate Judiciary in Gilgit Baltistan must be treated at par to that of the subordinate judiciary in the Provinces of Pakistan and it would be fair to follow the Policy of the High Courts in the Provinces of Pakistan regarding up-gradation of Judicial Officers in the subordinate judiciary---With a view to remove the disparity in the status and standard of Judicial Service in Gilgit Baltistan and to bring at par to the judicial service in the Provinces of Pakistan in the light of principle of fair and equal treatment, Supreme Appellate Court held that Judicial Officers of subordinate judiciary of Gilgit Baltistan, would be entitled to the benefit of upgradation---Chief Court Gilgit Baltistan, in exercise of powers conferred to it under Gilgit Baltistan (Empowerment and Self Governance) Order, 2009, would initiate the process of upgradation of Judicial Officers of the subordinate judiciary in the same manner as had been done by the High Court in the Provinces of Pakistan within specified period.

Sharaf Farid's case PLD 1994 SC 104 ref.

Advocate-General, Gilgit Baltistan.

Registrar and Deputy Registrar of Chief Court.

Muhammad Issa and Manzoor Ahmed amici curiae.

2010 P L C (C.S.) 162

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ALL GILGIT BALTISTAN WORKERS TRADE UNION FEDERATION through their Representative

Versus

FEDERATION OF PAKISTAN through Secretary, Kashmir Affairs and Northern Areas Division, Islamabad and 3 others

C.P.L.A. No.12 of 2009, heard on 4th August, 2009.

Gilgit Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts. 9, 19-A & 61---Constitution of Pakistan (1973), Art.17(1)---Petitioner had sought direction to the effect that Industrial Relations Act, 2008 and other labour related laws be immediately extended to Northern Areas---Validity---Trade or a Labour Union could not effectively function as a representative body in. the industrial disputes between the workers and employees for 'protection of the rights of workers, merely on the basis of Art.17(1) of the Constitution of Pakistan, read with Art.19-A of Northern Areas Governance Order, 1994 substituted by Art.9 of Gilgit Baltistan (Empowerment and Self Governance) Order, 2009, without statutory recognition---Laws on the industrial relations for effective enforcement of fundamental right of formation of union in Gilgit Baltistan and for regulating the industrial relations, in circumstances was to be provided with application of labour laws---Petition was allowed by Supreme Appellate Court with direction that subject to all just exceptions, until a Permanent law regulating the industrial relations for protection of labour rights with reasonable restriction was made for Gilgit Baltistan, Industrial Relations Act, 2008 a temporary legislation with related labour laws would be enforced in Gilgit Baltistan (Northern Areas) which would deem to have been extended to Gilgit Baltistan (Northern Areas)---Federal Government would accordingly issue the formal notification for enforcement of said laws.

Ehsan Ali for Petitioners.

Advocate-General, Northern Areas for Respondents.

Muhammad Issa, President Supreme Appellate Court Bar Association, Gilgit.

Manzoor Ahmed, President Chief Court Bar Association, Gilgit.

Abid Hussain Minto, Senior Advocate Supreme Court of Pakistan, as Amicus Curiae.

2010 P L C (C.S.) 200

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

MCB BANK LIMITED through President, MCB Chambers, Karachi and 4 others

Versus

RIZWAN ALI KHAN and another

C.P.L.A. No.6 of 2009, heard on 19th October, 2009.

Northern Areas Governance Order, 1994---

----Art. 28(3)---Civil Procedure Code (V of 1908), S.20---Dismissal from service---Employee was dismissed from service after issuing him show-cause notice and holding inquiry against him on allegations of financial irregularities and misappropriation---Employee assailed order of his dismissal from service before Chief Court in a writ petition, which petition was allowed with direction of reinstatement of employee in service---Contentions of the employer/Bank firstly was that it was a private. Bank and Staff Service Rules of the Bank were not statutory rules to be enforced through the process of writ petition, secondly that relation between the Bank and employee being that of master and servant, writ petition before Chief Court was not maintainable---Validity---Petitioner/Muslim Commercial Bank, admittedly was a private Bank---Alleged financial irregularities. were committed by the employee at `Skardu' and inquiry into those irregularities was held at Islamabad whereas the final order of dismissal of employee from service was also passed by the circle office at Islamabad--Notwithstanding the fact that transaction of misappropriation happened at Skardu where petitioner-Bank also carried business, the cause of action would certainly arise in favour of employee out of the order of his dismissal from service which was passed at Islamabad and not at Skardu where transaction of misappropriation of money took place during his tenure as manager---Cause of action in such cases could be referred to the grounds on the basis of which relief was sought and not only with reference to the place of transaction on the basis of which an action was taken---Cause of action wholly or partly arose in favour of the employee within the local limit of courts at Islamabad---Mere fact that the transaction of misappropriation took place in the Skardu branch of the Bank---Contention would not give rise to the cause of action for the purpose of invoking the jurisdiction of courts in Northern Areas---Employee was aggrieved of the action taken against him by the Bank at Islamabad and final order of dismissal from service was also passed within the local limits of courts at Islamabad---Courts in Northern Areas would have no jurisdiction to adjudicate the matter---Chief Court being not competent to entertain the writ petition and adjudicate the matter, for want of jurisdiction, impugned judgment was set aside---Petition was converted into appeal and allowed by Supreme Appellate Court.

Mian Abdul Rauf for Petitioners.

Muhammad Issa for Respondents.

Date of hearing: 19th October, 2009.

2010 P L C (C.S.) 245

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

Lt.-Col. (R) ARSHAD MEHMOOD CH.

Versus

KARAKURUM INTERNATIONAL UNIVERSITY through Acting Registrar, and 3 others

C.P.L.A. No.9 of 2009, heard on 15th September, 2009.

(a) Civil service---

----Termination of service---Services of petitioner were terminated by competent Authority on certain allegations and order of competent Authority had been affirmed in writ petition---Validity---Petitioner had died during pendency of writ petition---Competent Authority after issuance of charge-sheet, without waiting for reply of the petitioner, passed order of his termination---Chief Court despite having formed the opinion that order of termination challenged in the writ petition was unlawful, dismissed the writ petition with the observation that reinstatement of petitioner would not be in the interest of employer/University---Petition undoubtedly to the extent of relief of reinstatement in service on the death of the petitioner though was abated, but if the termination order was found by the court to be illegal and without lawful authority, relief regarding payment of dues of salaries for the period from the date of termination of service till the date of his death, would be admissible under the law as inheritable right of his legal heirs---No presumption of truth could be attached with disputed question of fact merely on the basis of allegations and perusal of record would show that the employer/university without providing a reasonable opportunity of hearing; and permitting the petitioner to produce evidence in rebuttal to the allegations against the petitioner raised such presumption for termination of his service---Mere issuance of show-cause notice and charge-sheet, without supply of material in support thereof and providing a fair opportunity of producing evidence in rebuttal thereto in accordance with law would amount to condemn a person unheard in violation of principles of natural justice which was considered as an essential part of every statute unless its application was expressly excluded---Chief Court without determining the real question involved in. the case in accordance with law, dismissed the writ petition in perfunctory manner as a result of which a serious prejudice had been caused to the legitimate right of the petitioner to remain in service---Order of termination of service of the petitioner was declared to be illegal and without lawful authority---Judgment of the Chief Court suffering from material illegality being not sustainable, was accordingly set aside with declaration that petitioner was entitled to the reinstatement in service with all benefits---Petition for leave to appeal was converted into appeal and was allowed.

(b) Northern Areas Governance Order, 1994---

----Art. 28---Writ jurisdiction---Scope---Duties and functions of public functionary---Courts were not supposed to interfere in the internal affairs and administrative matters of educational institutions, or in the order passed by such institutions in the public interest, but if the order was passed by a public functionary on the basis of 'consideration other than public interest which could not be justified in law, the principle of non-interference of courts in the domestic affairs of an educational institution, could not be as such attracted in such cases rather the same must be applied subject to the law of natural justice---Public functionaries could not be allowed to take away the legal rights of people for their personal satisfaction and courts were under legal and moral duty to protect the rights of the people by undoing the wrong done to the individual.

(c) Discretion---

----Exercise of---Scope---Discretion must be exercised in accordance with the policy of law and not for mere reason that discretion could or could not be exercised by the court.

Muhammad Issa as Amicus Curiae.

Director Finance, K. I.U.

Date of hearing: 15th September, 2009.

2010 P L C (C.S.) 121

[Peshawar High Court]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

ZAFARULLAH KHAN

Versus

DISTRICT COORDINATION OFFICER and 5 others

Writ Petition No.70 of 2006, decided on 31st March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Civil service--Appointment---Constitutional petition--Initially, for redressal of his grievances, petitioner had filed a civil suit, which was dismissed and appeal filed by the petitioner met the same fate---Petitioner, instead of challenging the order of the Appellate Court in revision before High Court, opted to file an other civil suit which was dismissed as withdrawn in order to file a constitutional petition---All said facts had been suppressed by the petitioner while filing the constitutional petition---Petitioner, in circumstances had not come up to the High Court with clean hands having suppressed the material facts---Besides, constitutional petition was hit by the doctrine of `!aches'---Impugned order passed by authorities which was well-founded, based on correct legal premises was not open for interference by the High court in exercise of its extraordinary constitutional jurisdiction.

Saleemullah Khan Ranazai for Petitioner.

Sanaullah Shamim Gandapt r, D.A.-G. for Respondents.

Date of hearing: 25th March, 2009.

2010 P L C (C.S.) 364

[Peshawar High Court]

Before Dost Muhammad Khan and Liaqat Ali Shah, JJ

Mst. SAMINA NAHEED

Versus

THE STATE

Writ Petition No.271 of 2009, decided on 10th December, 2009.

Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition---Civil service---Age relaxation--Relaxation in upper age limit of educated divorced women---Claim for---Plea of the petitioner lady was that if educated married women were divorced at a later stage and by then they crossed the upper age limit, could not get employment in Government Semi Government and Autonomous Bodies because no relaxation in upper age limit was provided therefor---Relevant rules regarding age relaxation, had shown that for different classes of persons concession of relaxation in upper age limit was provided, however, no rule/provision existed to the extent that concession i.e. relaxation in upper age limit to the divorced educated women, who after divorce were in dire need of earning bread for themselves and for their kids---Such omission would amount to discriminatory treatment--Not providing rule to grant relaxation in upper age limit to such professionals and highly skilled women was clearly hit by the prohibitory command of Art.25 of the Constitution---High Court observed that immediate steps were required to be taken to appropriately and suitably amend the rules on the subject and experts on the subject would sit together to frame rules for granting such concession in age relaxation to such divorcees, who were highly skilled, professional and well-educated---Constitutional petition was admitted and allowed and Federal/Provincial and all the Autonomous Bodies etc. were directed to frame rule granting relaxation in upper age limit to such divorced women, who wanted to join or rejoin service in said Bodies.

Nemo for Petitioner.

Khurshid Khan, D.A.-G. and Qaisar Rashid, A.A.-G. for Respondents.

2010 P L C (C.S.) 507

[Peshawar High Court]

Before Abdul Aziz Kundi, J. Chairman and Miftahud Din Khan, J. Member

TAJ MUHAMMAD KHAN

Versus

CHIEF JUSTICE, PESHAWAR HIGH COURT through Registrar and another

S.J. Service Appeal No.3 of 2002, decided on 3rd February, 2010.

(a) North-West Frontier Province Judiciary Service Tribunal Act (VIII of 1991)---

----S. 5---North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973, Rr. 2(1)(e), 4(1)(iv), 5 & 6---Dismissal from service---Appeal---Appellant serving as Additional District and Sessions Judge was dismissed from service after charge-sheeting and holding inquiry against him on serious allegations of moral and financial corruption---Record produced by the appellant himself in his defence, had sufficiently connected him with the complainant lady who according to his own saying was lady of questionable character---Manner in which the appellant had conducted himself in relations with the complainant lady during his posting at various stations as a Judicial Officer, would by itself be a sufficient proof of his being not fair and independent in the judicial affairs and such conduct was unbecoming of a Judicial Officer---Sufficient evidence was available against the appellant to hold that his conduct was fully covered by "misconduct" as damned in North-West Frontier Province Civil Servants (Efficiency hind Discipline) Rules, 1973---Inquiry against the appellant under North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973 was conducted in a most fair and transparent manner, where the appellant fully participated and was given full chance to cross-examine the witnesses against him and also produce evidence in his defence---During the course of arguments, no grievance was shown against the inquiry proceedings---After fulfilling all the coda[ formalities, the Authorized Officer, recommended imposition of major penalty of removal from service and ultimately, competent Authority who was Chief Justice of High Court imposed major penalty of dismissal from service---Impugned order of dismissal from service, passed by competent Authority against the appellant, could not be interfered with in appeal.

PLD 1981 SC 176; 1985 PLC (C.S.) 523; 1997 SCMR 1543; PLD 1971 SC 681; 1987 SCMR 602; 2007 SCMR 1008; 1994 PLC (C.S.) 63; 1996 MLD 2045; 1992 PLC (C.S.) 670; 2003 SCMR 1140; 2003 PLC (C.S.) 317; 2004 SCMR 540; Ch. Shabir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Qari Ahmad Jan v. Government of Balochistan through S&GAD Quetta and 3 others 2003 PLC (C.S.) 1078; Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court, Lahore 2008 SCMR 1144 and Noor Muhammad Khan. v. Registrar Lahore High Court, Lahore 2008 SCMR 1241 ref.

(b) Civil service---

----Adverse remarks---Adverse entries recorded in the ACRs of the employee for the relevant year by the Countersigning Authority, had been challenged by the employee in appeal---Entry in ACR being the employee `average officer' was not adverse---However entries "besides employee was counselled to guard against his arrogant behaviour" was by the Countersigning Authority, which happened to be the Administration Committee of the High Court, comprising the Chief Justice and senior most Judges---When employee had been counselled, then, no reason was for him not to mould himself and act in a manner as he was required as a judicial officer---Prior to the impugned entries, the comments furnished by Chief Justice would show that there had been adversary remarks in ACRs of the employee---However since appeal of the employee against his dismissal from service had been dismissed, appeal against alleged adverse entries was also dismissed.

Qari Ahmad Jan. v. Government of Balochistan through S&GAD, Quetta and 3 others 2003 PLC (C.S.) 1078; Ch. Shabbir Hussain and others. v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191 and Mehar Khan Meo v. High Court of Sindh 2007 SCMR 632 ref.

Arshad Ali for Appellant.

Zia-ur-Rehman Khan, A.-G. for Respondents.

Date of hearing: 3rd February, 2010.

2010 P L C (C.S.) 524

[Peshawar High Court]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD JAMSHAID

Versus

GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and 6 others

Writ Petition No.8 of 2009, decided on 19th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had challenged appointment of respondents as Lecturers by Syndicate of the University---Syndicate appointed respondents as Lecturers by approving the recommendation of Selection Board---Petitioner had alleged that in the relevant advertisement, no screening test was mentioned in which petitioner participated and he qualified in the said test---Validity---Provision of screening test though was not mentioned in the advertisement appeared in the newspaper for the vacancies, non-mentioning of screening test in the advertisement was not fatal because all details were not required to be given in the advertisement---Non-mentioning of screening test in advertisement was not necessary, especially when provision of screening test had been approved by Syndicate in its meeting---Petitioner no doubt was gold medallist, but holding a gold medallist position or obtaining first division was not a sole guarantee for appointment, because had it been so, there would have been no test and such person would have been taken in employment without any formalities---Gold medallist or a higher qualified person could not claim title for appointment alone on that basis; he had to face certain formalities like test and interview---Petitioner, in a constitutional petition was required to prove illegality, violation of fundamental rights or defect in jurisdiction---In the present case, a duly constituted Committee conducted the proceedings of selection, and after due consideration, a merit list was made and recommendation was formed which was approved by the Syndicate in the meeting and in pursuance of approval of the Syndicate respondents were appointed as Lecturers---No illegality having been committed by the authorities concerned, petition being devoid of merits, was dismissed.?

Gohar Zaman Khan Kundi for Petitioner.

Saleemullah Khan Ranazai for Respondents.

Anwarul Haq for Respondents Nos.6 and 7.

Date of hearing: 19th January, 2010.

2010 P L C (C.S.) 581

[Peshawar High Court]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

Mst. NAJIA TEHSEEN

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Services and General Administration Department, Peshawar and 7 others

Writ Petition No.392 of 2008, decided on 23rd February, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Claim of the petitioner was that authorities in total disregard of the law, rules and regulations had recommended names of respondents for recruitment while one respondent belonged to Zone-I, but her name had been recommended from the quota of Zone-II wherefrom the petitioner hailed---Petitioner and said respondent secured equal marks and said respondent was recommended for appointment as petitioner was younger to her by 14 days (in the light of Regln.33(3) of Service Regulations)---Respondent again had edge over the petitioner as she was married prior to joining the government service and because of her marriage, domicile of her husband was considered for her recommendation---Husband of respondent being resident of Zone-II, her name was recommended from the said Zone-II---Recommendation of the authorities being in accordance with relevant Regulations, no unlawful act or exercise of jurisdiction by authorities existed which could be interfered with in constitutional jurisdiction of High Court.

Ibadur Rehman Qureshi for Petitioner.

Barrister Waqar Ali Kan, Dy.A.-G. for Respondents.

Waseemuddin Khattak.

Date of hearing: 23rd February, 2010.

2010 P L C (C.S.) 657

[Peshawar High Court]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

Dr. AKHTAR NAWAZ and 4 others

Versus

VICE-CHANCELLOR, GOMAL UNIVERSITY, D.I. KHAN and 4 others

Writ Petition No.270 of 2007, decided on 16th March, 2010.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Civil service---Appointment---Withdrawal of order of appointment---Earlier petitioners were reinstated in service in pursuance of decision of High Court which had attained finality as no review or revision was filed against said order of reinstatement---Subsequently said order of reinstatement as passed by the High Court was withdrawn by authorities without any notice to the petitioners---Judgment of High Court which had attained finality could not be modified/erased by any body as once the decision of the High Court became final then its validity could not be questioned---Once rights accrued to a person, same could not be taken away, unless notice was given to the person concerned---In the present case no notice was given to the petitioners---If provision of notice was not provided in the statute, even then notice was necessary to be given to the petitioners in order to justify withdrawal of vested right---No opportunity of hearing having been provided before withdrawal of reinstatement to the petitioners which caused prejudice to them, petitioners were vested with a right of serving through office order issued by authority in pursuance of decision of High Court-Said decision which was acted upon after reinstatement order, had become final which could not be disturbed, modified or altered by any other authority, which was alien to law and illegal---Impugned order was declared as illegal, void and without jurisdiction.

2001 SCMR 832; PLD 1991 SC 973; Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; PLD 1990 SC 666; Muhammad Ishaq v. Dr. Saiduddin Swaleh PLD 1959 Kar. 669; Charsada Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Pesh. 210; Commissioner of Income-tax East Pakistan v. Fazlur Rahman PLD 1964 SC 410; Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62 and Mansab Ali v. Amir PLD 1971 SC 124 ref.

Gohar Zaman Kundi and Qazi Atique Rehman for Petitioners.

Saleemullah Khan Ranazai for Respondents.

Date of hearing: 16th March, 2010.

2010 P L C (C.S.) 665

[Peshawar High Court]

Before Ejaz Afzal Khan, C. J. and Mazhar Alam Khan Miankhel, J

Dr. LAL ZADA KHAN

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary and 3 others

Writ Petition No.2159 of 2009, decided on 25th February, 2010.

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

----S. 19(2) [as substituted by S.2 of North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Regularization of service of contract employee---Petitioner, who was a contract employee, had sought issuance of an appropriate writ for directing the Authorities to regularize his contract service as services of other similarly placed contract employees were regularized---Substituted subsection (2) of S.19 of North-West Frontier Province Civil Servants Act, 1973, would reveal that all such contract employees selected for appointment in the prescribed manner on or after 1st day of July, 2001, till commencement of the Amended Act, 2005, would for all intents and purposes be civil servants appointed on regular basis; which simply would mean that their services would be regularized by operation of law; and issuance of notification/order in that regard would just be a formality---In presence of such a clear provision of law, there was no impediment, which could make the concerned departmental Authorities to avoid the compliance of such a simple and clear mandate of law---No reason existed as to why. the petitioner was being treated differently, when High Court in a couple of constitutional petitions had come forward and stepped in for the rescue of such aggrieved persons---Petitioner, in absence of anything to the contrary was also entitled to be treated alike---High Court allowing constitutional petition, held that the service of the petitioner be regularized in view of the provision of newly added section 19(2) as substituted by S.2 of Amending Act, 2005.

Muhammad Isa Khan for Petitioner.

Ziaur Rehman Khan, A.-G. for Respondents.

Date of hearing: 25th February, 2010.

2010 P L C (C.S.) 679

[Peshawar High Court]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

Dr. Syed MUSHTAQ AHMED GILANI

Versus

CHIEF EXECUTIVE, AYUB MEDICAL INSTITUTION, ABOTTABAD and 5 others

A.W.P. No.61 of 2006, decided on 11th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition, maintainability of---Civil service---Promotion and reversion---Petitioner had challenged the legality and propriety of the notification, whereby the petitioner had been reverted from the post of Associate Professor to Assistant Professor and respondents had been promoted as Professor and Associate Professor respectively---Counsel for respondents raised preliminary objection that as employees of college concerned had been treated as civil servants, petitioner was required to exhaust all available remedies against the order of departmental Authority---Counsel had objected that petition being incompetent was not maintainable---Validity---No doubt the employees of college concerned had been treated as civil servants, but in the present case, consequent upon the recommendation of Selection/Promotion Board, in its meetings the competent Authority approved the promotion of the petitioner as Associate Professor and he was serving as such against the only sanctioned post of Associate Professor on regular basis; in the meanwhile other respondent was promoted as Associate Professor against a non-existing post and that irregularly and unauthorized promotion was detected by Deputy Director Audit and brought to the notice of Chief Executive for demotion and recovery of irregular and unauthorized pay drawn---Said respondent thus was holding unauthorized and irregular promotion against non-sanctioned post, but the Chief Executive through impugned notification ordered the reversion of petitioner without any show-cause notice and providing opportunity of hearing---As the petitioner was promoted on the basis of seniority-cum-fitness by competent Authority on regular basis and was holding the only sanctioned post of Assistant Professor, a vested right to hold such post was created in his favour---Such promotion order was neither the outcome of fraud nor mis-representation on the part of the petitioner, which he enjoyed for more than 3-1/2 years; under the principles of natural justice as well as rule of locus poenitentiae the petitioner had got the right to invoke the constitutional jurisdiction of High Court, in circumstances---Instead of taking remedial steps against unauthorized and irregular promotion of respondent, the petitioner was condemned unheard---Impugned notifications were declared to be wrong, illegal and without lawful authority which was set aside and Authorities were directed to consider the promotion of the petitioner for the post of Professor in BPS-20 in accordance with law and rules.

PLD 2005 SC 803; 2002 SCMR 549; 2002 SCMR 769 , PLD 1997 SC 304, 2001 SCMR 8; 2004 CLC 1500; 2002 SCMR 907 and Gatron Industries Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

Malik Manzoor Hussain for Petitioner.

Abdul Rehman Qadir and Waseem Fazal D.A.-G. for Respondents.

Date of hearing: 25th February, 2010.

2010 P L C (C.S.) 705

[Peshawar High Court]

Before Dost Muhammad Khan and Abdul Aziz Kundi, JJ

RAHIMA GUL

Versus

GOVERNMENT OF N.-W.F.P. through Department of Elementary and Secondary Education, through Secretary and 3 others

Writ Petition No.133 of 2010, decided on 16th February, 2010.

North-West Frontier Province Employees (Regularization of Services) Act (XVI of 2009)---

----S. 3---Constitution of Pakistan (1973), Art.199--Constitutional petition---Regularization of service---Petitioner, who was appointed on contract basis for six months, her contract period was extended for a period of one year---While she was serving on contract basis, the North-West Frontier Province Employees (Regularization of Services) Act, 2009 came into force and under S.3 of said Act, all employees holding any post on contract basis on 31st December, 2008 or till the commencement of said Act, would be deemed to have been validly appointed on regular basis---Process for regularization of service of the petitioner was carried out and was followed by another order, ensuring that the services of the petitioner and others alike would be regularized, however, a corrigendum notification/office order was issued by the Authority dispensing with services of the petitioner without realizing the effect of previous correspondence on the subject in favour of the petitioner---As services of the petitioner stood regularized, Authority was required to issue a notification to that effect or formal order for maintaining service book/personal file of the petitioner for determining the inter se seniority of similarly placed/appointed employees; as the law would take its own course and no consent or confirmation of the Authority was required---Case of the petitioner could not be distinguished on any legal and factual premises---Authority was directed to issue an office order in line with the provisions of North-West Frontier Province Employees (Regularization of Services) Act, 2009, treating the petitioner as regular employee on the post, she was holding at the relevant time.

Mukhtar Ahmad Khan for Petitioner.

Fazal-ur-Rehman, A.A.-G. along with Khalid Mateen, EDO.

Muhammad Israr brother of Respondent No.4.

2010 P L C (C.S.) 935

[Peshawar High Court]

Before Shah Jehan Khan and Shahji Rehman Khan, JJ

Dr. MUHAMMAD SALEEM

Versus

UNIVERSITY OF PESHAWAR through Vice-Chancellor and 2 others

Writ Petition No.599 of 2008, decided on 21st May, 2009.

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

----S. 5---University of Peshawar Act (II of 1974), S.21(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Withdrawal of---Petitioner was appointed as a Lecturer on ad hoc basis in Arabic Department in the University---Later on when post of Associate Professor was advertised, the petitioner having the required qualifications applied for the same and was recommended by the Selection Board of the University in its meeting---In meeting of the Syndicate of the University, the petitioner got approved his appointment as Associate Professor and appointment order in his favour was issued, however, after the period of eight months, his appointment as Associate Professor was withdrawn---Reason for such withdrawal as furnished by the authorities in their comments was that because of the break up of quorum in the meeting of Syndicate, all decisions taken were null and void ab initio, without lawful authority and not based on proper interpretation of the quorum of the Syndicate, provided under S.21(3) of the University of Peshawar Act, 1974---Validity---Total number of the Syndicate being 21, required quorum according to S.21(3) of University of Peshawar Act, 1974 should be 11--Appointment order of petitioner was approved by the Syndicate when it was short of the quorum by one member---In the subsequent meeting of the Syndicate, it was rightly, properly and legally declared null and void and without lawful authority and said appointment order was rightly withdrawn---Order of withdrawal could not be interfered with by the High Court in the extraordinary, equitable, discretionary constitutional jurisdiction.

PLD 1983 Pesh. 123 and 2004 YLR 1979 ref.

(b) Interpretation of statutes---

----Interpretation should be natural, appropriate and simple; and should give the words their ordinary meaning, it should be consistent with the intention of legislature and should help the administration of justice and should not offend the common sense or lead to ridiculous consequences.

Said Rahman for Petitioner.

Wasimuddin Khattak for Respondents.

Date of hearing: 21st May, 2009.

2010 PLC (C.S.) 943

[Peshawar High Court]

Before Muhammad Alam Khan, J

AYUB GUL

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR and another

Civil Revision No.64 of 2009, decided on 10th April, 2009.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Claim of plaintiff was that his date of birth had been incorrectly mentioned in the record which later on was incorporated in his educational certificate and National Identity Card, which wrong entry was illegal, not binding on him and was liable to be corrected---Alleged wrong entry cropped up when the plaintiff was a student of Primary School which was duly incorporated in various record. of the Board of Education as well as the University---On the alleged wrong date of birth, the plaintiff joined service and completed his tenure of service while reaching the age of superannuation--Plaintiff was awakened from a deep slumber and filed present suit in order to gain extension in service--During his past long period of service, the plaintiff never objected to the date of birth and under that date of birth duly recorded in the testimonials, he joined service, remained in Public Health Engineering Department, secured promotion and reached the post of Executive Engineer---During the entire service the plaintiff had never intimated that fact to his department nor ever applied for the alleged correction of his date of birth---Plaintiff, in circumstances, was legally estopped to challenge the said date of birth, especially in the circumstances when he reached the age of superannuation, which could not be corrected---Besides, the matter related to the terms and conditions of service, which action could only be challenged before the Services Tribunal and no other court had got jurisdiction to entertain such like plea in view of the bar contained under Art.212 of the Constitution.

Administrative Committee of High Court of Sindh through Registrar, High Court of Sindh Karachi and another v. Arjun Ram K. Talreja and another 2008 SCMR 255=2008 PLC (C.S.)376; Sarfaraz Khan v. Federation of Pakistan 1986 SCMR 1950 and Government of the Punjab through Secretary Department of Education Lahore. v. Prof. Mst. Jamida Malik and another MLD 1991 824 ref.

Gohar Zaman Kundi for Petitioner.

Nemo for Respondents.

2010 P L C (C.S.) 121

[Peshawar High Court]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

ZAFARULLAH KHAN

Versus

DISTRICT COORDINATION OFFICER and 5 others

Writ Petition No.70 of 2006, decided on 31st March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Civil service--Appointment---Constitutional petition--Initially, for redressal of his grievances, petitioner had filed a civil suit, which was dismissed and appeal filed by the petitioner met the same fate---Petitioner, instead of challenging the order of the Appellate Court in revision before High Court, opted to file an other civil suit which was dismissed as withdrawn in order to file a constitutional petition---All said facts had been suppressed by the petitioner while filing the constitutional petition---Petitioner, in circumstances had not come up to the High Court with clean hands having suppressed the material facts---Besides, constitutional petition was hit by the doctrine of `!aches'---Impugned order passed by authorities which was well-founded, based on correct legal premises was not open for interference by the High court in exercise of its extraordinary constitutional jurisdiction.

Saleemullah Khan Ranazai for Petitioner.

Sanaullah Shamim Gandapt r, D.A.-G. for Respondents.

Date of hearing: 25th March, 2009.

2010 P L C (C.S.) 364

[Peshawar High Court]

Before Dost Muhammad Khan and Liaqat Ali Shah, JJ

Mst. SAMINA NAHEED

Versus

THE STATE

Writ Petition No.271 of 2009, decided on 10th December, 2009.

Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition---Civil service---Age relaxation--Relaxation in upper age limit of educated divorced women---Claim for---Plea of the petitioner lady was that if educated married women were divorced at a later stage and by then they crossed the upper age limit, could not get employment in Government Semi Government and Autonomous Bodies because no relaxation in upper age limit was provided therefor---Relevant rules regarding age relaxation, had shown that for different classes of persons concession of relaxation in upper age limit was provided, however, no rule/provision existed to the extent that concession i.e. relaxation in upper age limit to the divorced educated women, who after divorce were in dire need of earning bread for themselves and for their kids---Such omission would amount to discriminatory treatment--Not providing rule to grant relaxation in upper age limit to such professionals and highly skilled women was clearly hit by the prohibitory command of Art.25 of the Constitution---High Court observed that immediate steps were required to be taken to appropriately and suitably amend the rules on the subject and experts on the subject would sit together to frame rules for granting such concession in age relaxation to such divorcees, who were highly skilled, professional and well-educated---Constitutional petition was admitted and allowed and Federal/Provincial and all the Autonomous Bodies etc. were directed to frame rule granting relaxation in upper age limit to such divorced women, who wanted to join or rejoin service in said Bodies.

Nemo for Petitioner.

Khurshid Khan, D.A.-G. and Qaisar Rashid, A.A.-G. for Respondents.

2010 P L C (C.S.) 507

[Peshawar High Court]

Before Abdul Aziz Kundi, J. Chairman and Miftahud Din Khan, J. Member

TAJ MUHAMMAD KHAN

Versus

CHIEF JUSTICE, PESHAWAR HIGH COURT through Registrar and another

S.J. Service Appeal No.3 of 2002, decided on 3rd February, 2010.

(a) North-West Frontier Province Judiciary Service Tribunal Act (VIII of 1991)---

----S. 5---North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973, Rr. 2(1)(e), 4(1)(iv), 5 & 6---Dismissal from service---Appeal---Appellant serving as Additional District and Sessions Judge was dismissed from service after charge-sheeting and holding inquiry against him on serious allegations of moral and financial corruption---Record produced by the appellant himself in his defence, had sufficiently connected him with the complainant lady who according to his own saying was lady of questionable character---Manner in which the appellant had conducted himself in relations with the complainant lady during his posting at various stations as a Judicial Officer, would by itself be a sufficient proof of his being not fair and independent in the judicial affairs and such conduct was unbecoming of a Judicial Officer---Sufficient evidence was available against the appellant to hold that his conduct was fully covered by "misconduct" as damned in North-West Frontier Province Civil Servants (Efficiency hind Discipline) Rules, 1973---Inquiry against the appellant under North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973 was conducted in a most fair and transparent manner, where the appellant fully participated and was given full chance to cross-examine the witnesses against him and also produce evidence in his defence---During the course of arguments, no grievance was shown against the inquiry proceedings---After fulfilling all the coda[ formalities, the Authorized Officer, recommended imposition of major penalty of removal from service and ultimately, competent Authority who was Chief Justice of High Court imposed major penalty of dismissal from service---Impugned order of dismissal from service, passed by competent Authority against the appellant, could not be interfered with in appeal.

PLD 1981 SC 176; 1985 PLC (C.S.) 523; 1997 SCMR 1543; PLD 1971 SC 681; 1987 SCMR 602; 2007 SCMR 1008; 1994 PLC (C.S.) 63; 1996 MLD 2045; 1992 PLC (C.S.) 670; 2003 SCMR 1140; 2003 PLC (C.S.) 317; 2004 SCMR 540; Ch. Shabir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Qari Ahmad Jan v. Government of Balochistan through S&GAD Quetta and 3 others 2003 PLC (C.S.) 1078; Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court, Lahore 2008 SCMR 1144 and Noor Muhammad Khan. v. Registrar Lahore High Court, Lahore 2008 SCMR 1241 ref.

(b) Civil service---

----Adverse remarks---Adverse entries recorded in the ACRs of the employee for the relevant year by the Countersigning Authority, had been challenged by the employee in appeal---Entry in ACR being the employee `average officer' was not adverse---However entries "besides employee was counselled to guard against his arrogant behaviour" was by the Countersigning Authority, which happened to be the Administration Committee of the High Court, comprising the Chief Justice and senior most Judges---When employee had been counselled, then, no reason was for him not to mould himself and act in a manner as he was required as a judicial officer---Prior to the impugned entries, the comments furnished by Chief Justice would show that there had been adversary remarks in ACRs of the employee---However since appeal of the employee against his dismissal from service had been dismissed, appeal against alleged adverse entries was also dismissed.

Qari Ahmad Jan. v. Government of Balochistan through S&GAD, Quetta and 3 others 2003 PLC (C.S.) 1078; Ch. Shabbir Hussain and others. v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191 and Mehar Khan Meo v. High Court of Sindh 2007 SCMR 632 ref.

Arshad Ali for Appellant.

Zia-ur-Rehman Khan, A.-G. for Respondents.

Date of hearing: 3rd February, 2010.

2010 P L C (C.S.) 524

[Peshawar High Court]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD JAMSHAID

Versus

GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and 6 others

Writ Petition No.8 of 2009, decided on 19th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had challenged appointment of respondents as Lecturers by Syndicate of the University---Syndicate appointed respondents as Lecturers by approving the recommendation of Selection Board---Petitioner had alleged that in the relevant advertisement, no screening test was mentioned in which petitioner participated and he qualified in the said test---Validity---Provision of screening test though was not mentioned in the advertisement appeared in the newspaper for the vacancies, non-mentioning of screening test in the advertisement was not fatal because all details were not required to be given in the advertisement---Non-mentioning of screening test in advertisement was not necessary, especially when provision of screening test had been approved by Syndicate in its meeting---Petitioner no doubt was gold medallist, but holding a gold medallist position or obtaining first division was not a sole guarantee for appointment, because had it been so, there would have been no test and such person would have been taken in employment without any formalities---Gold medallist or a higher qualified person could not claim title for appointment alone on that basis; he had to face certain formalities like test and interview---Petitioner, in a constitutional petition was required to prove illegality, violation of fundamental rights or defect in jurisdiction---In the present case, a duly constituted Committee conducted the proceedings of selection, and after due consideration, a merit list was made and recommendation was formed which was approved by the Syndicate in the meeting and in pursuance of approval of the Syndicate respondents were appointed as Lecturers---No illegality having been committed by the authorities concerned, petition being devoid of merits, was dismissed.?

Gohar Zaman Khan Kundi for Petitioner.

Saleemullah Khan Ranazai for Respondents.

Anwarul Haq for Respondents Nos.6 and 7.

Date of hearing: 19th January, 2010.

2010 P L C (C.S.) 581

[Peshawar High Court]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

Mst. NAJIA TEHSEEN

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Services and General Administration Department, Peshawar and 7 others

Writ Petition No.392 of 2008, decided on 23rd February, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Claim of the petitioner was that authorities in total disregard of the law, rules and regulations had recommended names of respondents for recruitment while one respondent belonged to Zone-I, but her name had been recommended from the quota of Zone-II wherefrom the petitioner hailed---Petitioner and said respondent secured equal marks and said respondent was recommended for appointment as petitioner was younger to her by 14 days (in the light of Regln.33(3) of Service Regulations)---Respondent again had edge over the petitioner as she was married prior to joining the government service and because of her marriage, domicile of her husband was considered for her recommendation---Husband of respondent being resident of Zone-II, her name was recommended from the said Zone-II---Recommendation of the authorities being in accordance with relevant Regulations, no unlawful act or exercise of jurisdiction by authorities existed which could be interfered with in constitutional jurisdiction of High Court.

Ibadur Rehman Qureshi for Petitioner.

Barrister Waqar Ali Kan, Dy.A.-G. for Respondents.

Waseemuddin Khattak.

Date of hearing: 23rd February, 2010.

2010 P L C (C.S.) 596

[Punjab Service Tribunal]

Before Justice (R.) Muhammad Jahangir Arshad, Chairman

HABIB-UL-HAQ and 4 others

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE and 20 others

Appeal No.3231 of 2007, decided on 3rd September, 2009.

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

----Rr. 3(1) & 23---Appointment---Imposing of condition--Relaxation of rules---Chief Minister, powers of---Scope---Chief Minister of Punjab, being the ultimate authority under the law, is competent to insert condition and such condition has statutory force in terms of R.3(1) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Chief Minister being the competent authority, can relax anyone of the rules in terms of R.23 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.

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

----R. 3---Qanun-e-Shahadat (10 of 1984), Art. 115-Appointment--Acceptance of conditions---Estoppel, doctrine of---Applicability---Appellants while joining service on regular basis through appointment letter/notification in question by their conduct expressly as well as impliedly accepted all conditions, therefore, they were estopped from challenging the same on the ground that the same was repugnant to one of the conditions of the notification and was not binding---Appellants were hit by doctrine of estoppel as contained in Art. 115 of Qanun-e-Shahadat, 1984, in circumstances.

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

---Rr. 3(1), 8(1)(a) (2) & 23---Constitution of Pakistan (1973), Art.18---Regularization of service---Ad hoc and direct appointees---Seniority, fixation of---Appellants were selected on ad hoc basis earlier and subsequently they were regularized, while respondents were direct appointees---Plea raise by appellants was that since their selection/joining was prior in time in the department, therefore, they were senior to the respondents---Validity---Appointment of appellants was though prior in time to the respondents but that was ad hoc and their service during ad hoc period could not be counted at the time of regularization--Appellants were supposed to have their services regularized through codal formalities of Punjab Public Service Commission, which arena they never entered in the present case ---Appellants, at the beginning, were in knowledge that their ad hoc appointments would not confer any right for regular appointment---Even the ad hoc appointment of appellants was without any merit etc. and way ex gratis in wake of Prime Minister's five point programme for providing jobs to un-employed engineers---Record had made it clear as to the considerations on which appellants were given ad hoc appointment---Much before issuance of notification/appointment letter, appellants were in the knowledge that Chief Minister had approved summary for regularization of their service by further condition of placing them junior to selectees of Punjab Public Service Commission i.e. respondents---Appellants accepted and joined regularized service with full knowledge of condition in their appointment letter that competent authority had placed embargo on their seniority regarding respondents and despite such condition, appellants had accepted appointment letter and joined service on regular basis and remained silent for a considerable period of time---Respondents were appointed on regular basis after proper recommendation by Punjab Public Service Commission and their placement in seniority as senior to appellants was comprehendible by person of ordinary prudence and further strictly in line with Art. 18 of the Constitution---Service Tribunal declined to interfere in the seniority fixed by authorities---Appeal was dismissed in circumstances.

1993 SCMR 1326; 1993 SCMR 1323; 1982 PLC (C.S.) 242; 1970 PLD SC 203; PLD 1981 SC 612; PLD 1979 SC 32; 2008 PLC (C.S.) 995; 1998 SCMR 1338; 1999 SCMR 41 and PLD 1997 SC 835 ref.

Masud Ahmad Riaz for Appellants.

Arshad Javed Chadhar, Deputy District Attorney for Respondents.

Syed Ijaz Qutab for Respondents Nos.6 and 11.

Mrs. Rizwana Anjum Mufti for Respondents Nos.4, 5, 7 to 10 and 12 to 21.

Date of hearing: 3rd September, 2009.

2010 P L C (C.S.) 613

[Punjab Service Tribunal]

Before Justice (R.) Muhammad Jahangir Arshad, Chairman

MUHAMMAD SHARIF

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION) and another

Appeals Nos.1275, 1276, 1326, 1352 of 2008 and 138 of 2009, decided on 16th February, 2010.

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

----S. 4---Constitution of Pakistan (1973), Art.189---Judgment of Supreme Court---Effect---Judgment in rem---Scope---Grievance of appellants was that after they were reinstated in service, authorities declined to give them their back-benefits, whereas their other colleagues were given such benefits---Validity---In other cases those civil servants were reinstated with all back-benefits---Dictum laid down by Service Tribunal in earlier appeals was maintained by Supreme Court meaning thereby that grant of back-benefits to affected civil servants was upheld by Supreme Court---Service Tribunal did not have any other option but to follow the judgments of Supreme Court in terms of Art.189 of the Constitution---In 'similarly placed facts and circumstances of the case as that of earlier appellants, the civil servants were not only reinstated in service but also granted back-benefits and extension of such relief to all the affected civil servants was a mandate of law, whether those civil servants had come to Court or not---Service Tribunal directed the authorities to pay all back-benefits to appellants which they were entitled during intervening period---Appeal was allowed accordingly.

1996 SCMR 1185; 2009 SCMR 1; 2005 SCMR 1032 and 2007 PLC (C.S.) 560 rel.

1998 SCMR 2268 ref.

Rizwana Anjum Mufti for Appellant.

Arshad Javed Chadhar, Deputy District Attorney and Zahoor Ahmad JCO/DEO (EE) Bahawalnagar for Respondents.

Date of hearing: 25th January 2010.

2010 P L C (C.S.) 685

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

MUHAMMAD NAEEM TARIQ

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT BOARD OF REVENUE, MULTAN

Appeal No.2368 of 1997, decided on 22nd August, 2008.

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

----Rr. 3(b), 4(1)(b)(v) & 5---Punjab Service Tribunals Act (IX of 1974), S.4---Misconduct---Dismissal from service---Appeal---Appellant was served with the charge-sheet containing the charge that he in connivance with the parties, registered the sale-deeds under-value in utter disregard of the valuation table notified by Deputy Collector---Findings were given by Inquiry Officer that the charges against appellant were proved and found him guilty of misconduct under the Punjab Government Servants (Efficiency and Discipline) Rules, 1975---Authority, on perusal of Report of the Inquiry Officer, the recommendations of authorized officer and record, had concluded that appellant had not produced any fresh evidence for his exoneration---Penalty of' dismissal from service along with the recovery of loss was awarded to appellant---Defence of appellant regarding levying of stamp duty in compliance with the decrees passed by civil courts was not supported with specific orders---Appellant was legally bound to charge the rates notified in valuation table under the Stamp Act---Service Tribunal had minutely examined the record and found that registration of sale-deeds was signed by appellant only and no other Revenue Officer had signed those documents---Entire responsibility for registration of under value documents lay on the appellant---Appellant had charged the arbitrary rates without observing the rates notified by District Collector and had violated the policy directions of the department---Charge of inefficiency, negligence and violation of rates notified by District Collector was proved against appellant---Appellant having served in the department for many years, lenient view had to be taken---Major penalty of dismissal from service was converted into compulsory retirement from service---Outstanding stamp duty however was ordered to be recovered from the parties as arrears of land revenue and not from the appellant.

?

Dr. Ehsan-ul-Haq Khan and Ch. Maqsood Ali Bhatti, District Attorney for Appellant.

Imtiaz Ahmad Khan, Deputy Secretary for (SMBR) and Sadaat Pervaiz, Deputy District Officer (Colonies) Sargodha for Respondent.

Date of hearing: 22nd August, 2009.

2010 P L C (C.S.) 293

[Quetta High Court]

Before Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J

Haji ZAHIR ALI and 3 others

Versus

GOVERNMENT OF PAKISTAN, REVENUE DIVISION, FEDERAL BOARD OF REVENUE, ISLAMABAD and another

Constitutional Petition No.137 of 2008, decided on 13th April, 2009.

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

----R. 18---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Ad hoc appointment---Petitioners were appointed against the posts of inspectors in the year 2003 on ad hoc basis for a period of twelve months and their services contract remained extended from time to time up to year 2008, when their services were dispensed with---Validity---Ad hoc appointment was always made without adopting due process of law of selection and was virtually a stop-gap arrangement by the government---Said stop-gap arrangement was a deviation from the normal course of selection---Concerned officials were supposed to have referred the said posts for selection to the competent Authority who should have advertised the same immediately---Ad hoc employees did not carry any vested legal rights to be confirmed---Constitutional petition was barred by Art.212 of the Constitution as it related to the terms and conditions of service and regularization of the petitioners---Authorities however were directed that while selecting or filling the posts, they should also consider the cases of the petitioners sympathetically through selection by Public Service Commission; or Departmental Appointment Committee, as was permissible under law and the petitioners could also be considered in the process of selection.

Province of Punjab through Chief Engineer, Irrigation and others v. Azhar Abbas and others 2002 SCMR 1 and Dr. Naveeda Tufail and others v. Government of Punjab and others 2003 PLC (C.S.) 69 ref.

H. Shakil Ahmed for Petitioners.

Ch. Mumtaz Yousaf, Standing Counsel assisted by Muhammad Azam, Law Officer, Customs Department for Respondents.

2010 P L C (C.S.) 293

[Quetta High Court]

Before Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J

Haji ZAHIR ALI and 3 others

Versus

GOVERNMENT OF PAKISTAN, REVENUE DIVISION, FEDERAL BOARD OF REVENUE, ISLAMABAD and another

Constitutional Petition No.137 of 2008, decided on 13th April, 2009.

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

----R. 18---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Ad hoc appointment---Petitioners were appointed against the posts of inspectors in the year 2003 on ad hoc basis for a period of twelve months and their services contract remained extended from time to time up to year 2008, when their services were dispensed with---Validity---Ad hoc appointment was always made without adopting due process of law of selection and was virtually a stop-gap arrangement by the government---Said stop-gap arrangement was a deviation from the normal course of selection---Concerned officials were supposed to have referred the said posts for selection to the competent Authority who should have advertised the same immediately---Ad hoc employees did not carry any vested legal rights to be confirmed---Constitutional petition was barred by Art.212 of the Constitution as it related to the terms and conditions of service and regularization of the petitioners---Authorities however were directed that while selecting or filling the posts, they should also consider the cases of the petitioners sympathetically through selection by Public Service Commission; or Departmental Appointment Committee, as was permissible under law and the petitioners could also be considered in the process of selection.

Province of Punjab through Chief Engineer, Irrigation and others v. Azhar Abbas and others 2002 SCMR 1 and Dr. Naveeda Tufail and others v. Government of Punjab and others 2003 PLC (C.S.) 69 ref.

H. Shakil Ahmed for Petitioners.

Ch. Mumtaz Yousaf, Standing Counsel assisted by Muhammad Azam, Law Officer, Customs Department for Respondents.

2010 P L C (C.S.) 313

[Quetta High Court]

Before Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J

KHADIM HUSSAIN

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education and another

Constitutional Petition No.383 of 2007, decided on 13th April, 2009.

Balochistan Province Removal From Service (Special Powers) Ordinance (III of 2000)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Petitioner was dismissed from service on serious charges of embezzlement of huge government amount and gross misconduct---Charges against the petitioner were proved as he had deposited the alleged embezzled amount in the Treasury, which would mean that he was guilty of his illegal acts---High Court had no jurisdiction to adjudicate upon the matter with regard to, the termination order and appellate order---Petitioner had admitted his guilt---Relief under constitutional petition was discretionary and same could not be exercised to perpetuate and encourage corruption---Constitutional petition was dismissed, in circumstances.

Manzoor Ahmed Rehmani for Petitioner.

Muhammad Salahuddin Mengal A.-G. for Respondents.

Date of hearing: 31st March, 2009.

2010 P L C (C.S.) 353

[Quetta High Court]

Before Akhtar Zaman Malghani and Ahmed Khan Leghari, JJ

ALI GOHAR MAZAR

Versus

FEDERATION OF PAKISTAN through Chief Executive Officer, Quetta Electric Supply and others

Constitutional Petition No.739 of 2006, decided on 17th July, 2008.

Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Pakistan Water and Power Development Authority Act (XXXI of 1958), S.8(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Appeal---Abatement of appeal---Petitioner, who was dismissed from service, after exhausting remedy of departmental appeal, filed appeal before Service Tribunal, but said appeal was dismissed by the Service Tribunal by finding it having been abated---Undisputedly petitioner was employee of WAPDA, set up under Pakistan Water and Power Development Authority Act, 1958---WAPDA, however by exercising its powers wider S.8(5) of Pakistan Water and Power Development Authority Act, 1958, formed companies for different regions including, Quetta Electric Supply Company (QESCO) and services of the petitioner were placed at the disposal of said Company, (QESCO)---Board of Directors of QESCO adopted all existing rules of WAPDA in its meeting---Terms and conditions of petitioner's services had thus been determined, under the Act and Rules made thereunder---Petitioner, in circumstances could not invoke constitutional jurisdiction of the High Court in matters relating to the terms and conditions of his service in view of the clear bar contained in Art.212 of the Constitution---Petitioner was to have approached the Service Tribunal for restoration/revival of his appeal in the light of judgment of apex Court reported, in PLD 2007 SC 681---Petitioner had remedy before the Service Tribunal where he had already filed appeal---Constitutional petition being not maintainable, was dismissed.

2007 PLC (C.S.) 244; 2008 PLC 671 and PLD 2007 SC 681 ref.

M.A. Hakeem Ayaz Swati and Abdul Sattar for Petitioner.

Ch. Mumtaz Yousaf, Standing Counsel for Respondents.

Date of hearing: 3rd July, 2008.

2010 P L C (C.S.) 412

[Quetta High Court]

Before Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J

MURAD BAKHSH and 2 others

Versus

SENIOR MEMBER, B.O.R. BALOCHISTAN, QUETTA and 9 others

Constitutional Petition No.115 of 2008, decided on 15th April, 2009.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of sons of employees---In response to advertisement published in newspaper for appointment of junior clerks, petitioners' sons appeared in test and interview, but did not qualify-While selecting the candidates, petitioners' sons were ignored by the authorities and others were selected---Petitioners (fathers of candidates) had claimed that as they were the employees of the department, their sons were to be given priority---Validity---Held, it was only the qualification and experience to be counted for the purposes of appointment of the sons of the petitioners; it was also requirement that they must be found suitable for knowledge, skill and fit persons to be appointed by the competent Authority---Suitability of a candidate was to be considered by the competent Authority and was not function of the courts to judge said administrative tasks---Candidates in question were rightly ignored, in circumstances.

(b) Words and phrases---

----`Qualified', defined and explained.

(c) Words and phrases---

----`Qualifications', defined and explained.

Kh. Noor-ul-Ameen v. Sardar Muhammad Abdul Qayyum Khan and another 1991 MLD 2658 ref.

Abdul Rauf Lehri for Petitioners.

Nasrullah Achakzai, Addl. A.-G. for Respondents Nos. 1 and 2.

Miss Sarwat Hina for Respondents Nos.3 to 20.

2010 P L C (C.S.) 455

[Quetta High Court]

Before Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J

SHOUKAT ALI

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Secretary, and 2 others

F.P.S.C. Appeal No.1 of 2008, decided on 30th March, 2009.

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

----Ss. 3, 7(3)(d) & 10---Competitive Examination Rules, 2007, Rr.7(ii), 10, 11, 12, 13 & 15---Group allocation---Appeal---Appellant appeared in C.S.S. examination for the post of (BS-17) and stood qualified at merit No.143---Appellant submitted his order of preference for occupational group---Case of appellant was that he was suitable for service and was entitled to be allotted "Foreign Service of Pakistan" which he had preferred, but instead he was allotted "Income Tax Group" ignoring the order of his preference list for occupational group---Appellant had contended that seat of "Foreign Services of Pakistan" had been allotted to another candidate whose merit number was 145 and that aggregate score of appellant was 793, while that of said other candidate had scored 791---Representation filed by the appellant before Federal Service Commission was rejected and his review application had also been rejected---Validity---Section 3 of Federal Public Service Commission Ordinance, 1977 provided that appeal could be filed against any decision of Public Service Commission, before relevant. High Court---Under R.13, Competitive Examination Rules, 2007 appellant could not claim as matter of right to be allocated a particular group of service, however it was specifically mentioned that candidate would be selected among the choices given in the Form---Rule 15 of Competitive Examination Rules, 2007, had clearly barred the jurisdiction of the courts to examine the suitability judged by the High Powered Board with regard to the allocation of Group/Service, which was function of the Board, who had to consider various factors including Psychological test health considerations, aptitude test etc. and it was the wisdom of the legislature to leave it to the competent Authority to examine the same, unless some mala fides were proved on record or established by cogent evidence---In the present case no mala fides having appeared in exercise of jurisdiction, appeal under R.15 of Competitive Examination Rules, 2007, was not competent---Appellant having been granted one of the preferences in the application, could not claim as a matter of right to be selected for a particular post or group.?

Imran-ul-Haq Khan for Appellant.

Muhammad Afzal Jami, Dy. A.-G. assisted by Syed Asghar Ali Shah, Joint Secretary, Establishment Division and Saleem Akbar, Deputy Director F.P.S.C., Quetta for Respondents.

Messrs Mujeeb Ahmed Hashmi and Nadir Ali Chalgari for Respondent No.3.

Date of hearing: 18th March, 2009.

2010 P L C (C.S.) 563

[Quetta High Court]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ZAFAR MASOOD and 4-others

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN CIVIL SECRETARIAT, QUETTA and 6 others

Constitutional Petition No.739 of 2009, decided on 8th February, 2010.

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

----S. 8---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Maintainability---Seniority list---Remedy---Petitioners were civil servants and aggrieved of fixation of seniority---Validity---Remedy against seniority list was representation/appeal to competent authority, which respondents had availed---Competent authority had passed an order reviewing the seniority list, against which order law had provided a remedy byway of filing appeal before Service Tribunal---As corrigendum issued by competent authority regarding seniority list pertained to terms and conditions of service, therefore, in view of bar contained in Art. 212 of the Constitution, High Court had no jurisdiction to entertain the petition against such order---High Court declined to interfere in the seniority list prepared by competent authority---Petition was dismissed in limine.

2007 SCMR 54 rel.

Mohsin Javed for Petitioners.

Nasrullah Achakzai, Addl. A.-G. for Respondents Nos.1 and 2.

Kamran Murtaza for Respondents Nos.4 to 7.

Date of hearing: 22nd December, 2009.

2010 P L C (C.S.) 814

[Quetta High Court]

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J

ABDUL ZAMAN and 3 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, and 4 others

Constitution Petition No.547 of 2008, decided on 28th April, 2010.

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

---Rr. 12 & 13-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Petitioners, whose fathers were working as Collie, work-charge Coolie, Gang Coolie respectively, having died on different dates while serving in the department, petitioners filed separate applications for their appointment in the department in the place of their deceased fathers---Case of the petitioners was that as per notification dated 18-4-2007, R.13-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 having been substituted, they were eligible to be appointed in place of their deceased fathers---During pendency of petition, said Rules of 1979, though were repealed by Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, but R.12 of the same was similar in nature to that of R.13-A of repealed Rules of 1979---Cases of the petitioners pertained to the year 2007, while the petition had been filed in 2008---During period from 2000 till issuance of said notification dated 18-4-2007, R.13-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 as substituted was in field and cases of the petitioners were required to be decided keeping in view the same, but concerned authorities did not consider that aspect; and only insisted that substituted Rules were not applicable in the cases of the petitioners as their fathers died before issuance of notification and substitution of Rule, which was a misconception of the law---High Court directed the competent Authority to consider the cases of the petitioners as per provisions of R.13-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 as substituted through notification dated 21-3-1998 and decide their cases strictly in accordance with law.?

Mohsin Javed for Petitioner.

Aminuddin Bazai, Additional Advocate-General for Respondents.

2010 P L C (C.S.) 853

[Quetta High Court]

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, JJ

ABDUL ALI

Versus

BALOCHISTAN PUBLIC SERVICE COMMISSION, through its Chairman and another

Constitution Petition No.197 of 2008, heard on 17th March 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner, pursuant to advertisement applied for the post of Assistant Engineer B-17 and appeared in the examination along with other candidates---Petitioner, on the basis of his success in written test, had sought declaration and direction to be given to the authorities/Commission so that recommendation be made for his appointment for the post of Assistant Engineer B-17---Petitioner, however, was completely silent-about his result to the extent of viva voce, which was also conducted by the Commission---Authorities stated that suitability of the candidate was determined on the basis of both written and viva voce test, while the petitioner could not qualify the viva voce test---Petitioner though had raised allegation of favouritism and nepotism on the part of the authorities, but it seemed to be mere assertion as no material relating to the same was. produced by the petitioner before the Court---Petitioner had not asserted that he had merits and candidate low in merit was recommended by the Commission, or zonal allocation was violated or lie had been deprived of his right---Allowing relief to the petitioner would mean that the persons thereby appointed on basis of recommendation of Commission would be placed out of service---Without giving such persons an opportunity of being heard, no order could be passed, which would affect their right---Petitioner having failed to make out any case in his favour, Constitutional petition was dismissed.

Miss Sarwat Hina for Petitioner.

Tariq Ali Tahir, Additional Advocate-General for Respondents.

Date of hearing: 17th March, 2010.

2010 P L C (C.S.) 1046

[Quetta High Court]

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J

ABDUL RAZAQ

Versus

GOVERNMENT OF BALOCHISTAN, COMMUNICATION WORKS, PHYSICAL PLANNING AND HOUSING DEPARTMENT, QUETTA through Secretary

Constitutional Petition No.552 of 2009, decided on 22nd February, 2010.

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

----Ss. 4 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer---Petitioner was transferred and assumed charge of the post where he was transferred, but within three months he was again transferred---Petitioner had impugned order of his transfer and contended that two illegalities were committed by the authorities while transferring him; firstly, he was not allowed to remain on the post at least for two years, while a junior officer of low grade was posted on the post, secondly action was taken in violation of policy laid down by the Government---Maintainability of constitutional petition was disputed by the authorities on the ground that dispute in respect of posting and transfer of a civil servant fell within the terms and conditions of service, which could not be challenged by invoking constitutional jurisdiction of High Court; further that the petitioner was not an aggrieved person within the meaning of Art.199 of the Constitution---Petitioner being a civil servant was liable to serve within the Province or outside, while competent authority had the power to make transfer and posting of its employees as per provisions of S.10 of Balochistan Civil Servants Act, 1974, to that extent no illegality was committed in the impugned notification---Act of transfer however was in violation of policy laid down by the Government---Transfer and posting of the petitioner were made only on wish of some Minister, which was neither legal nor proper---Though concerned authorities-had the power to make transfer and posting of their employees, but that power must be exercised with due care and caution and without male fide intention---Posting of an officer of lower grade on the post of higher grade in the presence of officer of similar grade was bad in eyes of law---As the posting and transfer of a civil servant was not included in the terms and conditions of his service, it would not come within the jurisdiction of Service Tribunal having exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servant---There being violation of law in respect of transfer, Service Tribunal had no jurisdiction to entertain the matter---In absence of any other adequate remedy available in the matter, the constitutional jurisdiction of High Court could be invoked by an aggrieved person and High Court had the jurisdiction to entertain constitutional petition---Impugned order was set aside, in circumstances.

?

Kamran Murtaza for Petitioner.

Date of hearing: 3rd December, 2009.

2010 P L C (C.S.) 1449

[Quetta High Court]

Before Qazi Faez Isa C. J. and Muhammad Noor Meskanzai, J

AIJAZ ALI

Versus

SECRETARY, GOVERNMENT OF BALOCHISTAN, LABOUR AND MANPOWER DEPARTMENT, QUETTA and another

Constitutional Petition No.414 of 2008, decided on 24th May, 2010.

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

----S. 5---Constitution of Pakistan (1973), Art.199---General Clauses Act (X of 1897), S.21---Constitutional petition---Appointment---Principle of locus poenitentiae---Applicability---Scope---Department advertised for the post of an office Assistant and petitioner who was serving in the department as Junior Clerk, considering himself eligible for the post of office Assistant, appeared as a candidate for said post---Committee, conducted the tests and interview, recommended two candidates for the posts---Petitioner was recommended to be kept in waiting list, subject to availability of the post of office Assistant in near future---Petitioner had contended that as he had qualified the interview, recommendation made by the Committee were binding and as post was lying vacant, he was entitled for appointment on said post---Counsel for the petitioner laid much stress on the principle of locus poenitentiae, contending that recommendation so made carried legal effect and in view of law of estoppel, authorities were bound to honour their recommendations---Validity---Petitioner did not qualify the standard for a variety of reason; firstly Committee was constituted for the limited purpose of conducting tests and interview for the post already created, available and published; Committee could not be deemed empowered to make recommendation for a post, not in existence; secondly, the recommendations so made were beyond the mandate and authority of the Committee; thirdly, the petitioner himself had declared the recommendations partly to be based on mala fide---Recommendations sought ' to be enforced by the petitioner, in circumstances, had no legal sanctity nor for that matter the Committee was empowered to interview a candidate in advance for the post not in existence nor published---Principle of locus poenitentiae was not available to the petitioner to maintain the petition---For attracting the principle of locus poenitentiae, the subject must be equipped with a valid right i.e. a legal order in favour of subject by a competent authority; and that should be communicated to an agency or office bound to carry it out---Said essential being lacking and missing, principle of locus poenitentiae, was neither applicable nor attracted to the case of the petitioner---Petitioner having failed to make out any case requiring High Court to exercise its constitutional jurisdiction, petition was dismissed.

PLD 1963 Dacca 442; PLD 1973 Quetta 14; 1997 SCMR 15; 1999 SCMR 1004; 2003 SCMR 819 and PLJ 2003 SC 145 (sic) ref.

Manzoor Ahmed Rehmani for Petitioner.

Rauf Atta Standing Counsel for Respondents.

Date of hearing: 10th May, 2010.

2010 P L C (C.S.) 1136

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Ibrahim Baloch and Muhammad Anwar Khan, Members

ABDUL NABI and others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education, Quetta and others

Service Appeals Nos.105, 183, 184, 186, 107 to 122, 124 to 128, 132 to 135 of 2004, decided on 30th October, 2009.

Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000)---

----Ss. 3, 5, 7, 9 & 10---Balochistan Service Tribunal Act (V of 1974), S.4---Termination of service---Appeal to Service Tribunal---Services of the appellants having been terminated, without any notice or giving them opportunity of hearing on certain allegations of misconduct, fraud and cheating, appellants had filed appeals against order of termination before Service Tribunal---In cases involving allegations of serious nature, inquiry was required to be conducted by the Inquiry Officer or Inquiry Committee, appointed by the competent Authority and on receiving finding of the inquiry, the competent Authority before passing an order under S.3(2)(a)(b) of Balochistan Province Removal from Service (Special Powers) Ordinance, 2000, would inform the accused in writing of the action proposed to be taken against them---In the present case one sided inquiry had been conducted by the Inquiry Officer without issuing the appellants notices and providing them an opportunity of hearing which resulted mis-carriage of justice---Cases were remanded to the competent Authority for disposing the representations of the appellants within three months inclusive of all fact findings.

Mrs. Syeda Tehmina for Appellants.

M. Salahuddin Mengal A.-G. for Respondents.

Date of hearing: 27th October, 2009.

2010 P L C (C.S.) 1172

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

MUHAMMAD ISMAIL

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education Department, Quetta and another

Service Appeal No.46 of 2004, decided on 18th December, 2009.

Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000)---

----Ss. 3, 5, 7 & 10---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, Rr.4, 5 & 6---Balochistan Service Tribunals Act (V of 1974), S.4---Termination of service---Appeal to Service Tribunal---Appellant while posted as Lecturer in Government College, was suspended on the basis of being found guilty of the offence of sodomy committed by him before joining his service---Enquiry was held against the appellant under R.5(1) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 and he was terminated from service---Representation of appellant before competent Authority had remained unturned---Appellant was also convicted by Military Court and was sentenced to suffer 5 years' R.I., whipping of fifteen times and fine---Counsel for appellant had contended that proceedings' against the appellant were invalid in view of the fact that inquiry was initiated under the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, while he was removed from service under provisions of Balochistan Province Removal from Service (Special Powers) Ordinance, 2000---Contention was devoid of force for the reason; that the disciplinary proceedings were initiated against the appellants prior to coming into force of the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 and it was to be completed under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 and not under the said Ordinance---When the law was altered during the pendency of an action, the rights of the parties were decided according to the law as it existed when the action was begun, unless the new statute would show a clear intention to vary such rights---Even otherwise no body could claim a vested right in procedure---Merely mentioning the words read with Balochistan Removal from Service (Special Powers) Ordinance, 2000, had not caused any defect in the proceedings as no prejudice had been caused to the appellant on merits---Said Ordinance as well Efficiency and Discipline Rules, 1992 were silent in respect of previous conviction, but certain laws existed wherein the convicted persons had been debarred from holding Public Office in future as provided under S.2 of the Qualification of Holding Public Office Ordinance, 2002 and Articles 62 and 63 of the Constitution---Under said laws previously convicted persons had not only been debarred from holding public office in future, but on the 'principle of expectancy, an opportunity of reform was also provided in order to reform themselves in a specific time---Appellant despite availing a long period, had not changed his life style and remained involved in notorious kind of activities---Services of the appellant, had rightly been terminated, in circumstances.

?

M.A. Chishti for Appellant.

M. Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 11th December, 2009.

2010 P L C (C.S.) 1302

[Service Tribunal Baluchistan]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

EJAZ AHMED

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Finance-cum-Director Local Fund Audit Finance Department, Balochistan and 3 others

Service Appeal No.40 of 2007, decided on 14th December, 2009.

Civil service---

----Employee on deputation---Repatriation---Effect on lien, seniority and promotion---Employee who was sent on deputation, subsequently was repatriated to his parent department; however, he was placed at Serial No.9 in the impugned seniority list and 8 employees who were most junior in appointment were shown senior to the employee in the list and repatriated employee was treated as fresh appointee---Validity---Government employee who was sent on deputation to serve borrowing department, would continue to hold his basic service cadre with parent department till his permanent absorption in the borrowing department---Lending department did not enjoy any power or authority under law to arbitrarily revoke or terminate lien of its employee temporarily serving in some other institution, statutory body or Government department as deputationist---Civil servant having not been confirmed in any of his subsequent job, his lien with his parent department would remain intact throughout; despite the fact that he joined service in another department or in an autonomous body--Lien of a civil servant could not be terminated even with his consent; and that same could be terminated only when he was confirmed against some permanent post---Nothing was available on record to show that employee in the present case was confirmed in the department in which he was sent on deputation---Civil servant after revertion to parent department would automatically regain his original seniority---Department was not justified while declining the grant of seniority and promotion to the employee---Impugned seniority list, in circumstances, was declared illegal and it was directed that same be revised, while placing the employee at Serial No.1 in the seniority list being senior.

Manzoor Ahmed Rehmani for Appellant.

Ijaz Sawati for Respondents Nos.3 and 4.

Tariq Ali Tahir, A.A.-G.

Date of hearing: 7th December, 2004.

2010 P L C (C.S.) 1357

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Naeem Galzai, Member-I and Muhammad Anwar Khan, Member-II

HANIF BALOCH and others

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary, Balochistan and others

Service Appeals Nos.53 and 4 of 2007, decided on 11th March, 2010.

Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Civil service---Adverse remarks, expunction of---Appeal to Service Tribunal---Case of the appellant for promotion was deferred for the reasons of his marks being less than minimum threshold and adverse remarks in his ACRs---Alleged adverse remarks were neither lenient nor advisory in nature---According to the rules, ACR for the year was to be completed within the prescribed period and not later than the month of June of next year---Adverse remarks should be communicated within prescribed period and in case of any unreasonable delay, the Authorities should explain the same with sufficient reasons, so that such remarks could be accepted as unbiased and effective---In the present case, the adverse remarks, in question had been communicated to the appellant after the meeting of Departmental Promotion Committee with unexplained delay of one year---Reporting Officer, in the case had given a good report in respect of performance of appellant and the adverse remarks had been made by the first and second countersigning officers---Reporting officer had opportunity to closely watch work and conduct of employee and was the best suited person to judge competence of person who was working under him for reporting period---Countersigning officer as per instructions was under obligation to give cogent/specific reasons for his disagreement with the views of reporting officer in order to justify his own assessment, which they had failed to do---Countersigning Authority in case of disagreement with the assessment of reporting officer was required to score out with red ink relevant column against which they had expressed their disagreement---Such mandatory provision had not been followed by Countersigning Officers---Alleged adverse remarks were unreasonable and contrary to law---Said remarks had been communicated to the appellant after unexplained delay which adversely reflected upon its authority---Adverse remarks stood expunged from ACRs of the appellant, in circumstances.

Mazhar Illyas Nagi for Appellants.

Advocate-General for Respondents.

Date of hearing: 30th December, 2009.

2010 P L C (C.S.) 1391

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

KHAN ZAIB and another

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and 2 others

Service Appeal No.38 of 2007, decided on 14th December, 2009.

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

----S. 9---Balochistan Service Tribunals Act (V of 1974), S.4---Promotion---Appeal to Service Tribunal---Appellants being degree-holders of Bachelor of Engineering in Civil Engineering, were appointed as Sub-Engineers in Irrigation and Power Department---Case of appellants was sent for promotion as Assistant Engineer (BPS-17) in respect of vacancies fallen vacant to the 10% quota for Sub-Engineers holding degree in Civil Engineering prior to induction in government service---Selection Board, however, declined to consider the case of the appellants on the ground of "length of service"---According to amended appendix, 10% of posts were to be filled by promotion among holder of the post of Sub-Engineers holding the degree-holders in Civil Engineering prior to induction in government service, which did not contemplate any length, of service---Refusal of the Selection Board to consider the appellants for promotion was based on erroneous view as well as misinterpretation of law and seemed to be discriminatory being conflict with the Balochistan Irrigation and Power Department Engineering (Civil, Electrical and Mechanical Grade-16 and above) Service Rules, 1981---Accepting the appeal, Authority concerned was directed to refer the case of appellants to the Provincial Selection Board for promotion as Assistant Engineers.

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

----S. 21---Power of Authority to vary, rescind or cancel order---Principle of locus poenitentiae---Applicability---Power of locus poenitentiae was available to the Government in order to retrace and undo the wrong order till a decisive step was taken---Authority that had power to make an order, had also the power to undo it, but that was subject to the exception that where the order had taken legal effect; and in presence thereof certain rights had been created in favour of any individual, such an order could not be withdrawn and rescinded to the detriment of those rights---Section 21 of General Clauses Act, 1897, postulated that the Authority which passed an order, was competent to vary, rescind or cancel the order passed by the Authority, but such power was not absolute as the same was subject to certain limitations---Where the order sought to be varied or cancel was communicated to other party, a very valuable right would accrue to the party and the issuing Authority would become functus officio to vary, rescind or cancel its earlier order.

H. Shakil Ahmed for Appellants.

M. Salahuddiin Mengal, A.-G. for Respondents.

Date of hearing: 19th November, 2009.

2010 P L C (C.S.) 1344

[Sindh Service Tribunal]

Before Justice (Retd.) Ghulam Nabi Soomro, Chairman Qazi Qamaruddin and Mrs. Akhtar A. Chaudhry, Members

ABDUL HAYEE KHOSO and others

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and others

Appeals Nos.223, 224, 225 and 226 of 2007, heard on 25th November, 2008.

(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr. 7 & 9-A---Sindh Service Tribunals Act (XV of 1973), S.4---Promotion and seniority---Two groups of Agriculture Officers i.e. "non-supervisory group" and "supervisory group" in the Department and for each group separate seniority lists were being maintained---Posts of "supervisory group" were promotion posts from "non-supervisory group "---Respondent who was Water Management Officer, was transferred and adjusted in Agriculture Extension Wing as Agriculture Officer of "non-supervisory group" and on his application, his name was included in the seniority list of "supervisory group" and being junior to appellants in "non-supervisory group" was given seniority over the appellants in "supervisory group"---Respondent was further promoted to B-18 on acting charge basis---Validity---Appointment of respondent from Water Management Wing to the Agriculture Extension Wing was made by transfer, however, as provided by R.7(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, it should have been made on the recommendation of appropriate Departmental Promotion Committee, but no such exercise was undertaken---Initial absorption of respondent being in non-supervisory group, his permanent absorption also could have been in the same group---Mere fact that respondent was posted as Deputy District Officer, which was a post of supervisory cadre, would not ipso facto create right in his favour to claim seniority in the supervisory group---Respondent who was much junior to appellants in BS-17, could not be absorbed is supervisory group over and above the appellants---Allowing seniority to respondent in supervisory group, appeared to be an act of acute favoritism which had caused undue loss of seniority and promotion to the appellants---Order allowing respondent seniority in the supervisory group was liable to be set aside, so also all the other orders/notifications based upon the same being illegal, were also liable to be set aside---Impugned orders to the extent of granting promotion to respondent to BS-18 on acting charge basis were set aside.

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

---S. 4---Appeal---Limitation---Earlier appeals of the appellants were disposed of and remanded with direction to appellate authority to decide the departmental appeals within 90 days; and in case no order was passed, the appellants would be at liberty .to file fresh appeals within next 30 days---Departmental appeals despite definite directions having not been decided within stipulated period, appeals filed by the appellants within 30 days, were legal, proper and maintainable.

Maula Bukhsh Khoso for Appellants.

Syed Kamil Shah, Asstt. A.-G. for Respondents Nos.1 and 2 along with Meer Muhammad Channa, Section Officer (Admn.I) Agriculture Department.

Date of hearing: 25th November, 2008.

2010 P L C (C.S.) 1457

[Sindh Service Tribunal]

Before Qazi Qamaruddin and Mrs. Akhtar A. Choudhry, Members

ASLAM PERVAIZ BHUTTA

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh and others

Appeal No.94 of 2009, decided on 31st March, 2010.

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

----S. 9-A---Sindh Service Tribunals Act (XV of 1973), S.4---Out of turn promotion---Appeal to Service Tribunal---Appeal had been directed against refusal of "out of turn promotion" for the gallantry performance exhibited by the appellant, whereas two subordinates of the appellant were awarded such promotion---Appellant who initially was appointed as a police constable and on account of his excellent service/duties record, hardwork, was promoted and confirmed as Sub-Inspector---Boy aged 17 years of age was kidnapped by unknown persons for ransom and investigation of the case was assigned to the appellant, who with the help of his fellow Police Officials arrested kidnappers in quick move---Appellant along with fellow Police Officials, not only saved the life of kidnapped boy, but also saved the ransom money of the father of the boy---For such bravery, appellant along with his team was recommended for promotion, but two of the team members who being junior extended assistance to the appellant had been promoted, but the appellant was denied the same---Validity---Held, it was very unfortunate that the two junior subordinates had been bestowed upon with "out of turn promotion" and the appellant who being team leader led the entire difficult task had been denied the same benefit of promotion---Appellant, admittedly had exhibited an act of gallantry while performing his duties---Conditions as envisaged in S.9-A of Sindh Civil Servants Act, 1973, for "out of turn promotion", having been fulfilled, appellant qualified to get benefit as recommended---Recommendation letter was comprehensive, persuasive and elaborating all the facts of the gallantry performance of the appellant---Action of authorities in denying the "out of turn promotion" to the appellant, was discriminatory and in contradiction of law---Appellant who was meted out with discriminatory treatment, deserved to be awarded with "out of turn promotion" to the rank of Inspector as given to his subordinates.

Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814; Guzlar Ali Khuskh and others v. Province of Sindh and others C.P. No.D-2448 of 2008; Muhammad Zafarullah v. Inspector-General of Police, Punjab, Lahore and others 1992 PLC (C.S.) 1029; Abid Hussain and others v. PIAC and others 2005 SCMR 25; Mrs. Nasim Habib Shahzada v. Secretary to Government of Punjab, Education Department, Lahore 1984 PLC (C.S.) 754; Dr. Hafiz Ahmed Khan v. Secretary Establishment Division 2000 PLC (C.S.) 553; Asadullah Mangi v. P.I.A.C. and others 2005 PLC (C.S) 771; 1991 SCMR 1041; PLD 1993 SC 341; 1997 SCMR 641; 2004 YLR 1856; 2004 CLC 1353; The Chief Secretary, Government of Punjab v. Raja Mumtaz Ahmed, Superintendent of Police, CIA Staff, Rawalpindi 1996 SCMR 1945; Talat Qamar v. Zafar Iqbal, Collector Customs (Preventive) and 3 others 2002 PLC (C.S.) 1506; M. Rahim Khan v. Chief Secretary N.-W.F.P. 1999 SCMR 1605=1999 PLC (C.S.) 1368 and Syed Badaruddin and 10 other v. Government of N.-W.F.P. through Agriculture Forest and Cooperative, Peshawar and 11 others PLD 1994 SC 345; and 1996 SCMR 1945 ref.

(b) Limitation---

---When limitation issue was not raised earlier, same would become devoid of force.

1995 PLC (C.S.) 803 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---Estoppel---Limitation---Illegal acts would remain illegal and would not become legal with efflux of time---Principle of estoppel or limitation would not apply to the illegal acts.

Aminuddin Ahmed v. Afzal Shah and others 2000 PLC (C.S.) 166 rel.

M. Abbas Bhutta for Appellant.

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

Date of hearing: 15th March, 2010.

2010 P L C (C.S.) 265

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sayed Zahid Hussain, JJ

Dr. MEHMOOD AHMED

Versus

SECRETARY, LOCAL GOVERNMENT and others

Civil Petition No.1525-L of 2009, decided on 4th September 2009.

(On appeal against the order, dated 6-7-2009 passed by Lahore High Court, Lahore in I.C.A. No.562 of 2009).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service---Grant of allowance---Leave was granted, inter alia, to consider whether, having served as Medical Officer for more than three decades and in absence of the requirement of M.B., B. S. as qualification could the petitioner be refused the Health Sector Reforms Allowance.

Dr. Ehsan-ul-Haque Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2010 P L C (C.S.) 297

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

HAMIDA BEGUM

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through Secretary and others

Civil Petition No.1587 of 2008, decided on 4th August, 2009.

(On appeal from the judgment, dated 11-11-2008 of the Islamabad High Court, Islamabad passed in I.C.A. No.93 of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan (1973), Arts.185(3)---Deputation---Repatriation to parent department---Civil servant was employee of Provincial Government and was on deputation in Education Department, Government of Pakistan.--Authorities issued order for repatriation of civil servant to her parent department but she wanted to be absorbed permanently---Validity---Civil servant held lien in her parent department of the province and could not be absorbed permanently for want of concurrence of Provincial Government, but such concurrence was not conveyed to Federal Government---Civil servant was repatriated to her parent department but no response was shown by her parent department nor concurrence of Provincial Government for permanent absorption of civil servant was conveyed in absence whereof, service of civil servant could not be absorbed in the concerned department of Federal Government even if she held requisite qualification and eligibility for such absorption---Civil servant also did not approach to Provincial Government for the purpose of grant of "No Objection Certificate" and. consequently in terms of an earlier order passed by Supreme Court, the office order issued by Federal Government for repatriation of civil servant held the field---Judgment passed by High Court was not open to any exception and Supreme Court declined to interfere in the same---Leave to appeal was refused.

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Shah Khawar, D.A.-G., Arshad Anjum, A.D. (FDE), Hadayatullah S.O. (Education), Peshawar for Respondents.

Date of hearing: 4th August, 2009.

2010 P L C (C.S.) 306

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MUHAMMAD SALEEM

Versus

CHIEF EXECUTIVE OFFICER and another

Civil Petition No.1585 of 2008, decided on 7th October, 2009.

(On appeal from the judgment, dated 30-9-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.454(R)CE of 2005).

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

----Ss. 3 & 5---Compulsory retirement---Failure to hold formal inquiry---Scope---Civil servant was issued show-cause notice on allegation of acquiring assets beyond known sources of income and he was compulsorily retired from service without holding formal inquiry---Validity---Allegations levelled against civil servant were of the nature which required production of evidence to prove the same---Competent authority, under S. 5 (1) and (4) of Removal from Service (Special Powers) Ordinance, 2000, had to first decide whether to appoint Inquiry Officer or inquiry Committee to scrutinize conduct of a person in government service or a person in corporation service who was alleged to have committed any acts or omissions specified in S. 3 of Removal from Service (Special Powers) Ordinance, 2000, or that there was no need of holding any inquiry as it was in possession of sufficient documentary evidence against accused to proceed without holding any inquiry---Civil servant had a right to know nature of documentary evidence in possession of competent authority on the basis of which competent authority decided not to hold inquiry and did not provide opportunity to him, to put his defence---Supreme Court set aside order and judgment passed by authorities and Service Tribunal respectively---Appeal was allowed.

Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez 2009 SCMR 329; Muhammad Haleem and another v. General Manager" (Operation) Pakistan Railways Headquarter, Lahore and another 2009 SCMR 339; Zarar Khan v. Government of Sindh and others PLD 1980 SC 310 and Ghulam Hadi Baloch v. Gollector of Customs (Preventive) and others 1987 SCMR 602 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Petitioner.

Aurangzeb Mirza, Advocate Supreme Court for Respondent No.1.

Date of hearing: 7th October, 2009.

2010 P L C (C.S.) 327

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

Dr. PAKIZA RAZA HYDER

Versus

MINISTRY OF HEALTH and others

Civil Petition No.148 of 2009, decided on 28th September, 2009.

(On appeal against the order, dated 6-1-2009 passed by Federal Service Tribunal, Islamabad in Appeal No.911 (R)(C.S.) of 2007).

Civil Servants Act (LXXI of 1973)---

----S. 9---Civil Procedure Code (V of 1908), O.II, R.2---Constitution of Pakistan (1973), Art.212(3)---Promotion---Relief, omitting of---Effect---Raising of new plea---Petitioner was aggrieved of promotion of respondent and filed appeal before Service Tribunal which appeal was dismissed---Validity---Question of promotion was a matter of determination by relevant authorities/forum/Board on the basis of eligibility of aspirants---Supreme Court abstained from expressing an opinion on suitability of any of the contending parties---Eligibility of respondent for promotion was not subject-matter of petitioner's appeal before Service Tribunal, therefore, the same could not be a subject of ad judgment by Supreme Court---Having forsaken her challenge to promotion of respondent and thus his qualification and seniority thereof, the petitioner was precluded from challenging promotion of respondent because criterion for eligibility to both BS-18 and 19 was the same---Petitioner in her appeal omitted to sue respondent on the ground of his purported lack of qualification/eligibility to promotion wherefore she was debarred from suing respondent on the basis of omitted claim under the provisions of O.II, R.2, C.P.C.---Indolence of petitioner and purported unawareness of comparative qualification of respondent did not constitute sufficient ground for earning condonation of delay from Service Tribunal whose exercise of discretion against petitioner was unexceptionable---Leave to appeal was refused.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Shah Khawar, D.A.-G. with Abid Hussain Channa, S.O. for Respondent No.1.

Shoaib Shaheen, Advocate Supreme Court for Respondent No.2.

Fawad Saleh, Advocate Supreme Court for Respondent No.3.

Date of hearing: 28th September, 2009.

2010 P L C (C.S.) 357

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

Mrs. RASHIDA ASIF

Versus

Mrs. AASIA GONDAL and others

Civil Petition No.1206 of 2008, decided on 19th June, 2009.

(On appeal from the judgment, dated 30-6-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.43(R)(C.S.) of 2005).

Civil Servants Act (LXXI of 1973)---

----S. 8---Constitution of Pakistan (1973), Art.212(3)---Seniority---Determination---Grievance of petitioner was that respondent was junior to her but she had been placed senior to her in seniority list---Validity---In provisional seniority list and final seniority list, petitioner was shown as junior to respondent and that position was never objected or challenged---Petitioner got up from deep slumber after so many years for the reason best known to her---Supreme Court found it too late to reverse existing seniority position which was determined in year, 1995---It was not discretion of competent authority to change seniority position assigned to a Government employee without any lawful justification---Petitioner failed to raise substantial question of law of public importance and in absence whereof leave to appeal might not be granted---No infirmity or illegality could be pointed out in the judgment passed by Service Tribunal and the same being unexceptionable and well based did not warrant interference---Leave to appeal was refused.

WAPDA v. Abbas Ali Malano 2004 PLC (C.S.) 1; Ikram Bari and 524 others v. National Bank of Pakistan through President and others 2005 SCMR 100; Bashir Ahmad v. Mahmud Ali Khan PLD 1960 SC 195; Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Water and Power Development Authority v. Abdur Rashid Dar 1990 SCMR 1513; Sher Bahadar v. Government of N.-W.F.P. 1990 SCMR 1519; Nazakat Ali v. WAPDA 2004 SCMR 145; Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; M.A. Majid v. Government of Pakistan 1976 SCMR 311; Director Food v. Rashid Ahmad 1990 SCMR 1446; 1990 SCMR 560; Province of Punjab through A.I.G. P., Lahore v. Rao Abdul Jalil Khan 1939 SCMR 330; Sattan v. Rani 1989 SCMR 1677; Government of Punjab v. Khali.: Hussain Gill 1989 SCMR 748; Abdul Razaq v. Province of Punjab 1980 SCMR 876; Muhammad Yaqub Sheikh v. Government of the Punjab through Secretary, Local Government and Rural Development 1987 SCMR 1354 and Babar Gul v. Sohail Ahmad Sheikh 2002 SCMR 581 rel.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Qari Abdul Rashid, Advocate Supreme Court for Respondent No.1.

Safdar Shah (I-Officer) for Respondents Nos.2 to 4.

Date of hearing: 19th June, 2009.

2010 P L C (C.S.) 367

[Supreme Court, of Pakistan]

Present: Javed Iqbal and Sarmad Jalal Osmany, JJ

Dr. SHAFI-UR-REHMAN AFRIDI

Versus

C.D.A., ISLAMABAD through Chairman and others

Civil Petition No.204 of 2009, decided on 2nd April, 2009.

(On appeal from the order, dated 10-2-2009 passed by the Islamabad High Court, Islamabad in Writ Petition No.1664 of 2008).

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

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Constitutional jurisdiction---Terms and conditions of service---Deputation---Repatriation before time---Civil servant went on deputation but he was returned to his parent department before termination of his period of deputation---Civil servant assailed order of termination of deputation before High Court in Constitutional petition, which petition was dismissed---Validity---In absence of any specific provision of law, deputationist could not ask to serve total period of deputation and he could be repatriated being a deputationist by competent authority in the interest of exigency of service as and when so desired and such order of competent authority could not be questioned---Provisions of Civil Servants Act, 1973, and rules made thereunder, as well as ESTACODE were silent about the fact that a deputionist must serve his entire period of deputation. and such omission seemed deliberate enabling the competent authority to utilize service of an employee in the manner as it might deem fit and proper---Period of deputation could at the best be equated to that of an expression of maximum period which could be curtailed or extended by competent authority and no legal or vested rights were available to a deputationist to serve his entire period of deputation in borrowing department---Question as to whether any valuable right whatsoever was accrued in favour of petitioner as deputationist did not squarely fall within the jurisdictional domain of competent authority and might be agitated subject to all legal exceptions---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Sheikh Abdul Rahim's case PLD 1964 Lah. 376, Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839; Government of Pakistan v. Prof. M.A. Saeed C.P.No.427-L of 1991 and Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.) 243. rel.

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

----Art. 199---Constitutional petition before High Court---Scope---Vested right---Aggrieved person'---Deputation of civil servant---Scope---Civil servant has no vested right to complete deputation period and matter relating to terms and conditions of service---Constitutional jurisdiction as conferred upon High Court under Art.199 of the Constitution cannot be invoked---Deputationist cannot be treated asaggrieved person' provided he was placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputionist---Such civil servant has no vested right to remain on a post as deputionist forever or for a stipulated period as mentioned in notification and can be repatriated at any time.

Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13; PLD 1964 (W.P.) Lah. 376; Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320; Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515; Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 175; Ayyaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123; 1997 SCMR 169; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 PLC (C.S.) 124; 1997 SCMR 170; Abdul Khaliq Anjum v. Secretary Education 1998 PLC (C.S.) 839 and Muhammad Rafique v. Secretary Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631 rel.

(c) Words and phrases---

----'Legal right'---Defined.

Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618; Anandrao v. Board of Revenue AIR 1965 Madh. Pra. 237; Daniel v. State 1968 AIR Mad 349 and Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 rel.

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

----S. 10-'Deputation'-Connotation---Deputation can be defined as an administrative arrangement between borrowing and lending authorities for utilizing services of an employee in public interest and exigency of services against a particular post---Deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his own whims and wishes.

Sardar Muhammad Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 2nd April, 2009.

2010 P L C (C.S.) 402

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

CHAIRMAN DR. A.Q. KHAN, RESEARCH LABORATORIES and another

Versus

Malik MUHAMMAD HAMID ULLAH KHAN

Civil Petition No.1508 of 2009, decided on 21st August, 2009.

(On appeal from the judgment dated 29-6-2009 passed by the Federal Service Tribunal, Islamabad in Appeal No.33(R)CE/2004).

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

----S. 5--Granting of relief by Service Tribunal---Scope---Service Tribunal enjoys powers under S.5 of Service Tribunals Act, 1973, to modify any order but such power is to be exercised judiciously.

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

----S. 5---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Service Tribunal, jurisdiction of-Modifying of penalty---Scope---Civil servant was charged with absent without leave and he was dismissed from service but Service Tribunal converted the penalty into compulsory retirement---Validity---Courts/Tribunals seized with the matter were required to pass order strictly within parameters of the Constitution and law and rules---Service Tribunal did not have any jurisdiction to grant arbitrary relief in favour of any person---Observation of Service Tribunal which was incorporated in its judgment in two lines was without any reason, law on subject, as well as under rules and the same was not sustainable---If Service Tribunal tad decided to modify the decision, then it could have referred previous record of civil servant to show indulgence---Past record of civil servant was mentioned in one of the grounds of charge sheet wherein it was mentioned that earlier also, three warnings/discipline violation letters were issued to the civil servant for unauthorized absence---Service Tribunal exceeded its authority in granting relief to civil servant thus judgment of Service Tribunal was not sustainable in law---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Appeal was allowed.

Muhammad Aslam Uns, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 21st August, 2009.

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2010 P L C (C.S.) 451

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

IFFAT JABEEN

Versus

DISTRICT EDUCATION OFFICER (M.E.E.) LAHORE and another

Civil Appeal No.592 of 2006, decided on 2nd October, 2009.

(On Appeal from the judgment, dated 22-7-2005 passed by the Punjab Service Tribunal, Lahore, in Appeal No.2396 of 2003).

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

---Rr. 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider the contention of petitioner that she was graduate at the time of her appointment and thereafter, she further improved her educational qualification as M.A., B-Ed and C.T. during her service and order passed by authorities of removal of petitioner from service was not sustainable at law inasmuch as there was no concealment or misrepresentation of any material fact on the part of her who had rendered satisfactory service before removal from service and further contended that quantum of punishment did not commensurate the nature of charge.

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

----Rr. 5 & 6---Removal from service---Imposing of major penalty---Concealing of facts---Civil servant was appointed as untrained teacher but she received salary of regular teacher---Authorities removed the civil servant from service on the allegation of securing service by playing fraud with authorities---Validity---During her service, civil servant improved her qualification as M.A., B-Ed and C.T. and also gained experience as a teacher for ten years---Service Tribunal decided the case in violation of dictum laid down by Supreme Court and even without perusing record after application of mind, as the same was a condition precedent for passing a decision---Supreme Court set aside the judgment passed by Service Tribunal and reinstated the civil servant in service without back-benefits in accordance with law, as she did not perform any duty---Appeal was allowed.

Zulfiqar Ali's case 2006 SCMR 678; Abdul Waheed's case 2004 SCMR 303; Secretary to Government of N.-W.F.P.'s case 1996 SCMR 413; Abdul Hafeez Abbasi's case 2002 SCMR 1034; G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

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

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

(d) Administration of justice---

----Application of correct law---Improper advice of counsel---Effect---Judge must wear all laws of country on the sleeves of his robe and failure of counsel as to properly advice him is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Appellant.

Saeed Yousaf Khan, Additional Advocate-General Punjab, Ch. Muhammad Aslam, Law officer/Assist ant Education Officer, D.E.O. Office, Lahore for Respondents.

Date of hearing: 2nd October, 2009.

2010 P L C (C.S.) 488

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

MUHAMMAD HASEEB

Versus

GENERAL MANAGER, PRODUCTION WEAPONS POF, WAH CANTT. and others

Civil Petition No.2136 of 2009, decided on 14th January, 2010.

(Against the judgment dated 17-10-2009 passed by Federal Service Tribunal, Islamabad in Appeal No.979(R)(C.S.) of 2003).

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

---S. 5---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Reinstatement in service---Jurisdiction of Service Tribunal---Right of hearing---Civil servant assailed order of his compulsory retirement before Service Tribunal and sought reinstatement into service along with appeal, civil servant submitted application for temporary injunction seeking orders to restrain authorities from ejecting him from official residential quarter---Service Tribunal disposed of the main appeal with direction to the authorities to allow him pensionary benefits---Plea raised by civil servant was that instead of deciding appeal on merits, Service Tribunal disposed of the same on the ground that his grievance was only that his pensionary benefits were not being paid to him---Validity---No arguments were advanced by both the sides on merits, therefore, for such a reason, it was incumbent upon Service Tribunal to have either confined itself to the extent of disposal of application and at the same time appeal should have been decided on merits which was a due right of a litigant---Person who put in 17 years of service and had been waiting for result of his appeal for. more than 6 years before Service Tribunal and was interested for grant of interim injunction against officials not to dispossess him from official residential quarter, such person besides requesting for reinstatement would not alone confine himself to the extent of payment of pensionary benefits alone which otherwise being his right were available to him under the rules---There was no necessity for passing such order nor the same was prayer in appeal or application---If civil servant was interested only to get pensionary hone fits, he would have approached department at early stage who were bound to pay the same---It was right of civil servant that he should have been given hearing and after noting his contentions and law on the subject, as well as the precedent judgments case should have been disposed of---Supreme Court set aside judgment passed by Service Tribunal and remanded the case to Service Tribunal for disposal of the same in accordance with law---Appeal was allowed.

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

----Art. 212(2)---Service Tribunal, duty of---Scope---Service Tribunal is, though a Constitutional Tribunal for the purpose of Art. 212 (2) of the Constitution but it does not mean that it has not to follow the principles of justice---Service Tribunal is duty bound to dispose of matters judiciously instead of dismissing appeals in the manner which is not recognized under any principle of law.

Haider Hussain, Advocate Supreme Court and M.S Khattak, Advocate-on-Record for Petitioner.

Khadim Hussain, Manager (Legal) POF for Respondents.

2010 P L C (C.S.) 495

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Sair Ali, JJ

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

Versus

AHMAD YAR KHAN

Civil Appeal No.2142 of 2006, decided on 2nd November, 2009.

(On appeal from the judgment, dated 8-5-2004 passed by Punjab Service Tribunal, Lahore in Appeal No.4 of 2004).

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

----S. 3(1)(e)---Punjab Local Councils (Audit) Rules, 1981, R.27---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider whether civil servant could be dealt with under Punjab Local Councils (Audit) Rules, 1981, simultaneously or subsequently to disciplinary proceedings taken under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000; and whether penalty of recovery of Rs.371,836 was justifiable in the facts and circumstances of the case.

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

----Art. 13---Criminal Procedure Code (V of 1898), S.403---Double jeopardy, principle of---Scope---No person can be punished twice for the same offence.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Delay, condonation of---Effect---Sufficiency of cause for condonation of delay being question of fact is within exclusive jurisdictional domain of Service Tribunal---Once discretion of condoning of delay has been exercised by Service Tribunal, it can neither be interfered with nor disturbed by Supreme Court.

Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhaar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Yousaf Khan Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1576 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

(d) Civil service---

----Departmental and criminal proceedings---Scope---Simultaneous action under disciplinary rules and criminal law can be initiated subject to certain legal exceptions.

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

---Ss. 3(1)(e) & 11---Punjab Local Councils (Audit) Rules, 1981, R.27---Constitution of Pakistan (1973), Arts.13 & 212---Double jeopardy, principle of---Applicability---Civil servant was awarded penalty of censure under S.3 (1)(e) of Punjab Removal from Service (Special Powers) Ordinance, 2000, by competent authority---Penalty of censure was not challenged by civil servant but authorities later on imposed recovery of Rs.371,836 against him under R.27 of Punjab Local Councils (Audit) Rules, 1981---Validity---Action against civil servant had already been finalized and penalty imposed under Punjab Removal from Service (Special Powers) Ordinance, 2000, had already attained finality---Recovery could have been made by competent authority but only minor penalty was imposed probably for the reason that civil servant had been exonerated by inquiry officer regarding alleged loss suffered due to Octroi contract allegedly executed by the civil servant---Supreme Court declined to interfere in the judgment passed by Service Tribunal as it had rightly set aside the order passed by the authorities---Appeal was dismissed.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court for Appellants.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents.

Date of hearing: 2nd November, 2009.

2010 P L C (C.S.) 504

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

SALIM KHAN

Versus

SECRETARY, GOVERNMENT OF N.-W.F.P., HIGHER EDUCATION DEPARTMENT, PESHAWAR and others

Civil Petition No.1 of 2010, decided on 8th January, 2010.

(Against the judgment, dated 4-11-2009 passed by Peshawar High Court, Peshawar in Writ Petition No.492 of 2009).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service---Selection for post---Experience---Proof--Substituting finding of fact---Petitioner alleged that he had more experience than the respondent who was selected by authorities for the post in question---Validity---High Court had given finding of fact against petitioner who failed to show any document regarding his experience---Supreme Court while exercising power under Art. 185 (3) of the Constitution, had no jurisdiction to substitute its own finding in place of finding recorded by High Court in its judgment---Supreme Court did not find any infirmity or illegality in the judgment passed by High Court and petitioner had failed to raise any question of public importance---Constitutional jurisdiction was discretionary in nature and Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Ata Ullah Malik's case PLD 1964 SC 236 rel.

Qari Abdul Rasheed, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 P L C (C.S.) 532

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

ASAD KHAN MENGAL and others

Versus

MUHAMMAD AFZAL SHOUQ and others

Civil Appeal No.46-Q of 2009, decided on 8th March, 2010.

(On appeal from the judgment, dated 3-5-2007 passed by the Balochistan Service Tribunal, Quetta in S.A. No.59 of 2003).

(a) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that merely because respondents claimed that they possessed required qualification or that there were vacancies, Service Tribunal had no justification to order retrospective promotion of respondents with effect from 18-1-1992, which order was in excess of jurisdiction and against the promotion policy/rules and Service Tribunal erred in law to treat officiating promotion as regular promotion.

H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd, Karachi and another PLD 1969 SC 65; Government of Pakistan through Secretary Establishment Division v. Bashir Ahmed Khan PLD 1985 SC 309 and Muhammad Iqbal Fraooqi v. Secretary Irrigation and Power Department and others 1987 PLC (C.S.) 25 ref.

(b) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Necessary party---Non-impleading of---Remedy for party not impleaded---Principles of natural justice---Applicability---Appeals filed by respondents were allowed by Service Tribunal and they were promoted retrospectively---Grievance of appellants was that they were not impleaded in the appeals before Service Tribunal, as they were necessary party to the proceedings---Validity---No fault could be attributed to appellants for non-impleadment, as it was for the respondents to get appellants impleaded being necessary party but they were not arrayed as respondents before Service Tribunal for the reasons known to respondents---Appellants could not be left without remedy especially when they were adversely affected by the judgment of Service Tribunal---Supreme Court set aside judgment passed by Service Tribunal and case was remanded to Service Tribunal for decision afresh---Supreme Court directed Service Tribunal to implead appellants as necessary party and to provide proper opportunity of hearing to all of them---Appeal was allowed.

Sm K. Pannalagu Ammal v. The State of Madras and others AIR 1953 Mad. 485; An Infant 1958 1 QB 12; J Rustamji of Lahore v. Official Liquidator of the People's and Amritsar Bank Ltd. and another AIR 1919 Lah. 180; Indian Bank Ltd, Madras v. Saith Bansiram Jashmal Firm and another AIR 1934 Mad 360; Al-Kistan Transport Co., Ltd. v. Regional Transport Authority, Lahore PLD 1961 Lah. 723 and H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadr, Advocate-on-Record for Appellants.

Kamran Murtaza, Advocate Supreme Court for Respondents Nos.1 to 7.

Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.8 to 10.

Date of hearing: 25th November, 2009.

2010 P L C (C.S.) 547

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

OIL AND GAS DEVELOPMENT COMPANY and others

Versus

NAZAR HUSSAIN and others

Civil Appeals Nos.1124 to 1126 of 2009, decided on 18th January, 2010. (On appeal against the judgment, dated 10-4-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos.740, 913 and 925(R)(C.E.) of 2004).

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

----S. 5---Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001), S.5---Oil and Gas Development Corporation Service Regulations, 1994---Constitution of Pakistan (1973), Art.212---Reinstatement in service---Employees of Oil and Gas Development Corporation---Status of civil servant---Respondents were dismissed from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000 but Service Tribunal reinstated them in service---Plea raised by authorities was that assumption of jurisdiction by Service Tribunal was not tenable as the Corporation was not being governed by statutory rules---Validity---Employees of Oil and Gas Development Company continued to be governed under Service Regulations framed in the year, 1994, unless those were varied and amended or repealed as the case could be---Principal accused who allegedly transported joint pipes in question, was reinstated into service by authorities who were not able to point out pecuniary loss suffered by the company---Alleged pipes had been recovered and were restored to Company---Supreme Court declined to interfere in the judgment passed by Service Tribunal as no question of law of public importance within the meaning of Art. 212 of the Constitution was raised---Authorities failed to point out any illegality to warrant interference by Supreme Court---Appeal was dismissed.

State Bank of Pakistan through Board SBP and others v. Agha Muhammad Aurangzeb Khan C.P. 318 of 2005 and C.Ps. Nos.1359 to 1361 of 2009 ref.

Ch. Naseer Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents.

2010 P L C (C.S.) 559

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmad, JJ

MUHAMMAD ZAHEER KHAN

Versus

GOVERNMENT OF PAKISAN through Secretary, Establishment and others

Civil Appeal No.762 of 2002, decided on 9th October, 2009.

(On appeal from the judgment, dated 6-11-2000 of the Federal Service Tribunal, Islamabad passed in Appeal No.1142(R) of 1998).

Fundamental Rules---

----R. 54-A ---ESTACODE, R.6(3)---Disciplinary proceedings---Attaining the age of superannuation---Effect---Principle of audi alteram partem---Applicability---Civil servant was dismissed from service on the charge of misconduct and dismissal order was maintained by Service Tribunal---Plea raised by civil servant was that during departmental inquiry he was condemned unheard as he was not provided any opportunity to cross examine the witnesses who appeared against him---Validity---Whether Estacode provided to an officer under inquiry any opportunity of hearing or not, was altogether immaterial because even if not provided (which it had), the principle of audi alteram partem was to be read as a part of every statute, Rule or Regulation---Pending disciplinary proceedings against civil servant abated if the latter had attained the age of superannuation---Such civil servant was entitled under Fundamental Rule, 54-A to retire with full pensionary benefits and period of suspension was bound to be treated as period spent on duty---Civil servant was condemned unheard and the order of his dismissal from service suffered from mala fide of law---Supreme Court declined to send the matter back to department for holding de novo inquiry and set aside the judgment and order passed by Service Tribunal and authorities respectively---Appeal was allowed.

Tulsi Ram Patel's case AIR 1985 SC 1416; National Bank of Pakistan v. Muhammad Iqbal 1986 SCMR 234; Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999; Deputy Director Food v. Akhtar Ali 1997 SCMR 343; Secretary to Government of N.-W.F.P. v. Saifur Rehman 1997 SCMR 1073; Syed Sajjad Haider Kazmi's case 2007 SCMR 1643; Bilquis Nargis' case 1983 PLC (C.S.) 1141; Abdul Wali 2004 SCMR 678 and Muhammad Akhtar's case 2007 PLC (C.S.) 400 rel.

Abdul Rahim Bhatti, Advocate Supreme Court for Appellant.

Agha Tariq Mehmood, D.A.-G. for Respondents.

Date of hearing: 9th October, 2009.

2010 P L C (C.S.) 566

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

Haji ZAHIR ALI and others

Versus

GOVERNMENT OF BALOCHISTAN and others

Civil Petition Nos.63-Q, 1241 to 1244, 1269 to 1271 of 2009, decided on 2nd February, 2010.

(Against the judgments, dated 30-3-2009 passed by the High Court of Balochistan, Quetta in C.P. No.137 of 2000 and dated 26-5-2009 passed by the High Court in Sindh Karachi, in C.Ps. Nos.D-964, 963, 965, 968, 828, 966 and 962 of 2008).

Constitution of Pakistan (1973)---

----Arts. 2, 2-A, 3, 4, 5(2), 25 & 185(3)---Civil service---Termination of service of contract employees by Excise and Customs Departments and non-consideration of their cases under newly enforced regularization policy---Order of High Court dismissing such petition considering petitioners as civil servants while directing authorities to consider them in process of selection---Validity---Plea of petitioners was that initial contract period of 12 months was extended from time to time till termination of their services; that they performed their duties diligently without any complaint from authorities and gained experience in relevant field; that authorities had not considered their cases in such policy, though had regularized service of their other colleagues, which fact was not denied by authority in their comments; that impugned act of authorities was violative of provisions of Arts.2, 2-A, 3, 4, 5(2) and 25 of the Constitution guaranteeing social and economic justice to its citizen and public functionaries were bound to obey commands of the Constitution---Supreme Court granted leave to appeal to consider, inter olio, such contentions of petitioners.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioner (in C.P. No.63/Q of 2009).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.1241 to 1244 and 1269 to 1271 of 2009).

Agha Tariq Mehmood, D.A.-G. and M.S. Khattak, Advocate­-on-Record for Respondents (in all cases).

2010 P L C (C.S.) 572

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SHAFI MUHAMMAD SAND

Versus

GOVERNMENT OF SINDH through Chief Secretary and another

Civil Petition No.267-K of 2008, decided on 4th November, 2009.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1990---

----R. 4---Constitution of Pakistan (1973), Art.212(3)---Recovery of loss to government from pension/commutation of petitioner---Imposition of such penalty after retirement of petitioner from service---Plea of respondent that after his dismissal from service, he was reinstated by Chief Minister in review petition with minor penalty imposed on him, but in order of his reinstatement in service issued on 5-9-1997 by government, there was no mention of any minor penalty; that subsequently when he retired from service, government passed an order imposing such penalty of recovery, which could not be done without due notice to him and a proper inquiry under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990, which exercise had not taken place---Dismissal of petitioner's appeals by departmental authority and Service Tribunal---Validity---Petitioner, prima facie, appeared to have bee condemned unheard---Supreme Court granted leave to appeal in circumstances.

Ansari Abdul Latif Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Date of hearing: 4th November, 2009.

2010 P L C (C.S.) 579

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI and others

Versus

HAFEEZULLAH KHAWAJA

Civil Petition No.404-K of 2009, decided on 11th June, 2009.

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

----S. 11---Sindh Civil Servants (Efficiency and Discipline) Rules, 1990, Rr.4 & 5---Constitution of Pakistan (1973), Arts.185(3) & 199---Removal from service---Initiation of disciplinary proceedings against respondent on 19-6-2004 under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990 after promulgation of Sindh Removal from Service (Special Powers) Ordinance, 2000---High Court set aside such penalty while accepting respondent's constitutional petition---Validity---Supreme Court granted leave to appeal to consider as to whether High Court was justified in holding that provisions of S.11 of the Ordinance had overriding effect over all laws though S.1J thereof states that provisions of the Ordinance shall have effect notwithstanding anything contrary to Sindh Civil Servants Act, 1973 and rules made thereunder and any of:.; law for the time being in force, whether high Court did not misapply law laid down by Supreme Court in judgments reported as 2007 SCMR 229, 2007 PLC (C.S.) 1288 and 2004 PLC (C.S.) 1187 and whether High Court did not err in law while holding that initiation of disciplinary proceedings against respondent on 19-6-2004 under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990 after promulgation of Sindh Removal from Service (Special Powers) Ordinance, 2000, final order stood vitiated.

Muhammad Tasnim and Ahmadullah Faruqi for Petitioners.

Nemo for Respondent.

2010 P L C (C.S.) 584

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

MUHAMMAD IQBAL and others

Versus

LAHORE HIGH COURT through Registrar and others

Civil Appeals Nos.338, 339, 340 and 342 of 2006, decided on 1st February, 2010.

(On appeal from judgment of Lahore High Court, Lahore, dated 11-11-2005 passed in Writ Petitions No.10485, 10767, 10769 and 13972 of 2005 respectively).

Punjab Judicial Service Rules, 1994---

----R. 4---Notification No.SOR-IV(E&AD), dated 3-11-2001 issued by the Government of N.-W.F.P.---Constitution of Pakistan (1973), Arts.192 & 199---Constitution petition challenging non-selection of petitioner by High Court as Additional and Sessions Judge---Dismissal of such petition by High Court for being not maintainable against impugned order protected under Art.199(5) of the Constitution---Validity---In cases of appointment, both Lahore High Court and Peshawar High Court or the Chief Justice exercise delegated powers of Governor of their respective Provinces as appointing authority---According to Art.192 of the Constitution, Chief Justice along with other Judges would constitute a `High Court'---All judicial orders passed by a High Court could be challenged in accordance with Constitution or law---All non judicial or administrative orders of High' Court were protected under Art.199(5) of the Constitution---Ground that aggrieved person had no further remedy could not be pressed, if relief claimed by him was not otherwise tenable---Supreme Court upheld impugned judgment in circumstances---Principles.

Kaleem Arshad Khan's case 2004 PLC (C.S.) 1558 and High Court of Madhya Pradesh v. Mahesh Prakash AIR 1994 SC 2595 ref.

Asif Saeed's case PLD 1999 Lah. 350 rel.

Nusrat Elahi's case 1991 MLD 2546 overruled.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in C.A. No.338 of 2006).

Syed Zafar Abbas Naqvi, Advocate-on-Record and Syed Azhar Naveed Shah, Advocate Supreme Court for Appellants (in C.A. No.339 of 2006).

Appellants in person (in C.A. No.340 of 2006).

Shafqat Abbasi, Advocate Supreme Court for Appellants (in C.A. No.342 of 2006).

Saeed Yousaf, Additional Advocate-General, Zahoor Ahmed, Sub-Assistant Registrar (Confdl.) Lahore High Court for Respondents.

Date of hearing: 8th December, 2009.

2010 P L C (C.S.) 608

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

NATIONAL BANK OF PAKISTAN and others

Versus

SHAMOON KHAN and others

Civil Petition No.1557-L of 2001, decided on 29th March, 2010.

(On appeal from judgment, dated 28-2-2001 passed by the Federal Service Tribunal, Lahore in Appeal No.533/L of 1998).

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

----S. 4---Limitation Act (IX of 1908), S.5---Appeal---Condonation of delay---Jurisdiction---Sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of Service Tribunal---Once discretion is exercised regarding question of limitation by Service Tribunal, it is not usually interfered with by Supreme Court.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Hussain Bibi v. Mubarak Hussain 1976 SCMR 262; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner; Peshawar and 5 others 1976 SCMR 268; WAPDA v. Abdur Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

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

----Arts. 185(3) & 212(3)---Petition for leave to appeal---Maintainability---Petition for leave to appeal is only competent where case involves substantial question of law of public importance---Where no question of law of public importance is involved leave to appeal may not be granted.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268; Muhammad Azhar v. Service Tribunal; Islamabad 1976 SCMR 262; M.A. Majid v. Government of Pakistan 1976 SCMR 311; (Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner Multan Division 1990 SCMR 560; Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748; Abdul Razaq v. Province of Punjab 1980 SCMR 876 and Muhammad Yaqub Sheikh v. Government of the Punjab 1987 SCMR 1354 rel.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement---De novo inquiry---Service Tribunal reinstated employee in service with option to bank employer to initiate de novo inquiry---Validity---Inquiry was not got conducted against employee in accordance with relevant provisions of law and it was found in flagrant violation of the principles enunciated in cases already decided by Supreme Court---Service Tribunal had given fair opportunity to bank to initiate inquiry proceedings de novo within a period of three months but nothing could be done for the reasons best known to it---Judgment passed by Service Tribunal was free from any illegality or infirmity and did not call for interference---Leave to appeal was refused.

Shakeel Ahmad v. Commandant 502 Central Workshop E.M.E. 1998 SCMR 1970; Basharat Ali v. Director; Excise and Taxation 1997 SCMR 1543; Land Reforms Commission; Punjab Lahore and another v. Mst. Azra Parveen and 2 others 1995 SCMR 890 and Jan Muhammad v. General Manager, Karachi 1993 SCMR 1440 rel.

Muhammad Qamar-uz-Zaman, Advocate Supreme Court for Petitioner.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court for Respondents.

Date of hearing: 29th March, 2010.

2010 P L C (C.S.) 621

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani Mahmood Akhtar Shahid Siddiqui, JJ

OIL AND GAS DEVELOPMENT COMPANY and others

Versus

NAZAR HUSSAIN and others

Civil Appeals Nos.1124 to 1126 of 2009, decided on 18th January, 2010.

(On appeal against the judgment, dated 10-4-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos.740, 913 and 925(R)CE) of 2004).

Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001)---

----S. 5---General Clauses Act (X of 1897), S.24---Service Tribunals Act (LXX of 1973), S.4---Reinstement in service---Principle of consistency---Employee of Oil and Gas Development Company---Status---Non-statutory rules---Effect---Respondent was employee of the Company, who along with some other employees was removed from service on the charge of theft---Service Tribunal allowed the appeal of respondent and reinstated him in service---Plea raised by Company was that it did not have statutory rules, therefore, Service Tribunal had no jurisdiction over the matter---Validity---Employees of Oil and Gas Development Company continued to be governed under Service Regulations framed in year, 1994, unless those were varied and amended or repealed as the case might be---Principal accused who allegedly transported pipes joints in question, was reinstated into service by department---No pecuniary loss was suffered by the company and pipes in question were recovered and restored to company---Appellant company neither raised any question of law of public importance within the meaning of Art. 212 of the Constitution nor raised any illegality to warrant interference---Appeal was dismissed.

State Bank of Pakistan through Board SBP and others v. Agha Muhammad Aurangzeb Khan C.P. No.318 of 2005 ref.

Ch. Naseer Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents.

2010 P L C (C.S.) 641

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

SECTION OFFICER, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and others

Versus

GHULAM SHABBIR

Civil Appeal No.381-L of 2009, decided on 5th April, 2010.

(Against the judgment dated 24-11-2008 passed by the Lahore High Court, Bahawalpur Bench in Writ Petition No.3300 of 2008).

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

----Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider the contentions of employer/bank that High Court had erred in law in allowing employee's constitutional petition as he could not have withdrawn his request for retirement after availing leave preparatory to retirement and that if order passed by High Court would be allowed to remain in field it would be taken as precedent and entire fabric of service would be punctured, while the employee contended that petition was barred by time and before completion of leave preparatory to retirement, he had lawfully withdrawn his request for retirement.

(b) Punjab Civil Services Pension Rules, 1955---

----R. 3.5, Note-I---ESTACODE, 2003 Edition (Punjab), page 690---Leave preparatory to retirement---Withdrawal---Respondent was employee of bank, who applied for voluntary retirement and had availed leave preparatory to retirement---After availing almost full period of leave preparatory to retirement, employee withdrew his option of retirement---Bank did not allow the employee to. withdraw his option of retirement but High Court in exercise of constitutional jurisdiction directed the bank to let the employee withdraw his option of retirement---Validity---Employee availed leave preparatory to retirement for almost 365 days in view of his acceptance of retirement by bank vide order dated 16-6-2006 coupled with the fact that employee had submitted application for withdrawal of his voluntary retirement just five days before his actual retirement on 30-6-2007---Employee had taken benefit of order dated 16-6-2006 and had mentioned his intended date of retirement as 30-6-2007--On 19-5-2008, competent authority dismissed his application for withdrawal of his resignation with cogent reasons in terms of law on the subject---Employee had failed to point out any illegality in the order passed by bank---High Court accepted constitutional petition filed by employee, without adverting to relevant rules on the subject---Judgment passed by High Court was set aside by Supreme Court while the order dated 19-5-2008, passed by authorities was upheld---Appeal was allowed.

(c) Administration of justice---

----Judge must wear all laws of the country on the sleeves of his robe and failure of counsel to properly advise is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 and Shamoon Bahadur's case PLD 1979 SC 835 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts.189 and 190 of the Constitution.

Muhammad Iqbal's case 1984 SCMR 334 rel.

Muhammad Hanif Khattana, Additional Advocate-General for Appellants.

Mian Shah Abbas, Advocate Supreme Court for Respondent.

Date of hearing: 5th April, 2010.

2010 P L C (C.S.) 676

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

KHURSHEED LATIF and others

Versus

FEDERATION OF PAKISTAN and others

C.P.L.A. No.488-K of 2009, heard on 24th September, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional petition---Pakistan Railways', employee of---Pension, calculation, of---Cost of living allowance @ 7% of basic pay and ad hoc relief of Rs.300 per month announced by Government of Pakistan not treated by Authority as part of petitioner's emolument for calculation of his pension---Validity---Government, vide notification 4-9-2001 while introducing revised pay scale w.e.f. 1-12-2001 had withdrawn such allowance and ad hoc relief---According to said notification, such allowance was not liable to be treated as part of emolument for purpose of calculation of pension---Petitioner, after such withdrawal had only pursued claim for pensioanry benefits in respect of such ad hoc relief and not such allowance---Petitioner after issuance of such notification and his retirement from service filed constitutional petition on 13-3-2007---Such unexplained inordinate delay on part of petitioner would amount to lathes---Leave to appeal was refused by Supreme Court in circumstances.

Abrar Hassan, Senior Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th September, 2009.

2010 P L C (C.S.) 710

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Dr. MUHAMMAD AMIN

Versus

PRESIDENT ZARAI TARAQIATI BANK LIMTED

Civil Petition No.2726 of 2004, decided on 17th February, 2010.

(Against the judgment, dated 20-9-2004 passed by the Federal Service Tribunal, Islamabad in Appeal No.439(L) of 1999).

(a) Interpretation of Statutes---

----Non framing of rules under new Act or Ordinance---Effect---Till framing of new rules, old rules would be deemed to be operative despite their implied repeal.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.

(b) Agricultural Development Bank Ordinance (IV of 1961)---

----S. 39(2)(e)(f)---Agricultural Development Bank (Staff) Service Regulations, 1961---Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002), Ss.9 & 12---ESTACODE, Vol. I, Ed.2007, Study Leave Rules prescribed By President (Fundamental Rule 84), Para-7---Service Tribunals Act (LXX of 1973), S.2-A---Constitution of Pakistan (1973), Art.212(3)---Deputy Director in Agricultural Development Bank---Application for grant of ex-Pakistan study leave on half pay for one year w.e.f. 26-9-1992 to 25-9-1993---Granting of such leave by Bank on half pay w.e.f. 26-9-1992 to 15-8-1993 and extraordinary leave without pay w.e.f.. 16-8-1993 to 25-9-1993 for appellant had not completed five years of service on date of making such application---Non-deciding of appellant's representation by Chairman of Bank for treating period of his leave from 26-9-1992 to 21-1-1996 as study leave---Dismissal of appeal by Service Tribunal for Bank not having statutory rules---Validity---Agricultural Development Bank (Staff) Service Regulations, 1961 did not have any provision for grant or refusal of study leave---Use of word "ordinarily" in Para-7 of ESTACODE made such Para discretionary in nature as Ordinance would mean usual, normal, common and reasonable---Bank had erred in law to rely upon Para-7 of ESTACODE---Appellant was appointed on 26-11-1987 and his leave was sanctioned on 22-8-1992, thus, there were four months less from five years while serving with Bank---Supreme Court set aside impugned judgment of Service Tribunal and order of Bank while directing Bank to grant such leave to appellant from 26-9-1992 to 15-8-1993 on full pay in accordance with law and rules on subject.

Muhammad Mobeen-us-Salam's case PLD 2006 SC 602; Muhammad Idrees's case PLD 2007 SC 681; Anwar Hussain's case 1992 SCMR 1112; Sheikh Muhammad Amin's case PLD 1966 Lah.473; Abdul Wahid's case PLD 1994 Quetta 89; Ziaullah Khan's case 1992 SCMR 602; Aziz Khan's case PLD 1980 Pesh. 227; Taza Khan's case 1992 SCMR 1371;'Kamal Sharif Rana's case PLD 1985 Lah. 135; Blacks' Law Dictionary and Messrs Gadoon Gadoon Textile Mills' case 1996 PSCC Civil 1277 ref.

Petitioner in Person.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Ms. Huma Bokhari, V.P. (Law) for Respondent.

Date of hearing: 17th February, 2010.

2010 P L C (C.S.) 760

[Supreme Court of Pakistan]

Before Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

MUHAMMAD AMJAD and others

Versus

Dr. ISRAR AHMED and others

Civil Appeals Nos. 384 and 385 of 2003, decided on 14th April, 2010.

(On appeal from the judgment of the Service Tribunal dated 15-10-2001 passed in Appeal No.775 of 1999).

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

----S. 8---Promotion---Delay---Legitimate expectancy, principle of---Civil servant was not promoted despite availability of vacancy---Service Tribunal allowed the appeal filed by civil servant and directed the authorities to consider him for promotion from the date when he became eligible for the post as there was vacancy available then---Validity---State functionaries were mandated to act with certain amount of reasonableness---Such canon of due process of law was not observed in processing civil servant's promotion matter---Having acquired requisite experience and having authored number of articles required for post in question, the civil servant had legitimate expectancy for the post in question---Judgment passed by Service Tribunal was neither against the rules nor the law declared---Civil servant was eligible to be considered for promotion when substantive vacancy in promotion quota was available---Judgment passed by Service Tribunal directing the authorities to consider case of civil servant's promotion to post in question from the date when vacancy in his quota was available was unexceptionable---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

Government of N.-W.F.P. v. Buner Khan 1985 SCMR 1158; Government of the Punjab v. Rana Ghulam Sarwar Khan 1997 SCMR 515; Muhammad Iqbal v. Executive District Officer (R) Lodhran 2007 SCMR 682; Sarwar Ali Khan v. Chief Secretary to Government of Sindh 1994 PLC (C.S.) 411; Luqman Zareen v. Secretary Education N.-W.F.P. 2006 SCMR 1938; Ch. Muhammad Siddique v. Director, Special Education 1998 SCMR 88 and Idrees Ahmed v. Hafiz Fida Khan PLD 1985 SC 376 ref.

Dr. A. Basit, Advocate Supreme Court (in C.A. 384) and Mr. Saeed Yousaf Khan, Additional Advocate-General for Appellants (in C.A. 385 of 2003).

Mr. Shoaib Shaheen, Advocate Supreme Court for Respondents.

Date of hearing: 14th April, 2010.

2010 P L C (C.S.) 776

[Supreme Court of Pakistan]

Before Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE

Versus

MUHAMMAD NAVEED HASHMI and another

Civil Appeal No. 1676 of 2003, decided on 26th January, 2010.

(On appeal from the judgment dated 24-1-2003 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in S.A. No.16/1992).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the impact of evidence adduced in the course of inquiry proceedings and further to ascertain as to whether order passed by Service Tribunal was justified on the record.

(b) Civil Service---

----Reputation---Proof---Persistent reputation of being corrupt can be proved conveniently on the basis of Annual Confidential Reports.

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

----Art. 212(3)---Civil Service---Reinstatment---Reputation of being corrupt---Proof---Judicial officer was dismissed from service on the allegation of his being corrupt---Service Tribunal allowed the appeal filed by judicial officer and reinstated him in service---Validity---If the judicial officer was having persistent reputation of being corrupt, the same could not be decided in vacuum and scrutiny of Annual Confidential Reports were the only device to assess the persistent reputation of being corrupt or otherwise---Annual Confidential Reports during the posting of judicial officer at place in question were silent in that regard---If there had been some complaint, the position would have been different and some remarks could have been made in Annual Confidential Reports---No advice was ever tendered to the judicial officer for improvement in that sphere---Authorized officer did not agree with the recommendations of Inquiry Officer by whom judicial officer was exonerated but reasoning whereof was academic, Authorized officer might be correct logically but not legally---Some proof to substantiate the allegation of persistent reputation of being corrupt had to be there---Authorities failed to bring on record anything whereof such a serious charge could have been substantiated--Inquiry Officer had examined the entire evidence produced in support of allegation of corruption and exonerated the judicial officer by giving convincing and cogent reasoning which could not be brushed aside and was rightly taken into consideration and relied upon by Service Tribunal---Prosecution failed to substantiate the accusation of corruption against the judicial officer---Service Tribunal had scrutinized the entire evidence with diligent application of mind and conclusion arrived at was in consonance with law and evidence which could not be reversed without any lawful justification and the same was lacking in the case---Judgment passed by Service Tribunal was well-based and did not warrant interference---Appeal was dismissed.?

Saeed Yousaf Khan, Additional Advocate General and Abdul Sattar Asghar, Registrar High Court for Appellant.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 26th January, 2010.

2010 P L C (C.S.) 789

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, CJ Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday JJ.

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

Versus

Syed HASSAN ALI SHAH and others

Civil Petitions Nos.2094 to 2102 of 2005, decided on 18-3-2010.

(On appeal from the judgment dated 16-6-2005 passed by the Federal Service Tribunal, Karachi in Appeals Nos. 1420, 1421, 1422, 1423, 1424, 1425, 1426, 1427 of 2001).

State Life Employees' Service Regulations (1973)---

----Regln. 4(ii)(c)(1)(2)---Termination of service---Performance of employees---Commercial organization---Business targets---Respondents were employees of Insurance Corporation and their services were terminated on account of their poor performance, as they failed to achieve requisite targets of business---Service Tribunal allowed appeals filed by employees and reinstated them in service---Validity---Performance standard was in fact the condition prescribed under Regln.4(ii)(c)(1)(2) of State Life Employees' Service Regulations, 1973---Insurance Corporation was a commercial organization, therefore, its employees were bound to show performance, otherwise it would be difficult for the organization to continue its existence---Where commercial activity was the basis for running of the same, relevant rules/regulations were to be construed/applied and incorporated strictly---Judgment passed by Service Tribunal was set aside by Supreme Court---Appeal was allowed.

Chairman, State Life Insurance Corporation of Pakistan and another v. Ali Muhammad Bangash 2002 SCMR 936 distinguished.

Mazullah Khan v. Zonal Head, State Life Insurance Corporation, Peshawar and others, 2008 SCMR 617 rel.

Mr. Sher Zaman Khan for Petitioners.

Mr. Khalil Abbas, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondents (with Respondent in person).

Date of hearing: 18th March, 2010.

2010 P L C (C.S.) 804

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, C.J Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday, JJ

CHAIRMAN, CENTRAL BOARD OF REVENUE and others

Versus

NAWAB KHAN and others

Civil Appeals No. 537 and 538 of 2006, decided on 16th March, 2010.

(On appeal from the judgment dated 7-2-2004 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 660(R)(C.S.) of 2002).

(a) Fundamental Rules---

----R. 22(a)---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider; whether civil servant was entitled to have protection of previous service in another organization for the purposes of fixation and counting of previous service for pension.

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

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

(c) Fundamental Rules---

----R. 22(a)---Hand Book for Drawing and Disbursing Officers, Chapter, IX, R. 9.6(v)---Constitution of Pakistan (1973), Art.212(2) & (3)---Pay and pensionary benefits---Previous service, counting of---Absence of lien on previous post---Findings of fact---Interference by Supreme Court---Scope---Appellant was appointed by another government organization and his grievance was that his previous service in earlier government organization was to be counted for fixation of pay and pensionary benefits---Service Tribunal partially allowed the appeal and did not grant any protection of his pay drawn during previous appointment---Validity---Finding of fact recorded by Service Tribunal was in consonance with rules on the subject and law laid down by Supreme Court---Service Tribunal had rightly refused second relief to appellant in terms of R.22(a) of Fundamental Rules---Parties failed to point out any infirmity or illegality in the judgment passed by Service Tribunal and no question of public importance as contemplated under Art.212(2) of the Constitution was raised---Finding of Service Tribunal was finding of fact and could not call for any interference by Supreme Court while exercising power under Art.212(3) of the Constitution---Constitutional jurisdiction was always discretionary in character as the Service Tribunal had decided the case within the parameters and rules on the subject and law laid down by Supreme Court, therefore, Supreme Court declined to exercise its discretion under Art.212(3) of the Constitution in favour of appellants---Appeal was dismissed.

Nafees Ahmad's case 2000 SCMR 1864 and Ch. Muhammad Azim's case 1991 SCMR 255 rel.

Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record (in C.A. No.537 of 2006) and Hafiz S.A.Rehman, Senior Advocate Supreme Court (in C.A. 538 of 2006) for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court (in C.A. No.537 of 2006), Dil Muhammad Khan Alizai, D.A. G. and Raja Abdul Ghafoor, Advocate-on-Record (in C.A. No.538 of 2006) for Respondents.

Date of hearing: 16th March 2010.

2010 P L C (C.S.) 809

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ch. Ijaz Ahmed, J

Syed KAMAL SHAH

Versus

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

Civil Petition No.201-P of 2009, decided on 1st March, 2010.

(Against the judgment dated 23-1-2009 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeal No.33 of 2008).

(a) North-West Frontier Province Revised Leave Rules---

---Rr.3 & 5---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Absence without leave---Concurrent findings of fact---Jurisdiction of Supreme Court---Civil servant absented himself from the office and did not join in spite of best efforts of department, due to which he was removed from service---Order passed by competent authority was upheld by appellate authority while dismissing his appeal, which was also affirmed by Service Tribunal---Validity---Findings were recorded by three authorities after analyzing evidence on record---Supreme Court did not find any infirmity or illegality committed by all forums while rendering findings of fact recorded against civil servant---Findings of fact recorded by authorities below could not be interfered by Supreme Court while exercising power under Article 212(3) of the Constitution---Civil servant failed to raise any question of law as contemplated under Article 212(3) of the Constitution---Leave to appeal was refused.

Naseeb Khan's case 2008 SCMR 1369 disting.

Ch. Muhammad A--rim's case 1991 SCMR 255; Khawaja Shahid Nazeer's case 2006 PLC (C.S.) 1261 and Khyber Zaman's case 2004 SCMR 1426 rel.

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

---Arts.185(3) & 212(3)---Discretionary power---Scope---Constitutional jurisdiction is always discretionary and equitable---Supreme Court, while exercising discretionary power has to look into the conduct of petitioner on the principle that he who seeks equity must come with clean hands.

Rana Muhammad Arshad's case 1998 SCMR 1462 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 rel.

Waqar Ahmed Seth, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2010 P L C (C.S.) 812

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

ANEESUR REHMAN

Versus

FEDERATION OF PAKISTAN and another

Civil Petition No.290-K of 2008, decided on 4th November, 2008.

(On appeal against the judgment dated 19-3-2008 passed by Federal Service Tribunal at Karachi in Service Appeal No. 297(K)/C.S. of 2001).

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

----Rr. 3(a)(b), 4(1)(b)(iv) & 6---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service on the charge of inefficiency and misconduct---Appeal by the petitioner against said penalty had been dismissed by the Service Tribunal---Validity---Prima facie it appeared that the petitioner was not given a chance to cross-examine the official witnesses nor allowed him to lead his own evidence---Leave to appeal was granted by Supreme Court and petition was converted into appeal.

Jam Manzoor Ahmad v. Director (Food), Punjab, Lahore and another 1996 SCMR 447; Muhammad Attaullah v. Islamic Republic of Pakistan and 2 others 1999 SCMR 2321; Tariq Mehmood v. District Police Officer, Toba Tek Singh and another 2008 PLC C.S. 921 and Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2008 SCMR 1369 ref.

Khalid Javed, Advocate Supreme Court and K.A. Wahab Advocate-on-Record for Petitioner.

Nemo for Respondent No.1.

Akhtar Ali Mahmud, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondents No.2.

Date of hearing: 4th November, 2008.

2010 P L C (C.S.) 818

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

DEPUTY POST MASTER GENERAL, REGION-III, POST OFFICE DEPARTMENT, HYDERABAD and others

Versus

MUHAMMAD JAVAID

Civil Petition No.237-K of 2008, decided on 3rd November, 2008.

(On appeal from the judgment dated 12-1-2008 of the Federal Service Tribunal, Karachi, passed in Appeal No.518(K) CS of 2002).

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

----Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Supreme Court Rules, 1980, O.XXXIII---Limitation Act (IX of 1908) S.5---Dismissal from service---Reinstatement---Employee was dismissed from service by the competent authority---Service Tribunal on appeal set aside dismissal order and directed reinstatement of employee with all back-benefits---Validity----Petition for leave to appeal to Supreme Court by the department was barred by time by two days for which the department filed an application under S.5 of Limitation Act, 1908 read with O.XXXIII of Supreme Court Rules, 1980 for condonation of delay---Validity---In the absence of "sufficient cause " for condonation of delay within the parameters of law, delay could not be condoned---No question of law of public importance within the contemplation of Art.212(3) of the Constitution being involved in the case, no case for the grant of leave to appeal was made out---Petition was dismissed.

Rizwan Ahmad Siddiqui, D.A.-G. for Petitioners.

Suleman Habibullah, Advocate-on-Record for Respondent.

2010 P L C (C.S.) 820

[Supreme Court of Pakistan]

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

SHAHID HAYAT

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No.558 of 2008, decided on 11th and 12th December, 2008.

Constitution of Pakistan (1973)---

----Arts. 212(3), 9, 18, 25 & 27---Service Tribunals Act (LXX of 1973), S.4---Civil Servants Act (LXXI of 1973), Ss.13 & 14---Petitioner filed an appeal before Service Tribunal praying therein that he could be held entitled to continue in service for 2 years and 3 months beyond the date of his superannuation i.e. the period for which-he was not allowed to perform his duties; and Ss.13 & 14 of the Civil Servants Act, 1973, in so far as they did not allow a civil servant to continue his service beyond the period of superannuation, could be held ultra vires of Fundamental Rights guaranteed under Arts.9, 18, 25 & 27 of the Constitution---Validity---Denial to the petitioner of his right to actively serve the department without any fault on his part was established in the case, which had brought humiliation and suffering to the petitioner---Petitioner should be allowed to serve for a period of two years and three months, equivalent to the interrupted period of his service---Authorities were directed to take appropriate measures in that regard---Benefit of that judgment would also be available to other police officers, who were implicated along side the petitioner in said criminal case---Judgment of Service Tribunal was set aside and petition was converted into appeal and was disposed of accordingly.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Malik Muhammad Qayyum, Attorney-General of Pakistan assisted by Raja Abdul Rehman, D.A.-G., and Massod A. Noorani, A.A.-G. Sindh for Respondents.

Dates of hearing: 11th and 12th December, 2008.

2010 P L C (C.S.) 829

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Mian Hamid Farooq, JJ

GOVERNMENT OF THE PUNJAB through Secretary Social Welfare Women Development and Baitul Mal and another

Versus

ABDUL MUTTALIB and 5 others

Civil Appeals Nos.314 to 321-L of 2008 and Civil Petitions Nos.378 to 385-L of 2008, decided on 29th August 2008.

(On appeal from the judgment dated 14-1-2008 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.2193, 426, 427, 428, 738, 739, 740 and 741 of 2006 respectively)

Constitution of Pakistan (1973)---

----Art. 212(3)--- Leave to appeal was granted by Supreme Court to consider that whether the Service Tribunal was required to consider the effect of rejection of the representation of the employees by the Secretary to the Government; that whether the employees were required to pass the Departmental promotion examination under the Rules in order to qualify for further promotion to (BS-17), notwithstanding the Circular Letter dated 5-10-1975 issued by the Services and General Administration and Information Department and that whether the employees were entitled to be afforded an opportunity of hearing, before annulment of the entire departmental examination and whether the Service Tribunal had justifiably directed the department to announce the result of the examination which had already been cancelled---Short points being involved in the case, the office was directed to fix main appeals, on the present record, for hearing within a specified period.

Akhtar Ali Qureshi, A.A.-G. for Appellant.

Nemo for Respondents.

2010 P L C (C.S.) 830

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

Dr. AZEEMUR REHMAN and others

Versus

GOVERNMENT OF SINDH

Civil Appeal Nos.1233 to 1251 of 2005, decided on 28th April, 2009.

(On appeal from the judgment dated 7-4-2005 passed by the Sindh Service Tribunal, Karachi in A.Nos. 360, 361, 363 to 379 of 1999, 6 to 2(sic), 27 and 28 of 2000).

Civil Servants Act (LXXI of 1973)---

----S.8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Seniority---Appeals having been dismissed by the Service Tribunal, civil servants had filed appeals before the Supreme Court---Advocate General had submitted that the original seniority list was superseded, because certain persons had died and some of them had retired; and the seniority list needed modification/rectification---Advocate General had added that appeals filed by the appellants against the impugned seniority list before the Departmental Authority, were not decided; and it would be in the interest of justice, if those appeals were decided in the first instance as these according to his instructions, were pending---Advocate General, in circumstances, had submitted that Provincial Government would have no objection if the appeals were partly allowed and the impugned judgment to their extent was set aside---Appeals in circumstances, were allowed and the impugned judgment with regard to the findings qua the appellants were set aside and the competent Authority in the Department was directed to decide the pending appeals within six weeks of the receipt of the order, after hearing all concerned.

Appellants (In person).

Muhammad Yousaf Leghari, Advocate-General Sindh for Respondents Nos. 1 and 2.

Ansari Abdul Latif, Advocate Supreme Court for Respondents Nos. 10, 12, 14 to 17.

2010 P L C (C.S.) 833

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

MUHAMMAD ASLAM KHAN

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through its Chairman

Civil Appeal No.526 of 2002, decided on 16th October, 2009.

(On appeal from judgment of Federal Service Tribunal, Islamabad dated 2-6-1999, passed in Appeal No.1041(R) of 1998).

Civil Service Regulations---

----Regln. 423---Pensionary benefits--- Length of service---Determination---Civil servant was retired from service after completing 31 years, 11 months and 14 days but he was given pension for 31 years---Plea raised by civil servant was that he was entitled to pensionary benefits for 32 years of service, as only 17 days were short towards completion of 32 years---Validity---Shortage of period, under Regln.423(1) of Civil Service Regulations, not exceeding six months had become automatically condoned---Shortage exceeding six months was also condonable by competent authority, provided the conditions under Regln. 423(2) of Civil Service Regulations were fulfilled---Shortage of 17 days relating to civil servant should not have been disputed by authorities, therefore, Supreme Court allowed the appeal with costs throughout---Appeal was allowed.

Muhammad Hayat v. Federation of Pakistan 1997 PLJ (TR) 298(sic) and Federation of Pakistan v. Muhammad Hayat C.P. No.2179 of 1997.

Appellant in person.

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

Date of hearing: 16th October, 2009.

2010 P L C (C.S.) 836

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

GHULAM RASOOL PANWAR

Versus

FIA and another

Civil Petition No.99-K of 2008, decided on 27th October 2008.

(On appeal from the judgment dated 8-12-2007 of the Federal Service Tribunal, Islamabad, passed in Appeal No.233(K) CS of 2006).

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

----Ss. 3, 5 & 10---Service Tribunals Act '(LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Penalty of reduction in rank---Penalty of compulsory retirement was imposed by the competent Authority upon the petitioner after issuing him show-cause notice and holding inquiry against him---Service Tribunal, on appeal, converted punishment of compulsory retirement into reduction in rank for a period of three years vide impugned judgment---Validity---Petitioner got maximum relief from Service Tribunal which taking lenient view converted punishment of compulsory retirement into reduction in rank---Judgment of Service Tribunal could not be interfered with as no case of further indulgence in the matter was made out---Counsel for the petitioner could not demonstrate that any substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution was involved in the case, on that ground too leave to appeal to Supreme Court could not be granted to the petitioner.

Shahid Anwar Bajwa, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Israr Ali, D.D. (Law) FIA for Respondents.

Date of hearing: 27th October, 2008.

2010 P L C (C.S.) 838

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD AMJAD

Versus

SENIOR SUPERINTENDENT OF POLICE (OPERATIONS), LAHORE and others

Civil Petition No.193-L of 2008, decided on 22nd April, 2009.

(Against the judgment dated 22-1-2008 passed by Punjab Service Tribunal, Lahore in Appeal No. 2981 of 2006)

Constitution of Pakistan (1973)---

----Art. 212(3)---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement---Time-barred appeal---Delay in getting copy of order passed by authorities was the reason for filing appeal beyond period of limitation---Validity---As such the same did not constitute ground sufficient for condonation of delay, as delay of each day was to be explained---Revision petition filed by petitioner was decided by competent authority on 24-12-2004, while appeal before Service Tribunal was filed on 29-11-2006, therefore, service appeal was barred by time---Service Tribunal considered evidence on merit as well as on point of limitation which was accordingly dismissed---Judgment passed by Service Tribunal was based on proper appreciation of material available on record and no infirmity and illegality was shown to justify interference by Supreme Court---No substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution was involved---Leave to appeal was refused.

Tariq Masood, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2010 P L C (C.S.) 840

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

KHURSHID ALAM

Versus

E.D.O. (EDUCATION) SKP and another

Civil Petition No.1239-L of 2009, decided on 21st August, 2009.

(Against the judgment of the Punjab Service Tribunal dated 6-4-2009 passed in Appeal No.380 of 2008)

Constitution of Pakistan (1973)---

----Art. 212(3)---Misconduct---Removal from service---Charge against civil servant was that he joined as teacher in the Government school at place "M" in 1997 although his posting was made at place "W"---Contentions of the petitioner were that he had joined the duty at place "M" pursuant to a direction issued by the competent authority; that he served there for almost ten years without any complaint whatsoever; that he drew salary against the said post and it was not tenable in law to proceed against him on the said charge and that no senior official with whose consent he worked there was proceeded against on charges of misconduct---Leave to appeal was granted to the civil servant by Supreme Court, inter alia, to consider whether the charge of misconduct could have been said to have been proved notwithstanding the fact that for a period of ten years neither the competent authority nor the Drawing and Disbursing Officer raised any objection to the said posting.

Mian Mehmood Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2010 P L C (C.S.) 841

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

ANWAR-UL-HAQ

Versus

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

Civil Petition No. 577 of 2010, decided on 19th April of 2010.

(Against the judgment dated 29-1-2010 passed by the Federal Service Tribunal, Islamabad, in Appeal No.9(R) CS of 2007).

ESTACODE (2000 edition)---

----Page 448---Constitution of Pakistan (1973), Art. 212(3)---Resignation, tendering of---Effect---Absent without leave---Civil Servant after tendering his resignation remained absent without leave from his duty---Authorities initiated departmental inquiry and imposed major penalty of dismissal from service---Validity---Mere tendering/submitting of resignation, the services of government/civil servant would not come to an end and the same had to be accepted for its effectiveness by competent authority---Till such time as the resignation was accepted by competent authority, the civil/government servant would continue to be in government service and was under obligation to perform his duties---If civil servant failed or omitted to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under appropriate law and rules---Civil servant failed to raise any question of public importance as contemplated in Art. 212(3) of the Constitution, which was condition precedent to entertain the petition filed under Art. 212(3) of the Constitution---When condition precedent was missing then petition was liable to be dismissed---Supreme Court declined to interfere in the order of dismissal passed by the authorities and maintained by Service Tribunal---Leave to appeal was refused.

Corpus Juris Secundum Volume LXXVII at page 77; Black's Law Dictionary; Estacode; Province of West Pakistan and another v. Ch. Din Muhammad and others PLD 1964 SC 21; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests and others PLD 1988 SC 155; Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890; Moti Ram v. Param Dev and another 1993 SCMR 2137; Union of India v. Gopal Chandra AIR 1978 694 at 699; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Ch. Muhammad Azim v. The Chief Engineer, Irrigation and others 1991 SCMR 255 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124 ref.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 PLC (C.S.) 847

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervez, JJ

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE and others

Versus

ASIF IQBAL

Civil Appeal No.1101 of 2006, decided on 19th February 2010.

(On appeal from the judgment dated 17-3-2005 passed by the N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No.250 of 2004).

(a) Civil service---

----Inquiry Committee, recommendations of---Validity---Such recommendations would not be binding upon competent authority, who could take any reasoned action subject to law.

Abdul Rashid v. C.S.C. 1989 SCMR 1417 rel.

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

----Art. 212(3)---Petition for leave to appeal---Delay in filing appeal condoned by Service Tribunal---Validity---Sufficiency of cause for condonation of delay being question of fact was within exclusive jurisdiction of Service Tribunal---Discretion exercised by Tribunal to condone delay could not be reversed or disturbed by Supreme Court without sufficient lawful justification---Supreme Court declined to grant leave to appeal.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; Yousaf Hussain Siddiq v. Additional Settlement and Rehabilitation Commissioners, Peshawar 1976 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of North-West Frontier Province 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

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

----Art. 212(3)---Decision of Service Tribunal based on report of Inquiry Officer after having taken into consideration all factors--Effect---Supreme Court refused to grant leave to appeal.

Cap. Dr. Munawar Tahir Hussain v. Government of the Punjab through Secretary Health Department 1990 SCMR 1470 rel.

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

----Art. 212(3)---Petition for leave to appeal---Maintainability---Such petition, if involved substantial question of law of public importance, would be competent, otherwise not.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; M.A Majid v. Government of Pakistan 1976 SCMR 311; Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner, Multan Division 1990 SCMR 560; Mst. Sattan v. Mst. Rani 1989 SCMR 1677; Abdul Razaq v. Province of Punjab 1980 SCMR 876 and Muhammad Yaqub Sheikh, District Engineer District Council, Toba Tek Singh v. Government of the Punjab through Secretary Local Government and Rural Development Department, Lahore 1987 SCMR 1354 rel.

Zahid Yousaf, Additional Advocate-General N.-W.F.P. and Muhammad Jan, S.M.O. for Appellants.

Nemo for Respondent.

Date of hearing: 19th February 2010.

2010 P L C (C.S.) 865

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD RIAZ AKHTAR

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and others

Constitutional Petition No.1122-L of 2009, decided, on 28th August, 2009.

(On appeal from the judgment dated 27-4-2009, passed by the Punjab Service. Tribunal Lahore in Appeal No.2047 of 2008).

(a) Civil Service---

---Appointment of Sub-Engineer on work charge basis against leave vacancy---Withdrawal of such appointment order by Authority---Plea of petitioner that his appointment order could not be withdrawn without issuing him show-cause notice or hearing him---Validity---Appointment of petitioner was not on regular basis through prescribed mode, for which he could not blame others as he himself had been approaching Chief Minister's Secretariat for such purpose---Record showed that petitioner had been exerting and mustering extraneous support and pressure for his appointment---Adoption of such devious means in securing employment in public service could not be countenanced---Acceptance of such plea of petitioner would mean revival of his appointment, which was void ab initio---Court could not give premium to any such illegality---Order of dismissal of petitioner's appeal passed by Service Tribunal was upheld by Supreme Court in circumstances.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 and Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598 distinguished.

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

----Arts. 185(3) & 212(3)---Petition for leave to appeal---Scope---Such petition would lie only on established principles governing grant or refusal of leave to appeal---Such jurisdiction could not be invoked for perpetuation of any illegality or injustice.

Muhammad Yasin Bhatti, Advocate Supreme Court along with Mehmoodul Islam, Advocate-on-Record for Petitioner.

Faisal Zaman Khan, Addl. A.-G. along with Hamayun Akhtar Sahi, Dy. Director for Respondents Nos. 1 to 3.

Date of hearing; 28th August, 2009.

2010 P L C (C.S.) 875

[Supreme Court of Pakistan]

Present: Zia Perwez and Sabihuddin Ahmed, JJ

Mirza DILSHAD BAIG

Versus

ACCOUNTANT-GENERAL, SINDH and others Civil

Petition No.388-K of 2008, decided on 9th October, 2008.

(Arising out of the order dated 24-7-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.63(K)CS /2008).

Service Tribunals Act (LXX of 1973)---

---S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal of

appeal being barred by time---Petition for leave to appeal had been filed against order of Service Tribunal whereby appeal was dismissed on ground of limitation being barred by more than seven years---Petitioner had requested for indulgence on humanitarian ground---Power to condone delay in appeal filed before the Service Tribunal could be exercised by the Tribunal itself---Impugned order did not suffer from any infirmity justifying interference by the Supreme Court.

Petitioner in person.

Nemo for Respondent.

2010 P L C (C.S.) 888

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

SALEEM ULLAH KHAN

Versus

SHAHID HAMID and another

Criminal Original Petition No.47 of 2008 in Civil Appeal No.1421 of 2006 and Criminal Original Petition No.12 of 2009 in Civil Petition No.1842 of 2008, decided on 29th April, 2009.

(Against the order dated 15-8-2006 passed by this Court in C.A.No.1421 of 2006 and against the order dated 25-2-2009 passed by this Court in C.P.No.1842 of 2008).

(a) Civil Service---

----Promotion---Promotion is not such a guaranteed right as any one can claim or seek enforcement through a Court---Rationale behind seems to be the satisfaction of the ultimate competent authority in the hierarchy to which the civil servant may belong as the best judgment to determine the suitability of a particular person for the post vests with the competent departmental authority---Interference with an assessment made by the departmental authority is rarely interfered with by the Courts.

Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598; Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 ref.

(b) Civil Service---

----Promotion---Public functionaries are supposed to be acting in good faith while performing their public functions and discharging their duties, unless proved to the contrary.

Petitioner in Person.

Miss Nahida Mehboob Ellahi, D.A.-G. for Respondents.

2010 P L C (C.S.) 899

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

EJAZ ALI BUGHTI

Versus

P.T.C.L. and others

Civil Petition No.1159 of 2006, decided on 12th February, 2007.

(On appeal from the judgment dated 31-10-2006, passed by the Federal Service Tribunal in M.P.394/2006 in Service Appeal No.327-K/CE of 2000).

Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 36(3)(5)---Constitution of Pakistan (1973), Art.212(3)---Status of civil servant---Determination of---Petitioner, prior to his transfer to Pakistan Telecommunication Company, was in the employment of Pakistan Telecommunication Corporation which was Government Institution---Question to be considered was whether after transfer to Pakistan Telecommunication Company, petitioner would continue to enjoy the status of `Civil servant'---Neither any thing was on record nor it had been asserted by the petitioner that he had ever been retransferred or reverted to his original position of civil servant as envisaged under S. 36(5) of Pakistan Telecommunication (Re-organization) Act, 1996---Pakistan Telecommunication Company to which petitioner was transferred had no statutory rules---Petitioner, in circumstances could not be said to be civil servant---Service Tribunal had rightly declined to grant relief to the petitioner.

Mr. Manzoor Ali Khan's case 1999 SCMR 1526 ; 1994 SCMR 1526 (Page-1536)[c] and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

Abdul Rehman Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2010 P L C (C.S.) 909

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ghulam Rabbani, JJ

RIZWANULLAH KHAN, ASSISTANT COMMISSIONER OF INCOME TAX and another

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and others

Civil Appeals Nos.2220 and 2221 of 2001, decided on 17th April, 2007.

(On appeal from the judgment dated 20-1-2001 passed by the Federal Service Tribunal, Islamabad, Camp at Karachi in Appeals Nos.1243 to 1246(K) of 1999 and 1274 to 1277(K) of 1999).

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art.212---Promotion--Appeal to Supreme Court---Service Tribunal, in its judgment had observed that Establishment Division had conveyed the approval for promotion of 52 Income Tax Officers, but actual position regarding the existence of the vacancies of promotion quota, was not ascertained to resolve the controversy---Counsel for parties, realizing the defect in the judgment jointly submitted that case could be sent back to the Service Tribunal for decision of the appeals afresh in the light of the correct factual position of vacancies at the relevant time---Impugned judgment was set aside and case was remanded to the Service Tribunal for decision of appeal afresh after determination of the question relating to the existence of the vacancies of promotion quota.

Siraj-ul-Haque, Advocate Supreme Court and Naraindas T. Motiani, Advocate-on-Record for Appellants (in both cases).

A.A. Siddiqui, Advocate-on-Record for Respondents Nos. 1 and 2 (in both Appeals).

Nemo for Respondent No.3.

2010 P L C (C.S.) 918

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

CHAIRMAN, ANTI-CORRUPTION ENQUIRIES and another

Versus

ABDUL WAHEED

Civil Petition No.569-K of 2006, decided on 1st March, 2007.

(On appeal from the order of High Court of Sindh, Karachi, dated 4-12-2006 passed in Appeal No.350 of 2005).

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 3---Constitution of Pakistan (1973), Art.212(3)---Appointment---Counsel for petitioner/Department had contended that absorption/appointment of respondent was not made through Departmental Promotion Committee, but he was not able to point out any provisions or rule of service governing the service of the respondent that case of appointment of respondent required approval/selection by the Departmental Promotion Committee--Respondent, undisputedly was appointed by transfer from Police Department to Anti-Corruption Establishment in BS-5 which was within relevant Service Rules---In absence of any violation of statutory rules or any exercise of authority beyond the power and jurisdiction of department, it was difficult to hold that department acted illegally or without jurisdiction---Service Tribunal had elaborately discussed the questions of fact agitated in the appeal and defended by the petitioners---No substantial question of law of public importance within the meaning of Art.212(3) of the Constitution having been made out for grant of leave to appeal, petition for leave to appeal was dismissed, in circumstances.

Dr. Qazi Khalid Ali, Addl. A.G., Sindh and A.A. Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondent.

2010 P L C (C.S.) 924

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MUHAMMAD NADEEM ARIF and others

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHROE and others

Civil Petitions Nos.492 to 495 of 2009, decided on 13th May, 2009.

(Against the judgment dated 6-3-2009 passed by the Lahore High Court, Lahore in I.C.As. Nos. 154 to 157 of 2008).

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

----Art.199---Civil Procedure Code (V of 1908), O.XX, R.1(2)---Constitutional petition---Announcement of judgment by High Court after six months of hearing the arguments of parties---Validity---Provisions of O.XX, R.1(2), C.P.C., were directory, but not mandatory---High Court, after considering contentions of petitioner had dismissed petition with cogent reasons---No prejudice was shown to have been caused to petitioner by announcing judgment after such delay---Supreme Court upheld impugned judgment in circumstances.

Muhammad Bakhsh's case 1989 SCMR` 1473; Juma Khan's case PLD 2002 SC 823; Samiul Haq's case 2001 SCMR 1053; Ali Khan Subanpoto's case 1997 SCMR 1590; Raja Hamayun Sarfraz Khan's case 2007 SCMR 307; Syed Iftikhar-ud-Din Haider Gardezi's case 1996 SCMR 669 at 673 and Muhammad Ovais's case 2007 SCMR 1587 rel.

(b) Administration of justice---

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

(c) Police Act (V of 1861)---

----S. 12---Instructions/rules/policy issued by Inspector-General of Police without approval of Provincial Government---Validity---Such instructions/rules would not be valid and would have no legal sanctity---Long practice of department to follow such instructions/rules conflicting with parent statute or rules could not remain operative, but must be ignored---No one would be obliged to obey such directions/instructions/departmental practice---Principles.

Qayyum Nawaz Khan's case 1999 SCMR 1594 ref. Siddiq Akbar's case 1998 SCMR 2013 rel.

(d) Locus poenitentiae, principle of---

----Award of benefit to a person in violation of law would not attract principle of locus poenitentiae.

Jalaluddin's case PLD 1992 SC 207 fol.

(e) Interpretation of statutes---

----Departmental construction of statute, though not binding on court, could be taken into consideration, if same was followed by department consistently.

Siddiq Akbar's case 1998 SCMR 2013 rel.

(f) Interpretation of statutes---

----Conflict between departmental practice/instructions/directions and rules---Effect---Rules would prevail---Principles.

The role of the directions/instructions is to supplement, never to contradict or conflict with rules. A direction/instruction cannot abridge or run counter to statutory provisions. If there is any conflict between the rules and the directions/instructions/departmental practice, then rules prevail. Instructions or departmental practice cannot amend or supersede the 'rules. A rule can be amended by another rule and not by a direction/instruction/departmental practice.

Departmental practice consistently followed by the department with regard to any issue or provision has force of law, but it is not absolute in all respect.

The principle of locus poenitentiae has more force than the principle qua the departmental practice followed by the department qua any instructions or rules consistently since long. Where the action is in derogation of section or law, then the locus poenitentiae is not absolute.

Anwar Ahmed Lari's case 1990 SCMR 1013; Chairman, Regional Transport Authority's case PLD 1991 SC 14; Messrs Airport Support Services' case 1998 SCMR 2268 and Jalaluddin's case PLD 1992 SC 207 ref.

(g) Interpretation of statutes---

----Departmental instructions and statutes must be read as an organic whole.

(h) Words and phrases---

----"Approval"---Meaning.

Black's Law Dictionary and Aftab Ahmed Khan Sherpao's case PLD 1997 Pesh. 93 ref.

(i) Words and phrases---

----"Approval" and "consultation or consent"---Comparison---Approval is more mandatory and stronger as compared to the word consultation or consent.

(j) Constitution of Pakistan (1973)---

----Art.9---Due process of law, doctrine of---Scope---Right of access to justice to all was founded on such doctrine---Such right would include a right to be treated according to law, a right to have a fair and proper trial and a right to have an impartial court or Tribunal---Justice could be done only by an independent judiciary---Principles.

Sharaf Faridi and 3 others v. The Federation of Pakistan PLD 1989 Kar. 404 and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 rel.

(k) Civil Service---

----Seniority is a vested right of an employee.

Anwar Ahmed Lari's case 1990 SCMR 1013 rel.

(l) Public offices---

----Government offices being public trust should be regulated in a manner to promote sense of public service with a view to make a welfare State---Principles stated.

The Government officers are like public trust and, therefore, the same should be regulated in fair, transparent and economically so as to promote the sense of public service and thereby to make a welfare State. The public offices should not be held for improper motives. The social justice and economic justice can also be done through fair administrative policies. No policy can be congenial, if it breeds corruption.

(m) Civil service---

----Promotion---Out-of-turn promotion---Scope.

Out of turn promotion is not only against the Constitution, but also against Injunctions of Islam. Out of turn promotion in a public department generates frustration and thereby diminishes the spirit of public service. It generates undue preference in a public service. Element of reward and award is good to install the spirit of service of community, but it should not be made basis of accelerated promotion.

Qayyum Nawaz Khan's case 1999 SCMR 1594 ref.

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

Ms. Afshan Ghazanfar, A.A.G., Naseer Baloch, DSP (Legal), Lahore and Fazal Rahim, DSP (Legal) Sheikhupura for official Respondents.

Nemo for Pro forma Respondents.

2010 P L C (C.S.) 938

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ZARAI TARAQIATI BANK LTD.

Versus

HAKEEM KHAN

Constitutional Petition No.646 of 2009, decided on 8th May, 2009.

(On appeal from the judgment dated 25-2-2009 of the Islamabad High Court, Islamabad passed in W.P. No.798 of 2008).

Zarai Taraqiati Bank's Staff Service Regulations, 2005---

----Regln. 7(b)---Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002), Preamble---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.1(4), 2(c), 3, 5, 9 & 10---Constitution of Pakistan (1973), Art.185(3)---Order of relieving from service---Inefficiency and absence from duty, charges of---Imposition of such penalty by competent authority in terms of Regln.7(b) of Zarai Taraqiati Bank's Staff Service Regulations, 2005 without resorting to provisions of Removal from Service (Special Powers) Ordinance, 2000---Validity---Practical effect of word "relieved" front service as used in impugned order was deprivation of petitioner from source of his livelihood---Respondent-Bank was a corporate body owned, managed and controlled by Federal Government for purposes of Removal from Service (Special Powers) Ordinance, 2000 even after enforcement of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002---Provisions of said Ordinance, 2000 were applicable to Bank as per its own Circular dated 31-1-2008 having revised thereby delegation of powers to its various officers under Ordinance, 2000---Competent authority had special powers under Ordinance, 2000 to proceed against petitioner being in Corporation Service---Petitioner under Ss.3 and 5 of Ordinance, 2000 was entitled to defend himself and explain his position in inquiry; and upon any action taken against him under Ordinance, 2000 had right to avail remedy of representation and file appeal before Service Tribunal---Competent authority by not adhering to provisions of Ordinance, 2000 had deprived petitioner of safeguards and remedies available to him under law---Adoption of course of passing a relieving order appeared to be a ruse to circumvent inquiry proceedings provided for by Ordinance, 2000---Court could not countenance such a colourable exercise of power---Supreme Court declared impugned order to be without lawful authority and ordered for reinstatement of petitioner into service leaving open for Bank to proceed against hint under Ordinance, 2000.?

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

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Respondent in person.

Date of hearing: 8th May, 2009.

2010 P L C (C.S.) 946

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

DIRECTOR-GENERAL INTELLIGENCE BUREAU, ISLAMABAD and others

Versus

AMIR MUJAHID KHAN and others---Respondents

Civil Appeals Nos. 710 to 719 of 2009, decided on 13th October, 2009.

(On appeal from the judgment dated 31-12-2008 passed by Federal Service Tribunal, Islamabad, in Service Appeals Nos.739(R)CS/2007, 740(R)CS/2007, 741(R)CS/2007, 742(R)SC/2007 and 16(Q)CS/2007).

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

----S.8---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.8-B---Civil Servants (Seniority) Rules, 1993, R.3---ESTACODE Edition, 2000, SI.Nos.147 & 148---Constitution of Pakistan (1973) Art.212(3)---Leave to appeal was granted by Supreme Court to consider the question which involved seniority of three categories of employees, the first category was of those employees who were promoted to grade 18 prior to appointment of direct recruits; the second category was of direct recruits; and third category was of the promotees who were promoted on acting charge basis as they were not qualified for appointment like first category on account of their incomplete length of service, which question assumed more importance in view of the contention of respondents that even earlier promotees were not eligible for promotion as their length of service required for grade 18 was not complete in grade 17 but their length of service in grade 16 was included, which under the law could not be.

(b) Civil Servants (Seniority) Rules, 1993---

----R.6---Seniority---Principle---Departmental promotees are regarded senior to direct recruits of same year as per Rule 6 of Civil Servants (Seniority) Rules, 1993.

Fasihuddin Siddiqui's case 1998 SCMR 537; Muhammad Yousaf's case 1996 SCMR 1297 and Rustam Khan's case 1994 SCMR 1957 rel.

(c) Civil service---

----Seniority, fixation of---Principles---Seniority is not a vested right---Seniority in grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade---Seniority cannot be conferred retrospectively unless such right was established---Regular seniority from retrospective date is not permitted and is beyond the power of government---Civil servants who were senior in lower grade retain inter se seniority in higher grade in case they were promoted in a batch.

Nazeer Ahmed's case 2001 SCMR 352=2001 PLC (C.S.) 394; Muhammad Yousaf's case 1996 SCMR 1297; Muhammad Zakir Khan's case 2004 SCMR 497; Jehangir Mirza's case PLD 1990 SC 1013; Wajahat Hussain's case PLD 1991 SC 82 and Sh. Anwar Hussain's case 1985 SCMR 1201 rel.

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

----S. 8---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.8-B---Civil Servants (Seniority) Rules, 1993, R.3---ESTACODE Edition, 2000, Sl.Nos.147 & 148---Seniority---Departmental promotees---Direct appointees---Promotion on acting charge basis---Scope---Respondents were aggrieved of provisional seniority list/gradation list against which their departmental representations were dismissed but Service Tribunal allowed their appeals---Effect---Respondents regained their original seniority on subsequent promotion so long the order of Departmental Promotion Committee dated 18-8-2005, remained in field---Subsequently the respondents were not promoted on permanent basis, thus, it was presumed that they were considered and were not promoted due to lack of requisite length of service, therefore, such respondents could not be granted seniority front original date of their consideration for promotion---Supreme Court partly accepted appeals to the extent of respondents who were not promoted on permanent basis but were appointed on acting charge basis and dismissed to the extent of respondents who were promoted on permanent basis---Fresh appointees were juniors to departmental appointees who were promoted in same year by Departmental Promotion Committee in its meeting held on 18-8-2005 whereas they were senior to the promotees who were promoted in subsequent year, 2006---Supreme Court declined to decide issue of inter se seniority of promotees as the same was not an issue before the court---Such issue of inter se seniority could not be decided in collateral proceedings---Appeal was disposed of accordingly.

Muhammad Gulshan Khan's case PLD 2003 SC 102; Ch. Muhammad Saleem's case 1994 SCMR 517 and Luqman Zareen's case 2006 SCMR 1938 ref.

Abdul Ghani Chaudhry's case 1998 PLC (C.S.) 1278 and Sabir Shah's case PLD 1994 SC 738 rel.

(e) Civil Servants (Seniority) Rules, 1993---

----R. 3, proviso (c)---Promotion---Principle---If promotion of civil servant is deferred without any fault on his part, such civil servant can be given promotion from ante date when his juniors were promoted.

Muhammad Jan Marwat's case 1997 PLC (C.S.) 512 rel.

(f) Administration of justice---

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

Trustees of the Port of Karachi's case 1994 SCMR 2213 rel.

Shah Khawar, Dy. Attorney-General, Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-­on-Record for Appellants (in C.A. Nos. 710 to 714 of 2009).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. Nos. 715 to 719 of 2009).

Haider Hussain, Advocate Supreme Court for Respondent No.1 (in all cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos. 2, 4, 9, 11 (in C.A. Nos. 710 to 714 of 2009).

Date of hearing: 28th September, 2009.

2010 P L C (C.S.) 1001

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

DIRECTOR-GENERAL OF CIVIL AVIATION AUTHORIYT, KARACHI

Versus

ABDUL TOUHEED KHAN

Civil PetitionNo.1467 of 2008, decided on 5th December, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 19---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)--Pensionary benefits, claim for---Respondent originally was appointed as Assistant Accounts Officer in the office of Auditor-General of Pakistan; he proceeded on leave preparatory to retirement for a period of one year---Before expiry of said leave, he was re-employed by the Civil Aviation Authority as Deputy Manager (Accounts) and after service of about 10 years, he finally was retired---Respondent filed constitutional petition before High Court claiming his pensionary benefits for his said service of about 10 years, which constitutional petition was allowed and authorities were directed to calculate pensionary benefits of respondent/employee in accordance with rules---Authorities filed petition for leave to appeal against order of the High Court and contended that constitutional petition filed by the employee suffered from gross laches as he cane forward with the delay of seven years after receiving his gratuity---Validity---Respondent/employee joined the service of petitioner while he was still in the service of Auditor-General of Pakistan and his leave preparatory to retirement had not yet expired---In view of the length of his service for about 10 years, High Court was justified on equitable grounds to direct petitioner/authority to grant pensionary benefits to the respondent---Appeal of employee before Service Tribunal remained pending for considerable period, when same stood abated---Question of laches, in circumstances, would not arise in the case---Impugned judgment was just and fair to which no exception could be taken.

Mobeen-ul-Islam's case PLD 2006 SC 602 ref.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Abdul Rehman Abbasi, Senior Legal Officer (North), CAA.

Date of hearing: 5th December, 2008.

2010 P L C (C.S.) 1009

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Zia Pervez and Sabihuddin Ahmed, JJ

Raja MUSHTAQ AHMED BHATTI

Versus

DIRECTOR-GENERAL and another

Civil Appeal No.1057-K of 2005 arising out of Civil Petition No.458 of 2005, decided on 30th September, 2008.

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

----S. 3---Government Servants (Efficiency and Discipline) Rules, 1973, R. 5---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art.212(3)---Issuance of first charge-sheet under Government Servants (Efficiency and Discipline) Rules, 1973---Withdrawal of first order of penalty by Department during pendency of appeal in Service Tribunal on the ground that Government Servants (Efficiency and Discipline) Rules, 1973 had ceased to be in force at relevant time---Issuance of second charge-sheet and initiation of fresh disciplinary proceedings against appellant under Removal from Service (Special Powers) Ordinance, 2000 on basis of allegations contained in first charge sheet and imposition of second penalty of compulsory retirement from service---Conversion of second penalty of compulsory retirement into reduction to a lower post by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider whether fresh charge-sheet could be issued to appellant on same charges/allegation under Removal from Service (Special Powers) Ordinance, 2000 after recalling/rescinding first order of penalty on the ground that departmental proceedings were inadvertently initiated under Rules, 1973, which had ceased to be in force at relevant time after promulgation of the Ordinance.

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

----S. 3---Government Servants (Efficiency and Discipline) Rules, 1973, R.5---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Imposition of penalty of reduction to a lower grade---Issuance of first charge-sheet under Government Servants (Efficiency and Discipline) Rules, 1973---Withdrawal of order of imposition of such penalty by Department during pendency of appeal in Service Tribunal on the ground that Rules, 1973 had ceased to be in force at relevant time after promulgation of Removal from Service (Special Powers) Ordinance, 2000---Issuance of second charge-sheet and initiation of fresh disciplinary proceedings against appellant under the Ordinance on basis of allegations contained in first charge-sheet and imposition of second penalty of compulsory retirement from service---Conversion of second penalty of compulsory retirement into reduction to a lower post by Tribunal---Validity---Withdrawal of first order of penalty having resulted in appellant's withdrawing his appeal before Service Tribunal had amounted to exonerating/absolving him of all charges/allegations levelled against him in first charge-sheet and would be deemed to have been washed off---By withdrawal of first order of penalty, certain rights and privileges had accrued in favour of appellant, which could not be taken away by initiating fresh disciplinary proceedings meant to overcome earlier illegal action, which was not in force at relevant time---Allowing department to do so would result in causing serious prejudice to appellant as second charge sheet would suffer from legal flaws including question of limitation---Supreme Court set aside impugned order and second departmental order of penalty and reinstated appellant in service with all back benefits, which could not be denied to him on account of illegality committed by department.

Shabbir Ahmed Awan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellant.

Rizwan Ahmed Sididqui, D.A.-G. along with Waheed Akhtar, Assistant Director, NIPA.

Date of hearing: 30th September, 2008.

2010 P L C (C.S.) 1057

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SALEEM AHMAD

Versus

DIRECTOR AUDIT and another

Civil Petition No.309-K of 2008, decided on 4th November, 2008.

(On appeal from order dated 20-3-2008 of the Federal Service Tribunal, Karachi passed in Appeal 129(K)CS/2000).

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

----Rr. 4(1)(a)(ii) & 5---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Penalty of withholding of two increments was imposed upon the petitioner after serving him with charge sheet and holding inquiry against him on certain allegations---Contention of the petitioner was that the Director of Audit, who issued the show-cause notice to the petitioner and consequently imposed the penalty, was not competent in law either to issue show-cause notice or to impose penalty upon the petitioner, as he was an officer of BS-19---Validity---Substantive grade of the petitioner being BS-16, Director of Audit who was officer of BS-19, was competent to issue show-cause notice---Contention of the petitioner was thus repelled---No question of law of public importance within the contemplation of Art.212(3) of the Constitution having been raised, leave to appeal was dismissed.

Ahmadullah Faruqi, Advocate Supreme Court/Advocate on Record for Petitioner.

Abdul Khalique, Audit Officer for Respondents.

2010 P L C (C.S.) 1075

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

SECRETARY, MINISTRY OF HEALTH, GOVERNRMENT OF PAKISTAN, ISLAMABAD and another

Versus

Dr. REHANA HAMEED and others

Civil Appeal No.969 of 2009, decided on 29th September, 2009.

(On appeal against the judgment dated 19-3-2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No.815(R)CS/2008).

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

----Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether policy of government was in conflict with fundamental rights or ultra vires or mala fides; whether grant of higher pay scale on the basis of meritorious service was part of terms and conditions of service of a civil servant; whether it was not for the competent authority to determine eligibility of civil servant for grant of higher grade; and whether Service Tribunal was competent to set aside policy framed by government.

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

----S.24-A---Speaking order---Scope---Public functionaries are obliged to redress grievances of citizens/their subordinates with reasons.

Messrs Airport Services's case 1998 SCMR 2268 rel.

(c) Good governance---

----Public functionaries, duties of---Scope---Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fair play and social justice---Public functionaries are expected to act fairly and justly in manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.

Muhammad Zafar Abbasi's case 2003 PLC (C.S.) 503 rel.

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

---Art. 212 (3)---Jurisdiction of Supreme Court---Substituting finding of Service Tribunal---Scope---Supreme Court, while exercising power under Art. 212 (3) of the Constitution, cannot substitute its own finding in place of finding of Service Tribunal.

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

---S. 9---Promotion---Vested right---Policy framed by government, setting aside of---Jurisdiction of Service Tribunal---Scope---Respondent was not recommended by Central Selection Board for her promotion but Service Tribunal allowed the appeal---Validity---No employee had vested right in promotion but where rules, regulations and policy had been framed for appointment or promotion for mala fide reasons or due to arbitrary act of competent authority, aggrieved person was entitled to challenge the same---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

I.A. Sherwani's case 1991 SCMR 1041 and Muhammad Inshaullah's case PLD 1988 SC 155 ref.

Shah Khawar, Deputy Attorney-General and M.S. Khattak, Advocate-on-Record for Appellants.

Afnan Karim, Kundi, Advocate Supreme Court for Respondent No.1.

Date of hearing: 29th September, 2009.

2010 P L C (C.S.) 1088

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

CHIEF MANAGER, STATE BANK OF PAKISTAN, LAHORE and another

Versus

MUHAMMAD SHAFI---Respondent

Civil Petition No.1188-L of 2004, decided on 6th October, 2009.

(Against the judgment dated 19-1-2004 passed by the Federal Service Tribunals, Lahore in Appeal No.421(L)(C.E.)/2000).

State Bank of Pakistan Act (XXXIII of 1956)---

----S. 54---State Bank of Pakistan Staff Regulations, 1999---Constitution of Pakistan (1973), Art.212 (3)---Non-statutory rules-Abating of proceedings---Employee after tendering his resignation, filed application to withdraw the same---Authorities did not allow the employee to withdraw his resignation but Service Tribunal allowed the appeal and permitted him to withdraw his resignation---Validity---Rules framed by Central Board of Directors did not require approval of Government, therefore, State Bank of Pakistan Regulations, 1999 could be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations---Case of employee fell within the category of cases which stood abated with the result that proceedings and judgment rendered by Service Tribunal also stood nullified, therefore, petition for leave to appeal and judgment of Service Tribunal stood abated---Supreme Court allowed a period of 90 days to the employee to have recourse to available remedies before competent forum---Petition was disposed of accordingly.

Muhammad Mobeen-us-Salam's case PLD 2006 SC 602; State Bank of Pakistan v. Agha Aurangzeb Civil Petition No.318 of 2005; Cadet College Kohat's case PLD 1984 SC 170; Zia Ghafoor Paracha's case 2004 SCMR 35 and Muhammad Idrees's case PLD 2007 SC 681 rel.

Noor Muhammad Khan Chandio, Advocate Supreme Court and Rehan Nawaz, Advocate Supreme Court, Senior Legal Advisor, State Bank for Petitioner.

Muhammad Ahmed Hasan Khan, Advocate Supreme Court for Respondent and Respondent in person.

Date of hearing: 30th September, 2009.

2010 P L C (C.S.) 1103

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Muhammad Akhtar Shahid Siddiqui, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

S.M. ISMAIL NAQVI and others

Civil Petitions Nos. 1588 to 1825 of 2008, decided on 17th June, 2009.

(On appeal against the judgment dated 9-10-2008 of the Federal Service Tribunal, Islamabad passed in Appeals No.74(R)CE/2001 to 311(R)CE/2001).

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

----S.4---Constitution of Pakistan (1973), Art. 212 (3)---Judgment passed by Service Tribunal---Implementation---Respondents . got retirement under Mandatory Retirement Scheme but petitioner Corporation did not pay them their dues---Appeal filed by respondents was allowed by Service Tribunal and the petitioner Corporation was directed to pay their dues---Validity---Respondents were employees of petitioner Corporation and were offered certain benefits in lieu of their proceeding on early retirement for certain considerations best known to petitioner Corporation---Beneficial aspect of the policy vis-a-vis concerned employees was dominant consideration and construction having the effect of depriving them of benefits envisaged therein could not be adopted---Admissibility of annual increments and encashment for PL/Leave Preparatory to Retirement were not allowed by way of concession---On the contrary they were the normal benefits/entitlements admissible to concerned employees, therefore, the same could not be withheld on any ground or principle governing interpretation of instruments, such as the Scheme in question---Supreme Court directed petitioner Corporation to accept the benefit of increments and encashment for PL/Leave Preparatory to Retirement within a period of one month---Leave to appeal was refused.

Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030 ref.

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

----S. 4---ESTACODE, 2007 Edition, Sr.No.11, Vol. II, P.1272---Judgment of Service Tribunal---Filing of appeal---Pre-condition---If it is decided, in consultation with Law and Justice Division that order passed by Service Tribunal does not involve any substantial question of law of public importance for moving Civil Petition for Leave to Appeal before Supreme Court, that order should be implemented forthwith under intimation to Registrar, Service Tribunal.

Shahid Anwar Bajwa, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (in all petitions).

Abdul Rahim Bhatti, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate on Record for Respondents (in all petitions.)

2010 P L C (C.S.) 1125

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Civil Petition No.1863 of 2009

EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD

through Chairman and another

Versus

Dr. M. TUFAIL HASHMI

(On appeal from the judgment dated 28-7-2009, passed by Federal Service Tribunal, Islamabad in Service Appeal No.1385(R)(CE) of 2004).

Civil Petition No.2191 of 2005

S.M.E. BANK LIMITED through Chief Executive Officer

Versus

Mrs. FARHAT ZAFAR and another

(On appeal from the judgment dated 18-6-2005, passed by Federal Service Tribunal, Islamabad in Service Appeal No. 35(L)(CE) of 2004).

Civil Petition No.804-K of 2009

IMAM BUX

Versus

CHAIRMAN, PAKISTAN STEEL BIN QASIM, KARACHI and another

(On appeal from the judgment dated 8-9-2009, passed by Federal Service Tribunal, Karachi in Service Appeal No. 802(K)(CE) of 2002).

Civil Petition No.1247 of 2009

LIAQAT ALI ABBASI

Versus

SECRETARY MINISTRY OF FINANCE, ISLAMABAD and another

?(On appeal from the judgment dated 18-5-2009, passed by Federal Service Tribunal, Islamabad in Service Appeal No.908(R)(CE) of 2004).

Civil Petitions Nos.12-K and 13-K of 2010

ZAHEER AHMED KHAN

Versus

PAKISTAN STEEL BIN QASIM KARACHI through Chairman and others

(On appeal from the judgment dated 28-9-2009, passed by Federal Service Tribunal, Karachi in Service Appeal No.7(K)(CE) of 2002).

Civil Petitions Nos.62 and 64 of 2010

EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and another

Versus

Mrs. ZAMURAT MEHMOOD and others

(On appeal from the judgment dated 14-11-2009, passed by Federal Service Tribunal, Islamabad, in Service Appeal No.108(R)CE to 110(R)CE of 2003).

Civil Petitions Nos.1863 of 2009, 2191 of 2005, 804-K of 2009, 1247 of 2009, 12-K of 2010, 13-K of 2010, 62 and 64 of 2010, decided on 13th April, 2010.

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

----S.4---Expression "civil servant"---Scope---Except the employees whose services are governed by statutory rules, others do not fall within the definition of `civil servant'.?

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

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

---Ss. 2 (c), 2 (d), 9 & 10---Service Tribunals Act (LXX of 1973), S.4---Appeal before Service Tribunal---Maintainability---Employees of non-statutory corporation---Master and servant, principle of---Applicability---Major penalties imposed on respondents under the provisions of Removal from Service (Special Powers) Ordinance, 2000, were set aside by Service Tribunal in exercise of jurisdiction under S.4 of Service Tribunals Act, 1973---Plea raised by authorities was that as respondents were not civil servants, therefore, Service Tribunal had no jurisdiction to decide the appeal---Validity---Persons in corporation service' or persons ingovernment service', as defined in S.2(c) and (d) of Removal from Service (Special Powers) Ordinance, 2000, could be subjected to the provisions of the Ordinance---Only those employees could approach Service Tribunal, who fell within the definition of civil servant', holding posts in connection with the affairs of Federation---Remaining categories of employees, including contractual ones, if they were aggrieved of any adverse action, Service Tribunal was not the appropriate forum for redressal of their grievance---Service Tribunal was the forum constituted under Art. 212 of the Constitution for redressal of grievance of those employees, whose terms and conditions were settled under Art. 212 (1) (a) of the Constitution---Any action taken against persons not falling within the definition of civil servant, would not be questionable before Service Tribunal as it was not meant to provide a forum to employees, whose services were governed by non-statutory rules on who did not fall within the definition of person ingovernment service' as defined in S.2(d) of Removal from Service (Special Powers) Ordinance, 2000---Employees of non-statutory corporations, who approached Service Tribunal for redressal of their grievance were not enjoying the protection of statutory rules, therefore, Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of Master and Servant---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Appeal was allowed.?

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Pakistan Telecommunication Company Ltd. v. Muhammad Zahid 2010 SCMR 253 and Pakistan International Airline Corporation v. Tanweer-ur-Rehman Civil Appeal No.172-K of 2009 rel.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioners (in Civil Petitions Nos.1863 of 2009, 62 and 63 of 2010).

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in Civil Petition No.1247 of 2009).

Nemo for Petitioners (in Civil Petitions Nos.804-K of 2009, 12-K and 13-K of 2010).

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents (in Civil Petition No1863 of 2009).

Tariq Mehmood, Senior Advocate Supreme Court and M. Shoaib Shaheen, Advocate Supreme Court for Respondents (in Civil Petitions Nos.1247 of 2009, 62 and 64 of 2010).

Anwar Mansoor Khan, Attorney-General for Pakistan on Court Notice.

Dates of hearing: 8th and 9th February, 2010.

2010 P L C (C.S.) 1143

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Khilji Aril Hussain, JJ

MUHAMMAD ABDUL MOIED

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Housing and Works and others

Civil Appeal No.1854 of 2008 and Civil Petition No.719 of 2010, decided on 9th July, 2010.

(On appeal against the judgment dated 10-9-2008 passed by Federal Service Tribunal, Islamabad in AppealNo.405(R)(CS) of 2006 and against the order dated 3-3-2010 passed by Lahore High Court, Rawalpindi Bench in Civil Revision No.154-D of 2010).

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

---Ss. 3 & S---Reinstating in service---Major penalty---Regular inquiry, dispensation of---Principle---Civil servant remained absent due to his illness and authorities without holding regular inquiry, dismissed him from service---Service Tribunal converted penalty of dismissal from service into removal from service---Validity---In view of allegations levelled against civil servant and several applications for leave on medical grounds as also medical certificates submitted by him before competent authority in department and realization of department itself that he needed to be examined by a Board regarding his health, it was imperative and in the interest of justice that a regular inquiry should have been conducted---For awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry was called for---Supreme Court set aside the judgment passed by Service Tribunal and reinstated the civil servant in service---Appeal was allowed.

Alamgir v. Divisional Forest Officer 1993 SCMR 603; Province of Punjab v. Muhammad Siddique Khan 2000 SCMR 1321; Zahoor Ahmed v. WAPDA, 2001 SCMR 1566 and Rashid Mehmood v. Additional Inspector-General of Police 2002 SCMR 57 ref.

Petitioner/Appellant in person.

Abid Saqi, D.A.-G. for Respondents (in both cases).

Muhammad Ashraf, Joint Estate Officer, Estate Office, Islamabad for Respondents (in C.P. No.719 of 2010).

Date of hearing: 9th July, 2010.

2010 P L C (C.S.) 1165

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

MUHAMMAD ZAMEER

Versus

D.I.-G. POLICE D.G. KHAN and another

Civil Appeal No.1358 of 2006, decided on 13th February, 2008.

(On appeal from the judgment and order of Punjab Service Tribunal, Lahore, dated 4-5-2005, passed in Appeal No.632 of 2005).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Plumber in Police Department---Termination of service on ground of registration of criminal case against appellant---Dismissal of appeal by Service Tribunal on ground of conviction of appellant by Trial Court---Refusal of authority to reinstate appellant in service after his acquittal from criminal case by High Court---Dismissal of subsequent appeal by Service Tribunal for lacking power to entertain same with respect to matter decided earlier---Validity---Supreme Court granted leave to appeal to consider question as to whether subsequent appeal against an order passed by competent authority declining to reinstate appellant was maintainable before Service Tribunal or not.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Plumber in Police Department---Termination of service on ground of registration of criminal case against appellant---Dismissal of appeal by Service Tribunal on ground of conviction of appellant by Trial Court---Refusal of authority to reinstate appellant in service after his acquittal from criminal case by High Court---Dismissal of subsequent appeal by Service Tribunal for lacking power to entertain same with respect to matter decided earlier---Validity---Appellant had not been terminated on basis of initiation of any disciplinary proceedings---Sole and alone ground of conviction of appellant in criminal case had evaporated and stigma had extinguished after his acquittal by High Court, which created a fresh cause of action in his favour---Termination order based on conviction of appellant could not remain in field, when conviction itself had not attained finality from High Court---After passing of judgment of acquittal by High Court, judgment of conviction passed by Trial Court lost its validity, thus, ground of termination of service could be reconsidered through fresh appeal---Fresh cause of action was created in favour of appellant to file a fresh appeal before Service Tribunal, which was competent---Supreme Court remanded case to Service Tribunal for deciding appeal on merits.

Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 and Deputy Inspector of Police Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Qazi Muhammad Amin, Additional.

Advocate-General, Punjab for Respondents.

Date of hearing: 13th February, 2008.

2010 P L C (C.S.) 1183

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION and others

Versus

HAMAYUN IRFAN and 2 others

Civil Appeals Nos.2139 to 2141 of 2004, decided on 18th March, 2010.

(On appeal from the judgments dated 16-9-2004, 27-10-2004 and 18-10-2004 passed by the Federal Service Tribunal, Lahore, in Appeals Nos.720(L)(CE), 135(L)(CE) of 2000 and 454(L)(CE) of 2001).

(a) State Life Employees Service Regulations, 1973---

----Regln. 4 (ii) (c) (2)---Constitution of Pakistan (1973), Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether competent authority had jurisdiction to review performance of employees after a period of one year or their performance should have been reviewed after three years in view of the judgment passed by Supreme Court; whether performance of employees was rightly adjudged on the closing of period of one year as it was mentioned in the appointment letter; and whether employees in view of the facts and circumstances of the case were entitled for back benefits.

Chairman, State Life Insurance Corporation of Pakistan and another v. Ali Muhammad Bangash 2002 SCMR 936 and The Chairman, State Life Insurance Corporation of Pakistan and others v. Muhammad Siddique (Civil Petition Nos. 1213 to 1215 and 131(sic) to 1315 of 2003) ref.

(b) State Life Insurance (Nationalisation) Order (X of 1972)---

----Art. 49---State Life Employees Service Regulations, 1973, Regln.4(ii)(c)(2)---Statutory regulations---Pre-conditions---State Life Insurance Corporation has an authority to frame regulations with regard to terms and conditions of their employees with previous approval of Federal Government---State Life Employees Service Regulations, 1973, were framed with previous approval of Federal Government vide notification duly published in official gazette---Article 49 of State Life Insurance (Nationalisation) Order, 1972, mandated the ingredients to be complied with while framing the regulations that previous approval of Federal Government was to be obtained; regulations to be notified in the official gazette and regulations must not be inconsistent with State Life Insurance (Nationalisation) Order, 1972---All such ingredients have been fulfilled and complied with by competent authority, therefore, State Life Employees Service Regulations, 1973, had the status of statutory regulations.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Anwar Hussain v. Agriculture Development Bank of Pakistan and others PLD 1984 SC 194 and Chairman WAPDA and others v. Syed Jamil Ahmed 1993 SCMR 346 distinguished.

(c) Interpretation of statutes---

----Statutory regulations---Scope---Statutory regulations mean regulations which are legislative (as opposed to executive) made by a rule making authority in exercise of statutory power with the approval of Federal Government, or Provincial Government; it is the exercise of delegated legislative power by rule making authority---Making and promulgation of rule should be attended by certain formalities e.g. publication in government gazette---Regulations framed under statutory power after completing all legal formalities are within the ambit of relevant status is of statutory regulations.

Principle Cadet College Kohat v. Muhammad Shohaib Qureshi PLD 1984 SC 170; Subedar Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435; Mr. S.M. Zafar in his book `Understanding Statutes'; National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and others 1993 SCMR 105 and Chief Manager, State Bank of Pakistan Lahore and another v. Muhammad Shafi C.P. No.1188-L of 2004 ref.

(d) Precedent---

----Judgment of Supreme Court---Conflict in judgments---Principle---In case of conflict between judgments of Supreme Court, the judgment of larger Bench prevails.

Multilides Associate's case PLD 1995 SC 423 rel.

(e) State Life Employees Service Regulations, 1973---

----Regln. 4(ii)(c)(2)--- General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts.4 & 5(2)---Reinstatement in service---Evaluation of performance---Criteria---Public functionaries---Decision of cases of employees by employer/functionaries---Principle---Respondents were employees of appellant corporation and their services were terminated on the basis of average poor performance for previous years---Service Tribunal reinstated respondents in service with back benefits and allowed appellant corporation to re-evaluate performance of respondents according to the criteria fixed by Supreme Court---Validity---It was duty and obligation of public functionaries to decide cases of their subordinates after application of mind in view of Arts. 4 and 5(2) of the Constitution---Duty and obligation of competent authority under S.24-A, General Clauses Act, 1897 to decide cases of subordinates after application of mind with reasons---Substantial justice was done by Service Tribunal through its judgments and Supreme Court declined to exercise its discretion in favour of appellant corporation as the corporation failed to raise any question of public importance as contemplated in Art.212(3) of the Constitution---Appeal was dismissed.

Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education Rawalpindi and others 2004 SCMR 35; Asad Bashir v. Chairman Board of Intermediate and Secondary Education Lahore and others 2006 PLC (C.S.) 110; Anwar Hussain v. Agriculture Development Bank of Pakistan and others 1992 SCMR 1112; Dr. Muhammad Amin v. President Zari Taraqiati Bank Limited C.P.No.2726 of 2004; Yar Muhammad v. Water and Power Development Authority through Chairman and 2 others 1995 SCMR 46; Multilines Associate's case PLD 1995 SC 423; Mazullah Khan v. Zonal Head, State Life Insurance Corporation of Pakistan, Peshawar and others 2008 SCMR 617 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

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

----Art. 212 (3)---Supreme Court, jurisdiction of---Finding of fact---Scope---Supreme Court generally does not interfere with finding of fact recorded by Service Tribunal while exercising power under Art.212 (3) of the Constitution.

Ch. Muhammad Azim v. Chief Engineer, Irrigation and others 1991 SCMR 255 rel.

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

----Art. 212 (3)---Jurisdiction of Supreme Court under Art. 212(3) of the Constitution is always discretionary in character.

Sher Zaman Khan, Advocate Supreme Court for Appellants (in all cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent (in Civil Appeal No.2139 of 2004).

Arshad Ali Ch. Advocate-on-Record for Respondent (in Civil Appeal No.2140 of 2004).

Respondent in person (in Civil Appeal No.2141 of 2004).

Date of hearing: 18th March, 2010.

2010 P L C (C.S.) 1216

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Syed Zawwar Hussain Jaffery, JJ

CHIEF EXECUTIVE HESCO (WAPDA), HYDERABAD and another

Versus

SIKANDAR ALI KHAWAJA

Civil Petition No.981 of 2008, decided on 28th May, 2009.

(Against the judgment, dated 30-4-2008 passed by Federal Service Tribunal, Islamabad in Appeal No. 1725(R)(C.E.) of 2004).

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

----Ss. 3 & 5---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement from service---Employee of WAPDA---Illegal gratification taken by appellant, charge of---Issuance of show-cause notice by Chief Engineer on basis of fact finding enquiries---Conversion of such penalty by Service Tribunal into reduction of time scale by two steps for three years without cumulative effect---Validity---Departmental authority had not held any regular inquiry to prove charge against appellant---Chief Engineer was competent authority to issue show-cause notice to appellant---Appellant had not challenged punishment awarded to him by Service Tribunal, which reflected his involvement in such charge---Impugned judgment was based on proper appreciation of material available on record---Supreme Court dismissed petition for leave to appeal in circumstances.

Syed Almas Haider Kazmi, Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Petitioner.

Abdul Rahim Bhatti, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent.

2010 P L C (C.S.) 1222

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

IMTIAZ ALI and another

Versus

HABIB BANK LIMITED

H.R. Case No.710-P of 2009, decided on 12th January, 2010.

(On application of Imtiaz Ali and another, former employees of the Habib Bank Limited).

Constitution of Pakistan (1973)---

----Art. 184---Retrenchment of employees under a Scheme---Payment of additional sum to retrenched employee as ex-gratia payment---Case initiated on application of former employees of the Bank, pertained to the retrenchment of 2343 employees made pursuant to a Retrenchment Scheme for "all Manual/non-clerical Employees" of the Bank---Representatives of the retrenched employees and management of the Bank, entered into negotiation for some settlement, whereby the Bank agreed to pay an additional sum as ex-gratia payment to retrenched employees---Representatives of the retrenched employees had left to the Supreme Court to determine the reasonableness of the additional compensation which was fair in the circumstances---Offer made by the Bank, was duly accepted and retrenched employees would be paid additional ex-gratia payment in accordance with terms of the offer.

Applicants in person.

S.M. Zafar, Senior Advocate Supreme Court Ali Zafar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Abdul Rahim Bhatti, Advocate Supreme Court (as amicus curiae) on Court's notice.

2010 P L C (C.S.) 1241

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO.9 OF 2010

Suo Motu Case No.9 of 2010, decided on 23rd July, 2010.

(Suo Motu Action regarding Non-Payment of Benevolent Grant to the applicant Mst. Bushra wife of Syed Yousaf Shah).

West Pakistan Railways Servants Benevolent Fund Ordinance (V of 1969)---

----S. 4(a)(1)---Federal Government Employees Benevolent Fund and Group Insurance Rules, 1972---Notification No. 16/1/2005-E-I, dated 21-7-2010---Constitution of Pakistan (1973), Art.184(3)---Suo Motu jurisdiction of Supreme Court---Benevolent Fund---Petitioner was widow of railway employee and her grievance was that Federal Government had revised the rate of Benevolent fund but Railway had not increased the same---Validity---Ministry of Railways and its attached departments and subordinate officers had adopted the rates of disbursement of benevolent fund grants applicable in Federal Government Employees Benevolent Fund and Group Insurance Rules, 1972, with effect from 1-12-2003---Any increase in the rate of benevolent grants in future by Federal Government would also be adopted in railway department---In pursuance of Notification No.16/1/2005-E-I, dated 21-7-2010, families of retired railway employees for the purpose of payment of benevolent fund and group insurance had been brought at par with retrospective effect and apparently discrimination pointed out by petitioner in her suo motu case stood removed---Petitioner along with other widows would also receive benevolent fund at the same rate which was being paid to the employees of Federal Government---Suo Motu petition was disposed of.

Nemo for Applicant.

Abdul Hafeez Amjad, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Sami-ul-Haq Khilji, Secretary Pakistan Railways on Court's Notice.

2010 P L C (C.S.) 1251

[Supreme Court of Pakistan]

Present: Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

Mst. ROQIAZA AKBAR and others

Versus

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

C.P.L.As. Nos.480-P to 483-P of 2007, decided on 1st April, 2009.

(On appeal from the order/judgment, dated 6-7-2007 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.729, 731 to 733 of 2006).

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

----S. 4---Appeal---Termination of service---Dismissal of departmental appeal for being barred by time---Effect---Utilization of departmental remedy was condition precedent towards maintainability of appeal before Service Tribunal---Where appeal before departmental authority was barred by time, then appeal before Tribunal would also be incompetent---Tribunal dismissed appeal as not maintainable.

Muhammad Aslam v. WAPDA and others 2007 SCMR 513; Muhammad Ramzan v. Inspector-General of Police 2007 SCMR 346; Chairman, Evacuee Trust Property Board and others v. Khawaja Shahid Nazir 2006 SCMR 1862; N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453; S.M. Afzal­-ur-Rehman v. Federation of Pakistan and others 2005 SCMR 1322 and The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 rel.

Mir Adam Khan, Advocate Supreme Court/Advocate-on-Record for Petitioners (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 1st April, 2009.

2010 P L C (C.S.) 1269

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works, Islamabad and another

Versus

ABRAR AHMED and others

Civil Petition No.1090 of 2009, decided on 3rd August, 2009.

(On appeal from the judgment, dated 13-4-2009 passed by the Islamabad High Court in Writ Petition No.1623 of 2008).

Accommodation Allocation Rules, 2002---

----Rr. 6 & 15(2)---Civil Servants Act (LXXI of 1973), S.25---Fundamental Rules, 45 & 45-A---Constitution of Pakistan (1973), Arts.4 & 185(3)---General Clauses Act (I of 1897), S.24-A---Constitutional petition---Cases of allotment of government accommodations to serving children or spouses of deceased or retired government servants---Letter dated 5-6-2008 issued by Ministry of Housing & Works directing Estate Officer to hold such cases in abeyance till further order---Validity---Authority had not given any reason for holding in abeyance R.15(2) of Accommodation Allocation Rules, 2002---Authority was bound to substantiate its direction reasonably, . fairly and justly for advancement , of purposes of enactment---Serving widow or children, if eligible or otherwise become eligible within a period of one year, would be entitled to allotment of same accommodation, if they were entitled for same class and in case accommodation was of a category higher than their entitlement, they would be entitled to get 'allotment of first available accommodation of their class or category, but they would not be entitled to retain accommodation for more than one in any case according to proviso in R.15(2) of Accommodation Allocation Rules, 2002---In case serving spouse or children of retired servant, if eligible and otherwise become entitled for accommodation within a period of six months, could retain same accommodation and in case accommodation was higher their entitlement, they might apply in writing for allotment in accordance with their eligibility in lieu of occupied accommodation, but would not be entitled to retain accommodation of higher category than their entitlement after six months of retirement of their predecessor---High Court rightly declared impugned order to be without lawful authority and against guarantees envisaged in Art. .4 of the Constitution and S.24-A of General Clauses Act, 1897 while- directing authority to maintain general waiting list in accordance with R. 6 of Rules, 2002 and dispose of cases of petitioners in light of R. 15 thereof within specified time.

Shah Khawar, D.A.-G. for Petitioners.

Abdur Raheem Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 3rd August, 2009.

2010 P L C (C.S.) 1291

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Raja Fayyaz Ahmed and Tariq Parvez, JJ

MUSHTAQ AHMAD KHOKHAR

Versus

PAKISTAN POST OFFICE through Director-General, Islamabad and another

Civil Petition No.818 of 2010, decided on 23rd July, 2010.

(On appeal from the judgment dated 8-3-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No.1065(R)(C.S.) of 2006).

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

----S. 10 & proviso--Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Appeal---Limitation---Reminders to department---Representation to departmental authority submitted by civil servant on 16-9-2001, remained not responded by department within 60 days from the submission of representation--- Civil servant was to prefer appeal to Service Tribunal within next 30 days of the expiry of the period of 60 days, which he did not avail, therefore, his appeal was dismissed by Service Tribunal being barred by limitation---Validity---Appeal preferred before Service Tribunal was barred by time and civil servant did not submit even application seeking for condonation of delay---After submission of departmental representation, followed by reminders dated, 30-9-2001, 3-7-2006 and 6-7-2006, made by civil servant, authorities vide letter dated 29-11-2006, addressed to civil servant, informed that his representation dated 16-9-2001, earlier submitted by him, was rejected by competent authority as barred by limitation, would not per se enlarge limitation period for filing appeal before Service Tribunal---In view of period of limitation for filing of appeal as envisaged by proviso to S.10 of Removal from Service (Special Powers) Ordinance, 2000, civil servant failed to raise any question of law of public importance---Supreme Court declined to interfere in judgment passed by Service Tribunal---Leave to appeal was refused.

Central Board of Revenue v. Chairman/Secretary, Revenue Division, Islamabad v. Shafiq Muhammad and another 2008 SCMR 1666 distinguished.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Mazhar Ali Ch. D.A.-G. for Respondents.

Muhammad Shakoor, Assistant Post Master-General, Rawalpindi Circle, Hameed Ullah, Assistant Superintendent Court Circle Office, Rawalpindi on Court notice.

Date of hearing: 23rd July, 2010.

2010 P L C (C.S.) 1305

[Supreme Court of Pakistan]

Present: Anwer Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jaffri, JJ

SHAFI MUHAMMAD SAAND

Versus

GOVERNMENT OF SINDH and another

Civil Appeal No.1779 of 2008 arising out of C.P.L.A. No.267-K of 2008, decided on 14th June, 2010.

(Against order and judgment, dated 31-1-2008 passed by the learned Sindh Service Tribunal at Karachi in Appeal No.368 of 2005).

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

----S. 4---Constitution of Pakistan (1973), Art.212---Appeal before Service Tribunal against order imposing minor penalty---Dismissal of appeal---Appellant who was dismissed from service, was reinstated in service by imposing some minor penalty---Subsequently, the appellant was retired from service after attaining the age of superannuation---During the process of recovery of pensionary benefits, appellant came to know that penalty of recovery of amount was imposed upon him---Appellant alleged that he was penalized without serving a charge-sheet, holding inquiry or giving him a show-cause notice---Appeal filed by the appellant before Service Tribunal had been dismissed---Validity---In view of order of reinstatement whereby minor penalty was imposed on appellant, it could not be said that minor penalty was result of separate allegation for which a separate departmental inquiry should have been initiated---Service Tribunal had examined all aspects of the case properly---No illegality or irregularity existed in the impugned order and same did not require any interference.

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Abdul Fateh Malik, Additional Advocate-General for the State.

Date of hearing: 14th June, 2010.

2010 P L C (C.S.) 1341

[Supreme Court of Pakistan]

Before Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui, and Asif Saeed Khan Khosa, JJ

M. ANWAR SIDHU

Versus

NATIONAL BANK OF PAKISTAN and others

Civil Appeal Ne.748/L of 2009, decided on 29th June, 2010.

(Against the judgment of the Federal Service Tribunal, dated 7-5-2001 passed in Appeal No.2044/L of 1998).

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

----S. 4---Constitution of Pakistan (1973), Art. 212(3)--Dismissal from service---Manager of National Bank of Pakistan---Misappropriation of Rs.2,000, charge of---Dismissal of appeal by Service Tribunal---Appellant's plea that he had an unblemished service record of more than 24 years in Bank; that he was not given opportunity of personal hearing either during inquiry proceedings or at stage of departmental appeal; and that in similar circumstances, Bank had allowed persons concerned to go on compulsory retirement rather than face stigma of dismissal from service---Validity---Supreme Court granted leave to appeal to consider questions as to whether appellant was given proper opportunity to defend himself; and whether compulsory retirement was a normal sentence awarded to him.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Manager of National Bank of Pakistan---Misappropriation of Rs.2000, charge of---Dismissal of appeal by Service Tribunal---Validity---Bank's counsel contended that on a number of occasions, appellant had withdrawn amount from certain accounts without a proper cheque, but had re-deposited same; and that no account holder had appeared during inquiry in support of even temporary embezzlement---Bank could not deny that appellant had an unblemished service record spreading over 26 years---Charge sheet framed against appellant did not find mention allegation of personal gain by him or loss to Bank---Withdrawal of various amounts from different accounts could have made out a case against appellant for temporary retention of amount, but there was no finding that he made any personal gain or caused any loss to Bank---Had appellant been granted copy of enquiry report and granted opportunity of personal hearing, then he would have explained bona fide of his acts/omissions, which had not been done---Penalty imposed on appellant was not proportionate to gravity of charge levelled---Appellant was not seeking de novo enquiry or reinstatement in service---Supreme Court set aside penalty of dismissal from service and converted same into compulsory retirement.

Ismail Brothers v. Keval Ram PLD 1981 SC 545 and Siddique Akbar v. Mian Abdul Majeed 2000 PLC (C.S.) 136 ref.

Federation of Pakistan through Secretary Finance v. Khalid Javed 2009 SCMR 720 rel.

Hafiz Tariq Nasim, Advocate Supreme' Court and Mahmudul Islam, Advocate-on-Record for Appellant.

MianQamar-uz-Zaman, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondents No.1 to 4.

2010 P L C (C.S.) 1350

[Supreme Court of Pakistan]

Before Sardar Muhammad Raza Khan and Anwar Zaheer Jamali, JJ

AMANULLAH SHAH

Versus

SECRETARY, AGRICULTURE DEPARTMENT GOVERNMENT OF SINDH and others

C.P.L.A. No.339-K of 2009, decided on 20th August, 2009.

(On appeal from judgment of Sindh Service Tribunal Karachi, dated 27-2-2009 passed in Appeal No.14 of 2008).

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

----S. 8(4)---Sindh Civil Servants (Probation, Confirmation, Seniority) Rules, 1974, R. 10(1)---Seniority---Unit Supervisor (BPS-11) in Agriculture Engineering Wing of Agriculture Department---Appointment of petitioner (diploma-holder) in BPS-11 regularized on 26-11-1989---Appointment of respondents (Degree holders) in same grade and pay scale in September 1993---Preparation of combined seniority list on yearly basis of all employees in BPS-11 including Diploma-holder Supervisor and Graduate Supervisor showing names of petitioner and respondents according to their respective seniority--Issuance of Notification dated, 11-8-2000 providing separate quota for promotion to post of Assistant Agriculture Engineer in BPS-17 amongst Graduate Supervisors and Diploma-holder Supervisors---Obtaining of Bachelor Degree by petitioner in year 2004---First and second segregated list of seniority of Graduate Supervisors in BPS-11 prepared on 1-1-2006 and 1-1-2007 respectively showing name of petitioner at Serial No.3 not challenged by anyone---Revised list of seniority prepared on 17-9-2007 placing name of petitioner at Serial No.13 below the name of respondents instead of Serial No.3 as mentioned in earlier seniority list dated, 1-1-2007---Validity----Notification dated, 11-8-2000 issued in terms of R.3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 was meant for determining quota for promotion to posts in BPS-17 and was not meant to determine or affect inter se seniority of Unit Supervisors, which would be computed from date of their regular appointment as envisaged under S.8(4) of Sindh Civil Servants Act, 1973 and R. 10(1) of Sindh Civil Servants, (Appointment Promotion and Transfer) Rules, 1974--Statutory provision regarding seniority would have overriding effect on such Notification to protect seniority of petitioner---Petitioner had obtained Bachelor Degree much before preparation of first segregated list of seniority of Graduate Supervisors and Diploma-holder Supervisors---Petitioner would be entitled for promotion to a higher post from date of his regular appointment---Relief of seniority asked for by petitioner against respondents was granted in circumstances.

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Yousaf Leghari Advocate-General, Sindh and Syed Farid Ali, S.O. and Sadar-ud-Din, A.O. for Respondents.

Respondent No.6 in person.

Date of hearing; 20th August 2009.

2010 P L C (C.S.) 1469

[Supreme Court of Pakistan]

Present; Javed Iqbal and Asif Saeed Khan Khosa, JJ

ABDUL MAJEED

Versus

PROVINCIAL POLICE OFFICER and 2 others

Civil Petition No.180-Q of 2009, decided on 11th May, 2010.

(On Appeal from the judgment, dated 30-10-2009 passed by the Balochistan Service Tribunal, Quetta in Service Appeal No.28 of 2009).

Police Rules, 1934---

----R. 9.7(2)---Balochistan Civil Servants Rules, 1979, R.12-A---Constitution, of Pakistan (1973), Art. 212(3)---Date of birth, alteration in---Age relaxation given by Chief Minister to civil servant after 35 years of his joining service---Dismissal of civil servant's appeal by Service Tribunal---Validity---Alteration in date of birth could be sought within two years of service---Civil servant could not furnish any explanation regarding his silence for such long period---Chief Minister had not exercised his discretion in accordance with law and settled norms of justice---Supreme Court dismissed petition for leave to appeal in circumstances.

Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Nisar Ahmad Khawaja v. Muhammad Usman Muhammad Khan Wasan 1980 SCMR 722; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Director Food v. Rashid Ahmad 1990 SCMR '1446; Province of Punjab v. Rao Abdul Jalil Khan 1989 SCMR 330; Abdul Razaq v. Province of Punjab 1980 SCMR 876; Muhammad Yaqub Sheikh, District Engineer, District Council, Toba Tek. Singh v. Government of Punjab through Secretary. Local Government and Rural Development Lahore and others 1987 SCMR 1354 and Director Food, Punjab, Lahore v. Muhammad Yasin Bhatti 1988, SCMR 496 rel.

M.W.N. Kohli, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 11th May, 2010.

2010 P L C (C.S.) 165

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C.J., Khawaja Shahad Ahmed, J

Civil Appeal- No.147 of 2001

Dr. ABDUL GHAFFAR SULEHRIA

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, and 4 others

(On appeal from the judgment of AJ&K Service Tribunal, dated 16-7-2001, in Service Appeal No.72 of 1997).

Civil Appeal No.148 of 2001

Lady Dr. ROBINA QAMAR QURESHI

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

(On appeal from the judgment of AJ&K Service Tribunal, dated 16-7-2001, in Service Appeal No.71 of 1997).

Civil Appeals Nos.147 and 148 of 2001, decided on 16th January, 2008.

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

----S. 4---Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, R.8---Appeal before Service Tribunal---Impleading of necessary parties---Term authority', meaning of---Termauthority' would mean a person or authority which was competent to appoint a civil servant; or one designated as such to proceed against civil servants under the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977; it also included functionaries of the State who could finally determine any right, term or condition of service of a civil servant---Appeal before the Service Tribunal could be filed by a civil servant who was aggrieved by any final order whether original or appellate made by a departmental authority and his memorandum of appeal, appellant had to implead the competent authority as the first respondent; and thereafter the parties to the dispute to be arrayed as other respondents---In the present case, order whereby respondents had been promoted had been passed by the Government, which being the only competent authority, had been arrayed as the first respondent---Phraseology and the 'way with words of R. 8 of Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, had mentioned only two respondents to be impleaded in the appeal---Competent authority which passed the final order in respect of terms and conditions of service, had to be impleaded as the first respondent and other parties to the dispute to be the second set of respondents---Parties to the dispute would mean those against whom a civil servant had some grievance in respect of inter se seniority and promotion---Selection Board or the Selection Committee, was not in fact a substitute of Public Service Commission, which all were basically recommendatory bodies, whose recommendations could or could not be accepted by the competent authority---Appellants being aggrieved after the issuance of \the notification by the Government, Selection Board was not a necessary party to be impleaded as respondent in appeal before Service Tribunal---Only the Government was a necessary party to be impleaded as respondent in appeal before Service Tribunal and Selection Board having not passed the final order adversely affecting the service right of the appellants, was not necessary party to be impleaded as respondent before the Service Tribunal.?

Dr. Abdul Ghaffar Sulehria v. Azad Government and others 2005 PLC (C.S.) 1233 ref.

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

----S, 44---Writ petition---Scope---Necessary party---Writ petition could be filed by an aggrieved party or person against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or Local Authority, which would mean the person who, while performing his functions passed an order which affected the right of a citizen, was a necessary party.?

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

----S. 4---Appeal to Service Tribunal---Scope---Appeal to the Service Tribunal would not lie against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post---Jurisdiction of the Service Tribunal was barred where the question of fitness of a civil servant for promotion was involved---Determination of eligibility of a civil servant was a question on which jurisdiction of the Service Tribunal had not been barred---Question of eligibility related primarily to the term and conditions of service and their applicability to the civil servant concerned.?

Secretary Government of Sindh Education Department and others v. Syed Riyazul Hussain Zaidi 1986 SCMR 64; Sarwar Hussain Shah v. Azad Government and 3 others 1997 PLC (C.S.) 302; Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khaton Malik and others PLD 1991 SC 1118 and Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 ref.

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

----S. 8---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Promotion, considerations for---Three things were to be seen while considering a case of promotion; the first rule was that; was it a part of selection or of seniority-cum-fitness or of seniority alone; second was, where the promotion was to take place by seniority-cum?fitness, the question would necessarily be assignment of the correct seniority and proceedings to determine the entitlement of promotion on its basis and third question necessarily would be a fitness for promotion---Principles of promotion and the assignment of proper seniority for consideration for promotion were matters which did not stand excluded from the jurisdiction of the Service Tribunal, because those did not involve the question of fitness which had been expressly reserved for departmental Authority and were outside the jurisdiction of the Tribunal---Distinction was drawn between the question of fitness of a civil servant for promotion and question of eligibility to promotion---Jurisdiction of Service Tribunal was barred where the question of fitness of a civil servant for promotion was involved---Determination of eligibility, was a question on which jurisdiction of the Service Tribunal had not been barred---Question of eligibility related primarily to the terms and conditions of service and their applicability to the civil servant concerned---In the present case, case of appellant for promotion having not been turned down on the ground of fitness, the matter could be reconsidered by Service Tribunal---Findings recorded by the Selection Board were not sacrosanct and immune from judicial review---Where the findings of facts were recorded by the Authority without recording any sound and cogent reason, Service Tribunal or the court could look into the correctness or otherwise of the findings so recorded.?

Umar Din Kiani v. Azad Government and others 1995 SCR 166 and Raja Muhammad Sohrab v. Azad Government and 6 others 2002 PLC (C.S.) 1138 ref.

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

----S. 47(3)---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.8---Azad Jammu and Kashmir Health Department Service Rules, 1984, Column 7---Promotion---Appeal to Supreme Court---Appellants, in view of entries in Column 7, Serial 19 of Azad Jammu and Kashmir Health Department Service Rules 1984 and S.8 of Azad Jammu and Kashmir Civil Servants Act, 1976, lacked the minimum qualifications prescribed for appointment/promotion to the post of Senior Dental Surgeon---Appeals filed by the appellants, in circumstances, had no substance as appellants lacked minimum qualification for promotion to the posts of Senior Dental Surgeon---Selection Board had rightly held that appellants had not fulfilled the requisite criteria/qualification.?

Dr. Abdul Ghaffar Sulehria and others v. Azad Government and others 2005 PLC (C.S.) 1233 and Umar Din Kiani v. Azad Government and others 1995 SCR 166 ref.

Mujahid Hussain Naqvi and Ashfaq Hussain Kiani, Advocates for Appellants.

Additional Advocate-General, Syed Arshad Hussain Gilani, Raja Muhammad Hanif Khan and M. Tabassum Aftab Alvi, Advocates for Respondents.

Dates of hearing: 23rd, 25th, 26th and 27th April, 2007.

2010 P L C (C.S.) 229

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmad and Muhammad Azam Khan, JJ

Civil Appeal No.60 of 2004

AZAD JAMMU AND KASHMIR UNIVERSITY, through Registrar and 2 others

Versus

Prof. (Retd.) MUHAMMAD ASLAM KHAN

(On appeal from the judgment of the High Court, dated 19-2-2004 in Writ Petitions Nos. (81, 82 and 92 of 2003).

Civil Appeal No.58 of 2004

AZAD JAMMU AND KASHMIR UNIVESITY through Registrar and 2 others

Versus

AMIN TARIQ QASMI

(On appeal from the judgment of the High Court, dated 19-2-2004 in Writ Petitions Nos.(81, 82 and 92 of 2003).

Civil Appeal No.55 of 2004

VICE-CHANCELLOR UNIVERSITY OF AZAD JAMMU AND KASHMIR through Registrar and 3 others

Versus

Raja FAZAL HUSSAIN RABBANI

(On appeal from the judgment of the High Court, dated 19-2-2004 in Writ Petitions Nos. (30 of 2004).

Civil Appeal No.59 of 2004

AZAD JAMMU AND KASHMIR UNIVESITY through Registrar and 2 others

Versus

NOOR-US-SAMAD

(On appeal from the order of the High Court dated 10-6-2006 in Writ Petitions Nos.81, 82 and 92 of 2003).

Civil Appeals Nos.60, 58, 59 of 2004 and 55 of 2006, decided on 30th April, 2009.

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

----S. 42(11)(12)---Civil service---Medical allowance---Validity---Entitlement to---Appeal to Supreme Court---Syndicate of the University decided that in lieu of medical facility, the university employees would receive medical allowance 15% of their initial pay subject to minimum of Rs.125 and maximum of Rs.250 per month---Said facility was extended to university pensioners vide notification---Subsequently Vice-Chancellor of the University cancelled said notification of grant of medical allowance---Writ petition filed against order of Vice-Chancellor was dismissed by the High Court, but Supreme Court struck down notification whereby the Vice-Chancellor had cancelled grant of medical allowances holding that Vice-Chancellor had no power to withdraw the notification issued by the Syndicate---Employees, in the light of judgment of Supreme Court, submitted the medical allowance bill to the Director Finance of the University, who refused to make payment; whereupon they filed separate writ petitions---High Court accepted said writ petitions and directed the. University Authorities to pay medical allowance--Pensioners/respondents had vested right to receive benefit of medical allowance and right once accrued could not be withdrawn arbitrarily---Pensioners having already been declared entitled to receive the medical allowance filing the writ petitions at later stage for enforcement of that right, would not affect their vested right---Medical allowance facility which was sanctioned in favour of the pensioners/respondents, was a part of pensionary benefit---Once it became due it had to be paid to the pensioners and question of limitation or laches would not arise at all---Appeals were dismissed. ?

Raja Shoukat Mehmood v. Azad Jammu and Kashmir Government through its Chief Secretary Civil Secretariat Muzaffargarh and another 2003 PLC (C.S.) 424; Mir Abdul Hamid v. Azad Government and 2 others 1997 PLC (C.S.) 805; Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439; Rao Solat Yasin Khan v. Director-General, Federal Directorate of Education, Islamabad and 2 others 1995 PLC (C.S.) 1026; 1984 PLC (C.S.) 386; 1987 PLC (C.S.) 181; 1986 PLC (C.S.) 66; 1996 SCMR 1185 and Abdul Qayoom Soomro v. Government of Sindh through Chief Secretary and another 1995 PLC (C.S.) 1137 ref.

(b) Civil Procedure Code (V of 1908)---

----O. I, R. 10(2)---Necessary party---Scope---Necessary party was that in absence of whom no adjudication could be made; or no effective order/decree could be issued; or any party who was ,directly affected from the order/judgment, was called the necessary party.?

Farooq Hussain Kashmiri for Appellants (in all Appeals).

Raja Fazal Hussain Rabbani for Respondents (in all Appeals).

Respondent in person (in Appeal No.55 of 2006).

Date of hearing: 24th March, 2009.

2010 P L C (C.S.) 409

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

DISTRICT AND SESSIONS JUDGE, RAWALAKOT

Versus

Kh. ABDUL RAZZAQ and another

Civil Appeal No.74 of 2007, decided on 16th January, 2009.

(On appeal from the judgment of the Service Tribunal dated 26-3-2007 in Civil Appeal No.560 of 2004).

Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----R. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)---Compulsory retirement---Appeal to Supreme Court---Respondent employee having admitted allegation levelled against him, authorized officer recommended that he be compulsorily retired from service and referred the matter to the Authority, who passed order of his compulsory retirement---Service Tribunal having accepted appeal, set aside order of compulsory retirement and reinstated employee in service---Leave to appeal filed against judgment of Service Tribunal was granted---No charge sheet was furnished to the employee and even the statement of allegation was not provided to him and the authorized officer also did not decide whether in the case inquiry was necessary or not and he without deciding as such suggested for major penalty of compulsory retirement---Competent Authority also did not consider that no chance for evidence was provided to the employee---Employee was not allowed to cross-examine the witnesses produced against him, which was mandatory for Authority under R.8 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 to issue a notice and provide an opportunity of hearing to employee before imposing major penalty, but no such opportunity was provided to him---Competent Authority appeared to be not aware of the procedure of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and he did not apply its mind and decided the matter without following the procedure prescribed in the Rules---Competent Authority could not be allowed to initiate fresh proceedings against the employee as he remained under trial for the last six years---Such permission could not be granted to the competent Authority on the ground that the Authorized Officer and the Authority were not aware of procedure prescribed for proceedings against the employee---Employee, in circumstances, could not be penalized for the lack of knowledge of Authority and Authorized Officer---Appeal was dismissed.

Raja Gul Majeed Khan, Advocate-General for Appellant.

Kh. Attaullah Chak, Advocate for Respondent No.1.

Date of hearing: 14th January, 2009.

2010 P L C (C.S.) 1060

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudary, C.J. and Khawaja Shahad Ahmed, J

MUHAMMAD BILAL KHAN

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

Civil Appeal No.53 of 2005, decided on 2nd December, 2008.

(On appeal from the order of the High Court dated 8-4-2005 in Writ Petition No.469 of 2040.

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

----Ss. 42(11) & 44---Appeal to Supreme Court---Judgment recorded by the High Court was based on facts which were not argued at the stage of arguments when the record of the Public Service Commission was summoned after reserving the judgment-Superior courts were bound to record the judgments on the pleaded facts and arguments addressed at bar---Impugned judgment of the High Court was mainly based on its own conclusions which had been drawn after perusal of the record summoned, which procedure was disapproved by the Supreme Court--Impugned judgment of High Court, in circumstances, suffered from a legal fault.

1994 CLC 2339 and 1995 PLC (C.S.) 59 rel.

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

----Ss. 4, 9 & 22---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.10-A, 16 & 23---Ad hoc appointment---Nature---Entry into service, particularly of grade 17, had to be made by the competent Authority on the basis of recommendations of the Public Service Commission, which under law were to be recorded after test and interview--Ad hoc appointment did not create any right for regular appointment and it was a stop-gap arrangement which had to continue till a regular appointment was made; ad hoc appointment as far as legal position was concerned, would not confer any right whatsoever, irrespective of the period of such an incumbency; such appointment could be made for a limited period when the post was available and same was advertised by the Public Service Commission---If ad hoc appointments were regularized even by the Legislative Assembly, that piece of Legislation would be ultra vires the Constitution; and had to be removed from the Statute Book---Executive Government while exercising its powers under S.22 of Azad Jammu and Kashmir Civil Servants Act, 1976, if would regularize the appointment of an ad hoc appointee or exempted the incumbent from appearing before the Public Service Commission, the notification or order so issued, was to be sent to sleep forever---No right, in circumstances could be conferred on ad hoc appointee for regular induction without recommendations of the Public Service Commission--Ad hoc appointments would not ,create any right for regular appointment and only door/entry gate open for permanent induction in the government service was through respective Public Service 'Commission and Selection Committee---Ad hoc appointment was an appointment of a duly qualified person made in respective method of recruitment---Ad hoc appointment or stop-gap arrangement was a temporary measure for a particular period of time which did not confer any right on the incumbent for regular appointment or to hold it for indefinite period---Ad hoc appointment, by its very nature was transitory and would create no right with lapse of time---Appointing Authority could not also disregard rules and allow the incumbents to continue with the service-Government or for that matter any competent Authority, must realize that appointment in the public sector was a trust in the hands of public Authorities and they were not only bound by law, but also morally obliged to discharge their functions and take steps to make transparent appointments out of the candidates on merit and without parochial approach or political affiliations.?

Azad Government and others v. Muhammad Yunas Tahir and others 1994 CLC 2339; 1995 PLC (C.S.) 59; 1996 PLC (C.S.) 912; 2001 PLC (C.S.) 264; 1982 SCMR 408; 1984 PLC (C.S.) 211; 1983 PLC (C.S.) 673;1994 PLC (C.S.) 1078; Dr. Naveeda Tufail and others v. Government of Punjab and others 2003 SCMR 291; 200 SCMR 630; 1994 CLC 2339; Dehli Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Secretary to Government N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350, ref.

Mujahid Hussain Naqvi for Appellant.

Muhammad Noorullah Qureshi for Respondents.

Date of hearing; 14th November, 2007.

2010 P L C (C.S.) 1081

[Supreme Court (AJ&K)]

Present; Khawaja Shahad Ahmad and Muhammad Azam Khan, JJ

Civil Appeal No.65 of 2008

Syed NAEEM GILANI and 2 others

Versus

SECRETARY FINANCE/COOPERATIVE (FINANCIAL ACCOUNTING OFFICER), MUZAFFARABAD and another

(On appeal from the order of the High Court dated 18-4-2008 in Writ Petition No.199 of 2006).

Civil Appeal No.80 of 2008

MUHAMMAD EJAZ KHAN and another

Versus

SECRETARY, FINANCE/COOPERATIVE (FINANCIAL ACCOUNTING OFFICER)

MUZAFFARABAD and another

(On appeal from the judgment of the High Court dated 18-4-2008 in Writ PetitonNo.262 of 2006).

Civil Appeals Nos.65 and 80 of 2008, decided on 18th February, 2009.

Delegation of Financial Powers Rules, 1994---

----Rr. 3 & 4---Rules of Business (AJ&K) R.48---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appointment on Ad hoc basis---Abolition of posts---Jurisdiction of Secretary Finance to abolish posts---Appeal to Supreme Court---Petitioners were appointed on ad-hoc basis---Later on posts to which petitioners were appointed were advertised and the petitioners in response to advertisement, participated in test and interview and in the result they qualified the same and were placed in merit position on the basis of which they were entitled for appointment on said posts; but vide notification Secretary Finance abolished said posts---Counsel for the petitioners had contended that action of Secretary Finance, was without jurisdiction as under Delegation of Financial Powers Rules, 1994, Secretary Finance was not competent to abolish the posts---Counsel for the petitioners had submitted that under Second Schedule of the Delegation of Financial Powers Rules, 1994, powers in respect of abolition of non-gazetted posts were vested in officer falling in category II and Secretary Finance who was Secretary of Department was not competent to abolish the non-gazetted posts; that under R.3 of Delegation of Financial Powers Rules, 1994, entries mentioned in Second Schedule and all powers which were delegated to officer mentioned in column 3 of the Schedule, could be exercised by the higher authority or officer superior to those mentioned in column 3 i.e. officer category-II was shown competent to abolish the non-gazetted posts; that Secretary of the Department under said rules was competent to exercise the powers of abolition of non?gazetted posts; that Powers conferred upon the higher authority in R.4 of Delegation of Financial Powers Rules, 1994 were not unique and that powers had rightly been exercised by Secretary and notification for abolition of posts was validly issued---Validity---No substance was found in the argument of the counsel for the appellants that Secretary of the Department was not competent to abolish the posts---Appeals were dismissed in circumstances.

?

Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Government and 3 others 1999 PLC (C.S.) 1007; Mehboob-ur-Rehman v. AJ&K University and 2 others 2003 PLC (C.S.) 783; Muhammad Sabir v. Director Public Instructions Schools (Secondary) and 4 others 2007 SCR 243 and Mujahid Hussain Naqvi v. Azad Government and 4 others 1999 PLC (C.S.)237 ref.

M. Tabassum Aftab Alvi, and Khawaja Farooq Ahmad for Appellants (in Civil Appeal No.65 of 2008).

Raja Gul Majeed Khan, A.-G. for Respondents (in Civil Appeal No.65 of 2008).

Sardar M.R. Khan for Appellants (in Civil Appeal No.80 of 2008) .

Raja Gul Majeed Khan for Respondent (in Civil Appeal No.80 of 2008).

Date of hearing: 21st January, 2009.

2010 P L C (C.S.) 1093

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhary, C. J. and Khawaja Shahad Ahmed, J

Syed ZULFIQAR ALI SHAH and 2 others

Versus

QAISER AURANGZEB, NAIB TEHSILDAR and 5 others

Civil Appeal No.73 of 2007, decided on 11th September, 2008.

(On appeal from the judgment of Service Tribunal dated 14-5-2007, in Service Appeal No.291 of 2004).

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

----Ss. 6 & 7(2)---Azad Jammu and Kashmir Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.9-B, 10-A & 13---Promotion of civil servant continuously holding a post on current charge or officiating or temporary basis---Retrospectivity---Departmental Selection Committee could not grant retrospective appointment and seniority to such civil servant---Principles.

Ch. Abdul Latif and 2 others v. Secretary AJ&K Council and 2 others 2000 PLC (C.S.)210; Muhammad Arshad Khan v. Azad Government and others 2000 PLC (C.S.)247; Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303 and; Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2001 PLC (C.S.) 445 rel.

(b) Azad Jammu and Kashmir Civil Servants Act, 1976---

----Ss.6 & 7(2)---Azad Jammu and Kashmir Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.9-B, 10-A & 13---Promotion order---Retrospective effect---Scope stated.

The order of promotion can be given retrospective effect in favour a person, who is occupying a vacancy in the Department, but if the vacancy was created by artificial means, then retrospective effect cannot be given to a promotion order. The maximum which an incumbent can claim is benefit of grade and pay of that post, which he served for such a long time.

1999 PLC (C.S.) 122 and Ejaz Ahmed Khan and another v. Mehboob Ahmed Khan and 2 others 2005 SCR 242 rel.

M. Tabassum Aftab Alvi for Appellants

Raja Gul Majeed Khan, A.-G., Syed Nazir Hussain Shah Kazimi and Kh. Muhammad Nasim for Respondents.

Date of hearing: 21st May, 2008.

2010 P L C (C.S.) 1195

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, J

Civil P.L.A. No.48 of 2010

RAZEEM SHEIKH and 6 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 3 others

(Petition for leave to appeal against the judgment of the High Court, dated 22-12-2009 in Writ Petitions Nos.402 of 2008, 293 of 2009 and judgment, dated 29-12-2009 in Writ Petition No.321 of 2009).

Civil P.L.A. No.56 of 2010

MUHAMMAD HANIF

Versus

DIRECTOR PUBLIC INSTRUCTIONS SCHOOLS and 3 others

(Petition for leave to appeal against the judgment of the High Court, dated 22-12-2009 in Writ Petition No.1102 of 2009).

Civil P.L.As. Nos.48 and 56 of 2010, decided on 23rd April, 2010.

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Appointment on contract basis---Regularization of service---Petitioners were initially appointed temporarily on contract basis as Primary Teachers on different dates, subject to advertisement of vacancies and confirmation by the respective Selection Committee---Period of contract of appointment was extended from time to time---On the basis of a general directive of Prime Minister, petitioners sought permanent induction/confirmation through writ petitions before the High Court which remained fruitless---Validity---Basic orders, on the strength of which petitioners claimed regularization in service, were purely of a temporary nature and all the subsequent orders were also of temporary nature---In all those orders a condition had been categorically imposed that the vacancies would be advertised and permanent induction would be made by the concerned Selection Committee according to selection on merits---Petitioners who had accepted the conditions imposed in those orders, could not turn round and take different stand---One wrong could not justify another wrong--If at all any other person's service was regularized against law, it was of no help to the petitioners and in the present case, High Court had rightly issued direction for cancellation of all such illegal orders---Counsel for the petitioners had stressed on the point that the directive issued by the Prime Minister was to be implemented because it was issued by a competent authority---Any such directive of the Prime Minister, could only be implemented by the courts of law, if it was issued according to spirit of law under the powers vested by law---Directives of Prime Minister, which were inconsistent with law, could not be implemented by courts of law---Any appointment in violation of prescribed mode, was illegal and even such appointments could not be protected by the Legislative Assembly---Petition was dismissed.

Muhammad Bilal Khan v. Azad Government and others 2009 SCR 493; Syed Sharif Hussain Bukhari v. Azad Government of the State of Jammu and Kashmir and others PLD 1983 (AJ&K) 10; Muhammad Bhai and another v. Islamic Republic of Pakistan Islamabad and another PLD 1980 Kar. 166; Maj. Muhammad Aftab Ahmad v. AJ&K Government and others 1992 SCR 307 and AJ&K Government others v. Muhammad Yunus Tahir and others 1994 CLC 2339 ref.

Mushtaq Ahmed Janjua for Petitioners.

2010 P L C (C.S.) 1264

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani, Actg. C.J. and Ch. Muhammad Ibrahim Zia, J

Sheikh JAVED IQBAL

Versus

MUHAMMAD BASHIR and 5 others

Civil Appeal No.14 of 2005, decided on 21st April, 2010.

(On appeal from the judgment of the Service Tribunal, dated 26-10-2004 in Service Appeal No.408 of 2003).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)---Civil Service---Appointment and promotion---Respondent who initially was appointed as Assistant Lineman in B-3 along with the appellant was promoted in selection grade B-7, but subsequently when seniority position was substituted, Superintendenting Engineer, recalled the promotion order of the respondent and appellant was retrospectively promoted in his place and it was ordered to recover monetary benefits gained by the respondent on the basis of recalled promotion order---Appeal fide by respondent was accepted by the Service Tribunal vide impugned order and respondent was restored to his position by setting aside the order of his reversion and recovery of amount---Order of Service Tribunal was assailed on the ground that respondent's basic appointment as Assistant Lineman was illegal because he did not fulfil required qualification and also for the reason that the post of Assistant Lineman was not a promotion post---Appellant and respondent were appointed as Assistant Linemen through single order which had abundantly proved that said order was from the day first in the knowledge of appellant, but he had not challenged that order at any stage, which had attained finality and same could not be disputed at appeal stage---Respondent was older in age and also was appointed as Assistant Lineman by promotion---Rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 had clearly laid down that in case of inter se seniority of direct appointees and promotees, the promotee would rank senior---Even otherwise, if the respondent was not treated as promotee, he would rank senior because of older in age---No infirmity was found in the impugned judgment passed by the Service Tribunal, which was well-reasoned and in accordance with the principles of statutory law as well as the law enunciated by the Supreme Court---Appeal was dismissed.

Ch. Muhammad Zaman v. Azad Government and others 1996 PLC (C.S.)901 ref.

Asghar Ali Malik for Appellant.

Sardar Muhammad Resham Khan for Respondent No.1.

Muhammad Noorullah Qureshi for Respondents Nos.2 to 6.

Date of hearing: 21st April, 2010.