PLCCS 2011 Judgments

2011 P L C (C.S.) 21

[Federal Service Tribunal]

Before Sayed Mehar Hussain Shah and Salim Gul, Members

KHALEEQ-UR-REHMAN

Versus

PAKISTAN POST, KARACHI and others

Appeal No.93(K)CS of 2006, decided on 28th July, 2009.

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

----Ss. 3, 5, 6, 7 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and holding inquiry against him on charges of carelessness, negligence and inefficiency---Validity--Charge against the appellant was that of contributory negligence and not wilful/ negligence---Negligence was always visited with the minor penalty---No negligence was found on the part of appellant in the incident of robbery as according to contents of F.I.R., there had been resistance on the part of appellant and due to such resistance N.I.C. of one of culprit had fallen on the spot; and on the basis of identification based upon said N.I.C., F.I.R. was lodged---Impugned order of dismissal from service was set aside' and penalty of dismissal of appellant from service was converted into stoppage of two increments for three years, in circumstances.

Imdad Ali Ujjan for Appellant.

Mukhtar Ahmed Mughal, Federal Counsel for the Respondent.

Date of hearing: 21st April, 2009.

2011 PLC (C.S.) 33

[Federal Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Sayed Mehar Hussain Shah, Member

RAFIQUE AHMED

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, KARACHI and 2 others

Appeal No.7(K)(C.S.) of 2008, decided on 4th December, 2009.

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

----Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was booked off from duty after issuing him show-cause notice with statement of charges through which regular departmental inquiry was dispensed with---Appellant, in his reply to show-cause notice had denied allegations levelled against him and submitted that fact-finding inquiry was conducted before passing of impugned order, but no regular inquiry was conducted---Appellant also submitted that no documentary evidence was supplied to the appellant on basis of which impugned action was taken--Counsel appearing for the authorities had no objection, if the matter was remanded to the authorities for conducting regular inquiry in accordance with law---By consent, matter was remanded to the authorities for holding de novo proceedings against the appellant in accordance with law and decide the matter within four months---Appellant was directed to be reinstated in service.

PLD 2008 SC 456 and 2008 SCMR 1369 ref.

Sanaullah Noor Ghauri for Appellant.

Amanul Haque for Respondents.

Date of hearing: 4th December, 2010.

2011 P L C (C.S.) 400

[Federal Service Tribunal]

Before Salim Gul Shaikh and Sayed Mehar Hussain Shah, Members

KHURSHEED AHMED

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS and others

Appeal No.165(K)(C.S.) of 2000, decided on 25th February, 2010.

Service Tribunals Act (LXX of 1973)---

----S. 4---Representation for grant of Basic Pay Scale and increments---Appellant, in view of judgment of the Service Tribunal passed in favour of co-employee whereby he was granted BPS-15, filed a representation for grant of BPS-15 from the date when co-employee was granted such Pay Scale and three advance increments for obtaining Master's degree---Said representation having been rejected, appellant had filed appeal before Service Tribunal---Judgment passed by Service Tribunal in favour of co-employee was upheld upto Supreme Court---Supreme Court in case reported in 1996 SCMR 1185 had observed that, if Service Tribunal or Supreme Court would decide a point of law relating to the terms and conditions of a civil servant, which covers not only the cases of civil servants who litigated, but also of other civil servants who could have not taken any legal proceedings in' such a case, the dictates and rule of good governance demanded that the benefit of such judgment of Service Tribunal/Supreme Court be extended to other civil servants who could not become parties to the litigation---Impugned appellate order was set aside with direction that appellant be allowed BPS-15 accordingly with back-benefits and that appellant be accorded three increments as prayed for by the appellant with arrears upto date for obtaining Master's degree.

1995 SCMR 776; 1997 PLC (C.S.) 579; 1996 SCMR 856; 1999 PLC (C.S.) 1; 1995 SCMR 950; 1999 PLC (C.S.) 1458; 1998 SCMR 2652=1999 PLC (C.S.) 1; 1993 PLC (C.S.) 123; 1995 PLC (C.S.) 803; 1995 SCMR 16; 1998 PLC (C.S.) 653; 1986 PLC (C.S:) 745 and 1997 PLC (C.S.) 165 ref.

Sanaullah Noor Ghouri for Appellant.

Ch. M. Latif Saghar for Respondents.

Date of hearing: 12th December, 2009.

2011 P L C (C.S.) 1268

[Gilgit Baltistan Chief Court]

Before Sahib Khan, J

Mir HASSAN and 13 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 6 others

Civil Revision No.29 of 2010, decided on 24th July, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and perpetual injunction---Plaintiff, in response to an advertisement, applied for appointment as school teacher---Written test was held, but before declaration of result, defendant authorities on the complaints from various quarters, cancelled the previously held test and advertised for second test---Plaintiffs feeling aggrieved challenged said second advertisement in their suits for declaration and perpetual injunction and also filed with the plaint application for temporary injunction under O.XXXIX, Rr.1, 2, C.P.C., which was allowed by the Trial Court---Appellate Court below, however, set aside impugned order---Validity---Contention of the plaintiff was that authorities had cancelled the previously held test without any cause and reason, just to favour their favourites, which had caused serious injury to their rights who had qualified the requisite test---Assistant Advocate-General had opposed the contention of the plaintiff contending that allegations on the transparency of test, were probed through detailed inquiry and the Inquiry Committee had recommended for fresh test, re-tests were scheduled and advertised accordingly just to ensure the fair and transparent appointments---Inquiry report had revealed that tests were not fair as some in-charge of examination centers had committed serious illegalities and favoured their favourites---In the present case just to determine the merits in free and fair manner, no option was left except to hold re-test, in free, fair and transparent manner---Counsel for the plaintiff could not put forward any proof regarding claim of the plaintiff for qualifying the test---Plaintiff, in circumstances had got no cause of action against defendants---Relief claimed in the suit could not be allowed suit was dismissed, in circumstances.

(b) Gilgit, Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts. 17 & 19---Civil service---Equality of citizens and safeguard against discrimination in services---Equal job opportunity was a guaranteed right of every citizen---For the purpose of providing such opportunity, its wide publication through print and electronic media was the basic need---Assessment of merit through transparent, fair, independent and impartial method was the only source to meet that constitutional need---Sole reason for decreasing standard of merit in each and every organ of the State, specially in educational institutions was the result of nepotism and favouritism during the selection process---To provide equal opportunity to meet constitutional requirements and to protect the guaranteed rights of individuals, was the initial duty of all State functionaries, who had to perform such duties within the ambit of the Constitution to score the goal targeted in the Constitution---Developing concept of the society that Judiciary alone was responsible to ensure the justice from top to bottom, was incorrect.

Kamal Hussain and Munir Ahmed for Petitioners.

Asstt. A.-G. assisted by Malik Shafqat and Rep. of Education Department for Respondents.

2011 P L C (C.S.) 1315

[Gilgit-Baltistan Chief Court]

Before Raja Jalal-ud-Din, C.J., Sahib Khan and Muzaffar Ali, JJ

Dr. GHULAM ALI and others

Versus

FEDERAL MINISTER/CHAIRMAN, NORTHERN AREAS, KA&NA DIVISION, ISLAMABAD and others

Writ Petitions Nos.61, 63 of 2008, 37, 75, 81 of 2009, 19 and 28 of 2010, decided on 8th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 2(1)(o), 71, 80, 81 & 84---Civil service---Continuance of existing laws---Writ jurisdiction of Chief Court in the matters of terms and conditions of Civil Servants---Laws/Rules/Regulations/Orders/ Notifications etc. enforced immediately before the promulgation of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, were still in force and would remain in force, unless and until the concerned Legislative quarter of Gilgit-Baltistan could enact, enforce/adopt any alternate legislation or pass orders/Rules in respect of relevant law---Judgments of the courts were having same effect and force as were prior to promulgation of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---All the institutions created under the enforced laws were still having legal effect and entity as those were creation of the Governance Order, 2009---Civil Servant could invoke the jurisdiction of Federal Service Tribunal for related matters of terms and conditions of their service; and not by writ Jurisdiction of Chief Court, which was barred due to availability of alternate forum, competent to provide adequate and efficacious remedy to them---Petitioners, in the present case, had filed writ petitions challenging the matters relating to terms and conditions of their service---All the petitioners being civil servants, were having alternate forum to provide adequate and efficacious remedy to redress their grievances agitated in the petitions by specially created forum to "Federal Service Tribunal"---Chief Court, in circumstances, lacked jurisdiction over the matters.

2007 SCMR 1300; 1993 SCMR 1798; Akhtar Hussain Changazi and others v. Provincial Government and others Writ Petitions 5 to 7 and 12 of 2008 ref.

Date of hearing: 3rd May, 2010.

2011 P L C (C.S.) 1431

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

JAN WALI

Versus

PROVINCIAL GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary, G.B. and 2 others

Writ Petition No.77 of 2009, decided on 24th November, 2010.

Police Rules, 1934---

----R. 12.12(a)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71---Writ petition---Civil service---Dismissal from service---Petitioner was appointed as Foot Constable after observing formalities required for appointment---Petitioner underwent the requisite training for the job after selection---Petitioner was dismissed from service on the charge of being involved in criminal case---Judicial Magistrate, after going through the detailed process of trial, acquitted the petitioner from the charge honourably---Said order of acquittal attained finality as no appeal was filed against said acquittal---Respondent/authorities should have waited for the fate of criminal case against the petitioner, but had hurriedly passed dismissal order, despite the fact that petitioner was not charged, except that in the F.I.R.---Allowing petition, authorities were directed to reinstate the petitioner in service with back-benefits for the period he had not gainfully employed elsewhere.

2002 SCMR 57 ref.

Haji Mirza Ali for Petitioner.

Assistant Advocate-General for Respondent No.1.

PDSP Shujat Khan for Respondents Nos.2 and 3.

2011 P L C (C.S.) 1623

[Gilgit-Baltistan Chief Court]

Before Jalal-ud-Din, Chief Justice and Muzaffar Ali, J

SAEED FAQIR and others

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Secretary Transport and Tourism Affairs Gilgit-Baltistan Secretariat, Gilgit and 2 others

Writ Petitions Nos.36, 39 to 42 of 2010, decided on 11th April, 2011.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71(2)---General Clauses Act (X of 1897), S.23---Writ petition---Civil service---Retirement---Petitioners were appointed under the Service Rules and provision of R.25.1 of said Rules provided the retirement age of the employees as 60 years---Employer Corporation had framed new Service Rules and under provision of R. 25 of said new Rules, retirement age was changed as 55 years or 25 years of regular service---Said new Rules were given immediate effect and vide impugned order a number of employees were retired presuming that Rules had retrospective effect---No year or date of enforcement had been mentioned in the Preamble of new Rules---Impugned Rules had been made in utter violation of S.23 of the General Clauses Act, 1897 as no draft of the proposed Rules had been published for the information of the persons affected and no notice had been served to get objections or suggestions---New Rules, having been given immediate effect, same could not be made pretext to retire the employees who had been appointed under the old Rules---Employer Corporation could not give retrospective effect to the Provision of R. 25 of the new Service Rules as vested right had accrued to the petitioners who were serving under Rules of 1974---Petitioners, who had served the Corporation for at least 25 years and previous Rules had provided 60 years as retirement age, could not be retired by giving retrospective effect to any amendment made or introduced in the Service Rules---Principle of retrospective 'effect' could not be allowed to defeat the already created rights in favour of individuals by the Rules, amended or repealed---Law recognized immediate effect and not the retrospective effect of the amendment made in respect of substantive law or Rules meant to defeat the acquired rights emanating from the existing law or Rules---Impugned amendment or the new Rules framed being destructive of already vested rights to the petitioners, were without lawful authority and of no legal effect---Impugned retirements of employees were set aside, in circumstances and employer Corporation was directed to treat the petitioners as active employees in their respective posts with all service benefits as regular employees up to the age of retirement as provided by Service Rules made in the year 1974.

2003 SCMR 819; PLD 1978 SC 190; PLD 1961 Kar. 349; 1992 SCMR 1652; PLD 1964 SC 494; PLD 1970 SC 439; PLD 1974 SC 180 and PLD 1991 Lah. 230 rel.

Akhlaq Hussain for the Petitioners Nos. 2 to 5.

Malik Kifayat-ur-Rehman for the Petitioner No.1 Asstt. A-G., Muhammad Issa and Ijlal Advocates for the Respondents.

Date of hearing: 11th April, 2011.

2011 PLC (C.S.) 337

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

Syed RASHID HUSSAIN SHAH

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 6 others

Writ Petition No.347 of 2009, decided on 4th November, 2010.

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

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Promotion---Claim for---Jurisdiction of High Court under S.44, Azad Jammu and Kashmir Constitution Act, 1974---Scope---Maintainability of---Petitioner had challenged promotion of respondents for being unlawful, discriminatory, arbitrary, fanciful, whimsical, mala fide and without lawful authority---Counsel for the respondents had raised a preliminary objection to the maintainability of the writ petition and argued that grievance voiced through the petition related to the terms and conditions of the service of the petitioner and for that purpose proper forum was Azad Jammu and Kashmir Service Tribunal; and that jurisdiction of High Court was barred under S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Validity---Writ jurisdiction was conferred upon High Court by S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 and the ouster of jurisdiction could be claimed only within the parameters; limitations and restrictions placed by the said Act---Jurisdiction of High Court was barred only in respect of those matters for which Special Tribunal, possessed the jurisdiction, otherwise, ouster of jurisdiction could not be claimed in routine---Jurisdiction of Service Tribunal was qualified and conditional; under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 an appeal was competent against a final order, therefore it could not be assumed that every order relating to the terms and conditions of service was appealable before the Service Tribunal---Writ of mandamus and prohibition, could not be issued by the Service Tribunal; party who sought intervention of High Court for issuance of writ of mandamus and prohibition, could not be refused such relief on the ground that matter could be agitated before the Service Tribunal after completion of the alleged illegal act---Name of the petitioner, had not been included in the working paper which was sent to the respective Selection Board for consideration of promotion---No occasion, in circumstances was left for the petitioner for challenging the rules or the impugned order before the Service Tribunal---If the court would come to the conclusion that the intended action and recommendations were illegal and violative of the rules, then there was no harm in entertaining the writ of prohibition on the application of an aggrieved person---Objection of respondents with regard to jurisdiction of High Court was not sustainable which was repelled; however, so far as the challenge to the rules was concerned, petition had no merit and question of quota would be decided by the proper Tribunal; and if the petitioner then considered himself aggrieved after promotion of the respondents, he could prefer an appeal for redressal of his grievance. ?

Falak Sher Khan and another v. Mukhtar Ahmed and others PLD 1989 SC 262; Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282; Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others1994 SCR 267; Accountant-General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431; Muhammad Naseer Jahangir and 13 others v. Abdus Sarni Khan and another 1997 PLC (C.S.) 1115; Jamil Akhtar Sherazi v. Azad Jammu and Kashmir Government through Chief Secretary and 4 others 1993 PLC (C.S.) 637; Sikandar Aziz and 20 others v. Secretary, Ministry of Industries and Production Government of Pakistan Islamabad and 4 other, 2001 PLC (C.S.) 205; Syed Shakir Shah's case 2002 PLC (C.S.) 821; Zubbaida Begum's case 1998 PLC (C.S.) 292; Ghias-ul-Haq's case PLD 1980 SC (AJK) 5; Khawaja Ghulam Muhammad's case 2001 PLC (C.S.) 321; Sheikh Masood Iqbal's case 2008 PLC (C.S.) 1;' Basharat Hussain's case 2004 PLC (C.S.) 1022; AIR 1991 SC 1882; AIR 1981 SC 1990; Union of India v. S L. Dutta (1991) 1 SCC 505; AIR 1991 SC 363; AIR 1998 SC 1882; PLD 1987 SC 172; PLD 1988 SC 155; 1998 SCMR 1453 and M. Yaqoob Khan's case 1999 MLD 1862 ref.

Ashfaq Hussain Kiani for Petitioner.

M. Tabbasum Aftab Alvi for Respondents Nos.5 and 6.

Abdul Hameed Khan Shahid for official Respondents.

2011 P L C (C.S.) 673

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

IMRAN ALI

Versus

PUBLIC SERVICE COMMISSION AZAD JAMMU AND KASHMIR through Secretary, Civil Secretariat, Chatter, Muzaffarabad and 3 others

Writ Petition No.909 of 2010, decided on 27th January, 2011.

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

----S. 44---Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, S.8---Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, R.12---Pakistan Rehabilitation Act (XLII of 1956), S.2(3)---Writ petition---Appointment . against seat reserved for refugees---Treating Mangla Dam affectee as refugee---Petitioner who being State Subject was Mangla Dam affectee and was settled in Pakistan, claimed that he was entitled to be appointed against seat reserved for refugees settled in Pakistan---Validity---Petitioner could not be treated as refugee settled in Pakistan because he had not migrated from any part of occupied State of Jammu and Kashmir---Only a refugee from Jammu and Kashmir settled in Pakistan could compete against the quota reserved for said category; and petitioner who was resident of District Mirpur Azad Jammu and Kashmir being Mangla Dam affectee had no right to compete against said quota---Contention that as the petitioner was entitled to contest the election and cast vote under Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, was liable to be appointed against the quota of refugee settled in Pakistan, was devoid of any force, because said Ordinance had been enacted for preparation of the Electoral Rolls for election to the Legislative Assembly---Public Service Commission could not be directed to nominate the petitioner against said quota.

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

----S. 44---Writ jurisdiction---Scope---No direction could be issued to frustrate the statutory law in writ jurisdiction.

Ch. Muhammad Latif for Petitioner.

Raja Gull Majeed, A.-G. on Court notice.

2011 P L C (C.S.) 892

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Muneer Ahmed Chaudhary, J

MUHAMMAD IRSHAD KHAN

Versus

PUBLIC SERVICE COMMISSION, AZAD JAMMU AND KASHMIR through Chairman and 3 others

Writ Petition No.793 of 2010, decided on 7th April, 2011.

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

----S. 44---Writ petition---Civil service---Examination for recruitment of Civil Judges---Re-marking of papers---Public Service Commission conducted examination for recruitment of Civil Judges/Section Officers, (Law) etc.---Petitioner competed for appointment as Civil Judge, but he could not qualify the written test---Application filed by the petitioner for rechecking of his papers, was accepted and Public Service Commission managed re-checking in presence of the petitioner and after rechecking it was found that petitioner had obtained only 22 marks in paper of Civil Law, while he obtained zero mark in other question---Dissatisfied with re-checking, petitioner filed application for re-marking of the papers, which application was dismissed on the pretext that Policy of the Commission did not authorize re-marking of the papers---Re-marking of paper was sought by the petitioner on two grounds; firstly, in his estimation proper marks had not been awarded to him by the examiner in all the questions; secondly for one of the questions, the examiner had given him zero mark, which was impossible---No illegality had been committed by the examiner while awarding zero mark for the answer to question concerned---Writ petition being meritless, was dismissed, in circumstances.

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

----S. 44---Writ petition---Civil service---Examination for recruitment of Civil Judges, etc.---Re-marking of papers---Petitioner who competed for appointment of Civil Judge and failed in written papers, filed application for re-marking of the papers, but said application was dismissed by Public Service Commission---Validity---Remarking of papers was declined on the pretext that Policy of the Commission did not authorize re-marking of the papers and that re-marking could not be ordered and decision of the Public Service Commission in that regard was final---Such decision of the Commission could not be accepted---Though, it could not be laid down that re-marking would be allowed as rule in each and every case, but when a case of first impression was brought before the court, which showed that a departure from law, practice and instructions had been made out without genuine reasons, or when the illegality alleged, was so glaring and apparent, same could be allowed---Superior courts had provided guidelines to Public Service Commission for re-marking and re-checking of papers, when an application was made in that behalf---Writ petition was dismissed.

Ms. Shakeela v. University of Peshawar through its Vice Chancellor and another PLD 2003 Pesh. 69; University of Punjab through Vice-Chancellor and another v. Mrs. Ruhi Farzana and 3 others 1996 SCMR 263; 2010 MLD 85 and Abdul Hakim Hashi v. Federal Public Service Commission through its Chairman and 8 others 2002 SCMR 504 ref.

Sadaqat Hussain Raja for Petitioner.

Advocate-General for Respondents.

2011 PLC (C.S.) 1263

[High Court (AJ&K)]

Before Tabassum Aftab Alvi, J

Dr. Syed AQEEL GILLANI

Versus

SECRETARY HEALTH, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 14 others

Writ Petition No.550 of 2011, decided on 2nd May, of 2011.

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

----S. 4(c)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Application for deputation---Rejection of---Petitioner applied for deputation in Teaching Hospital for admission in Chest Specialization from where he had also obtained 'no objection certificate'---Authorities vide impugned order rejected application of the petitioner---Validity---Petitioner without obtaining N.O.C. from his department applied in Teaching Hospital, which act of the petitioner was contrary to disciplinary Rules---Petitioner had challenged impugned order passed by Director Health Services, but the petitioner had not impleaded him as party in the line of respondents---Writ petition filed by the petitioner, was not maintainable due to non-joinder of necessary party---In absence of necessary party, writ could not be issued---Even otherwise, the petitioner being a civil servant, vires of impugned order, could not be challenged through writ petition---Body of impugned order revealed that it had been issued in the shape of letter, but same affected the terms and conditions of the petitioner, which could be challenged only before the Service Tribunal---Proviso to S.4(c) of Azad Jammu and Kashmir Service Tribunals Act, 1975 provided that any order mala fide and coram non judice, could be challenged before the Service Tribunal---Writ petition was dismissed in circumstances.

Muhammad Arshad Saeed v. The Government of Pakistan and others 1994 SCMR 1033; Muhammad Arshad Khan v. Azad Government and others 2000 PLC (C.S.) 247 and Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 ref.

Syed Nazir Hussain Shah Kazmi and Sardar K.D. Khan for Petitioner.

Abdullah Shah Masoodi for Respondents.

Nemo for Pro forma Respondents.

2011 P L C (C.S.) 1366

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD SALEEM and 6 others

Versus

AZAD JAMMU AND KASHMIR COUNCIL through Secretary, Azad Jammu and Kashmir Council, Islamabad and 2 others

Writ Petition No.1203 of 2010, decided on 23rd June, 2011.

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

----S. 44---Writ petition---Civil service---Appointment---Accrual of valuable right---Petitioner, in response to advertisement, applied for the post of 'Senior Auditors' grade B-14---Petitioners participated in the written test and qualified the same and thereafter call letters were twice issued to the petitioners for conducting interview, but interview was postponed and was not conducted---During that period, post of Senior Auditor B-14 for which the petitioners had cleared their written test, was upgraded in B-16 and on account of that upgradation, it was decided that advertisement already made for the recruitment of Senior Auditor grade B-14 be withdrawn, Recruitment Rules be amended and fresh advertisement be made in accordance with new Recruitment Rules---Approximately 80% of recruitment process for the post of Senior Auditors grade 14 had been completed by the Authority and 20% was left behind to complete the whole process---Post of Senior Auditor B-14 had been upgraded to B-16, after the publication of advertisement for the post of Senior Auditor B-14 and written test for the same---Call letters for interview for said posts were twice issued, but interview was postponed---While going through a long process, a valuable right had accrued to the petitioners for the post of Senior Auditors B-14, who had qualified the written test and were sent back hopelessly without interview twice---Once a right having accrued in favour of the petitioners, it could not be taken back by any subsequent action which culminated in the extension of the earned legal right---Petitioners having such right must be considered for appointment to the advertised post of B-14 in the light of the rules prevalent at the time when the posts in that respect were advertised---Authority was also directed not o re-advertise the posts of Senior Auditors, but to complete the remaining process.

2000 PLC (C.S.) 9; 2006 SCR 396; 2009 SCR 530; Azad Government v. Syed Abadain Haider 1999 SCR 129 and Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Government 1999 PLC (C.S.) 1007 ref.

Syed Nazir Hussain Shah Kazmi for Petitioners.

Kh. Tariq Saeed for Respondents.

2011 P L C (C.S.) 1402

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and M. Tabassum Aftab Alvi, J

ASIF GULAB

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chef Secretary, Muzaffarabad and 3 others

Writ Petition No.908 of 2010, decided on 21st July, 2011.

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 23---Ad hoc appointment---Conditions---Ad hoc appointment under R.23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, could not be made in an arbitrary manner---First condition for making such appointment was that the same would be made in the public interest; second one was that before making such appointment, the Appointing Authority would forward requisition to the selection Authority---Said appointment was subject to further conditions listed in Sub-rules 1 to 5 to R.23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which conditions were mandatory and could not be ignored at the time of making ad hoc appointment---Proviso to R.23 of the Rules commanded that ad hoc appointment would not confer any right to the person so appointed in the matter of regular appointment for the same post nor the service would be counted towards seniority in the grade.

Muhammad Bilal Khan, S.D.O. v. Azad Government and 4 others 2010 PLC (C.S.) 1060; Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Sheikh Manzoor Ahmed v. Azad Govt. and others 1995 PLC (C.S.) 59 and Azad Government of the State AJ&K v. Kashmir Timber Corporation PLD 1978 SC (AJ&K) 42 distinguished.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232; Nadeem Ahmed and others v. Pakistan International Airlines Corporations and others 1998 PLC 19 and Dr. Muhammad Ibrahim v. Secretary Health and others 2009 PLC (C.S.) 741 ref.

Syed Shahid Bahar for Petitioner.

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

2011 P L C (C.S.) 648

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

GHAZANFAR ALI

Versus

ZARAI TARAQIATI BANK LIMITED, ISLAMABAD through President and 4 others

Writ Petitions Nos.1928 and 1251 of 2009, heard on 24th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Transfer front one place of working to another---Petitioner who was Assistant Vice President of the Bank and was serving in Head Office of Bank at place 'I' was transferred to place K' which was a far-flung area of another Province---Petitioner remained posted at Head Office and got training in connection with the Head Office affairs and never served in the field---Validity---Due to law and order situation his sudden posting at placeK' by itself was not justified---No reasons were available for his immediate relieving from duties within one day by a single stroke---No doubt that posting and transfer was prerogative of the authority; none could ask for a posting of his choice, but transfers with mala fide intentions were amenable to constitutional jurisdiction and the court would never hesitate to strike down the orders which would cause harassment and inconvenience to the employees--Petitioner had succeeded to establish that his transfer orders had been issued to penalize him for raising voice against the torture of bank employee by guards of the President of the Bank---Transfer order was issued without considering the public interest---Constitutional jurisdiction, in circumstances could be invoked as the elements of mala fide and vengeance were also there---Impugned transfer order, was set aside and petitioner was deemed to remain on his previous place of posting---Petitioner was ordered to be paid all salaries and other benefits for that period.

2000 SCMR 1214 and 1996 SCMR 645 ref.

Malik Waheed Anjum for Petitioner.

Ch. Imtiaz Ahmad for Respondents.

Date of hearing: 24th January, 2011.

2011 P L C (C.S.) 654

[Islamabad High Court]

Before Riaz Ahmed Khan, J

Lt.-Col (Retd.) AAMIR RAUF

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 3 others

Writ Petition No.56 of 2011, heard on 14th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment on contract basis---Termination of service---Service of contract employee was terminated through a letter which stated that his service was no more required---Appointment of the petitioner was contractual, and in terms of contract, same could be dispensed with on one month's notice or payment of one month's salary in lieu thereof---If, the petitioner was aggrieved of his premature termination, the only remedy available to employee was action in tort for damages, no direction could be issued to force the unwilling employer to keep the petitioner in service---Constitutional petition was dismissed.

Raja Zafar Khaliq for Petitioner.

Abdul Rehman Siddiqui for Respondents.

Muhammad Ghias-ul-Haq Sheikh Standing Counsel.

Date of hearing: 14th January, 2011.

2011 P L C (C.S.) 658

[Islamabad High Court]

Before Riaz Ahmed Khan, J

Raja SHAHID MEHMOOD

Versus

MANAGING DIRECTOR PODB and 10 others

Writ Petition No.5314 of 2010, decided on 26th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Case of the petitioner was that since he was appointed as Research Officer in the year, 2005 though on contract basis, but his appointment was required to be regularized as he had been on the same post without any break for a long time---Validity---Petitioner was a contract employee and his case was not that other employees in the same department on similar posts had been regularized and he. had been denied the same treatment---Petitioner being a contract employee, without any discrimination meted out to him was asking for regularization of his service which was not possible as the same was not his vested right---Second contention of the petitioner was that since he being third in the earlier list of candidates and other two persons had been removed, so he was entitled to be appointed---Contention was not correct, because even if it was presumed that in the earlier list he was third, the same would not create a vested right for him---Furthermore, appointment without advertising the post was violative of fundamental rights---Order of the department regarding advertising the post, in circumstances was in accordance with law.

Ch. Afrasiab Khan for Petitioner.

Raja Muhammad Yasin Standing Counsel and M. Ahmed Iqbal A. D. (Legal) for Respondents.

Date of hearing: 20th January, 2011.

2011 P L C (C.S.) 663

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

Ag. Cdr. (Retd.) IRSHAD AHMAD

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and another

Writ Petitions Nos.3520 of 2009, 86 of 2010 Contempt Petitions Nos.38/W, 6/W of 2010 and 3/W of 2011, decided on 17th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment on contract basis---Termination of service after expiry of contract period---Petitioner who was appointed for a period of two years on contract basis, his request for extension of service period had been rejected and he was relieved from his service---Validity---Contract employee could not force for the extension of contract period; and under constitutional jurisdiction even the High Court could not force any statutory body to extend the same---Contract employee was always governed by the terms and conditions of contract and he could not ask for more than that---Constitutional petition was not maintainable as no question of violation of fundamental rights, was involved.

2005 PLC (C.S.) 4 ref.

Abdur Rehman Khan for Petitioner.

Mumtaz Ahmad Bilal for Resp6ndents.

Muhammad Imran, A.D. (Legal), National Highway Authority.

2011 PLC (C.S.) 752

[Islamabad High Court]

Before Riaz Ahmed Khan, J

MAZHAR-UD-DIN and 6 others

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad

Writ Petition No.2360 of 2008, decided on 14th February, 2011.

(a) Civil service---

----Appointment on a particular post could not be claimed as a matter of right as no person had vested right to be appointed against a particular post.

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

----S. 10---Constitution of Pakistan, Art.199---Constitutional petition---Appointment by transfer---Non-consideration of petitioner by Departmental Promotion Committee (DPC)---Validity---Committee or competent authority had all rights to consider persons for appointment---Committee after considering the petitioner had found him not eligible to be appointed---High Court could neither substitute its own option for appointing authority nor force it to appoint petitioner on post of his choice---Appointment on a particular post could not be claimed as a matter of right---No person had vested right to be appointed against a particular post---High Court dismissed constitutional petition in circumstances.

Muhammad Shoaib Shaheen for Petitioners.

Muhammad Ghias-ul-Haq Sheikh, Standing Counsel for Respondent.

Date of hearing: 9th February, 2011.

2011 P L C (C.S.) 756

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

SALEEM ULLAH KHAN

Versus

MUHAMMAD ISMAIL QURESHI alias ISMAIL QURESHI RECTOR and 3 others

Writ Petition No.5276 of 2010, decided on 4th February, 2011.

(a) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Quo warranto, writ of---Locus standi---Any person, even though not be an aggrieved person, could seek such writ.

2010 PLC (C.S.) 1023 rel.

(b) Interpretation of statutes---

---Special statutory rules would overpower general rules.

(c) National School of Public Policy Ordinance (XCIX of 2002)---

----S. 9---Constitution of Pakistan, Art.199(1)(b)(ii)---Constitutional petition---Member of Board of Governors of National School of Public Policy---Contract appointment of such Member as Rector without advertising such post---Validity---Board in its meeting chaired by Vice-Chairman and attended by five other Members had recommended such appointment---Prime Minister had approved recommendations of Board put up before him by Senior Joint Secretary Establishment---Policy Guidelines contained in Office Memorandum No.6/2/2000-R-3, dated 6-5-2000 exempted from publication contract appointments or re-employment of retired civil servants, retired Armed Forces Officers and retired Judges of superior courts---National School of Public Policy Ordinance, 2002 had not placed any bar on appointment of a Member of NSPP as a Rector---High Court declined to declare such appointment as unlawful or illegal.

2010 PLC (C.S.) 1023; PLD 2005 SC 792; 1999 PLC (C.S.) 931; PLD 2004 SC 313; 2005 SCMR 85; 2005 SCMR 1263; 2003 PLC (C.S.) 1029; 1997 PLC (C.S.) 885; 1992 SCMR 32; 2006 SCMR 978 and 2000 PLC (C.S.) 769 distinguished.

Petitioner in Person.

Muhammad Abid Raja, Standing Counsel.

Date of hearing: 24th January, 2011.

2011 P L C (C.S.) 778

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

FAZAL ABBAS

Versus

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

Writ Petition No.3227 of 2010, decided on 7th March, 2011.

(a) Accommodation Allocation Rules, 2002---

----R. 29-A---Constitution of Pakistan, Art.199---Constitutional petition---Allotment of government accommodation to petitioner---Retention of said accommodation by civil servant after retirement---Civil servant, who was occupying said accommodation, after her retirement, was given a grace period of six months to retain such accommodation; she had been allowed the retention of said accommodation for a further period of six months---Under Rule 29-A of the Accommodation Allocation Rules, 2002, government employee could retain accommodation for a grace period of six months after retirement---Government could extend the retention once only for six months after expiry of grace period---Civil servant in the present case, was allowed the retention of accommodation for one year after expiry of grace period of six months, without cogent reasons---Government could relax the Rules for allotment of accommodation to eligible employees in public interest for deserving and hardship cases only and the reasons were to be recorded in that respect---In the present case, there was no mention about the eligibility to retain the accommodation after grace period of six months---Competent authorities were under obligation to maintain the spirit of law, while exercising the discretion so that people could not lose confidence in the system---Petitioner, as lawful allottee of the accommodation in question, was entitled to get the possession thereof.

Mahmood Ali Qureshi v. Government of Punjab and others reported in 1997 PLC (C.S.) 52 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Exercise of discretionary powers by authorities---Scope---Authorities could not be blessed with whimsical and arbitrary exercise of discretion, because if such discretion was exercised, common people would be at the cruel mercy of the authorities; and there would be a general unrest and chaos in the society---Discretionary powers could be exercised by competent authority, but with due care and within the four corners of the relevant rules and laws---In no case fundamental rights could be violated on the basis of discretionary powers---Rules no doubt could be relaxed by the government, but not in an arbitrary manner which would cause inconvenience to the people, who enjoy the protection of law---Procedures were to be followed strictly in accordance with law; and the gross irregularities were always subject to correction by the High Court under Art.199 of the Constitution as the courts were the guardians for the protection of the rights of the common man and under obligation to provide justice and equity to the aggrieved persons---If such illegalities were ignored on the basis of technicalities and relaxation or discretion, purpose of Art.199 of the Constitution, would be frustrated.

Khurram Mehmoo for Petitioner.

Qazi Rafi-ud-Babar, Dy. Attorney-General with Muhammad Ashraf, Joint Estate Officer for Respondents.

Date of hearing: 14th February, 2011.

2011 P L C (C.S.) 1175

[Islamabad High Court]

Before Iqbal Hameed-ur-Rehman, C.J.

AKBAR SHAH

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman

Writ Petition No.2803 of 2009, decided on 8th March, 2011.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 43(g)---Civil Service Regulations, Regln.45---Fundamental Rules, F.R. No.105---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Petitioner who had served with Provincial Government as Instructor in BPS-17 on ad hoc basis for about 7 years and was appointed as Deputy Registrar Joint Stock Companies in BPS-18 in Corporate Law Authority (an autonomous body of Federal Government) had prayed that his period of ad hoc appointment as Instructor with Provincial Government be taken into consideration for pay and pensionary benefits---Validity---Held, since the petitioner was holding post of Instructor on ad hoc 1(basis under the Provincial Government, he could not be considered to hold a permanent post in a substantive capacity under F.R. 105 of Fundamental Rules---Only continuous service was counted towards pension under the said Fundamental Rules---Petitioner having been employed on ad hoc basis was not required to make any contribution towards pensionary benefits; and he had not contributed anything towards such benefits---Petitioner was required to produce certificate from the Audit office of the Provincial Government to the effect that his service was counted towards pension; and that Government of N.-W.F.P. was prepared to pay proportionate share of pension under Regln.45 of the Civil Service Regulations; and that there was such agreement between the Federal and Provincial Government as contained in Selection A of Appendix 3 of Account Code Vol-1---No such certificate had been produced by the petitioner---Petitioner, in circumstances, did not qualify for pensionary benefits and commutation for period of his ad hoc service--Constitutional petition was not maintainable as the Rules cited in impugned order by the authorities were non-statutory rules; and employees of autonomous bodies or organizations having non-statutory Rules, could not seek remedy under Art.199 of the Constitution.?

Pakistan through the Secretary, Ministry Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom and 2 others. PLD 1991 SC 973; Messrs United Kashmir Flour Mills (Pvt.) Limited Company' through Chief Executive v. Government of Azad Jammu and Kashmir through Secretary Ministry of Food and 2 others 2003 YLR 2835; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; The Engineer in Chief Branch v. Jalaluddin PLD 1992 SC 207 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Raja Muhammad Khan for Petitioner.

M. Bilal, Senior Advocate Supreme Court of Pakistan along with Babar Bilal for Respondents.

2011 P L C (C.S.) 1259

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

Ms. FARAH NAZ, ASSISTANT REGISTRAR, QUAID-I-AZAM UNIVERSITY, ISLAMABAD

Versus

QUAID-I-AZAM UNIVERSITY, ISLAMABAD through Registrar and 2 others

Writ Petition No.675 of 2011, decided on 14th March, 2011.

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

----Art. 199---Constitutional petition---Promotion---Statutory body---Petitioner was Assistant Registrar in the University which was a statutory body---Grievance of petitioner was that despite her being senior to respondent, she had been ignored for selection against the post of Deputy Registrar in next higher grade---Validity---Policy of statutory body should not be in conflict with fundamental rights for ulterior motives or mala fide---Competent authority was under obligation to determine eligibility of employees for grant of higher grade---It was also prime obligation of the functionaries to redress grievance of their subordinates and efforts should be made to bring out an egalitarian society based on Islamic concept of fairplay and social justice and authorities should never be a reason to create unnecessary hardships or unrest among the employees---Post in question was to be filled on promotion basis out of the existing employees and, therefore, selection of respondent was arbitrary---High Court declared the placing of name of respondent for promotion against the post of Deputy Registrar in supersession of petitioner, as illegal, unjurisdictional and against the principles of promotion policy---Petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, exercise of---Scope---Promotion---Principles---Whenever there is a mala fide or discriminatory action leading to violation of constitutional guarantees, the constitutional courts have ample authority to interfere for redressal of such grievance---Law in any case has to be geared properly and injustice in the form of supersession has to be curbed, so that people may not have a general sense of deprivation or discomfort otherwise there has to be a chaos in the society and people lose confidence in all institutions---Like all other modern Constitutions, the Constitution of Pakistan emphasizes upon fundamental rights and such rights in any case have to be provided by the courts as guardians of citizens---Provision of Art.199 of the Constitution empowers the court to exercise jurisdiction in matters where merit is being ignored---In any case merit-cum-seniority has to be recognized.

Sheikh Riaz-ul-Haq for Petitioner.

Muhammad Munir Preacha along with Samiullah Khan and Humayun Khan, Assistant Registrar, Quaid-i-Azam University, Islamabad for Respondents.

Date of hearing: 11th of March, 2011.

2011 P L C (C.S.) 1277

[Islamabad High Court]

Before Riaz Ahmad Khan, J

RAHAT ALI SHERWANI

Versus

FEDERATION OF PAKISTAN through Ministry of Housing and Works and 2 others

Writ Petition No.3765 of 2010, heard on 3rd May, 2011.

(a) Accommodation Allocation Rules, 2002---

----R. 2(b)---Allottee---Valid allotment letter---Only letter issued by the Estate Office can be considered as a valid allotment.

(b) Administration of justice---

----If law requires something to be done in a specific manner, then that thing ought to be done in that manner alone and not in any other way---Law cannot be changed on the basis of presumptions or for the convenience of a particular person.

(c) Accommodation Allocation Rules, 2002---

----Rr. 2(b), 15(2) & 29A---Constitution of Pakistan, Art.199---Constitutional petition---Allotment of residence---Valid allotment letter---Rule, relaxation of---Principle---Respondent was allotted house in question on the basis of allotment order issued by Federal Government after relaxing the rules---Plea raised by petitioner was that allotment letter in favour of respondent was not issued by Estate Office and the accommodation was beyond her entitlement---Validity---Only order issued by Estate Office was proper 'allotment order' and no other order; therefore, 'allotment letter' in possession of respondent was not a valid 'allotment order'---Federal Government had the authority to relax any rule but that was to be exercised in public interest for deserving and hardship cases and on compassionate grounds, for reasons to be recorded for such relaxation---Order of relaxation should have been a speaking order, based on reasons and the same must not have been amalgamated with the 'order of allotment'---If Federal Government intended to relax any rule regarding allotment of accommodation, then the 'order of relaxation' should have been communicated to Estate Office as the Estate Office was the only body to issue 'allotment letter'---After relaxation of rules by Federal Government, the Estate Office could issue 'allotment letter' on the basis of relaxation granted by the Government---No reason in writing was given for relaxation of rules and, therefore, order regarding relaxation of rules was not in accordance with R.29-A of Accommodation Allocation Rules, 2002---High Court declared the allotment letter issued in favour of respondent as illegal and without lawful authority and directed to hand over the possession of disputed house to petitioner---Petition was allowed accordingly.

(d) Discretion---

----Law requires that discretion must be exercised fairly, justly and in accordance with law---Discretion must not be exercised arbitrarily and on the basis of pick and choose.

Muhammad Amjad Iqbal Qureshi for Petitioner.

Najam-uz-Zaman for Respondent No.3.

Raja Muhammad Yasin Standing Counsel for Respondents No.1 and 2.

Muhammad Qaiser, Joint Estate Officer.

Date of hearing: 3rd May, 2011

2011 P L C (C.S.) 1329

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, CJ

ALI AKBAR and another

Versus

FEDERATION OF PAKISTAN through Secretary Finance Division and another

Writ Petition No.1613 of 2003, heard on 22nd March, 2011.

Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982---

----Rr. 5 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Claim for advance increments---Objection to---Petitioners who were serving as Driver and Qasid respectively in the Federal Shariat Court, were granted four advance increments in recognition of their good conduct and outstanding performance by Chief Justice of Federal Shariat Court in exercise of powers conferred under R.5 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982---Service Books of the petitioners were sent to Accountant General for verification of re-fixation of pay of the petitioners which was denied---Ministry of Law, Justice and Human Rights Division having already opined that Chief Justice, Federal Shariat Court had full financial and administrative powers under the Rules, act of grant of advance increments to the petitioners was quite lawful and department had no authority to raise any objection to the same---Even otherwise the petitioners had been subjected to discrimination as one employee also had been granted four increments in recognition of his good work and department had endorsed the same without any objection---Case of the petitioners was at par with the said employee---Department could not be allowed to raise objection to grant of advance increments to the petitioners, when they had already approved the grant of advance increments to an other employee---Objection raised by the department regarding grant of advance increments to the petitioners, was declared to be illegal, unlawful and without jurisdiction.

Zarif Khan v. Government of N.-W.F.P 1996 PLC (C.S) 778; Government of Pakistan through Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court and others 1992 SCMR 1852 and Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141 ref.

Abdul Rehman Khan for Petitioners.

Tariq Mehmood Jahangiri, Dy. A.-G.

Rana Zulfiqar, Section Officer, Finance Division.

Munir Ahmad Alvi, Accounts Officer, A.G.P.R., Islamabad.

Date of hearing: 22nd March, 2011.

2011 P L C (C.S.) 37

[Karachi High Court]

Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ

Syed MEHBOOB ALI and 21 others

Versus

PROVINCE OF SINDH through Chief Secretary to Government of Sindh and 3 others

Constitutional Petitions Nos. D-2462, D-2568, D-2682, D-2723 of 2009, D-1428, D-473, D-852, D-100 of 2010, decided on 4th September, 2010.

(a) Administration of justice---

---Where rules or any other legal instrument, confers a particular power, the authority can exercise that power by applying its own independent mind---If competent authority acts merely in mechanical mariner on direction given by superior authority, such act by competent authority would not be a valid act in law and would be without lawful authority and of no legal effect.

Muslim Commercial Bank Ltd. and others v. Mahmood Ahmed Butt and others, 1997 PLC 550, Abdul Jabbar v Punjab Labour Appellate Tribunal, Lahore and 2 others, 2001 PLC, 341: Muslim Commercial Bank Ltd v. Punjab Labour Appellate Tribunal, Lahore and 2 others, 1989 PLC 206 and Muslim Commercial Bank Ltd. Karachi and 2 others v. Punjab Labour Appellate Tribunal Lahore and 2 others, 1994 PLC 38 rel.

(b) Administration of justice---

----Public power, exercise of---Principles---All public power must be exercised in the best possible interest and for the most possible furtherance of objectives for which the power has been conferred---Such exercise of power while not being whimsical or capricious must also be reasonable and logical.

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

----S. 128---Constitution of Pakistan, Art.199---Constitutional petition---Posting of officials---Jurisdiction of Provincial Government---Scope---Petitioners were employees of Local Government and their grievance was that they could not be transferred under a notification issued by Provincial Government-Validity-Notification in question did not make out that it was a direction under S.128 of Sindh Local Government Ordinance, 2001, and it was only for "Administrative Departments" which were directed to revert employees to their original positions---Local Government institutions were not administrative departments of Provincial Government, therefore, it did not seem that intention of notification was to apply it to low paid employees of Union Councils---Notification in question was not applicable to Local Government employees---Order of posting of petitioner was passed without due consideration and in mechanical manner in consequence of notification which was not applicable to Local Government employee and the same was declared without lawful authority and of no legal effect-High Court in exercise of Constitutional jurisdiction, set aside the posting order passed by Provincial Government---Petition was allowed accordingly.

Fazal Ahmed Samtio v. Province of Sindh and others, 2010 PLC (C.S.) 215; Peer Muhammad v. Government of Balochistan through Chief Secretary and others, 2007 SCMR 54 and Secretary to Government of Punjab, Health Department Lahore and others v. Dr. Abida Iqbal and another 2009 PLC (C.S.) 431 ref.

M.M. Aqil Awan, Shamdas B. Changani and M. Arshad Tanoli for Petitioners.

Ahmed Pirzada and Adnan Karim, A.A.-G. for Respondents.

Date of hearing: 26th May, 2010.

2011 PLC (C.S.) 56

[Karachi High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

SARIR MUHAMMAD KHAN

Versus

PAKISTAN STEEL MILLS CORPORATION LTD. through Chairman, and 2 others

Writ Petition No.D-424 of 2010, decided on 4th September, 2010.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Order without jurisdiction---Back benefits, grant of---Subsequent judgment of Supreme Court---Effect---Petitioner's appeal was allowed by Service Tribunal and he was reinstated but authorities denied back benefits to the petitioner---Plea raised by authorities was that subsequently it was held by the Supreme Court that Service Tribunal did not have jurisdiction in respect of cases of Corporation employees who had been proceeded under Removal from Service (Special Powers) Ordinance, 2000, therefore, order of Service Tribunal was without jurisdiction and no legal consequences could flow from the same---Validity---Plea of authorities was misconceived---Order without jurisdiction albeit in view of subsequent pronouncement of Supreme Court in another case, when the order was passed it was willingly and gladly accepted by authorities and no steps were taken to get such order set aside by next higher forum; parties were bound by the order which was not challenged by them notwithstanding subsequent contrary declaration of law by the Supreme Court---High Court directed the authorities to pay back-benefits in accordance with the orders of Service Tribunal---Petition was allowed accordingly.

Zarai Taraqiati Bank Ltd., Islamabad and another v. Aftab Ahmed Kolachi and another, Civil Petition No.1024 of 2008; Salma Munawar v. Pakistan Railways and others C.P. No. D-2663 of 2009; Executive Council, Allama Iqbal Open University and others v Dr. M. Tufail Hashmi and others 2010 SCMR 1484; Muhammad Idrees v. Agricultural Development Bank of Pakistan, PLD 1997 SC 681 and Begum Syeda Azra Masood v. Begum Noshaba Moeen and others, 2007 SCMR 914 ref.

Pir Bux's case PLD 1987 SC 145 rel.

Gohar Iqbal for Petitioner.

M.G. Dastagir and Umer Hayat Sindhu, D.A.-G. for Respondents.

Date of hearing: 31st August, 2010.

2011 PLC (C.S.) 61

[Karachi High Court]

Before Bhajandas Tejwani and Muhammad Tasnim, JJ

NIAZ ALI

Versus

EXECUTIVE ENGINEER OFFICER (EDUCATION), SUKKUR and 2 others

Constitutional Petition No.D-756 of 2009, decided on 7th July, 2010.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Employee of Education Department in BPS-1---Removal from service through non-speaking order without providing opportunity of hearing to petitioner---Validity--Petitioner and his co-employees had been removed through impugned order---Another Division Bench of High Court had already accepted constitutional petition filed by co-employees against impugned order---All authorities and courts were required to pass speaking orders---High Court while following such earlier judgment set aside impugned order and directed Department to post petitioner on his post in terms of his appointment letter within one month.

Mrs. Anisa Rehman v. and another 1994, SCMR 2232; Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423; Hameed Akhtar Niaz v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Messrs Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268 rel.

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

----S. 24-A---Speaking order---All authorities and courts are required to pass speaking orders.

Messrs Airport Support Services v. The Airport Manager.

Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268 rel.

Nizamuddin Baloch for Petitioner.

Imtiaz Ali Soomro, Asstt. A.-G. for Respondents.

Date of hearing: 7th July, 2010.

2011 P L C (C.S.) 102

[Karachi High Court]

Before Gulzar Ahmed and Salman Hamid, JJ

QAMARUDDIN

Versus

PROVINCE OF SINDH and others

Constitutional Petition No.D-231 of 2010, decided on 11th August, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Withholding of salary---Petitioner who was appointed as junior clerk, joined his duty, but his salary had not been paid---Only reason for non-releasing of salary was that in the budget released by Finance Department, salary of 8 junior clerks was being drawn by Principal of the College, through computer and the petitioner's name was not received---No basis were available for non-payment of salary to the petitioner---If provision was for payment of salary to the 8 junior clerks, there could also be provision for payment of salary to the petitioner, more so when his appointment was not disputed---When the petitioner remained in the employment, it was his constitutional and legal right to receive the salary---Denial of salary to the petitioner would lead to serious consequences upon the department---Authorities were directed to release the salary of the petitioner from the date of his posting within period of two weeks, in circumstances.

Dhani Bux Otho for Petitioner.

Allah Bachayo Soomro, Addl. A.-G. along with Mir Ali Shah, Additional Director Colleges and Latif Dino Soomro, D.A.O., Hyderabad for Respondents.

2011 P L C (C.S.) 155

[Karachi High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

ABDUL REHMAN RANA

Versus

FEDERATION OF PAKISTAN, MINISTRY OF EDUCATION through Secretary and 4 others

Constitutional Petition No. D-568 of 2008, decided on 30th September, 2010.

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

----Ss. 3 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Petitioner's plea that authority initiated action against him under Removal from Service (Special Powers) Ordinance, 2000, but terminated his service by giving hint pay in lieu of notice period according to terms and conditions of his service---Validity---Where law provided competent authority with two different modes of terminating services of its employees, then mere fact that authority once elected to act under one mode would not, in absence of any bar in law, preclude authority from taking resort to second mode at a later stage---High Court repelled such plea and dismissed constitutional petition in circumstances.

Ehsan Elahi v. WAPDA, 1988 SCMR 1247 fol.

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

----Ss. 3 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Termination of service---Sub-Engineer in University---Initiation of action against petitioner under Removal from Service (Special Powers) Ordinance, 2000, but termination of his service by the organization after giving him pay in lieu of notice period in accordance with terms and conditions of his service---Authority's objection that such petition was not maintainable in absence of statutory rules of service---Validity---Where an organization owned or controlled by Federal or Provincial Government and being a "person" within contemplation of Art.199 of the Constitution did not have statutory rules of service, its employees could not maintain constitutional petition in respect of any grievance relating to their employment or termination of service---Petitioner's plea that termination had caused him stigma, would be available to him before a competent court---Authority did not have statutory rules of service---High Court dismissed such petition for being not maintainable.

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

Gohar Iqbal for Petitioner.

Khalid Javed for Obaid-ur-Rehman for Respondent No.2.

M. Jamil Farooqui for Respondent No.3.

Date of hearing: 23rd September, 2010.

2011 PLC (C.S.) 162

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

MUHAMMAD MUSTAFA KAMAL

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division/Chairman Federal Board of Revenue, Islamabad and 2 others

Constitutional Petition No.D-1311 of 2009, decided on 22nd September, 2010.

(a) Interpretation of statutes---

----Word "include" used in definition or interpretation clause of a statute---Scope stated.

When a word defined is declared to mean such and such, the definition is explanation and is prima facie restrictive while on the other hand where the word defined is declared as "include" so and so the declaration is exhaustive. Word "include" is most commonly used in interpretation clauses in order to extend meaning of words or phrases occurring in the body of the statutes.

Qadri Brother Foundry and Workshop, Karachi v. Sindh Employees' Social Security Institution, Karachi 1977 PLC 236 and Don Baso High School v. Assistant Director, Employees Old Age Benefit Institution and others PLD 1989 SC 128 rel.

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

----S. 2(b)---Government Servants (Efficiency and Discipline) Rules, 1973, R.2(4)---Word "includes" used after word misconduct' in S.3(b) of Removal from Service (Special Powers) Ordinance, 2000---Effect---'Misconduct' would not mean what was stated in such definition, but everything else which could conceivably fall therein---Every transgression of every rule, every conduct inconsistent with faithful discharge of duty, acts of bad governance, improper conduct, doing of something by a person inconsistent with conduct expected by him rule of institutions or organization would be 'misconduct'-Conduct of an employee in violation of Government Servants (Conduct) Rules, 1964 would be treated asmisconduct' in terms of definition of such term as given in S.3(b) of Ordinance, 2000.

Shaukat and others v. Allied Bank of Pakistan 2007 SCMR 198; Syed Hasham Ali Shah and Sons v. The Federation of Pakistan PLD 1951 Lah. 425; M.V. Ittycheria v. State of Kerala AIR 1958 Ker. 374 and Opal Laboratories Ltd. v. Workers' Union 1972 PLD 83 rel.

(c) Words and phrases---

----"Misconduct"---Connotation---Every transgression of every rule, every conduct inconsistent with faithful discharge of duty, acts of bad governance, improper conduct, doing of something by a person inconsistent with conduct expected by him by rules of institutions or organization would be misconduct.

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

----Ss. 3(1)(e) & 8---Government Servants (Efficiency and Discipline) Rules, 1973. R.5(1)(iv)---Defect in inquiry---Powers of competent authority to order holding of fresh inquiry---Scope---Such powers must always be available to employer under principles of reasonableness and justice---Competent authority would not be bound to follow report of Inquiry Officer, but could direct for holding of de novo inquiry in appropriate cases for valid, justified and justifiable reasons---Such powers could not be used for mala fide reasons, rather must be exercised with due care and caution for valid and bona fide reasons---Principles.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1992 PLC 415; Muslim Commercial Bank and others v. Mehmood Abbas Butt and others 1997 PLC 550; Ghulam Qasim Khan v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan and another 2005 SCMR 1610 and Shafaullah Khan Niazi through Legal Heirs v. Deputy Director, Food Department Multan and another PLD 2004 SC 55 rel.

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

----Ss. 5 & 8---Inquiry proceedings---Misconduct, charge of---Opinion of Inquiry Committee about proof of such charge not unanimous---Order of competent authority for holding of fresh inquiry---Validity---Such order was not suffering from any legal infirmity---Principles.

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

----Ss. 3(1)(e), 5 & 8---Inquiry proceedings---Disagreement of competent authority with recommendations/opinion of Inquiry Officer/Committee or Authorised Officer---Order of de novo inquiry---Scope and effect---In case of such disagreement, competent authority would be bound to state just and sound reasons in such order---Such order could be passed, where either Inquiry Committee failed to carry out required probe into alleged charge or opinions of members of such Committee were split or inquiry proceedings were not enough for forming an opinion---De novo inquiry must not be for improvement or removing a lacuna in previous inquiry, but must be for justice in view of defect in conduct of previous inquiry or to bring forth evidence either not produced or could not be produced for legitimate reasons in previous inquiry---Order of de novo inquiry would not have effect to wash away and throw into a waste basket previous proceedings---Employee would have full opportunity to defend himself in de novo inquiry and could rely on evidence produced in previous inquiry---In case of de novo inquiry, show-cause notice issued by competent authority on basis of earlier opinion would loose its legal effect---Principles.

Muhammad Hayat, Superintendent Engineer v. Government of West Pakistan and another, PLD 1964 (W.P) Lah. 264 and Shibli Farooqi v. Federation of Pakistan and others 2009 PLC (C.S.) 616 ref.

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

----Ss. 5, 8 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Order of de 'novo inquiry passed by competent authority---Such order not being a final order challengeable under S.10 of Removal from Service (Special Powers) Ordinance, 2000---Constitutional petition was maintainable.

Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others, 2001 PLC (C.S.) 623; Syed Aftab Ahmed Jafri v. Pakistan through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others 2004 PLC (C.S.) 52; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 ref.

Khalid Jawaid Khan for Petitioner.

Akhtar Ali Mehmood for Respondents.

Date of hearing: 26th August; 2010.

2011 PLC (C.S.) 181

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

MUHAMMAD AKRAM KHAN

Versus

PROVINCE OF SINDH through Chief Secretary, Services, General Administration

and Coordination Department and 2 others

Constitutional Petitions Nos.2300 and 2039 of 2008, decided on 28th September, 2010.

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

---Rr. 7(2)(3) & 8--Sindh Civil Servants Act (XIV of 1973), S.9---Constitution of Pakistan, Art.199---Constitutional petition---Respondent serving in BS-18 allowed BS-19 against re-designated/upgraded post w.e.f. 1-7-2002 till further orders vide Notification dated 27-9-2002---Plea that impugned posting amounted to promotion of respondent with retrospective effect; and that he being employee in BS-18 could not be given permanent charge of a post of BS-19---Validity---Promotion to post of BS-19 could be made only on recommendations of Selection Board---Respondent could not have been promoted to BS-19 merely by impugned posting order---Impugned posting order made till further orders was not a promotion---Employee would be either promoted or not, but could not be promoted till further orders---Respondent had never been promoted to BS-19 as no Selection Board had ever recommended him---Impugned notification was prospective in nature, thus, could not be given retrospective effect---Respondent would continue to be an employee in BS-19 and was liable to be posted on a post of BS-18---Authority would be at liberty to consider and decide case of respondent's promotion in accordance with law and rules---High Court disposed of constitutional petition with such terms.

Miss Farooq Sadiq v. Secretary Health and others 1994 PLC (C.S.) 647=PLD 1994 SC 269; Aijaz Mustafa Samtio, Advocate v. Government of Sindh and others, 2002 PLC (C.S.) 117; Syed Arshad Hussain v. Government of Sindh and 38 others PLD 1982 Kai. 604; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another, PLD 2010 SC 483; Abdul Majid Shaikh v. (1) Mushaffe Ahmed, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and (2) The Secretary, Ministry of Defence, Government of Pakistan, Karachi, 1965 PLC 186 and Ghulam Muhammad v. Province of Sindh through Chief Secretary and 2 others, 2009 PLC (C.S.) 120 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Civil service---Writ of quo warranto is maintainable.

Abdul Bashir and 9 others v. Government of Balochistan, through Chief Secretary and 3 others, 2001 PLC (C.S.) 771 rel.

Khalid Jawaid Khan for Petitioner (in Constitutional Petition No.D-2300 of 2008).

M.M. Aqil Awan for Petitioner (in Constitutional Petition No.D-2039 of 2008).

Muhammad Nawaz Shaikh for Respondent No.3 Saifullah, A.A.-G.

Date of hearing: 16th September, 2010.

2011 P L C (C.S.) 192

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

ABDUL HAMEED CHANNA through Attorney

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Islamabad

and 2 others

Writ Petition No.D-539 of 2007, decided on 5th October, 2010.

Constitution of Pakistan---

----Art. 199---General Clauses Act (I of 1897), S.21---Constitutional petition---Dawood College of Engineering and Technology, employee of---Promotion of petitioner from BS-19 to BS-20 with approval of Board of Governors of College---Withdrawal of promotion order after lapse of seven years, re fixation of petitioner's pay in BS-19 and recovery of difference of amount between BS-19 and BS-20 paid to him during such period from his retirement dues---Validity---Decision could be withdrawn before taking any decisive step and creation of vested rights---College had taken decisive steps by remunerating petitioner in BS-20 for seven years, consequently vested rights were created---After having remunerated petitioner in BS-20 and taken work from him in such capacity for such long period, College could not withdraw his promotion order without issuing him a show-cause notice and hearing him Retiring employee expects something in his kitty at eve of his retirement, and if authority recovers every thing from such kitty on pretext that authority made mistake ten years ago, then retiring employee would be left. high and dry to say the least---High Court declared impugned order to be without lawful authority and of no legal effect.

Mansoor-ul-Haq Solangi for Petitioner.

S.M. Iqbal Shah for Respondents Nos.2 and 3. Ashiq Raza, D.A.-G.

Date of hearing: 16th September, 2010.

JUDGEMENT

SHAHID ANWAR BAJWA, J.--- Facts giving rise to this petition are that petitioner joined employment of respondent No.2 as Accounts Officer in 1973. The petitioner was promoted to Grade-19 in 1985. On 30-7-1996 an Office Order was issued by which order the petitioner was promoted, with the approval of Board of Governors of respondent No.2 to BS-20. Such promotion was made effective from 16-6-1996. Relevant part of the Office Order dated 30-7-1996 reads as under:

"As approved by the Board of Governors in its meeting held on 16th June, 1996 vide Resolution No. BG-23/96/Any other Item No.2; Mr. A.H. Channa, presently working in BPS-19 as Director Finance and Administration, DCET is granted grade BPS-20 (Rs.9195-440-13595) as his personal grade with effect from 16th June, 1996.

He will be entitled to the allowance as admissible under the college rules."

1. In consequence of this order the petitioner started enjoying emoluments and benefits of BS-20. Through letter dated 28-11-2002 the petitioner was informed that his case is being referred to the Ministry. The relevant part of this letter reads as under:---

"In this respect the case has been examined by the AGPR and found that the validity of personal Grade BPS-20 is not covered under the rules. The college authorities fixed your salary earlier under the revised new pay scale w.e.f. 1-12-2001 subject to scrutiny by the audit and AGPR. It is important to note that there is no provision in the new pay fixation formula for personal grade.

The audit has also objected to your personal grade BPS- 20. However, your case of personal grade BPS-20 is being referred to the Ministry of Finance. If cleared, the monetary benefits shall be restored accordingly."

1. Upon attaining age of superannuation the petitioner retired in February, 2006. Being aggrieved by the order dated 28-11-2002 the petitioner approached the Federal Service Tribunals in view of provisions contained in section 2-A of the Service Tribunal Act. That appeal abated in view of dictum laid down by the honourable Supreme Court in the case of Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602. Consequently this Constitution petition was filed on 25-9-2006. Learned counsel for the petitioner submitted that not only the benefits of the petitioner in terms of order dated 30-7-1996 were withdrawn after letter dated 28-11-2002 was issued but the amount paid to the petitioner between 1996 to 2003 has been recovered from the retirement emoluments and pensionary benefits of the petitioner. Learned counsel submitted that petitioner was promoted by Board of Governors and it is nowhere alleged that the petitioner exercised undue influence over or brought external pressure upon the Board of Governors for getting himself promoted.

Learned counsel further submitted that after petitioner was promoted in BS-20 such promotion order could not have been withdrawn without following the due course of law.

1. Mr. S.M. Iqbal learned counsel for the respondents Nos.2 and 3 referred to the comments filed by the respondent No.3. He first of all referred to letter dated 10-2-2003 issued by the Section Officer (R-2) Finance Division. The said letter in material part stated as under:

"The undersigned is directed to refer to the Ministry of Education (Advanced Education Wing)'s. U.O. No.F.1-31/2002-NIA dated the 23rd January, 2003 on the subject noted above and to say that the Dawood College of Engineering and Technology, Karachi is a resolutory body. The superior courts have held that an autonomous body cannot be created by a resolution. Such resolutory bodies are considered extension of the government departments. In view thereof, the employees of DCET, Karachi are civil servants and government' rules and policy instructions are applicable on them. The BOG of the College was therefore not competent to allow personal up gradation to Mr. Abdul Hameed Channa."

Thereafter the learned counsel referred to the letter dated 27-11-2002 issued by the Accountant General Pakistan Revenues to the Principal of Dawood College of Engineering & Technology, Karachi which letter after reiterating what was stated in letter dated 10-2-2003 stated that the matter was referred to the administrative Ministry and Finance Division for the admissibility of BS-20. Thereafter the learned counsel referred to letter dated 23-1-2003 written by Assistant Educational Adviser requesting for advice to the Ministry about the validity of personal grade to the petitioner. Thereafter order dated 6-4-2005 was issued by the Ministry of Education. This order reads as under:---

"I am directed to refer to letter No. DCET/C-48/3284, dated 21st February, 2005 on above subject and to state that Education Secretary, the competent authority, has been pleased to give his ex-post facto approval to the re-fixation of pay of Mr. Abdul Hameed Channa in BPS-19 from the date he started drawing pay in B-20 irregularly."

1. It was in consequence of this order that the letter impugned in this petition was issued to the petitioner. Learned counsel submitted that the decision of the Board of Directors was without authority and therefore no legal consequence or entitlement could flow from such a decision. Mr. Ashiq Raza, learned D.A.-G. adopted argument of S.M. Iqbal Shah, learned counsel for respondents.

2. We have considered the submissions made by the learned counsel and have also gone through the record.

2011 PLC (C.S.) 203

[Sindh High Court]

Before Saijad Ali Shah and Shahid Anwar Bajwa, JJ

DEEDAR HUSSAIN JAKHRANI and others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

Constitutional Petition No.465 of 2008, decided on 17th September, 2010.

(a) Civil service---

----Initial illegal induction in service challenged after thirteen years---Validity---Mere passage of time could never and should never be allowed to convert an illegality into pristine purity of legal existence.

(b) Administration of justice---

----Mere passage of time could never and should never be allowed to convert an illegality into pristine purity of legal existence---Principles.

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

----Ss. 2(b) & 8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Seniority---Constitutional petition---Maintainability---Seniority being one of terms and conditions of employment would fall within exclusive jurisdiction of Service Tribunal.

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

----S. 4---Civil Servants Act (LXXI of 1973), S.8---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Seniority---Deletion of word 'final" used in S.4 of Service Tribunals Act, 1973---Effect---Constitutional petition challenging proposed seniority list---Maintainability---Such deletion would not have effect of making each and every step taken by competent authority as challengeable under S.4 of the Act, rather what would be challengeable thereunder must be an "order" i.e. an official and authentic decision though not final but must having shade of finality or some semblance thereof---Seniority list issued by competent authority being subject to objections and decision thereon would be a tentative opinion or proposal and could not be considered to be final list and clothed with mantle of "order" within contemplation of S.4 of the Act---In absence of issuance of final seniority list, civil servant could not approach Service Tribunal, thus, constitutional petition would not be barred by Art.212 of the Constitution---Principles.

Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409 rel.

(e) Words and phrases---

---"Order"-Meaning.

Black's Law Dictionary and Judicial Dictionary by K.J. Alyar 13th Edition ref.

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

----Rr. 3, 7 & 9---Civil Servants Act (LXXI of 1973), S.8---Civil Servants (Seniority) Rules, 1993, R.4---Constitution of Pakistan, Art.199---Constitutional petition---National Highway and Motorway Police Senior Patrol Officer (BS-16), posts of---Policy of department to take employees on deputation for posting on such posts---Posting on such posts on deputation Police Officers serving in Police Department and Islamabad Capital Territory and their promotion at same time and subsequent absorption in the department through its Induction Committee-Validity-According to Rr.3 & 7 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, every promotion and appointment must be through Departmental Promotion Committee---Under R. 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, appointment by transfer could be made only from amongst persons holding appointment on regular basis in the post in same basic pay scale or identical grade of post to be filled in---Such Induction Committee could not be treated as Departmental Promotion Committee for having mandate different from that Departmental Promotion Committee; that nothing in record was available to show that competent authority had conferred powers of Departmental Promotion Committee on Induction Committee; and that Departmental Promotion Committee would always be in respect of employees of same department and not in respect of employees of other departments or deputationists, who would continue to be employees of their parent departments till their confirmation in borrowing department---Deputationists should have been firstly absorbed' and then considered for promotion by Departmental Promotion Committee in deserving cases---Promotion could not be awarded to deputationists prior to an effective date of their absorption in the department---Deputationists would come in the department in accordance with rules and in same pay-scale and grade in which they were serving in lending department till their absorption in employment of the borrowing department---High Court set aside promotion of deputationists granted at eve of their being taken on deputation and directed the borrowing department to constitute Departmental Promotion Committee in accordance with rules to consider cases for promotion of deputationists in accordance with law.

Hameed Akhtar Niazi's case 1995 SCMR 1185; Secretary to Government of The Punjab, Education Department, Lahore v. Mrs. Kishwar Aslam and others PLD 1997 SC 578; Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185; Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297; S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612; Wall Muhammad Khan Warsi and others v. Government of Sindh and others Constitution Petition No.1077 of 1990; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr. Azim­-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer Muhammad v. Government of Balochistan, through Chief Secretary and others 2007 SCMR 54; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S.) 120; Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297; Fasihuddin Siddiqui and 7 others v. Government of Pakistan and others 1998 SCMR 637; Khalid v. Dr. Farzana and others 2001 PLC (C.S.) 1239 and Dr. Rehman Ibad Khan v. Employees Old Age Benefits Institution and 3 others 2002 PLC (C.S.) 2032 ref.

(g) Civil service---

----Deputationist, legal status of---Deputationist would continue to hold new post in officiating/temporary capacity till his confirmation thereon or reversion to his substantive post---Deputationist could be returned by borrowing department or called back by lending department at any time---Borrowing department seeking absorption of deputationist would be required to initiate proposal, obtain his consent and request for approval of lending department.

M.M. Aqil Awan for Petitioners.

Munsif Jan for Respondent No.11.

Muhammad Nawaz Shaikh for Respondents Nos. 10, 22, 25, 33, 151, 156 and 166.

Mian Khan Malik, D.A.-G. along with S.P.O. Khalid Iqbal Departmental Representative.

Date of hearing: 11th August, 2010.

2011 P L C (C.S.) 228

[Sindh High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Dr. HASSAN BUX RIND and 11 others

Versus

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

Constitutional Petition No.D-2437, decided on 18th June, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Contention of the petitioners was that they were entitled to be regularized from the date of their appointments in terms of Sindh Employees Social Security Institution Service Regulations, 1987---Petitioners were appointed as Resident Medical Officers by the Sindh Employees Social Security Institution on contract basis for maximum period of three years---While the petitioners' contractual employment was continuing, they moved constitutional petitions in which they prayed that their services with the department be declared as on regular basis---Said petitions were accepted and they were regularized---Very question of petitioners' regularization according to regulations having already been considered and decided, successive constitutional petition on the same cause of action and for the same relief, would not be maintainable as the principle of constructive res judicata would apply and petition would be barred under the law.

Fateh Muhammad v. Muhammad Ali PLD 1975 Lah. 692; Messrs Sartaj Industries Ltd. v. The Chief Settlement Commissioner and others 1989 SCMR 2053 and Fazal Din and 14 others v. The Custodian Evacuee Property, Lahore and 21 others PLD 1971 SC 779 ref.

Zamir Ghumro for Petitioners.

Jawad Sarwana for Respondents.

Adnan Karim, A.A.-G, Sindh.

2011 P L C (C.S.) 234

[Sindh High Court]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

ABDUL REHMAN and others

Versus

NATIONAL BANK OF PAKISTAN through President and others

Constitutional Petitions Nos.D-604, 1233 of 2009 and 154 of 2010, decided on 31st May, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Grievance of the petitioners was that they were appointed as Godown Chowkidars by Bank, though on temporary basis, but were put to work on important seats of the bank from seven to ten years---Bank had not regularized their services though they had earned vested right to be regularized---In most of the cases of the petitioners, artificial breaks were shown in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank; and to deny them the salaries and their other benefits of regular employees---Held, State was supposed to secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees; and provide for all citizens within the available resources of the country, facilities for and adequate livelihood; and reduce disparity in income and earning of individual---Article 3 of the Constitution, made it obligatory upon the State to ensure the elimination of all forms of exploitation and gradual fulfilment of the principles for each according to his ability and according to his work---Approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period, could not be countenanced---Under S.24-A of the General Clauses Act, 1897, the Bank was required to act reasonably, fairly and justly---Petitioners who were working for so many years with the Bank and had given precious time of their age to the Bank should be regularized/absorbed---Bank was directed to regularize the services of the petitioners within one month.

Ali Ahmed Khan Pathan for Petitioners (in Constitutional Petitions Nos.604 of 2009 and 154 of 2010).

Arif Safdar Ghouri for Petitioner (in Constitutional Petition No.1233 of 2009).

Mushtaque Ahmed Kourejo, Standing Counsel.

Abdul Rehman Bhutto and Muhammad Ali Darghai for Respondents.

2011 P L C (C.S.) 247

[Sindh High Court]

Before Gulzar Ahmed and Salman Hamid, JJ

JUMAN and 233 others

Versus

PROVINCE OF SINDH through Secretary Health Department, Karachi and 2 others

Constitutional Petition No.D-340 of 2008, decided on 14th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioners assailed stoppage of their salaries---Department contended that appointments were fake as no record of criterion set for said appointments was available with them and that the appointments were made by Caretaker Regime which was not authorized to do the same---Validity---Appointments were made prior to Caretaker Regime; same could not be cancelled without hearing the petitioners---Even if appointments were made in disregard of the Cabinet decision, orders of cancellation of appointment could not be issued without hearing the petitioners---Department was directed to look into the validity/ genuineness of the appointments of petitioners within 30 days, whereafter petitioners could plead their case before Secretary Education or Service Tribunal, if required---Question of payment of salaries could also be determined by the outcome of proceedings before Secretary of the Department or Service Tribunal---Constitutional petition was disposed of accordingly.

Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077 fol.

Jhamat Jethanand for Petitioners.

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

Date of hearing: 28th September, 2010.

2011 P L C (C.S.) 273

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

ABDUL HUSSAIN KORAI and 82 others

Versus

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

Constitutional Petition No.D-1302 of 2010, decided on 7th October, 2010.

(a) Constitution of Pakistan---

----Arts. 189 & 190---Decisions of Supreme Court are binding on all courts and under Art.190 of the Constitution all executive and judicial authorities have been mandated to act in the aid of Supreme Court---Words "legislative authority" have not been included in Art.190 of the Constitution.

(b) Legislation---

----Provincial Legislature---No Province could be obliged to make a particular provision merely on ground that another Province or Provinces had enacted similar provision---If uniformity in Provinces in legislative domain would have been intended by legislature, then there was no need for provincial autonomy and separate legislature for each Province.

(c) Civil service---

----Contract employee released upon completion of project---Validity---Such release could not be said to be without lawful authority.

Sarfraz Ahmed v. Government of Sindh, 2006 PLC (C.S.) 1304 distinguished.

Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930; Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420; Ateequr Rehman and others v. Federation of Pakistan and others Civil Petition No.246-K of 2010 and Government of Balochistan, Department of Health, through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2009 PLC (C.S.) 206; WAPDA and others v. Khanimullah and others, 2000 SCMR 879 and President United Bank Ltd. v. Abdul Shamim Khan, PLD 1999 SC 990 rel.

Abdul Mujeeb Pirzada, Shabbir Ahmed Awan for Petitioners.

Nariandas C. Motiani for Respondent No.2.

Adnan Karim, A.A.-G.

Date of hearing: 5th October, 2010.

2011 PLC (C.S.) 281

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

AYAZ AHMED MEMON

Versus

PAKISTAN RAILWAYS, MINISTRY OF RAILWAY, ISLAMABAD through Chairman and another

Constitutional Petition .No.D-983 of 2007, decided on 14th October, 2010.

Constitution of Pakistan---

----Arts. 199 & 3---Constitutional petition---Civil service---Appointment on contract basis---Petitioner was employed on contract for a period of three years, but said contract continued from year to year and his service continued for more than 7 years---Petitioner had prayed that he be treated as permanent employee with all consequential benefits---Validity---If the post on which the petitioner was appointed, was a permanent one it should have been filled over during the last 6 years or so, but that had not been done---Such was one of the most nefarious kinds of exploitation that a person was recruited on contract for a post of permanent nature and was continued as such from year to year; keeping that person on the tenterhooks of uncertainty with the sword of termination of contract permanently hanging over his head by nothing, but the most fragile thread of one knotted eyebrow of a superior---Such a situation could not and should not be allowed to be countenanced---Department was directed to assess the suitability of the petitioner for permanent absorption on the post; and thereafter take action in accordance with law, within a period of two months.

Syed Muhammad Soulat Rizvi for Petitioner.

Latifur Rehman Sarwari for Respondent.

Ashiq Raza, D.A.-G.

Date of hearing: 8th October, 2010.

2011 P L C (C.S.) 292

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

Hafiz GHULAM YASIN and 27 others

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Islamabad and another

Constitutional Petition No.D-2708 of 2009, decided on 14th October, 2010.

Civil service---

----Post once abolished absolutely, then employment of employee would come to an end.

Abid S. Zuberi for Petitioners.

Khalid Jawaid for Respondent No.2.

Ashiq Raza, D.A.-G.

Date of hearing: 8th October, 2010.

2011 PLC (C.S.) 301

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

HUMAYUN ZIA

Versus

FEDERATION OF PAKISTAN through Secretary Commerce, Islamabad and another

Constitutional Petition No.D-937 of 2009, decided on 18th October, 2010.

(a) Pakistan Insurance Corporation Act (XXXVIII of 1952)---

----Ss. 3 & 46---Pakistan Insurance Corporation (Re-Organization) Ordinance (XXXVI of 2000, Ss.3 & 7---Pakistan Insurance Corporation (Staff) Service Regulations, 1959, Reglns.24, 27 & 28---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Employee of Pakistan Re-Insurance Company Limited---Dismissal from service---Absence from duty---Company being entirely owned by Federal Government was a "person" within contemplation of Art.199(5) of the Constitution---Pakistan Insurance Corporation (Staff) Service Regulations, 1952 were statutory rules for having framed by Board of Management of Insurance Corporation with prior approval of Federal Government under S.46 of Pakistan Insurance Corporation Act, 1952---After promulgation of Pakistan Insurance Corporation (Re-Organization) Ordinance, 2000, all properties, rights and liabilities to which Corporation was entitled, vested in such Company w.e.f. 15-2-2001 and employees of Corporation stood transferred to such company on their same terms and conditions---Till framing of new rules under Ordinance, 2000, old rules i.e. Regulations, 1959 would be deemed to be operative despite their implied repeal---Constitutional petition was maintainable in circumstances.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others, PLD 2006 SC 602; Raja Riaz v. Chairman Pak. Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402; Allied Bank Ltd. v. Syed Nasir Abbas Naqvi, 2007 SCMR 1143; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 and Nasiruddin Ghori v. Federation of Pakistan, 2010 PLC 323 ref.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244; Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi, PLD 1984 SC 170 and Dr. Muhammad Amin v. President Zarai Taraqiati Bank Limited, 2010 SCMR 1458 rel.

(b) Pakistan Insurance Corporation (Staff) Service Regulations, 1959---

----Reglns. 24, 27 & 28---Constitution of Pakistan, Art.199---Constitutional petition---Employee of Pakistan Re-Insurance Company Limited---Dismissal from service---Charge of absence from duty without leave for IS days---Petitioner's exploitation was that he had gone abroad, and due to delay in getting visa, he became late in returning Pakistan---Validity---Correspondence must exist between seriousness of allegations and severity of punishment---Imposition of punishment of censure for such charge would have met the ends of justice---High Court set aside impugned punishment and directed reinstatement of petition in circumstances.

S.M. Iqbal Shah for Petitioner.

Sikandar Khan for Respondents.

Ms. Cookie Rawat, Standing Counsel.

Date of hearing: 21st September, 2010.

2011 P L C (C.S.) 313

[Sindh High Court]

Before Shahid Anwer Bajwa and Tufail H. Ibrahim, JJ

ZULFIQAR ALI SHAH

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh

and 4 others

Constitutional Petitions Nos.D-1537 of 2009 and 448 of 2010, decided on 1st November, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment on upgraded posts---Secretary, Excise and Taxation Department issued order whereby 26 posts of Excise and Taxation Officers were abolished and upgraded as posts of Deputy Directors BPS-18, subject to the condition that officers would be promoted against the upgraded posts on the basis of seniority as per Rules through Departmental Promotion Committee---Department Promotion Committee recommended 24 officers, while case of 2 officers were deferred (including the petitioner), for the reason that he had not acquired any ACR---Petitioner could not get ACR as he had been on extraordinary leave---Petitioner had prayed that deferment of his promotion be declared as unlawful, illegal, unconstitutional and mala fide and the authorities be directed to promote him to the next higher grade---High Court could not be a judge of fitness for promotion, which was for the Departmental Authorities to determine---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment on upgraded posts---Out of 91 posts, 26 posts were upgraded---Petitioners who were not promoted to upgraded posts, had prayed that up-gradation of only 26 posts instead of all 91 posts, be declared as illegal and authorities be directed to upgrade all the posts---Contention of counsel for. the petitioners was that, if post was upgraded the holder of the post would automatically be promoted and if one post was upgraded, all other similar posts must also be upgraded; as if one, then all was the rule---Authorities had contended that only 26 posts had been upgraded and upgradation was different from promotion and for promotion the rules were being followed---Notification whereby the posts were upgraded had stated that post had been upgraded not in terms of names of the incumbents, but in terms of the posts specified---26 out of 91 posts having been upgraded, it was not a situation where the holder of such particular post at that particular time had been promoted---Irrespective of the person holding that particular post at that particular time, certain posts had been upgraded---Such a discretion could not be disallowed to the authority---Certain posts of BPS-17 had been abolished and consequently posts of BPS-18 had been created; and then a process was prescribed for promotion through Departmental Promotion Committee, which could not be said to be in violation of law---Constitutional petition was dismissed.

Muhammad Farid Kattak and others v. Chief Secretary Government of N.-W.F.P. and others 2009 PLC (C.S.) 752 ref.

Malik Naeem Iqbal for Petitioner.

Adnan Karim, A.A.-G. Sindh along with Mohsin Haqane, Secretary Excise and Taxation Department for Respondents.

Date of hearing: 21st October, 2010.

2011 P L C (C.S.) 321

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

MUHAMMAD AQIB SHAHID

Versus

CHIEF OF THE NAVAL STAFF, NAVAL HEADQUARTERS, ISLAMABAD

and 6 others

Constitutional Petition No.D-1495 of 2010, decided on 3rd November, 2010.

Pakistan Navy Rules, 1961---

----Rr. 30, 33, 36 & 258(20)---Constitution of Pakistan, Art.199---Constitutional petition---Withdrawal from training and discharge from service---Departmental proceedings were initiated against the petitioner on allegation of theft and he was withdrawn from training and was discharged from service---Validity---Adequate remedy was available to the petitioner under R.36 of Pakistan Navy Rules, 1961 whereunder if the petitioner was not satisfied, he had a right to appeal to next higher authority, which was Chief of Naval Staff and finally to the Federal Government which was the highest hierarchy---Record had indicated that petitioner wrote an application to the Chief of Naval Staff requesting him to review his case---Naval Authorities were directed by High Court to decide said application of the petitioner---If the petitioner would be aggrieved by decision of the Naval Authorities or such decision was not communicated to him within 30 days, petitioner could appeal to the Federal Government through the Chief of Naval Staff---Order accordingly.

Ex Lt.-Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549 and Federal Government and others v. M. Ishaque Qamar, PLD 2007 SC 498 ref.

Petitioner in person.

Ashiq Raza, D.A.-G. along with Sub-Lt. Ghazanfar, Lt.Cdr. Anjum for Respondents.

Date of hearing: 19th October, 2010.

2011 PLC (C.S.) 328

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

GHULAM AKBAR ALLANA

Versus

NATIONAL BANK OF PAKISTAN through President and 3 others

Constitutional Petition No.D-2100 of 2007, decided on 3rd November, 2010.

Administration of justice---

----Once a lower functionary would make a recommendation with reasons, the higher functionary could agree with it and need not record his reasons---However, if higher functionary would disagree with recommendation of a lower functionary, such order of higher functionary must carry its own reasons.

Abdul Sattar Mughal for Petitioner.

Ch. Muhammad Ashraf Khan for Respondents.

Date of hearing: 18th October, 2010.

2011 P L C (C.S.) 348

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

ZAFAR IQBAL

Versus

PAKISTAN CIVIL AVIATION AUTHORITY through Director Administration and another

Constitutional Petition No.D-846 of 2007, decided on 19th October, 2010.

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

---Ss. 12(2), 14, 19 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Reinstatement of employee---Maintainability of constitutional petition filed by the petitioner claiming his reinstatement in service, was objected to by the authorities---Contentions of petitioner were that rules framed by the Board of Pakistan Civil Aviation Authority were Statutory Rules and referred to Ss.12(2), 14 & 25 of Pakistan Civil Aviation Authority Ordinance, 1982; that under S.19 of Pakistan Civil Aviation Authority Ordinance, 1982, Pakistan Civil Aviation Authority was a local authority and it would fall within the compass of a person as contemplated under Art.199 of the Constitution; and that even if there were no statutory rules, constitutional petition would be maintainable---Contentions of counsel for the petitioner were misconceived, as S.12(2) of Pakistan Civil Aviation Authority Ordinance, 1982 dealt with appointment of officers, servants and consultants and their terms and conditions; and S.14 dealt with transfer of employees; and S.25 of Ordinance provided that existing arrangement would continue---All said provisions could not be read to grant status of statutory rules to the regulations framed by the Board---Regulations framed by the Board of Authority were not statutory Rules, in circumstances---Section 19 of Pakistan Civil Aviation Authority Ordinance, 1982 indicated that Civil Aviation Authority was a local authority only for the purpose of borrowing of money and not for any other purpose; it was, in circumstances not a local authority with the contemplation of Art.199 of the Constitution---Constitutional petition being not maintainable, was dismissed, in circumstances.

PIAC v. Tanveer-ur-Rehman PLD 2010 SC 676; Rustam Ali and others v. Ryder Bux and others 1998 CLC 779; Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLC 1975 Lah. 65 and Deputy Managing Director, National Bank of Pakistan v. Attaul Haq PLD 1965 SC 201 ref.

(b) Constitution of Pakistan---

----Art. 185(3)---Leave granting order by Supreme Court would not lay down the law.

Rustam Ali and others v. Hyder Bux and others 1998 CLC 779 and Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLC 1975 Lah. 65 ref.

M. Aslam Khan for Petitioner.

Ainuddin Khan for Respondent.

2011 P L C (C.S.) 358

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

MUHAMMAD SADIQ

Versus

FEDERATION OF PAKISTAN through Secretary for Ministry of Law

and Justice and 2 others

Constitutional Petition No.D-871 of 2007, decided on 8th October, 2010.

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

----Ss. 2(b) & 3---Constitution of Pakistan, Art.199---Constitutional petition---Misconduct---Concept---Removal from service---Statement of allegation on basis of which the petitioner was removed from service, was to the effect that he had not brought to the notice of the competent authority that there was ban on recruitment in Pakistan Steel Mills and non-availability of vacancies---Petitioners in that way had failed to safeguard the interest of Pakistan Steel---Validity---'Misconduct' would include; acts prejudicial to good order or service discipline; act. unbecoming of an officer and a gentleman; involvement or participation for gain, either directly or indirectly in industry; abuse or misuse of official position to gain undue advantage; and assumption of financial or other obligations to private institutions or persons such as could cause embarrassment in the performance of official duties or functions---Petitioner, in the present case, could not be held to be guilty of misconduct as non pointing out of ban on recruitment, as such omission of the petitioner did not constitute `misconduct' so as to hold the petitioner condemnable to the equivalent of capital punishment in employment matters---If order passed by any of the departmental authorities was patently in violation of law, High Court could always step in to correct such mis-exercise of power---Question in the constitutional petition was not a factual question as the petitioner had not challenged any of the factual aspects---Order of removal from service passed against the petitioner was set aside and he was ordered to be reinstated in service with all consequential benefits.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676;. Allama Iqbal Open University v. Dr. Tufail Hashmi 2010 SCMR 1484=2010 PLC (C.S.) 1125; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and 9 others, PLD 2009 Kar. 176; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Abid Hussain v. Chairman, Nescom, Islamabad and another 2009 PLC '(C.S.) 701; Messrs Hakim and Sons Chemicals v. Registrar of Trade Marks, 1998 PLC 122; General Manager Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952 and Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 ref.

Abdul Latif Saghar for Petitioner.

Khalid Imran for Respondents.

Date of hearing: 20th September, 2010.

2011 P L C (C.S.) 407

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

Dr. MARIAM JAMILA JATOI and another

Versus

PROVINCE OF SINDH through Secretary, Health Sindh and 2 others

Constitutional Petition No.1476 of 2008, decided on 26th November, 2010.

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

----R. 4(1)---Constitution of Pakistan, Art.199---Appointment---Competent authority---Petitioners who claimed to be qualified Doctors and admitted as Fellows of the College of Physicians and Surgeons of Pakistan, in response to an advertisement, applied for recruitment of Specialist Cadre Doctors BPS-18---Petitioners submitted that they were appointed under the signatures of Minister of Health on the letterhead of the Minister---Petitioners had prayed for implementation of order of their appointment and for posting orders---No recommendation of Public Service Commission was on record for their appointment---Under R.4(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 for all posts of BPS-18 competent Authority was the Chief Secretary and the Minister did not figure in the hierarchy of competent authority at all---Minister who was not a competent authority could not inform the petitioners that they had been selected---Letter by the Minister, being by a non-competent person, no rights or consequences could flow from such a document.

Muhammad Farooq M. Memon Advocate v. Government of Sindh through its Chief Secretary, Karachi 1986 CLC 1408 and Manthar Ali M. Jatoi v. The Government of Sindh through Chief Secretary, Sindh Secretariat Karachi 1988 PLC (C.S) 344 ref.

Ghulam Qadir Jatoi for Petitioners.

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

Date of hearing: 19th October, 2010.

2011 P L C (C.S.) 447

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

Syed SAGHEER HUSSAIN

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petitions Nos. D-1446, D-2104 and D-2156 of 2010, decided on 12th November, 2010.

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

----Arts. 6 & 112 [as amended by Police Order (Amendment) Ordinance (XX of 2007)]---Police Act (III of 1888), Ss.10 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Notification dated 24-8-2010 issued by Provincial Police Officer creating in Sindh Police w.e.f. 22-8-2009 "Special Counter Terrorism Force" called as Special Protection Group (SPG)---Validity---Word "prior" as used in Art. 112 of Police Order, 2002 before word "approval" had been deleted by Police Order (Amendment) Ordinance, 2007---Under S.12 of Police Act, 1888, Inspector-General of Police had power to make such "orders and rules" subject to approval of Provincial Government---Under Art.112 of Police Order, 2002, Provincial Police Officer with such approval could. make only "rules" for carrying into effect provisions of Police Order---Provincial Police Officer could not issue previously a Standing Order without such approval, which he now requires only' for purpose of making rules---Standing Order issued within competence of his powers by Provincial Police Officer would not require any such approval---Impugned notification stated that Chief Minister as competent authority had approved creation of SPG---Deletion of word "prior" from Art.112 of Police Order, 2002 and creation of SPG w.e.f. 22-8-2009 with approval of Chief Minister would make clear that SPG had been validly created.

Siddiq Akbar, A.S.-I. and others v. Sanobar Khan, A.S.-I. and others 1998 SCMR 2013 and A.M. Sheikh v. National Refinery Limited and another 1990 CLC 479 ref.

(b) Interpretation of documents---

----Only contents, but not title of a document would determine its legal effect.

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

----Arts. 6 & 112---Police Act (III of 1888), Ss.10 & 12---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 3---Constitution of Pakistan, Art.199---Constitutional petition-"Special Counter Terrorism Force" in Sindh Police called as Special Protection Group (SPG), creation of---Promotion of Inspectors to rank of DSP in SPG---Standing Order of Provincial Police Officer stating that promotion of a person to SPG would be limited to such cadre, and in case of his transfer to Police, he would be reverted to his previous scale and cadre---Validity---No rules with approval of Provincial Government had been made for making promotion to cadre of SPG---Impugned Standing Order did not have approval of Provincial Government, thus, same being merely a departmental instruction could not be treated as Rules---Provincial Police Officer could issue Standing Order, but same could take place of rules---Demotion and reversion were penalties---Promotion being a promotion once lawfully granted to a civil servant could not be withdrawn merely on account of his transfer---Civil servant transferred and absorbed in another cadre would rank junior most in transferred cadre and could not be interposed at any other place---In absence of rules laying down a clear and transparent method for induction and promotion in SPG cadre, authority could not permanently post any employee therein---High Court declared impugned Standing Order to be without lawful authority and of no legal effect.

Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore and others C.P. No.492 of 2009 ref.

Nishat Warsi for Petitioners (in C.P. No.D-1446 of 2010).

Muhammad Nawaz Shaikh for Petitioners (in C.P. No.2104 of Gohar Iqbal for Petitioners (in C.P. No.D-2156 of 2010).

Adnan Karim, A.A.-G. along with Anwar Ali Subhani, D.S.P. (Legal) for Respondents.

Date of hearing: 26th October, 2010.

2011 PLC (C.S.) 475

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

MUHAMMAD USMAN KHAN and 5 others

Versus

NATIONAL BANK OF PAKISTAN

Constitutional Petitions Nos.D-549 to 551 of 2009, decided on 12th November, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Golden Handshake Scheme (GHS) announced in year 1997 for voluntary exercise of option by employees for leaving service of Bank---Receipt of benefits of the Scheme by petitioners and their relieving from service on different dates in year 1998---Decision of Board of Directors of Bank made on 27-2-1998 granting ad hoc relief to its employees w. e. f. 1-1-1998 except those who opted for the scheme---Petitioners sought inclusion of ad hoc relief in their pay as on their respective last working day for purpose of calculating their benefits of scheme---Validity---Mere acceptance of legal dues by an employee would not render him a non-aggrieved person---Compelling reasons and sturdily reasonable grounds must exist for discrimination between employees still in service and those who ceased to be employees---No reasonable basis existed on record for granting ad hoc relief to other employees while denying same to, those having opted for the scheme---Compensation and pension under the scheme were based on basic salary---Nothing on record to show merger of ad hoc relief in petitioners' basic pay on date of their separation from service---If any benefit under the scheme was based on gross emoluments, then petitioners would become entitled to inclusion of ad hoc relief for purpose of such benefit---Ad hoc relief being different from basic salary could not be included for purpose of calculating compensation or commutation of pension---Petitioners were entitled to calculation of benefits on basis of their emoluments as on last working date of their service---High Court disposed of constitution petition in above terms.

National Bank of Pakistan v. Siddique Akber Civil Petition No.350 of 2003; Tarachand v. Karachi Water and Sewerage Board, Karachi, 2005 SCMR 499=2005 PLC (C.S.) 368; Islam Ahmed v. National Bank of Pakistan Constitution Petition No.D-1268 of 2007; S.M. Tanvir Nusrat v. National Bank of Pakistan Civil Petition No.1261 of 2002; Rana Abdul Ghafoor v. N.B.P. and 3 others Civil Petition No.3378-L of 2001; N.B.P. v. Naseem Arif Abbasi and others Civil Petition No.342-K of 2009; Khyber Zaman v. State Bank of Pakistan and others 2005 SCMR 235 and Board of Trustee of KPT v. Organization of KPT Workers and 2 others 2009 SCMR 994 ref.

General Manager National Radio Telecommunication Corporation, Haripur District Abbotabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 rel.

Islam Hussain for Petitioners.

Ch. Muhammad Ashraf Khan for Respondent.

Date of hearing: 27th October, 2010.

JUDGMET

SHAHID ANWER BAJWA, J.---With the consent of the learned counsel these Constitution Petitions were finally heard at Katcha Peshi stage and are being decided accordingly. Petitioners in all these Petitions were Employees of National Bank of Pakistan (hereinafter referred to as the respondent Bank). A voluntary Golden Hand Shake Scheme (GHS) was circulated in 1997 which provided for, amongst others, the following benefits.

(i) Separation package; (3) months basic pay for each completed year of service or one and half months basic pay for each remaining month of service, whichever is less, subject to a maximum of 90 months;

(ii) Normal retirement benefits to those with more than 25 years service; 50% commutation of pension for those with less than 25 years service.

(iii) Leave encashment upto 50% of leave subject to a maximum 180 days;

1. The Petitioners opted for separation under the scheme and their options were accepted and they were relieved on different dates in 1998.

2. On February 27, 1998 Board of Directors of the respondent Bank decided to grant ad hoc relief to employees with effect from 1-1-1998. These Constitution Petitions were filed by the petitioners with a prayer that their benefits be calculated on the basis of their last emoluments as on their respective last working days and for this purpose ad hoc relief be also included in the benefits. Learned counsel for the petitioners referred to a judgment of Supreme Court in the case of National Bank of Pakistan v. Siddique Akber Civil Petition No.350 of 2003, Tarachand v. Karachi Water. and Sewerage Board, Karachi, 2005 SCMR 499=2005 PLC (C.S.) 368; Islam Ahmed v. National Bank of Pakistan, Constitution Petition No.D-1268 of 2007 decided by a Division Bench of this Court on 20-2-2009 and contended that petitioners are entitled to both the calculation on basis of last emoluments as on the last date of working day and inclusion of ad hoc relief for the purpose of computation of their benefits.

3. Chaudary Muhammad Ashraf Khan learned counsel for the Respondent-Bank referred to the last para of Circular dated February 27, 1998 which provided that those who opted for GHS would not be entitled to the benefits of ad hoc relief. Learned counsel also referred to para 14 of the comments where it is stated that since the Petitioners had accepted GHS benefits and signed certain documents in this regard they were no longer aggrieved persons so as to be entitled to maintain the Petitions. Learned counsel referred to the orders passed by the honourable Supreme Court in S.M. Tanvir Nusrat v. National Bank of Pakistan Civil Petition No.1261 of 2002 (decided on 6-10-2003) and Rana Abdul Ghafoor v. N.B.P. and 3 others Civil Petition No.3378-L of 2001 (order dated 13-10-2005). Learned counsel submitted that as far as judgment of Division Bench of this Court in the case of Islam Ahmed (supra) is concerned the honourable Supreme Court in N.B.P. v. Naseem Arif Abbasi and others Civil Petition No.342-K of 2009 on 8-5-2009 not only granted leave to appeal but has also suspended operation of the impugned Judgment.

4. We have considered the submissions made by the learned counsel and have also gone through the record.

5. The questions involved in this Petitions are very simple: Firstly whether the Petitioners are entitled to payment on the basis of their emoluments as on the last date of their respective employment and secondly whether ad hoc relief granted vide Circular dated February 7, 1998 is to be included in the emolument for the purpose of compensation of benefits under the GHS. It may be appropriate to first refer to case law cited by the learned counsel. In Siddique Akber's case (supra) the respondent in the Supreme Court was employed as clerk cum-typist in National Bank of Pakistan. He was dismissed from service in 1883 and was ordered to be reinstated in service by the Labour Appellate Tribunal in 1990. Writ petition was filed in the High Court which abated on 7-6-1997 upon insertion in section of 2-A in the Service Tribunals Act. The GHS was floated in 1997. Siddique Akber opted for it and his option was accepted and he was relieved in 2000. The Supreme Court held that he was entitled to the benefits on the basis of the date when he was actually relieved from service. In Tarachand's case (supra) it was held that if a point of law is decided by the Supreme Court, benefit of such Judgment must be given to other persons who might not have litigated. In Islam Ahmed's case (supra) a Division Bench of this Court relied upon Siddique Akber's case (supra) and it was ordered primarily that pensionery/retirement benefits be calculated on the basis of pay as on the actual date of relieving from duty.

6. On the other hand Chudary Muhammad Ashraf Khan learned counsel for the respondent Bank relied upon Rana Abdul Ghafoor's case (supra) the entire Judgment is in the following words:---

"Petitioner having opted to severe his relationship with the National Bank of Pakistan under the Golden Handshake Scheme issued vide Circular No.PMW/97/22 dated 13-10-1997 receiving Rs.7,36,426.44, sought a direction in the nature of mandamus from the Lahore High Court through Constitutional Petition No.1899 of 1999 tending to claim an additional sum of Rs.1,00,000 on the basis of an increment reportedly pertaining to the year 1993 which was declined vide the impugned judgment dated 20-9-2001 for having failed to substantiate the same, he sought leave to appeal.

(2) With which we are not impressed because had the acclaimed increment been due to the petitioner he should have had a recourse to the appropriate legal proceedings at the relevant time; independent thereof the claim, if any, is deemed to have been waived by accepting the sum under the Golden Handshake Scheme as full and final settlement at the time of parting of ways. Resultantly, the petition being devoid of any substance facts and is hereby dismissed. Leave declined."

In Tamir Nusrat's case (supra) the entire judgment is in the following words:---

"Heard learned counsel for the petitioner and caveator and perused the record.

(2) Contention of learned counsel for the petitioner is that he should have been given financial benefit from 31-10-1997 and not from 5-12-1998.

(3) The petitioner being entitled to monitory benefit from the cut of date i.e. 31-10-1997 would not be entitled to claim such benefit from 5-12-1998 considering that he himself stated the he would have no further claim against the respondent whatsoever financial or otherwise. The petitioner before the Tribunal has also accepted the judgment pronounced earlier as mentioned in the impugned judgment therefore he could not be permitted to approbate and reprobate.

(4) We find no merit in the contention, besides no substantial question of law of public importance is involved, therefore leave to appeal is declined and the petition is dismissed."

1. A perusal of the above case-law indicates that the ratio of Siddique Akber's and Islam Ahmed's cases is that benefits are to be computed on the basis of last day in service. Question involved in Rana Abdul Ghafoor case was relating to an increment of 1983 and it was held that the Petitioner should have initiated appropriate legal proceedings for that increment and what weighed with the Court was non-claiming of increment from 1993 to 1997 by that petitioner. In Tanvir Nusrat's case (supra) one of the factors which weighed with Supreme Court was that the petitioner before the Tribunal stated that he had accepted the Judgment pronounced earlier therefore he could not be allowed to approbate and reprobate at the same time. The law now is fairly well-settled. Starting from Khyber Zaman v. State Bank of Pakistan and others 2005 SCMR 235 to Board of Trustee of KPT v. Organization of KPT Workes' and 2 others 2009 SCMR 994 there has been consistent view of the Supreme Court that the benefits must be calculated on the basis of pay as on the last date of service.

2. Here I may deal with two of contentions of Chaudary Muhammad Ashraf Khan. Learned counsel referred to receipts signed by the petitioners where the petitioners undertook that with the payments having been correctly made had no claim against the National Bank of Pakistan. Contention of Chaudary Muhammad Ashraf Khan was that having received the payment the petitioners were no longer aggrieved persons. The contention is obviously misconceived and it has been held by the Supreme Court in General Manager National Radio Telecommunication Corporation, Haripur District Abbotabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 that mere acceptance of legal dues by an employee does not render him a person who is not aggrieved. Second contention of learned counsel was with reference to the Circular dated February 27, 1998 (by which circular ad hoc relief was granted) where the last Para stated that the benefit shall not be applicable to those employees who had' opted for GHS. When a particular benefit is granted by an employer though it may be available to an employer to make a distinction between those still in employment and those who have ceased employees, but there must be very compelling reasons and sturdily reasonable grounds for discrimination between employees who are still in employment. We have not been able to find any reasonable basis for granting benefit of ad hoc relief to other employees but denying it to those who though have opted for GHS but have been continued in employment by the employer. In this' view of this situation the conclusion is un-avoidable that employee must be paid and compensated on the basis of benefits applicable to him as on the last date of his service.

2011 P L C (C.S.) 482

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

ARBAB IMTIAZ KHAN

Versus

ASSIM JAMIL ZUBEDI and another

Constitutional Petition No. D-601 of 2010, decided on 22nd November, 2010.

(a) Constitution of Pakistan---

----Art. 199---Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006, Rr.5 & 15---Constitutional petition---Issuance of writ of quo warranto---Essentials---Three grounds were essential for issuance of writ of quo warranto, namely that where the holder of the post did not possess the prescribed qualification; where the appointing authority was not competent to make the appointment and where the procedure prescribed by law was not followed.

(b) Sindh High Court Establishment (Appointment and Conditions of Service) Rules, 2006--

----R. 15---Ad hoc appointment---Scope---Ad hoc appointment can be 'made without advertisement in exceptional cases as a stop-gap arrangement and not, as a permanent recruitment.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 ref.

Petitioner in person.

M.M. Aqil Awan for Respondent No.2.

Adnan Karim, A.A.-G., Sindh.

Date of hearing: 28th October, 2010.

2011 P L C (C.S.) 488

[Sindh High Court]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Qari ALLAH BUX and others

Versus

FEDERATION OF PAKISTAN and another

Constitutional Petition No.D-2410 of 2007, decided on 18th March, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual obligation---Laches, principle of---Applicability---Golden Hand Shake Scheme---Petitioners were ex-employees of respondent and voluntarily availed Golden Hand Shake Scheme in year, 1998---Later on authorities increased pensionary benefits to its employees and petitioners sought increase in their pensions also---Validity---Once petitioners having voluntarily opted for Golden Hand Shake Scheme introduced in year, 1998, they would be governed by terms and conditions of such scheme in its entirety and could not be allowed to wriggle out from such option which was availed voluntarily without any objection or reservation in such regard---Petitioners were stopped from challenging particular portion of Golden Hand Shake Scheme and such claim was hit by principle of laches---Introduction of voluntary Golden Hand Shake Scheme by respondent and petitioners having opted for the same voluntarily without any objection had created a contractual obligation upon parties hence either party could not be allowed to wriggle out of such contractual obligation---In view of disputed facts and controverted claim of parties, High Court declined to entertain relief sought by petitioners in Constitutional jurisdiction---Petition was dismissed in circumstances.

Syed Nasim Ahmed Shah and others v. State Bank of Pakistan and others SBLR 2010 Sindh 237 and State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 distinguished.

Abdul Latif Saghar for the Petitioners.

Mian Khan Malik for Respondent No.1.

Muhammad Ahsan Siddiqui for Respondent No.2

Dates of hearing: 4th November, 2009 and 23rd February, 2010.

2010 P L C (C.S.) 501

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

S.M. NAWAZ

Versus

FEDERATION OF PAKISTAN MINISTRY OF DEFENCE through Secretary and another

Constitutional Petition No. D-1713 of 2006, decided on 26th November, 2010.

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

----Rr. 5 & 8---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5 & 8---Inquiry Committee---Recommendations---Scope---Firstly the recommendations of Inquiry Committee must be given due weight, secondly recommendations of Inquiry Committee are not binding on competent Authority and thirdly where competent Authority decides to disagree with the recommendations of Inquiry Committee, it must do so for valid recorded reasons and cannot act arbitrarily and capriciously.

(b) Civil service---

----Show-cause notice---Object, purpose and scope---By the stage of show-cause notice, inquiry has been held (or dispensed with) and conclusion as to guilt or innocence has been arrived at---Purpose behind serving a show-cause notice is to inform the employee that he has been found guilty in domestic proceedings---Show-cause notice conveys to the employee, mind of competent authority that his conduct deserved a particular punishment---When a particular punishment is stated in the notice, it is indicative to the employee of mental conclusion of the employer as to seriousness of the offence and stakes stacked against him---As punishment must be proportionate to gravity of offence, the punishment proposed in show- cause notice indicates to the employee that it is this which he deserves to get as a consequence of his delinquency---Show-cause notice also shows or indicates to the employee that if he neglects or refuses to submit any reply to show-cause notice, the maximum that competent authority would do is it would come to the conclusion that employee has no defence as far as the punishment proposed is concerned---If employee submits a defence, the competent authority can either accept the defence completely and exonerate him or completely reject the defence of the employee and impose punishment proposed in show-cause notice.

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

----Ss. 3, 5 & 8---Constitution of Pakistan, Art.199---Constitutional petition--- Reinstatement in service--- Inquiry Committee, recommendations of--- Deviation--- Punishment of compulsory retirement from service was imposed on petitioner---Grievance of petitioner was that no punishment was mentioned in show-cause notice issued on the basis of departmental inquiry conducted against hint, therefore, no punishment could be imposed upon him---Validity---Once the Competent Authority had issued a show-cause notice, it was not precluded from adopting a different view and going for more severe action but then the authority should have done three things firstly it had recorded its reasons for change of its own mind compared to what its mind was when first show-cause notice was issued; secondly authority should have informed the employee of such change and reasons for such change and should have called upon show-cause notice against proposed (i.e. enhance proposed) punishment---After opportunity was given to the employee to explain or to show-cause then the authority could impose the penalty so proposed---High Court in exercise of Constitutional jurisdiction, set aside the order of compulsory retirement and petitioner was ordered to be reinstated in service---Authorities could reconsider the matter on the basis of report of Inquiry Committee and proceeding of inquiry and after tentatively deciding as to what punishment was called for in the circumstances, might issue show-cause notice against proposed punishment and thereafter could decide the case of petitioner---Petition was allowed accordingly.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Mukhtar Ahmed v. Secretary Government of Punjab, Communication and Works Department, 1986 PLC (C.S.) 870; Khalid Mansoor v. Director F.I.A., Rawalpindi and another, 2008 SCMR 1174, Shibli Farooqui v. Federation of Pakistan and others 2009 SCMR 281; Government of Punjab through Secretary, Livestock and Dairy Development Department and another v. Abdul Sattar 1990 SCMR 995; Muhammad Sadiq v. Federation of Pakistan and others (C.P. No.D-871 of 2007); Shahid Mehmood Usmani v. HBFC and others (C.P. No.D-2507 of 2009 and 22 others); Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; Allama Iqbal Open University v. Dr. Tufail Hashmi, 2010 SCMR 1484=2010 PLC (C.S.) 1125; Ghulam Qasim Khan v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan and another, 2005 PLC (C.S.) 1475; Mehboob Ahmad Soomro v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others, 2010 PLC (C.S.) 911; Khiali Khan v. Haji Nazir and 4 others, PLD 1997 SC 304; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others, 2001 SCMR 1493; Prof. Mumtaz Ahmed Khan v. Institute of Business Administration (I.B.A.) through Director, Karachi University and 2 others, 2010 PLC (C.S.) 184 and Syed Kashif Raza v. PIA Corporation and others, 2008 PLC (C.S.) 589 ref.

M. Latif Saghar for Petitioner

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

Khalid Jawaid Khan for Respondent No.2.

Date of hearing: 5th November, 2010.

2011 P L C (C.S.) 513

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

ABDUL JABBAR MEMON

Versus

FEDERATION OF PAKISTAN through Secretary Ports and Shipping Government

of Pakistan and 6 others

Constitutional Petition No. D-3061 of 2010, decided on 12th November, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil Service---Repatriation of deputationist to his parent department after borrowing department refused to his absorption---Absorption of a permanent employee could be made with concurrent consents of lending department, borrowing department and civil servant concerned---Such petition by deputationist for his continuation on deputation basis or regular deputation would not be maintainable---Petitioner was not an aggrieved person by termination of his deputation, thus, could not maintain such petition---High Court dismissed constitutional petition in circumstances.

Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad and others 2010 SCMR 378 fol.

(b) Port Qasim Authority Act (XLIII of 1973)---

----Ss. 5(2), 50 & 51---Constitution of Pakistan, Art.199---Constitutional petition---Termination of deputation by Port Qasim Authority---Non-absorption of petitioner by his parent department after his repatriation thereto on ground of non-existence of vacant post---Validity---Deputationist could always be repatriated to his parent department, which was bound to post and adjust him upon his repatriation---High Court disposed of such petition on above terms.

Petitioner in person.

Ashiq Raza, D.A.-G. for Respondents Nos. 1 and 2.

Sanaullah Noor Ghouri for Respondents Nos.3 to 7.

Date of hearing: 12th November, 2010.

2011 P L C (C.S.) 534

[Sindh High Court]

Before Ahmad Ali Shaikh, J

MUHAMMAD HANIF

Versus

PROVINCE OF SINDH and others

Constitutional Petition No. D-968 of 2009, decided on 9th March, 2010.

Constitution of Pakistan---

----Art. I99---Constitutional petition---Civil service---Promotion---Petitioner was deprived from being promoted merely because of pendency of an F.I.R. against him---Additional Advocate General, agreed in principle that the matter could be referred to the Departmental Promotion Committee to decide case of the petitioner on merits without any regard whatsoever to pendency of the F.I.R. against the petitioner---Matter was disposed of by directing the authorities to consider the case of the petitioner for promotion purely on merits without any regard whatsoever to pendency of any criminal or civil case against him.

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

Muhammad Nawaz Shaikh for Petitioner.

Adnan A. Karim, A.A.-G. for Respondent.

2011 P L C (C.S.) 562

[Karachi High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

RIFFAT HASSAN and 9 others

Versus

FEDERATION OF PAKISTAN through Chairman, Federal Board of Revenue/

Secretary, Revenue Division and another

Constitutional Petitions Nos.D-2299 of 2008, D-1938 and High Court Appeal No.179 of 2010, decided on 12th November, 2010.

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

----S. 5---Sales Tax Act (VII of 1990), S.51(2)(3)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Maintainability---Constitutional petition---Office of Federal Board of Revenuer---Show-cause notice, issuance of---Domestic disciplinary proceedings, initiation of---Charge of passing refund order in an admissible sales tax matter by petitioner---Deletion of word "final" from S.4 of Service Tribunals Act, 1973 had not enlarged scope of appeal thereunder---Such deletion would not mean that every order or procedural determination by departmental authority would be challengeable before Service Tribunal, rather only an order determining a substantive question relating to terms and conditions of service or disciplinary action could be challenged before Tribunal---Appeal under Removal from Service (Special Powers) Ordinance, 2002 was provided only against final order of penalty, and till its passing, jurisdiction of High Court to scrutinize departmental action (whether same was in accordance with or not) was not ousted -- No order of penalty either original or appellate had been passed against petitioner---Constitutional petition was maintainable in circumstances.

Muhammad Mustafa Kamal v. Federation of Pakistan and others (C.P. No.D-1311 of 2009); Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others 2001 PLC (C.S) 623; Syed Aftab Ahmed Jafri v. Pakistan through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others 2004 PLC (C.S) 52; Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409; Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1; Muhammad Afzal Khan v. Karachi Development Authority and 6 others PL.D.1984 Karachi 114; M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247; Pervaiz Aslam v. Ilyas Hussain Shah and another 1999 SCMR 784; Syed. Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 and Rauf Akhtar Farooqui and others v. Director General, Karachi Development Authority (KDA), Karachi and others 2001 SCMR 927 ref.

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

----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Deletion of word 'final" from S.4 of Service Tribunals Act, 1973---Effect---Such deletion neither had enlarged scope of appeal under S.4 of Service Tribunals Act, 1973 nor would mean that every order or procedural determination by departmental authority would be challengeable before Service Tribunal---Only an order determining a substantive question relating to terms and conditions of service or disciplinary action could be challenged before Tribunal --- In absence of an order either original or appellate, civil servant could invoke constitutional jurisdiction of High Court for redressal of his grievance.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition against show-cause notice---Maintainability---Principles stated.

When a show-cause notice is: (a) mala fide, (b) issued by a person, who did not have authority to issue it, (c) issued in clear and apparent violation of law; and (d) where non-exercise of jurisdiction will result in miscarriage of justice, then constitutional jurisdiction can always be invoked and constitutional petition would be maintainable.

Kohinoor Industries v. Government of Pakistan, PTCL 1984 CL 280 and English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247 ref.

Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1 and Muhammad Afzal Khan v. Karachi Development Authority and 6 others PL.D.1984 Kara 114 rel.

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

----Ss. 5 & 6---Sales Tax Act (VII of 1990), S.51---Constitution of Pakistan, Art. 199---Constitutional petition---Officer Federal Board of Revenue---Charge of passing refund order in an inadmissible sale tax matter---Departmental disciplinary proceedings against the officer---Validity---Provision of S.51(2) of Sales Tax Act, 1990 would bar only a suit, prosecution or other legal proceedings against Federal Government or any public servant in respect of any order passed in good faith under Sales tax Act, 1990---Disciplinary action initiated against petitioner was neither a suit nor prosecution stricto sense nor a proceedings against Federal Government---Inquiry could be initiated against an officer or officials of any of agencies under Sales Tax Act, 1990---Impugned proceedings were not barred by S.51 of Sales. Tax Act, 1990---High Court dismissed such petition in circumstances.

(c) Administration of justice---

---'Judicial', 'quasi-judicial' and 'executive' determination' of a question of fact and law---Distinction stated.

Both in judicial and quasi-judicial proceedings, if a question of fact is being considered, it must be decided by evidence, and if a question of law is being considered, it must be decided upon presentation of legal arguments. Judicial power may be exercised not only by the Court, but by quasijudicial authorities. But if any authority is exercising quasi- judicial power, it can do so only after resort to adversarial system of adjudication. When without this inalienable indicia of judicial trappings, if an executive authority makes a determination, it is at best an executive determination and cannot be said to be a quasi-judicial proceedings or quasi-judicial order or quasi-judicial determination.

M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; Province of Bombay v. Khushaldas S. Advani and others AIR 1950 SC 222; Jaswant Sugar Mills Ltd. Meerut v. Lakshami Chand and others AIR 1963; Black's Law Dictionary; Pir Syed Safi-ud-din v. Secretary PLD 1958 Pesh. 157 rel.

(d) Civil service---

----Domestic disciplinary proceedings and criminal proceedings, initiation of---Legal effect of such proceedings stated.

Domestic and criminal actions are independent of each other and one does not have any link with the other and the result of one cannot have any effect or bearing upon the other.

(e) Civil service---

----Inquiry proceedings---Duty of domestic forum to adjudge fairly, justly, equitably and in accordance with law---Recommendations once given by Inquiry Committee could be challenged right upto Supreme Court.

Khalid Jawaid Khan for Petitioners.

S.M. Iqbal along with Azhar Sajjad, Secretary Litigation, Syed Shafquat Ali Shah Masoomi and Ashiq Raza D.A.-G. for Respondent No.2.

2011 P L C (C.S.) 685

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

INAMUL HAQ and 2 others

Versus

GOVERNMENT OF SINDH, through Secretary to Government of Sindh and 5 others

Constitutional Petition No. D-1095 of 2009, decided on 24th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Res judicate, principle of--Applicability---Selection for training of employees, cancellation of---Petitioners were employees of revenue department who were selected for training of Tapedars but their selection was cancelled on the basis of orders passed earlier to their selection---Contention of petitioners was that authorities should recall orders issued by Provincial Government and Principal, Training College, and they be allowed to continue their training of Tapedars Course---Validity---Letters in question were not in existence when earlier petition was dismissed for laches---Earlier petition was not dismissed on merits but on the ground of (aches, therefore, order passed in earlier petition did not operate as res judicata---As -new lease of life was given to the claim of petitioners by orders in question thus petition was not barred by res judicata and lathes-High Court directed the authorities to allow petitioners to complete training course in accordance with the order whereby they were selected for training---Petition was allowed in circumstances.

Riaz Ahmed and 2 others v. Province of Sindh through Secretary, Government of Sindh, Board of Revenue at Hyderabad and 3 others, 2010 PLC (C.S.) 894; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Pir Bakhsh represented by his legal heirs and others v. Chairman Allotment Committee and others PLD 1987 SC 145 ref.

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

Muhammad Nawaz Shaikh for Petitioners.

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

Date of hearing: 7th December, 2010.

2011 PLC (C.S.) 709

[Sindh High Court]

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

GHULAM MURTAZA and others

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and others

Constitutional Petitions Nos.1372 and 1373 of 2009, decided on 13th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioners were recruited by Intellectual Property Organization of Pakistan but one month after the joining, their services were terminated by a notification---Petitioners contended that they were selected after following due procedure so they had acquired vested right in appointments---Authority contended that petitioners were appointed by incompetent authority---Validity---No illegality or irregularity was found in the entire process of selection---Impugned orders of termination being not sustainable in law, were liable to be set aside---No inquiry regarding alleged illegality or lack of transparency had been conducted by the authorities before withdrawing the appointment orders of the petitioners---Negligence on the part of authorities could not take away rights of the petitioners created by appointment letters issued after complying with all the codal formalities---Petitioners were condemned unheard against principles of natural justice---Appointment letters once issued, could not be withdrawn---Petition was allowed.

Abdul Jabbar Memon and others' case 1996 SCMR 1349 fol.

Suhail Jabbar Malik v. Province of Sindh and 2 others 2009 PLC (C.S.) 155 rel.

Yawar Farooqui and Irfan for Petitioners (in C.P. No.D-1372 of 2009).

Imtiaz Ali for Petitioners (in C.P. No.D-1373 of 2009).

Muhammad Ashraf Mughal, D.A.-G. for Respondent No.1.

Ch. Naseer Ahmed for Respondent No.2.

Respondent No.3 in person.

Dates of hearing: 20th, 21st, 22nd January, 1 4th, 25th February and 9th March, 2010.

2011 P L C (C.S.) 723

[Sindh High Court]

Before Anwar Zaheer Jamali and Nadeem Azhar Siddiqui, JJ

SHAHNAWAZ BALOCH and 23 others

Versus

Kazi MUHAMMAD TAQI and another

Case No.GAZ/APPEAL/DR(Accts.)/AO(M), decided on 25th August, 2006.

High Court Establishment (Appointment and Conditions of Service) Rules, 1964---

----Rr.7, 20, 24, 26 & Schedule II-Appeal-Maintainability--Promotion-Principle-Grievance of appellants was that respondents who were juniors to them were promoted---Validity---Promotions to posts in question were to be filled by selection by Chief Justice from High Court Establishment---All employees who were otherwise eligible were to be considered for such promotion---Post mentioned in R. 7 of High Court Establishment (Appointment and Conditions Service) Rules, 1964 were selection posts and there was no requirement of law to fill the same on the basis of seniority-cum-fitness basis---Vast powers were given to the Chief Justice to select any employee from the establishment and to promote him---Decision taken by Chief Justice under Rr.7 & 26 of High Court Establishment (Appointment and Conditions of Service) Rules, 1964 were not justiceable---No appeal was provided under Schedule II of High Court Establishment (Appointment and Conditions of Service) Rules---Only decisions taken under Rr. 20 and 23 of High Court Establishment (Appointment and Conditions of Service) Rules, 1964 were made appealable---Decision of promotion of respondents was taken by Chief Justice of High Court in exercise of powers under R.7 read with R.26 of High Court Establishment (Appointment and Conditions of Service) Rules, 1964 therefore, appeal was not maintainable---Appeal was dismissed in circumstances.

PLD 1969 SC 407 ref.

Dates of hearing: 21st January and 11th March, 2006.

2011 PLC (C.S.) 744

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

KHURSHID ALAM

Versus

SECRETARY DEFENCE, MINISTRY OF DEFENCE, RAWALPINDI and 3 others

Constitutional Petition No.D-2333 of 2006, decided on 12th November, 2010.

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

----S. 4---Civil Aviation Authority Rules, Rr.3.28 & 3.30---Constitution of Pakistan, Arts.63 & 199---Constitutional petition---Taking of respondent-employee of Parks & Horticulture Authority, on deputation in Civil Aviation Authority (CAA) in a grade higher than grade in which he was working in PHA and his subsequent absorption in CAA on permanent basis in such higher grade---Validity---Persons in an organization created by a statute would not become Government employees and civil servants---PHA as a separate corporate entity was created by an Act of Provincial Assembly, thus, its employees were not employees of Provincial Government---Only persons employed by Defence Organizations, Federal or Provincial Governments could be taken on deputation in CAA, but none else---Civil Aviation Authority had never requested' for taking respondent on deputation in a higher grade nor could he be taken so under Civil Aviation Authority Rules---Civil Aviation Authority had absorbed respondent in higher grade without prescribing any qualification therefor---Where there was a post, there was prescribed qualification and method of induction---Absorption of one person (respondent) by CAA could not be considered a question of policy---Approval for induction of respondent on deputation had been granted by Chairman, CAA and not by Federal Government---Decision for creation of higher post and absorption of respondent thereon had been taken by Board of CAA and not by Chairman CAA and Federal Government---Director General, CAA was appointing authority, impugned act of CAA to have taken respondent on deputation from PHA and absorbed him subsequently in higher grade was without lawful authority and of no legal effect---High Court directed CAA to repatriate respondent back to PHA within specified time.

(b) Corporation---

----Legal status of corporation stated.

Once a corporation is created, whether by a statute or in accordance with the provisions contained in a statute, such as incorporation of a company under the Companies Ordinance, 1984 or registration of a trade union under the Industrial Relations Ordinance, 1969, such created entity becomes and acquires a distinct and separate personality, its legal status as a person is distinct and separate from its creators or its shareholders.

Ch. Muhammad Ashraf for Petitioner.

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

Ainuddin Khan for Respondents Nos.2 and 3.

Nemo for Respondent No.4.

Date of hearing: 2nd November, 2010.

2011 PLC (C.S.) 785

[Sindh High Court]

Before Munib Akhtar and Muhammad Athar Saeed, JJ

MUNAWAR ALI PATHAN

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petition No.D-221 and C.M.A. No.580 of 2010, decided on 12th April, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of-Scope--Any person can apply for writ of quo warranto and he need not be an aggrieved person or party---Writ of quo warranto is directed against a person holding, or purporting to hold, public office---Every member of public at large is regarded as having an interest in ensuring and / or demanding that a public office is or be held by a person having lawful authority to do so---Writ of quo warranto is discretionary i.e. that Court is not bound to grant relief sought even, if petitioner makes out a case and may withhold the writ in appropriate circumstances---Authority purporting to appoint respondent to public office need not be a party to proceedings for the writ to issue.

Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto, issuance of---Pre-conditions---Writ of quo warranto would (unless withheld at Court's discretion) be issued, if the Court is satisfied that anyone or more of the mentioned elements are missing, namely that (a) respondent holds public office by order or decision of an authority competent to so appoint him : (b) he was appointed in prescribed manner (and if appointment is at the discretion of appointing authority, that discretion was lawfully exercised): (c) he could have been appointed to the office (e.g. that he had the requisite qualification and was not otherwise disqualified): and he was entitled to continue holding the office.

Muhammad Shafique Raja v. Province of Punjab and others 1991 CLC 617 rel.

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

----Ss. 12, 13, 26, 27, 28 & 30(2)---Constitution of Pakistan, Arts.199 & 212---Quo warranto, petition for.---Maintainability---Additional or acting charge basis appointment of---Appointment in District office---Petitioner assailed appointment of respondent to hold as additional charge of the post of Executive District Officer Education, which appointment was made by District Coordination Officer---Plea raised by authorities was that jurisdiction of High Court was barred in view of the provisions of Art.212 of the Constitution---Validity---Provincial Government was to appoint officer to district offices (i.e. the District Officers) and to "groups of offices" i.e. the Executive District Officers---No such power vested in any other authority or person and power to appoint a person to hold any of such offices by way of additional or acting charge also vested in the Provincial Government---District Officer Coordination did not have the power or authority to appoint respondent to office in question in any manner, including by way of temporary, acting or additional charge---Authority to appoint respondent was missing in appointment in question---Petitioner was not an aggrieved civil servant who could have taken recourse to proceeding before Service Tribunal---Petitioner had also challenged the authority of District Officer Coordination to hand over additional charge of Executive District Officer Education to respondent, which could not have been challenged before Service Tribunal, therefore, petition was not hit by bar contained under Art. 212 of the Constitution---Order passed by District Officer Coordination, whereby additional charge of office of Executive District Officer Education was given to respondent was without lawful authority---Petition was allowed in circumstances.

Shah Ahmad Khan v Government of Punjab PLD 2007 Lah. 191; Khan Muhammad Khan v. Azad Jammu and Kashmir Government and others PLD 2004 AJ&K 1; Syed Mufeed Shah and another v. Principal Khyber Medical College and others 2003 CLC 1348; Muzammal Khan v. Khan Faraz and others 1998 CLC 1847; Ejaz Hussain v. Abdul Qayyum 1996 PLC (C.S.) 622; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others PLD 1975 SC 244; All Pakistan Clerks' Association v. Mst. Ishrat Fatima and others 2008 PLC (C.S.) 1266; Dr. Shagufta Shahjehan v. Government of Punjab and another 2008 PLC (C.S.) 659; Mian Zia-ud-Din v. Secretary Local Government 2005 PLC (C.S.) 908; Dr. Mujahid Ali Mansoori and others v. University of Punjab and others 2005 PLC (C.S.) 694; Mahmood Akhtar v. Syed Hassan Mujtaba Jaffri and others 2005 PLC (C.S.) 997; Syed Sagheer Hussain v. AJ&K Government and others 2004 PLC (C.S.) 1248; Khurshid Qasim Laboratory Assistant v. Vice-Chancellor; University of AJ&K and others 2004 PLC (C.S.) 1131; Azhar Hussain Chaudhry v. Azad Government and others 1999 CLC 481; Malik Muhammad Shafi v. Secretary Education and others 2000 YLR 206; Dr., M. Afzal Beg v. University of Punjab and others 1999 PLC (C.S.) 60; National Insurance Corporation v. Muhammad Sadiq 2000 CLC 1244; Zahid Akhtar v. Government of Punjab and others PLD 1995 SC 530; Rukhsana Ijaz v. Secretary and others 1997 SCMR 167; Shamim Akhtar v. Government of Punjab PLD 1991 Lah. 389; Ghulam Muhammad Mallah v. Province of Sindh 2009 PLC (C.S.) 120; Khalid Mahmood v. Tariq Janjua and others 1993 PLC (C.S.) 623; Syed Manzoor Hussain Gilani v. Sain Mullah and others PLD 1993 SC (AJ&K) 12; Syed Muhammad Yousaf Shah v. AJ&K and another 1994 PLC (C.S.) 1214; Muquddus Sattar v. Federal Public Service Commission 2008 SCMR 773; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960: Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Dr. Raja Manzoor Elahi v. North-Western Frontier Province PLD 1980 Pesh. 81; Abdul Bari v. Government of Pakistan and others PLD 1981 Kar. 290; Dr. Syed Sharaf Ali Shah and others v. Province of Sindh and others 2009 SCMR 249; Secretary and' others v. Muhammad Hussain Shah and others 2005 SCMR 675; Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and others PLD 1997 SC 3.82; Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd. PLD 1970 SC 439; Muhammad Ismail v. Province of Punjab 1979 SCMR 498; Dr. Ghulam Shabbir Saqib v. Government of Punjab and others 2005 PLC (C.S.) 993; Abdul Wajid Malik v. Government of Punjab and another 2006 SCMR 1360; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61; Sher Muhammad v. D.G. T&T Department and another PLD 1979 Kar. 1; Azad Jammu Kashmir Government and another v. Syed Zaman Ali Shah and others PLD 1991 SC (AJ&K) 57; Abdul Jabbar Khan v. Government of Sindh and others 1996 SCMR 850; Syed Arshad Ali and others v. PTCL and others 2008 SCMR 314 ref.

(d) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Effect---Even if a writ of quo warranto is issued, the same takes effect from the date of decision---Acts done or orders made by official in question, if otherwise lawful, would not be affected.

Zamir Ahmed Ghumro for Petitioner.

Muhammad Nawaz Shaikh for Respondent No.3.

Liaquat Ali Shar, Addl.-A.-G. for the State.

David Lawrence, Amicus Curiae.

2011 P L C (C.S.) 870

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

FAREEDUDDIN and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petitions Nos.D-809 of 2006, D-1765 of 2007 and D-1808 of 2009 decided on 12th November, 2010.

(a) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----R. 9(1)---Sindh Civil Servants Act (XIV of 1973), S.8---Sindh Civil Service Rules Manual, 1950, R.9(4)(8)---Constitution of Pakistan, Art.199---Constitutional petition---Merger of Directorate of Education Engineering Works into Communication and Works Department after renaming same as Works and Services Department---Preparation of two separate seniority lists of Executive Engineers belonging to such both ex-Departments---Validity---Works and Services Department came into existence due to merger of both such ex-Departments vide Notification dated 1-11-2002, which was date of merger of cadres of both streams of employees---Government, for proper administration had discretion to divide employees into various services, cadres and grades---Government was not legally barred to keep employees in separate. cadres, if they had same/similar qualifications or same/similar nature of duties---Question involved in the present case was not inter se seniority, but was whether one or two seniority lists could be maintained in view of such merger---Creation of separate cadres by Government must be on basis of proportionate formula and mechanism and for good and reasonable reasons so that no one would be blocked in his career tracks---High Court declared impugned act of Government to prepare separate lists as without lawful authority and of no effect.

Wali Muhammad Khan Warsi v. Government of Sindh and others, Constitution Petition No.1077 of 1990; Government of Sindh, through Secretary Education v. Wali Muhammad Khan Warsi and others, Civil Appeal No. 1085 of 1996; Saindad Solangi and another v. Nazeer Ahmed Shaikh and others Civil Appeal No. 736/2003; CMAs Nos.3778 and 3779 of 2006 in Writ Petition No. 1983 of 2001; Ahsanullah Memon v. Government of Sindh and others, Appeal No. 77 of 2006 and Nazeer Ahmed Shaikh and others v. Government of Sindh and others C.P. No.1983 of 2001 ref.

Jamal Khan Jafar and another v. Rahim Shah and 3 others, 1994 SCMR 759; Naimat Ullah Butt and others v. Government of Punjab, through the Secretary Education, Lahore, 1988 SCMR 1453 and Manzoor Ali Chaudhry, Chief Engineer, Highway (South Zone), Punjab, Lahore v. Government of Punjab, through Secretary, Communication and Works Department, Lahore and 10 others, 2000 SCMR 689 rel.

(b) Words and phrases---

----"Cadre"-Definition.

Concise Oxford Dictionary 11th Edition and Judicial Dictionary, by K.J. AIYAR 13th Edition ref.

M.M. Aqil Awan for Petitioners (in C.P. No.809 of 2006).

Muhammad Nawaz Shaikh for Petitioners (in C.P. No.D-1765 of 2007).

Moula Bux Khoso for Petitioners (in C.P. No.D-1808 of 2009).

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

Jamil Ahmed Rajpar for Respondents (in C.P. No.D-809 of 2006).

Date of hearing: 22nd October, 2010.

2011 PLC (C.S.) 889

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

ISA RAZA KHAN

Versus

PAKISTAN CIVIL AVIATION AUTHORITY through Director-General and another

Constitutional Petition No.1533 of 2009, decided on 7th January, 2011.

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

----Ss. 7(2) & 3(2)---Constitution of Pakistan, Arts 199 & 7---Constitutional petition---Maintainability--Petitioner's claim of grant of combined pension was not accepted---Petitioner contended that by virtue of provisions of S.16(3) of the Civil Aviation Authority Ordinance, 1982, Civil Aviation Authority was the State' within meaning of the term as defined in S.7 of the Constitution, therefore, constitutional petition was maintainable---Validity---'Sums levied'/collected by the Civil Aviation Authority under S.16(3) of the Civil Aviation Authority Ordinance, 1982 were charges for various services performed by the Civil Aviation Authority and the same were not taxes or cess---Distinction betweencharge' and tax' orcess' was that the charge was levied for services rendered while tax was sovereign exaction under the Authority of Parliament and was not linked to performance of any service---Civil Aviation Authority was a body corporate under S.3(2) of the Civil Aviation Authority Ordinance, 1982, employees of Civil Aviation Authority were not `civil servants'---In the absence of any statutory rules, constitutional petition by such employees was not maintainable---Petition was dismissed in limine.

Pakistan International Airline Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 and Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612. fol.

Aslam Khan for Petitioner.

Ashiq Raza D.A.-G. and Zubair Hashmi for Respondents.

Date of hearing: 14th December, 2010.

2011 P L C (C.S.) 900

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

SHAZIA BAIG and others

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and others

M.As. Nos.16 and 18 of 2010, decided on 21st December, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional and appellate jurisdiction---Scope---Distinction and difference existed between jurisdiction under Art. 199 of the Constitution and appellate jurisdiction conferred by statute on a particular forum---If there are no statutory rules even then Constitutional petition is not maintainable if an appellate forum is provided by law.

(b) Appeal---

----Appellate forum---Powers---Appellate forum has same powers as the original forum and it is merely taking the matter from a lower to a higher forum---If departmental authority has a particular power, the appellate forum is not devoid of that power---Appellate Court merely steps into the shoes of original forum, albeit at a higher pedestal than the original authority and, therefore, exercise all such powers as are the powers available to original authority.

(c) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S.34---Companies Ordinance (XLVII of 1984), S. 7---Appeal---Maintainability---Promotion of employees---Appellants were employees of Securities and Exchange Commission of Pakistan who had been granted High Potential but they were not promoted---Validity---Orders of the Commission passed in respect of companies were contemplated by S.34 of Securities and Exchange Commission of Pakistan Act, 1997, and not order of the Commission in respect of its own internal working or matters relating to officers or its employees---Applicability of S.34 of Securities and Exchange Commission of Pakistan Act, 1997, was limited to the order of the Commission in respect of companies incorporated under Companies Ordinance, 1984---Fact that appellant was granted High Potential for a particular year did not ipso facto, without any consideration entitled him to be promoted to next cadre and there was no provision compelling the Commission to promote persons who had been granted High Potential at any given time---Promotion was not a vested right of an employee---Appeal was not maintainable and High Court declined to interfere in the matter under S.34 of Securities and Exchange Commission of Pakistan Act, 1997---Appeal was dismissed in circumstances.

Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676; Chairman SECP v. Muhammad Ashraf Gondal (Civil Appeals Nos.305 and 306 of 2009); Walayat Ali Mir v. Pakistan International Airliness Corporation and another 1999 SCMR 650; Fazali Rehmani v. Chief Minister, N.-W.F.P PLD 2008 SC 769; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance Islamabad and others PLD 1990 SC 1092; Abid Hassan v. P.I.A.C. and others 2005 SCMR 25; Ms. Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106; Ghiasuddin Shaikh and others v. Federation of Pakistan and others 2007 PLC (C.S.) 140; Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112; Muhammad Aslam, A.S.I. v. D.I.G. Police, Faisalabad Range, Faisalabad and 10 others 2001 PLC (C.S.) 1298; The Chief Engineer, Irrigation, Lahore Zone, Old Anarkali, Lahore and others v. Sajjad Hussain Bhatti 2003 PLC (C.S.) 1153; Secretary, Government of Sind Education Department and another v. Syed Riyazul Hassan Zaidi and another 1986 SCMR 64; Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others PLD 2008 SC 395; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Sui Southern Gas Company Ltd v. Engr. Naraindas and others PLD 2001 SC 555; Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others 2010 SCMR 1466; Pakistan International Airlines Corporation's case PLD 1978 Lah. 748; Riazuddin v. Pakistan International Airlines Corporation PLD 1992 SC 531; United Bank Ltd. v. Shamim Ahmed Khan PLD 1990 SC 990; Pakistan International Airlines Corporation v. Koural Channa PLC 1999 (C.S.) 1539; Managing Director Sui Sonthern Gas Company Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176; Farasat Hussain and others v. Pakistan National Shipping Corporation and others 2004 SCMR 1874; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Managing Director Sui Southern Gas Company's case PLC 2003 (C.S.) 796 and Mrs. M.N. Arshad v. Naeema PLD 1990 SC SC 612 ref.

Muhammad Umer Lakhani for Appellant (in M.A. No.16 of 2010).

Ashiq Raza, Dy. Attorney-General for Respondent No.1 (in M.A. No.16 of 2010).

Makhdoom Ali Khan for Respondents Nos.2, 4 and 5 (in M.A. No.16 of 2010).

Abid S. Zuberi for Appellant (in M.A. No.18 of 2010).

Ashiq Raza, Dy. Attorney-General for Respondent No.1 (in M.A. No.18 of 2010).

Makhdoom Ali Khan for Respondents Nos.2 to 6 (in M.A. No.18 of 2010).

2011 P L C (C.S.) 926

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Elbrahim, JJ

ABDUL RASHEED and others

Versus

PROVINCE OF SINDH and others

Constitutional Petitions Nos.D-2269, D-2270 and D-2306 of 2009, decided on 2nd March, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Stenographers, uupgrading of---Decision by High Court---Petitioners were stenographers working in Sindh High Court and their grievance was that recommendation of upgrading post of stenographers from Basic Pay Scale-12 to Basic Pay Scale-15, should be allowed by Provincial Government---Validity---Once approval was granted by Administrative Committee of High Court, the Provincial Executive could at the best approach High Court and point out financial constraint and thereafter leave the matter for High Court to decide---Once High Court had decided, Finance Department had no option, if amount provided in budgetary provision was not adequate to meet such requirement to convey such budgetary position to High Court and to ensure that in next budget proposals were made to Provincial Assembly and appropriate provision was made in such regard---If Provincial Assembly did not approve such budget any provision, it would of course was another matter---High Court directed Finance Department of Provincial Government to implement decision made by Administrative Committee of High Court and also make appropriate, provision in budgetary proposals in that regard---Petition was disposed of accordingly.

Upgradation of Judicial Officers/Staff and Allowance and others 2010 CLC 166; M.M. Gupta and others v. State of J&K and others AIR 1982 SC 1579; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Muhammad Farid Khattak and others v. Chief Secretary, Government of N.-W.F.P. and others 2009 PLC (C.S.) 712; Government of Sindh through Chief Secretary to Government of Sindh and others v. Sharaf Faradi and Others PLD 1994 SC 105; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 rel.

Sami Ahsan for Petitioners (in C.Ps. Nos.D-2269, D-2270 and D-2306 Of 2009).

Adnan Karim, Asstt.. A.-G. for Respondents (in C.Ps. Nos.D-2269, D-2270 and D-2306 of 2009).

Dates of hearing: 6th September, 24th November and 14th December, 2010 and 26th February, 2011.

2011 P L C (C.S.) 956

[Sindh High Court]

Before Faisal Arab and Muhammad Ali Mazhar, JJ

SAFDAR ALI SAHITO

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 10 others

Constitutional Petition No.1285 of 2010, decided on 1st March, 2011.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Object and scope---Writ of quo warranto is in the nature of laying an information before a court against a person who claimed and usurped an office, franchise or liberty---Object of writ of quo warranto is to determine legality of holder of statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office---High Court is under obligation to inquire whether the incumbent is holding office under orders of a competent authority.

(b) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Locus standi---Any person can move High Court to challenge usurpation or unauthorized occupation of a public office by incumbent of that office as he is not required to establish his locus standi.

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

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto---Laches---Applicability-Laches alone would not be sufficient ground to dismiss constitutional petition, unless equity leans in favour of contesting respondents---Question of laches is to be examined on equitable principles with reference to facts of each case---Plea of laches is only available to civil servant who acted bona fide under the belief that what he was doing was legal and proper and not to such civil servant who knew from very inception that what he was doing was contrary to law.

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

----S. 10---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 6-A & 9---Constitution of Pakistan, Art.199---Constitutional petition---Deputation, posting on---Own Pay Scale (OPS) basis---Scope---Grievance of petitioners was that respondents were outsiders who were not eligible for the posts they were holding, as either they were not qualified for the posts or they lacked requisite experience---Validity---By posting outsiders on the basis of deputation in various departments of Provincial Government and by changing cadres of civil servant and inducting / absorbing them in various departments of Provincial Government, authorities had created unrest and sense of deprivation amongst employees already working there---Such practice of appointing civil servants was against justice, equity and good governance---Government in case of exigency could appoint any person on OPS basis on stopgap arrangement or current charge or acting charge or additional charge basis but it had no discretionary right or authority to violate express provisions of law and relevant rules and continue the OPS or additional charge arrangement for unlimited period of time---High Court noted it with concern that if such tendency was encouraged, it would create much frustration in other employees of same grade and cadres and would also obstruct and hinder right of promotion of deserving employees---Good governance demanded that efforts should be made to fill up permanent vacant posts and vacancies within reasonable period of time---Constitutional and legal system attached foremost importance to transparency and fairness in administration of matters relating to appointment and career building of civil servants who were required to perform sensitive public duties strictly in accordance with law---There was no room for spoils system in the jurisprudence---High Court directed the authorities to repatriate such civil servants to their parent department and fill the vacancies in accordance with Sindh Civil Servants Act, 1973, read with Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Constitutional petition was allowed accordingly.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Dr. Shagufta Shahjehan v. Government of Punjab 2008 PLC (C.S.) 659; Mahmood Akhtar v. Syed Hassan Mujtaba Jaffri 2005 PLC (C.S.) 997; Abdul Bashir v. Government of Balochistan 2001 CLC 1579 and Lal Khan v. Employees' Old Age Benefit Institution and others 2010 PLC (C.S) 1377 rel.

Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation, Islamabad 2003 PLC (C.S.) 1105; Pakistan Industrial Development Corporation (Pvt) Ltd. v. Federation of Pakistan 2003 PTD 2241; Islamic Republic of Pakistan v. The Settlement Commissioner, Peshawar Division, Peshawar PLD 1973 Pesh. 143; Mubarak Ali v. The Chairman, Union Council and others 1987 CLC 1661; Rizwanullah v. Registrar/President, Cooperative Societies, N.-W.F.P. Peshawar PLD 2003 Pesh. 203; Sardar Asseff Ahmad Ali v. Mr. Muhammad Khan Junejo PLD 1986 Lah. 310 and Mashhadi Welfare Association v. Government of Punjab 2003 YLR 435 distinguished.

Zamir Ghumro for Petitioner.

Ali Asadullah Bullo for Respondents Nos.4 to 11.

Imtiaz Ali Soomro, A.A.-G.

2011 P L C (C.S.) 978

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

SALEH MUHAMMAD and 41 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Port and Shipping and 2 others

Constitutional Petition No.D-221 of 2010, decided on 19th February, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Selection for job---Factual controversy---Grievance of petitioners was that they applied for posts in question and after passing tests and interviews, they were asked to get medically examined but instead of them some other persons were selected---Validity---Besides there were questions of fact but petitioners did not enclose any of the application for the job they submitted---Authorities informed that no final selection had taken place but such contention was denied by petitioners---Authorities also informed that letters for medical examination were issued to petitioners by a person having no authority---All such questions of fact could only be decided after evidence was recorded and such exercise could not be undertaken in Constitutional jurisdiction under Art.199 of the Constitution---High Court declined to interfere in the matter of selection by authorities---Petition was dismissed in circumstances.

Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Imdad Magsi and others v. Karachi Water and Sewerage Board and others PLD 2002 SC 728; Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 and Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 rel.

Imtiaz Ali Bhagat v. Ministry of Overseas Pakistanis and others Writ Petition No.D-1113 of 2010 and Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others 1961 PLC (C.S.) 1381 ref.

Abdul Salam Memon for Petitioners.

Sanaullah Noor Ghori for Respondent No.2.

S. Ashiq Raza, D.A.-G.

Date of hearing: 14th December, 2010.

2011 P L C (C.S.) 1063

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

WASATULLAH JAFFRI and 6 others

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division/Chairman, Federal Board of Revenue and 11 others

Constitutional Petition No.D-2395 of 2008, decided on 11th October, 2010.

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

----Ss. 8, 9 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Posting and transfer---Seniority and promotion---Separate Sales Tax service was established in 1995 and posts of Senior Auditors were created---Respondents were recruited on ad hoc basis on the recommendations of Special Selection Committee as Senior Auditors (BS-16) in 1996---Petitioners who had joined service of Federal Government in Customs and Excise Group claimed that they were appointed in 1996 as deputationists under S.10 of Civil Servants Act, 1973 as Senior Auditors in BS-16 and in July 1998, options were solicited from them as if they were willing to be absorbed in the Sales Tax Department---Petitioners having exercised their option a summary was put up before the Prime Minister, which was approved and petitioners were appointed as Senior Auditors (BS-16) on regular basis in relaxation of rules, with effect from a date three years after they were originally transferred to/posted on deputation in the Sales Tax Department---Notification in that respect had been challenged by the petitioners with the prayer that their regularization of service be made with effect from the date of their initial transfer/deputation---Petitioners have come to the service on deputation and normal period of deputation was three years---Respondents were not regularly appointed, but were ad hoc employees all along till regularized---Since the petitioners' normal period of deputation expired after three years, they were entitled to regularization, which had been allowed by the Prime Minister---Respondents who had been ad hoc employees, could not be given retrospective regularization, in such a way that they became senior to the petitioners---Order that respondents be regularized with effect from the date of induction in employment, was ex facie discriminatory---Same was void, had caused prejudice, in violation of law, to the rights of the petitioners---While upholding the action of Departmental Authorities in absorbing the petitioners' three years after they came to the department on deputation, it was directed that regularization of service of respondents would be with effect from a date in such a way that they would remain juniors to the petitioners. ??

?????? I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; S.S. Moghe and others v. Union of India and others AIR 1981 SC 1495; Muhammad Asim and others v. Telecommunication and others, 1997 PLC (C.S.) 1131; Pakistan International Airlines Corporation through Chairman and others v. Saima Masood and others PLD 2005 SC 831; Jamal Khan Jaffar and another v. Rahim Shah and 3 others 1994 SCMR 759; Mukhtar Ahmad Junejo and 2 others v. Province of Sindh and others PLD 1988 SC 560; Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and others v. Prime Minister of Pakistan, Islamabad and 31 others 1997 PLC (C.S.) 451; Anwar-u1-Haq v. The Director, Commercial Audit and others, 1992 SCMR 939 and Maj. (Retd.) Muhammad Matlub Khan v. Government of Pakistan through Secretaries, Establishment and Defence Divisions, Islamabad and 2 others, 1993 SCMR 798? ref.

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

----S. 8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Inter se seniority---Jurisdiction of Service Tribunal---When the dispute related to inter se seniority Service Tribunal had the exclusive jurisdiction and High Court could not enter upon such an issue in exercise of its constitutional jurisdiction---Where a particular term and condition of employment existed; and said term and condition of employment was challenged and no specific order was passed by the competent Authority in respect of said term and condition of employment, constitutional petition would be maintainable.?

?????? Khalid Jawaid Khan for Petitioners.

?????? Sohail Muzaffar for Respondent No.2.

?????? M.M. Aqil Awan and M. Arshad Khan Tanoli for Respondents Nos.3 to 12.

?????? Azhar Sajjad, Second Secretary Federal Board of Revenue.

?????? Date of hearing: 15th September, 2010.

2011 PLC (C.S.) 1182

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

MUHAMMAD MUNIR ABBASI and 2 others

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

Constitution Petition No.D-863 of 2009, decided on 27th October, 2010.

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

----Ss. 9-A & 24---Sindh Civil Servants (Appointment, Promotion and

Transfer) Rules, 1974, R.7---Constitution of Pakistan, Art.199---Out of turn promotion----Petitioners had challenged out of turn promotion of respondent made on the recommendation of Provincial Home Minister on the basis of a summary submitted to the Chief Minister by the Secretary---Contention of counsel for the petitioners was that S.9-A of the Sindh Civil Servants Act, 1973 on the basis of which promotion of respondent had been made, was added with effect from 22-2-2002 was deleted on 26-2-2008 and at the time when said promotion was granted to respondent, no provision like S.9-A was on the statute book---Said deleted Section 9-A was to have effect, in a way overriding effect qua the other provisions of the Sindh Civil Servants Act, 1973 or another law, but it was applicable only, when a civil servant had shown acts of gallantry while performing his duty or very exceptional performance beyond the call of his duty---If said two things, i.e. gallantry or exceptional duty were not there S.9-A could not be attracted---Such aspect, however had become academic, because with effect from 26-2-2008 said section was deleted---Executive Engineer; Superintending Engineer; Secretary Works and Services Department and Minister of that department had not recommended for promotion in question---1n absence of any such recommendation, it could not be concluded that respondent performed beyond the call of duty---Only the Home Minister had used ministerial portfolio into an other ministry---Even if S.9-A had not been deleted, even then the case of respondent could not be attracted by said section---Promotions of civil servants in the Province were regulated by Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and promotion under R.7 of said Rules had to be made on the recommendation of Departmental Promotion Committee or Provincial Selection Board and competent Authority could not act without such recommendation and assessment by the concerned Committee or Board---Even Chief Minister was duty bound to act in accordance with law---Notification granting out of turn promotion was held to have been passed without any lawful authority and respondent was held to be holding the post of Executive Engineer by out of turn promotion, without any authority of law.

?

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S) 924; Farhat Abbas v. I.G. and others 2009 SCMR 245; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood Watto v. Government of Punjab and others 1998 SCMR 2280; Tahir Ali v. Federation of Pakistan and others PLD 1987 Kar. 290; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S) 120; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 and Abdul Shabbir and 9 others v. Government of Balochistan and General Secretary and 3 others 2001 PLC (C.S.) 771 ref.

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

----Ss. 9-A & 24---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.7---Constitution of Pakistan, Art.199---Constitutional petition---Out of turn promotion---Power of Chief Minister---Additional Advocate-General, referring to S.24 of Sindh Civil Servants Act, 1973 had contended that the Chief Minister had power to grant out of turn promotion---Proviso to 5.24 of Sindh Civil Servants Act, 1973 had provided that when under the said Act or the Rules, a provision had been made that the matter would be dealt with and decided in a prescribed manner, the competent Authority was not clothed with the power to decide same in a manner less favourable to any other person---Rules made in the Sindh Civil Servants Act, 1973; had made elaborate provisions for providing the procedure for dealing with cases of promotion; and it was not available to competent Authority to ignore those Rules and make a decision in a particular case, which could have the effect of adversely affecting other civil servants.

Ibrar Hussain and others v. Government of N.-W.F.P., 2001 PLC (C.S.) 856 ref.

Masood A. Noorani for Petitioner.

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

Muhammad Nawaz Shaikh for Respondent No.4.

Date of hearing: 19th October, 2010.

2011 P L C (C.S.) 1193

[Sindh High Court]

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

MUJEEB AHMED and others

Versus

PROVINCE OF SINDH through Chief Secretary to Government of Sindh and others

Constitutional Petitions Nos. D-368 of 2007, D-184 and D-823 of 2009, decided on 22nd October, 2010.

(a) Pakistan Engineering Council Act, 1975 (V of 1976)---

----S. 2(xxiii)---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Vested right---Policy decisions---Judicial review---Petitioners were holders of B. Tech. (Hons.) degree from recognized Universities and University Grant Commission of Pakistan had declared B. Tech. (Hons.) degree-holders to be treated at par with B.E./B.Sc.---Petitioner sought their promotion on the plea that for extraneous reasons authorities delayed publication so that available posts of Executive Engineers night be filled up on the basis of old rules where B.Tech.(Hons.) degree-holders had no quota---Validity---No one had a vested right in policy decisions of Government and it was prerogative of government to formulate policies---Such policies were determined jointly with reference to domestic needs, their priorities and multitude of other factors of which government was the sole arbitrator in exercise of its executive authorities---Decision taken by authorities fell within the realm of policy-making and policy decisions were binding on subordinate authorities as a matter of duty---Being custodian of law, the courts had to examine such policy matters with regard to its application and its far-reaching effects vis-a-vis rights of citizens---Since 1987, till 4-6-2008, none from department challenged the notification dated 14-1-1987, whereby 80% quota for promotion to the post of Executive Engineers was reserved for B.E. degree-holders while 20% was reserved for Diploma-holders---Notification dated 4-6-2008, was disproportionate and against justice, equity, fairness and good governance, therefore, the same was set aside---,High Court directed the authorities to make rules with regard to promotion to the post of Executive Engineers but keeping in view the number of Assistant Engineers holding B.E. Degree and that of Assistant Engineers holding B.Tech(Hons.) degree---Petition was disposed of accordingly.?

Pakistan Diploma Engineer Federation (Registered) through its 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.

Collector or Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 535 rel.

(b) Administration of justice---

----Departmental practice cannot negate/override provisions of law/statutory rules.?

(c) Constitution of Pakistan---

----Arts. 3 & 25---Discretion, exercise of---Good governance---Scope---object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such object can be achieved by following rules of justness, fairness and openness in consonance with command of the Constitution enshrined in different Articles including Arts.3 and 25 of the Constitution.?

(d) Civil service---

----Promotion---Issuance of notification---Principle---Prerogative of government/authorities to issue any notification for making rules/regulations/policies with regard to promotion etc.---While doing so, authorities must keep in mind the concept of reasonable classification.?

Malik Muhammad Aqil Awan for Petitioners (in C.P. No.D-368 of 2007) and for Private Respondents (in C.Ps. Nos.D-184and D-823 of 2009).

Muhammad Nawaz Shaikh for Petitioners (in C.P. No.184 of 2009) and for Private Respondents (in C.P. No.D-368 of 2007).

Masaud A. Noorani for Petitioners (in C.P. No.D-823 of 2009).

Muhammad Sarwar Khan, Addl. A.-G. along with Adnan A. Karim, Asstt. A.-G. for Government of Sindh.

2011 P L C (C.S.) 1288

[Sindh High Court]

Before Faisal Arab, J

ZAHEER ABBASS

Versus

PIR ASIF and 6 others

Succession Appeal No.S-3 and C.M.A. No.363 of 2009, decided on 30th May, 2011.

Islamic Law---

----Inheritance----Death of an employee during service----Service benefits of deceased included payment of gratuity, family pension, leave encashment, group insurance and general provident fund----Deceased during life time having nominated his mother to receive group insurance, family pension and gratuity----Legal heirs of deceased employee except such nominee claiming shares in all such service benefits----Validity----Service benefits payable to a deceased employee during his life time from his employer, if remained unpaid, would become part of his estate and heritable by all his legal heirs according to their respective shares---Service benefits which had not fallen due to a deceased employee in his lifetime and was in the nature of a grant or concession on part of employer, then whatever amount became payable after death of employee would be distributed amongst those members of his family entitled thereto as per rules and regulations or under any prevalent law---Benefits such as gratuity, group insurance and family pension being grants and concession on part of employer, if payable to an employee after his death, could not be treated as heritable by all heirs of employee, but would be received by beneficiary thereof under service rules and regulations of employer----Principles.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 and PLD 2010 Kar. 153 fol.

Saddaruddin Buriro for Appellant.

Muhammad Akram Jhamat for Respondents.

Date of hearing: 29th October, 2010.

2011 P L C (C.S.) 1299

[Sindh High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

HIDAYATULLAH

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information Technology and Telecommunications and 2 others

Constitutional Petition No.D-1107 of 2010, decided on 16th May, 2011.

Sacked Employees (Reinstatement) Act (XXII of 2010)---

----Ss. 2(f) & 4---Constitution of Pakistan, Art.199---Pakistan Telecommunication Corporation Limited (PTCL), employee of---Appointment on contract basis without specified period---Termination of contract on 29-12-1996---Constitutional petition challenging such termination in the year 2010---Validity---No period of contract was fixed in letter of appointment issued to petitioner---Provision of S. 4(b) of Sacked Employees (Re-instatement) Act, 2010 would not apply to petitioner, rather same being applicable to one whose service was terminated before or after expiry of contract period---Petitioner's case would be dealt with in accordance with S.4(a) of Sacked Employees (Reinstatement) Act, 2010 for same dealt with employment on regular or ad hoc basis or otherwise---Petitioner was entitled to re-instatement and benefits in accordance with provision of S.4(a) of the Act 2010---High Court directed reinstatement of petitioner and payment of benefits to him according to provisions of the Act.

Ejaz Ali Bughti v. PTCL and others 2008 PSC 1229 and Masroor Hussain and 45 others v. Chairman, Pakistan International Airlines and another 2010 PLC (C.S.) 630 ref.

Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others 2010 PLC 323; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Shahid Mahmood Usmani v. through House Building Finance Corporation through Managing Director and others 2010 PLC (C.S.) 1360 and Abdul Jabbar Mastoi and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunications, Islamabad and others C.P. No.D-605 of 2010 rel.

Azizur Rehman Akhund for Petitioner.

Muhammad Qasim, Standing Counsel for Respondent No.1.

Sanaullah Noor Ghauri for Respondent No.2.

Date of hearing: 11th May, 2011.

2011 P L C (C.S.) 1343

[Sindh High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

SHAHNAWAZ KUTRIO

Versus

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

Constitutional Petition No.D-87 of 2011, decided on 23rd May, 2011.

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

----S. 10---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 9---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Officer of District Management Group in BPS-19---Posting by transfer of such officer as Director General Agriculture Extension (BPS-20) till further orders in his own pay and scale---Such posting was alleged to be violative of Notification dated 21-3-1993 issued by Provincial Government---Validity---Petitioner had challenged legality of appointment of respondent---Such petition being in nature of writ of quo warranto, which could not be issued by Service Tribunal---Method for appointment of Director General Agriculture Extension prescribed in such notification was either by promotion from amongst Directors of Agriculture Extension or transfer of Director-General of other Wings of Agricultural Department---Respondent was not Director in Agriculture Extension Department, thus, could not have been promoted as Director-General---Appointment to such post could only be made by either of such two prescribed modes, but not otherwise---Liability of civil servant to serve anywhere within Province in any post under Provincial Government under S.10 of Sindh Civil Servants Act, 1974 would not mean that every civil servant was ipso facto qualified for any and every post under such Government---High Court set aside appointment of respondent while directed authority to make such appointment in accordance with such notification dated 21-3-1993.

Muhammad Akram Malik v. Province of Sindh through Chief Secretary, Government of Sindh Karachi and others (C.P.No.D-550 of 1999); Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134 ref.

Dr. Nasimul Ghani v. Province of Sindh and others (C.P. No.D-932 of 2009); Estacode 6th Edition pages 1316 and 137 Serial No.4, and Syed Mehboob v. Province of Sindh through Chief Secretary, Government of Sindh and 3 others 2011 PLC (C.S.) 37 rel.

Sarfraz Ali Metlo for Petitioner.

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

Syed Muhammad Saulat Rizvi for Respondent No.3.

Date of hearing: 20th May, 2011.

2011 P L C (C.S.) 1353

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Salman Hamid, JJ

BAKHTIAR AHMED and another

Versus

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

Constitutional Petition No.D-876 of 2009, decided on 26th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---High School Teacher (BPS-15), post of---Non-payment of salary to petitioner for last three months after his appointment against such advertised post---Authority's plea that petitioner had neither appeared in test and interview held for such post nor was issued appointment letter; and that documents produced by him were forged---Validity---Nothing on record to show that petitioner did apply for such post and appeared in written test/interview---Record did not show petitioner's seat number, result of written test and marks sheet---Result sheet on record did not contain petitioner's name---List of candidates produced by authority showing names of candidates having participated in written test did not contain petitioner's name---Petitioner had not produced attendance register in support of his claim to have served for three months---Nothing on record in denial of such definite plea of authority alleging petitioner's documents to be forged---Authority's assertion that appointment letter produced by petitioner was forged and fabricated, had made his case that of disputed question of fact---High Court could not entertain such questions in exercise of constitutional jurisdiction---Petitioner had never appeared in written test and qualified to be appointed on such post---High Court dismissed constitutional petition, in circumstances.

Inayatullah Morio for Petitioners.

Abdul Hamid Bhurgri, Addl. A.-G. along with Musab Baleegh Dhamraho, the State Counsel for Respondents.

Date of hearing: 26th January, 2011.

2011 P L C (C.S.) 1373

[Sindh High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD NUSRAT ALI and 3 others

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 3 others

Constitutional Petitions Nos.D-1756 and D-1912 of 2009, decided on 23rd May, 2011.

Sindh High Court Establishment Rules, 2006---

----Part-I, Clause-15---Finance Department Notification No. B1/2 (18) 1996, dated 25-11-2006---Constitution of Pakistan, Art.199---Constitutional petition---Utility and judicial allowance---National Judicial (Policy Making) Committee---Implementation of recommendations---Petitioners were members of establishment of Sindh High Court and had sought recovery of judicial and car allowances with effect from 1-1-2008, as per recommendations of National Judicial (Policy Making) Committee---Validity---Employees of Lahore High Court and Peshawar High Court had been extended the benefit of increase of allowances in question---Notification which provided for payment of arrears had nexus to the recommendations of National Judicial (Policy Making) Committee which had specifically provided for increase of allowances in question from 1-1-2008---Word "arrears" as appearing in the notification could not be considered to be surplus, superfluous and it had to be given effect from 1-1-2008---High Court directed the authorities to disburse arrears of judicial and car allowances to employees of Sindh High Court within a period of two months---Petition was allowed accordingly.

Khan Chand Tiloka Ram v. State of Punjab and others AIR 1966 Punjab 423 rel.

Muhammad Ali Hakro for Petitioners.

Rasheed A. Rizvi for Petitioners (in C.P. No.D-1912 of 2009).

Sheraz Iqbal Chaudhry, Standing Counsel for Respondent No.3.

Adnan Karim, A.A.-G. along with Habib-ur-Rehman, Section Officer, Budget, Revenue Department, Government of Sindh for Respondents.

Date of hearing: 27th April, 2011.

2011 P L C (C.S.) 1422

[Sindh High Court]

Before Sarmad Jalal Osmany, C.J. and Salman Hamid, J

GULREZ LATIF BUTT

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum

and Natural Resources, Government of Pakistan and 2 others

Constitutional Petition No.D-1799 of 2006, decided on 29th January, 2011.

Constitution of Pakistan---

----Arts. 23, 24(1) & 199---Constitutional petition---Employee of Pakistan State Oil Company---Voluntary Separation Scheme, introduction of---Petitioner's option for such scheme was accepted by company on 14-5-2001, but was released on 30-9-2003 after extending period of separation with regular intervals---Increase in pay scale of all employees w.e.f. 1-7-2002 by company in a meeting held on 22-8-2001---Calculation of petitioner's dues in terms of such scheme and its payment to him---Refusal of company to extend benefit of such increase in pay w.e.f. 1-7-2001 to 30-9-2003---Validity---Company was owned by Government and its Managing Director and other Directors of Board were nominees/employees of Government---Petitioner was aggrieved person, who had been denied fundamental right to property guaranteed under Arts.23 & 24(1) of the Constitution---Petitioner after having opted for such scheme remained in employment of company till 30-9-2003 and was drawing salary and enjoying other related benefits---Petitioner would be deemed to be an employee of company on date of such meeting---Petitioner continued to serve company diligently and satisfactorily till 30-9-2003, thus he was entitled to all benefits accrued to him from 1-7-2001 upto 30-9-2003---Receipt of dues by petitioner under such scheme without reservation would not disentitle him of his legal right to claim amount and benefits created in his favour after revision of pay scale by company in such meeting --- High Court directed company to calculate correct amount payable to petitioner including all benefits payable upto 30-9-2003 and pay the same within specified time.

PIAC v. Tanveer ur Rehman and others PLD 2010 SC 676; Qari Allah Bux and others v. Federation of Pakistan and others PLD 2010 SC 676; Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079; Shivnandan Sharma v. Punjab National Bank Ltd. AIR 1955 SC 404; Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 CLC 1559; Nasim Arif Abbasi and others v. National Bank of Pakistan in C.P. No.D-7241 of 2006; Abdul Qadir Ismail v. State Bank of Pakistan 2001 PLC (C.S.) 810; Nazir Ahmed Chakrani and others v. Federation of Pakistan and others C.P. No.D.-1841 of 2008 and Abdul Rehman v. Federation of Pakistan and others 2010 PLC (C.S.) 691 ref.

Nazir Ahmed Chakrani and others v. Federation of Pakistan and others C.P. No.D-1841 of 2008; I.A. Sherwani and others v. Government Pakistan and others 1991 SCMR 1041; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1016; PIAC and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Nasim Arif Abbasi and others v. National Bank of Pakistan in C.P. No.D-7241 of 2006 and Khyber Zaman v. Governor, State Bank of Pakistan 2005 SCMR 235 rel.

Muhammad Shahid Qadeer for Petitioner.

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

Asim Iqbal for Respondents Nos.2 and 3.

Dates of hearing: 1st and 7th December, 2010.

2011 P L C (C.S.) 1456

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

MUHAMMAD MALIK

Versus

PROVINCE OF SINDH through Chief Secretary and another

C.M.A. No.6954 of 2010 in Constitutional Petition No.D-1806 of 2008, decided on 2nd April, 2011.

(a) Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---

----R. 11---Civil Servants Act (LXXI of 1973), Ss.2(b) & 25---Employees of Provincial Government---Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, applicability of---Scope---Civil servants in service of a Province were not civil servants for purposes of Civil Servants Act, 1973---Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 framed in exercise of powers conferred by S.25 of Civil Servants Act, 1973 would not apply to such employees---Principles.

(b) Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---

----R. 7 & Sched.---Appointment of Provincial Police cadre to members of Police Service of Pakistan (PSP) Scope---Such members, if already in Provincial Police Service not exceeding 40% of senior cadre posts in a Province and recommended by Governor thereof, might be selected for appointment to PSP cadre---No posting of a Provincial Cadre Police Officer on a post specified in Schedule of Police Service of Pakistan (Composition, Cadre & Seniority) Rules, 1985 could be made without first being appointed in PSP cadre in accordance with R. 7 thereof---Appointment of Provincial Police Officers on posts other than those specified in such Schedule could be made without them being appointed in terms of R.7 of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---Principles.

M.M. Aqil Awan for Appellant.

Adnan Karim, Asstt. A.-G. Sindh along with Nazeer Ahmed Dhoon, Deputy Secretary Sindh for Respondents.

Date of hearing: 22nd December, 2010.

2011 P L C (C.S.) 1579

[Sindh High Court]

Before Munib Akhtar, J

MUHAMMAD SHAHNAWAZ and 44 others

Versus

KARACHI ELECTRIC SUPPLY COMPANY through Company Secretary and 2 others

C.M.A. No.5422 in Suit No.815, C.M.A No.5144 in Suit No.772 and C.M.A. No.7672 in Suit No.1158 of 2010, decided on 28th July, 2011.

(a) Constitution of Pakistan---

----Art. 189---Judgments of Supreme Court---Two decisions---Interpretation of statute---If a decision of Supreme Court contains an explication of a principle of law enunciated in an earlier Supreme Court decision, then such explication in the subsequent decision is itself the enunciation of a principle of law and hence binding on all Courts in Pakistan within the meaning of Art. 189 of the Constitution (subject always to the rules regarding precedence of Supreme Court decisions as established by jurisprudence of Supreme Court itself)---Such enunciation of a principle of law in a decision of a Constitutional Court is as much "law" as is, for example a section of a statute---Interpretation of a statutory provisions by Supreme Court is an explanation of the correct legal meaning of a "law" and is binding in terms of Art.189 of the Constitution---Explanation in a decision of Supreme Court of a principle of law enunciated in Court's earlier decision is also an exposition of the correct legal meaning of a "law" namely the principle laid down in the earlier decision---Explanation given in the subsequent decision is, therefore, itself binding in terms of Art. 189 of the Constitution---Two factors need to be kept in mind by a Court that is referred to two Supreme Court decisions that stand in relation to each other, firstly the subsequent Supreme Court decision should expressly refer to the earlier decision and secondly the context in which the subsequent Supreme Court decision explicates the earlier decision is also relevant.

CIT v. Oberoi Hotels (P) Ltd., I.T.A. No.13 of 2001; Union of India v. Azadi Bacho(?) Andolan (2003) 263 ITR 706 and McDowell and Company Ltd. v. Commercial Tax Officer [1985] 3 SCC 230 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(a)---Expressions "person" and "functions in connection with the affairs of Federation, a Province or a local authority"---Karachi Electric Supply Company (KESC)---Status---Simply because the State has to cope with results of power shortage does not necessarily mean that an entity involved in the business of generating, distributing and supplying electricity becomes an instrumentality of the State---KESC is not a person carrying on functions in connection with the affairs of the Federation or the Province.

(c) Contract---

----Ascertainment of contract---Principles---If there is dispute over ascertainment of a contract, it is a mixed question of law and fact and is in the end a question to be decided by the Court itself---If terms of a contract have been ascertained or are not in dispute, then interpretation thereof (i.e. a determination of their true legal meaning) is also a question of law to be decide by the Court---Contract cannot normally be unilaterally varied or altered by one of the parties thereto and provisions of the contract are to be construed and interpreted objectively.

Sirius International Insurance Co. v. FAI General Insurance Ltd. [2004] UKHL 54; [2005] 1 All ER 191 and Abu Dhabi National Tanker Co v. Product Star Shipping Ltd. (The "Product Star") (No 2) [1993] 1 Lloyd's Rep 397 rel.

(d) Words and phrases---

----Contra proferentem---Connotation---Any ambiguity or doubt in the scope of the power should be construed against the employer and in favour of the employee.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Cancellation of contract, declaration and injunction---Interim injunction, grant of---Contractual employment---Termination of service---Altering terms of contract---Unilateral exercise of power---Plaintiffs were contract employees of Karachi Electric Supply Company (KESC) and the Company had unilaterally changed the terms of contract by formulating new service policy, resultantly the services of plaintiffs were terminated---Plaintiffs sought suspension of termination letter on the plea of mala fide---Validity---Stand of KESC was not that it had simply repudiated the contracts of employment but it had attempted to alter the terms and conditions of service and then purported to exercise a contractual power in terms of varied contracts---If the contractual terms and conditions were governed by previous rules that could constitute an insuperable impediment in the way of releasing the plaintiffs from employment---Allegations of mala fides as to the manner in which the new policy of service was brought about carry weight and were an additional factor to be kept in mind while considering the question of interim relief---Prima facie it did not appear that new policy was enforced in a less than transparent manner and once it was in the field even in relation to the existing contracts with plaintiffs, was immediately implemented against them; as such the same had prima facie raised a serious question about bona fides of KESC and also whether the contractual power conferred by previous service rules was invoked in good faith and honestly or was a mala fide exercise of power conferred---Plaintiffs had made out a case for interim injunctive relief and operation of termination letters were suspended---High Court directed the KESC that any arrears of salaries and other emoluments, if not already dealt with in terms of pervious order would be paid in full to plaintiff---Application was allowed.

Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others PLD 1975 SC 244; Sukhdev Singh and others v. Bhagatram Sardar Singh and another AIR 1975 SC 1331; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and others 2010 SCMR 253; Pakistan Telecommunication Company Limited v. lqbal Nasir and others PLD 2011 SC 132; Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd and others 1998 CLC 1890; Muhammad Ashraf v. United Bank Limited 2009 CLD 1250; Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434; Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others 2001 PLC (C.S.) 591; Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936; Arif Majeed Malik and others v. Board of Governors, Karachi Grammar School 2004 CLC 1029; Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Ltd. and another PLD 1981 Kar. 720 and Shahida Raza v. Oxford University Press 2003 PLC (C.S.) 11 ref.

Salahuddin Ahmed for Plaintiffs.

Abdul Sattar Pirzada and Tehreem Taj for Defendant No.1.

Abdul Haleem Siddiqui for alleged contemnors.

Dates of hearing: 29th March, 4th, 19th and 30th May, 2010.

2011 P L C (C.S.) 1613

[Sindh High Court]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

SHAFQAT ALI

Versus

GOVERNMENT OF SINDH through Chief Secretary Sindh and 3 others

Constitutional Petition No.D-542 of 2009 and C.M.A. No.670 of 2010, decided on 29th November, 2010.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Application had been filed by the Provincial Government for review of the order of High Court, whereby it had allowed the constitutional petition and cancelled the order and summary passed by the Chief Minister and directed the Authorities to appoint the petitioner as JST, if he possessed basic qualification necessary for such appointment---Said order was passed by the High Court on the basis of notification whereby certain benefits of appointment were given to the children of deceased personnel of the department, if they met the basic qualification---Petitioner's father had died somewhere in 1986---Said notification was not only applied to the children of those government personnel who died after coming in to force of said notification, but also to children of all the government servants who died even before coming in to force of the notification---High Court had declared the notification to have retrospective operation, after carefully considering its implication---Notification had retrospective effect, and if the law had not been properly applied by the High Court, only remedy available to the Authority was to file a civil petition for leave to appeal before the Supreme Court and review application was misconceived.

Petitioner in person.

Saifullah, Asstt. A.-G. Sindh for Respondents.

2011 P L C (C.S.) 1621

[Sindh High Court]

Before Faisal Arab and Abdul Hadi Khoso, JJ

Syed MUBARIK ALI ZAIDI

Versus

CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and 3 others

Constitutional Petition No.D-494 and M.A. No.1894 of 2010, decided on 8th June, 2010.

Pakistan WAPDA Employees Medical Attendance Rules, 1979---

----Rr. 2(c) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Medical treatment to permanent disabled son of WAPDA employee---Case of the petitioner was that his son who met with an accident at the age of 17 years, had suffered from permanent disability, but his medical expenses were not being financed by WAPDA---Rule 17 of Pakistan WAPDA Employees Medical Attendance Rules, 1979, had provided that permanent and totally incapacitated/crippled children of serving, retired and deceased WAPDA employees, who were not able to earn their living, would be allowed medical treatment, irrespective of their age---Said rule, however, had provided that such concession of treatment could be availed only in WAPDA Hospital/Dispensaries where the patient was registered which would mean that entitlement of treatment was given only in WAPDA Hospital---All WAPDA in-door and out-door Hospitals and Dispensaries were included in the definition of 'hospital' as given in S.2(c) of Pakistan WAPDA Employees Medical Attendance Rules, 1979, which would include the hospitals that were not only being run by the WAPDA itself but also such hospitals which were on the panel of the WAPDA---Son of the petitioner, apart from the hospitals which were being run by the WAPDA itself, also was entitled for treatment in hospitals which were on the panel of the WAPDA.

Muhammad Attique Siddiqui for Petitioner.

S. Javed I. Bukhari for Respondents along with Dr. Humayoon Ghayour Authorized Officer of Respondent No.4, files affidavit which is taken on record.

2011 P L C (C.S.) 1635

[Sindh High Court]

Before Gulzar Ahmed and Salman Hamid, JJ

ZAHID IQBAL JUNEJO

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Ports and Shipping, Government of Pakistan and another

Constitutional Petition No.D-3088 of 2010, decided on 24th August, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contract employment---Cancellation of appointment letter---Petitioner was appointed on contract basis for a period of two years and after he joined his duty he was not given any posting---Authorities contended that all appointments of the period when petitioner was appointed were cancelled---Validity---Appointment letter / employment contract issued to petitioner was accepted by him, resultantly a concluded contract had come into being between authorities and the petitioner---One of the clause of letter of appointment / employment contract stipulated termination of contract for which purpose thirty days notice on either side was mandated---Contract of employment made between authorities and petitioner could be terminated only by resorting to that clause and by no other means---Such concluded contract could not be avoided unilaterally by authorities when petitioner's vested right and interest had been created on one hand and obligations of authorities being a statutory Corporation on the other---Petition was allowed accordingly.

Nauman Bashir Khan v. Federation of Pakistan and another SBLR 2011 Sindh 218 ref.

Abdul Salam Memon for Petitioner.

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

Sanaullah Noor Ghouri for Respondent No.2.

Date of hearing: 22nd August, 2011.

2011 PLC (C. S.) 1205

[Khyber Pakhtunkhwa Service Tribunal]

Before Qalandar Ali Khan, Chairman and Sultan Mehmood Khattak, Member

Constable AMIR SHAKOOR

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE HAZARA RANGE, ABBOTTABAD and 2 others

Service Appeal No.163 of 2009, decided on 23rd November, 2010.

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

----Ss. 3, 5 & 10---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Dismissal from service---Appellant/Police constable was dismissed from service after charge-sheeting him and holding inquiry against him on charge that he along with another forcibly snatched amount from the complainant and his female companion while in plain clothes and posing themselves as C.I.A. Staff members--Enquiry 'against the appellant was conducted in accordance with law/rules; they were provided opportunity to cross-examine the witnesses including the complainant, but they did not avail that opportunity; and stated before the Inquiry Officer that they did not want to cross-examine the witnesses---Appellant could not prove any grudge and ill-will against the complainant---All the necessary requirements under the law/rules had been met in the case of appellants---Both were properly charge-sheeted and statements of allegations were served on them on the basis of complaint against them---Serious allegation of harassing citizens and forcibly taking away money from them by blackmailing them against personnel in uniform, who were under obligation to protect honour and dignity of the citizens, could not be countenanced on any ground whatsoever---Appeals were dismissed.

Mushtaq Ahmad Khan for Appellant.

Sher Afgan Khattak, Addl. A.-G. for Respondents.

2011 P L C (C.S.) 1215

[Khyber Pakhtunkhwa Service Tribunal]

Before Qalandar Ali Khan, Chairman and Syed Manzoor Ali Shah, Member

RIAZ GUL

Versus

SECRETARY AGRICULTURE, FOOD, COOPERATIVE AND LIVESTOCK DEPARTMENT, PESHAWAR and 2 others

Appeals Nos.1733 and 1734 of 2009, decided on 25th February, 2011.

Civil service---

----Advance increments---Entitlement---Employees claimed their entitlement to four advance increments on the basis of higher qualification which they possessed on the basis of Finance Department Letter dated 13-9-1999---Department required the employees to furnish M.Sc. (Hons) degrees, which they submitted, but despite that said increments were denied to them---Employees had been discriminated against as four other employees were allowed said increments, while they were refused said increments, for no justifiable reasons---Contention of counsel for department that grant of advance increment was a "charity" which having been discontinued long before by the government, employees could not claim their entitlement to the advance increments as of right, was repelled, in view of fact that once a benefit was extended to a government employee under a Policy of the Government, then it no longer would remain a 'charity', and its refusal to a similarly placed employee could aptly be described as discrimination not acceptable under the law and canons of justice--Impugned order was set aside and the employees were declared entitled to four advance increments under Finance Department's letter dated 13-9-1999 with effect from that date.

Haider Ali for Appellant.

Sher Afgan Khattak, A.A.-G. for Respondents.

2011 P L C (C.S.) 1224

[Khyber Pakhtunkhwa Service Tribunal]

Before Qalandar Ali Khan, Chairman and Sultan Mehmood Khattak, Member

AZIZ-UR-RAHMAN

Versus

PROVINCIAL POLICE OFFICER (I.G.P.), PESHAWAR and another

Appeals Nos.1846 and 1907 of 2009, decided on 1st March, 2011.

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

----S. 7---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Police Rules, 1934, Rr.19.26 & 19.26(4)---Confirmation of service---Appellants who joined Police Department as Prosecuting Sub-Inspectors after undergoing necessary training, were brought on promotion list 'F' and were promoted as Officiating Prosecuting Inspectors---Appellants claimed that according to Rules they were to be confirmed as Prosecuting Sub-Inspectors from the date of their appointment, but they were confirmed as such after about six years of their appointment---Said claim of appellants was contested by the department on the grounds that appellants were appointed against temporary posts and they were confirmed on the occurrence of permanent posts; that promotion of Prosecuting Sub-Inspectors was subject to their passing examination with credit; that appellants were to be appointed through Public Service Commission against permanent vacancies, while they were appointed by D.I.-G. on temporary basis---Validity---Employees were entitled to confirmation as Prosecuting Sub-Inspectors from the date of their appointments---Passing of examination with credit was not relevant for determining seniority under R.19.28(4) of Police Rules, 1934---Public Service Commission was not an appointing authority, but enjoyed the status of a recommendatory body---Issue of limitation in the case also was of no importance as once it was found that cases of Me appellants had merit and they had some vested right in view of relevant laws/Rules; and denial of the benefit would amount to discrimination in view of granting the same benefit to other similarly placed employees, the appeals could not be dismissed on the ground of limitation---Appeals were accepted with the result that relevant orders/notification were modified by confirming the appellants from the date of their appointment, with consequential benefits.

1986 PLC (C.S.) 800 and PLJ 1997 Tr.C. (Services) 139 ref.

Haji Shamsul Qamar and Saadullah Khan Marwat for Appellants.

Sher Afgan Khattak, A.A.-G. for Respondents.

2011 P L C (C.S.) 1232

[Khyber Pakhtunkhwa Service Tribunal]

Before Qalandar Ali Khan, Chairman and Syed Manzoor Ail Shah, Member

EJAZ

Versus

DISTRICT POLICE OFFICER, NOWSHERA and 2 others

Appeals Nos.503 and 504 of 2010, decided on 3rd March, 2011.

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

----Ss. 3, 5, 6 & 10---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Compulsory retirement from service---Appellants (personnel of police force) were proceeded against departmentally on the charge of molesting the wife of a labourer and were dismissed from service after charge-sheeting them and holding inquiry against them by District Police Officer---Subsequently order of dismissal from service was converted into compulsory retirement from service by Appellate Authority and appellants had filed appeal against said order---Findings of the Inquiry Committee would show that same were based on "some discreet and detached witnesses" which, legally, could not form basis for disciplinary action against a government servant---Enquiry proceedings did not contain statements of those 'witnesses' who had deposed about the incident of sexual harassment and rape and also compromise between the parties after the incident---Both the Authority and the Appellate Authority fell into error while relying on the findings of the Inquiry Committee, which were not based on any evidence whatsoever---Both the lady and her husband did not support the earlier complaint in totality---De novo departmental proceedings were needed in order to meet the ends of justice-Had that been a case of ordinary misconduct the conclusion might have been different, but in view of serious charge against the personnel in uniform while on duty, and also in view of the fact that a lenient view had been taken by Appellate Authority by converting the penalty of dismissal from service into that of compulsory retirement, there appeared no more room for showing further leniency---Appeals were partially accepted and by setting aside impugned orders, appellants were reinstated in service, with direction to the department to conduct a de novo inquiry in accordance with law within three months---Appellants having been dismissed from service, they would remain suspended during inquiry.

Ashraf Ali Khattak for Appellant.

Sher Afgan Khattak, A.A.-G. for Respondents.

2011 P L C (C.S.) 1305

[K.P.K. Service Tribunal]

Before Sultan Mahmood Khattak and Noor Ali Khan, Members

HABIB SAID

Versus

ADDITIONAL CHIEF SECRETARY, (FATA), PESHAWAR and 4 others

Appeal No.1942 of 2010, decided on 30th May, 2011.

Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----S. 10---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.4---Transfer---Earlier, employee was transferred and he worked for about 5 months at the place where he was transferred, but when he was prematurely transferred from said place of his transfer, he filed departmental appeal which appeal was accepted and his said transfer order was cancelled---Employee again was transferred just after seven months---Departmental appeal against said transfer having been rejected without any reason, employee had filed service appeal before Appellate Tribunal---Employee was transferred from one office to another repeatedly, within a short span of seven months while other employee had been posted against the post of the employee---Employee had not completed his normal tenure which was against the transfer policy of the Government---Impugned transfer order was also against the spirit of notification dated 3-8-2009, wherein competency had been entrusted to Agency Officer for employees of BPS-1 to 10, and to Political Agent for employees from BPS-11 to 15---Impugned order being without lawful authority was set aside and the employee would continue against the post till completion of his normal tenure according to the policy of the Government.

1991 SCMR 2330 ref.

Asif Yousafzai for Appellant.

Tahir Iqbal Khattak, A.-G.P. for Respondents Nos.1 to 3.

Noor Muhammad Khattak for Respondents Nos.4 and 5.

2011 P L C (C.S.) 4

[Lahore High Court]

Before Mamoon Rashid Sheikh, J

MUHAMMAD SAEED

Versus

E.D.Q. and others

Writ Petition No.8257 of 2009, heard on 16th July, 2010.

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

----R. 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--Appointment of one of the unemployed children of deceased civil servant---Petitioner, who was one of the sons of deceased civil servant, had prayed that he should be adjusted and appointed on the post of junior clerk in pursuance of provisions of R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Said rule had provided that only one child of a Government Servant who died during service, could get job against a post in BPS-1 to 5 in the department in which deceased was working at the time of his death---Petitioner's brother was already appointed as Naib Qasid in the department under R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, as only one child of deceased could get benefit of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, application of the petitioner, was rightly rejected in circumstances.?

M.H. Sajid Sial for Petitioner.

Kalim Ilyas, A.A.-G. for Respondents.

Date of hearing: 16th July, 2010.

2011 P L C (C.S.) 26

[Lahore High Court]

Before Asad Munir, J

Dr. SHOUKAT PERVEZ

Versus

FEDERATION OF PAKISTAN through Secretary Establishment, Division, Islamabad and another

Writ Petition No.1980 of 2009, decided on 30th July, 2010.

(a) Rules of Business, 1973---

----R.11---ESTA CODE, Chap. 1, Sr.7---Revised summery to Prime Minister---Procedure---Revised summary to Prime Minister cannot be submitted directly and the same has to be routed through Establishment Division.

(b) Rules of Business, 1973---

----R. 11---ESTACODE, Chap. 1, Sr. 7---Constitution of Pakistan, Art.199---Constitutional petition---Recruitment process---Doctrine of legitimate expectation---Applicability---Discretion, abuse of---Grievance of petitioner was that he was selected for post in question and summary was approved by Prime Minister but in revised summery to Prime Minister some other person was appointed---Validity---Petitioner had been a victim of arbitrary act which was also a good example of abuse of discretion---Once process of selection was complete in ordinary manner, the same could not be upset in an arbitrary manner---Doctrine of legitimate expectation, which in appropriate cases had become a substantive and enforceable right to provide relief against manifest injustice, when aggrieved person had no statutory right to claim any relief---As such the doctrine could act as deterrent for holders of public power from acting unreasonably or exercising their power arbitrarily and had given an inherent right to individuals to save themselves from being victims of the abuse of discretion by authorities---Withdrawal of approval of appointment of petitioner for post in question was arbitrary and unlawful and after being duly selected, recommended and approved, the petitioner had every right to be appointed for the post---High Court directed the authorities to appoint petitioner against post in question as approved by Prime Minister---High Court further directed the authorities to issue notification of appointment of petitioner without any further loss of time---Petition was allowed accordingly.

Dr. Marvi Shah and 9 others v. Province of Sindh through Chief Secretary and 2 others PLC 2009 (C.S.) 182; Muhammad Asghar Waseer v. Secretary Local Government 2009 PLC (C.S.) 586 and Munir Ahmad and others v. Ministry for Home and Tribal Affairs, Government of Balochistan 2007 PLC (C.S.) 679 rel.

Ch. Amjad Ali for Petitioner.

Athar Minallah for Respondents.

Date of hearing: 30th April, 2010.

2011 PLC (C.S.) 49

[Lahore High Court]

Before Hafiz Abdul Rehman Ansari, J

Qazi NAZAM-UD-DIN

Versus

SECRETARY FINANCE and others

Writ Petitions Nos.4712 of 2008 and 5329 of 2002, decided on 16th July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Benefit, withdrawal of---Big City Allowance was allowed to petitioners which they received but later on the same was refused on the ground that institution in which they were employed was outside the Municipal Limits, resultantly authorities had started deduction of allowance already paid to the petitioners---Validity---Employer/Institution was not located beyond the limits of municipality and benefit once granted to civil servants could not be withdrawn---Petitioners were entitled to receive Big City Allowance and its payment to petitioners have illegally been stopped---High Court directed the authorities to pay Big City Allowance to petitioners from the date when it was discontinued--Petition was allowed.

Writ Petition No.20237 of 1997 rel.

Syed Nafis Naveed Hashmi for Petitioner.

Aurangzeb Khan, A.A.-G. with Barkat Ali, Senior Auditor, District Accounts Office, D.G. Khan.

2011 P L C (C.S.) 53

[Lahore High Court]

Before Tariq Javaid, J

TAYYAB FARID and another

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab, Lahore and 2 others

Writ Petition No.17690 of 2010, decided on 2nd September, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Scholarships, disbursement of---Principle---Petitioners were civil servants, who had taken admission in universities abroad but government denied scholarships to them on the ground that they had become overage---Validity---Disbursement of scholarships to younger brighter candidates who had left their studies in recent past were bound to inure better results---Such stipends must be used for relatively fresh graduates as they had potential to learn--- Preference should be for the younger candidates, who should on completion of their master's degree be used as Master Trainers for training of rest of the department---Employee nearing the age of superannuation was not likely to improve the capacity---Sustainable capacity building required that scholarships should be disbursed in such a manner that maximum utility was got out of the money used from public exchequer---High Court declined to interfere with the decision taken by government---Petition was dismissed in circumstances.

Basharat Ali Janjua for Petitioners.

Miss Firdos Butt, A.A.-G., Muhammad Afzal, S.O./Law Officer, Khalid Bashir, Assistant Director, P.R.M.A. and Fawad Akram Khan, A.D.P.R.M.A. for Respondents.

2011 P L C (C.S.) 65

[Lahore]

Before Asad Munir, J

MUHAMMAD IQBAL KHATTAK

Versus

FEDERATION OF PAKISTAN

Writ Petition No.2947 of 2010, decided on 27th August, 2010.

State Bank of Pakistan Act (XXXII of 1956)---

----S. 37---Banks (Nationalization) Act (XIX of 1974), S.3(1)(b)---Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002), S.5(1) & (2)---Zarai Taraqiati Bank Limited (ZTBL)---Status---Control of State Bank---Scope---Zarai Taraqiati Bank Limited has been declared as a scheduled bank by State Bank of Pakistan under S.37 of State Bank of Pakistan Act, 1956---Zarai Taraqiati Bank Limited is subject to control and supervision by State Bank of Pakistan pursuant to the provisions of State Bank of Pakistan Act, 1956---Zarai Taraqiati Bank Limited is successor-in­-interest of Agricultural Development Bank of Pakistan, as it has come into being on 14-12-2002 following restructuring and conversion of Agricultural Development Bank of Pakistan, which was expressly stated to be a bank by section 3(1)(b) of Banks (Nationalization) Act, 1974---There is no provision in Agricultural Development Bank of Pakistan (Reorganization and Conversion Ordinance), 2002, as would suggest that after its conversion from Agricultural Development Bank, Zarai Taraqiati Bank Limited ceased to be a bank and became free from being subject to the provisions of Banking Companies Ordinance, 1962, Banks (Nationalization) Act, 1974, or State Bank of Pakistan Act, 1956---Transitional provisions of section 5(1) and (2) of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, not only allowed Zarai Taraqiati Bank Limited to continue banking business of Agricultural Development Bank but also to use word "bank" as part of its name.

(b) Banks (Nationalization) Act (XIX of 1974)---

----S. 11(3)(a)---Appointment of President of Bank---Approval of State Bank---Scope---President or a Chief Executive Officer of a bank cannot be appointed without approval of State Bank of Pakistan---Such requirement is in harmony and consistent with section 11(3)(a) of Banks (Nationalization) Act, 1974.

(c) Banks (Nationalization) Act (XIX of 1974)---

----Ss. 3(1)(b) & 11(3)(a)---Banking Companies Ordinance (LVII of 1962), S.41---State Bank's Prudential Regulations for Corporate/ Commercial Banking---Constitution of Pakistan, Art.199(I)(b) (ii)---Constitutional petition---Writ of Quo Warranto---President of Bank---Appointment and qualification---Petitioner assailed appointment of respondent as President, Zarai Taraqiati Bank Limited on the ground that he did not have required qualification for the post---Validity---Respondent had no experience in banking and he never held any position of a banker in any capacity---Experience of respondent was confined to sugar industry where he was regarded as an expert analyst and an authority on the subject and had also been office-bearer of an association---Respondent did not have any degree in banking, finance, economics or business administration, and did not meet the fit and proper test in terms of qualification and experience laid down by State Bank of Pakistan which also explained refusal of State Bank of Pakistan to clear or approve his appointment as President of Zarai Taraqiati Bank Limited---Appointment of respondent as President Zarai Taraqiati Bank Limited was unlawful for having been made in violation of provisions of section 41 of Banking Companies Ordinance, 1962, State Bank's Prudential Regulations for Corporate/Commercial Banking and section 11(3)(a) of Banks (Nationalization) Act, 1974, as neither the approval or clearance was given by State Bank of Pakistan nor he otherwise qualified to be appointed as President Zarai Taraqiati Bank Limited , as he. was sans any banking experience---High Court declared that appointment of respondent to the post of President Zarai Taraqiati Bank Limited was made unlawfully and could not be sustained---Respondent failed to show any authority of law to High Court, under which he was holding the posh of President Zarai Taraqiati Bank Limited---Notification of appointment of respondent as President Zarai Taraqiati Bank Limited was without lawful authority and of no legal effect---Petition was allowed in circumstances.

Hotel Metropole, Ltd. v. Government of Sindh PLD 1982 Kar.810; Maqbool Elahi v. Khan Abdul Rehman PLD 1960 SC 266; Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244; Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others 2005 SCMa 1829; Azizur Rahman Chowdhary v. M. Nasiruddin and others PLD 1965 SC 236; Dr. Kamal Hussain and 7 othes v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another 2004 PLC (C.S.)1142; Muhammad Liaquat Munir Rao v. Shams ud Din and others 2004 PLC (C.S.)1328 and Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 rel.

(d) Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002)---

----S. 5(1) & (2)---National Accountability Bureau Ordinance (XVIII of 1999), S.5(m)(iv)---Constitution of Pakistan, Art.199 (1)(b)(ii)---Constitutional Petition---Maintainability---Holder of public office---Scope---Contention of respondent was that Zarai Taraqiati Bank Limited (ZTBL) was not a public office and its President was not holder of public office---Validity---Zarai Taraqiati Bank Limited inherited all assets of erstwhile Agricultural Development Bank, a statutory corporation, which was restructured and converted into Zarai Taraqiati Bank Limited which was also owned, funded and controlled by Government of Pakistan and whose assets, according to its website, were worth 84 billion Rupees as on 31-12-2005---Respondent who held the top management position in a company owned, funded and controlled by government, could only be described as the holder of public office---Writ of quo warranto was maintainable against respondent as all conditions mentioned in Art.199 (1)(b)(ii) of the Constitution appeared to be present---Petition was maintainable in circumstances.

(e) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---Writ of quo warranto is 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 pro bono public.

Hafiz Hammadullah v. Saif Ullah Khan and others PLD 2007 SC 52 rel.

Qazi Ahmad Naeem Qureshi for Petitioner.

Ashtar Ausaf Ali for Z.T.B.L.

K. Saeed-u-Zafar for State Bank of Pakistan.

Ch. Imtiaz Ahmad for Applicant.

2011 PLC (C.S.) 99

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Dr. GHULAM RABANI KHAN

Versus

PCSIR through Chairman, Islamabad and 3 others

Writ Petition No.6143 of 2010, decided on 22nd July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner, an ex-employee had challenged the letter, in constitutional petition on the ground that stoppage of his monthly pension in order to recover an amount of Rs.437,505 on account of indoor and outdoor medical facility availed by him was without jurisdiction and of no legal effect---Employer/ department contended that the petitioner had falsely claimed that. he was not serving anywhere or re-employed in any capacity after his retirement and was disentitled from any increase in the pension on such ground---Validity---Petitioner gave false undertaking during his re-employment, that he was not serving anywhere after his retirement and department on such declaration allowed him reimbursement---Such act of the petitioner was in violation of departmental Rules---Petitioner, during his re-employment had made a declaration to the effect that he was not re-employed anywhere after retirement, therefore the increase in pension @ 20% might be paid to him---False declaration and similar act while seeking re-imbursement of medical claim disentitled the petitioner from seeking any relief from the High Court---Petitioner had not approached to High Court with clean hands---Constitutional petition was dismissed by High Court.

S.A.M. Wahidi v. Federation of Pakistan and others 2002 PLC (C.S.) 832 ref.

Shahid Mahmood Aleem for Petitioner.

Muzzaffar Ahmad Mirza for Respondents.

2011 PLC (C.S.) 114

[Lahore High Court]

Before Ch. Muhammad Tariq, J

TASNIM ASLAM and 2 others

Versus

SECRETARY EDUCATION SCHOOLS, CIVIL SECRETARIAT, LAHORE and 4 others

Writ Petition No.3139 of 2010, decided on 27th July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioners had challenged termination of their services on the ground that they were appointed as Senior Elementary School Educators but their services were terminated on the ground that examination, they passed was not in accordance with the qualification of University Grants Commission---Department asserted that duration of two years between two examinations was essential while the petitioners had passed the examination of Matric to M.A. within four years---Validity---Petitioners were allowed to appear in the examination by the concerned Board/University and they qualified the required degrees---Department had raised objection that two years gap between two examinations was essential, if it was so, then why the petitioners were allowed to appear in the examination by the University etc.---Educational certificates of the petitioners were verified before appointment which were proved genuine---Impugned order was also a violation of the agreement between the parties---Petitioners could not be penalized for ignorance and inefficiency of Education Department---High Court allowed constitutional petition and set aside the order of termination of services and directed the department to continue the petitioners on their previous post.

Rana Munir-ul-Hassan for Petitioners.

Rana Shamshad Khan, A.A.-G., Jamaat Ali Malhi, D.E.O.(EM), T.T. Singh, and Abdul Razzaq, Litigation Officer from the Office of E.D.O. Education, T.T. Singh for Respondents.

2011 P L C (C.S.) 116

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

IMRAN HUSSAIN---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 4 others-Respondents

Writ Petition No.6210 of 2010, decided on 15th July, 2010.'

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---State owned companies are amenable to constitutional jurisdiction under Art.199 of the Constitution.

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

(b) Constitution of Pakistan---

----Arts. 4, 18 & 25---Public sector company--Master and servant, principle of---Applicability---Scope---Mode and manner of recruitment followed by a public sector company---Objection regarding application of the principle of "master and servant" in the matter was misconceived as matter in question was not the terms and conditions of service'---In the present case, it had been agitated that the Recruitment Policy had been violated; that in spite of public advertisement, sham interviews had been conducted without any common and prefixed objective criterion to transparently judge and evaluate the candidacy of the applicants; and that the process adopted by the public sector company and its Selection Board was blatantly devoid of due process and deprived the applicants of their right to lawful employment and livelihood and discriminately ousted the petitioners from the recruitment process in violation of Arts.4, 18 & 25 of the Constitution---Held, objection regarding application of principle ofmaster and servant', was misplaced and without force.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---No objective criterion was framed for the purposes of conducting interviews for recruitment---Constitutional petition in circumstances, was maintainable.

(d) Discretion---

----Administrative discretion has to be structured, reasoned, rational, logical and objective---Principles.

Administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought-out, carefully deliberated objective standard. This helps test various faculties of the interviewees especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc. which forms a uniform yardstick, gauge, scale or criterion for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully illogical. The administrative compulsion and wisdom to structure discretion (in the present case by providing a well-thought out objective criterion/test or a score card) is to remove human subjectivity from exercise of discretion.

On an institutional level, structuring the discretion is to protect the institution and the public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility attached to human behaviour, translated into human dissection. These vices are a breeding ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to exist, weaken the foundations of democratic public institution.

Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion. Structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open finding, open reasons, open precedents and fair informal procedure. Somehow, in the context of Pakistan, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities tail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at time.

Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals. Absence of an objective criterion in exercise of discretion especially in a case where thousand of candidates had applied is therefore, discriminatory and hence violative of Article 25 of the Constitution.

Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 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 ref.

(e) Civil service---

----Recruitment of employees---Good governance and institutional building---Requirements.

Good governance and institutional building require that the requirements, demands and needs of the institution are tailored into the objective criterion/test so that the best suited human resource is selected for the post. The proposed criterion can sub-divide total marks into areas like; experience, skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds.

The Letter issued by Managing Director of a public sector company changing the Recruitment Policy at the behest of Minister besides offending fundamental right reflects of poor and reckless governance.

(f) Civil service---

----Recruitment of employees---Appointment process solely based on interview---Demerits.

B. Ramakichenin alias Balagandhi v. Union of India and others 2008 (1) SCC 362; Madhya Paradesh Public Service Commission v. Navnit Kumar Potdar and another AIR 1995 SC 77; Ajay Hasia and others. v. Khalid Mujib Sehravardi and others AIR 1981 SC 487 and Ashok Kumar Yadav and others v. State of Haryana and others AIR 1987 SC 454 ref.

(g) Constitution of Pakistan---

----Arts. 4, 18, 25 & 199---Civil service---Public sector company---Recruitment of employees---Career and future prospects of employment and livelihood of the applicants for appointment was subjected to an unstructured, unchecked, unguided and unfettered exercise of discretion---Such process put the fragile career of the applicants hostage to corruption, political opportunism and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution---Letter issued by Managing Director of the public sector company changing the Recruitment Policy at the behest of Minister, besides offending fundamental rights, reflected of poor and reckless governance--Impugned recruitment and appointment of candidates was declared to be unconstitutional, illegal, without lawful authority and therefore set aside---High Court directed that all the said posts shall be deemed to be vacant and filled again in terms of present judgment and the Recruitment Policy unless the same was lawfully amended or modified---Public Sector Companies, in the present case, had played fraud with the legitimate expectations of hundreds of people who innocently applied desiring a decent lawful employment, however, instead of carrying out transparent recruitment process and giving meaningful employment, these institutions failed to perform their public duty and had abused the public trust reposed in them by the people of Pakistan---Such situation called for strict accountability of the public functionaries involved in the process including the Board Members of the companies who seemed to have taken no note of such large-scale breach of trust---High Court, therefore, directed the Chairman WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of unlawful recruitment process--Chairman, WAPDA shall also hear and incorporate the views of the candidates who were rejected as well as the ones whose appointment had been set aside through the present judgment---Such report shall be placed before. High Court within five months from the date of present judgment.

(h) Constitution of Pakistan---

----Arts. 4 & 199---Due process of law---Civil Service---Recruitment of employees---Administrative discretion---Scope---Article 4 of the Constitution provides for due process of law and mandates that everyone is to be treated in accordance with law---Administrative discretion which is structurally unfettered and unchecked cannot be said to have been exercised in accordance with law and therefore fails to pass the test of "due process" under Art.4 of the Constitution---Walk-in-interviews, in the present case, were devoid of any objective criterion, therefore, violative of "due process" and fundamental rights of the applicants---Such interviews were declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the successful candidates.

(i) Company---

----Public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan---Higher standard of governance stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company---Principles.

A public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company. The trusteeship of the members of the Board of Directors of such company create a sacred obligation to ensure that company is run and managed through the Board, which is an independent and. an autonomous body constituted to safeguard the interest of the public and of company and at all times to firewall against political or bureaucratic opportunism. A Minister under the Rules of Business is to provide the macro policy and fashion the vision of the Department according to the political agenda of the Government in power. It is not the role or the business of the Minister to interfere with the operational working of autonomous body like a public sector company. In the present case, the Minister could have stressed the urgency to employ manpower in various companies but could not have gone further to suggest and direct the temporary modification of the Recruitment Policy unless the company after due deliberation at the Board level and after giving reasons felt that such a modification is required in the larger interest of the company and in public interest. Government and its autonomous institutions are spread out in layers, every tier having its own independent role and scope of operations and there is no room for dictation or pressure. Unless the structure of governance laid out in the Rules of Business read with the constitutional principles, is protected, the system of public administration will come crashing down, replacing public interest with personal avarice and greed. This cannot be permitted.

Public sector companies shall take collective decision in their Board Meetings, giving reasons as required under section 24-A of the General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only in grave emergency, which has no room for delay, the Chief Executive Officer may act singly in the welfare of the company and in public interest, supported by written reasons for its urgency and the same must be ratified by the Board of Directors within the shortest possible time. Board of Directors must also give reasons for allowing the Chief Executive Officer to take such a decision and must give reasons for its ratification.

Public sector company is an independent public company with its autonomous Board of Directors. Decisions of Managing Director or the Board of Directors of the company are required to be placed before Board of Directors of the company in order to take a decision. The autonomy of the company and the independence of the Board of Directors is merely fictional if directions issued by individuals namely: Managing Director (without seeking the approval of the Board of Directors) are carried through by the management without having received the blessing of its Board of Directors.

Public Institutions (company) can only contribute to national interest and welfare of the people if they are run as an institution and in the public interest without any fear or favour. If the Board Members are bypassed and are simply used to ratify orders passed single handedly behind closed doors and without any plausible reasons, the future of public institutions is bleak. In order to ensure independence, autonomy, national interest and interest of the institution, the members of the governing bodies will have to vigilantly and actively play their roles. To be on the Board of a public sector company is to perform a public duty in the public interest of the people of Pakistan. This role has to be performed with full responsibility, vigilance, courage, wisdom and for no other reasons.

Public institutions can prosper and progress and materially serve the people of Pakistan only if the public functionaries incharge of running these institutions fearlessly guard their powers and remain undeterred by extraneous pressure and influence.

Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 distinguished.

Ameer Abdullah Khan Niazi for Petitioner.

Nasim Kashmiri, Dy. Attorney-General, Muhammad Ilyas Khan, Aurangzeb Mirza, Shahid Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz for Respondents.

Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt, Azhar Iqbal and Zia Shahid for Appointees.

Tanveer Safdar Cheema, Chief Executive FESCO. Ch. Muhammad Ashraf, Director (HR) FESCO. Shabbir Ahmad, Senior Manager L&W PEPCO.

Dates of hearing: 29th April, 8th 12th, 13th and 15th July, 2010.

2011 P L C (C.S.) 152

[Lahore High Court]

Before Ch. Muhammad Tariq, J

Syed MUHAMMAD RAGA KAZMI

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY, TAXILA

Writ Petitions Nos.3654 of 2004, 2159 of 2005 and Criminal Original No.59/W of 2006, decided on 10th August, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Petitioner challenged the minutes of meeting of the Selection Board which denied him promotion to BPS-18 which promoted the respondents to the same grade---Validity---Petitioner did not fulfil the criterion of seven years experience in BPS-17---Requisite experience and better performance of respondents entitled then to promotion---Held; employee had no vested right of promotion; prospects of promotion could not be included in the conditions of service---Seniority alone was not the determining factor in evaluating the suitability or fitness of an employee for a higher grade---Eligibility of an employee for promotion could not be determined through constitutional petition---Competent authority alone could change seniority position---Constitutional petition, being meritless was dismissed.

1996 SCMR 64, 2010 SCMR 501 and 2010 SCMR 450 fol.

Mirza Viqas Rauf for Petitioner.

M. Ilyas Khan, Assistant Registrar, U.E.T., Taxila.

2011 P L C (C.S.) 158

[Lahore High Court]

Before, Iqbal Hameed-ur-Rahman, J

Mst. SADIA SULTAN

Versus

D.E.O. and others

Writ Petition No.951 of 2010, decided on 21st July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioner challenged withdrawal of her appointment order as an Elementary School Educator on the ground that neither any show-cause notice was issued to the petitioner nor an opportunity of hearing had been afforded to her and she had been condemned unheard---Department raised contention that as per recruitment policy, the qualification of M.A. (Education) was professional qualification and the petitioner was not entitled for the grant of additional marks of qualification of M.A. (Education), such was a clerical mistake which had been rectified---Validity---M.A. Education was not a professional degree but it was a degree of Arts in Education; there was no allegation against the petitioner nor there was any fault on part of the petitioner as to have manipulated in obtaining the additional marks---Withdrawal order of her appointment letter would be against the principles of natural justice when she had secured a vested right, which could not be taken away or withdrawn by the department without fulfilling the requirements of principles of natural justice---Constitutional petition was allowed by High Court.

Asirn Khan and others v. Zahir Shah and others 2007 SCMR 1451 ref.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 fol.

Army Welfar's case 1992 SCMR 1652; Fazlur Rahman's case PLD 1964 SC 410; Zakir Ahmad's case PLD 1965 SC 90; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; Khan Bahadur's case 1992 CLC 395; Rifat Parveen's case 1981 SCMR 1002 and Muhammad Saifullah Khan's case PLD 1989 SC 166 rel.

Zafar Abbas Khan for Petitioner.

Muhammad Azeem Malik, Addl. A.-G., Jamaat Ali, D.E.O. (Male) Elementary Toba Tek Singh and Muhammad Siddique Sahahid Litigation Officer for Respondents.

2011 P L C (C.S.) 174

[Lahore High Court]

Before Asad Munir, J

Engineer SHAUKAT HUSSAIN

Versus

FEDERATION OF PAKISTAN through Secretary

Writ Petition No.2863 of 2010, decided on 30th July, 2010.

Civil service---

----Termination of service---Petitioner who was appointed on contract basis for a period of 3 years and until further order, his services were terminated before expiry of said contract period of 3 years, without holding an inquiry of. allegation of misconduct---Allegations levelled against the petitioner had stigmatized him as he was said to have committed act reflecting on his moral, intellectual and financial dishonesty---Regular inquiry, in the circumstances should have been held to allow the petitioner to defend himself and attempt to clear his name---Principles of natural justice also demanded that regular inquiry, should be held into the charges before termination of service---Petitioner, however, had been summarily removed from service without facing any proper or regular inquiry to defend himself---Petitioner, as per the terms and conditions, was said to be governed by the Civil Servants Act, 1973 and the Rules, applicable to civil servants, in almost all matters including conduct and discipline, which should dispel the impression that petitioner was subject to the law of master and servant and could be ousted from service at the pleasure of his superiors---Order of termination of petitioner's services was declared to be unlawful and of no legal effect; and the petitioner, was reinstated in service with back benefits.

WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 and Zahoor Ahmad v. WAPDA and others 2001 SCMR 1566 ref.

Muhammad Shoaib Shaheen for Petitioner.

Muhammad Munir Pirzada with M. Naeem, S.O. for Respondents.

Date of hearing: 6th July, 2010.

2011 P L C (C.S.) 226

[Lahore High Court]

Before Ch. Muhammad Tariq, J

Mst. FOUZIA BANO

Versus

SECRETARY, POPULATION WELFARE DEPARTMENT, LAHORE and 2 others

Writ Petition No.8754 of 2010, decided on 21st October, 2010.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Civil service---Appointment---Petitioner who submitted an application for the post of Theatre Technician, was duly interviewed and her name was recorded at the top of waiting list of recruitment of Theatre Technician---Authorities however appointed another lady as Theatre Technician, but said other lady resigned from her post---Petitioner in the light of notification dated 14-3-2009, which had provided that in case a person joined the job and left the same within the period of 190 days, then the appointing authority could offer the job to the next person in the merit list, was entitled to be appointed as Theatre Technician who was in the waiting list---Authorities were directed to appoint the petitioner on the post of Theatre Technician.

Malik Tanveer Ahmad Awan for Petitioner.

Rana Shamshad Khan, Asstt. A.-G. Punjab, Muhammad Imran, A. D. P.W.D., Punjab and Habib-ur-Rehman, TPWO, P.W.D. for Respondents.

2011 P L C (C.S.) 231

[Lahore High Court]

Before Ijaz Ahmed Chaudhry, J

KANWAR ISHTIAQ AHMAD KHAN and 5 others

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 3 others

Writ Petition No.16502 of 2010, decided on 28th September, 2010.

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

----Chap. II---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Maintainability-Civil service---Terms and conditions of service---Policy matters---Scope---Petitioners were employees of District Attorneys as well as Solicitor Department and their grievance was that they were also entitled to Judicial allowance, like employees of High Court---Validity---Grant or refusal of a particular allowance was a policy of government which could not be interfered with by High Court in exercise of constitutional jurisdiction---Petitioners fell within the administrative control of Punjab Government, whereas employees of High Court were not under the administrative control of Government of Punjab, as such no discrimination was being met with petitioners---Petitioners and employees of High Court were administered by two different organs of the State under different dispensation because High Court was an independent constitutional institution which had been authorized to determine terms and conditions of its employees whereas terms and conditions of service including salary and allowances in case of petitioners and their colleagues in the office of Solicitor were being regulated under Punjab Civil Servants Act, 1974 and rules framed thereunder---Constitutional Petitions were not maintainable as fixation of pay and allowances squarely fell within the domain of terms and conditions of a civil servant---High Court in exercise of constitutional jurisdiction declined to interfere in the matter---Petition was dismissed in circumstances.

Government of Pakistan v. Messrs Indo Pakistan Corporation Ltd. and others PLD 1979 SC 723; Muhammad Farid Khatak v. Chief Secretary, Government of N.-W.F.P. and others 2009 SCMR 980 and Government of Pakistan v. Messrs Indo-Pakistan Corporation Ltd. and others PLD 1979 SC 723 ref.

Sadaqat Ali v. Punjab Government 2008 PLC (C.S.) 1047 distinguished.

M.A. Ghaffar-ul-Haq for Petitioners.

Waqas Qadeer Dar, A.A.-G. for Respondents.

2011 PLC (C.S.) 298

[Lahore High Court]

Before Umar Ata Bandial and Muhammad Ashraf Bhatti, JJ

AKHTAR ALI

Versus

MUHAMMAD SHOIAB AHMAD

R.F.A. No.68 of 2008, decided on 10th September, 2009.

Defamation Ordinance (LVI of 2002)---

----Ss. 5(h) & 6---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Defamation---Proof---Essentials---Annual Confidential Report---Nature---Plaintiff, a civil servant, was aggrieved of the comments in his Annual Confidential Report, prepared by defendant another civil servant---Trial Court rejected the plaint for non-disclosure of cause of action---Validity---For wrongful act of defamation to be committed it was necessary that communication of defamatory material be made to "at least one person other than the person defamed"-To prove defamation, recipient of communication were necessary to allege that plaintiff was defamed or ridiculed---Plaint lacked any such particulars of "communication" and wrong of defamation was incomplete without communication---Annual Confidential Report of a government servant contained confidential opinion given by reporting officer about service credentials, performance and capabilities of his subordinate officer---As name of the report suggested, such remarks were made in strict confidence under the provision of law---Annual Confidential Reports formed part of the record of competent authority in government for determining service prospects and capabilities of officer commented upon it was essential that an objected communication and the person to whom it was made be stated in pleadings---Particulars about slander were given to the extent that essential ingredients of falsity of statement, injury to reputation or exposure to a claim in consequence of false statement, must be evident from pleadings Plaint in the suit had been rightly rejected for non-disclosure of cause of action and High Court declined to interfere in the order passed by Trial Court---Appeal was dismissed in circumstances.

M. Akhtar Ali Chaudhry for Appellant.

2011 P L C (C.S.) 309

[Lahore High Court]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD QASIM ANSARI

Versus

SECRETARY EDUCATION and others

Writ Petition No.8846 of 2009, decided on 1st July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Posting and transfer---Petitioner who was promoted from the post of SST Grade-16 to the post of Subject Specialist Grade-I 7, was posted as Headmaster in BPS-17 and was posted at place M'---Against his said posting, another teacher, then posted as Deputy Headmaster, at placeS', in his appeal filed before Service Tribunal, challenged the posting of the petitioner as Headmaster on the ground that he did not fulfil the condition of Government Rules of qualifying ten years' service as Subject Specialist to be appointed as Headmaster---Department transferred the petitioner from place "M" and placed his service at the disposal of DCO for further adjustment/posting---Appeal filed by the petitioner against impugned order was dismissed by the Service Tribunal which order was quite legal and suffered from no infirmity-,-Constitutional petition was dismissed.

Kanwar Muhammad Younas for Petitioner.

Hafiz Muhammad Qasim, Dy. D.E.O. (S.E.), Multan.

2011 P L C (C.S.) 312

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

UMER HAYAT

Versus

EXECUTIVE DISTRICT OFFICER, (WORKS AND SERVICES DEPARTMENT), FAISALABAD and 4 others

Writ Petition No.16909 of 2010, decided on 29th September, 2010.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Transfer---Petitioner had challenged his transfer from one place of working to another---Validity---Posting and transfer was necessary feature of service and could be best judged by the authority under whom a person was serving---Posting and transfer being necessary condition of service, was outside the scope of the constitutional jurisdiction of High Court as enshrined in Art.212 of the Constitution.

Mst. Hussan Aara v. Government of the Punjab and others 2004 PLC (C.S.) 106; Begum Asmat Azhar v. Punjab Government through Secretary Education and another PLD 1987 Lah. 256; Dr. Younis Asad Shaikh v. Province of Sindh through Secretary Health Department, Government of Sindh 2009 PLC (C.S.) 735 and Secretary to Government of Punjab Health Department Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61 ref.

Ishtiaq Ahmad Chaudhry for Petitioner.

Raza-ul-Karim Butt, A.A.-G. for Respondents.

2011 P L C (C.S.) 319

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

MUHAMMAD ASLAM

Versus

EXECUTIVE DISTRICT OFFICER HEALTH, HAFIZABAD and 2 others

Writ Petition No.22164 of 2010, decided on 18th October, 2010.

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

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Posting and transfer---Posting and transfer was a necessary feature of service and could best be judged by the authority under whom the person was serving---Posting and transfer was outside the scope of the constitutional jurisdiction of High Court as enshrined in Art.212 of the Constitution.

Mst. Hussan Aara v. Government of the Punjab and others 2004 PLC (C.S.) 106; Begum Asmat Azhar v. Punjab Government through Secretary Education and another PLD 1987 Lah. 256; Dr. Younis Asad Shaikh v. Province of Sindh through Secretary Health Department Government of Sindh 2009 PLC (C.S.) 735 and Secretary to Government of Punjab Health Department Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61 ref.

Malik Muhammad Faiz Khokhar for Petitioner.

2011 P L C (C.S.) 324

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

JAFFAR ALI SHAH

Versus

PROVINCE OF PUNJAB through Secretary to the Government of the Punjab

Home Department and 2 others

Writ Petition No.16097 of 2010, decided on 7th October, 2010.

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

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Scope---Posting and transfer---Question of posting of government servant squarely fell within the jurisdictional domain of competent authority subject to law and `rules made thereunder---Question of posting/transfer related to the terms and conditions of government servant; and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters---Constitutional jurisdiction under Art.199 of the Constitution could not be invoked to get such controversies resolved---Provisions as contained under Art.212 of the Constitution would oust jurisdiction of all other courts and orders of the departmental authority, even though without jurisdiction or mala fide could be challenged only before the Service Tribunal; and jurisdiction of civil court, including High Court was specifically ousted---Plea of mala fide would not confer upon High Court jurisdiction to act in the matter in view of the constitutional ouster as contained in Art.212 of the Constitution and Service Tribunal had full jurisdiction to interfere in such like matters.

PLD 1994 SC 738; PLD 1995 SC 530; 1996 SCMR 59; 2008 PLC (C.S.) 579; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Khawaja Abdul Wahid v. Chairman WAPDA 1986 SCMR 1534; Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61; Dr. Ghazanfar Ullah and 2 others y. Secretary Health Government of the Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 and Khan Muhammad v. Secretary Education (Schools) Government of the Punjab Education Department and another 2010 PLC (C.S.) 238 rel.

Sheikh Usman Karim-ud-Din for Petitioner.

Muhammad Zubair Khalid, Addl. A.-G. for Respondents.

2011 P L C (C.S.) 331

[Lahore High Court]

Before Ch. Muhammad Tariq, J

GHAZANFAR ABBAS and 2 others

Versus

DISTRICT EDUCATION OFFICER (COLLEGES), SIALKOT and 2 others

Writ Petition No.17986 of 2010, decided on 29th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Termination of service---Petitioners were appointed by competent authority on the recommendations of Departmental Selection Committee after performing all formalities---Petitioners started performing their duties and accordingly the department had been paying the monthly salaries and other benefits to the petitioners--Services of the petitioners were terminated simply on the ground that some irregularities were committed by the department during process of appointment of the petitioners---Ground on basis of which the petitioners' services were terminated, was misconceived, because the department could not punish the petitioners for the lapses caused by it; and appointing authority was responsible to face the consequences of its lapses---If appointment of an employee was made illegal same could not be cancelled and instead of taking action against the employee; action must have been taken against the appointing authority for committing a misconduct by making illegal appointments---Petitioners, who otherwise were eligible, could not be penalized for the .act of department---Constitutional petition was allowed.

Province of Punjab through Secretary Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 ref.

Mahmood Ahmad Qazi for Petitioners.

Rana Shamshad Khan, A.A.-G. with Naseer Ahmad Shah, D.E.O. (Colleges), Sialkot for Respondents.

2011 P L C (C.S.) 334

[Lahore High Court]

Before Ch. Muhammad Tariq, J

MUHAMMAD TAHIR RASOOL

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and another

Writ Petitions Nos.23022 and 23019 of 2010, decided on 28th October, 2010.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Promotion and seniority-Eligibility of an employee for promotion could not be a subject of constitutional petition and it was only competent authority to change seniority position assigned to an employee---Even otherwise seniority and promotion was a question of terms and conditions of service which fell within the domain of Service Tribunal and Art.212 of the Constitution---Constitutional jurisdiction of High Court under Art.199 of the Constitution could not be invoked.

1996 SCMR 645; 2010 SCMR 501 and 2010 SCMR 450 ref.

Khadim Hussain Khokhar for Petitioners.

2011 P L C (C.S.) 351

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

Mst. SAIMA HAMEED

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), PAKPATTAN SHARIF and 2 others

Writ Petition No.1713 of 2010, decided on 20th September, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of service---Petitioner challenged the order of termination of her services---Validity---Newspaper advertisement contained no age-limit for the post held by petitioner---Having worked with the department in the past, petitioner's age-limit would be presumed to have been relaxed or ignored by the Authority---Valuable right had accrued to the petitioner after appointment and joining and the same could not be recalled in view of the principle of locus poenitentiae---No show-cause notice was issued to the petitioner to provide her opportunity of hearing---Impugned order being illegal and against principles of natural justice, was set aside---Petitioner was ordered to be reinstated from the date of her joining with all benefits.

Liaqat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556, Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmad Bhutto 2005 SCMR 57 fol.

Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453 rel.

Arshad Ali Chohan for Petitioner.

Raza-ul-Karim Butt, A.A.-G. for Respondents.

Muhammad Shoaib Abuzar, Litigation Officer, E.D.O.(H) Office Pakpattan.

2011 P L C (C.S.) 354

[Lahore High Court]

Before Mamoon Rashid Sheikh, J

TAHIR ABBAS

Versus

FESCO, JHANG and others

Writ Petition No.4552 of 2010, decided on 20th April, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employer Organisation was a "public utility company" (Electric Supply Company), wholly owned and controlled by the Government and for all intents and purposes the said company followed the policies laid down by the Government of Pakistan vis-a-vis supply of electricity under its area of control---All the rules made applicable to the employees of the Company were the ones applicable to WAPDA employees---Company was trying to non-suit the petitioner/employee by quoting from the WAPDA Employees Medical Attendance Rules, 1979---Constitutional petition of employee was maintainable against the employer company, in circumstances.

Farrukh Bashir v. Federal Public Service Commission, Islamabad through Secretary and 2 others 2003 PLC (C.S.) 1161; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Aitchison College Lahore v. Muhammad Zubair and another PLD 2002 SC 326 ref.

(b) Pakistan Water and Power Development Authority Employees Medical Attendance Rules, 1979---

----R. 6(a)---Initial recruits/recruitments---Medical Board was not only meant for permanent employees but could assemble for initial recruits/recruitments.

Azhar Iqbal for Petitioner.

Mian Ashiq Hussain for Respondents.

Date of hearing: 20th April, 2010.

2011 P L C (C.S.) 371

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

EHSAN ULLAH

Versus

FEDERATION OF PAKISTAN/PAKISTAN RAILWAYS through Chairman and 8 others

Writ Petition No.16620 of 2010, heard on 28th October, 2010.

(a) Civil service---

---Government premises allotted to government servant without delivery of its possession---Validity---Status of such employee was that of a licencee, thus, he could not claim any vested right in respect of such allotment---Such premises, even if in possession of such employee would be deemed to be a tenancy-at-will terminable by Government at any time without show-cause - notice to him---Principles.

1988 CLC 1525; PLD 1988 Lah. 325; 2007 SCMR 1240; 2006 CLC 1902; 2005 YLR 252; 2007 SCMR 1357; PLD 1988 Lah. 243; 2005 YLR 1212; 1992 CLC 1122; 2001 PLC (C.S.) 919; 1989 CLC 1204; 1998 PLC (C.S.) 965 and 2008 CLC 1166 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Decision of Government in matter of determination of disputes--Interference by High Court---Scope stated.

The decision of the Government in matter of determination of disputes has been exclusively allowed to be examined by the Government or the Committee set up by the Government and the jurisdiction, thus created is not the one in respect of which the courts could be thought to be invested with powers of any supervisory jurisdiction. The Court should also not involve into the field which is more appropriate for the Committee set up under that law rather than the court.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition involving factual controversy---Maintainability---High Court in constitutional jurisdiction could decide such controversy.

(d) Constitution of Pakistan---

----Art. 199-Constitutional petition---Maintainability---Government premises allotted to government servant---Cancellation of such allotment by Government---High Court could not interfere with such matter---Petition was dismissed in circumstances.

Estate Officer Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122; Dr. Munir Ahmad M.B.,B.S. Medical Officer v. Chairman House Allotment Committee, Government of Balochistan, Quetta and another 1983 CLC 1783; Director-General Pakistan Coast Guards Karachi v. Mst. Zarina Jamshed 1998 MLD 1879; Miss Rukhsana Soomro and others v. Board of intermediate and Secondary Education Larkana Sindh and others 2000 MLD 145; Dr. Khurshid Bhutto v. Civil Aviation Authority 2001 PLC (C.S.) 919 and Ardeshir R. Cowasjee and others CDGK and others 2008 CLC 1166 rel.

Abid Iqbal Butt for Petitioner.

Nasim Ahmad for Respondents.

Date of hearing: 28th October, 2010.

2011 PLC (C.S.) 378

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD ZAFARULLAH

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary Services and General

Administration, Government of the Punjab and another

Writ Petition No.8516 of 2008, decided on 3rd May, 2010.

(a) Punjab Government Servants Housing Foundation Act (X of 2004)---

----S. 2---Punjab Government Servants Housing Foundation Rules, 2005, R.3--Constitution of Pakistan, Arts.199, 4 & 25---Constitutional petition---Cancellation of membership of Housing Society---Main objective of the Housing Foundation, established under Punjab Government Servants Housing Foundation Act, 2004 was to provide subsidized houses to the government employees on their retirement---Government servants, who were in service on 10-3-2004 or became government servants thereafter, were eligible to become members of the Foundation while government servants who retired before 10-3-2004, were not eligible to become members of the Foundation as per Punjab Government Servants Housing Foundation Act, 2004 and R.3(1) of Punjab Government Servants Housing Foundation Rules, 2005---Specifying date of 10-3-2004, had created a reasonable classification based on intelligible differentia, as that in turn had direct nexus to the object for which relevant enactments had been issued---Such a classification was valid and did not tend to create any arbitrary distinction or discrimination---Petitioner, in the present case, was retired on 31-1-1999, much before promulgation of Punjab Government Servants Housing Foundation Act, 2004---Provisional membership of petitioner, in circumstances, was rightly cancelled---Housing scheme having been introduced for serving employees or future entrants, it could not be said to be contravening Art.25 of the Constitution to those who already stood retired.

(b) Constitution of Pakistan---

----Arts. 4 & 25---Equality of citizens---All citizens of Pakistan, were equal and were also entitled to similar protection---Only exception to said constitutional mandate was the creation of a reasonable classification, which could be created by a competent authority, subject of course, to the judicial scrutiny of the courts of the country.

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

(c) Interpretation of statutes---

----Prospectivity and retrospectivity---Generally, laws were presumed to be prospective in their operation, unless the appropriate legislature in its wisdom had decided to give retrospective operation to such law in clear and unequivocal terms.

Syed Ijaz Qutub for Petitioner.

Abdul Waheed Ch. for Respondent No.2.

Shahid Mubeen, Addl. A.-G.

2011 PLC (C.S.) 384

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD UMAR

Versus

D.G. EXCISE AND TAXATION and others

Writ Petition No.13447 of 2008, decided on 23rd December, 2008.

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

----S. 10---Constitution of Pakistan, Art.199---Constitutional petition---Appointment on basis of contract---Termination of service---Petitioner joined Excise and Taxation Department on contract basis for a period of three years---During performance of his duties, the petitioner was served with a show-cause notice regarding certain allegations, which the petitioner refuted in reply---Service's of the petitioner were terminated by competent authority affording a chance of personal hearing on account of alleged misconduct-Validity-In case of a contract employee, if the allegations were refuted, then without resorting to procedure of regular inquiry the employee could not be condemned---Co-accused was facing a regular inquiry, but the petitioner was ousted from service resorting to a shorter procedure of show-cause notice---Discrimination, in circumstances, was evident in case of the petitioner---Impugned order was dismissed and the petitioner was reinstated into service and departmental authority was directed to hold a regular inquiry, in line with the inquiry which was being conducted against his co-accused and decide fate of the petitioner's case in accordance with law.

Muhammad Amjad v. WAPDA 1998 PSC 337 ref.

Mahmood Ahmad Qazi for Petitioner.

Naeem Masood, Asst: A.-G.

Sadaqat Ali Shah, AETO (Legal Cell) for Respondents.

2011 P L C (C.S.) 398

[Lahore High Court]

Before Ch. Shahid Saeed, J

RUKHSANA KAUSAR

Versus

B.V.H. and others

Writ Petition No.4132/S of 2005, decided on 2nd November, 2010.

Punjab Civil Servants Act (VIII of 1974)--

----S. 2(b)(ii) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Petitioner was appointed as Nurse on contract basis for four years and said period of four years was extended---Petitioner was restrained from performing her duties as charge nurse, without any reason and her services were terminated without issuing show-cause notice nor a charge-sheet---Distortion was apparent on the record as termination order was issued one year earlier to the impugned order which was given retrospective effect after conducting enquiry wherein no proper opportunity of hearing was provided to the petitioner---When there was stigma of misconduct on the petitioner, then she was entitled for personal hearing---Petitioner could not be treated as civil servant as she was appointed on contract basis---Impugned order whereby petitioner's service was terminated, was set aside, with direction to the authorities that the petitioner would be treated as an employee on contract basis; and her case for regularization also be considered as per notification issued by the Government.

2004 PLC (C.S.) 298 and 2008 PLC (C.S.) 127 ref.

Miss Nyla Shahzadi and Miss Shumaila Samreen for Petitioner.

Shamsher Iqbal Chughtai for Respondents.

Ch. Khalid Nawaz, A.A.-G.

2011 P L C (C.S.) 403

[Lahore High Court]

Before Umar Ata Bandial, J

Dr. MUHAMMAD PARVEZ IQBAL QAZI

Versus

SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF SCIENCE AND TECHNOLOGY, ISLAMABAD and 8 others

Writ Petition No.5234 of 2008, decided on 10th April, 2009.

Pakistan Council of Scientific and Industrial Research Employees Service Regulations, 1981--

----Regln. 15-B(i)(b)---Constitution of Pakistan), Art.199---Constitutional petition---Promotion---Contention of petitioner was that he was entitled to promotion to BS-20 from a date earlier than ante date fixed by Council if he was fully given benefit of Regln.15-B(i)(b) of Pakistan Council of Scientific and Industrial Research Employees Service Regulations, 1981---Validity---Once petitioner had met substantive requirements for promotion to BS-20 in year 2008, the only point that had to be considered was whether his promotion to BS-20 was withheld in year, 2004 for reasons beyond his control---Promotion of BS-19 was ante dated by Council, therefore, petitioner would have been eligible to be considered for promotion to BS-20 in year, 2004---By virtue of such ante date and fact that petitioner satisfied substantive requirements of promotion to BS-20, he was entitled to benefit of Regln.15-B(i)(b) of Pakistan Council of Scientific and Industrial Research Employees Service Regulations, 1981, with effect from year, 2004, when first batch of his juniors were promoted---Petition was allowed in circumstances.

Mian Safdar Mahmood and 18 others v. Punjab Service Tribunal and 2 others 1992 SCMR 1394; Managing Director (Power), WAPDA and others v. Muhammad Luqman PLD 2003 SC 175; Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232; Muhammad Anis and others v. Abdul Hasib and others PLD 1994 SC 539; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Shoaib Roomi v. Secretary, Education Department Government of Punjab 2005 SCMR 605; Rizwan Akhtar v. Union of Punjab 2003 PLC (C.S.) 1508 ref.

Mian Manzoor Hussain for Petitioner.

Umar Farooq for Respondent No.2 with Abdul Hayee Zia-ud-Din, Principal Admn. Officer, PCSIR for Respondents.

2011 P L C (C.S.) 413

[Lahore High Court]

Before Umar Ata Bandial, J

Mrs. SHAHBAZ BASHIR

Versus

CHIEF SECRETARY GOVERNMENT OF PUNJAB and others

Writ Petition No.14991 of 2008, decided on 5th December, 2008.

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

----S. 7---Seniority---Seniority was a trite criterion that would hold good for routine appointments to "cadre posts---In a contested matter about selection for special posts in a cadre, the executive decision must contain a level of objective grounding that would end a controversy---That would require due regard to the suitability of a candidate to hold a post for which the record needed to be consulted and considered.

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

----S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Posting and transfer---No government servant had the right to choose the office of his or her appointment---For that rule to be obeyed, every government servant mast be treated fairly, which in turn would engender high morale and discipline in a service or cadre---Transfer order must neither wreak humiliation that could not.. be justified nor satisfy personal scores among service peers to reveal abdication---Matter of posting and transfer remained a subject that was governed by executive considerations and policy which were discretionary in nature and it was not appropriate for a court to interfere with such appointments---Executive discretion was always structured and could not be capricious---Court could perceive when extraneous purposes, criteria and considerations would drive executive orders in such matters---Decisive action was required to conclude the controversy between the contending officers in a manner that would reflect fairness and promote the institutional values that were enshrined in the law, namely, integrity, efficiency and discipline in the members of a service---Authority was accordingly directed by High Court to review the object as well as consequence of the claims laid down by the petitioner and respondent to the office of the Principal of the College concerned.

Mr. Zulfiqar Ali Bhutto v. State PLD 1978 SC 40; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 ref.

Sh. Shahid Waheed for Petitioner.

Syed Nayyar Abbas Rizvi, A.A.-G.

Mehmood Ahmad Qazi for Respondent No.3.

2011 PLC (C.S.) 419

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

FAISAL SULTAN

Versus

E.D.O. (EDUCATION) and others

Writ Petitions Nos.5062, 5060, 5067, 5068, 5104, 5106, 5112, 15114, 5138, 5142, 5248, 5267, 5293, 5326, 5383 and 5445 of 2009, decided on 11th December, 2009.

(a) Constitution of Pakistan--

----Arts. 4, 9, 14, 18 & 199---Contract Act (IX of 1872), Ss.2 & 23---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Secondary School Educator, post of---Approval of petitioners by Recruitment Committee for their appointment on such post on contract basis and signing of letters of employment by them---Subsequent revision of merit list with approval of Chairman of Recruitment Committee after petitioners worked for one month---Withdrawal of letters of agreement by Authority resulting into termination of petitioners' service due to detection of errors in their merit lists---Validity---Plea of Authority was not that petitioners had submitted bogus/forged credentials or played fraud by tampering with recruitment process---Comments tiled by Authority showed that alleged errors had creped into formation of merit list solely due to mismanagement and incompetence of Authority and their staff---Authority instead of making an effort to rectify alleged issue thought convenient to "pass the buck" by passing impugned order resulting in reopening of past and closed appointments without giving any reason---Chairman alone could not undo merit list approved by Recruitment Committee---Recruitment Policy did not provide for issuance of a revised merit list---Offer of appointment once accepted and acted upon by petitioners could not be withdrawn---Letter of agreement provided for termination of service on one month's notice or payment of one month's salary in lieu thereof by either side, but no such notice had been issued to petitioners---Procedural fairness and due process was mandatory in public sector employment---Removal of an employee from a public sector employment without due process would offend Art. 9 of the Constitution as right to life would include right to a lawful and meaningful livelihood--Issuance of notice with reasons to petitioners was a minimum requirement of due process of law under Arts. 4, 9, 14 & 18 of the Constitution---According to Recruitment Policy, contract employees/petitioners had no right to demand, claim and change in terms and conditions of letter of employment---Petitioners had an unequal bargaining position compared to the Authority---Petitioners belonged to a less privileged segment of society with limited social and economical choices in life---In case of termination of such contract mid stream with a stroke of pen without due process, principles of social and economic justice would get attracted---Petitioners had been appointed after due scrutiny spread over eight months, and had started their professional life when through impugned order, their professional career was brought to a naught due to sheer incompetence and negligence of Authority---Impugned order for being unreasoned would be a stigma for young teachers, thus, would cause damage to their reputation---Impugned order flouted dignity of man protected under Art.14 of the Constitution---Petitioners after appointment joined lawful profession, of which they could not be deprived without referring to any fault in prescribed qualifications---Impugned order was not only without notice, but was devoid of reasons and logic, thus, violative of 5.24-A of General Clauses Act, 1897---Lapses and mistakes committed by Authority in carrying out recruitment process would not affect concluded contract entered into with petitioners, if they were fully qualified, but not otherwise---Only qualified teachers could be appointed as Educators---High Court set aside impugned order for being unconstitutional, opposed to public policy and without lawful authority, resultantly petitioners would be deemed to be posted on their original positions---High Court directed Secretary, Local Government to initiate departmental inquiry against all officers involved in recruitment process---High Court further directed Secretary, Education to constitute a new Recruitment Committee having members from other Districts to scrutinize within specified time firstly cases of petitioners and then other successful candidates in order to determine as to whether they qualify to hold posts applied for and invoke termination clause with reasons in appropriate cases on basis of approval of such Committee.?

Federation of Pakistan through General Manager, Railway Headquarters Office v. Messrs Mian Muhammad Salim & Company 1994 SCMR 1960; Nizamuddin and 2 others v. Chairman, Evacuee Trust Properties Board and others 1997 SCMR 1152; Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930; Abdul Ghatfar Khan v. Chairman WAPDA, WAPDA House, Lahore and 3 others 2008 PLC (C.S.) 415; Dr. As\ Muhammad and others v. Government of N.-W.F.P. and others 2002 PLC (C.S.) 144; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468=2004 PLC (C.S.) 602; Hazara (Hill Tract) Improvement Trust through its Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1496 SCMR 413; Muhammad Zahid Iqbal and others v. D.E.O., Mardan and others 2006 PLC (C.S.) 1216; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141; Yousaf Ali v. Government of the Punjab and others 1996 PLC (C.S.) 801; Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others 2009 SCMR 412 and Messrs Millat Tractors Limited through its General Manager. Shandara, Lahore v. Punjab Labour Court No.3 and 2 others 1996 SCMR 883=1996 PLC 300 ref.

Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468=2004 PLC (C.S.) 802; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Abdul Hafeez Abbasi and others v. Managing Director; Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034; Dr. Ashiq Muhammad and others v. Government of N.-W.F.P. and others 2004 PLC (C.S.) 144; Rana Asif Nadeem v. Executive District Officer; Education, District Nankana and 2 others 2008 PLC (C.S.) 715; Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd. and others 2005 PLC (C.S.) 318; Pakistan State Oil Company v. M. Akram Khan and others 2004 PLC (C.S.) 992; Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434; Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880; Mrs. Anisa Rehman v. and another 1994 SCMR 2232; Muhammad Tariq and others v. P.I.A. and another 1998 SCMR 429; Francis Coralie Mullin, v. The Administrator, Union Territory of Delhi and others AIR 1981 SC 746; Olga Tellis and others. v. Bombay Municipal Corporation and others AIR 1986 SC 180; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and other AIR 1991 SC 101; Union of India and another v. Pratap Singh and others (1995) 2SCC 42; Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others 2009 SCMR 412; Hameed Akhthr Niazi v. The Secretary, Establishment Division, Governments of Pakistan and others 1996 SCMR 1185; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Muhammad Zahid Iqbal and others v. D. E.O. Mardan and others 2006 SCMR 285 and Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary; N.-W.F.P.; Peshawar and others 2007 PLC (C.S.) 179 rel.

(b) Contract Act (IX of 1872)---

----S. 2---Offer once accepted could not be withdrawn.?

(c) Words and phrases

"To act fairly "---Connotation.

Under the English and American jurisprudence to act fairly includes "Procedural Fairness" or "Procedural Propriety" or "Procedural Due Process". All these concepts deal with the process and procedures employed in arriving at an administrative decision rather than with its substance. "An important concern of procedural justice to provide the opportunity for individuals to participate in decisions that affect them. Another is to promote the quality, accuracy and rationality of the decision-making process. Both concerns aim at enhancing the legitimacy of that process."?

De Smith's Judicial Review 6th Edition and Treatise on Constitutional Law --- Substance and Procedure by Rotunda & Nowak, 4th edition 2007 rel.

(d) Civil service---

----Statutory or contractual employment in public domain, pertaining to public and government---Procedural fairness and due process is mandatory in such employment.?

Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468=2004 PLC (C.S.) 802; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others .2001 SCMR 934; Abdul Hafeez Abbasiand others v. Managing Director, Pakistan International Airlines Corporation, Karachi wand others 2002 SCMR 1034; Dr. Ashiq Muhammad and others v. Government of N.-W.F.P. and others 2004 PLC (C.S.) 144; Rana Asif Nadeem v. Executive District Officer; Education, District Nankana and 2 others 2008 PLC (C.S.) 715; Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd and others 2005 PLC (C.S.) 318; Pakistan State Oil Company v. M. Akram Khan and others 2004 PLC (C.S.) 992; Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434; Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880; Mrs. Anisa Rehman. v. PIAC and another 1994 SCMR 2232 and Muhammad Tariq and others v. PIA and another (1998 SCMR 429 rel.

(e) Constitution of Pakistan---

----Art. 4---Term "law" as used in Art. 4 of the Constitution would include principle of natural justice, procedural fairness and procedural propriety---Principles.

Article 4 of the Constitution guarantees an inalienable right to enjoy the projection of law and to be treated in accordance with law. "Law" in Article 4 includes the cardinal principle of natural justice. Article 4 is a loud and clear constitutional guarantee 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.?

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 the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan.?

Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Government of West 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.

(f) Constitution of Pakistan---

----Arts. 9, 14, 18 & 38(b)---General Clauses Act (X of 1897), S.24-A---Public sector employee either regular or contractual---Removal from service without following procedural due process 'of law---Validity--Right to life would include right to a lawful and meaningful livelihood---Such removal would be violative of fundamental rights guaranteed to such employee under the Constitution---Principles.

Removal of an employee from a public sector employment without due process also offends Article 9 of the Constitution, because right to life includes right to a lawful and meaningful livelihood.?

Right to life also includes right to livelihood. Without protection of livelihood and job security professional life is sapped of passion and desire to work, which is essential for progress and development. No employment that borders on fear and favour can reap results. Livelihood proves the economic means required to lead a healthy and a regular life. Right to livelihood or right to security of tenure, therefore, are integral, innate and inbred in a professional career of a public sector employee. Livelihood cannot be deprived unless convincing material is placed on the record that supports a larger public interest of taking such an action. Without the presence and existence of a larger public interest, the employee cannot be deprived of his fundamental right.?

Termination of public employment, especially when the contract reflects unequal bargaining as in the present case, the Recruitment Policy states "the contract employees shall have no right to demand and claim and change in terms and conditions of service of the agreement". The letter of employment is a standardized contract with no freedom of contract available to the petitioners. If such like contracts are terminated mid stream with a stroke of pen without due process, throwing the fledgling careers of the employees (weaker segment of the society) to the winds, the principles of social and economic justice get attracted.?

The Constitution, therefore, reads fundamental rights to be inclusive of social and economic justice. Social and economic justices are, therefore, indelible, ineradicable, inbred and fundamental parts of a civilized life, more so in an Islamic Republic, and therefore are squarely covered under Article 9 of the Constitution. With appointment comes an expectation of a lawful livelihood, hopes of a successful career, sense of well being and security, social recognition and economic independence. Any process that derails a person from his path of social progress and economic self-sufficiency violates social and economic justice thereby violating Article 9 of the Constitution.?

Article 18, inter alia, provides that every person shall have a right to enter upon a lawful profession subject to prescribed qualifications, if any. This fundamental right not only provides entrance and access to' a lawful livelihood, but also protects and safeguards a person to enjoy and hold the said lawful profession. The protection is, therefore, not limited to entrance and access to a lawful profession, but extends beyond it to give it a more wholesome meaning. Entering a lawful profession is incomplete, if the protection doesn't cover lawful enjoyment of the said profession and the right to lawfully hold the same with honour, dignity and security.?

The only exception provided under Article 18 is "subject to qualifications" besides the regulatory and licensing conditions imposed through its Proviso. Other than the exceptions provided, the protection to a lawful profession cannot be taken away. Artcile 38(b) of the Constitution states that "The State shall:- (b) provide for all citizens within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure". Article 18 read with Article 38(b) protects and safeguards public employment, the basic unit of our economic activity and growth. Job security is essential to economic development and cannot be allowed to be taken away unless as provided in Article 18.?

Employment, especially in the public sector, cannot be terminated with a stroke of pen and without the public servant given the procedural due process of law. The quality and form of "process" employed become doubly important when the right flows from a fundamental right. In the present case, notice with reasons is the minimum requirement of "process" under Articles 4, 9, 14 & 18 of the Constitution that should have been provided to the petitioners. It does not matter if the employment in the public sector is regular or contractual. Article 4, 9, 14 and 18 encompasses "person" and "citizen" and carry no distinction between a contractual or a regular employee. Public sector employers must provide for procedural due process when dealing with regular or contractual employees, the "process" might be different at times as long as the process, which is due, is provided. The threshold of the process takes a higher standard in case where right flows form a fundamental right.?

There is no room for arbitrary and unreasoned orders in the public employment sector.?

The Shorter Constitution of India by Durga Das Basu relying upon 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 1996 SC 1051; Air India Statutory Corporation and others v. United Labour Union and others AIR 1997 SC 645; Olga Tellis and others v. Bombay Municipal Corporation and others AIR 1986 SC 180; M.C. Mehta and another v. Union of India and others (1986) 2 SCC 176; State of Maharashtra v. Chandrabhan AIR 1983 SC 803; Air India Statutory Corporation and others v. United Labour Union and others AIR 1997 SC 645; CJP CASE Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others PLD 2007 SC 578; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Nawaz Sharif's case PLD 1993 SC 473; Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Judical Review of Public Actions; Griswold v. Connecticut (381. US 479) and Maneka Gandhi's case AIR 1978 SC 597 rel.

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

----S. 24-A---Speaking order would mean an order, which lucidly lays out reasons for order.?

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

----S. 24-A---Reasoned and unreasoned orders by public functionaries, passing of---Advantages and disadvantages stated.

Reasons ensure transparency and accountability of public institutions and make them stronger. Public authorities must take pain to give reasons in their orders and directions in most open and transparent manner without any fear or favour. Unreasoned orders generate corruption, weaken institutions and slowly eat into the foundations of a healthy democracy.?

Messrs Airport Support Service v. The Airport Manager Ouaid?-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Liaquat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and 1,1 others v. Government of N.-W.F.P. through Secretary Education. Peshawar and 3 others 2003 PLC (C.S.) 1453; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another. 2004 SCMR 158 and Chairman/Managing Director; Pakistan International Airlines Corporation and another v. Nisar Ahmed Bhutto 2005 SCMR 57 rel.

(i) Civil service---

----No one can hold a post, which he is not qualified to hold. ?

(j) Constitution of Pakistan---

----Arts. 4 & 25---General Clauses Act (X of 1897), S.24-A---Contract Act (IX of 1872), S.23---Public sector employee on contract basis---Employment contract containing a clause allowing employer to terminate such contract without assigning any reason after giving one month's notice or paying one month's salary in lieu thereof to employee---Validity---Such clause could not be allowed for being a breading ground for nepotism, jobbery, lacking requirement of fairness and procedural due process and violative of Arts.4 & 25 of the Constitution, S.23 of Contract Act, 1872 and S.24-A of General Clauses Act, 1897---Reasons stated.

The termination clause in the letter of agreement stated:

Clause 8. Termination of Contract.

(i) Contract of appointment shall be liable to termination on One Month's Notice or Payment of One Month's Salary in lieu thereof by either side without assigning any reason. (emphasis supplied)

(ii) Department of Education has the right to terminate your contract at any time after giving a notice/personal hearing in case of your poor performance or contract.

The underlined portion above allows the Local Government to terminate without assigning reason (for brevity the "No Reason Clause"). This does not stand the test of fundamental rights, reason, logic, ethics or good governance. While the whole world is moving towards accountability and transparency, the above unfettered and unchecked power can be a recipe for corruption, mismanagement, nepotism and jobbery. Foundations of good governance are bases on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness. The "No Reasons Clause" ex facie lacks the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution. The said Clause is facially and ex facie discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution. The said Clause is also opposed to public policy and violates section 23 of the Contract Act, 1872. The "No Reasons Clause" is offensive to Section 24-A of the General Clauses Act, 1897.?

The `No Reason Clause' is a breading ground for nepotism and cannot be allowed. Clause 8 of the termination clause to the extent of where the termination can be without assigning any reason is struck down as opposed to public policy, logic, good governance, duty of fairness, procedural due process and is facially discriminatory under Articles 4 and 25 of the Constitution. The Provincial and Local Governments shall bear this in mind before drafting employment contracts.?

Dr. Mobashir Hassan v. Federation of Pakistan and others ("NRO case") PLD 2010 SC 1 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 rel.

Nadeem Iqbal Chaudhry for Petitioner.

Naveed Khalil Chaudhry, A.A.-G. for the State.

Ejaz Ahmad Ansari, Amicus Curia.

Date of hearing: 11th December, 2009.

2011 P L C (C.S.) 455

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Malik WAQAS AHMED and another

Versus

GOVERNMENT OF PAKISTAN through Secretary of Ministry for Water and Power and 13 others

Writ Petitions Nos.5801 and 8649 of 2010, heard on 5th May, 2010.

(a)Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Gujranwala Electric Power Company Limited (GEPCO)---Non­-recruitment of petitioner against post advertised by GEPCO---Petitioner for not being recruited would not fall within category of "civil servant"---Such petition was, not barred by Art. 212 of the Constitution.

Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 rel.

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

----Ss. 3, 5, 6 & 8(2)(ii) & (5)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Gujranwala Electric Power Company Limited (GEPCO)---Non-recruitment of petitioners against post advertised by GEPCO despite having high grades in requisite academic qualification---Under Pakistan Water and Power Development Authority Act, 1958, Government or competent authority in order to carry out functions of Federation might frame schemes for a Province or any part thereof providing for generation, transmission and distribution of power---GEPCO was created to perform functions of distributing company in connection with such affairs of Federation---All Directors, Chief Executive and Chairman of GEPCO were nominated by WAPDA/PEPCO and had no discretion to do any act or process or formulate any policy independently without prior approval of PEPCO/WAPDA---Funds were provided to GEPCO by State for carrying on its such functions---Entire system of GEPCO was being run by Federal Government---GEPCO was, amenable to writ jurisdiction of High Court.

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

----Ss. 3, 5, 6 & 8(2)(ii), (5)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Gujranwala Electric Power Company Limited (GEPCO)---Refusal of authority to appoint petitioners against advertised posts despite having high grades in requisite academic qualification, but candidates recommended by Federal Minister of WPADA were appointed in complete disregard to merit policy---Validity---Advertisement restricted posts to candidates belonging to Districts falling within work area of GEPCO and did not extend to whole of Punjab Province---Record showed that out of 437 appointees, 242 belonged to Rawalpindi District not falling within work area of GEPCO---Corrigendum issued by competent authority did not mention extending of invitation of applications to whole of Punjab Province, but only extended date of receiving applications while stating that other terms and conditions would remain same---Authority had not undertaken written test, but had made appointments on basis of recommendation of the Minister---Record produced by authority with much pain and hesitation showed that most of applications of appointed candidates were incomplete and tampered with---Letter of Chief Executive of GEPCO available on record showed that some political forces had transgressed his powers and he did what he was not supposed to do---Authority had no moral and legal jurisdiction to deviate from conditions laid down in its advertisement and departmental recruitment policy---Due process of law , had not been applied in impugned appointments as such no vested right was created therein ---Only candidates having responded to advertisement within prescribed time limit in accordance with advertised requirements would have an equal and fair opportunity to be considered on merits, but not others---High Court accepted constitutional petition by awarding costs of Rs.25,000 to each petitioner while directing authority to re-commence process of appointment in a fair and transparent manner in accordance with law---High Court for hesitation of officials to produce official record, tampering with same and their efforts to defeat ends of justice by concealing facts of case burdened in their personal capacity to pay a further sum of Rs.25,000 as compensatory costs to each of petitioners for mental torture and agony having been suffered by them in such process.

Salahuddin v. Frontier Sugar Mills and Distillary Ltd. PLD 1975 SC 244 and Aitchison College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 ref.

Khurshid Ahmed Naz Faridi v. Bashir and 3 others 1993 SCMR 639; M. Zafar Abbas v. Commissioner and others 1999 PLC 931; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S.) 161 and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.

(d) Civil service---

----Advertisement for a job---Deviation by Appointing Authority from originally advertised conditions of employment --- Scope stated.

The act of placing an advertisement is called "advertising" (a verb).

An advertisement is a promise stating all the rules which the authority undertakes to observe in consideration for giving employment to the most suitable candidate. Ordinarily, there should be no deviation from the said advertisement requirements. However, for the general good and/or to overcome some legal deficiency, if any deviation has to be made from the originally advertised conditions, then such changes should be advertised in the same manner as the original advertisement and also to be notified to each and every applicant, if the process of filling up of the posts has commenced in the meanwhile. This is so, because the authority bringing about the change in the advertised employment conditions has a much more onerous responsibility to discharge once the process of employment has begun and the un­suspecting candidates are drawn into the said process with full vigor and zeal, for some of whom this may be the start of a new phase in life, placing full trust in the appointing authority and the system prevalent in the country, thus, dreaming and planning their future on the basis of their getting through the "advertised" conditions on merits. The superior Courts of the country have always tried to preserve this "trust" of the society in the procedure to be adopted following "promise" made in the course of an advertisement for employment, admission to an institution etc. to avoid any ambiguity, arbitrariness deviation from transparency and transgression from authority. Vested rights accrue to an applicant after the passing of the last date for the submission of documents as stipulated in the advertisement.

Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad and 2 others 1997 PLC (C.S.) 855; Amir Hamza v. Government of Balochistan and others 2005 PLC (C.S.) 1201 and Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056 rel.

(e) Civil service---

----Appointment on a post by competent authority --- Exercise of powers and discretion by such authority --- Principles stated.

The departmental authorities competent to make appointments are expected to exercise their authority and discretion honestly, objectively and in accordance with law without being influenced by any external forces including their superiors.

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

(f) Discretion---

---Exercise of discretion is bound by rules of reasons, which must be guided by law and must not be exercised in an arbitrary or fanciful manner.

Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 SCMR 1747 rel.

Ch. Muhammad Younas for Petitioner (in Writ Petitioner No.5801 of 2010).

Ch. Fiza Ullah for Petitioner (in Writ Petition No.8649 of 2010).

Muhammad Ilyas Khan along with Hashmat Ali Kazmi, H.R. Director GEPCO.

Date of hearing: 5th May, 2010.

2011 P L C (C.S.) 480

[Lahore High Court]

Before Sh. Ahmad Farooq, J

SULTAN AHMAD

Versus

GOVERNMENT OF THE PUNJAB through Secretary Irrigation, Punjab and another

Writ Petition No.8545 of 2010, decided on 22nd November, 2010.

Punjab Civil Service Pension Rules, 1963---

----R. 3.5---Constitution of Pakistan, Art.199---Constitutional petition---Retirement on own request of civil servant---Petitioner who had been retired from his service on his own written option for retirement after completion of 25 years qualifying service for pension purpose, had prayed for passing a direction to the authorities to permit him to continue his service---Petitioner after the retirement was receiving pension from date of his retirement---According to R.3.5 of the Punjab Civil Service Pension Rules, 1963, once an option to retire after 25 years qualifying service was submitted the same would be final, provided that it was withdrawn before its acceptance by the competent authority---Petitioner not only opted to retire on completion of 25 years service, but had also started receiving his pension---Neither any illegality was found in the retirement letter nor any discriminatory treatment had been meted out to the petitioner---Constitutional petition being devoid of any legal force, was dismissed, in circumstances.

Mazhar Hayat for Petitioner.

Jawad Hassan, Addl. A.-G.

2011 P L C (C.S.) 485

[Lahore High Court]

Before Ch. Muhammad Tariq, J

Mst. SUMAIRA NOREEN

Versus

DISTRICT EDUCATION OFFICER (COLLEGES) SIALKOT and 2 others

Writ Petition No.17988 of 2010, decided on 10th November, 2010.

Constitution of Pakistan--

----Art. 199---Constitutional petition---Civil service---Appointment and termination of service---Petitioner who was appointed as `Office Manager', joined her duties and was serving the department, but later on her services were terminated on the ground that she was not eligible for the post on the cut-off date as she was not having 5 years experience---Petitioner had challenged termination order contending that if any illegality was committed by the department itself, same could not turn around/reverse its own order taking benefit of its own illegality---Contention of the petitioner was repelled on the ground that petitioner could not derive any benefit for the reason that at the time of initial appointment petitioner lacked basic qualification/experience---Such was not illegality or irregularity committed by the department as the petitioner herself was not eligible for the post.

Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 rel.

Mahmood Ahmad Qazi for Petitioner.

Rana Shamshad Khan, A.A.-G. with Naseer Ahmad Shah, D.E.O. (Colleges) Sialkot for Respondents.

2011 P L C (C.S.) 524

[Lahore High Court]

Before Sh. Ahmad Farooq, J

Mst. KHURSHID KHATOON

Versus

GOVERNMENT OF THE PUNJAB through Secretary Finance Department

and 2 others

Writ Petition No.21946 of 2010, decided on 20th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Transfer of family pension of deceased employee---Petitioner, who was daughter of deceased employee filed application for transfer of family pension of the deceased---Petitioner had stated in her application that her mother had already died during the life time of her father and she being divorced had been residing with her father---Daughter claimed that as per Pension Rules, she was entitled to the transfer of family pension of her deceased father---Application of the petitioner had been dismissed---Validity---Father of the petitioner was retired in 1976 and died after about 31 years of his retirement in year 2007---Deceased pensioner derived pension benefits for a period spreading over more than 31 years---As per notification No.FD-SR.III-4/1-77, issued by Finance Department, in case of death, within 10 years of retirement, family pension was admissible for the unexpired period of 10 years at 50% of pension-Petitioner, in circumstances was not eligible for the transfer of Family Pension of her deceased father as no period was left un-expired by the deceased---Application for transfer of Family Pension was rightly turned down, in circumstances.

Qaiser Nawaz Khan Niazi for the Petitioner.

Jawad Hassan, Addl.A.-G. with Muhammad Sharif Nadeem, S.O. (SR III), Finance Department, Government of the Punjab for Respondents.

2011 P L C (C.S.) 535

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD AMIN BHATTI

Versus

INSPECTOR-GENERAL OF PUNJAB POLICE

Writ Petition No.4038 of 20b9, decided on 19th March, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---No one had a vested right for promotion on the terms and conditions which existed at the time when the civil servant joined the service---Such terms and conditions could always be varied to maintain efficiency in service---Terms and conditions applicable on the date when civil servant was considered for promotion were relevant and required to be enforced---Even the recommendations for promotion could not be 'sufficient to create a vested right till it was accepted by the competent authority.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Promotion---Implementation of judgment of Service Tribunal---Petitioner had not approached High Court for determination of his right to be considered for promotion or to raise a grievance that he had been unfairly or illegally dealt with in that behalf---In fact, the pith and substance of the grievance of the petitioner was that judgment of the Service Tribunal, which was maintained even by the Supreme Court, was not being enforced or implemented---Service Tribunal, constituted under Art.212 of the Constitution and vested with jurisdiction for determination of the grievance' of the petitioner had determined his grievance by way of judgment sought to be implemented---Final determination of rights of parties to a litigation; would remain unaffected by any change in law, thereafter on the principle that a man was not to be vexed twice for the same cause of action, unless it was ordained in the subsequent litigation in clear and unmistakable terms---Authorities were bound to enforce and implement the judgment of Service Tribunal as maintained by the Supreme Court, without reference to the subsequent rules---Constitutional petition was allowed and High Court directed that the case be placed before the Departmental Promotion Committee, which would decide the matter, strictly in accordance and in the light of the observations/direction of the Service Tribunal made in its judgment sought to be implemented.

Muhammad Ishaque and others v. Government of Punjab through Chief Secretary and others 2005 SCMR 980; Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427; The Chairman, Central Board of Revenue and another v. Muhammad Malook and 11 others 1999 SCMR 1540; Government of N.-W.F.P., Health and Social Welfare Department through Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607; John Lemm v. Thomas Alexander Mitchell (6) 1912 AC 400 and Commissioner of Sales Tax (West), Karachi v. Messrs Kruddson Ltd. PLD 1974 SC 180 ref.

Nadeem Shibli for Petitioner.

Faisal Zaman, Additional Advocate-General.

2011 PLC (C.S.) 580

[Lahore High Court]

Before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ

ADDITIONAL ACCOUNTANT-GENERAL PAKISTAN REVENUE, LAHORE

Versus

A.A. ZUBERI

Intra-Court Appeals Nos.118 and 215 of 2009 in Writ Petition No.2147 of 2009, decided on 16th June, 2010.

(a) Civil service---

----Pension---Import, object and scope---Pension is a post retirement benefit of a civil servant which is earned by a civil servant by giving the best years of his life in the service of his country---Such post-retirement monetary allowance is geared to comfort and protect a civil servant in post retirement days when he ordinarily has no other source of income, is infirm and of -old age---Pension is, therefore, very life-line of a civil servant in post-retirement days and, therefore, an integral part of his levelihood and more dearer than salary received during his service---Pension cannot be a static amount as it has to provide for rising cost of living and escalating inflation which retired civil servant has to face and survive in---Like 'salary, pension is a real time concept.

D.S. Nakara v. Union of India AIR 1983 SC 130 and Smt. Poonamal v. Union of AIR 1985 SC 1196 rel.

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

----S. 19---Pension Rules, 1969, Rr.3.29 & 9.1(vii)---Constitution of Pakistan, Arts.2-A, 9 & 25---Law Reforms Ordinance (XII of 1972), S.3-Intro-court appeal---Pension benefits---Restoration of full pension---Quantum---Respondents were retired civil servants who got their 50% pension commuted and after lapse of 15 years their full pension was restored---Grievance of authorities was that the restored pension to retired civil servant should be that which was payable at the time of commutation and not the current amount of pension which was inclusive of all increments---Validity---When pension stood restored at the and of commutation period, retired civil servants were once again entitled to 100% pension as it stood on that day---Best index to gauge pension due on the date of restoration was the amount of 50% pension which was being received monthly by retired civil servants and the pension due would be double the amount being received---High Court found it preposterous to imagine that a civil servant was given pension in year, 2008 which he was entitled to draw in. year, 1993 (15 years ago)---Such action would offend the right to livelihood of retired civil servants. guaranteed under Art.9 of the Constitution---Payment of such amount as pension would fail to meet the test of economic justice which was also an integral part of right to life as provided in the preamble and Objectives Resolution of the Constitution---Depriving a civil servant of his lawful pension was also discriminatory when compared to equally placed retired civil servants, who were drawing the current rate of pension, as the same would offend Art.25 of the Constitution---No civilized system could provide for such an unreasonable and uneconomic post-retirement benefit to their employees who had given their golden years for public service of their country---Restoration of pension under R.3.29 of Pension Rules, 1969, meant the pension due to a retired civil servant in that year inclusive of all increments till that time (i.e. accumulated over the last 15 years)---Restored pension would simply be double the amount of 50% pension which the retired civil servants were already drawing---Intro-court appeal was dismissed accordingly.

Black's Law Dictionary and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Muhammad Ashraf Khan, D.A.-G. for Appellant.

Syed Abrar Hussain Naqvi for Respondents.

Dates of hearing: 15th and 16th June, 2010.

2011 P L C (C.S.) 592

[Lahore High Court]

Before Iqbal Hameed-ur-Rahman, J

SAJIDA ABDULLAH (ESE TEACHER)

Versus

DISTRICT COORDINATION OFFICER and 2 others

Writ Petition No.20538 of 2009, decided on 1st March, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Transfer---Petitioner who was posted in school at place 'D', by way of mutual transfer, was transferred and posted in school at place `S'---Petitioner joined her new place of posting, but just after thirteen days her transfer order was cancelled and she was transferred to another place vide impugned order---Petitioner had alleged that mutual transfer order had been cancelled without giving any cogent reason and that impugned order had not been passed on administrative grounds, but on the political pressure of local M.P.A.---Through the impugned order, not only the basic/fundamental rights of the petitioners had been usurped but same was also against the spirit of Wedlock Policy introduced by the Government---Validity---Impugned order having malafidely and illegally been passed in contravention of basic law and the Policy declared by the Government, constitutional petition filed against said order was maintainable before the High Court---If one spouse in one Government Department was posted at one city and the other spouse was posted at a different city, was definitely going to cause mental distress to both of then, with the consequences which were not only injurious to them, but to the public and Government exchequer as well---Contention of counsel for the petitioner that Impugned order had been passed due to political pressure of the local M.P.A., was fortified as same had been issued in sheer violation of the Wedlock Policy and that too without giving any cogent reasons---Impugned order was set aside, in circumstances.

PLD 1995 SC 530 and Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab, Livestock and Dairy Development Department, Lahore and 4 others 2003 PLC (C.S.) 1322 ref.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Wherever fundamental rights of any citizen were infringed, extraordinary constitutional jurisdiction of the High Court under Art.199 of Constitution of Pakistan, would come in to play.

Muhammad Iqbal Mohal for Petitioner.

Muhammad Azeem Malik, Addl. A.-G. Punjab.

Rai Wali Muhammad for Respondent No.3.

Muhammad Iqbal Gondal, Deputy District Education Officer, Office of Executive District Officer (Education), Sialkot.

2011 P L C (C.S.) 608

[Lahore High Court]

Before Mamoon Rashid Sheikh, J

IMRAN AHMAD KHILJI

Versus

FEDERATION OF PAKISTAN and 2 others

Writ Petition No.2730 of 2010, heard on 9th December, 2010.

Accommodation Allocation Rules, 2002---

---Rr. 6, 7, 15(2) & 29-A---Constitution of Pakistan, Art.199---Constitutional petition---Accommodation, possession of---Petitioner assailed retention of official accommodation by respondent beyond six months of his retirement---Validity---Entitlement to retain official accommodation could be availed by a Federal Government Servant once only--High Court declared that order of retention of official residence in question by respondent was illegal and without lawful authority and directed the authorities to deliver vacant possession of official residence in question to the petitioner---Petition was allowed.

I.C.A. No.149 of 2009 in Writ Petition No.1067 of 2009 rel.

Muhammad Nazir Jawad for Petitioner.

Shabbir Mahmood Malik, Standing Counsel for Federation.

Muhammad Ashraf, Joint Estate Officer, Estate Office, Islamabad.

Date of hearing: 9th December, 2010.

2011 PLC (C.S.) 620

[Lahore High Court]

Before Sh. Ahmad Farooq, J

Mrs. RUBINA ANJUM

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Chairman and 5 others

Writ Petition No.23467 of 2010, decided on 4th November, 2010.

Punjab Public Service Commission (Functions) Rules, 1978---

----R. 3---Constitution of Pakistan, Art. I99---Constitutional petition---Vacant post advertised by Punjab Public Service Commission---Photo copy of petitioner's application for such post reached Commission a day after closing date announced for receiving applications---Rejection of application for being time barred---Rejection of petitioner's representation by Public Service Commission on grounds that application was time-barred and that photocopy of application form was not acceptable under the rules---Validity---Petitioner's application had not reached till closing date, thus, same could not be entertained as per Rules and Regulations of the Commission---High Court dismissed constitutional petition in circumstances.

S. Pervaiz Akhtar for Petitioner.

Mian Ghulam Shabbir Thaheem, Law Officer for Respondents Nos.1 to 4.

Jawad Hassan, Addl. A.-G.

2011 P L C (C.S.) 668

[Lahore High Court], Before Sh. Ahmad Farooq, J

IBADULLAH

Versus

FINANCE SECRETARY, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT, LAHORE and 2 others

Writ Petition No.9979 of 2010, decided on 20th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioner who had retired in year 1987, applied to the authorities for grant of one increment from date of his retirement relying upon notification dated 3-1-2002---Petitioner was not entitled to required increment as there was a cut off date i.e. 1-6-2000; and said notification had no retrospective effect---Said notification specifically mentioned that any claim of pension/commutation pertaining to a period prior to that date, would not be entertained---Constitutional petition was dismissed.

Adnan Tariq Khan for Petitioner.

Jawad Hassan Khan Addl. A.-G. with Tariq Mahmood Mirza Deputy Secretary, Finance Department, Government of the Punjab for Respondents.

2011 P L C (C.S.) 716

[Lahore High Court]

Before Sh. Ahmad Farooq, J

AHMAD JAMAL SIDDIQUI

Versus

FAISAL IJAZ KHAN and 2 others

Writ Petition No.24641 of 2010, decided on 28th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Transfer---

Petitioner had challenged his transfer order by filing a representation before the authorities which had been decided after giving him an opportunity of being heard---Petitioner having already availed the remedy against the impugned transfer order and a fresh order had been passed, constitutional petition had become infructuous---Even otherwise, constitutional petition was not maintainable for the reason that there were no statutory rules for governing the terms and conditions of service of employees---In absence of statutory rules, any order passed by the authority could not be termed as a violation, amenable to the constitutional jurisdiction of High Court.

Executive Council, Allama Iqbal Open University, Islamabad v. M. Tufail Hashmi 2010 SCMR 1484 and Pakistan International Airline Corporation and others v. Tanvweer-ur-Rehman and others PLD 2010 SC 676 ref.

Pir S.A. Rashid for Petitioner.

Jawad Hassan, Addl. A.-G. for Respondents.

2011 P L C (C.S.) 732

[Lahore High Court]

Before Muhammad Qasim Khan, J

Mst. YASMEEN BEGUM

Versus

TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY, GOVERNMENT OF PUNJAB through Chairman TEVTA and 3 others

Writ Petitions Nos.510 of 2006/BWP, 3125 and 1564 of 2006 decided on 26th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioners in response to an advertisement for recruitment against vacant seats of different categories, submitted their candidatures and after going through the entire recruitment process, were appointed---Pursuant to their respective appointment letters they joined their places of postings---Subsequently Authority issued letter directing to advertise said posts---Said letter had been impugned through constitutional petition on the ground that petitioners had fulfilled the requisite criteria, and after going through the entire recruitment process, they were validly issued appointment letters and that they apprehended that they would be thrown out of their jobs without assigning any reason, whereas they were protected by the principle of locus poenitentiae---Petitioners had further alleged that impugned action of the authorities was also violative of principle of audi alteram partem---Representative of the respondent department, in clear terms stated that department would be ready to proceed against the petitioners afresh by adopting all the legal formalities---Impugned action having been taken by the department without issuing any show-cause notice to the petitioners, nor they had been given opportunity of hearing, same being violative of principle of audi alteram partem, impugned letter to the extent of the petitioners was set aside, in circumstances.

Shamshair Iqbal Chughtai and Syed Masood Ahmad Gillani for Petitioner.

Malik Muhammad Mumtaz Akhtar, Additional Advocate-General with Zafar Hayat, Assistant Manager (Legal) TEVTA, Bahawalpur.

2011 P L C (C.S.) 735

[Lahore High Court]

Before Ijaz Ahmed Chaudary, C.J., Sh. Azmat Saeed, Ch. Iftikhar Hussain, Iqbal Hameed ur Rehman and Umer Ata Bandial, JJ

AURANGZEB SHAAFI BURKI---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and 5 others---Respondents

Writ Petition No.18024 of 2008, heard on 29th September, 2010.

(a) Constitution of Pakistan---

----Art. 105---Governor to act on advice---Scope---In performance of his functions, governor is bound by advice of Chief Minister and is enjoined to act in consonance therewith---Governor, at the best, may ask Chief Minister to reconsider the matter.

Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 979 rel.

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

----S. 3(4)---Constitution of Pakistan, Arts.101, 104, 105 & 199---Constitutional petition---Chairman Punjab Service Tribunal, appointment of---Acting Governor---Jurisdiction---Advice of Chief Minister---Scope---Acting Governor appointed Chairman Punjab Service Tribunal on the advice of Chief Minister---Contention of petitioner was that Acting Governor was only authorized to perform day to day ,functions and was not vested with jurisdiction or authority to make/take any decision on any policy matter or to make any appointment including that of Chairman Service Tribunal---Validity---Chairman of Punjab Service Tribunal was to be appointed by Governor in terms of S.3(4) of Punjab Service Tribunals Act, 1974---Such act of appointment was a function of the office of Governor, for which purpose, he was bound by advice of Chief Minister---It was the sole prerogative, discretion and authority of Chief Minister to take decision for selection and appointment of Chairman of Punjab Service Tribunal and to communicate his decision to Governor by way of an Advice' in terms of Art. 105 of the Constitution---SuchAdvice' of Chief Minister was binding on Governor who was not permitted in law either to reject the `Advice' or to substitute his own finding in lieu thereof---No decision was to be taken by Governor for selection and appointment of an incumbent to the office of Chairman Punjab Service Tribunal---Mere formal act for giving effect to decision of Chief Minister was to be performed by Governor at the best after seeking reconsideration---In view of Art.105 of the Constitution, no decision was required to be taken by Governor regarding selection and appointment of Chairman Punjab Service Tribunal and merely formality of giving effect to the decision of Chief Minister was required of him---Governor might remit the advice for reconsideration but at the end of the day, decision of Chief Minister was to prevail---Such function could always be performed by Acting Governor---To interpret the provisions differently would nullify the very concept of appointment of Acting Governor to carry out day to day functions and would result in total paralysis of Provincial Government in case of temporary absence of Governor, which could never be the intention of law maker---Chairman of Punjab Service Tribunal was validly appointed and notification issued by Acting Governor was free from any legal or constitutional infirmity and the same was validly issued---Petition was dismissed in circumstances.

Al-Jehad-Trust through Raeesul Mujahideen Habib-ul-Wahab-b­ul-Kheri and others v. Federation of Pakistan and others PLD 1996 SC 324; Sindh High Court Bar Association v. Federation of Pakistan; PLD 2009 SC 879; Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan 1997 MLD 3167 Ali Raza Asad Abidi v. Justice Muhammad Ilyas 1995 MLD 2022; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Government of Sindh v. Hasina 1979 SCMR 17; Zafar Ali Shah v. Federal Government of Pakistan 1994 CLC 5; Dr.Azim-ur- Rahman Khan Meo v. Government of Sindh 2004 SCMR 1299; Dr.Kamal Hussain v. Muhammad Siraj-ul-Islam PLD 1969 SC 42; Ghulam Ali Shah v. Election Commission of Pakistan 2008 CLC 738; M.Liaqat Munir Rao v. Shamas-ud-Din 2004 PLC (CS) 1328; The Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Jan Muhammad and others v. Government of N.-W.F.P. 1993 CLC 1067 and Arun Kumar v. Union of India and others AIR 1982 Rajasthan 67 rel.

(c) Constitution of Pakistan---

----Arts. 104, 105 & 199---Constitutional petition---Maintainability---Governor and Acting Governor, working of---Scope---Constitutional issues were raised, therefore, High Court considered it appropriate to decide the petition on merits, though maintainability of petition was not free from doubt.

Ch. Fawad Hussin and Asif Ismail for Petitioners.

Abid Hassan Minto for Respondents Nos. 1 to 3.

Malik Muhammad Awais Khalid for Respondent No.5.

Syed Najam ul Hassan Kazmi for Respondent No.6.

Date of hearing: 29th September, 2010.

2011 P L C (C.S.) 754

[Lahore High Court]

Before Asad Munir, J

GUL MUHAMMAD and others

Versus

SECRETARY EDUCATION and others

Writ Petition No.26151 of 2010, decided on 24th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition-Civil service---Transfer---Grievance of the petitioners' was that being Science teachers, they could not be transferred as there was no vacancy for Science teachers where they could be adjusted---Assistant Advocate-General in his report had submitted that a Science teacher, duly qualified could easily teach Arts subjects as against an Arts teacher who was not qualified to teach Science subjects--Order of District Education Officer had revealed that only one vacancy of Science teacher was available, while six vacancies were for Arts teachers existed---Assistant Advocate-General under instructions undertook that as soon as vacancies for Science teachers would become available, petitioners would be accommodated---Petitioners and their counsel had expressed no opposition and they appeared to be satisfied---Petition was disposed of in terms of statement made by A.A.-G.

Ch. Qamar-uz-Zaman Tarar for Petitioners.

Kaleem Ilyas, A.A.-G. with Shahid Ali Shah, Litigation Officer, Office of E.D.O. (Edu)., Pakpattan for Respondents.

2011 P L C (C.S.) 759

[Lahore High Court]

Before Sh. Ahmad Farooq, J

MUHAMMAD SOHAIL AKHTAR

Versus

INSPECTOR-GENERAL OF POLICE; PUNJAB LAHORE and another

Writ Petition No.23266 of 2010, decided on 11th April, 2011.

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

----S. 8---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion---Grievance of the petitioner was that number of Police Officers, who were junior to him had been promoted to the rank of Inspector, but his case, despite being at par with them had not been considered for promotion---Batchmates of the petitioner had qualified the "upper class course" much earlier to the petitioner and they were confirmed to the rank of Sub-Inspector and promoted to the post of Inspector in due course---On the other hand petitioner qualified said course late---Case of the petitioner would be considered for promotion as and when the vacancy in the rank of Inspector would become available---Qualifying "upper class course" was the pre-condition for making a candidate eligible for admission in the list "F" for promotion to the rank of Inspector---Petitioner could not qualify the said course in the first attempt and was able to qualify the same late much after his Batchmates--Petitioner could not be considered at par with those, who had qualified the said course and confirmed as Sub-Inspector, much before him---Departmental Promotion Committee had the prerogative to adjudicate the fitness or otherwise of the petitioner for promotion and he had to undergo that process---High Court, in exercise of its constitutional jurisdiction, could not allow promotion to the petitioner while dispensing with such process, which would amount to putting a clog on the lawful authority of the respondents---Even otherwise, the matter in dispute related to the terms and conditions of a civil servant and jurisdiction of High Court in such like matters, was completely ousted by the bar contained in Art.212 of the Constitution---Adjudication of such matters would come within the exclusive competency of the Punjab Service Tribunal--Interference was declined.

Muhammad Asif Chattha for Petitioner.

Jawad Hassan, Addl. A.-G. with Muhammad Shafique Gujjar, DSP (Legal), I.-G. Office, Lahore for Respondents.

2011 P L C (C.S.) 768

[Lahore High Court]

Before Ch. Muhammad Tariq and Syed Akhlaq Ahmad, JJ

GOVERNMENT OF THE PUNAB through Secretary Special Education and others

Versus

Syed GHULAM ABBAS BUKHARI and others

I.C.As. Nos.117 and 118 of 2008 in Writ Petitions Nos.4455 and 9362 of 2006, heard on 16th November, 2010.

Limitation Act (IX of 1908)---

----S. 5---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Provincial Government allowed special allowance to the staff of Special Education Institutions but withdrew the same from the employees of the Directorate of Special Education on the ground that the staff of the Directorate did not fall within the definition of 'institution'---Single Judge, High Court set aside the order of withdrawal---Contention of employees was that appeal of the authorities was time-barred and appellants had not filed application under S.5 of the Limitation Act, 1908 for condonation of delay---Validity---Not only the teaching staff but all other members associated with the department also fell within the definition of "institution "---Employees were entitled to receive the benefit in accordance with the order of the Provincial Government---Depriving the employees who were serving in the same department of the benefit/allowance was glaring discrimination---Secretary/Deputy Secretary could not revoke/withdraw any order passed by the Governor---Period of filing intra-court appeal was 20 days whereas appeal was filed after 25 days---Authorities having failed to file any application under S.5 of the Limitation Act, 1908, delay could not be condoned---Appeal was dismissed on merit as well as on the ground of limitation.

Oxford Dictionary ref.

Rana Shamshad Khan, Assistant A.-G.P. with Asif Munir, Law Officer, Special Education Department for Appellants.

Ms. Aaliya Neelum for Respondents.

Date of hearing: 16th November, 2010.

JUUDGMENT

CH. MUHAMMAD TAR1Q, J.--- This single judgment shall dispose of ICA No.117 of 2008 and ICA No.118 of 2008 as both these appeals arise out of the one and the same order dated 2-4-2008 passed by the learned Single Judge of this Court in Writ Petitions Nos.4455 of 2006 and 9362 of 2006.

1. Brief facts of the case are that the respondents are employees of Special Education Department who were granted special allowance vide order dated 1-2-2005 on the same lines as the teaching staff of the Special Education Department was benefited vide order dated 21-2-2004. The respondents started receiving the said allowance till 24-4-2006 when the payment of said allowance was stopped and the already paid allowance to the respondents was ordered to be recovered declaring it unauthorized withdrawal by the respondents on the ground that the staff of Special Education Directorate/Department does not fall within the definition of "institution". The respondents filed Writ Petitions Nos.4455 of 2006 and 9362 of 2006 challenging the legality of order dated 24-4-2006. The learned Single Judge vide order dated 2-4-2008 accepted the writ petitions and set aside the letter/order dated 24-4-2006 declaring it as without lawful authority. Hence these ICAs. '

2. Learned Assistant Advocate-General Punjab assisted by learned Law Officer of Special Education Department has mainly contended that the special allowance granted vide letters dated 21-2-2004 and dated 1-2-2005 is meant only for the teaching and non- teaching staff of the special education institutions while DEO's and the staff of Directorate of Special Education do not fall within the definition of "institution", therefore, the order dated 2-4-2008 passed by the learned Single Judge be set aside and the Writ Petitions Nos.4455 of 2006 and 9362 of 2006 filed by the respondents be dismissed.

3. Conversely, learned counsel for the respondents has vehemently opposed the instant ICAs on the ground that the ICAs are not competent being time barred while the appellants have not filed application under section 5 of the Limitation Act for the condonation of delay, without which the delay cannot be condoned. Learned counsel argues that the order passed by the Government of Punjab for withdrawal of the special allowance to the respondents is without lawful authority and ineffective on the rights of the respondents which has rightly been set aside by the learned Single Judge, therefore, the ICAs be dismissed with costs.

4. We have heard the arguments advanced by learned counsel for the parties and have also perused the record to the extent available on file with their able assistance.

5. The order dated 21-2-2004 whereby the special allowance was allowed to the staff of Special Education Institutions is reproduced as under: --

"No.SO(B&D)10-2/2004.--- Governor of the Punjab is pleased to. accord sanction for grant of 'Special Allowance' to the teaching staff of Special Education Institutions in Punjab equivalent to the initial of the Pay Scale in which the incumbent is drawing salary w.e.f. 1-1-2004."

1. Vide Order No.SO(B&D)10-2/2004 dated 1-2-2005, the Governor of the Punjab accorded sanction for the grant of special allowance to the non- teaching staff of institutions of Special Education in Punjab equivalent to the initial of Pay Scale in which the incumbent is drawing salary w.e.f. 7-9-2004. The Order was subject to certain conditions which are reproduced as under:--

(a) The special allowance allowed to non-teaching staff of Special Education institutions is taxable.

(b) It would not be counted/included towards the pension emoluments.

(c) It will not be admissible during L.P.R.

(d) It will be paid on monthly basis.

(e) It will not be counted towards recovery of House Rent."

1. Thereafter, the respondents started drawing the said special allowance till 24-4-2006 When all of sudden, the payment of special allowance was stopped on the ground that the special allowance to non-teaching staff of Directorate of Special Education Punjab and Special Education Department has not been recommended by the Finance Department because the non-teaching staff of Directorate does not fall within the definition of "institution".

2. To decide the fate of this case, we first go through the definition of "institution". The definition of "institution" provided in Oxford Dictionary is reproduced as under:--

"institution.--- n. 1 the act or an instance of instituting. 2a a society or organization founded esp. for charitable, religious, educational, or social purposes. b a building used by an institution. 3 an established law, practice, or custom. 4 colloq. (of a person, a custom, etc.) a familiar object. 5 the establishment of a cleric etc. in a church."

1. It is clear from the above definition of "institution" that it is not only the teaching staff but also all other members associated with the department fall within the definition of "institution". As such, the respondents are entitled to receive benefits in accordance with the orders dated 21-2-2004 and 1-2-2005 issued by the Governor of the Punjab. Even otherwise, it is a glaring discrimination with the employees who are serving in the same department but are deprived of the said allowance.

2. The other important factor under consideration is that whether the benefit granted by the Governor of the Punjab could be recalled through an order passed by a Secretary or Deputy Secretary on the pretext of non- approval of the summary by the Chief Minister. This view of the matter is not sustainable in the eye of law and is liable to be set aside because a Secretary/Deputy Secretary cannot revoke/withdraw any order passed by the Governor of the Province.

2011 PLC (C.S.) 771

[Lahore High Court]

Before Shaukat Umar Pirzada, J

ABDUL HAMID KHALID and another

Versus

GOVERNMENT OF PUNJAB through Secretary Education (Schools), Lahore and 4 others

Writ Petition No.3240 of 2010, heard on 14th December, 2010.

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

----R. 3(v)---General Recruitment Policy, 2004, Paras.1 & 17---Contract Recruitment Policy, 2009, Pars1---Constitution of Pakistan, Art.199---Constitutional petition---Petitioners' applications for the posts of Senior Elementary School Teachers were rejected on ground of being over-aged---Petitioners contended that no age-limit for in-service candidates was prescribed in the proclamation---Authorities contended that alternate remedy was available to petitioners under Para.17 of the General Recruitment Policy, 2004 in the shape of the Recruit Complaints Redressal Cell---Validity---Proclamation in question did not provide for any relaxation in age-limit---General Recruitment Policy, 2004 had provided forum to the aggrieved persons in the shape of Recruitment Complaint Redressal Cell before which petitioners could raise their grievances---Petition was sent to Recruitment Complaints Redressal Cell by High Court with direction to decide the same in six weeks in accordance with law after providing opportunity of hearing to all the concerned---Constitutional petition was disposed of accordingly.

I.C.A. No. 68 of 2005 rel.

Muhammad Zafar Khan Sial for Petitioners.

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

Date of hearing: 14th December, 2010.

2011 P L C (C.S.) 782

[Lahore High Court]

Before Sh. Ahmad Farooq, J

ABDUL GHAFOOR and 3 others

Versus

GOVERNMENT OF THE PUNJAB and 6 others

Writ Petition No.11944 of 2010, heard on 13th December, 2010.

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

----Ss. 3 & 5---Punjab Civil Servants Act (XIII of 1974), S.9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Transfer of civil servant---Transfer of petitioners by competent authority, could not be declared to be without jurisdiction/authority---Not only the petitioners in the present case, were transferred on administrative grounds, but also enquiries were pending against them---Petitioners who had joined their new place of postings in compliance with impugned order had also been found guilty during two successive enquiries---During pendency of constitutional petition, inquiry was conducted by a Committee, comprising of four officers, wherein the allegation against the petitioners were found to be correct---Factual controversy regarding the correctness or otherwise of the allegations, levelled against the petitioners, could not be resolved by High Court in exercise of its constitutional jurisdiction---Transfer and posting was an integral part of the terms and conditions of service of a civil servant, which fell within the exclusive jurisdiction of Service Tribunal---Jurisdiction of High Court was ousted under Art.212 of the Constitution---Constitutional petition being not maintainable, was dismissed.

Ch. Ehsan Ullah Dhariwal for Petitioner.

Jawad Hassan, Addl. A-G., Punjab with Muzaffar-ul-Haq, Litigation Officer in the office of EDO (Education), Faisalabad for Respondents.

Mian Liaqat Ali, Advocate.

Date of hearing: 13th December, 2010.

2011 PLC (C.S.) 799

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

ASHFAQ HUSSAIN

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.8738 of 2009, decided on 28th February, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Contract employment---Termination of service---Principle---Petitioner was re-employed by Provincial Government on contract basis but terms and conditions of his service were never settled---Grievance of petitioner was that his service could not be terminated against one month's pay in lieu of notice---Validity---Terms and conditions of contractual re-employment of petitioner were never settled since notification of re-employment, therefore, one month's pay in lieu of notice was never a condition settled between the parties---In absence of the same, such clause could not be pulled out of the bag at the last minute and slapped on the petitioner, depriving him of his right to due process---High Court set aside the notification of termination of service of petitioner and allowed the authorities to deal with the case of petitioner in accordance with law and in accordance with the principles settled in judgments passed by superior courts---Petition was allowed accordingly.

(b) Constitution of Pakistan---

----Arts. 4, 9 & 10-A---Rule of law---Scope---Rule of law and due process are fundamental to any civilized system of governance and moreso in a democratic welfare State like Pakistan.

Naubahar Ali v. Vice-Chancellor and others 2010 PLC (C.S.)783; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266; Muhammad Saeed and 2 others v. Executive District Officer (Agriculture) Khanewal and another 2010 PLC (C.S.) 961 and New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan Karachi PLD 1999 SC 1126 rel.

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

----S. 24-A---Speaking order---Purpose, object and scope---Requirement of furnishing reasons ensures transparency and accountability of public institutions and makes them stronger---Unreasoned orders generate corruption and weaken institutions and slowly eat into the foundations of a healthy democracy---Government cannot make policy and issue notifications which flout fundamental rights of citizens---Every policy, every action, every step taken by government must be well thought out and within the Constitutional framework---Best way to achieve good governance by Provincial Government and public institutions is to furnish reasons and pass speaking orders.

Messrs Airport Support Service v. The Airport Manager, Quaid-­e-Azam International Airport, Karachi and others 1998 SCMR 2268; Liaqat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Chairman/Managing Director; Pakistan International Airlines Corporation and another v. Nisar Ahmed Bhutto 2005 SCMR 57 rel.

Muhammad Umar Riaz for Petitioner.

Khawaja Salman Mahmood, Asstt. A.-G. and Irshad Ali, Law Officer for Respondents.

2011 P L C (C.S.) 803

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

NAWEED AKHTAR CHEEMA

Versus

CHAIRPERSON, TEVETA and others

Writ Petition No.19344 of 2010, decided on 7th February, 2011.

Punjab Technical Education and Vocational Training Authority Act (X of 2010)---

----S. 13---Punjab Employees, Efficiency, Discipline and Accountability Act (XII of 2006), S.5---Constitution of Pakistan, Art.199---Constitutional petition--- 'Aggrieved person'---Contract employment---Show-cause notice---Petitioner was contract employee under Provincial Government who assailed show-cause notice issued to him by the authorities--Validity---Show-cause notice had furnished reasons and provided sufficient ground for initiating proceedings against petitioner under S.5(1)(a) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, and the same was issued by competent authority---In absence of any jurisdictional defect or illegality, mere issuance of a show-cause notice did not give rise to any grievance or qualified the petitioner to be an "aggrieved person "---Show-cause notice on its own was not an adverse order and, therefore, could not generate any cause of action or equip the petitioner with the status of an "aggrieved person" to maintain a petition under Art.199 of the Constitution---Issuance of show-cause notice did not mean that the case would be invariably decided against petitioner and there was always a possibility that the same might be decided in favour of petitioner---Laying challenge to a show-cause notice was, therefore,. no different than filing a petition on the basis of apprehension or speculation---Such petition was premature and not ripe for adjudication--Interference at the stage of issuance of show-cause notice would stultify and retard inquiry process provided under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---As such the same would unduly stall investigative machinery of quasi judicial authorities and hamper discharge of their statutory duties which were to be done with a free hand independent from outside control---Petitioner had an opportunity to place his case before the Authority concerned and there were elaborate procedures by way of appeal or revision against order passed in such proceedings---Relationship of petitioner was contractual in nature and was not governed by any statutory rules of service, therefore, the same would be governed by the principle of "master and servant" for which remedy was before Civil Court of competent jurisdiction and not under Constitutional jurisdiction of High Court---High Court declined to interfere in the proceeding initiated by the Authorities against petitioner by issuing show-cause notice---Petition was dismissed in circumstances.?

Rogers, Healy, Krotoszynski, Administrative Law, Wolters Kluwer, 2008 (page 686); Asma Jilani's case PLD 1972 SC 139; Justice (R.) Fazal Karim, Judicial Review of Public Actions, Pakistan Law House 2006 (page 981); The Province of East Pakistan and others v. M.D. Mehdi Ali Khan PLD 1959 SC (Pak) 387; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; Union of India and another v. Kunisetty Satyanarayana AIR 2007 SC 906; Special Director and another v. Mohd. Ghulam Ghouse and another AIR 2004. SC 1467; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others AIR 1996 SC 691; State of Uttar Pradesh v. Shri Brahm Datt. Sharma and another AIR 1987 SC 943; Chief of the Army Staff and others v. Major Dharam Pal Kukrety AIR 1985 SC 703; Chanan Singh v. Registrar, Co-op. Societies, Punjab and others AIR 1976 SC 1821; Zeal Pak Industries (Pvt.) Ltd., Karachi v. Regional Commissioner, Income Tax, Karachi and 2 others 2009 PTD 712, Mehboob Ali Malik v. The Province of West Pakistan and another PLD 1963 Lah. , 575; Shaheen Asad, Assistant Manager Finance/Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad v. Azfar Yaseen, Assistant Manager, Finance and Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad 2001 PLC (C.S.) 93; Dilshad Kausar v. Azad Jammu and Kashmir Government (Prime Minister) through Chief Secretary and 2 others 2005 PLC (C.S.) 1048; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Asmat Kamal Khan for Petitioner.

Ijaz Ahmed Awan, Nauman Mushtaq Awan, Azeem Abbas Kazmi and Ms. Komal Malik Awan for Respondents.

2011 P L C (C.S.) 868

[Lahore High Court]

Before Tariq Javaid, J

Mst. MEHNAZ GULL

Versus

GOVERNMENT OF THE PUNJAB

Writ Petition No.1568 of 2010, decided on 27th April, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had challenged the refusal of her appointment for the post of Family Welfare Worker, on the ground that she had experience of more than three years in working as Incharge Family Welfare Worker Centre and as such was entitled to the appointment whereas respondents did not have any experience and further that the vacancies were also available but the authorities had refused to issue appointment order in her favour---Respondents had no special qualification, yet they had been given higher marks during their interview; such was inconceivable that only selected candidates were entitled to higher marks; however, one of the selected candidates did not appear in the list and yet had been appointed---Petitioner had been satisfactorily working as Incharge of Family Welfare Worker for more than three years and had experience of service; therefore, deserved better treatment by members of the Selection Committee---List of merit and interview prepared by the authorities showed mala fide on the part of the Selection Committee---High Court allowed constitutional petition with direction to the Authorities to appoint petitioner against one of the vacant posts and further warned the Selection Committee to be careful in future and grant marks to the candidates fairly and equitably---Constitutional petition was allowed.

Tahir Mehmood and Muhammad Sarwar Awan for Petitioner.

Mubashar Latif, A.A.-G. along with Syed Sajjad Akbar, District Population Officer and Zeshan Nasir, Deputy District Population Officer, Multan with record for Respondent.

2011 P L C (C.S.) 884

[Lahore High Court]

Before Asad Munir, J

MUHAMMAD TARIQ SAEED and 2 others

Versus

GOVERNMENT OF THE PUNJAB through Secretary Forest, Wildlife and Fisheries Department and 2 others

Writ Petition No.21179 of 2010, decided on 24th December, 2010.

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

----S. 13 (5) & (6)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Departmental proceedings---Competent authority---Options---De novo inquiry---Principle---Service Tribunal, jurisdiction of---Petitioners were employees of Punjab Government and their grievance was that once they had been exonerated by competent authority, no de novo inquiry could be ordered---Validity---Upon receipt of inquiry report, three options or courses were open to competent authority, who. could either exonerate the accused or punish them or order a de novo inquiry, if it was satisfied that inquiry proceedings were not conducted lawfully or on merits---Competent authority could not exercise more than one option and could not order de novo inquiry once it had exercised option of exonerating accused official---Petitioners were duly exonerated by competent authority under section 13(5) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, no fresh inquiry or de novo inquiry was called for or could be held under section 13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Grievance of petitioners could not be made subject matter of appeal before Service Tribunal who had no jurisdiction to remedy the wrong done to petitioners---Order for holding de novo inquiry against petitioners was unwarranted and unlawful and bar of Art. 212 (2) of the Constitution did not come in the way of High Court to exercise its jurisdiction under Art, 199 of the Constitution---High Court declared the order passed by competent authority for holding de novo inquiry as illegal and without lawful authority---Petition was allowed in circumstances.

Muhammad Khaliq v. Board of Intermediate and Secondary Education, Lahore 2000 PLC (C.S.) 1373 and Director-General (Field), Agricultural Department, Lahore v. Haji Abdul Rehman 1989 SCMR 1224 ref.

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

----S.4---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Interim order---Service Tribunal, jurisdiction of---Scope---Any order being not final is not appealable before Service Tribunal---Jurisdiction of Service Tribunal under S.4 of Punjab Service Tribunals Act, 1974, is limited to appeals against final orders passed by departmental authority.

Sayyed Saeed Hussain Shah v. Province of Punjab 1981 PLC 297 and Muhammad Yar Buttar v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 SCMR 819 rel.

Khalid Mian for Petitioner.

Kaleem Ilyas, A.A.-G. and Asamat Ullah, Law Officer for Respondents.

2011 PLC (C.S.) 897

[Lahore High Court]

Before Tariq Javaid, J

Mst. BILQEES AKHTAR

Versus

GOVERNMENT 'OF PUNJAB

Writ Petition No.17003 of 2004, decided on 12th November, 2010.

Punjab Government Servants Benevolent Fund, (Disbursement) Rules, 1965---

----Part I, R. 10---Constitution of Pakistan, Art 199--Constitutional petition---Payments being received by petitioner out of Benevolent Fund were stopped---Authorities restored/resumed payment to petitioner on the orders of Provincial Ombudsman but arrears accumulated during stoppage were not paid to her---Validity---Additional Chief Secretary, under R.10 of the Punjab Government Servants Benevolent Fund, (Disbursement) Rules, 1965, Part I was empowered to restore the payment on application made to him---Payment was not made to petitioner though she had filed application within prescribed time---Authorities could require the petitioner to submit statement to the effect that she had not remarried---Refusal to payment of Benevolent Fund in circumstances was unwarranted---Authorities were directed to make the outstanding amount of Benevolent Fund to petitioner within two months.

Nemo for Petitioner.

Khawaja Sulman Mahmood, A.A.-G. for Respondent.

2011 P L C (C.S.) 914

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

ZULFIQAR CHEEMA

Versus

TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY through Chairman and another

Writ Petition No.25926 of 2010, heard on 21st March, 2011.

(a) Constitution of Pakistan---

----Art. 199---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S.5(1)(a)---Show-cause-notice---Judicial review---Scope---Issuance of a show-cause-notice is itself a complete act or decision---Such decision, order or act of the competent authority is subject to judicial review provided the issuing authority is amenable to constitutional jurisdiction---Limitations---Grounds of past and closed transaction, mala fide and others can be conveniently raised before the competent authority in reply to the show-cause notice and such case will not be ripe enough to be considered for judicial review---Principles.

A show-cause-notice can be divided into two parts. The first part deals with the act of issuance of the show-cause-notice by the competent authority. While the second part pertains to the actual body or subject-matter of the show-cause notice.

Issuance of a show-cause notice is itself a complete act or decision. This decision, order or act of the competent authority is subject to judicial review provided the issuing authority is amenable to writ jurisdiction. In such a case, the grounds for challenge are limited to whether the show-cause notice was lawfully issued by the competent authority and whether the issuance of the show-cause notice is ultra vires the relevant law and hence without jurisdiction.

The second part of the show-cause-notice is its subject-matter. This part is no more than a set of allegations that have yet to be replied to and have yet to undergo adjudicatory process. This part is, therefore, still in its infancy till it matures and crystallizes into an order. As there is no order, there is nothing adverse affecting anyone's rights. No legal right has been infringed and therefore the need for a remedy does not arise. Where there is a right, there is a remedy; and as a corollary, there cannot be a remedy where there is no right. Second part of the show-cause notice, in the absence of a definite finding or order, is inchoate and not ripe for judicial review. Hence, a person challenging the same is not an aggrieved person under Article 199 of the Constitution.

The grounds of past and closed transaction, mala fide and others can be conveniently raised before the competent authority in reply to the show-cause-notice.

The question of mala fide, which is a mixed bag of law and facts can also be gone into by the competent authority. There is no justification for High Court to get into the thicket of disputed facts which have yet to be resolved by a competent authority. The court must give time and space to the competent authority to sit in judgment over all the allegations raised in the show-cause-notice and pass a definitive order. For the purposes of Article 199 of the Constitution, such a case is not ripe enough to be considered for judicial review.

Issuance of show-cause notice does not mean that the case will invariably be decided against the petitioner and there is always a possibility that the same may be decided in favour of the petitioner. Laying challenge to a show-cause-notice is, therefore, no different that filing a petition on the basis of an apprehension or a speculation. Such a petition is premature and not ripe for adjudication. "Just as a case can be brought too late, ... it can be brought too early, and not yet be ripe for adjudication ... until the controversy has become concrete and focused, it is difficult for the court to evaluate the practical merits of the position of each party. The basic rationale behind the ripeness doctrine is "to prevent the courts through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Courts do not decide abstract, hypothetical or contingent questions or give mere declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts of a case, floats in an atmosphere of unreality; it is a determination in vacuo and unless it amounts to a decision settling rights and obligations of the parties before the court it is not an instance of the exercise of judicial power.

Interference at the stage of issuance of show-cause notice stultifies and retards the inquiry process provided under the relevant law. This unduly stalls the investigative machinery of the quasi judicial authorities and hampers discharge of their statutory duties which are to be done with a free hand independent from outside control. The petitioner has an opportunity to place his case before the competent authority and there are elaborate procedures by way of appeal or revision against order passed in such proceedings.

Chanan Singh v. Registrar, Co-op Societies, Punjab and others AIR 1976 SC 1821; Law of Writs --- V.G. Ramchandran's --- sixth edition- Eastern Book Company (page 1692 Vol. II); Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore PLD 1989 SC 360; Dr. Khalida Pervez v. Government of Pakistan through Ministry of Defence, Islamabad and 4 others 2003 CLC 156; Ronald D. Rotunda, John E.Nowak, Treatise on Constitutional Law, Second Edition West Publishing Company (Volume I, pages 188-189); Rogers, Healy, Krotoszynski, Administrative Law, Wolters Kluwer, 2008 (page 686) Asma Jilani's case PLD 1972 SC 139; Justice (R) Fazal Karim, Judicial Review of Public Actions, Pakistan Law House 2006 (page 981); The Province of East Pakistan and others v. MD. Mehdi Ali Khan PLD 1959 SC (Pak) 387; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; Union of India and another v. Kunisetty Satyanarayana AIR 2007 SC 906; Special Director and another v. Muhammad Ghulam Ghouse and another AIR 2004 SC 1467; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others AIR 1996 SC 691; State of Uttar Pradesh v. Shri Brahm Datt Sharma and another AIR 1987 SC 943; Chief of the Army Staff and others v. Major Dharam Pal Kukrety AIR 1985 SC 703; Zeal Pak Industries (Pvt.) Ltd., Karachi v. Regional Commissioner, Income Tax, Karachi and 2 others 2009 PTD 712; Mehboob Ali Malik v. The Province of West Pakistan and others PLD 1963 Lah. 575; Shaheen Asad, Assistant Manager Finance/ Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad v. Azfar Yaseen, Assistant Manager, Finance and Accounts, Azad Kashmir Logging and Sawmill Corporation, Muzaffarabad 2001 PLC (C.S.) 93 and Dilshad Kausar v. Azad Jammu and Kashmir Government (Prime Minister) through Chief Secretary and 2 others (2005 PLC (C.S.) 1048 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil Service---Relationship of the petitioners (civil servant) was of contractual nature and was not governed by any statutory rules of service---Such relationship with the employer/authority was governed by the principle of 'master and servant' for which remedy lay before the civil court of competent jurisdiction and not under the constitutional jurisdiction of High Court.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Mian Jaffar Hussain for Petitioner.

Ijaz Ahmad Awan for Respondent No.1.

Sh. Shahid Waheed for Respondent No.2.

Date of hearing: 21st March, 2011.

2011 P L C (C.S.) 939

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

Raja KHALID MAHMOOD

Versus

GOVERNMENT OF PUNJAB and 4 others

Writ Petition No.5046 of 2010, decided on 29th November, 2010.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Transfer/posting order---Petitioner had called in question the validity of transfer/posting order passed by District Co-ordination Officer and all subsequent orders connected therewith---Validity---Question of posting of a government servant squarely fell within the jurisdictional domain of competent Authority, subject to law and rules made thereunder---Question of posting/transfer related to the terms and conditions of a government servant and Service Tribunal would have exclusive jurisdiction to dialate upon and decide such matters---Constitutional jurisdiction, could not be invoked to get such controversies resolved---Provisions as contained in Art.212 of the Constitution, ousted jurisdiction of all other courts---Orders of the departmental Authority, even though without jurisdiction or mala fide, could be challenged only before the Service Tribunal and jurisdiction of civil court, including High Court was specifically ousted.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Kh. Abdul Wahid v. Chairman WAPDA 1986 SCMR 1534; Secretary to Government of the Punjab Health Department Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61; Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others 2010 PLC (C.S) 51 and Khan Muhammad v. Secretary Education (Schools) Government of the Punjab, Education Department and another 2010 PLC (C.S) 238 ref.

Sardar Abdul Raziq Khan for Petitioner.

2011 P L C (C.S.) 952

[Lahore High Court]

Before Hafiz Abdul Rehman Ansari, J

Mst. FAHMEEDA BIBI

Versus

D.C.O. and others

Writ Petition No.9144 of 2009, decided on 15th June, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of service---Petitioner was appointed as an untrained Teacher on the condition that within three years she would produce the requisite degree of PTC, but petitioner failed to produce the same and her services were terminated---Petitioner filed constitutional petition against such termination of service after about 10 years---Validity---Petitioner failed to submit her professional qualification as PTC within the prescribed period of three years, after her appointment---Department gave notice to the petitioner, but she remained silent---Law would help those who were vigilant and not those who were indolent---Relief could not be granted to the petitioner who slept for near about 10 years for her rights---Constitutional petition was dismissed.

Malik Ashiq Hussain Chan for Petitioner.

2011 P L C (C.S.) 1032

[Lahore High Court]

Before Tariq Javaid, J

MUHAMMAD AMJAD

Versus

CHIEF EXECUTIVE OFFICER and others

Writ Petition No.513 of 2010, decided on 4th March, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner, a deaf and dumb person, was selected by authorities as Assistant Lineman but was subsequently denied posting on account of his such disability---Validity---Petitioner disclosed his disability in the application form and was interviewed without any objection raised to his disability---Denial of posting, being an afterthought, was unjust and illegal---Any objection to petitioner's posting should have been made known to him at initial stage---Petitioner's disability was not of such a nature as could have been suppressed; interviewing authority could reject the petitioner at the time of interview---Once the petitioner had been selected in the interview, authorities could not deny his posting---Petition was allowed, authorities were directed to issue posting order to the petitioner.

Muhammad Nadeem Ahmad Tarar for Petitioner.

Aamir Aziz for Respondent.

2011 P L C (C.S.) 1040

[Lahore High Court]

Before Sagheer Ahmad Qadri, J

SHAZANA KOUSAR

Versus

DISTRICT COORDINATION OFFICER, RAWALPINDI and others

Writ Petitions Nos.3475 of 2009 and 27 of 2010, decided on 14th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner sought appointment as SSE (English) teacher in the Government School on the ground that she stood first as per merit list but due to mala fides of the District Recruitment Committee respondent was placed in the merit list at serial No.1---Respondent also filed constitutional petition against cancellation of her appointment on the said post on the ground that no notice for cancellation of her appointment was issued to her---Respondent's appointment under the terms of contract could be terminated but one month's prior notice was liable to be issued or at least one month's pay in lieu thereof was to be provided to her---No opportunity of hearing was afforded to the respondent prior to cancellation of her appointment letter---District Recruitment Committee did not weigh the merit list according to the proper procedure and put respondent at No.1 in the merit list and her appointment letter was issued accordingly, however; subsequently when the petitioner moved an application list was further calculated and the petitioner was placed at No.1 in the merit list and appointment of respondent was cancelled---Respondent due to none of her fault although was appointed and subsequently removed had undergone the agony and mental stress as she had to approach the High Court to get redressal of her grievance---High Court allowed constitutional petition filed by the petitioner and dismissed the one filed by respondent, however; due to lack of due care and caution by the District Recruitment Committee, declared the respondent to be entitled for one month's pay as well as payment of cost of Rs.50,000 which should be paid to her by the members of the District Recruitment Committee jointly---Order accordingly.

Tanvir Iqbal for Petitioner (in Writ Petition No.3475 of 2009).

Raja Mahfooz Ali Satti for Petitioner (in Writ Petition No.27 of 2010).

Razzaq A. Mirza, Addl. A.-G. along with Malik Muhammad Ashraf, Executive District Officer (Education) and Nizaar Ahmed Abbasi, Litigation Officer for Respondent.

2011 P L C (C.S.) 1046

[Lahore High Court]

Before Ch. Muhammad Tariq and Syed Akhlaq Ahmad, JJ

Mrs. TASNIM QAMAR RAI

Versus

REGIONAL DIRECTOR (AUDIT) and another

I.C.A. No.487 of 2008 in Writ Petition No.12963 of 2008, decided on 10th January, 2011.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Civil service---House rent allowance---Entitlement---Service Tribunal, judgment of---Appellant's husband was serving as Professor in Agriculture University who was allotted house in residential area of the University, whereas appellant was serving as Assistant Professor in Government College and was drawing house rent allowance---Authorities directed to recover house rent allowance from appellant and further payment was also stopped---Plea raised by appellant was that the controversy stood decided by Federal Service Tribunal decided in year, 1986, according to which appellant was authorized to receive house rent allowance---Validity---Federal Government did not challenge the judgment of Federal Service Tribunal and ordered implementation of the order of Service Tribunal in letter and spirit---Appellant, in the present case, was employee of Government of Punjab and was entitled to receive house rent allowance independent of her husband's entitlement who was serving in an autonomous body i.e. Agriculture University---Division Bench of High Court set aside judgment passed under Art. 199 of the Constitution by Single Judge---Intra-Court Appeal was allowed, in circumstances.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Government of Punjab through Secretary Education and others v. Sameena Parveen and others 2009 SCMR 1 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 rel.

Tallat Farooq Shaikh for Appellant.

M. Nasim Kashmiri, Dy. A.-G. of Pakistan for Respondents.

Muhammad Aslam Bhatti, Audit Officer.

Muhammad Ashraf Superintendent Office of DEO (Colleges) Faisalabad.

2011 P L C (C.S.) 1049

[Lahore High Court]

Before Sh. Azmat Saeed, J

EJAZ MAJEED BHATTI and 5 others

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and another

Writ Petition No.17785 of 2010, decided on 6th December, 2010.

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

----R. 21-A(2)---Punjab Public Service Commission Regulations, 2000, Reglns. Nos.66, 67, 68 & 69---District Law Officers Appointment Rules, 1977---District Law Officers Service Rules, 2010---Constitution of Pakistan, Art.199---Constitutional petition---Petitioners' names appeared on the merit list prepared after selection process by the Public Service Commission for appointment of Assistant District Attorneys but they were not recommended for appointment as their names fell below the requisitioned number of posts---Petitioners sought direction to the Public Service Commission to recommend their names as a number of selected candidates had failed to join the service---Petitioners contended that they being next on the merit list were entitled to be selected in lieu of candidates who failed to join the service---Validity---Regulation No.66 of the Punjab Public Service Commission Regulations, 2000 permitted the department concerned to request for a substitute from the same merit list but the same did not enjoin the department or the Government to do so or made mandatory for the Commission to issue further recommendations---Nothing in Regulations 66 to 68 of the Punjab Public Service Commission Regulations, 2000 could be interpreted to resurrect the old deprecated practice of maintaining the waiting list which appeared to have been prohibited by Regln. No.69 of the Punjab Public Service Commission Regulations, 2000---Department was not required by law to make request to the Public Service Commission to provide substitute from the same merit list in lieu of selected candidates who had not joined their posts---No special circumstances existed to show that the working of the department was going to be affected adversely if petitioners were not recommended/ appointed especially when the department concerned had submitted that said posts were not required---Selection process for posts in question was completed under District Law Officers Appointment Rules, 1977 which had been repealed during the said selection process to be replaced by the District Law Officers Service Rules, 2010---All appointments made after repeal of the District Law Officers Appointment Rules, 1977 had to be in accordance with the District Law Officers Service Rules, 2010---Regulations applicable on the date of appointment, and not those in force at any earlier point of time, were relevant---Department concerned could not be directed to seek substitute candidates from the merit list prepared under the repealed rules which had been replaced by the new rules with varying eligibility criteria---Petition was dismissed in circumstances.

??????????? ?

(b) Punjab Public Service Commission Regulations, 2000---

----Regln. No.66---Application and scope of Regln.66---Regulation 66 of the Punjab Public Service Commission Regulations, 2000 permitted the department concerned to request for a substitution from the same merit list but the same did not enjoin the department to do so or made it mandatory for the Public Service Commission to issue further recommendations.??

(c) Punjab Public Service Commission Regulations, 2000---

----Reglns. 66 to 69---Application and scope---Nothing in regulations 66 to? 68? could? be? interpreted? to? resurrect? the? old? practice? of maintaining waiting list which appeared to have been prohibited by the Regln.69 of the Punjab Public Service Commission Regulations, 2000.?

?????? W.P. No.738 of 2004; Government of N.-W.F.P. through Secretary v. Qasim Shah 2009 SCMR 382 and Shaukat Ali Zaidi v. Pakistan through Secretary Establishment Government of Pakistan Islamabad and 4 others 2002 MLD 641? ref.

?????? Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others 1993 SCMR 1124; Dr. Faiz-ur-Rehman and others v. N.-W.F.P. Public Service Commission Peshawar 1996 SCMR 589 and Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sh. Muzafar Iqbal and others 1990 SCMR 1321 fol.

?????? Mushtaq Ahmad Mohal for Petitioner.

?????? Muhammad Hanif Khatana, Addl. A.-G. and Shujaat Ali Khan, A.A.-G. for Respondents.

?????? Date of hearing: 20th October, 2010.

2011 P L C (C.S.) 1057

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

ILYAS ALI

Versus

GOVERNMENT OF PUNJAB through Secretary (Education) Punjab, Lahore and 5 others

Writ Petition No.7005 of 2009, heard on 7th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioner was selected SSE Teacher but later his name was dropped by the department on the ground that he had not passed his B.Sc. examination with mathematics and physics as per requirement---Petitioner contended that out of two subjects i.e. physics and mathematics only one subject was required for B.Sc. candidates---Validity---Authorities had withdrawn the requirement of both the subjects for the post of SSE Educator on account of shortage of candidates for the said post---Advertisement contained hyphen (-) between the two subjects (Physics-Math) followed by an oblique (/) mark which showed that candidates having B.Ed. degree with physics and Math would be eligible for the post of SSE Teacher---In English language, mark dash (--) was used to separate the words and groups of words while the hyphen meant to link the words---Educational requirement for the post of SSE Teacher was either a B.Sc. degree (Physics-Math) or B.S. Ed. (with Physics and Math)---Said two qualifications were separate and independent, meaning thereby that a person with either of the two qualifications was eligible for the post---As per advertisement, qualification for SSE Teacher was either B.Sc. with physics and Math, or B.S.Ed. with both physics and Math---Petitioner being an M.Sc. in the relevant subject; had to be given preference to the candidates with B.Sc. degrees---Teacher of Mathematics was required to be an expert of his own subject---Petitioner being a Master degree-holder, was held to be fully eligible for the post of SSE Educator---Petition was accepted and authorities were directed to issue appointment letter to him.

Tahir Mehmood and M. Ramzan Khalid Joya for Petitioners.

M. Javed Akhtar Wains, A.A.-G. for Respondents

Date of hearing: 7th December, 2010.

2011 P L C (C.S.) 1120

[Lahore High Court]

Before Hafiz Tariq Nasim, J

TARIQ MEHMOOD

Versus

GOVERNMENT OF PUNJAB through Secretary, Education, Lahore

Writ Petition No.10135 of 2008, decided on 4th September, 2008.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination from service on the basis of certain allegations without issuing charge-sheet or show-cause notice or conducting inquiry against employee---Validity---Petitioner having not been afforded proper chance to defend himself against allegations levelled, High Court set aside impugned order and reinstated petitioner in service while allowing departmental authority to hold regular inquiry against him into allegations levelled in the impugned order.

Muhammad Amjad v. WAPDA 1998 PSC 337 rel.

Mian Shahabaz Ali Anjum for Petitioner.

Naeem Masood, Asstt. A.-G. with Munir Ahmad Shah, Litigation Officer, Office of EDO (Education) Nankana Sahib for Respondent.

2011 P L C (C.S.) 1127

[Lahore High Court]

Before Ch. Muhammad Tariq, J

KHALID JAVED NIAZI

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petitions Nos.2672 and 2551 of 2010, heard on 14th December, 2010.

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

----S. 12---Constitution of Pakistan, Art.199---Constitutional petition---Enhancement of medical allowance for employees by Board on the direction of the Minister---Boards of Intermediate and Secondary Education had been established under Punjab Board of Intermediate and Secondary Education Act, 1976 and under Rules of Business, 1974---Status of the Board was that of autonomous body and Board was authorized to take financial and administrative decision at its own level---Government had the power to issue necessary directions to the Board---Board had been increasing benefits of their employees with or without Government's approval---Previously Board had enhanced medical allowance of employees by an additional 15%, without approval of Government---Government was merely a Controlling Authority and in that capacity, it could only exercise such limited functions which were delegated to it under S.12 of the Punjab Boards of Intermediate and Secondary Education Act, 1976---Such functions did not include the authority to issue mandatory directions to control the use of funds by the Boards which were autonomous bodies and were generating funds front their own sources---Any direction against S.12 of the Punjab- Boards of Intermediate and Secondary Education Act, 1976 by the Government was inoperative ,and without lawful authority in respect of the rights of the employees of the Board--Impugned letter issued by the Higher Education Department of Government, was set aside, in circumstances.

Malik Noor Muhammad Awan for Petitioners.

Dr. Mubeen-ud-D.in Qazi for BISE, Faisalabad with Muhammad Arshad Superintendent, BISE, Faisalabad for Respondents (in Writ Petition No.2672 of 2010).

Shaikh Shahid Waheed for BISE, Lahore for Respondents (in Writ Petition No.2551 of 2010).

Rana Shamshad Khan, Asst. A.-G. Punjab for the State.

Date of hearing: 14th December, 2010.

2011 P L C (C.S.) 1190

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Dr. JAVED HAIDER

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2379 of 2010, decided on 6th August, 2010.

Constitution of Pakistan---

----Arts. 199, 4 & 25---Constitutional petition---Civil service---Regularization of service---Petitioner, a doctor, had prayed that his services be regularized, while following the principle of equality as services of other doctors had been regularized---Case. of the petitioner was also quite identical and similar with the case of those doctors who had already been regularized---Petitioner had also rendered service on contract basis with Government for certain period---Petitioner was struggling since 2006 for regularization of his service, but he could not succeed---Indifferent attitude and inefficiency of the department had caused much mental torture and agony to the petitioner---Under Arts.4 & 25 of the Constitution, equal treatment should be given to the petitioner and other doctors whose services had been regularized---Constitutional petition allowed.

Tahir Mehmood for Petitioner.

Javaid Saeed Pirzada, A.A.-G.

Muhammad Fargham Ullah for Respondent-PRST.

Ch. Riwan Ullah for Respondents Nos.20, 31, 33, 34, 38, 39, 40, 51, 52 and 53.

Ijaz Farakh, Senior Law Officer, Health Department, Government of the Punjab.

2011 P L C (C.S.) 1202

[Lahore High Court]

Before Mamoon Rashid Sheikh and Kh. Imtiaz Ahmad, JJ

GHULAM MUSTAFA

Versus

SECRETARY, MINISTRY OF FOOD AND AGRICULTURE and 4 others

I.C.A. No.49 of 2011/BWP, heard on 9th May, 2011.

Civil service---

----Selection for post---Vested right---Appellant had worked for the post in question on contract basis and at the time of regular appointment authorities provided a list of such ex-employees---Appellant was not appointed during selection and Single Judge of High Court maintained the result---Plea raised by appellant in intro-court appeal was that on the basis of letter issued by authorities he had a vested right for appointment---Validity---Letter in question did not create any vested right and it only allowed ex-employees to compete for fresh recruitment on merit and they could only obtain employment if they had met the requisite criteria---Appellant having failed to gain employment on merit had chosen to challenge appointment of respondent but appellant had been unable to show any illegality or irregularity in the appointment or to establish that he had 'been discriminated against---Division Bench of High Court did not find any infirmity in the judgment passed by Single Judge---Intra-court appeal was dismissed in circumstances.

Syed Mujahid Ayub Wasti for Appellant.

Date of hearing: 9th May, 2011.

2011 P L C (C.S.) 1209

[Lahore High Court]

Before Abdus Sattar Asghar, J

Dr. MULAZIM HUSSAIN SUMRO

Versus

SPECIAL SECRETARY HEALTH, PUNJAB, LAHORE and 2 others

Writ Petition No.3052 of 2011/BWP, decided on 8th June, 2011.

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

---S. 13(4)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Show-cause notice---Object and scope---Maxim audi alteram partem---Applicability---Civil servant was aggrieved of show-cause notice issued to him by competent authority on the basis of inquiry report---Validity---Notice in question was issued in accordance with law in exercise of lawful authority under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Matter pertained to terms and conditions of service and plea of mala fide being a question of fact not sufficiently substantiated with any speck of material on the record could not be looked into by High Court in exercise of Constitutional jurisdiction at such stage---No decision adverse to petitioner was passed in the show-cause-cum-personal hearing notice in question---Object of show-cause notice was to provide an opportunity to petitioner to explain and produce his defence before Hearing Officer following the rule of audi alteram partem---Issuance of show-cause notice did not amount to infringement of any statutory or secured right of petitioner, therefore, the same could not be called in question through invoking Constitutional jurisdiction of High Court---Petition was dismissed, in circumstances.

Shabbir Ahmed Bhutta for Petitioner.

2011 PLC (C.S.) 1227

[Lahore High Court]

Before Mamoon Rashid Sheikh and Kh. Imtiaz Ahmad, JJ

MUHAMMAD AMEER AZAM and 3 others

Versus

ISLAMIA UNIVERSITY, BAHAWALPUR and 5 others

I.C.A. No.210 of 2010/BWP, heard on 3rd May, 2011.

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

----Ss. 2, 11-A, 21(ii) & 42---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Intra-Court appeal---Maintainability---Right of appeal, revision or-review---Appellants were appointed on contract basis for a period of one year and University authorities terminated their contracts---Order passed by University was maintained by Single Judge of High Court---Plea raised by University was that Intra-Court appeal was not maintainable---Validity---Syndicate, in view of S.21(ii) read. with S.2 of Islamia University of Bahawalpur Act, 1975, was Authority of the University--Decision of Syndicate, terminating services of appellants was, therefore, a decision of an Authority as defined under S.21 of Islamia University of Bahawalpur Act, 1975---Revision and/or appeal lay to the Chancellor of the University against such decision/order under S.11-A and/or 42 of Islamia University of Bahawalpur Act, 1975--- Intra-Court appeal was not maintainable as same was hit by the provisions of proviso to S.3(2) of Law Reforms Ordinance, 1972---High Court, in circumstances, did not consider it necessary to give any finding on other objections---Infra-Court Appeal was dismissed.

Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2010 SCMR 1484 I.C.A. No.42 of 1997 and C.P.L.A. No.3165-L of 2004 rel.

Bilal Ahmad Qazi for Appellants.

Masood Ashraf Sheikh and Muhammad Aftab Anwar, A.O. (Litigation), I.U.B. for Respondents.

Date of hearing: 3rd May, 2011.

2011 P L C (C.S.) 1236

[Lahore High Court]

Before Abdus Sattar Asghar, J

MUHAMMAD BASHIR ABBASI

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.1959 of 2011, decided on 2nd June, 2011.

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

----S. 13(1), (3), (4) & (6)---Constitution of Pakistan, Art.199---Constitutional petition---Show-cause notice---Exoneration by Inquiry Officer---Civil servant was aggrieved of issuance of show-cause notice by authorities on the ground that he had been exonerated in inquiry report---Validity---Competent authority after perusal of inquiry report and other record differed with the findings and recommendations of inquiry officer and thus in exercise of powers under S.13(4) of Punjab Employees' Efficiency, Discipline and Accountability Act, 2006 issued show-cause notice in question---Competent authority should have proceeded in terms of S.13(6) of Punjab Employees' Efficiency, Discipline and Accountability Act, 2006 instead of issuing show-cause notice in question in terms of S.13(4) of Punjab Employees' Efficiency, Discipline and Accountability Act, 2006---Issuance of show-cause notice in question under S.13(4) of Punjab Employees' Efficiency, Discipline and Accountability Act, 2006 was illegal and without lawful authority---High Court in exercise of Constitutional jurisdiction, set aside the show-cause notice issued to civil servant---Petition was allowed in circumstances.

Ch. Permoon Bashir for Petitioner.

Mehr Muhammad Iqbal, A.A.-G.

2011 PLC (C.S.) 1239

[Lahore High Court]

Before Abdus Sattar Asghar, J

MUHAMMAD ZAFAR

versus

ADMINISTRATOR, MARKET COMMITTEE, AHMEDPUR EAST, DISTRICT BAHAWALPUR and another

Writ Petition No.2576 of 2011/BWP, decided on 12th July, 2011.

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

----R. 70(2)(4) & Sched.---Constitution of Pakistan, Art.199---Constitutional, petition---Dismissal from service---Petitioner was appointed as Electrician in BPS-5 on regular basis vide order issued by Administrator, Market Committee, in exercise of powers conferred upon him under R.70(2)(4), Schedule-B of the Punjab Agricultural Produce Market (General) Rules, 1979---Petitioner had been serving on the said post for long 18 years when he was served with a show-cause notice requiring him to deposit his original diploma in the office---Petitioner having failed to deposit his original diploma according to the direction, he was dismissed from service, allegedly on account of possessing bogus diploma, as he failed to produce original copy of the diploma issued from the Board of Technical Education---Administrator, being fully aware of the qualification clause for recruitment of the . electrician, himself appointed the petitioner as electrician about 18 years back on the basis of said .copy of diploma---If any irregularity was 'committed by the civil servant, Administrator should have blamed himself instead of issuing order of dismissal of services against the petitioner---Appointing authority was to apply his conscious mind while scrutinizing the petitioner's application before issuing the appointment letter in his favour---Once petitioner's certificate having been accepted as valid, proper and equivalent to that as required, same could not be, questioned after 18 years of service---Impugned action of the authorities, in circumstances, was not sustainable in the eye of law---Constitutional petition competently filed by the petitioner was allowed and dismissal order was declared, illegal, void and ineffective against the rights of the petitioner and same was set aside; in circumstances.

Qazi Akhtar Ali, Secretary, Market Committee Bhalwal, District Sargodha v. Director of Agriculture (Economics and Marketing) Punjab and others 2000 PLC (C.S.) 784 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 rel.

Shabbir Ahmed Bhutta for Petitioner.

Mehr Muhammad Iqbal, Asstt. A.-G. and Mumtaz Hussain Bazmi for Respondents.

2011 PLC (C.S.) 1244

[Lahore High Court]

Before Shaukat Umar Pirzada, J

SHAFQAT ALI AWAN and 32 others

Versus

GOVERNMENT OF PAKISTAN, REVENUE DIVISION, FEDERAL BOARD OF REVENUE through Chairman and 2 others

Writ Petitions Nos.9803 of 2009 and 597 of 2010, decided on 23rd December, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Petitioners, in the present case, had sought declaration against the process of inviting applications etc. for the posts they were holding and directions to the authorities in that regard---Contention that issue raised in the petition pertained to the terms and conditions of the petitioners was repelled---High Court, in circumstances, had ample powers and could issue appropriate direction to the authorities in constitutional jurisdiction.

Mrs. Robina Aslam Noorani v. District Education Officer (EE-W) Pakistan 2008 (C.S.) 682 and Sadaqat Ali v. Government of Punjab through Chief Secretary and 3 others 2008 PLC (C.S.) 1047 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Promotion, in the present case, was made subject to the condition that in case of availability of direct recruits, petitioners would be reverted to their substantive posts---Petitioners were working against the said posts for the last 6/7 years to the entire satisfaction of their superiors---Post left by the petitioners at the time of their promotion had been filled in by the subordinate staff and it was not known as to when the petitioners were actually reverted, where they would be accommodated as no post left by them was now available for the purpose---Authorities did not enjoy unbridled powers, therefore, the conditions of officiation attached to the promotion could not be left at the discretion of the authorities and court had power to determine as to whether such a condition was justified or not---Condition of officiation attached with promotion of employee was unjustified and consequently such reversion was liable to be set aside---Stance of the petitioners that condition attached to their promotion to the present post was unjust and illegal and that treating the said posts as vacant and initiating the process of recruitment thereagainst was equally unjust, illegal and arbitrary, had substance and could not be brushed aside---Constitutional petition was allowed and the condition attached to the promotion of the petitioners was held to be arbitrary and unlawful and authorities were directed not to proceed with the recruitment process.

Jafar Ali Yousafzai v. Islamic Republic of Pakistan and another PLD 1970 Quetta 115 fol.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Jafar Ali Yousafzai v. Islamic Republic of Pakistan and another PLD 1970 Quetta 115; Dr. Nighat Bibi, Physician, General Medicine, PIMS, Islamabad v. Secretary, Ministry of Health, Government of Pakistan, Islamabad and others 2009 SCMR 775; Sadaqat Ali v. Government of Punjab through Chief Secretary and 3 others 2008 PLC (C.S.) 1.047; Province of Punjab through Secretary, Agriculture, Government, of Punjab and others v. Zulfiqar Ali 2006 SCMR 678; Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948; Mrs. Robina Aslam Noorani v. District Education Officer (EE-W) Pakistan 2008 PLC (C. S.) 682; Water and Power Development Authority through Chairman, WAPDA House Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Salim Khan v. Secretary, Government of N-W.F.P., Higher Education Department, Peshawar and others 2010 PLC (S.C.) 504; Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 PLC (S.C.) 367 and Punjab Small Business Industries Corporation v. Sh. Abdus Salam and others 2008 SCMR 583 ref.

Qamar-uz-Zaman Butt for Petitioners.

Muhammad Maalik Khan Langah for Petitioners (in Writ Petition No.597 of 2010).

Misbah Sharif for Respondent No.1.

Khalid Javed Bukhari for Respondent No.2.

Date of hearing: 23rd November, 2010.

2011 P L C (C.S.) 1292

[Lahore High Court]

Before Ch. Shahid Saeed, J

MANZOOR-UL-HASSAN

Versus

CHIEF ADMINISTRATOR AUQAF and 2 others

Writ Petition No.16558 of 2010, heard on 16th June, 2011.

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

----S. 4---Constitution of Pakistan, Arts.199 & 212(3)---Constitutional petition---Civil Service---Retirement from service on attaining age of superannuation---Retirement order challenged on ground that petitioner's date of birth was wrongly recorded in Service Book by concerned Clerk at time of joining his service; that as he had no access to Service Book, thus, could not know, about such wrong entry before his retirement from service---Validity---Particulars of employees including their dates of birth recorded in Service Books were always provided by employees themselves---Petitioner himself had verified his particulars including his date of birth recorded in service book by putting thereon his signature and thumb and finger impressions---Seniority Lists containing age of each employee moved by department was never challenged by petitioner during his service---Petitioner's CNIC, domicile certificate and certificate of Shahadat-tul-Aalmia issued subsequently could not override entry of his date of birth made much earlier---According to Notification No. SORII(S&GAD)6-4/75, dated 4-9-1975, entry of date of birth recorded in-service book could not be challenged after two years on any ground---Petitioner had challenged such entry just to increase period of his service, which could not be allowed at such stage---High Court could not take cognizance of such matter for being related to terms and conditions of service of petitioner---Petitioner might approach Service Tribunal for redressal of his grievance---High court dismissed constitutional petition.

Executive Council Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and Province of Sindh v. Malik Ghulam Hussain 2002 SCMR 911 ref.

Haq Nawaz Kiani v. The Province of Punjab through Chief Secretary, Government of Punjab, Civil Secretariat Lahore and others 1998 SCMR 801 rel.

(b) Civil service---

----Date of birth entered in Service Book of civil servant, change in---Scope---Other documents with different date of birth could not override such entry---Principles.

Other documents with different date of birth cannot override the entry made in Service Book for the purposes of retirement of a government servant. A government servant cannot be permitted to dramatically announce change in his date of birth specially at the verge of his retirement pretending that the date of birth earlier recorded was erroneous.

Executive Council Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and Province of Sindh v. Malik Ghulam Hussain 2002 SCMR 911 ref.

Haq Nawaz Kiani v. The Province of Punjab through Chief Secretary, Government of Punjab, Civil Secretariat Lahore and others 1998 SCMR 801 rel.

Shabbir Hussain for Petitioner.

Muhammad Omer Malik for Respondents.

Date of hearing: 16th June, 2011.

2011 P L C (C.S.) 1310

[Lahore High Court]

Before Umar Ata Bandial, J

KHALID MEHMOOD and others

Versus

AUDITOR-GENERAL and others

Writ Petition No.14267 of 2010, decided on 25th November, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Allocation of officers to bifurcated establishment---Criteria---Petitioners were aggrieved by the notification, which had laid down criteria for allocation of officers to bifurcated establishment---Petitioners claimed that said criteria had been misapplied by their allocation to the new office at place 'I'---Order of Auditor-General of Pakistan failed to answer the grievance of the petitioners and mentioned an interim arrangement as the ground for denying existence of any grievance of the petitioners---Prima facie the services of the petitioners had been allocated to a new establishment at place 'I' after bifurcation of one at place 'L'---Whether allocation of the Staff to the new establishment was in accordance with the terms of criteria laid down in the impugned notification, needed to be decided by Auditor-General of Pakistan---Order of Auditor-General of Pakistan, merely relied on an interim arrangement which could be reversed at any time to detrimentally affect the petitioners' service rights---Auditor-General of Pakistan as a Public functionary was under a duty to decide the points raised in petitioners' representation, fairly and transparently---High Court directed that Auditor-General of Pakistan would consider and decide afresh the petitioners' representation in accordance with law, expeditiously---Meanwhile the status quo would be maintained.

Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325 ref.

M. Tanveer Chaudhry for Petitioners.

Nasim Kashmiri, Dy. A.-G. with Ch. Naseed Mehmood, Deputy Director Audit Works, Lahore.

Sultan Muhammad Momin for Respondents Nos.4 and 5.

2011 P L C (C.S.) 1312

[Lahore High Court]

Before Ch. Muhammad Tariq, J

JAVED AKHTAR

Versus

SECRETARY M/o DEFENCE and others

Writ Petitions Nos.2530 and 3147 of 2005 and Civil Miscellaneous Nos.189 and 190 of 2011, decided on 22nd April, 2011.

(a) Civil service---

----Disciplinary proceedings after acquittal of civil servant in criminal case, initiation of---Scope---Department not barred from conducting departmental inquiry or imposing a penalty after such acquittal.

Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005 ref.

Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13 and Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005 rel.

(b) Civil service---

----"Disciplinary proceedings" and "criminal proceedings"---Distinction stated.

"Disciplinary proceedings" and "criminal proceedings" cannot be termed as synonymous and interchangeable. "Disciplinary proceedings" and "criminal proceedings" are quite distinct from each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction. Decision of one forum would have no bearing on the decision of the other forum in any manner whatsoever and it would be a misconceived notion to consider the acquittal as an embargo against disciplinary proceedings. [p. 1315] B

Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005 distinguished.

Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13 and Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005 rel.

Raja Imtiaz Ahmad Kiani for Petitioner.

Atiq-ur-Rehman Kiani, Standing Counsel.

2011 P L C (C.S.) 1323

[Lahore High Court]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

ISLAMIA UNIVERSITY OF BAHAWALPUR

Versus

Dr. ABDUL QADUS SIAL and others

I.C.As. No.78, 79 and 81 of 2010, decided on 10th March, 2011.

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

----S. 26---Service of court's notice issued by post---Such notice, if not returned unserved after passage of reasonable time between date of issuance and date of hearing, would be presumed to have been served.

(b) Islamia University of Bahawalpur Act (II of 1975)---

----Ss. 11(3), 11(a), 15(4)(iv), 21, 42 & Sched. to S.48, para.3---Order of Vice-Chancellor punishing an employee of University---Right of appeal---Scope---Comma would be used to separate phrases or clauses---Phrase "other than the Vice-Chancellor" used in S.42 of Islamia University of Bahawalpur Act, 1975 begun with comma and ended with comma, which not only separated Vice-Chancellor from teachers and other employees of University, but excluded him from definition of officer for purposes of filing appeal before Syndicate---If there was intention of legislature to exclude teachers or other employees of University from filing an appeal, then any conjunctive word like "and" could be used between phrase "other than the Vice-Chancellor" and phrase "teacher or other employees of the University"---Other officials, teachers and employees of University had a right of appeal before Syndicate.

2003 MLD 507; Oxford Advanced Learner's Dictionary (7th Edition); 2006 PTD 386; 2006 PTD 204 and 2006 PTD 515 rel.

(c) Appeal (Civil)---

----Right of---Scope---Right of appeal must be provided so as to add check and balance against illegal orders or actions taken in sheer abuse of jurisdiction by authorities sitting on helm of affairs or for correct application of law.

(d) Maxim---

----"Interpretatio talis in ambiguis smper fienda est ut evitetur inconveniens et absurdum" (in case of ambiguity, a construction should be found such that what is unsuitable and absurd may be avoided).

Muhammad Ashraf Sheikh and Bilal Ahmad Qazi for Appellants.

Eejaz Ahmad Ansari for Applicant (in C.M. No.2398 of 2010).

Malik Mumtaz Akhtar, Addl. A.-G.

2011 P L C (C.S.) 1333

[Lahore High Court]

Before Ijaz Ahmad and Sagheer Ahmad Qadri, JJ

Dr. ASMA SHAHEEN

Versus

MINISTRY OF RAILWAY through Federal Secretary, Islamabad and 3 others

I.C.A. No.209 of 2010, decided on 8th November, 2010.

(a) Policy for Allotment of Residence to Railways' Officers, 2002---

----Clause No.4---Law Reforms Ordinance (XII of 1973), S.3---Intra Court Appeal---Allotment of residence---Retired employee---Entitlement---Grievance of appellant was that accommodation in question was in the possession of respondent, who had retired in year, 2009---Plea raised by appellant was that under clause No.4 of Policy for Allotment of Residence to Railways' Officers, 2002, a retired officer could retain official residence only for six months---Validity---After passing of period of six months, respondent was only a squatter and was not entitled to retain accommodation in question---Appellant was allowed official residence in question earlier in time and authorities if intended to cancel any order passed by it, had to assign reasons for its vacation and no such reasons were assigned---Order passed by Single Judge of High Court was set aside and that passed in favour of appellant was restored---Intra Court Appeal was allowed in circumstances.

(b) Interpretation of statutes---

----Rules---Object and scope---Making of rules is not a cosmetic activity and it is a delicate, well meditated task of casting shackles by an authority to control its own unfettered powers---Rules once made have to be adhered to very strictly and religiously---Authorities while exercising their authority have to respect the law and should not be driven by their personal likings or disliking.

Rana Abid Nazir Khan for Appellant.

Mushtaq Hussain Mughal for Respondents Nos.1 and 2.

Ghulam Rasool for Respondent No.4.

2011 P L C (C.S.) 1349

[Lahore High Court]

Before Sh. Azmat Saeed, J

NAJAF ALI MAHEY

Versus

GOVERNMENT OF THE PUNJAB, PUBLIC PROSECUTION DEPARTMENT, LAHORE through Secretary and another

Writ Petitions Nos.9947(Multan), 4824(BWP) of 2010, 1179(BWP) 1982 of 2008(BWP), 21028, 21029, 21030, 22049 and 22690 of 2010, decided on 22nd March, 2011.

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

----S. 9---Anti-Terrorism Act (XXVII of 1997), S.18---Constitution of Pakistan, Art.199---Constitutional petition---Post of Public Prosecutor in Anti-Terrorism Court---Appointment of petitioners on such post on contract basis till arrival of selectees by Public Service Commission-- Termination of petitioners' service on payment of one month's pay---Petitioners' plea that new Prosecutors had been posted without advertising same---Validity---Process of appointment of new Prosecutors on permanent basis through Public Service Commission under Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 had been completed in pursuance of directions of Supreme Court---Petitioners were not entitled to continue as Prosecutors after appointment of new Prosecutors---Appointment of petitioner was on contract basis subject to termination on one month's notice or pay in lieu thereof---Termination of petitioner simplicitor was in accordance with Contract Appointment Policy---High Court dismissed constitutional petition in circumstances.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 and Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab, Lahore and another 2010 PLC (C.S.) 1 rel

Sardar Tariq Sher Khan for Petitioner.

Muhammad Shan Gul, A.A.-G. for Government of Punjab.

Shujaat Ali Khan, A.A.-G. and Muhammad Mumtaz Dogar, Law Officer for Respondents.

Date of hearing: 10th March, 2011.

2011 P L C (C.S.) 1384

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Ch. GHULAM MUHAMMAD

Versus

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

Writ Petition No.90 of 2003, decided on 19th March, 2003.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Pensionary benefits---Inaction of authorities---Directions---Petitioner was retired and Provincial Government withheld his pensionary benefits---During pendency of petition, the authorities had paid all pensionary benefits to petitioner---Effect---Authorities having paid all pensionary benefits to petitioner, therefore, there was no live issue that existed between the parties---High Court directed the Secretaries and head of all departments that cases of pension of employees should be finalized in terms of law preferably within one month---In case the public functionaries fail to release pension of employees within the prescribed period without any reason then the competent authorities should have to take action against the official/officer who was responsible for not releasing the pension of employees within the prescribed period under the Government Servants (Efficiency and Discipline) Rules, 1973---Petition was allowed accordingly.

Syed Yaqoob Shah v. XEN PESCO (WAPDA) Peshawar PLD 2002 SC 667; Muhammad Masood Joya v. Government of Punjab and others 2000 PLC (C.S.) 864 and Abdul Majid's case 1971 Law Notes 265 ref.

(b) Public functionaries---

----Nobody should be penalized by inactions of public functionaries.

Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3 rel.

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

----S. 24-A--- Public functionaries--- Redressal of grievance---Principle---Duty and obligation of public functionaries to redress grievance of their subordinates without fear, favour and nepotism, within reasonable time.

Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268 rel.

(d) Constitution of Pakistan---

----Arts. 4 & 5(2)---Public functionaries---Working---Every public functionary must act in accordance with law which is the mandate of Constitution in view of Arts.4 & 5(2) of the Constitution.

Ch. Zahoor Ilahi's case PLD 1975 SC 383 rel.

Muhammad Arif Raja for Petitioner.

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

2011 P L C (C.S.) 1412

[Lahore High Court]

Before Sh. Azmat Saeed, J

Ch. AMJAD HUSSAIN and 17 others

Versus

PUBLIC PROSECUTION DEPARTMENT through Prosecutor-General, Punjab and 3 others

Writ Petitions Nos.21820, 22548, 24910, 23386, 4041 of 2010 and 71 of 2011, decided on 22nd March, 2011.

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

----Ss. 8(4) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Appointment on contract basis---Dispensing with and termination of services---Petitioners were appointed as Additional Prosecutor General and Deputy Prosecutor-General in BS-19 & BS-18 on contract basis for a period of 3 years, extendable on performance basis---Vide impugned notification, services of the petitioners having been terminated, they had impugned said notification in constitutional petition alleging the same as arbitrary---Petitioners had claimed that impugned notification dispensing with their services be declared without lawful authority and they could be allowed to continue in service till the appointment of rightful permanent incumbents---Plea of the authorities was that all appointments through initial recruitment in the Prosecution Service were required to be effected under S.8(4) of Punjab Criminal Prosecution Service (Conditions, Functions and Powers) Act, 2006, which mandated that such appointments should be made through a selection process to be conducted by the Punjab Public Service Commission---Petitioners were appointed without undergoing any selection process of Public Service Commission---Appointments of the petitioners were on temporary/contract under a Recruitment Policy with its inbuilt limitation as to its tenure---Said appointments were valid only as a transient measure and stop gap arrangement until the regular recruitment through Public Service Commission---Validity---Process of recruitment through Commission was not only mandated by law but was necessary in order to ensure transparency and for upholding the merit---Petitioners who were appointed by way of initial recruitment, at the best were entitled to retain their posts until the process of initial recruitment for regular appointment through Public Service Commission was completed---Appointments, if any to be effected, otherwise than by initial recruitment had no nexus to the rights of the petitioners, nor was of any legal consequence to the lis---Impugned notification which appeared to have been issued in compliance with the directions of Supreme Court, no exception could be taken thereto---Petitions were dismissed.

Muhammad Saleem and 12 others. v. Secretary Prosecution, Government of Punjab, Lahore and another 2010 PLC (C.S.) 1; Abid Iqbal Hafiz and others v. Secretary Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 ref.

Farooq Amjid Mir, Tallat Farooq Sh. Muhammad Aslam Zar and Malik Nasir Ahmad Awan for Petitioners.

Muhammad Shan Gul, A.A.-G., Shujat Ali Khan, A.A.-G. and Muhammad Mumtaz Dogar for Respondents.

Date of hearing: 18th January, 2011.

2011 P L C (C.S.) 1434

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ASIM RAFIQUE and 11 others

Versus

ZARAI TARAQIATI BANK LIMITED through President and 7 others

Writ Petitions Nos.13387 and 1695 of 2010, decided on 11th March, 2011.

(a) Zarai Taraqiati Bank Limited Staff Regulations, 2005---

----Clause II (i)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Contractual appointment---Regularization---Petitioners were employees of bank on contract basis and sought regularization of their service, which the bank had declined---Validity---Management of bank decided to offer employment to newly qualified M.B.As. or holding professional degrees recognized by Higher Education Commission for boosting their specific portfolio i.e. agriculture financing but for avoiding their permanent employment bank designed the appointment letter under the name and style of Management Trainee---Bank did not deny that petitioners were performing duties towards sanction of loans, negotiating of financial facilities with customers, evaluating securities and were also recovering finances allowed to customers---Some of the petitioners were posted in branches as second officers and even managers---Petitioners negotiated all terms of finances on behalf of Bank which meant that Bank under the garb of word training was utilizing expertise of petitioners as bank officers-- High Court directed the Bank to deal the petitioners as probationary officers in terms of clause 11(i)(ii) of Zarai Taraqiati Bank Limited Staff Regulations, 2005---Petition was allowed accordingly.

Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100; Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.) 1131; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC 161; Municipal Committee, Arifwala and others v. Muhammad Ramzan and 5 others 2005 SCMR 1721; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132=2011 PLC (C.S.) 623; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 ref.

(b) Constitution of Pakistan---

----Art 199-- Constitutional petition---Maintainability---Petitioners were employees of Zarai Taraqiati Bank Limited and assailed order of their appointment on contract basis---Plea raised by Bank was that petition under Art.199 of the Constitution was not maintainable-- Validity---Entire share holding of the Bank was with Federal Government and Provincial Government or Government owned corporation---Zarai Taraqiati Bank Limited was manager of public funds which Federal Government provided them to boost up the agricultural sector of the country---Zarai Taraqiati Bank Limited was performing functions in connection with the affairs of Federation---Petition was maintainable in circumstances.

(c) Islamabad High Court (Establishment) Act (VII of 2010)---

----S. 4---Civil Procedure Code (V of 1908), S.20, Explanation 2---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Jurisdiction of Islamabad High Court---Determination---Petitioners were employees of Zarai Taraqiati Bank Limited and assailed order of their appointment on contract basis before Lahore High Court---Plea raised by bank was that petition under Art.199 of the Constitution was maintainable before Islamabad High Court---Validity---Jurisdiction of Islamabad High Court under S.4 of Islamabad High Court (Establishment) Act, 2010 was restricted to Islamabad Capital Territory only--- Though registered office of Zarai Taraqiati Bank Limited was at Islamabad but it was corporation and was carrying its business all over Pakistan including Multan and as such case of petitioners was covered under S.20, C.P.C., Explanation 2---Cause of action arose within the jurisdiction of Lahore High Court, Multan Bench and as such Lahore High Court had the jurisdiction to entertain and decide the petitions---Petitions were maintainable in circumstances.

Muhammad Suleman Bhatti for Petitioners.

Javed Iqbal Ansari for Respondents.

Date of hearing: 22nd February, 2011.

2011 P L C (C.S.) 1462

[Lahore High Court]

Before Ch. Muhammad Tariq, J

ASIF MEHMOOD BUTT

Versus

REGIONAL CEO, NBP and others

Writ Petition No.2716 of 2010, decided on 8th April, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Petitioner, Manager of Bank after having been involved in a criminal case had been acquitted of all corruption charges by the Special Court for offences in respect of banks, but after having been subjected to disciplinary action he had been dismissed from service---Even the representation filed by the petitioner was not attended to---Impugned order rejecting the representation-cum-appeal as well as order of termination of his service, were sought to be set aside with the direction for his reinstatement in service with all benefits including return of his confiscated amount and salary---Constitutional petition was not competent for two reasons: Firstly, that it was not filed against the Bank which was a legal entity and secondly, that service of the petitioner under the Bank was governed by non-statutory rules, breach of which was not redressible in constitutional jurisdiction---Case of petitioner was governed by master and servant relationship and his remedy against wrongful dismissal from or termination of service was by way of damages and not reinstatement in service---Acquittal of petitioner from criminal case was not a bar for initiation of disciplinary proceedings against him, as his acquittal would have no bearing at all on the disciplinary proceedings---Constitutional petition was dismissed accordingly.

Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315; Arif Ghafoor v. Managing Director H.M.C. Taxila and others PLD 2002 SC 13 and Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 ref.

(b) Civil service---

----Acquittal from criminal case---Initiation of disciplinary proceedings against civil servant---Scope---Acquittal of civil servant from court would not impose any bar for initiation of disciplinary proceedings against him, as his acquittal would have no bearing at all on disciplinary proceedings.

Ch. Afrasiab Khan for Petitioner.

Ehsan Ahmad Gulzar Khawaja for Respondents.

2011 P L C (C.S.) 1473

[Lahore High Court]

Before Ch. Muhammad Tariq, J

QURBAN HUSSAIN and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petitions Nos.5158, 2324, 4629 of 2010, 269 of 2011, 565 of 2009, 1375 of 2008 and Criminal Original No.267-W of 2010, heard on 30th March, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Declaring appointment as irregular and stopping payment of salaries---Petitioners, who, in response to an advertisement applied for their appointments, were appointed after due scrutiny and process of test/interview on contract basis for an initial period of three years---Petitioners joined their duties and started receiving salaries---Petitioners' services were regularized and tenure of their service was also extended for further three years---Subsequently appointments of the petitioners were declared irregular and payment of their salaries was also stopped on the ground that approval of the Finance Department for creation of relevant post was not obtained---After having been examined by scrutiny committee/recruitment committee, Authorities had appointed the petitioners and had been paying the monthly salaries---If there was any illegality committed by the authorities the petitioners could not be penalized for the same---Petitioners/appointees could not be condemned subsequently with the change of Heads of Department---Government was an institution in perpetuity and its orders could not be reversed and simply because the Heads had changed---Such act of the Departmental Authority was all the more unjustified when the petitioners otherwise were fully eligible and qualified to hold the jobs, when there was no evidence of absence or misconduct of the petitioners---Petitioners who were lawful employees of District Government and were appointed after due course of law department, had no authority to withhold their salaries.

Administrator, District Council Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320; Secretary (Schools) Government of Punjab, Education Department and others v. Yasmeen Bano 2010 SCMR 739 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 ref.

Tanveer Iqbal for Petitioners.

Shahid Mahmood Abbasi, Asstt. A.-G. for State.

Shakeel Ahmed, DCO, Attock and Muhammad Saleem, DO (Roads), Attock.

Date of hearing: 30th March, 2011.

2011 P L C (C.S.) 1487

[Lahore High Court]

Before Amin-ud-Din Khan, J

Malik FAIZ BAKHSH

Versus

GOVERNMENT OF THE PUNJAB etc.

Writ Petition No.1539 of 2011, decided on 17th May, 2011.

Punjab Local Government (Legal Advisors) Rules, 2003---

----Rr. 4(4), 9(2) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of Legal Advisor---Petitioner was appointed as Legal Advisor to the District Government for a period of two years---Appointment of the petitioner had been dispensed with, with immediate effect against the payment of one month remuneration in lieu of the notice---Validity---Rule 9(2) of the Punjab Local Government (Legal Advisors) Rules, 2003, had empowered the Government to dispense with the service of Legal Advisor and make a fresh appointment---Such power had been exercised by the Provincial Secretary Law and Parliamentary Affairs---No provision existed in law creating any vested right in favour of the petitioner by way of a permanent appointment as Legal Advisor---Every party has a right to have a counsel or a Legal Advisor of his own choice---No one could force that he be appointed or kept as counsel or Legal Advisor---Constitutional petition was dismissed.

Muhammad Arshad Khan for petitioner.

2011 P L C (C.S.) 1523

[Lahore High Court]

Before Abdus Sattar Asghar, J

EHSAN-UL-HAQUE

Versus

EXECUTIVE ENGINEER, AHMADPUR CANAL DIVISION AHMADPUR EAST and 2 others

Writ Petition No.3356 of 2001/BWP, decided on 5th July, 2011.

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

----S. 2(b)---Punjab Civil Servants Pension Rules, 1963, R.1.8(a)(b)---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of amount from employee's pension was ordered after 11 years of his retirement---Person who had retired from service did not fall within the ambit of expression of 'Civil Servant'---Petitioner/employee had no alternate remedy against the impugned order except to invoke the constitutional jurisdiction of High Court in terms of Art.199 of the Constitution---Certificates issued to employee by Authority at the time of his retirement had shown that he was given clean chit---Nothing was on record to show that employee was ever served with any show-cause notice or any charge-sheet relating to any departmental proceedings during his service or after his superannuation---Inquiry report was submitted after 11 years of retirement of the employee---No such inquiry could be conducted against the employee after one year of his superannuation as manifested in proviso of R.1.8(b) of the Punjab Civil Servants Pension Rules, 1963---Disciplinary proceedings against employee, if any, stood abated on his superannuation---Inquiry conducted at the back of a retired government servant without issuance of any charge-sheet before his superannuation could not be termed as valid departmental proceedings---Impugned inquiry held against employee after 11 years of his retirement, was without lawful authority and not sustainable in the eye of law---Letter issued to the employee for recovery of amount from his pension, was declared illegal, violative to the Pension Rules and was set aside.

Bilquis Nargis v. Secretary to Government of Punjab, Education Department 1983 PLC (C.S.) 1141 rel.

Muhammad Atif Qureshi for Petitioner.

Muhammad Iqbal Mahr, A.A.-G. along with Muhammad Nawaz Jaffari, Admn. Officer, Irrigation Department, Bahawalpur for Respondents.

2011 P L C (C.S.) 1527

[Lahore High Court]

Before Ijaz ul Ahsan, J

PARVEEN JAVAID

Versus

CHAIRMAN WAPDA and 5 others

Writ Petition No.5778 of 2007, decided on 5th July, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Line Superintendent in WAPDA---Retirement from service on attaining age of superannuation---Non-payment of pensionary benefits by authority due to pendency of different audit paras against petitioner's husband and penalties imposed upon him four years after his retirement---Validity---Petitioner's husband was retired in year 1999 and died in year 2007---Pending audit paras related to period between July 1997 to June 1998---Authority had issued letter of clearance to petitioner's husband after settling such paras---Deceased had been denied move over on ground of his incomplete service book---According to Notification dated 17-4-1967, disciplinary proceedings on charges of misappropriation etc., against an employee had to be initiated at least one year before his retirement and finalized one year thereafter---Authority had failed to finalize such proceedings at time of retirement of petitioner's husband and many years after his death, thus, its right to withhold such benefits stood abated---Orders relating to imposition of penalty, though lacking any reason or basis, had been communicated to deceased four years after his retirement from service---Nothing on record to show that deceased was associated with any enquiry or given any opportunity to defend himself or be heard before being condemned---Such orders and matter of alleged outstanding audit paras for being devoid of legal sanctity could not stand in way of release of such benefits to family of deceased having served department for whole of his life---High Court accepted constitutional petition with costs while directing authority to release all outstanding benefits of deceased including salaries, 180 days leave encashment and other arrears and grant him move over after completion of service book.

Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; Syed Abdus Salam Kazmi v. Managing Director, WASA, Multan and another 2005 PLC (C.S.) 244; Muhammad Anwar Bajwa v. Chairman, Agricultural Development Bank of Pakistan, Islamabad 2001 PLC (C.S.) 336; Zahid Ali, Assistant Excise and Taxation Officer (Retd.) v. Secretary, Excise and Taxation Department and another 2007 PLC (C.S.) 413; Mirza Muhammad lqbal v. Additional Secretary (General), Government of the Punjab Education Department, (School Wing) Lahore and another 2007 PLC (C.S.) 432; Chief Secretary, Government of Sindh and another v. Umar-ud-Din 2007 PLC (C.S.) 662 and Haji Muhammad Ismail Memon Advocate Complainant's case PLD 2007 SC 35 ref.

Syed Abdus Salam Kazmi v. Managing Director, WASA, Multan and another 2005 PLC (C.S.) 244 and Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559 rel.

(b) Fundamental Rules---

----R. 54-A---Retirement from service on attaining age of superannuation---Withholding of pensionary benefits on account of pendency of inquiry against a civil servant---Validity---Civil servant could not be penalized for an action being subject matter of an inquiry not completed before his retirement, rather same would abate automatically and he would be entitled to receive all such benefits.

Haji Muhammad Ismail Memon Advocate Complainant's case PLD 2007 SC 35; Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1-Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue, Zero Point, Islamabad 2001 PLC (C.S.) 336; Bilquis Nargis v. Secretary to Government of the Punjab, Education Department 1983 PLC (C.S.) 1141; Syed Abdus Salam Kazmi v. Managing Director WASA, Multan and another 2005 PLC (C.S.) 244 and Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559 rel.

Kashif Ali Chaudhri for Petitioner.

Ch. Fayaz Ahmad Sanghera for Respondents.

Date of hearing: 20th June, 2011.

2011 P L C (C.S.) 1537

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

IRFAN NASEER BAIG and another

Versus

PROVINCE OF PUNJAB through Secretary, S&GAD and 2 others

Writ Petitions Nos.8741 and 9654 of 2011, heard on 12th July, 2011.

(a) Punjab Delegation of Powers (Relaxation of Age) Rules, 1961---

----Relaxation in upper age limit for initial recruitment in BS-1 to 17---Powers of Administrative Secretary to grant such relaxation to a prospective candidate---Scope---Secretary having discretion either to grant or refuse to grant such benefit to prospective candidate must exercise same lawfully and in writing supported by cogent reasons after considering facts of initial recruitment to every post in a particular year---Non-exercise of such discretion in a particular year or its exercise without application of mind would reflect poor public administration---Principles.

Under Punjab Delegation of Powers (Relaxation of Age) Rules, 1961, the powers have been delegated to the Administrative Secretaries to grant relaxation in upper age limit for all the posts meant for initial recruitment. The Secretaries may or may not grant relaxation of upper age limit, but they have to exercise their discretion whenever initial recruitment takes place. The exercise of this discretion for the sake of transparency and good governance has to be in writing supported by cogent reasons in accordance with law.

The discretion vested in the Administrative Secretary determines the upper age limit of a prospective candidate for initial recruitment in a particular year, therefore, exercise of discretion prior to the public advertisement for initial recruitment is essential as it determines and provides the prospective candidate with access to lawful employment. The Administrative Secretary is, therefore, under an obligation to consider to the attending circumstances of an initial recruitment in a particular year and exercise the discretion vested in him under the law.

Rules vest discretion in the Administrative Secretaries to grant relaxation in upper age limit in cases of initial recruitment (for non-government candidates) after considering the facts of initial recruitment to every post. This discretion vested in the Administrative Secretaries is for the benefit of the citizens applying for public posts and therefore, it must be exercised in accordance with law. No doubt, it is the prerogative of the concerned Secretary to extend or not to extend the benefit of age relaxation to the prospective candidates for a particular year, but it is obligatory on the Secretary to apply mind and give reasons for his decision.

Discretion must be structured and supported by good reason. Inbuilt in this is the compulsion that discretion once vested under the law in a public officer must also be lawfully exercised. While the public officer exercising discretion has the choice to decide either way after giving reasons, he has no choice to exercise discretion in a particular year and let the recruitment process pass. Any such omission where discretion goes unexercised and un-used without application of mind, affairs go away, reflecting poor public administration.

Authority entrusted with discretionary power must enjoy the power and flexibility to consider the facts and circumstances of an individual case and independently apply its mind to it. Any fetter or over-rigid policy that prevents application of free mind renders the discretion bad in law.

Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 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; 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 rel.

(b) Constitution of Pakistan---

----Arts. 4 & 9---Right of a citizen to have access to compete for any public office/post through a lawful and transparent recruitment process---Denial of such right to a citizen would offend his fundamental right to life and due process clause contained in the Constitution---Principles.

Due process guaranteed under Article 4 of the Constitution empowers a citizen to be lawfully and transparently considered for any public office. In addition, inbuilt in the right to life under Article of the Constitution is the right of a lawful recruitment process for any public office. Any haphazardly structured or rushed recruitment process impairs the prospects of appointment, thus, depriving many the opportunities and access to compete for a public post. This denial of opportunity of employment offends the fundamental right to life. Government in regulating public appointments, besides ensuring merit and transparency of the process must also guarantee fairness and equity in the recruitment process. Good governance mandates that Government must deal with the affairs of the citizen with compassion and care.

(c) Discretion---

----Discretion must be structured by good reason and exercised lawfully---Non-exercise of discretion vested in an authority or its exercise without application of mind would reflect poor public administration---Authority having discretionary power must enjoy power and flexibility to consider facts and circumstances of an individual case and apply his independent mind thereto---Any fetter or over-rigid policy preventing application of free mind would render discretion bad in law---Application of general rule by authority to all cases without considering facts of each case and applying mind thereto would be failure to exercise discretion---Principles.

Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 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; 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 rel.

(d) Punjab Delegation of Powers (Relaxation of Age) Rules, 1961---

----[as amended vide Notification dated 4-11-2006]---Punjab Civil Servants Act (VIII of 1974), S.23---Constitution of Pakistan, Arts.9 & 199---Constitutional petition---Provincial Management Service (PMS)---BS-17, posts of---Combined Competitive Examination for such posts through Public Service Commission---Advertisement dated 3-4-2011 inviting applications for initial recruitment to such posts required age of non-government candidates to be between 21-28 years without relaxation in upper age limit---Petitioners' claimed relaxation in upper age limit on grounds that last examination took place in year 2008, but no recruitment against such post was made during last two years, resultantly they could not apply for such posts and became overage during interregnum; and that Administrative Secretary had consistently extended such benefit in past including in the year 2008---Plea of Secretary that such benefit was given for last time in year 2008 as One Time Dispensation, which could not be extended in year 2011---Validity---Secretary having discretion either to grant or refuse to grant such benefit to prospective candidate had to exercise same lawfully and in writing supported by cogent reasons after considering facts of initial recruitment to every post in a particular year---Exercise of such discretion being part and parcel of initial recruitment process, thus; its non-exercise in a particular year or its exercise without application of mind would not only reflect poor public administration, but would derail entire recruitment process---Competent Authority under Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 or even Chief Minister could not divest or deprive future Administrative Secretary of his discretion provided thereunder---Clog of such One Time Dispensation imposed on discretion of Secretary was not only illegal, but same would amount to playing a fraud on people and making a mockery of public commitment made by Government---Secretary had failed to apply his mind to facts and circumstances of case of each petitioner---Recruitment for such post in years 2009 and 2010 had not taken place---Relaxation in upper age limit had been consistently granted in past including year 2008 in order to cover period during which recruitment could not take place---Authority had to give reason for deviating from such past practice spanning over several years---Secretary had to give reasons showing co-relation between "best talent" and relaxation of upper age limit especially when government employees were enjoying benefit of such relaxation under the Rules for same post---Issuance of impugned advertisement by Secretary without exercising his discretion under the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 offended due process clause and impaired petitioners' right to life provided under Art.9 of the Constitution---High Court set aside initiation of recruitment process through impugned advertisement while directing the Secretary to re-advertise such posts after considering petitioners' case and passing speaking order with reasons whether their upper age limit ought to be relaxed while disregarding One Time Dispensation announced in the year 2008.

Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 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; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101; H.W.R. Wade and C.F. Forsyth-Administrative Law-Oxford 10th Edition pages 270-271; DE Smith, Woof and Jowell-Judicial Review of Administrative Action 5th Edition (Sweet and Maxwell-1995) and Chief Secretary, Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876 rel.

ljaz Ahmed Awan, Sarfraz Ahmad Qureshi, Malik Asif Ahmad Nissoana, Nauman Mushtaq Awan, Ms. Komal Malik Awan, Ms. Samia Bano, Rizwan Mushtaq, Mushtaq Ahmed Mohal, Muhammad Munawar Jungsher Qadri, Sheikh Khurshid Ahmad, Muhammad Shahzad Shaukat, Ch. Abdul Razzaq, Shahid Javed Chohan, Mian Abdul Ghaffar, Malik Muhammad Ali Awan, Rao Tariq Mahmood-1, Muhammad Asghar Nadeem, Barrister and Barrister Muhammad Ahmad Pansota for Petitioners (in connected petitions).

Khawaja Salman Mahmood, Asstt. A-G., Punjab, Ehsan Bhutta, Additional Secretary (Admn.) S&GAD, Muhammad Arif Qureshi, Deputy Secretary, S&GAD, Muhammad Sultan, Deputy Director (Examination) PPSC, Lahore and Muhammad Farooq Raja, Deputy Director (Legal), PPSC for Respondents.

Date of hearing: 12th July, 2011.

2011 P L C (C.S.) 1551

[Lahore High Court]

Before Muhammad Yawar Ali and Ch. Muhammad Younis, JJ

ABDUL RAHEEM KHAN

Versus

MANAGING DIRECTOR PEPCO, WAPDA HOUSE LAHORE and 2 others

I.C.A. No.203 of 2011 in Writ Petition No.7103 of 2011, decided on 20th June, 2011.

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

----R. 6(1)---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1872), S.3---Intra-court appeal---Departmental proceedings---Show-cause notice---Constitutional jurisdiction of High Court---Scope---Appellant was departmentally proceeded against by authorities and show-cause notice was issued to him---Single Judge of High Court declined to interfere in the issuance of show-cause notice---Validity---No final order having been passed against appellant and only initiation of disciplinary proceedings by competent authority against appellant were challenged, therefore, petition under Art.199 of the Constitution was not maintainable---Division Bench of High Court refused to interfere in the judgment passed by Single Judge of High Court---Intra-court appeal was dismissed, in circumstances.

Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC (C.S.) 939 and Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154 rel.

Tahir Mehmood for Appellant.

2011 P L C (C.S.) 1553

[Lahore High Court]

Before Syed Mansoor Ali Shah and Abdul Waheed Khan, JJ

SAMINA KANWAL

Versus

DIRECTOR PUNJAB FORESTRY RESEARCH INSTITUTE, FAISALABAD

Intra-Court Appeal No.281 of 2010 in Writ Petition No.285 of 2010, heard on 9th June, 2011.

(a) Civil service---

----Contractual appointment---Clause "without assigning any reason (No reason clause)" in contract---Validity---Such clause in a contract of appointment does not stand the test of due process and fundamental rights under Articles 4, 9, 14 and 25 of the Constitution, rule of law, reason, logic, ethics and good governance---While the modern world is moving towards accountability and transparency, the "no reason clause" reflects unfettered, un-muffled and unchecked discretion---Such a clause has no place in a constitutional democracy, which rests on the supremacy of rule of law---"No reason clause" can be a recipe for corruption, mismanagement, nepotism and jobbery---Foundations of good governance are based on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness---Such clauses, therefore, ex facie lack the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution---'No reason clause' is also facially discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution.

Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 1 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 rel.

(b) Contract Act (IX of 1872)---

----S. 23---General Clauses Act (X of 1897), S.24-A---Law Reforms Ordinance (XII of 1972), S.3---Punjab Contract Appointment Policy, 2004, Clause, XVII (i)---Intra Court Appeal---Public policy---Civil service---Contractual appointment, termination of---Clause "without assigning any reason"---Petitioner was contract employee and her services were terminated by authorities under the clause of the contract whereby service could be terminated without assigning any reason---Validity---Such clause in the contract of appointment of petitioner was opposed to public policy and violated S.23 of Contract Act, 1872 as well as S.24-A of General Clauses Act, 1897---Punjab Contract Appointment Policy, 2004, to the extent of "without assigning any reason" was opposed to public policy, logic and good governance---High Court struck down that portion of clause XVII(i) of Punjab Contract Appointment Policy, 2004, as unconstitutional and offensive to human dignity and reason and set aside the order of termination of appellant and declared the same to be unlawful and in violation of Punjab Contract Appointment Policy, 2004---High Court directed the authorities to consider the case of appellant for regularization in accordance with law---Intra-Court Appeal was allowed in circumstances.

Faisal Sultan v. E.D.O. (EDUCATION) and others 2011 PLC (C.S.) 419 rel.

Muhammad Ahmad Qazi for Appellant.

Kalim Ilyas, Asstt. A.-G., Punjab and Muhammad Abdul Muqeel, DFO (PFRI) for Respondent.

Date of hearing: 9th June, 2011.

2011 P L C (C.S.) 1558

[Lahore High Court]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

SOHAIL NASIR and others

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.5451 and Civil Miscellaneous No.2 of 2011, decided on 26th May, 2011.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 7, 28(f) & 34---National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) Rules, 2002, R.3.35---Contract appointment-- Additional charge---Deputy Chairman, powers of---Respondent was appointed as Director General NAB Rawalpindi on contract for a period of one year and was also given additional charge of Director General NAB Punjab---Despite termination of contractual period, respondent had been performing his functions-- Validity-- Deputy Chairman did not possess any delegated power to appoint any officer in Basic Scale-21 much less than extending tenure of contract of an officer, who was initially appointed by Chairman NAB, with the approval of Prime Minister of Pakistan---Additional charge of a vacant post could only be given for an initial period not exceeding three months with specific approval of Chairman, according to rule 3.35 of National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) Rules, 2002---Additional charge could be extended for another three months (i.e. not beyond a total period of six months), with the approval of government-- Respondent was given additional charge of Director General NAB Punjab vide order dated 22-7-2010 and the period of six months had already expired---Period of contractual appointment of respondent as Director General NAB Rawalpindi as well as period of his additional charge as Director General NAB Punjab had expired on 20-4-2011 and 21-1-2011 respectively---High Court restrained the respondent from performing his duties as Director General NAB Rawalpindi with additional charge of Director General NAB Punjab, with immediate effect---Petition was allowed accordingly.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Limited PLD 2010 SC 1109 rel.

(b) Public functionary---

----Power and authority---Exceptional circumstances---Effect---Existence of exceptional circumstances do not vest any power or authority on a public functionary, knowingly to pass an illegal and unauthorized order.

Muhammad Azhar Sidiqui for Petitioner.

M. Asad Manzoor Butt for Respondent No.10/Rana Zahid Mehmood in person.

Muhammad Ashraf Khan, Dy.A.-G. for Pakistan.

Bashir Ahmad, Deputy Prosecutor, NAB and Mian Muhammad Hanif Tahir, Legal Expert for National Accountability Bureau.

2011 P L C (C.S.) 1563

[Lahore High Court]

Before Sagheer Ahmad Qadri, J

NASREEN AKHTAR

Versus

DISTRICT OFFICER (HEALTH), LAYYAH

Writ Petition No.3124 of 2010, decided on 17th March, 2011.

Pakistan Nursing Council Act (XXVI of 1973)---

----Ss. 2(f), 12, 23 & Sched.---Constitution of Pakistan Art.199---Constitutional petition---Midwife (BS-5), post of, appointment on---Termination of service after seven days of petitioner's appointment without issuing her notice on ground that Diploma in Midwifery Course issued to her by Skill Development Council was invalid due to non-affiliation of such Council with Pakistan Nursing Council---Validity---Qualification for appointment on such post as advertised by Authority was confined to candidates possessing Diploma/Certificate in Midwifery Course from a recognized institution---According to provisions of Ss.2(f) & 12 of Pakistan Nursing Council Act, 1973, Skill Development Council (a joint project of National Training Bureau, Government of Pakistan, World Bank and International Labour Organization) was not an institution recognized by Pakistan Nursing Council---Diploma provided by Skill Development Council for being an unrecognized institution could not be made basis for providing appointment in view of prohibition contained in S.23 of Pakistan Nursing Council Act, 1973---Petitioner was not possessing required Diploma, but she got appointment through unlawful means with assistance of an official of Authority against whom departmental action had been taken---As per appointment letter, petitioner's appointment was terminable by giving one month's notice or pay in lieu thereof---Petitioner had been appointed due to certain acts or omissions on the part of Authority's own official, Authority while terminating her service was obliged to give her such notice or pay---Appointment of petitioner was unlawful, and she was entitled to pay of notice period---High Court dismissed constitutional petition in circumstances.

Tariq Zulfiqar Ahmad Chaudhry and Rafique Ahmad Malik for Petitioner.

Mirza Muhammad Saleem Baig, A.A.-G.

Dr. M. Khalid Naeem, District Officer (Health), Layyah.

2011 P L C (C.S.) 1569

[Lahore High Court]

Before Nasir Saeed Sheikh, Chairman, Ijaz ul Ahsan and Sh. Ahmad Farooq, Members

MUHAMMAD ASIF RANA

Versus

LAHORE HIGH COURT, LAHORE

Service Appeal No.14 of 2007, heard on 24th June, 2011.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Letter No.S(R)-3542S&GAD4-8/65-SO-X111, dated 12-2-1968, paras. 4 & 8---Annual Confidential Report---Expunction of remarks---Grievance of judicial officer was that remarks in question in the Annual Confidential Report were written by an officer not competent to write, as the judicial officer had not served for ninety days under that reporting officer---Validity---Minimum time as provided by instructions contained in Letter No.S(R)-3542S&GAD4-8/65-SO-X111, dated 12-2-1968, for a reporting officer to form a judicious opinion about work of his subordinate for the purpose of writing a report on his work and conduct, was ninety days and report recorded in respect of period less than the Minimum laid down period was liable to be ignored---Judicial officer did not work under the supervision of the reporting officer for the prescribed period of three months and he was transferred from the station concerned even prior to the posting of reporting officer at that station as District and Sessions Judge---Such formation of judicious opinion by reporting officer about the work and conduct of the judicial officer was out of question---Adverse remarks could not be made on the basis of personal knowledge and information as the same was violative of paras 4 and 8 of Letter No. S(R)-3542 S&GAD 4-8/65-SO-X111, dated 12-2-1968---Neither the reporting officer was competent nor justified to record the adverse remarks in Annual Confidential Report of judicial officer for the period in question---High Court directed to expunge the adverse remarks recorded in the Annual Confidential Report of the judicial officer---Appeal was allowed accordingly.

Ijaz Mehmood Ch. v. Lahore High Court Civil Revision Petition No.12 of 2004 in Civil Appeal No.13 of 2000 and Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749 rel.

1990 SCMR 1510; 1999 SCMR 2117; 1999 SCMR 2141 and PLD 2004 SC 191 distinguished.

(b) High Court---

----Administrative matters---Powers---High Court in administrative matters cannot change/alter the mandate of law/rules and regulations.

(c) Civil service---

----Officer on Special Duty---Annual Confidential Report, recording of---Scope---Posting of a judicial officer as Officer on Special Duty cannot be equated with suspension and not an impediment in recording of Annual Confidential Report by him.

Syed Ijaz Qutab for Appellant.

Mian Manzoor Hussain for Respondent.

Date of hearing: 24th June, 2011.

2011 P L C (C.S.) 1607

[Lahore High Court]

Before Sagheer Ahmad Qadri, J

Syed HASNAT AHMED BUKHARI

Versus

BAYER PAKISTAN (PVT.) LIMITED and others

Civil Revision No.497 of 2009, decided on 13th July, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Contract appointment---Termination of service---Plaintiff was contract employee whose services were terminated---Plaintiff sought reinstatement in service with recovery of back benefits against defendant company---Suit and appeal filed by plaintiff were dismissed by Trial Court and Lower Appellate Court respectively---Validity---Declaration under S.42 of Specific Relief Act, 1877, could only be passed in respect of status or right of a person if he had any title or legal character or right to any property etc.---Rights and liabilities of plaintiff flowed only from contract / letter of appointment which itself stipulated conditions for termination of services of plaintiff, which procedure was followed by defendant company rightly or wrongly and plaintiff's services were terminated---If plaintiff had any grievance on his termination of services then he might sue defendant company for damages---Plaintiff could not claim any vested right to be appointed in defendant company, which was a private company---Findings of Trial Court and Lower Appellate Court were lawful and justified and did not call for interference by High Court in its revisional jurisdiction under S.115 C.P.C.---High Court declined to interfere in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Ghulam Mustafa Khairati v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and another 2005 PLC (C.S) 417; Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S) 1300; Dr. Lateef Siddiqui v. State Petroleum Refining and Petro Chemical Corporation (Pvt.) Ltd. (PERAC), Karachi and 2 others 1997 PLC (C.S) 1014; Holgar HAHN v. Comset Services Limited and another 2007 MLD 863; Syed Aziz Ahmad v. Messrs Bolan Bank Limited through President 2002 CLC 857 and Gool Bano and another v. Aurangzeb 2000 CLC 1796 ref.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 rel.

Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 distinguished.

Ibad-ur-Rehman Lodhi for Petitioner.

Aftab Ahmed Butt for Respondent No.1.

2011 P L C (C.S.) 1615

[Lahore High Court]

Before Syed Mansoor Ali Shah and Abdul Waheed Khan, JJ

RAFAQAT ALI

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH) and others

I.C.A. No.292 of 2011, heard on 21st June, 2011.

Civil service---

----Appointment---Appellant, in response to advertisement, applied for the relevant post and went through the recruitment process as prescribed under the Recruitment Policy, 2004---Merit list of 56 candidates was prepared and further a waiting list of 14 candidates from amongst the successful candidates was also prepared and appellant was placed at Serial No.10 of the waiting list on basis of seniority---Later on only 47 out of 56 candidates joined and nine seats fell vacant which were filled out of the waiting list---As a result, appellant was moved to Serial No.1 of the waiting list---Subsequently when a post fell vacant due to termination of the officer holding said post, appellant was not considered for said post on the ground that waiting list was valid for 90 days and that after expiry of said period, waiting list had lapsed---Validity---No plausible explanation had been given for fixing 90 days as the life span of the waiting list---Purpose of preparing of waiting list from amongst the successful candidates, was to have a contingency reserve and a pool of successful candidates who could immediately fill vacancies as they arise---Waiting list was also advantageous because the recruitment process could not be initiated for a few posts that fell vacant and as a contingency, the candidates short listed in the waiting list could fill those posts---As vacancy could arise at any time, the contingency plan in the shape of an operational waiting list must also be available as long as the post continued and there could be no time frame or a cut off date for the expiry of the waiting list---Only time, waiting list might lose its utility was when the eligibility criteria to the post in question was altered; or if the post itself was abolished or restructured or reorganized; in that situation the candidates on the waiting list, were no more eligible and fresh recruitment would be called for---Once appellant had been placed on the waiting list, he had developed legitimate expectation to be considered for appointment as soon as vacancy would arise---Denying appointment to appellant on the ground of lapse of waiting list by mere efflux of time, would offend legitimate expectation of the appellant---Doctrine of legitimate expectation was rooted in fairness---When a person would invoke 'legitimate expectation' he would not rely upon an enforceable common law or statutory right, he was merely asking to be dealt with fairly---Appellant could not have been deprived appointment to the vacant post on the ground that waiting list lapsed after 90 days---Impugned order of Single Judge of High Court was set aside in intra-court appeal and authorities were directed to appoint the appellant against the vacant post.

Sharp v. Wakefield 1891 AC 173; Union of India v. Kuldeep Singh (2004) 2 SCC 590; Aman Ullah Khan and others v The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; 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; Delhi Transport Corporation v. D. T. C. Mazdoor Congress and others AIR 1991 SC 101 and Bingham LJ in R v. IRC exp IMK (1990) 1 WLR 1545 rel.

Zahid Farani Sheikh for Appellant.

Kaleem Ilyas, Addl. A.-G. and Shameem-ur-Rehman, Litigation Officer for Respondents.

Date of hearing: 21st June, 2011.

2011 P L C (C.S.) 1630

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

WASEEM ALI

Versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB and 2 others

Writ Petition No.17597 of 2011, decided on 6th September, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contract employee---Lapse of contractual period---Extension of contract---Termination of services---Regularization, right of---Appointment order, significance of---Services of the petitioner, who was a contract employee, were terminated by the Authority---Petitioner, assailed the termination order and sought reinstatement in service and the regularization of his post in view of a Circular issued by Government---Contention of the petitioner was that despite satisfactory service, the Authority, instead of regularizing him, had with mala fide intention and ulterior motive terminated his services---Validity---Appointment order of the petitioner specifically mentioned that the contract appointment will neither confer any right of regular appointment to the post nor the service shall count towards seniority---Held, Authority was neither required nor bound to extend the contract period of the petitioner or to regularize his services.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 applied.

(b) Constitution of Pakistan---

----Art. 199--- Constitution petition--- Contract employee--- Civil service---Termination of contractual service---Lack of propriety in termination of service---Denial of extension and regularization of service---Initial appointment on the basis of degree not recognized by Higher Education Commission---Advertisement of the post was made by the Authority without any requirement that the degree should be recognized by the Commission---Initial appointment of the petitioner was accordingly made by the Authority against the said advertisement on a degree not recognized by the Commission---Validity---Advertisement for the post on the basis of which the petitioner was appointed showed that there was no requirement at the time of appointment that the degree should be recognized by the Commission---Reason which was made basis by the Authority for denying extension or regularization in the service of the petitioner, that he obtained the initial appointment on the basis of a degree from an institution which was not recognized by the Commission, was incorrect and tantamounted to stigmatizing the petitioner and it was entirely misconceived by the Authority to levy such an allegation and the petitioner could not be stigmatized that he obtained his initial appointment on the basis of a degree which was deficient---High Court observed that even if the allegation against the petitioner was presumed to be true then it was a case of extreme negligence and lack of propriety on the part of the Authority to have given employment to a person who did not meet the eligibility criteria, in the first instance, and further even if it was presumed that a mistake was made in making the initial appointment then the question arose as to why such mistake was not noted by the Authority during the whole period of contractual service of the petitioner---Authority had not acted with propriety in dealing with the petitioner and the petitioner was declared by the High Court to be at liberty to seek compensation against the Authority before the appropriate forum for being stigmatized while serving his contractual employment.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contract employee---Service beyond the period of contract, legality of---Salaries and emoluments, entitlement to---Legitimate expectancy, principle of---Contention of the petitioner was that despite continuing to perform his duties for further six months after the expiry of the contract, the Authority had not paid salaries and emoluments for the post-contractual period---Validity---After the expiry of the contract period, the petitioner continued to serve with the legitimate expectancy that his contract period will be extended and he was also not restrained by the Authority to perform his service---Although, the period of contract had expired on 2-10-2010, however, it was for the first time on 7-4-2011 that the petitioner was intimated by the Authority that no extension could be allowed in his contract period and his services were terminated with immediate effect on that date---Held, that petitioner was entitled to receive salaries and all other emoluments from the Authority for the services rendered after the date of expiry of the contract till the date of termination of service---High Court directed that authorities to pay the salaries and emoluments of the petitioner for the period he rendered services after the date of expiry of the contract till the date of termination of his service.

Majid Ali Wajid for Petitioner.

Tahir Ahmad Sandhu for Respondents.

2011 P L C (C.S.) 1645

[Lahore High Court]

Before Ch. Shahid Saeed, J

ABDUL MAJEED and 92 others

Versus

SECRETARY HIGHER EDUCATION, LAHORE and another

Writ Petition No.19547 of 2010, heard on 17th June, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Refund of the salary and other emoluments given on account of back-benefits---Petitioners, who were employed as lecturers on ad hoc basis, their services were terminated---Appeals of petitioners against orders of their termination was dismissed by Service Tribunal---Supreme Court accepted appeal and directed the Authority to initiate process of regularization of services of the petitioners through Public Service Commission---Services of the petitioners were finally regularized and intervening period i.e. from date of termination to the date of joining was considered as on duty with full financial and service benefits---Petitioners reported for duty and were also paid salaries and other emoluments---Subsequently, Provincial Secretary Education declared the intervening period of the petitioners (from the date of termination to the date of joining), as leave without pay and directed the petitioners to refund the arrears---Supreme Court had ordered to regularize the services of the petitioners, but there was no specific order for awarding back-benefits to the petitioners---Contention of counsel for the petitioners that the benefits once granted, could not be withdrawn, was misconceived, as it was not a principle of law that order once passed would become irrevocable---Public authority which could pass an order was amply empowered to vary, amend or rescind that order---Recalling of earlier order and directing the petitioners to refund the amount received by them as back-benefits, was in accordance with law---Party could claim numerous reliefs, but it was the discretion of the court to grant all or some of those reliefs---Services of the petitioners were terminated and they having not served from the date of termination to the date of joining, they were not entitled to payment of salary and other emoluments for the period during which they did not serve.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Asad Ali Alvi v. Secretary, Government of Punjab, Irrigation and Power Department, Lahore and 8 others 2007 PLC (C.S. 924; Shaukat Ali v. District Government through Nazim/Chairman), Selection Committee and 4 others 2005 PLC (C.S.) 790; Muhammad Anwar v. Director Lahore Museum (2009 PLC (C.S.) 572; Mirza Inayat Beg v. The WAPDA through Chairman and 3 others 2002 PLC (C.S.) 1237 and Controlling Authority, N.-W.F.P. Board of Technical Education, Peshawar and another v. Abdul Salam Secretary, N.-W.F.P. Board of Technical Education PLD 1993 SC 200 distinguished.

Sharjeel Adnan Sheikh for Petitioners.

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

Date of hearing: 17th June, 2011.

2011 PLC (C.S.) 7

[Peshawar High Court]

Before Ejaz Afzal Khan, C. J. and Mazhar Alam Khan Miankhel, J

ZIAULLAH KHAN

Versus

GOVERNMENT OF PAKISTAN through Secretary Law, Justice and Human Rights, Islamabad and 3 others

Writ Petition No.2509 of 2009 and C.M. No.273 of 2010, decided on 27th August, 2010.

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 28---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Appointment and regularization of service---Petitioner initially worked with the National Accountability Bureau as private investigator for 6 years; and then he worked for 2 years as a contract employee in BPS-18---Services of petitioner once again were hired as such for another period of six months---Petitioner, being a qualified, skilful and experienced person sought regularization of his service---Petitioner had further asserted that he deserved alike treatment as was meted out to one of his colleagues who being contract employee in BPS-18, was inducted in regular service of the department in BPS-19 on the directive/ratification issued by the Prime Minister---Petitioner had also submitted that his name was not considered by the Chairman for the regular post of BPS-18 advertised by the department, despite strong recommendations of Director-General, while still forty sanctioned posts of BPS-18 were lying vacant for the last so many years---When a similarly placed person i.e. person employed on contract basis; and that too having no basic qualification for initial recruitment, could be inducted as a regular employee; qualified and experienced person like petitioner, who had worked in the department, having many commendations at his credit, could also be inducted as a regular employee, when he had a sufficient experience with the department at his credit---Petitioner being qualified, eligible and experienced person, also deserved the alike treatment of regularization of his service---Authorities were directed to consider the name of the petitioner for regularization of his service.

(b) Constitution of Pakistan---

----Art. 25--Equality before law---Principles---Equality before law, was the basic concept of Islam and that concept had been borrowed by English, American and European Constitutions from Islam---Two similarly placed persons could not be treated differently---Principle of equality before law and prohibition of discrimination between the similarly placed persons, was the essence of rule of law---Even selective, discriminatory and distinctive treatment by the Government was also prohibited---Two similarly and equally placed persons, could not be treated differently.

M. Zahid Aman and Shakeel Ahmad for Petitioner.

Nemo for Respondents.

Date of hearing: 15th July, 2010.

2011 P L C (C.S.) 16

[Peshawar High Court]

Before Miftah-ud-Din Khan and Abdul Samad Khan, JJ

NOREEN SULTAN

Versus

Prof. MUHAMMAD HUSSAIN KHAN and 4 others

Writ Petition No.364 of 2009, decided on 23rd June, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Delay in filing the petition---Effect---Constitutional petition against impugned order was instituted by the petitioner after inordinate delay of six years and eight months---Petitioner though had pleaded that he had been agitating the matter before Departmental Authorities with due diligence, but it would not be sufficient to absolve the petitioner of the penal consequences of laches as there was considerable delay in filing the petition---Constitutional petition being incompetent and not maintainable, was dismissed, in circumstances.

(b) Limitation Act (IX of 1908)---

----Ss. 3 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Laches, meaning of---Concept of laches in civil matters---Laches in simplest form would mean failure of a person to do something which should have been done by him within reasonable time; and was not synonymous with delay alone, but it could be worked out to the disadvantage of another person in the matter of his right---No doubt marked distinction existed in between delay in filing legal proceedings within the period specified in Limitation Act, 1908 or any other law and delay in filing constitutional petition for which no statutory period was provided in that for the purpose of limitation, delay. of each and every day was to be explained by showing sufficient cause for condonation thereof---Concept of laches in service matters was different from ordinary litigation as principle of laches were strictly adhered to when a public servant or employee would seek restoration to his office or pray for redress of other grievances against wrongful orders.

(c) Constitution of Pakistan---

----Art. 199---Limitation Act (IX of 1908), Ss.3 & 5---Constitutional jurisdiction, exercise of---Limitation---Remedy under constitutional jurisdiction of High Court could not be availed of if it was not sought within reasonable time while exercising jurisdiction under Art.199 of the Constitution---High Court would grant relief on equitable principles subject to the condition that person invoking its jurisdiction was vigilant and not negligent and/or indolent or plausible explanation in respect of delay was forthcoming on record.

(d) North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 9---Constitution of Pakistan, Art.199---Constitutional petition--Promotion, entitlement to---Qualifications for the post of Professors, were M. B. B. S. or equivalent medical qualification, recognized/registered by PM & DC, whereas experience in respect thereto was three years teaching experience as Associate Professor in the respective subjects; provided that the total experience of Assistant Professor and Associate Professor would not be less than eight years---Respondent in the present case, was promoted as Associate Professor on 6-4-1994, whereas the petitioner was promoted as such on 11-12-2001---At the time of promotion of respondent as Professor, petitioner, in circumstances had experience of eleven months as Associate Professor---Being short of requisite experience petitioner had no right whatsoever muchless, legal right to be considered for promotion to the post of Professor---Petitioner, in circumstances had no locus standi to challenge promotion order of respondent as petitioner herself was ineligible to compete---Petitioner being not at all aggrieved person within the meaning of Art.199 of the Constitution was precluded to legitimately maintain the constitutional petition.

Muhammad Ali Khan Jandoon for Petitioner.

Abdur Rehman Qadir for Respondent No.1.

Sajid Iqbal for Respondents Nos.2 to 4.

Fawad Saleh for Respondent No.5.

Date of hearing: 23rd June, 2010.

2011 PLC (C.S.) 223

[Peshawar High Court]

Before Sardar Shaukat Hayat and Imtiaz Ali, JJ

RAIS KHAN and 23 others

Versus

DIRECTOR OF EDUCATION, FATA N.-W.F.P., PESHAWAR and 4 others

Writ Petition No.812 of 2007 with C.M. No.488 of 2009, decided on 18th June, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Petitioners were appointed on contract basis as PTC Teachers through Departmental Selection Committee---Deputy Director of Education in order to implement the verdict of apex court, High Court and Department's notification regarding' contract policy, directed all Agency Education Officers in FATA to regularize the services of all those appointees from the date of their appointments who were considered for appointment in pursuance to advertisement published before the introduction of Contract Policy---Petitioners applied for regularization of their services as they were interviewed for the post of PTC prior to the enforcement of said Contract Policy---Contention of authorities was that as posts against which the petitioners were appointed, were advertised after the Contract Policy, they were not entitled to the benefit of regularization---Validity---Interview and selection of the petitioners was held before the Contract Policy, but their appointment was delayed for no fault on their part--High Court accepting constitutional petition declared that the petitioners were interviewed and recommended for selection to the post of PTC Teachers prior to the Contract Policy; and directed the authorities to regularize their services from the date of their appointment.

Rukhsar Ali and 11 others v. Government of N.-W.F.P. and 3 others reported through 2003 PLC (C.S.) 1453 ref.

Muhammad Ijaz Khan for Petitioners.

S. Ali Raza, D.A.-G. and Iqbal Muhammad D.A.-G. for Respondents.

Date of hearing: 13th April, 2010.

2011 PLC (C.S.) 259

[Peshawar High Court]

Before Syed Sajjad Hassan Shah and Yahya Afridi, JJ

ZAFAR IQBAL

Versus

PAKISTAN INTERNATIONAL AIRLINES through General Manager (Personnel) PIA, Karachi and 4 others

Writ Petition No.341 of 2007, decided on 29th September, 2010.

Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 29, 30 & 31---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Non-­statutory rules---Petitioner was an employee of Airline Corporation and sought his reinstatement in service---Validity---Pakistan International Airlines Corporation had framed Employees (Service and Discipline) Regulations, 1985, however the same were neither notified with the approval of Federal Government nor placed before Parliament as required under sections 29, 30 and 31 of Pakistan International Airlines Corporation Act, 1956---Service Regulations of Pakistan International Airlines Corporation could not be termed as "Statutory Rules" determining terms and conditions of service of employees of Pakistan International Airlines Corporation---High Court, in exercise of Constitutional jurisdiction under Art. 199 of the Constitution, declined to interfere in dismissal of petitioner by Airline Corporation---Petition was dismissed in circumstances.

Mobinul Islam's case PLD 2006 SC 602; Salahuddin v. Messrs Frontier Sugar Mills and Distilleries Ltd. PLD 1975 SC 244; Collector of Customs, Excise and Sales Tax v. Messrs Flycraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; Mrs. Aneesa Rehman v. PIAC 1994 SCMR 2232; Nighat Yasmin v. PIAC 2004 SCMR 1820; Arshad Jamal v. N.-W.F.P. Forest Development Corporation 2004 PLC (C.S.) 802; PIAC v. Nasir Jamal Malik 2001 SCMR 934 and Hafeez Abbasi v. Managing Director PIAC 2002 SCMR 1034; PIAC v. Samina Masood PLD 2005 SC 381; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Muhammad Idrees's case PLD 2007 SC 681 and Pakistan Telecommunication v. Muhammad Zahid 2010 SCMR 253 rel.

PIAC v. Tanweeur Rehman PLD 2010 SC 676 fol.

Qazi Jawad Ihsanullah Qureshi for Petitioner.

Abdul Zakir Tareen for Respondent.

Date of hearing: 30th August, 2010.

2011 PLC (C.S.) 270

[Peshawar High Court]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hussain Shah, JJ

Dr. SIKANDAR KHAN

Versus

GOVERNMENT OF KPK through Chief Secretary, Peshawar and 2 others

Writ Petition No.3082 of 2010, decided on 30th September, 2010.

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

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner sought direction to the authorities to take an appropriate action in respect of show-cause notice issued to him for disciplinary action and termination of his services being a civil servant---Petitioner asserted that after submission of his reply to show-cause notice in the year 2005, no decision had been taken till date by the authorities---Petitioner's grievances had fallen under the terms and conditions of his service, for the redressal of which a special forum provided under the law was very much there and the petitioner had also invoked its jurisdiction---Departmental authorities had yet to pass a final order after considering the matter in the light of reply of the petitioner and thereafter petitioner would certainly have a right to raise all questions of law and facts before the competent authority---Such aspect of the matter would make constitutional petition not maintainable---Constitutional petition was dismissed by High Court.

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

----S. 3---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.3----North-West Frontier Province Service Tribunals Act (I of 1974), S.8---Constitution of Pakistan, Art.199----Constitutional petition---Civil service---Question of terms and conditions of service---Jurisdiction---Scope---Jurisdiction of other courts and forums were ousted by the specific bar provided in N.-W.F.P. Civil Servants Act, 1973 and N.-W.F.P. Servants Tribunals Act, 1974 where the questions of terms and conditions of a civil servants were involved.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioner after submission of his reply to the show-cause notice issued in the year 2005 for the termination of his service and disciplinary action was directed by authorities vide letter dated 13-9-2005 to file review petition in case of imposition of penalty but after lapse of five complete years, the petitioner awoke from his deep slumber and filed constitutional petition in August, 2010---Such would raise many questions for his slackness which alone would disentitle him for the equitable relief he was asking for---Case of the petitioner was hit by the principle of laches---Constitutional petition was dismissed.

Waqar Ahmed Seth for Petitioner.

Nemo for Respondents.

Date of hearing: 30th September, 2010.

2011 PLC (C.S.) 284

[Peshawar High Court]

Before Ejaz Afzal Khan, C. J. and Yahya Afridi, J

Dr. Miss SHAMEEM ALAM

Versus

CHIEF EXECUTIVE KHYBER MEDICAL COLLEGE, PESHAWAR and 4 others

Writ Petition No.2280 of 2010, decided on 30th September, 2010.

(a) North-West Frontier Province Medical and Health Institutions and Regulations of Health Care Services Ordinance (XLVII of 2002)---

----S. 6---North-West Frontier Province Medical Institutions and Regulations. of Health Care Rules, 2001, R. 9---Term "Management Committee" as used in R. 9 of North-West Frontier Province Medical Institutions and Regulations of Health Care Rules, 2001---Validity---Management Council deals with management and administration of institutions, while Management Committee deals with administration and management of Public Health Institutions---Such term being in conflict with parent statute would be read as "Management Council" even though mentioned as Management Committee in Rules, 2001.

(b) North-West Frontier Province Medical and Health Institutions and Regulations of Health Care Services Ordinance (XLVII of 2002)---

----S. 6---North-.West Frontier Province Medical Institutions and Regulations of Health Care Rules, 2001, Rr.9 & 10(6)---Right of an employee of Institution to compete with civil servant for a post to be filled by promotion---Scope---Vacancy occurring in higher grade would be filled out of joint seniority list of employees of Institutions and civil servants not having opted for absorption---Principles.

Abdul Latif for Petitioner.

Lal Jan Khattak, D.A.G., Ghulam Shahid Jally and Waqar Ahmad Seth for Respondents.

Date of hearing: 30th September, 2010.

2011 P L C (C.S.) 495

[Peshawar High Court]

Before Imtiaz Ali and Yahya Afridi, JJ

Miss RUKHSANA QURESHI

Versus

PROVINCE OF N.-W.F.P. through Secretary Planning Cell, Sports, Cultural, Tourism Archaeology and Museums Department and 4 others

Writ Petition No.1617 of 2008, decided on 16th November, 2010.

Khyber Pakhtoon Khawa Civil Servants Act (XVIII of 1973)---

----Ss. 2(b) & 10(2)---Constitution of Pakistan, Art.199---Constitutional petition---Civil servant, status of---Determination---Petitioner had been serving in Sports, Culture, Tourism, Archaeology and Museum Department since 30-8-1995 and in year 2008, she was informed that her status was that of a contract employee---Department admitted that petitioner was an employee of Government working against regular sanctioned permanent post but on contract basis---Validity---Petitioner had not been only drawing salary from revenue side since February, 2000, but was also promoted to higher post in Basic Pay Scale-11 on recommendation of Department Promotion Committee---Petitioner was also enlisted in seniority list---All such were incidents of regular service as against contract or temporary employment---Even if there was any formal deficiency in appointment of petitioner, the same stood removed when she being treated as a regular employee, was promoted on the recommendation of Departmental Selection. Committee---High Court in exercise of Constitutional jurisdiction, declared petitioner as a regular civil servant within the meaning of section 2 (b) of Khyber Pakhtoon Khawa Civil Servants Act, 1973---Petition was allowed accordingly.

2006 MLD 855, 2004 SCMR 303=2004 PLC (C.S.) 301, 2004 SCMR 1662, 2006 SCMR 285=2006 PLC (C.S.) 1216; 2004 SCMR 1077; Civil Appeals No.44 to 79 of 2004 and Civil Petitions No.1409 of 2004 and 319 of 2005 ref.

1996 SCMR 413 rel.

Shahzada Shahpur Jan for Petitioner.

Barrister Waqar Ali, Dy. A.-G. for Respondents.

Date of hearing: 5th November, 2010.

2011 P L C (C.S.) 1034

[Peshawar High Court]

Before Attaullah Khan and Sher Muhammad Khan, JJ

SHAHID FAROOQ

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 3 others

Writ Petition No.386 of 2010, decided on 30th November, 2010.

(a) Civil Service---

----Removal from service---Even if a person, who was temporary employee or employed on contract basis, was to be condemned for misconduct, in that event he was entitled to a fair opportunity to clear his position; which would mean that there should be regular inquiry in terms of Efficiency and Discipline Rules before condemning him of the alleged misconduct.

Muhammad Amjid v. The Chief Engineer, WAPDA and others 1998 PSC 337 and The Secretary, Government of the Punjab v. Riazul Haq 997 SCMR 1552 ref.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Termination of service---Employee who was employed as Line Superintendent Grade-1 on contract basis, was elevated to the post of Junior Engineer on the basis of meritorious service rendered by him to the department---Subsequently a criminal case was registered against him and due to that he was relieved from his service and his appeal for extension of contract agreement was also disallowed---Only ground provailed upon the authorities not to extend his contract period was his involvement in a criminal case registered against him, but the employee was acquitted in that case---Authorities without awaiting the result of the trial passed the impugned order against him---Charge of "moral corruption" should have been properly investigated, inquired and proved after providing him opportunity of hearing---Person could be found guilty after proper inquiry, on the basis of solid evidence and providing opportunity of hearing to the subject---Without following the proper procedure, the allegations, how strong it could be, could not be considered sufficient for finding a person guilty of the charge---Employee was deprived of fair chance to clarify his position---Stigma attached to the career of the employee/petitioner with registration of criminal case had been removed by the competent court with the order of his acquittal, but same still stuck to the future of employee with the impugned order---Similarly appointed employees on contract basis were regularized, but the employee/petitioner was not regularized as he was under termination due to registration of criminal case against him in which he was acquitted---Petitioner/employee should not have been deprived of his service on the grounds which did not exist at the time of regularization and he should not have been discriminated---Petitoner was also entitled to be treated equally without discrimination by the Department; he was deprived of his service without following the mandatory provisions of law, in spite of the fact that allegation of moral corruption was levelled against him, without following the mandatory provisions of Efficiency and Discipline Rules---Impugned orders were void ab initio and of no legal effect---Employee was ordered to be reinstated from the date of his termination and his service was also ordered to be regularized like other employees.

Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Acquittal---Every acquittal, whether on merits or on other grounds was "honourable" and should be accepted as such.

Chairman Agricultural Development Bank of Pakistan v. Mumtaz Khan PLD 2010 SC 695 and Superintending Engineer v. Muhammad Yousaf 2007 SCMR 537 ref.

Muhammad Shah Nawaz Khan Sikandri for Petitioner.

Arif Rahim Khan Ustrana for Respondent.

Date of hearing: 30th November, 2010.

2011 P L C (C.S.) 1034

[Peshawar High Court]

Before Attaullah Khan and Sher Muhammad Khan, JJ

SHAHID FAROOQ

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 3 others

Writ Petition No.386 of 2010, decided on 30th November, 2010.

(a) Civil Service---

----Removal from service---Even if a person, who was temporary employee or employed on contract basis, was to be condemned for misconduct, in that event he was entitled to a fair opportunity to clear his position; which would mean that there should be regular inquiry in terms of Efficiency and Discipline Rules before condemning him of the alleged misconduct.

Muhammad Amjid v. The Chief Engineer, WAPDA and others 1998 PSC 337 and The Secretary, Government of the Punjab v. Riazul Haq 997 SCMR 1552 ref.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Termination of service---Employee who was employed as Line Superintendent Grade-1 on contract basis, was elevated to the post of Junior Engineer on the basis of meritorious service rendered by him to the department---Subsequently a criminal case was registered against him and due to that he was relieved from his service and his appeal for extension of contract agreement was also disallowed---Only ground provailed upon the authorities not to extend his contract period was his involvement in a criminal case registered against him, but the employee was acquitted in that case---Authorities without awaiting the result of the trial passed the impugned order against him---Charge of "moral corruption" should have been properly investigated, inquired and proved after providing him opportunity of hearing---Person could be found guilty after proper inquiry, on the basis of solid evidence and providing opportunity of hearing to the subject---Without following the proper procedure, the allegations, how strong it could be, could not be considered sufficient for finding a person guilty of the charge---Employee was deprived of fair chance to clarify his position---Stigma attached to the career of the employee/petitioner with registration of criminal case had been removed by the competent court with the order of his acquittal, but same still stuck to the future of employee with the impugned order---Similarly appointed employees on contract basis were regularized, but the employee/petitioner was not regularized as he was under termination due to registration of criminal case against him in which he was acquitted---Petitioner/employee should not have been deprived of his service on the grounds which did not exist at the time of regularization and he should not have been discriminated---Petitoner was also entitled to be treated equally without discrimination by the Department; he was deprived of his service without following the mandatory provisions of law, in spite of the fact that allegation of moral corruption was levelled against him, without following the mandatory provisions of Efficiency and Discipline Rules---Impugned orders were void ab initio and of no legal effect---Employee was ordered to be reinstated from the date of his termination and his service was also ordered to be regularized like other employees.

Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Acquittal---Every acquittal, whether on merits or on other grounds was "honourable" and should be accepted as such.

Chairman Agricultural Development Bank of Pakistan v. Mumtaz Khan PLD 2010 SC 695 and Superintending Engineer v. Muhammad Yousaf 2007 SCMR 537 ref.

Muhammad Shah Nawaz Khan Sikandri for Petitioner.

Arif Rahim Khan Ustrana for Respondent.

Date of hearing: 30th November, 2010.

2011 P L C (C.S.) 1445

[Peshawar High Court]

Before Mian Fasih-ul-Mulk, J

MIR HUSSAIN

Versus

Messrs HEAVY ELECTRIC COMPLEX and others

Civil Revision No.3 of 2009, decided on 28th February, 2011.

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

----S. 42---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Payment of Wages Act (IV of 1936), S.15---Civil Procedure Code (V of 1908), S.9 & O.VII, R.10---Suit for declaration---Transfer of plaintiff from Pakistan Machine Tool Factory (PMTF) to Heavy Electric Complex (HEC)---Plaintiff claiming gross salary at time of his transfer from PMTF to HEC and further promotion in executive pay scale in HEC---Dismissal of plaintiff's appeal by Service Tribunal on 18-9-2003---Dismissal of plaintiff's appeal on 1-11-2006 by Supreme Court for having abated---Filing of suit on 15-12-2006---Defendant's plea that plaintiff could seek his remedy from an authority under S.15 of Payment of Wages Act, 1936; and that suit was time barred---Order of Trial Court returning, plaint for lack of jurisdiction upheld by Appellate Court---Validity---Suit was within time as period of 90 days would start running from dismissal of plaintiff's appeal by Supreme Court on 1-11-2006 and not prior thereto---Plaintiff was neither a civil servant under Civil Servants Act, 1973 nor a workman under Labour Laws---Right without remedy not possible---High Court set aside impugned orders and remanded case to Trial Court for its decision on merits.

Muhammad Mubeen-ul-Islam and others v. Federation of Pakistan and others PLD 2006 SC 602; Rana Usman Ali and another v. National Bank of Pakistan 1982 CLC 1234; Khawaja Muhammad Akbar and 5 others v. Khawaja Fateh Muhammad and 15 others 1993 MLD 76; Divisional Superintendent, Pakistan Railways, Lahore v. The Authority under Payment of Wages Act, Lahore 1981 PLC (C.S.) 42 and Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416 rel.

(b) Maxim---

----"Ubi jus ibi remedium" (Where there is a right there is a remedy).

Abdur Rehman Qadir for Petitioner.

L.K. Sahraec(?) for Respondent.

Date of hearing: 28th February, 2011.

2011 P L C (C.S.) 1465

[Peshawar High Court]

Before Syed Sajjad Hassan Shah and Sardar Shaukat Hayat, JJ

MUHAMMAD IMRAN

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and 2 others

Writ Petition No.3934 with Civil Miscellaneous No.1209 of 2010, decided on 22nd November, 2011.

(a) Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 1989---

----R. 11---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner had assailed office order issued by the Registrar by the order of Chief Justice of High Court, whereby petitioner was transferred from the High Court to Sessions Court at place 'U.D.' against vacant post---Petitioner contended that his transfer was against Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 1989---Appeal filed by the petitioner before Subordinate Judiciary Service Tribunal was returned as being not competent and that Tribunal had no jurisdiction to hear and adjudicate upon such an appeal---Contention of counsel for the petitioner was that as no other remedy was available for redressal of grievance of the petitioner, constitutional jurisdiction could be invoked under Art.199(5) of the Constitution---Contention of the petitioner was repelled, because if Sub-Art.(5) of Art.199 of the Constitution was interpreted as suggested by the counsel, same would tantamount to adding into the constitutional provisions something which was not permissible under the law---Constitutional petition was dismissed.

PLD 1997 SC 426 and PLD 1997 SC 32 ref.

(b) Constitution of Pakistan---

----Arts. 199(5), 192 & 201---Issuance of writ by High Court against order issued by Registrar of High Court by order of the Chief Justice of High Court---Scope---Each Judge of High Court would act as High Court and any direction or order by the Single Bench or for that matter by the Division Bench of High Court, would amount to issuance of writ against a Judge who was the component of High Court---Such exercise could not be undertaken, if the age old notion i.e. "no one could act as a judge in his own cause", was acknowledged---Jurisdiction exercised by High Court, whether in a Bench of a Single Judge or the Bench of more Judges, the order would be expressed in the name of High Court and not in the name of individual Judge---No Judge of a High Court, in circumstances, could issue any order or decree or judgment against other Judge of the High Court---No writ could be issued by Judge of the High Court to another Judge of the High Court in terms of Art.199 of the Constitution against orders passed in judicial or administrative/ executive capacity.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315 ref.

(c) Constitution of Pakistan---

----Art. 199(1)(5)---Jurisdiction of High Court---Scope---Word "person", defined and explained---Provisions of Art.199 of the Constitution, empowered a High Court to issue directions to a 'person' performing within the territorial jurisdiction of High Court in connection with the affairs of Federation, Province or Local Authority, but a "person" as used in Sub-Art.(5) of Art.199 of the Constitution, did not include a High Court including other authorities/institutions as mentioned in the said sub-Article---Word "person" in Article 199(5) of the Constitution, included Supreme Court or High Court or a Tribunal under the law relating to the Armed Forces of Pakistan---No writ or order could be issued to the High Court or Supreme Court under Art.199 of the Constitution; as it would amount to issuance of same against the Supreme Court and High Court itself---Administrative or executive orders passed by the Chief Justice of the High Court or the Registrar, while acting under the orders of Chief Justice enjoyed the protection falling within the ambit of said Article.

Messrs Nusrat Elahi and 41 others v. The Registrar Lahore High Court Lahore and 68 others 1991 MLD 2546 and Asif Saeed v. Registrar Lahore High Court and others PLD 1999 Lah. 350 ref.

Qazi Muhammad Anwar for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2010.

2011 P L C (C.S.) 1479

[Peshawar High Court]

Before Mazhar Alam Khan and Imtiaz Ali, JJ

TARIQ HABIB and 2 others

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary, N.-W.F.P. and 2 others

Writ Petition No.2436 of 2009, decided on 14th January, 2011.

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

----S. 19 [as substituted by S.2 of North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005)]---Constitution of Pakistan, Art.199---Constitutional petition---Appointment on contract against project posts---Regularization of service---Termination of service---Petitioners were appointed on contract basis in different schemes---Said appointments were for a period of two years---As per terms and conditions services of the petitioners were subject to termination on two months' notice or two months' pay in lieu thereof; it was also provided in their appointment orders that such appointments would not confer on them any right of regular appointment/ absorption---After expiry of two years' initial period of their contract services against said project post, their services were extended for further one year---Subsequently when scheme was deleted/excluded from the budget from 1-7-2008, notice was issued to the petitioners that their services were no more required beyond 31-6-2008---Petitioners had impugned said notice in their constitutional petition contending that S.2 of North-West Frontier Province Civil Servants (Amendment) Act, 2005 whereby S.19 of North-West Frontier Province Civil Servants Act, 1973 had been substituted, had laid down that all persons appointed after 1st day of July 2001 till commencement of Amended Act, 2005 i.e. 23rd July, 2005 on contract basis would be deemed to have been appointed on regular basis---Validity---Object of said amendment was to regularize services of those employees who had been appointed in consequence to contract policy and not for regularization of contract employees working against Project Posts---Petitioners did not qualify for the benefit of said amendment---Petitioners were appointed against the Project Posts and were serving as such when said Amending Act, 2005 came into force---Constitutional petition was dismissed.

Shagufta Syed v. Government of N.-W.F.P. Writ Petition No.1731 of 2006; Dr. Rizwanullah and others v. Government of N.-W.F.P. Writ Petition No.1510 of 2007 and Miss Balqees v. Province of N.-W.F.P. Writ Petition No.361 of 2010 ref.

Ijaz Anwar for Petitioners.

Obaid Razaq, A.A.-G. along with Nisar Muhammad, Assistant Director for Respondents.

Date of hearing: 1st December, 2010.

2011 P L C (C.S.) 1651

[Peshawar High Court]

Before Waqar Ahmad Seth, J

ZAKIR MUNEER

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), ABBOTTABAD and 3 others

Writ Petition No.159 of 2011, decided on 8th September, 2011.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---Civil service---Appointment---Cancellation/withdrawal of appointment---Petitioner who applied through proper channel, was selected vide appointment order on temporary/contract basis---Petitioner was asked to produce medical/fitness certificate from Superintendent DHQ, which he produced and accordingly he submitted his joining report---Appointment order of the petitioner was cancelled with retrospective effect vide impugned office order issued on the recommendations of Chief Minister and on the same date respondent was appointed on that post---Validity---Withdrawal of order of appointment could not be legitimately maintained as no show-cause notice and opportunity of being heard was ever provided to the petitioner prior to the passing of impugned order---Principle of audi alteram partem would be attracted to the case of petitioner---Authority, under the principle of locus poenitentiae was competent to pass an order and get the same rescinded, but when an order had been passed and it had taken legal effect, then notwithstanding the power available under S.21 of General Clauses Act, 1897 same could not be withdrawn, unless and until it was established that the order was obtained by practising fraud or misrepresentation---In the present case, petitioner applied for the post concerned, was selected, appointed and order was communicated to the petitioner in consequence whereof he joined---Such order of appointment, which had taken legal effect, was not amenable to withdrawal---Any action taken, proceedings done and order made to the detriment of rights of the petitioner was without lawful authority and of no legal effect---Order of withdrawal of appointment of the petitioner and subsequent appointment of respondent were not only tainted with mala fide, but were without jurisdiction and lawful authority and were of no legal effect---Order of appointment of the petitioner was restored by High Court and he was reinstated with full back-benefits and wages, in circumstances.

Muhammad Ayub for Petitioner.

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

Shad Muhammad Khan for Respondent No.4 with Respondent No.4 in person.

Date of hearing: 8th September, 2011.

2011 P L C (C.S.) 984

[Punjab Service Tribunal]

Before Muhammad Riaz Chaudhry, Member-IV

KHALID SIDDIQUE

Versus

CHIEF MINISTER PUNJAB through Secretary to Government of the Punjab Excise and Taxation Department

Appeal No.3036 of 2010, decided on 10th December, 2010.

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

----S. 4(1)(a)(v)---Punjab Civil Servants Act (XIII of 1974), S.4---Penalty of stoppage of two increments for two years was imposed upon employee after charge-sheeting him and holding inquiry against him on account of irregularity committed by him along with others for non payment or delayed payment of salary of an employee---Allegation against the employee was that he, while performing his duties as Excise and Taxation Officer, failed to draw and disburse monthly salary of one Excise and Taxation Inspector, which caused delay in finalization of pension case of said employee and also caused inconvenience to him---Matter of non-payment of monthly salaries to Excise and Taxation Inspector continued to be pending for one reason or the other since October, 2003 upto March, 2007---No departmental action had ever been initiated against his predecessors in office who remained posted since October 2003 and onward, who were equally responsible for that lapse---Discriminatory treatment was meted out with the employee, in circumstances---Inquiry report was faulty and contained procedural defects---Statement of the complainant was also not recorded during the course of inquiry---As a matter of principle, it was also the responsibility of Inquiry Officer as well to dig out the facts---Complainant had not lodged a written complaint against the employee---Impugned order, was set aside, in circumstances.

Tahir M. Butt for Appellant.

Mian Tariq Javed, District Attorney, Rana Shamshad Ali, Law Officer, Jaffar Shah, Excise Inspector Departmental Representatives for Respondents.

Date of hearing: 10th December, 2010.

2011 P L C (C.S.) 1450

[Punjab Subordinate Judiciary Service Tribunal]

Before Sh. Ahmad Farooq and Ijaz ul Ahsan, JJ, Members

Miss NADIA SIDDIQUE and another

Versus

LAHORE HIGH COURT, LAHORE and others

Service Appeals Nos.5 and 7 of 2006, decided on 8th April, 2011.

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

----S. 10---Punjab Government Service (Conduct) Rules, 1966, R.12---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Constitution of Pakistan, Art.25---Termination of service---Services of the appellants were terminated without conducting inquiry during their probation period on the ground that they provided declaration of their assets and documentary proof of their assets with delay---No allegation against appellants that they had concealed their assets from the authority or delayed submission of declaration of assets was with some ulterior motive, or possessed assets were beyond known sources of income which could justify the extreme step in the shape of termination of their services---Appellants joined service after qualifying a competitive examination and were performing their duties as Civil Judge after obtaining training from the Judicial Academy---No complaint regarding integrity of the appellants or competency or efficiency was on record---Termination of the services of the appellants only due to their alleged negligence and delay in the submission of declaration of their assets, was too harsh---Punishment should commensurate with the gravity of the acts of omission or commission---Authority could have issued appropriate warning to appellants to be careful in future---If it was a matter of false declaration or gross misconduct, running counter to sacred assignment of administration of justice, then, it could not be termination simpliciter as it was bound to bring stigma; and in that eventuality, authority ought to have given a right of hearing to the appellants through regular inquiry and take appropriate action in consequence thereof---Two other Civil Judges also submitted delayed declaration of assets, but they were not terminated and were allowed to complete their probation period---Civil servants who were similarly placed, could not be treated differently---Appellants, in circumstances, were treated discriminately in violation of Art.25 of the Constitution, which guaranteed equality of all the citizens before law and equal protection of law---Appellants were ordered to be reinstated in service, in circumstances.

Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605; Pakistan State Oil v. Muhammad Tahir Khan PLD 2001 SC 980; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034; Government of Sindh through Land Acquisition Officer and others v. Muhammad Juman and others 2009 SCMR 1407 and Federation of Pakistan and others v. Tahir Latif 2007 SCMR 152 ref.

Mehmood Ahmad Qazi and Muhammad Saleem Sheikh for Appellants.

Nayyar Iqbal Ghauri for Respondents.

Date of hearing: 11th February, 2011.

2011 PLC (C.S.) 78

[Quetta High Court]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

MUHAMMAD ALI SATAKZAI and others

Versus

APPOINTING AUTHORITY OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGES and others

Constitutional Petitions Nos.803 of 2009 and 8 of 2010, decided on 4th March, 2010.

(a) Balochistan Additional District and Sessions Judges Service Rules, 2002---

----Rr. 4 & 5-Constitution of Pakistan, Arts.175 & 199---Constitutional petition---Appointment of Additional District and Sessions Judges---Authority to appoint---Balochistan Public Service Commission invited applications for appointment of Additional District and Sessions Judges through a letter issued by Registrar, High Court--Petitioners who were serving on ad hoc basis as Additional District and Sessions Judges had challenged the jurisdiction of Balochistan Public Service Commission---Contention of the petitioners was that Balochistan Public Service Commission had. no authority to invite applications, conduct test and interviews and to recommend for appointment of Judicial Officers---According to the petitioners, power given to the Commission under R.5 of the Balochistan Additional District and Sessions Judges Service Rules, 2002, was contrary to the provisions of Art.175 of the Constitution---Petitioners had also prayed for regularization of their ad hoc appointment---Validity---Public Service Commission, being under the control and influence of Government, appointment of Judicial Officers through the Commission would not ensure complete independence of the Judiciary from the Executive---Even otherwise, appearance before the Public Service Commission, would amount to degrading the post and status of the Judicial Officers, which should otherwise require to be protected---Such could only be done,. if they were called only to appear before the sitting Judges of the High Court, which would ensure the prestige and honour of the judicial post, as well---Under Art.175 of the Constitution, supervision and control over the Subordinate Judicial Officer's by the Balochistan Public Service Commission were contrary to provisions of the Constitution; and also in negation of settled law---Balochistan Public Service Commission had. no authority to appoint such officers---Letter sent by Registrar High Court for appointment of Additional District and Sessions Judges to Balochistan Public Service Commission was of no legal effect---Petitioners requested for regularization of their ad hoc appointment---No rule existed which could entitle an ad hoc appointee to be confirmed against regular post---Ad hoc appointment did not confer on the petitioners any right or interest to continuous appointments, seniority or promotion under the law---Order accordingly.?

(b) Civil service---

----Ad hoc appointment---Regularization---Scope---Ad 'hoc appointment does not confer any right on the appointee for continuous appointment, seniority or promotion under law---No rule existed which could entitle the ad hoc appointee to be confirmed against regular post. ?

PLD 1994 SC 105; 2009 PLC (C.S.) 841; 1987 SCMR 16'7; PLD 2003 SC 420; 2003 SCMR 1269 and 2005 PLC (C.S.) 1085 ref.

Hadi Shakil Ahmed, Muhammad Aslam Chishti, Muhammad Qahir Shah, Shah Muhammad Jatoi and Amanullah Kanrani for Petitioners.

Tariq Ali Tahir, Addl. A.-G. along with Niaz Muhammad Kakar, Deputy Director, BPSC for Respondents.

Date of hearing: 23rd February, 2010.

2011 PLC (C.S.) 541

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmed, Muhammad Sair Ali, Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Ghulam Rabbani, and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO.24 OF 2010 AND HUMAN RIGHTS CASES NOS. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P AND 58118-K OF 2010

Suo Motu Case No.24 of 2010 and Human Rights Cases Nos. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010, decided on 27th January, 2011.

(Regarding corruption in Hajj arrangements in 2010).

Civil Servants Act (LXXI of 1973)---

----S. 14---ESTACODE, Vol. I (2007 Edn.) Instructions---Employment after retirement---Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. S.14 of the Civil Servants Act, 1973 as well as Instructions contained in ESTACODE, Vol. I, Edn, 2007 under the heading "Re-Employment" and the judgments of the superior courts on the subject were not considered/adhered to---Effect--Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit otherwise it would not be possible to provide an effective machinery in law particularly in Police Department to ensure law and order, so the peace in the country, at the same time to avoid violation of the relevant provisions of law which was tantamount to blocking the promotion of the Officers who had also served in the Forces and were waiting for their promotion but they were not getting chance because of the re-employment/contract awarded to the retired Officers=--Such was not only in the Police Department but for the purpose of achieving good governance; the same principle should be followed and strictly applied in other Departments as well---Supreme-Court observed that Attorney General shall take up the matter with the Government/Competent Authority so that it may lake necessary steps to rectify if any omission had been committed---Attorney General shall convey present order to the Secretary, Establishment Division and the Chief Secretaries of the Provinces to ensure that if any civil servant or other person who had been re-employed, his case be also examined in terms of the provisions of law and both Federal and Provincial Governments should take necessary steps to ensure that re-employment or employment on contract basis were not made in violation of the relevant law.

Moulvi Anwar-ul-Haq, Attorney General for Pakistan (on Court Notice).

Shaukat Durrani, Secretary for M/o Religious Affairs.

Sardar Khurrum Latif Khan Khosa, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Ex-Minister of Religious Affairs.

Afnan Karim Khan Kundi, Advocate Supreme Court for Ex-Minister, S&T.

Fauzi Zafar, ADPGA for NAB.

Iftikhar Gillani, DS, Aamir Khan, DS, Muhammad Arshad Khan, DS and Zakaullah Jan, SO for Establishment Division.

Syed Javed Ali Bokhari, Addl. DG FIA, Azam Khan Director Law FIA for FIA.

Ghulam Shabbir S.-I. with Rao Shakeel Ahmed, former DG Hajj (in custody).

Contract Officers on Court Notice:

Raja Muhammad Irshad, Senior Advocate Supreme Court with Muhammad Mehmud Ahmed, D.I.G. Spl. Branch, Rawalpindi.

Anwar Mansoor Khan, Senior Advocate Supreme Court with Sultan Salahuddin Khattak, PPO Sindh.

Asif Ali Abdul Razzak Soomro, Advocate Supreme Court, Mehr, Khan Malik, Advocate-on-Record with:

(i) Major (R) Khurram Gulzar, DIG Traffic Government of Sindh, Karachi.

(ii) Nadir Hussain Khoso, DIG Training Government of Sindh, Karachi.

(iii) Din Muhammad Baloch, DIG Larkana Range, Larkana.

M. Rafiq Khan, In person.

Warif Khan, In person.

Anwar Subhani, AIG Legal, In person.

Wseem Ahmed, In person. DG. FIA, Islamabad.

Tariq Jamil, In person.

Joint Director-General Sindh, Provincial Head Quarters, IB, Karachi.

Asghar Mahmood, In person Deputy Director General, Intelligence Bureau, Islamabad.

Khurshid Anwar Butt, In person. Intelligence Bureau.

Lt.-Col (R) Farman Ali, In person. DIG Head Quarter Gilgit.

Mian Akhtar Hayat, In person. AIG, Pak Railways Police, Lahore.

Naveed Ellahi, SSP Special Branch Lahore, In person.

2011 PLC (C.S.) 548

[Quetta High Court]

Before Qazi Faez Isa, C.J.; Syeda Tahira Safdar and Ghulam Mustaf Mengal, JJ

MASHOOQ ALI

Versus

SENIOR MEMBER, BOARD OF REVENUE BALOCHISTAN and others

Constitutional Petition No.S-23 of 2009, decided on 1st July, 2010.

Per Qazi Faez Isa, C.J.; Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ. agreeing and adding their notes.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioners challenged appointments of Assistants and Stenographers made by Provincial Board of Revenue contending that said appointments were made in violation of merit---Validity---Candidates who failed or even absented in the written examination were appointed to the posts---Departmental Selection Committee did not award marks to candidates at the interview, instead, made certain notings/signs against each candidate making the merit list an impossibility, as such. list could not be prepared unless marks obtained at the interview were added to the marks obtained in written examination---Candidates' skill in shorthand and typing was not evaluated either---Members of the Departmental Selection Committee denied any wrongdoing; submitted false affidavits but later tendered apologies to the court---Senior Member of the Provincial Board of Revenue admitted the violation of merit---In view of statements of the Chairman and Members of the Departmental Selection Committee as to violation of prescribed merit criteria, the appointments could not be sustained---Material discrepancies marred the appointment process---Fairness and merit having been sacrificed at the altar of favouritism and corruption, the appointments were not sustainable either in fact or in law---Whole appointment process was a facade and a fraud played at the expense of precious resources of the State---High Court observed that Government was duty bound to make the selection process transparent, as violation of merit led to bad governance and promoted culture of corruption---Petitioners' application to withdraw petitions in order to spare the appointees their jobs could not be allowed as gross irregularities and illegalities committed in appointments to government positions was not merely a private matter---Directions as to initiation of disciplinary action against Chairman and the Members of Departmental Selection Committee were issued by the High Court---Appointments were held/declared to be illegal, unconstitutional and without any legal effect conferring no right, title, interest benefit or privilege in the appointees---Provincial Government was directed by High Court to circulate to all Ministries and heads of all departments and Member of Selection Committees the relevant paragraph of the judgment which is to the effect that:

"Appointments to government posts are highly prized and sought after. The government is obliged to ensure complete transparency in the process of selection and appointment and anything less is unacceptable. If qualified and competent individuals are appointed in government service their performance and work would be far superior to those who have come through the back door by having the right connections or by other- nefarious means. The latter category would also not be motivated to work like those who had earned the privilege. Consequently the public would suffer, and continue to suffer till the person illegally appointed retires. Even thereafter the helpless taxpayer would continue to bear the burden on account of payment of pension and other benefits. The appointments made on considerations other than merit perpetuate bad governance and a culture of corruption, nepotism and sifarish. Betrayal of responsibility occurs not just the day when an incompetent or less qualified person is chosen, it continues each and every day such appointee continues to hold the position that another was better qualified to. By making appointments contrary to merit and for extraneous considerations the Government's credibility is eroded, its overall performance adversely affected and the public made to suffer. Whenever a post is advertised those given the responsibility to select suitable candidates exercise an important trust. They must acquit themselves honestly, to the best of their ability and without any fear or favour. They must not tolerate interference from any source, including from Members of Parliament or from Ministries. And if they do, or make recommendations on the basis of fear or favour and or breach applicable rules or violate prescribed criteria they would be accountable and inter alia be subject to disciplinary action."?

Per Syeda Tahira Safdar, J. agreeing with Qazi Faez Isa, C.J.

Disciplinary action was required against Senior Member, Board of Revenue, Chairman and the Members of Departmental Selection Committee for misleading the court by submitting false affidavits and committing illegalities in selection process.

Per Ghulam Mustafa Mengal, J., agreeing with Qazi Faez Isa, C.J.

----Selection process having been carried out by the Departmental Selection Committee, the Senior Member, Board of Revenue only approved the recommendations of the Committee---Disciplinary action was not required against the Senior Member, Board of Revenue as he was not directly concerned with conducting written examination and the interview.?

Zahoor-ul-Haq Chishti and Kamran Murtaza for Private Parties.

Abdul Rahim Mengal, Asstt. Advocate-General.

Date of hearing: 30th March, 2010.

2011 P L C (C.S.) 863

[Quetta High Court]

Before Mrs. Syeda Tahira Safdar, J

Dr. MUHAMMAD YOUNAS and another

Versus

GOVERNMENT OF BALOCHISTAN, HEALTH DEPARTMENT and another

Constitutional Petition No.131 of 2011, decided on 25th February, 2011.

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

----S. 10--Constitution of Pakistan, Art.199---Constitutional petition---Transfer---Petitioners being aggrieved of order, whereby they were transferred from one place of working to another contended that impugned orders had been made in violation of Rules and Regulations, as well as in violation of decision of the Provincial Cabinet---Section 10 of Balochistan Civil Servants Act, 1974 provided that every civil servant was liable to serve anywhere within or outside the Province concerned, with exception that civil servant was recruited specifically to serve in a particular area or region---Petitioners being civil servants, during subsistence of their service, were liable to serve anywhere within or outside the Province---Petitioners were unable to establish that their case was covered by term `frequent transfer and posting', they had also failed to show any mala fide on the part of concerned authorities while making orders in their case---Petitioners having failed to make out any case in their favour, their petition was dismissed in circumstances.

Muhammad Usman Yousafzai for Petitioners.

Nemo for Respondents.

2011 P L C (C.S.) 988

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, J

Dr. SABA DURRAZAI

Versus

CHAIRMAN HOUSE ALLOTMENT COMMITTEE/SECRETARY S&GAD GOVERNMENT OF BALOCHISTAN and 2 others

Constitutional Petition No.119 of 2011, decided on 25th February, 2011.

Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009---

----Rr. 6(4) & 11(3)---Constitution of Pakistan, Art.199---Constitutional petition---Allotment of official residence to government servant---Petitioner claimed that house in question was allotted in her favour, but later on respondent who was retired from service was allowed to retain the house in question for a period of six months after his retirement---Petitioner had alleged that vide another order retention period was further extended in favour of respondent for a further period of one year---Contention of the petitioner was that impugned order of extension was made by authorities in violation of Rules and Regulations, while she being lawful allottee, was entitled for possession of the same---Validity---Government accommodations were to be allotted to the government servants keeping in view the provisions of Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009 and under R.6(4) of said Rules appeal against order of the authorities was provided to be filed to the House Allotment Committee and petitioner was required to avail the same before filing of constitutional petition while she had failed to avail---In existence of alternate remedy, no order could be made by High Court in exercise of its extraordinary jurisdiction---Petition being not maintainable, was dismissed, in circumstances.

Shah Muhammad Jatoi for Petitioner.

Nemo for Respondents.

2011 P L C (C.S.) 1378

[Quetta High Court]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

Dr. SABA DURRAZI

Versus

CHAIRMAN, HOUSE ALLOTMENT COMMITTEE/ SECRETARY, S&GAD and 2 others

Constitutional Petition No.236 of 2011, decided on 21st June, 2011.

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

----S. 21---Balochistan Rules of Business, 1976, R.39(1) & Schedule, VIII---Relaxation of rules---Scope---Administrative authority is empowered under S.21 of West Pakistan General Clauses Act, 1956, and R.39(1) of Balochistan Rules of Business, 1976, read with its Schedule VIII, to amend, make and relax the rules, as also to deal with the cases of any civil servant as may appear to him just and equitable.

(b) Civil service---

----Illegal order---Scope---Civil servants are not supposed to comply with illegal orders of administrative authority.

(c) Residential Accommodation at Quetta (Procedure of Allotment) Rules, 2009--

----R. 11(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Residence, retaining of---Relaxing of rules---Chief Minister in relaxation of rules allowed the respondent to retain official accommodation even beyond six months after his retirement---Plea raised by respondent was that the house was retained till availability of alternate accommodation to his son---Validity---Respondent was not entitled to retain the house till availability of alternate accommodation to his son---Order permitting respondent to retain accommodation was passed in violation of Residential Accommodation at Quetta (Procedure of Allotment) Rules, 2009, and the same was illegal, void and of no legal effect, resultantly the same was set aside---High Court directed the respondent to hand over vacant possession to petitioner---Petition was allowed accordingly.

1995 SCMR 650 rel.

Shah Muhammad Jatoi for Petitioners.

Naseer Ahmed Bangulzai, A.A.-G. for Respondents Nos.1 and 2.

Respondent No.3 in person.

Date of hearing: 7th June, 2011.

2011 P L C (C.S.) 1387

[Quetta High Court]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

QAISAR KHAN and 4 others

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT, QUETTA and another

Constitutional Petition No.519 of 2010, decided on 21st June, 2011.

(a) Constitution of Pakistan---

----Arts. 25, 121(b) & 199---Constitutional petition---Discrimination---Provincial Consolidated Fund---Petitioners were members of establishment of Balochistan High Court and their grievance was that they should also be granted Special Judicial Allowance with effect from 1-7-2009---Validity---All members of establishment of Supreme Court, Federal Shariat Court and High Courts of other provinces had been granted Special Judicial Allowance with effect from 1-7-2009 and refusal of same to members of establishment of High Court of Balochistan with effect from 1-7-2009, would amount to discriminatory treatment in violation of Art.25 of the Constitution---Different treatment for persons similarly circumstanced would be unjustified and such discrimination was unjustified, without rational and reasonable classification---Such unreasonable or arbitrary classification was contrary to the spirit of Art.25 of the Constitution---High Court directed the authorities to pay Special Judicial Allowance equal to three times of initial of the substantive pay scale to the members of High Court of Balochistan with effect from 1-7-2009 and notification should be issued---Petition was allowed accordingly.

PLD 1957 SC 9; AIR 1985 SC 1124; AIR 1979 SC 478; Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375 and Mubarak Ali Khan v. Government of Punjab 1990 CLC 136 ref.

(b) Constitution of Pakistan---

----Art. 25---Equal protection of law---Principle---Equal protection of law does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed are to be treated alike---Though reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 rel.

(c) Constitution of Pakistan---

----Part II, Chapter 1---Fundamental rights---Financial constraints and inconvenience---Question of financial constraints is irrelevant when High Court adjudicates on the effects of fundamental rights guaranteed by the Constitution, nor inconvenience can be allowed to override the Constitutional provisions guaranteeing fundamental rights to all citizens of Pakistan.

PLD 1957 Quetta 1 and Accountant-General Punjab and another v. Ch. Qadir Bakhsh and another PLD 1983 Lah. 246 rel.

Syed Athar Aftab, Syed Ayaz Zahoor, Ali Ahmed Kurd and Nadir Ali Chhalgari for Petitioners.

Naseer Ahmed Bangulzai, Asstt. A.-G. for Respondents.

2011 P L C (C.S.) 197

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

Before Justice Abdul Aziz Kundi, Chairman and Justice Mazhar Alam Khan, Member

NAVEED IQBAL KHATTAK

Versus

CHIEF JUSTICE through Registrar, Peshawar High Court and another

Service Appeals Nos.6 of 1999 and 10 of 1998, decided on 3rd June, 2010.

North-West Frontier Province Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S. 5---North-West Frontier Province Government Servants (Efficiency and Disciplines) Rules, 1973, R.4(1)(b)(i)(ii)---Removal from service---Appeal---Appellant serving as Civil Judge was removed from service after issuing him show-cause notice and holding enquiry against him on the allegation that he was found involved in corrupt practice by receiving amount as bribe from an accused in a criminal case---Record had shown that the inquiry was conducted in a fair and transparent manner, and report was prepared after attending to all aspects of the matter on proper appraisal of evidence---Counsel for the appellant could not point out any misreading, non-reading to justify interference by the Tribunal in the matter---More than sufficient material was available to form the view that conduct of appellant was unbecoming of a Judicial Officer and fully covered by the "misconduct" as defined in clause (a) of subsection (1) of S.2 of North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---Appeal was dismissed.

Ch. Shabir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Qazi Ahmad Jan v. Government of Balochistan through S&GAD and 3 others 2003 PLC (C.S.) 1078; Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court, Lahore 2008 SCMR 1144; Noor Muhammad Khan Registrar, Lahore High Court, Lahore 2008 SCMR 1241; Taj Muhammad Khan v. Peshawar High Court, Peshawar PLC 2010 (C.S.) 507 and Mehar Khan M.E.O. Vs. High Court of Sindh 2007 SCMR 632 ref.

Barrister Masood Kausar for Appellant.

Sardar Ali Raza, D.A.-G. along with Syed Anees Badshah Bukhari, Addl. M.I.T. for Respondents.

Date of hearing: 13th May, 2010.

2011 P L C (C.S.) 697

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

ARBAB MUHAMMAD YOUSUF

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and another

S.A. No.14 of 2008, decided on 13th November, 2009.

(a) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Balochistan Civil Servants. (Appeal) Rules, 1983, R.S(4)---Appeal---Limitation---Respondent/authorities contested appeal. filed by the appellant, contending that appeal was time-barred-Aggrieved person after exhausting departmental remedy would file appeal before the Service Tribunal within 30 day's---Aggrieved person was required to wait for a period of 90 days for filing of representation, thereafter, within 30 days he could prefer appeal to Service Tribunal---In the present case departmental representation, filed by the appellant had been dismissed by the competent authority on 19-4-2008, appeal presented on 26-4-2008 was well in time---Even otherwise the law would favour adjudication on merits, rather denying relief on technical grounds of limitation.

(b) Balochistan Service Tribunals Act (V of 1974) ---

----S. 4---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R.12-A---Matter regarding determination of age of employee---Appeal, maintainability of---Advocate-General had contended that Service Tribunal had no jurisdiction to adjudicate upon the matter as determining of age of the appellant was not related to the terms and conditions of his service and that after insertion of R.12-A in the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, appeal was not maintainable---Validity---Under R.12-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 and General Financial Rules, 116 & 117, the date of birth once recorded at the time of joining the government service, would be final and no alteration was permissible as these provisions had barred the power of the Government, while making any sort of alteration in the date of birth of a civil servant; and it would not bar the jurisdiction of Service Tribunal to redress the grievance of a civil servant in appropriate cases---Contention of Advocate-General was, repelled, in circumstances---Determination of date of birth was one of the most pivotal, crucial terms and conditions of service of a civil servant; because, it determined the date of retirement---Determination of age for the purpose was within the jurisdiction of Service Tribunal---Service Tribunal had exclusive jurisdiction except barring some matters, specially mentioned in provisions of S.4(1) of the Balochistan Service Tribunals Act, 1974 to redress the grievances of a civil servant in respect of any terms and conditions of service---Further under Art.212(2) of the Constitution, no other court had the jurisdiction to determine the age of appellant for the purpose of retirement from service except the Service Tribunal.

(c) Interpretation of statutes---

----No subordinate legislation should be interpreted in a manner which would bring the same in direct conflict with the object of the statute itself.

(d) Balochistan Service Tribunals Act (V of 1974)---

----Ss. 4 & 5---Correction of date of birth---Appellant had prayed for correction of his date of birth in service record---According to appellant his actual date of birth was 1-1-1950, which had been wrongly mentioned in his service record; and Secondary School Certificate as 5-6-1948---Appellant had failed to tender rational explanation as to insertion of his date of birth in the service record---Nothing concrete was on record to substantiate the plea of appellant---Appellant had not placed on record the opinion of the Standing Medical Board---Date of birth mentioned in the National Identity Card and Passport, was at least a relevant piece of evidence, but there existed no law declaring it to be a conclusive proof of age---Appellant had joined service in the year 1972---If at all he had a valid claim, he. should have instituted proceedings for correction of his date of birth within a period of two years from the date of joining government service---Appellant had the knowledge about his date of birth, but kept silent at relevant time and slept over his alleged right---At the belated stage when he had already retired from service, could not be allowed to change his stance after considerable long period.

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

----S. 21---Entitlement of authority to vary, amend, add to or to rescind order---Authority which could pass an order, was also entitled to vary, amend, add to or to rescind that order-If the order was illegal, then perpetual right could not be gained on the basis of an illegal order.

(f) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---

----R. 12-A---Correction of date of birth---Government servant under the relevant rules could not pray for correction of his date of birth after two years of joining service---Government except in the cases of clerical mistake could not change the date of birth of civil servant because a complete embargo had been imposed on its power---Permitting government servants to change their date of birth at the verge of their retirement would amount to permit a civil servant to continue government service even after attaining the age of superannuation.

Ayaz Sawati for Appellant.

M. Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 6th November, 2009.

2011 P L C (C.S.) 813

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Ghalzai, Member-I, and Muhammad Anwar Khan, Member-II

IMAM BAKHSH

Versus

SENIOR MEMBER, BOARD OF REVENUE, BALOCHISTAN and 3 others

S.A. No.99 of 2009, decided on 9th April, 2010.

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

----S. 8---Fundamental Rules, R.17---Balochistan Service Tribunals Act (V of 1974), S.4---Pro forma promotion, entitlement to---Appellant who was holding the post of Naib-Tehsildar on acting/current charge basis since 2003, could not be promoted due to non-mentioning of his name in the seniority list of Qanungos of the concerned Division---Name of appellant was struck off from the seniority list of the Division and as a consequence whereof his name was to be included in the seniority list of the Division, but it was not done so on account of sheer negligence of the department---Appellant though was holding the post of Naib-Tehsildar since 2003, but was not confirmed despite the fact that during that period his juniors were promoted on regular basis as Naib-Tehsildars---Appellant was regular employee of the Board of Revenue, but his name was missing in both the seniority lists of concerned Divisions---Effect---Appellant was not only deprived of his due promotion, but had also been made shuttle cock between different Authorities and driven from pillar to post for no fault of his---In view of the Policy for grant of pro forma promotion vide notification No.III-6(47) (R) S&GAD-75 dated 17-5-1981 and Fundamental Rule, 17 the appellant was entitled for pro forma promotion from the date when his juniors were promoted as Naib-Tehsildars---Authority for the proper administration of service under S.8 of Balochistan Civil Servants Act, 1974 was required to cause/prepare a seniority list---Authorities were directed to include the name of appellant in the seniority list of the Divisions and regularize the services of the appellant as Naib-Tehsildar from the date when his juniors were promoted as Naib-Tehsildars.

PLD 1995 Central Statutes 1 ref.

Mazhar Illyas Nagi for Appellant.

M. Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 8th April, 2009

2011 P L C (C.S.) 820

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Ghalzai, Member-I, and Muhammad Anwar Khan, Member-II

ALLAH NOOR

Versus

SENIOR MEMBER, BOARD OF REVENUE, BALOCHISTAN and 4 others

S.A. No.58 of 2010, decided on 9th April, 2010.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---

----R. 6--Balochistan Civil Servants (Seniority) Rules, 2008, R.4(d)---Balochistan Service Tribunals Act (V of 1974), S.4---Pro forma promotion, entitlement to---Appellant who was holding the post of Naib-Tehsildar on acting/current charge basis since 2003, his case was considered by the Zonal -Selection/Promotion Committee and he was recommended for promotion as Naib-Tehsildar on regular basis---Senior Member, Board of Revenue, however ignored said recommendations of the Promotion Committee without assigning any reason in violation of R.6 of the Balochistan Civil Servants (Appointment, Promotion. and Transfer) Rules, 1979; and instead, respondents who were junior to the appellant were promoted as Naib-Tehsildars on regular basis despite they had forgone their promotion---Validity---If any person would forego his turn of promotion, then his name should have been placed at the bottom of the seniority list; and he should have been considered for promotion on his turn---Promotion of the respondents, while ignoring the appellant, was in violation of R.4(d) of Balochistan Civil Servants (Seniority) Rules, 2008---Promotion of the appellant as Naib-Tehsildar, would be considered on regular basis from the date when his juniors were promoted as Naib-Tehsildars---In case of non-availability of vacancy, the junior most Naib-Tehsildar who was promoted out of turn, be reverted to his earlier position and he would be replaced to the appellant.

PLD 1995 Central Statutes 1 ref.

Mazhar Illyas Nagi for Appellant.

M. Salahuddin Mengal, Advocate-General for Respondents.

Date of hearing: 6th April, 2010.

2011 P L C (C.S.) 831

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

GHULAM HUSSAIN SHAH

Versus

PROVINCIAL POLICE OFFICER, QUETTA and 9 others

S.A. No.6 of 2007, decided on 14th December, 2010.

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

----S. 9---Balochistan Service Tribunals Act (V of 1974), S.4---Police Disciplinary Rules, 1975, R.4---Promotion---Entitlement---Appeal---Appellant who joined as constable in the year, 1977, was promoted upto rank of Sub-Inspector---Subsequently Departmental Promotion Committee after determination of eligibility and fitness of individuals to hold higher post of Inspector, recommended certain Sub-Inspectors including the appellant and forwarded the list of Sub-Inspectors so recommended for promotion to Provincial Police Officer who, in derogation of Departmental Promotion Committee, vide impugned notification, ignored the appellant and respondents who were junior to appellant were promoted---Departmental representation made by the appellant having neither been rejected nor accepted, appellant had filed appeal before Tribunal against deferment of his promotion---Validity---Appellant was declined promotion on the basis of his alleged involvement in financial corruption and earning of adverse ACRs---Appellant earlier was proceeded against departmentally on allegation of certain acts of corruption and after formal inquiry penalty of forfeiture of 2 years' approved service was imposed upon him---Second time again promotion case of the appellant was deferred on the same allegation, which amounted to double jeopardy as one could not be punished twice for one and the same offence--Promotion case of the appellant was also deferred on account of earning adverse ACRs and alleged involvement in financial corruption---Such corruption was not spelt out from the record as nothing had been placed on record in support of the allegation---Alleged adverse remarks were not communicated to the appellant and same were not acknowledged by concerned officer---Such adverse remarks, should be ignored and could not have been taken into consideration for the purpose of promotion under the instructions about ACRs---Forfeiture of 2 years approved service, was a minor penalty and minor penalty awarded to civil servant, should not be considered as any hindrance in grant of promotion to him and a disqualifying factor--Inaction of authorities not to issue promotion order, and thereafter supersession over the appellant was without lawful authority---Authorities were directed to re-consider the case of appellant's promotion to the rank of Inspector in view of the recommendation made by Departmental Promotion Committee from the date his juniors were promoted.?

PLC 2005 (C.S.) 132; PLD 1987 SC 271; 1991 SCMR 1637; 2002 PLC (C.S.) 1375 and 2003 PLC (C.S.) 1425 ref.

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

----Art. 165---Promotion of Police Officers---Recommendations of the Departmental Promotion Committee/promotion boards---Departmental Promotion Committee was a recommendatory body, but its recommendations had a peculiar role to play for selection process; as it was specifically provided under Art.165 of Police Order, 2002 that the promotion of Police Officers of the Provincial Police, would be made on the recommendation of the Departmental Promotion Committees/ Promotion Boards---Said provision of law was mandatory in nature---Authorities, in circumstances could not ignore the same while dealing with the promotion of civil servant but could only ignore the same on the basis of strong reasons; and those reasons should be such that the action based on those should become sustainable.?

Mazhar Illyas Nagi for Appellant.

M. Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 24th November, 2009.

2011 P L G (C.S.) 842

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch; Member-I and Muhammad Anwar Khan, Member-II

KORA KHAN

Versus

DIRECTOR-GENERAL AGRCULTURE DEPARTMENT, GOVERNMENT OF BALOCHISTAN and another

S.A. No.22 of 2007, decided on 14th December, 2010.

(a) Balochistan Province Removal From Service (Special Powers) Ordinance (III of 2000)---

----Ss. 3 & 10---Balochistan Service Tribunals Act (V of 1974), S.4---Termination of service---Appeal---Services of the appellant were terminated on the allegation that he had committed a murder for which F.I.R. was lodged against him---Appellant was acquitted in said case and his acquittal was upheld up to the Supreme Court---After his acquittal, he approached the authorities with the request to reinstate him, but his request was turned down on the ground that he remained absent for more than two years---Validity---Absence of the appellant was not wilful or deliberate, but he was victim of circumstances as he faced great agony of the court trial on the allegation of offence of murder in which he finally was acquitted---Absence of appellant was natural consequence of false F.I.R. lodged against him---Authorities were not justified to terminate the service of the appellant on account of absence---Delay was condoned and appellant was reinstated in service, but without back-benefits, as nothing was on record to show that immediately after lodging of F.I.R., Authorities were informed by appellant about his involvement in the case---Period in which appellant remained out of service, was treated extra ordinary leave without pay.

1998 SCMR 1993 and 2001 SCMR 269 ref.

(b) Words and phrases---

----"Wilful"-Connotation of.

Amanullah Kanrani for Appellant.

M. Salahuddin Mengal, Advocate-General for Respondents.

Date of hearing: 19th November, 2009.

2011 PLC (C.S.) 852

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch, Member-I and Muhammad Anwar Khan, Member-II

KHAN ZAIB and another

Versus

GOVERNMENT OF BALOCHISTAN, through Chief Secretary and 2 others

S.A. No.38 of 2007, decided on 14th December, 2009.

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---

----Rr. 7 & 8---Balochistan Service Tribunals Act (V of 1974), S.4---Promotion---Appeal---Appellants being degree-holders of Bachelor of Engineering in Civil Engineering were appointed as Sub-Engineers in Irrigation and Power Department---Subsequently the department sent the case of appellants for promotion as Assistant Engineering (BPS-17) in respect of the vacancies fallen vacant to the 10% quota for Sub-Engineers holding degree in Civil Engineering prior to induction in government service---Provincial Selection Board in its meeting, however, declined to consider the case of the appellants on the ground of "length of service "---Departmental representation of the appellant having not been decided, appellants had filed appeal before Service Tribunal---Services of the appellants were governed by Balochistan Irrigation and Power Department Engineers (Civil Electrical and Mechanical Grade-16 and above) Service Rules, 1981, whereby 10% quota of initial recruitment and promotion was prescribed for Assistant Engineers---Said Rules did not contemplate any length of service---Refusal of the Provincial 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 in conflict with the Balochistan Irrigation and Power Department Engineers (Civil, Electrical and Mechanical Grade-16 and above) Service Rules, 1981---High Court accepted appeal by the appellants and directed the Irrigation and Power Department, to refer the case of appellants to the Provincial Selection Board for promotion of the appellants as Assistant Engineers.

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

----S. 21---Locus poenitentiae, principle of---Principle 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 or 'rescinded to the detriment of those rights---Section 21 of General Clauses Act, 1897 postulated that an 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 cancelled was communicated to other party, a very valuable right accrued 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. Salahuddin Mengal, A.-G. for Respondents.

Date of hearing: 19th November, 2009.

2011 P L C (C.S.) 945

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai, Member-I and Muhammad Anwar Khan, Member-II

Dr. KHALID AMIN

Versus

DIRECTOR-GENERAL HEALTH DEPARTMENT GOVERNMENT OF BALOCHISTAN QUETTA and 3 others

S.A. No.155 of 2010, decided on 25th October, 2010.

(a) Civil Service Regulations---

----Regln. 519---Re-employment of civil servant---Any civil servant who had been invalidated and incapacitated during tenure of his service could be reinstated, if subsequently at any stage, it was declared and certified that he could efficiently discharge his duties, even if he had availed his invalidity pension and dues.

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

----S. 2(1)(b)---Balochistan Service Tribunals Act (V of 1974), S.4---Status of civil servant after retirement---Appeal, competency of---Person having retired from service would fall within purview of definition of 'civil servant' in terms of S.2(1)(b) of Balochistan Civil Servants Act, 1974; and was competent to invoke the jurisdiction of Service Tribunal for redressal of any grievance relating to the terms and conditions of his service---Contention that a civil servant after his retirement had ceased to be a civil servant, was devoid of force, in circumstances.

(c) Fundamental Rules---

----R. 10-A(c)(1)---Civil Service Regulations, Regln.519---Balochistan Service Tribunals Act (V of 1974), S.4---Reinstatement of civil servant, who was declared invalidated and incapacitated---Appeal, limitation for---Medical Board after examining appellant declared him unfit for service---Appellant was allowed invalid pension and was retired from service on the basis of the opinion of the Medical Board---Later on when the appellant regained his health, he applied for his reinstatement, but his request was turned down---Validity---Appellant who was permanently invalidated by the Medical Board, could within 7 days of receipt to him of the official intimation of the finding of the Medical Board, apply to the Director General Health for review of his case by second Medical Board as provided under R.10-A(c)(1) of Fundamental Rules---Appellant who claimed that after taking some medical treatment he regained his health, approached Service Tribunal as well as the competent Authority after lapse of about 12 years---Law would aid vigilant and not those who slumbered on their rights---Limitation was most crucial and important point in judicial system wherein more than often default of one party would confer ipso facto right to the other---Claim of the appellant was time-barred and the matter being a past and closed transaction, could not be reopened.

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

----Ss. 13 & 14---Balochistan Service Tribunals Act (V of 1974), S.4---Retirement on medical basis---Reinstatement---Medical Board, after examination of appellant, declared him unfit for service---On basis of the opinion of the Medical Board, appellant was allowed invalid pension and was retired from service---Later on when appellant allegedly regained his health applied for his reinstatement, which application of appellant was turned down---Validity---Appellant had been declared completely and permanently incapacitated for further service of any kind on the basis of "vertigo and tinnities" disease---No one could be declared invalid on the sole basis of "vertigo and tirmilus", because one could easily be recovered after going through a formal treatment---Record had revealed that appellant was examined by the Medical Board on his own request; it seemed that invalidating certificate issued in favour of appellant was not based on facts, but was the outcome of collusion between the appellant and Medical Board---Equity demanded that one should come to the court with clean hands; whereas appellant had completely failed to establish his contention---Appeal was dismissed being time-barred and without merits.

Naeem Bazai for Appellant.

Naseer Ahmad Bangulzai, A.A.-G. for Respondents.

Date of hearing: 14th October, 2010.

2011 P L C (C.S.) 993

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai and Muhammad Anwar Khan Members

MAHBOOB KHAN MANDOKHAIL

Versus

SECRETARY C&W GOVERNMENT OF BALOCHISTAN and 2 others

S.A. No.175 of 2010, decided on 27th October, 2010.

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

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer order---Direct appeal before the Service Tribunal without exhausting departmental remedy---Maintainability---Counsel for authorities had contended that appeal filed by the appellant was not maintainable having been filed directly without exhausting departmental remedy---Contention was repelled as matter of transfer of civil servants being part of terms and conditions of their services, would fall within exclusive jurisdiction of Service Tribunal---Order of transfer of civil servant could straightaway be challenged before Service Tribunal without first exhausting the remedy of representation in the hierarchy of the department---If transfer order was mala fide or in violation of settled law, and was made for extraneous considerations to accommodate some blue eyed-chap, it would squarely fall within the domain of Service Tribunal---Said original orders of the departmental authorities against which no appeal had been provided, had been termed as the original final orders; whereas in those cases where appeal lay, the order passed in appeal was the final order---Order of the departmental authority for the transfer of the civil servant was such against which, no departmental appeal lay before the higher authority; in such a situation, if the aggrieved civil servant wanted to get relief, could immediately approach the Administrative Court or the Tribunal for redressal of his grievance.

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

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer order---Question of transfer/posting under S.10 of Balochistan Civil Servants Act, 1974 fell within the domain of competent authority, but such discretion must not be exercised in an arbitrary or fanciful manner---Such discretion had to be exercised judiciously and in accordance with settled norms of justice, equity and fairplay---Government was required/duty bound to exercise the discretion keeping in view the nature of duty and requisite capabilities in a fair and impartial manner---There should be no extraneous considerations---Transfer order, if mala fide or in violation of settled law, for extraneous consideration, would fall within the domain of the Service Tribunal---Normally, a civil servant would not be transferred from one station to another, prior to the completion of prescribed period of tenure---Civil servants were generally permitted to complete their normal tenure in case of transfer from one place to another---Such principle had to be followed in the ordinary circumstances, unless for reasons of exigencies of service---Impugned transfer order of the appellant was deviation from normal procedure and transfer/posting Policy, for which even reasons were not assigned---Appellant was going to be retired within a period of 4/5 months; his transfer order, in circumstances smacked of arbitrariness; and was not tenable having been passed in clear violation of transfer/posting Policy, 2003---Notification whereby appellant was transferred, was set aside and appellant would retain his earlier position.

M. Wasy Tareen for Appellant.

Nasrullah Achakazai, A.A.-G. for Respondents.

Date of hearing:26th October, 2010.

2011 P L C (C.S.) 1003

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Ghalzai, Member-I and Muhammad Anwar Khan-II

Dr. ABDUL NASEER

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Health Department

S.A. No.23 of 2007, decided on 23rd July, 2010.

Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000)---

----Ss. 3 & 10---Balochistan Service Tribunals Act (V of 1974), S.4---Removal from service---Appellant was removed from service on the basis of registration of a criminal case against him and the conviction and sentence passed against him, which ultimately was set aside and appellant was honourably acquitted of the charge---Validity---Impugned removal order was not sustainable and the appellant was entitled to be reinstated in service---It was a case of hardship as the appellant had suffered a lot for the wrongs committed by the others---Appellant, in circumstances, was entitled for his pay and other allowances, benefits and facilities during the period he remained under suspension---Appellant, however was not entitled to get salaries of said period on the principle of 'no work no pay'---Order of removal from service was set aside and appellant was directed to be reinstated in service with back benefits from the date of his suspension till date of his reinstatement.

2001 SCMR 269 and 1998 SCMR 1993 ref.

W.N. Kholi for Appellant.

Naseer Ahmed Bangulzai, A.A.-G. for Respondent

Date of hearing:24th June, 2010.

2011 P L C (C.S.) 1014

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Galzai, Member-I and Muhammad Anwar Khan, Member-II

LIAQAT ALI

Versus

SENIOR MEMBER, BOARD OF REVENUE QUETTA and another

S.A. No.60 of 2010, decided on 31st May, 2010.

(a) Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000)---

----Ss. 2(a), 3, 5 & 10---Balochistan Service Tribunals Act (V of 1974), S.4---Penalty of reduction to lower post for five years was imposed upon the appellant after serving with a show-cause notice, but without holding any inquiry against him on allegation that he being Naib-Tehsildar prepared a wrong mutation entry---Validity---When a major penalty was to be imposed on a civil servant, a regular inquiry was to be held to determine the factual basis of the allegations which were required to be proved in accordance with law---Authority, though had the discretion to hold or dispense with regular inquiry, but such discretion was to be exercised in fair and judicial manner---"Reduction to lower post for five years" imposed on the appellant constituted major penalty, which could not be inflicted without holding full fledged inquiry which could not be dispensed with in terms of S.5(4) of Balochistan Province Removal from Service (Special Powers) Ordinance, 2000---Impugned order also suffered from another material legal infirmity as appellant was directly appointed as Naib-Tehsildar and never held any substantive post in lower rank---Appellant, in circumstances, could not be reduced to rank to a post which appellant never held---Question of reversion could only arise when a valid and proper promotion had been made---Show-cause notice as well as impugned order had been passed and issued by the Commissioner, which under S.2(a) of Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 was not "competent authority"---Impugned order suffering from said material legal infirmity, could not sustain, in circumstances---Impugned order which had been passed against the appellant in derogation of judicially propounded dicta "Justice was not only to be done, but should undoubtedly and manifestly appear to have been done", was set aside and the appellant was restored to his original substantive post of Naib-Tehsildar.

(b) Constitution of Pakistan---

----Arts. 4 & 199---Constitutional petition---Right of individuals to be dealt with in accordance with law---Inalienable right of every citizen under Art.4 of the Constitution, to be dealt in accordance with law---When law required an act to be done in a particular manner, that must be done in that manner; and doing of it in any manner contrary to prescribed manner, would be illegal.

Mazhar Illyas Nagi for Appellant.

Naseeer Bangulzai, Additional Advocate General for Respondents.

Date of hearing: 26th May, 2010.

2011 P L C (C.S.) 1079

[KPK Service Tribunal]

Before Qalandar Ali Khan, Chairman and Sultan Mehmood Khattak, Member

SAJJAD HUSSAIN

Versus

ADMINISTARATIVE JUDGE, PESHAWAR, HIGH COURT, through Registrar and another

Service Appeal No.376 of 2009, decided on 23rd November, 2010

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

----Ss. 3, 5, 10 & 11---North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973, Rr.4 & 5---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Termination of service---Appellant who was appointed as Reader of Anti-Terrorism Court, his services were terminated after charge-sheeting him and holding inquiry against him on charge of theft of computer from the premises of the court---Appellant was saddled with the charge of theft only because he was the last one to leave the court premises---Appellant had been acquitted by the charge of theft by the Judicial Magistrate---Appellant was held responsible for theft by the Senior Civil Judge on the sole ground of his leaving the court in the last---Initial inquiry of the Senior Civil Judge was 'fact finding inquiry', because it was not held under either North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973 or North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000; and also under the order of the authority---No eye-witness account of occurrence was on record, as no one had seen the appellant while removing the articles/items from the court premises---In the absence of any other evidence, the only ground that the appellant was the last one to leave the court premises, would neither appear reasonable nor convincing to subject him to harsh penalty of termination from service, especially when the authority also expressed his reservations about his performance and conduct, which would smack of a predisposition---North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 would have overriding effect over the North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973, in accordance with S.11 of Ordinance, 2000---Impugned order would show that services of the appellant were "terminated", but said penalty of 'termination' was alien to both the said Ordinances as major penalty had been prescribed as dismissal, removal from service and compulsory retirement, besides reduction to a lower post, but there was no penalty known as 'termination' in either of the legislations---Impugned order was not clear to the effect that as to under what provision of law Judge Anti-Terrorism Court had resorted to unknown penalty of 'termination' from service---When there was nothing on record to connect the appellant with theft, and also he had not been treated in accordance with law/rules, impugned order was set aside and appellant was reinstated in service with consequential back-benefits.

Mushtaq Ali Tahirkheli for Appellant.

Sher Afgan Khattak, Addl. A.-G. for Respondents.

2011 P L C (C.S.) 1090

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

Before Qalandar Ali Khan, Chairman and Sultan Mehmood Khattak, Member

ZIARAT GUL

Versus

CONSERVATOR OF FORESTS SOUTHERN CIRCLE, PESHAWAR and 2 others

Service Appeal No.714 of 2009, decided on 8th September, 2009

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

----Ss. 3 & 5(3)---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Imposition of penalty on the charge of misconduct and inefficiency---Appellant was a driver attached with an official for driving official vehicle and it was alleged that vehicle driven by the appellant had a narrow escape from meeting accident due to failure of brakes---Official attributed the removal of nuts from wheel of the vehicle in question and alleged the same to be a sabotage activity, or an attempt on the life of the Official---Alleged acts would certainly fall within the definition of criminal acts, but neither a criminal complaint or F.I.R. had been lodged against the appellant/driver nor any motive appeared on the record prompting the appellant to resort to such an extreme act of putting the life of a senior Government Officer to risk---No evidence was available to show the involvement of the appellant in the removal of nuts---Two penalties, one major penalty of reversion to the lowest of the scale in which appellant was drawing his pay under (BPS-5), and other of administering character roll warning to be careful in future were imposed, which penalty neither was provided in the North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000, nor in the North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---Said penalties were imposed on the appellant after issuing him show-cause notice and holding enquiry against him on charges of misconduct and inefficiency---Official concerned was also the authority in the case and he had imposed penalties on the appellant as a result of the report/finding of Enquiry Committee which was appointed by the official in his capacity as authority---Official, in circumstances, was both the complainant and the final arbiter who imposed major penalty of reversion of the appellant to the lowest of the scale---Neither proper procedure was adopted for proceeding against the appellant under the law, nor he was provided proper opportunity of defence, which would vitiate the entire disciplinary proceedings against him---Objection was raised with regard to non-signing of the appeal by the appellant, but that technicality should not preclude the Tribunal from granting relief to which, he was otherwise entitled to.??

?????? Danish Ali Qazi for Appellant.

?????? Zahid Karim A-G.P. for Respondents.

2011 P L C (C.S.) 1111

[KPK Service Tribunal]

Before Qalandar Ali Khan, Chairman and Noor Ali Khan, Member

GUL SHEHZAD

Versus

CHAIRMAN, BOARD OF GOVERNOR, PESHAWAR PUBLIC SCHOOL/ COLLEGE, and 2 others

Appeals Nos.541, 557, 558 and 608 of 2009, decided on of 28th April, 2010.

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

----Ss. 3, 5, 10 & 11---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Imposition of major penalty of compulsory retirement from service---Said penalty was imposed after serving with charge-sheet and holding inquiry against employees on certain allegations---Appellants had not only questioned the legality of the departmental proceedings on the basis of mala fide on the part of respondents, but had also assailed the inquiry proceedings for being in contravention of relevant law/rules---Inquiry proceedings were conducted in the case in clear violation of mandatory provisions of North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 as neither statements of the witnesses were recorded in a proper way nor the appellants were allowed to cross-examine the witnesses against them---Nothing was brought on record by the Inquiry Officer against the appellants---Final show -cause notice contained some more allegation which were not part of the charge-sheet and statement of allegations, which also had shown mala fide on the part of the authorities---Appellants were never allowed personal hearing nor they were allowed to produce defence in support of their case---Impugned order was set aside and appellants were reinstated in service with all consequential benefits.

2000 PLC (C.S.) 857; 1997 PLC (C.S.) 396 1999 PLC (C.S.) 1332 and 2007 PLC (C.S.) 222 ref.

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

----S. 2(d)---North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000), Ss.3, 5, 10 & 11---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Imposition of major penalty of compulsory retirement from service---Jurisdiction of Service Tribunal---Scope---Authorities in their written reply raised plea that appellants being not civil servants within the meaning of clause (b) of subsection (1) of S.2 of North-West Frontier Province Civil Servants Act, 1973, they could not file appeal before Service Tribunals Act, 1974---Validity---Employer School and College, was a statutory body as same had been established by the Provincial Government under the North-West Frontier Province Government Education and Training Institution Ordinance, 1971---Application of North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 was extended to a person in "corporation" and S.10 of the Ordinance had provided for filing of appeal by any such person aggrieved by any final order under the Ordinance and S.11 of the Ordinance had over-riding effect---Appellants, therefore, had no other choice but to lodge appeals in the Service Tribunal under S.4 of North-West Frontier Province Service Tribunals Act, 1974, read with S.10 of the Ordinance---Authorities, after proceedings against the appellants under North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000, could not turn around and say that appellants could not invoke the jurisdiction of Service Tribunal as provided for in S.10 of the said Ordinance.

PLD 2006 SC 602; 2007 PLC (C.S.) 1046; 2009 PLC (C.S.) 817; 2005 SCMR 1603 and Professor Dr.Nizakat Begum, Ayub Medical College, Abbottabad v. Government of N.-W.F.P. through Secretary Health and 2 others 2005 PLC (S.C) 1247 ref.

Ijaz Anwar for Appellant.

Sher Afgan Khattak, Addl. A.-G. and Muhammad Isa Khan for Respondents.

2011 P L C (C.S.) 522

[Punjab Service Tribunal]

Before Rai Ijaz Ali Zaigham, Member-VI

DILBER HUSSAIN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and another

Appeal No.2744 of 2009, decided on 29th October, 2010.

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

----Ss. 4(1)(b)(ii), 5 & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of reduction to lower post---Conversion of penalty into withholding of increments for two years---Penalty of reduction to lower post, i.e. from Inspector of Police to Sub-Inspector of Police was imposed on appellant after issuing him show-cause notice, but without holding any inquiry on allegations of inefficiency and misconduct---Such penalty was reduced to withholding of increments for two years on appeal---Material controversies in the case were not resolved by holding a regular inquiry according to procedure prescribed under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Where imposition of major penalty was contemplated, holding of regular inquiry was indispensable---No cogent reason had been given to the show-cause notice for dispensing with holding of regular inquiry---Appellant had been punished without procuring adequate evidence to prove inefficiency and misconduct---In view of legal infirmities in the impugned orders of Authority imposing major penalty of reduction in rank and order of Appellate Authority modifying same into withholding of increments, were set aside.

Mrs. Rizwana Anjum Mufti for Appellant

Nazir Sultan, Deputy District Attorney, Ghulam Hussain Chohan, DSP Legal, IGP Office and Shahzad Ahmad, ASI CPO Office, Faisalabad for Respondents.

Date of hearing: 29th October, 2010.

2011 P L C (C.S.) 546

[Punjab Service Tribunal]

Before Tallat Mahmood Tariq, Member-II

MUHAMMAD MUNAWAR

Versus

DISTRICT POLICE OFFICER, MANDI BAHA-UD-DIN and another

Appeal No.1158 of 2010, decided on 1st September, 2010.

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

----S. 12---Punjab Service Tribunals Act (IX of 1974), S.4---Retirement---Grant of leave preparatory to retirement---Cancellation of unavailed portion of such leave---Effect on retirement---Appellant was granted LPR w.e.f. 23-10-2009 and he was to retire on 22-10-2010---Before retirement date appellant submitted application on 18-12-2009 for cancellation of unavailed portion of the LPR and for his reinstatement in service---Leave preparatory to retirement was an indispensable part of service and civil servant while on LPR would be treated in service . for all intents and purposes; and that before expiry of LPR, a civil servant could withdraw his request for retirement---Civil servant would be deemed to be in service from the date on which he requested for withdrawal of his LPR; and not from the date of his request was accepted---Unavailed portion of LPR would be cancelled and appellant reinstated in service w.e.f. 18-12-2009---Intervening period would be treated as leave of the kind due.

Mrs. Rizwana Anjum for Appellant.

Abid Hussain Bhatti, Deputy District Attorney and Rab Nawaz, Junior Clerk, DR. for Respondent.

Date of hearing: 28th May, 2010.

2011 P L C (C.S.) 12

[Sindh Service Tribunal]

Before Justice (Retd.) Ghulam Nabi Soomro, Chairman, Qazi Qamaruddin and Mrs. Akhtar A. Choudhry, Members

SHAFIQ-UR-REHMAN and another

Versus

GOVERNMENT OF SINDH and others

Appeal No.102 of 2008, decided on 19th July, 2010.

Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975---

----R. 10---Service Tribunals Act (LXX of 1973), S.4---Re­-regularization of service---Appeal---Appellants who were appointed as Excise and Taxation Inspectors on 2-3-1990, their services were regularized by the Chief Minister on 2-4-1991---Services of the appellants along with others were terminated, but all of them were reinstated, either through the aid of the court or by the Government itself---Subsequently when services of appellants along with others were second time regularized on 14-11-2006, regularization of the services of the appellants was considered from that date---Validity---No scope for second time regularization or re-regularization of service of the appellants under law existed, when they earlier were regularized--Department was not justified in re-regularization of appellant's service w.e.f. 14-11-2006 instead of 2-4-1991---Order of dismissal from service passed against appellant having been corrected and undone by different fora, appellants' dismissal would not come in their way at any stage of service---Appellants had every right to claim regularization of their services from the date when their services were initially regularized.

Ishfaq Hussain Rana v. Government of Punjab through Secretary, Agriculture and 38 others 1993 SCMR 1326; Samar Gul v. Central Government and others PLD 1986 SC 35 and Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others PLD 1975 SC 244 rel.

Jamil Ahmed Rajpar for Appellant (in Appeal No.102 of 2008).

Moula Bukhsh Khoso for Appellant (in Appeals Nos.106 and 107 of 2008).

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

Date of hearing: 1st July, 2010.

2011 P L C (C.S.) 189

[Sindh Service Tribunal]

Before Justice (R.) Ghulam Nabi Soomro, Chairman Qazi Qamaruddin and Akhtar A. Choudhry, Members

LUBNA PASHA

Versus

Brig. M. SHAFIULLAH QURESHI

Appeal No.106 of 2009, heard on 21st April, 2010.

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

----S. 4---Appeal to Service Tribunal---Limitation---Delay, condonation of---Appeal against order of dismissal from service was time-barred by more than 394 days---Delay of each day was to be explained, but no application for condonation of delay was filed by the appellant---Even no oral request was made by appellant for condonation of delay---general ground of sickness taken by appellant without any proof on record, would not meet the requirements for condonation of such long delay---To consider condonation of delay in favour of appellant would amount to transgression of jurisdiction---Appeal being time-barred, was dismissed, in circumstances.

Rehmat Din and others v. Mirza Abbas and others 2007 SCMR 1560; Chairman Railway Board v. Muhammad Arshad and others 2002 SCMR 181; State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; N.-W.F.P. through Chief Secretary v. Mst. Hussain Pari and others PLD 1988 SC 144; Government of the Punjab v. Muhammad Saleem PLD 1995 SC 396 and Sher Bahadur v. The Government of N.-W.F.P. 1990 SCMR 1519 ref.

Nizam Ali Khan for Appellant.

Masroor Ahmed Alvi for Respondent.

Muhammad Bachal Tunio, Addl. A.-G. on Court notice.

Date of hearing: 21st April, 2010.

2011 PL C (C.S.) 387

[Sindh Service Tribunal]

Before Justice (Retd.) Ghulam Nabi Soomro, Chairman Qazi Qamaruddin and Mrs. Akhtar A. Choudhry, Members

ABDUL GHAFFAR

Versus

SUPERINTENDENT OF POLICE, SOUTH ZONE, KARACHI and another

Appeal No.85 of 2010, decided on 21st September, 2010.

(a) Sindh Police (Efficiency and Discipline) Rules, 1988---

----R. 4(b)(v)---Removal from Service (Special Powers) Sindh Ordinance (IX of 2000), Ss.3, 5, 6 & 11---Sindh Service Tribunals Act (XV of 1973), S.4---Dismissal from service---Penalty of dismissal from service was imposed on appellant after issuing him show-cause notice, but without holding inquiry against him on charge that he was involved in criminal cases---Appellant subsequently was acquitted of the charge against him by court of competent jurisdiction, but without awaiting the result of said criminal cases against him he was dismissed from service---Allegations levelled against the appellant, being of serious nature, two options were available with the Authority, firstly to order for holding regular departmental inquiry according to law or secondly to wait for the final outcome of the criminal cases pending in the court of law---Authority, however neither ordered for conducting regular inquiry nor awaited the result of criminal cases against the appellant---Even the reasons of dispensing with regular inquiry were not mentioned in show-cause notice--Action of Authority in awarding major penalty of dismissal from service, in circumstances, was in sheer violation of principles of natural justice---Since appellant had already been acquitted from both the criminal cases against him, the very basis on which order of his dismissal from service was passed, would disappear--Order of dismissal itself would be rendered ineffective. and liable to be set aside---Proceedings against the appellant commenced under the provisions of Sindh Police (Efficiency and Discipline) Rules, 1988 at the time when Removal from Service (Special Powers) Sindh Ordinance, 2000 was already promulgated---As under S.11 of Removal from Service (Special Powers) Sindh Ordinance, 2000 had overriding effect, the whole disciplinary proceedings initiated and culminated against appellant, were bad in law and were not sustainable.

Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; WAPDA v. Jehangir Khan 1999 PLC (C.S.) 423; Saeed Ahmed Khan v. AJ&K Government and others, 1996 PLC (C.S.) 439; Ahmed Kammal v. Pakistan Central Cotton Committee and others 2004 PLC (C.S.) 1591; Naveed Ahmed v. Board of Governors, Cadet College Pallandri and others 2006 PLC (C.S.) 1001; 2001 PLC (C.S.) 86; 1998 PLC (C.S.) 1430; Attaullah Shaikh v. WAPDA and others 2001 SCMR 269; Shamsuddin Khawaja v. Government of Pakistan and others 2003 PLC (C.S.) 814; Rashid Mehmood v. Additional Inspector-General of Police and others 2002 SCMR 57; Muhammad Sardar v. Senior Member, BOR (Estt.) Punjab and others 1985 SCMR 1062; KLR 1995 L&SC 89; Lahore Development Authority v. Muhammad Nadeem Kachilo and others 2006 SCMR 434; Saleh Muhammad v. WAPDA 1985 PLC (C.S.) 478; Abdul Bashir v. Government of Balochistan 2001 PLC (C.S.) 771; 1997 PLC (C.S.) 929; S.A. Rizvi v. Islamic Republic of Pakistan and others 1991 MLD 1834; Muhammad Haleem and another v. General Manager (Operations) Pakistan Railways Headquarter, Lahore and another 2009 SCMR 339; Ahmed Kamal v. Pakistan Central Cotton Committee and others 2004 PLC (C.S.) 1591 and Azizullah Memon v. Province of Sindh and another 2007 SCMR 299 ref.

(b) Maxim---

----`Audi alteram partem'---Applicability---Scope---Maxim "audi alteram partem', was applicable to judicial as well non judicial proceedings---Violation of principles of natural justice equated with the violation of provisions of law---Action taken in violation of law was without lawful authority and of no legal effect.

Mrs. Anisa Rehman V. PIAC 1994 SCMR 2232 and WAPDA v. Jehangir Khan 1999 TD (Service) 135 ref.

(c) Civil service---

---Criminal charges against employee---Where criminal charges against employee were not established before a competent court of law; and accused employee was acquitted on those specific charges, the departmental proceedings, exactly on the same charges would be wholly irrelevant and unjustified.

Attaullah Shaikh v. WAPDA and others 2001 SCMR 269 and Shamsuddin Khawaja v. Government of Pakistan and others 2003 PLC (C.S.) 814 and Rashid Mehmood v. Additional Inspector-General of Police and others 2002 SCMR 57 ref.

(d) Sindh Police (Efficiency and Discipline) Rules, 1988---

----R. 4---Removal from Service (Special Powers) Sindh Ordinance (IX of 2000), Ss.3, 5, 6, 10 & 11---Dismissal from service---Reason of appellant's dismissal from service was that he remained absent from duty without prior permission/approval---Leave period had already been regularized by treating the same as leave without pay---Absence of appellant, in circumstances, could not have been made a ground of awarding major penalty of dismissal from service, as the same would amount to double jeopardy not permissible under law---Even the period during which appellant remained under suspension, had also been, treated as leave without pay.

1996 PLC (C.S.) 452 and L.D.A. and others v. Muhammad Nadeem Kachilo and another 2005 SCMR 43 ref.

(e) Sindh Police (Efficiency and Discipline) Rules, 1988---

----R. 4---Removal from Service (Special Powers) Sindh Ordinance (IX of 2000), Ss.3, 5, 6 & 7---Dismissal from service---Enquiry proceedings---Inquiry in the present case was said to have been conducted by Superintendent of Police who submitted his report, which was made basis of rejection of departmental appeal---Nothing was on record to indicate that employee who was dismissed from service, was ever called to participate in said inquiry or the copy of said inquiry report was supplied to him---If there was any inquiry, same at the most could be termed as fact finding inquiry which per se had no legal value and on the basis of the same, no penalty of whatsoever nature could be awarded to any one.

Saleh Muhammad v. WAPDA 1985 PLC. (C.S.) 478; Abdul Bashir v. Government of Balochistan 2001 PLC (C. S.) 771; Khalid Naveed v. Member Admn. Chairman P.A.E.C, Islamabad 2000 PLC (C.S.) 857; Ahmed Kamal v. Pakistan Central Cotton Committee and others and others, 2004 PLC (C.S.) 1591; 1997 PLC (C.S.) 929 and Azizullah Memon v. Province of Sindh and another 2007 SCMR 299 ref.

Jamil Ahmed Rajpar for Appellant.

Muhammad Bachal Tunio, Addl. A.-G. along with Inspector Abdul Rehman for Respondents Nos. 1 and 2.

Date of hearing: 16th August, 2010.

2011 P L C (C.S.) 526

[Sindh Service Tribunal]

Before Justice (R.) Ghulam Nabi Soomro, Chairman Qazi Qamaruddin, Member-I and

Mrs. Akhtar A. Choudhry, Member-II

GOHRAM SOOMRO

Versus

SECRETARY, MINISTRY OF EDUCATION and 4 others

Appeal No.116 of 2008, decided on 6th August, 2009.

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

----S. 4---Termination of service---Appeal---Appellant who was appointed as High School Teacher (B-16) on 13-8-1995, continued to serve as school teacher in rural area for about nine years, but all of a sudden his monthly salary was stopped---Appellant however continued to serve the department, while three years thereafter on 28-4-2007, he was verbally informed that he was no more a government servant on the ground that he was a bogus employee; as his appointment was made on false/fictitious documents---Termination of the appellant from service was not made through any written order---Not only any show-cause notice was issued to the appellant, but detailed enquiry was also not conducted in the matter---Appellant who continued receiving salary for not less than a period of nine years without even being questioned, with the passage of a decade in service, had acquired a very valuable right and if was thrown out of job at that stage and his age, he could never get a like job elseware for various reasons including the stigma of dismissal---Order of termination of the appellant, was void ab initio, illegal and without jurisdiction---Appeal by the appellant was not hit by any provisions of limitation as no time would run against order of termination---Appellant in view of his long unblemished service had acquired a valuable right---No fault was shown on the part of the appellant, but it lay entirely on the authorities, who were either so careless or in a deep slumber for more than 9 years to learn about alleged irregularity in appointment of the appellant---Authorities were directed to reinstate the appellant from the date he was removed from service, with all back-benefits admissible under the law.

Government of Sindh v. Masood Hussain 2002 SCMR 155; Messrs Sui Northern. Gas Pipelines Ltd. v. Malik Murawat Hussain 2004 PLC (C.S.) 821; Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37; Muhammad Shafi v. Mushtaque Ahmad through Legal Heirs and others 1996 SCMR 856; Province of Punjab v. Zulfiqar Ali 2005 PLC (C.S.) 1165; Mian Tariq Javed v. Province of Punjab and 2 others 2008 SCMR 598; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooque Malik and others 2004 SCMR 158 and Abdul Qayoom v. D.C. Project Management Organization, J.S. Hq. Rawalpindi and others 2003 PLC (C.S.) 353 ref.

Muhammad Nawaz Shaikh for Appellant.

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

Date of hearing: 6th August, 2009.

2011 P L C (C.S.) 1027

[Sindh Service Tribunal]

Before Ghulam Nabi Soomro, Chairman, Qazi Qamar-ud-Din and Mrs. Akhtar A. Choudhry, Members

GHULAM MUHAMMAD TUNIO

Versus

PROVINCE OF SINDH and others

Appeal No.107 of 2009, decided on 6th September, 2010.

Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----Rr. 12 & 13---Sindh Police Rules, 1979, R.12.2(3)---Sindh Service Tribunals Act (XIV of 1973), S.4---Promotion---Appellant had sought promotion and other benefits in accordance to his seniority position duly allowed along with his batch-mates---Seniority position of the appellants was though restored, but consequential benefits including promotion were not allowed---Appellant had been ignored at every stage of his career since his transfer from one place of working to another in contravention of the settled principles of law---If civil servant was not considered for promotion on his turn for no fault of his, he ought not be prejudiced by earlier promotion of his juniors in the lower grade as provided under R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 which was designed to prevent chaos that could arise through decisions reconsidering seniority of civil servants; and to ensure that instead of claiming mechanical promotion on account of some mistake of department, a civil servant must first establish his fitness for promotion, and then after being promoted claim, benefit of seniority denied through mistake---Impugned order was set aside.

1991 PLC (C.S.) 2008; PLD 1980 SC 195; 1991 SCMR 1129; PLD 1994 SC 539 and 2000 PLC (C.S.) 46 ref.

Moula Buksh Khoso for Appellant.

Muhammad Bachal Tunio for Respondent.

Date of hearing: 17th August, 2010.

2011 P L C (C.S.) 1

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

MUHAMMAD ISLAM

Versus

INSPECTOR-GENERAL, ISLAMABAD and others

Civil Petition No.69 Of 2010, decided oh 13th July, 2010.

(On appeal from the order dated 2-11-2009 passed by Federal Service Tribunal, Islamabad in Appeal No.462(R)/CS/2009).

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

----S. 4---Constitution of Pakistan, Art.212(3)---Appeal---Limitation---Review before departmental authority---Appeal was dismissed by Service Tribunal on the ground of its being barred by limitation---Plea raised by civil servant was that a review petition was preferred by him which resulted in some delay---Validity---Such justification was made by civil servant in oblivion of the fact that no provisions regarding review was available and no review should have been filed---Departmental appeal filed by civil servant was barred by time and accordingly appeal preferred before Service Tribunal could not be held within time---Question of limitation was examined by Service Tribunal in accordance with law and no illegality or irregularity could be pointed out warranting interference in the order passed by Service Tribunal---Leave to appeal was refused.

Muhammad Sami v. Additional District Judge 2007 SCMR 621; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453 and State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426 rel.

(b) Limitation---

----Question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case.

Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another 1978 SCMR 367; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104; Punjab Province v: The Federation of Pakistan PLD 1956 FC 72; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Chief Kwame Asante v. Chief Kwame Tawia PLD 1949 PC 45; Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; WAPDA v. Abdul Rashid Bhatti 1989 SCMR 467; Federation of Pakistan v. Muhammad Azim Khan 1949 SCMR 1271; Inspector-General of Police, Balochistan v. Jawad Haider and another 1987 SCMR 1606; WAPDA v. Aurangzeb 1988 SCMR 1354; Muhammad Naseem Sipra. v. Secretary, Government of Punjab 1989 SCMR 1149; Muhammad Ismail Memon v. Government of Sindh and another 1981 SCMR 244; Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others 1984 SCMR 177; Smith v. East Elloe Rural District Council and others 1956 AC 736; Province of East Pakistan and others v. Muhammad Abdu Miah PLD 1959 SC (Pak), 276; Mehr Muhammad Nawaz and others v. Government of the Punjab and others 1977 PLC (C.S.T.) 165 and Fazal Elahi Siddiqi v. Pakistan PLD 1990 SC 692 rel.

Mukhtar Ahmed Tarar, Advocate Supreme Court for Petitioner.

Mazhar Ali Chaudhry, Deputy Attorney-General and Javed Iqbal Khattak, SP, Legal for Respondents.

Date of hearing: 13th July, 2010.

2011 PLC (C.S.) 35

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

MUHAMMAD SHARIF

Versus

CHIEF SECRETARY and another

Civil Appeal No. 53-Q and Civil Petition No.30-Q of 2010, decided on 30th June, 2010.

(On appeal from the judgment dated 19-3-2010 passed by Balochistan Service Tribunal, Quetta in S.A.No. 59 of 2009).

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979--

----R.12-A---Retirement age---Determination---Grievance of civil servant was that his date of retirement had wrongly been calculated from seniority list---Civil servant relied upon his date of birth mentioned in his Secondary School Certificate, Computerized National Identity Card and Service Book---Validity---Date of birth of civil servant mentioned in Service Book could not be ignored as it was the most authenticated document---Date of birth mentioned in seniority lists could not be preferred over date of birth mentioned in Service Book--Supreme Court accepted the date of birth of civil servant mentioned in Secondary School Certificate, Computerized National Identity Card and Service Book---Supreme Court converted petition for leave to appeal into appeal and set aside notification of retirement of civil servant---Appeal was allowed.

Muhammad Riaz Ahmad, Advocate Supreme Court/Advocate­-on-Record for Petitioner.

Salahuddin Mengal, Advocate-General along with Iftikhar Ali, PDSP for Respondents.

Date of hearing: 30th June, 2010.

2011 P L C (C.S.) 103

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez Khan, JJ

MUHAMMAD MUBEEN-US-SALAM and 24 others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others

Civil Appeals Nos. 792 to 816 of 2005, decided on 15th July, 2010.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 27-11-2004 passed in Appeals Nos.1021(R)CS, 1023(R)CS to 1025(R)CS, 1027(R)CS to 1029(R)CS, 1031(R)CS to 1034(R)CS, 1038(R)CS, 1087(R)CS to 1092(R)CS, 1094(R)CS to 1099(R)CS and 1101(R)CS of 2003).

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

----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4---Constitution of Pakistan, Art. 212---Air Force Manual (A. F. M. 54-2, dated 17-5-1992), Chaps. I, VI, VII & X---Appeal to Service Tribunal---Teachers of Pakistan Air Force. (PAF) Inter-College, Islamabad---Prayer of such teachers for grant of benefits and facilities admissible to civil servants---Dismissal of such appeal---Validity---Supreme Court granted leave to appeal to examine questions as to whether or not teachers/employees of PAF Educational Institutions managed by Managing Committee or Bodies were civil servants under S. 2(1)(b) of Civil Servants Act, 1973 or for purpose of S. '2-A of Service Tribunals Act, 1973; whether such employees/teachers could invoke jurisdiction of Tribunal as well as of Supreme Court under Art.212(2) of the Constitution; and question of validity and vires of S.2-A of Service Tribunals Act, 1973 on touchstone of Art. 212 and other provisions of the Constitution.

Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957 and Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 rel.

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

----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art.212(3)---Air Force Manual (A.F.M. 54-2, dated 17-5-1992), Chaps. I, VI, VII & X---Appeal---Teachers of Pakistan Air Force Inter-College---Prayer of such teachers for declaring them to be civil servants and granting them benefits and facilities admissible to civil servants---Dismissal of such appeal by Service Tribunal---Validity---Such College being one of similar other educational institutions set up by PAF initially for providing education to children of its personnel and later opening same to civilians---Declared object of Air Force Manual (A.F.M. 54-2), dated 17-5-1992 was to standardize functions of such Institutions while acknowledging their independence---Such Manual covered all aspects of running of such Institutions including administration, academics and terms and conditions of service of their employees---Each school or college of PAF had a Board of Governors---Air Force Manual conferred functions and administrative control of every Institution on a Managing Committee, which amongst Air Force Officers included representatives of parents of students---Said Manual declared each Institution to be self-financing institution dependent upon funds collected as tuition fees and allied charges----Funds of such Institutions were non-public funds for purpose of accounting---Chairman of Managing Committee was responsible for all financial organizations and administrative matters of such Institution---Managing Committee had power to appoint, confirm, promote, dismiss and discharge employees of such Institution---According to said Manual, each Institution was a separate and distinct employer and there was no provision for transfer of employees from one P.A.F. Institution to another---PAF Manual as well as Statement of College Funds sir awed that they did not receive any public grants or contributions from Pakistan Air Force or Federal Government---Pakistan Air Force had no power either to appoint or remove employees of such Institution---Federal Government had not been assigned any role in functioning of such .Institution---Regulations contained in the Manual were not-statutory and in nature of administrative instructions for tanning and functioning such Institution---Letters of appointments of teachers showed that they had furnished undertaking to follow regulations in the Manual in letter and spirit---Such Institution was a private institution and not part of Pakistan Air Force or Federal Government, notwithstanding that personnel of PAF were included in their Managing Committee--Relationship of teachers being employees of such institution was that of `master and servant'---Posts held by the teachers were created under such Institutions' own Regulations, but not in manner posts in Government Departments were created---Posts held by such teachers were not "civil posts ", thus, they were not civil servants within meaning of S. 2(1)(b) of Act, 1973 as they were not connected with Defence or Federal Government---Appeals of such teachers before Tribunal were not maintainable---Supreme Court dismissed the appeals of such teachers.

Yusaf Ali Khan v. the Province of Punjab PLD 1949 Lah. 219; Federation of Pakistan v. Shamsul Ruda PLD 1957 Decca 148; S. Mohan Singh v. Patiala and East Punjab States Union AIR 1954 Pepsu 136; R. Christopher v. Executive Engineer AIR 1966 Allahbad 97; State of Uttar Pradesh v. Audh Narain Singh AIR 1965 SC 360 and Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 ref.

Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 and M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 rel.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants.

Moulvi Anwar-ul-Haq, AGP and Raja Abdul Ghafoor, Advocate-on-Record for the Federation.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 15th July, 2010.

2011 P L C (C.S.) 196

[Supreme Court of Pakistan]

Before Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

Ms. SALMA MOOSAJEE and another

Versus

FEDERATION OF PAKISTAN and others

C.P.L.As. Nos.505-K and 581-K of 2009, decided on 4th December, 2009.

Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to examine whether the claim of the petitioners on merit had been rightly rejected, despite effective applicability of the notification, when the petitioners were under the employment of respondents---Grant of leave, however, was subject to limitation, which would be examined and decided at the time of hearing of appeals.

S. Safdar Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in Petition No.505-K of 2009).

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners (in Petition No.581-K of 2009).

Nemo for Respondents.

2011 P L C (C.S.) 240

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

Dr. S.M. INKISAR ALI---Appellant

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Appeals Nos. 1254 and 1255 of 2005, decided on 20th October, 2010.

(Against judgment dated 29-6-2004 of Sindh Service Tribunal, Karachi, passed in Appeals No.58 of 1997, 8 of 1999 and 415 of 2000).

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

---Rs. 8 & 8-A---Promotion, types of---Fixing of seniority---Grievance of appellant was that he was senior to respondent and notification declaring him so was rightly issued by government---Validity---Distinction had to be made in between two cases of promotions one on regular basis and other on acting charge basis, which was a temporary/ ad hoc promotion ,to fill a vacancy as a stopgap arrangement in public interest---Such distinction was available under Rule 8 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which was for regular promotion under which case of an officer could be considered on the condition that he possessed the required qualification and fulfilled other conditions of such promotion---Whereas Rule 8-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, was for promotion under acting charge basis, in that promotion only the case of the most senior officer who was otherwise eligible for promotion but did not possess specified length of service, could be considered---Alleged supersession did not carry any stigma in respect of appellant---Notification declaring appellant as senior to respondent was proper and legal, which held the field, therefore, appellant was senior to the respondent---Appeal was allowed.

Abrar Hassan, Advocate Supreme Court and Mrs. Shiraz Iqbal Chaudhry, Advocate-on-Record for Appellant.

Abdul Fateh Malik, Additional Advocate-General, Sindh, Mehr F. Hansotia, Registrar, Dow University of Health Sciences, Karachi for Respondents Nos. 1, 2 and 4 (in Civil Appeal No. 1254 of 2005).

Mushtaq A. Memon, Senior Advocate Supreme Court, Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 3 (in Civil Appeal No.1254 of 2005).

Abdul Fateh Malik, Additional Advocate-General, Sindh and Mehr F. Hansotia, Registrar, Dow University of Health Sciences, Karachi for Respondents Nos. 1 and 2 (in Civil Appeal No. 1255 of 2005).

Sohail H. K. Rana, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent No.3 (in Civil Appeal No. 1255 of 2005).

Mushtaq A. Memon, Senior Advocate Supreme Court, Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 4 (in Civil Appeal No. 1255 of 2005).

Date of hearing: 29th June, 2010.

2011 PLC (C.S.) 251

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

Capt. (Retd.) KHALID ZAMAN---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division and others---Respondents

Civil Appeal No. 1868 of 2007, decided on 6th October, 2010.

(On appeal from the judgment dated 29-6-2007 of the Federal Service Tribunal, Islamabad passed in Appeal No. 168(R)(CS) of 2004).

(a) Civil Servants (Seniority) Rules, 1993---

----R.5---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether service rendered by petitioner in Pakistan Army was not countable towards his service in Postal Group in the light of law laid down by Supreme Court; and whether notwithstanding re-fixation of seniority, promotion once given to petitioner in accordance with his entitlement under law, could be withdrawn in the light of principle of locus poenitentiae.

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

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

----S.22---Civil Servants (Seniority) Rules, 1993, R.5---Compulsory Service (Armed Forces) Ordinance (XXIV of 1965), S. 9-A---Seniority---Pervious service of Army---Civil servant was serving in Pakistan Army and from there he joined Civil Service and was inducted in Postal Service Group---Chairman Pakistan Postal Services Management Board counted period of civil servant served in Army and fixed his service accordingly---Federal Government reversed the decision of Chairman, which order was maintained by Service Tribunal---Plea raised by civil servant was that Secretary Communication Division of Government of Pakistan, had no jurisdiction to pass such order---Validity---Pakistan Postal Service Management Board was an attached department of Communication Division of Government of Pakistan, the Secretary was head of that division and according to provisions of section 22(2) of Civil Servants Act, 1973, a civil servant aggrieved of any order contemplated, where no appeal or review was provided in law could validly maintain a representation before the authority next higher to that which had passed the order---Irrespective of the grade of Chairman Pakistan Postal Services Management Board and that of Secretary Communication being equal, under the Rules of Business the Secretary being in-charge of concerned division for all intents and purposes was an authority higher than the Chairman and, therefore, competent to entertain and decide representation of respondents, therefore, the objection of appellant could not sustain and was repelled---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

Capt. (Retd.) Abdul Qayyum v. Government of Punjab through Chief Secretary and 81 others 2003 PLC (C.S.) 1008; Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and another 1996 SCMR 1185; Muhammad Iqbal Khokhar and 3 others v. The Government of The Punjab through the Secretary to Government of the Punjab Lahore and 2 others PLD 1991 SC 35; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and PLD 1997 SC 351 distinguished.

Abdur Rehman Siddique, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellant.

Mazhar Ali Ch. D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 3.

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.5, 7, 8, 11 to 14, 16, 17, 20, 23, 24, 34 to 36, 38, 40, 42 to 44, 46, 49, 50, 52 to 55, 57, 59, 60 and 64.

Respondents Nos.4, 6, 9, 10, 15, 18, 19, 21, 22, 25-33, 37, 39, 41, 45, 47, 48, 51, 56, 58, 61-63: Ex parte.

Date of hearing: 6th October, 2010.

2011 P L C (C.S.) 268

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD ALI GOHAR ZAIDI

Versus

HOUSE BUILDING FINANCE CORPORATION and others

Constitutional Petition No.403-K of 2009, decided on 29th December, 2009.

House Building Finance Corporation Act (XXITIII of 1952)---

---Ss. 41 & 42---Constitution of Pakistan, Art.212(3J---Leave to appeal was sought against judgment passed by Service Tribunal, whereby miscellaneous petition filed by the petitioner against abatement of his appeal was dismissed for want of jurisdiction---Claim of the petitioner was that Registrar of the Service Tribunal had no authority to declare that appeal had been abated; and that the Tribunal was required to pass separate order after providing opportunity to the parties---Petitioner further contended that Service Rules of the employer Corporation being statutory, his petition was maintainable before Service Tribunal---Validity---Section 41 of House Building Finance Corporation Act, 1952, provided that Government could make Rules consistent with said Act for the purpose of giving effect to the provisions of the Act---Section 42 of said Act had empowered the Board to make regulations consistent with the Act to provide for all matters for which provision was necessary or expedient for the purpose of giving effect to the provision of the Act including Regulations in respect of the terms and conditions of service---Rule making power had been conferred upon the Board for the management and control of day to day business of the Corporation---Impugned judgment of the Service Tribunal being well reasoned, called no interference by the Supreme Court---Leave to appeal was refused.

Khawaja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 2007 PLC (C.S.) 1275; Pakistan Red Cross Society and others v. Syed Nazar Gillani PLD 2005 SC 805; Chairman WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 342; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 842 and Cadet College Kohat and others v. Muhammad Shoaib Qureshi PLD 1984 SC 170 ref.

Masood Mukhtar Naqvi, Advocate Supreme Court and Izhar Alam Farooqui, Advocate-on-Record for Appellant.

Nemo for Respondents.

2011 PLC (C.S.) 367

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Tariq Parvez Khan and Ghulam Rabbani, JJ

EJAZ AKBAR KASI and others

Versus

MINISTRY OF INFORMATION AND BROADCASTING and others

Constitutional Petitions Nos.42, 48, 50 and 62 of 2009, decided on 4th November, 2010.

Constitution of Pakistan---

----Arts. 184(3), 9 & 25-Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Contentions of the petitioners (Pakistan Television employees on contract basis) were that the organization be directed to protect their period of service as they had served the organization for the last more than ten years, with performance more than satisfactory, therefore, their case was clearly covered under Art.9 of the Constitution; it was further pointed out that some of the resourceful persons whose names were mentioned, who had joined the organization after petitioners' appointment and despite the fact that they were junior to the petitioners, their services had been regularized which clearly indicated that Art.25 of the Constitution was violated---Held, there was no doubt that policy in respect of such employees for regularization of service was to be framed by the organization, but at the same time it was to be borne in mind that there should not be any discrimination and such like employees who were on contract basis for a period of more than 10 years etc. deserved to be considered for regularization as they were working against the existing sanctioned vacancy for which budgetary allocations were also made annually out of which they were being paid regularly---Board of Directors of the organization might not have declined the petitioners' regularization, however, it was a fact that regularization of contract employees, if it all was to be made was to depend upon the performance---Petitioners, in the present case, had qualified the test and their performance as well was upto the mark which was evident that for the last more than 10 years they had been allowed to continue work against the vacancies which they were holding without any interference and there was, now, no question of performance at all as they had already shown their performance---Petitioners, in circumstances, could not be discriminated without any cogent reason by violating the provisions of Art.25 of the Constitution and it was the duty of the organization to protect their fundamental rights enshrined in Art.9 of the Constitution---Petitions of the petitioners were accepted by the Supreme Court and their cases were sent to the organization for considering their cases for purpose of regularization or otherwise in view of the observations made in the present judgment.

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

Petitioners in person (in Constitutional Petitions Noos.42, 48 and 60 of 2009).

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Constitutional Petition No.62 of 2009).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents.

2011 PLC (C.S.) 376

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Tariq Parvez Khan and Ghulam Rabbani, JJ

ZARAI TARAQIATI BANK LTD. and another

Versus

MUHAMMAD BAKHSH and another

Civil Petition No. 2132 of 2010, decided on 11th November, 2010.

(On appeal from the judgment/order dated 12-7-2010 passed by Federal Service Tribunal, Islamabad in Appeal No. 1009(R) CS of 2007).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan, Art.212(3)---Employee, in the present case, had approached the Federal Service Tribunal with the prayer that benefit of protection of pay be extended to him and arrears of the salary be also allowed on the premise that before joining the organization he was working in Ministry of Interior, Directorate-General of Registration (NADRA), from 5-11-1973 to 12-6-1985 and Service Tribunal on having taken into consideration the pleadings of the parties and the relevant material available on record had accepted the appeal by means of impugned judgment---Validity---Leave to appeal was granted by Supreme Court to examine the effect of the judgments reported as Dr. Muhammad Amin v. President, Zarai Taraqiati Bank Ltd. 2010 SCMR 1458 and Raja Riaz v. Chairman, Pakistan Space and Upper Atmosphere Research Commission 2008 SCMR 402, keeping in view the fact that after the pronouncement of the judgment in Dr. Muhammad Amin's case on 17th February, 2010, S. 2A of the Service Tribunals Act, 1973 had been repealed vide Act No. II of 2010, dated 6th March, 2010, therefore, notwithstanding the observations made in Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 or in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681, the employees of such organization would be entitled to avail remedy before the Service Tribunal.

Mian Muhammad Hanif, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents.

2011 P L C (C.S.) 590

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ, Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

AZIZ-UR-REHMAN CHAUDHRY and others

Civil Appeal No. 235-K of 2009, decided on 8th April, 2010.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art.212(3)---Implementation of judgment of Service Tribunal---Appeal to Supreme Court---Appeal filed by the employees having been accepted by the Service Tribunal, they filed constitutional petition for implementation of judgment of Service Tribunal; which petition was allowed by the High Court with direction to the employer to implement the judgment of Service Tribunal in letter and spirit---Employer, in its appeal filed before the Supreme Court contended that order of Service Tribunal, was not implementable in view of judgment of Supreme Court (PLD 2006 SC 602)---Validity---After passing of the judgment of the Service Tribunal, it was incumbent upon the employer to have approached Supreme Court by filing petition with a prayer that in view of said judgment of Supreme Court, judgment passed by the Service Tribunal was not sustainable, but employer had not done so---High Court, in circumstances, had rightly granted relief to the employees for implementation of the judgment of the Service Tribunal---Employer was directed to implement the judgment of Service Tribunal in letter and spirit within period of 15 days.

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 ref.

Khalid laved, Advocate Supreme Court for Appellant.

K.A. Wahab, Advocate-on-Record.

Respondent No. 1 in person.

Date of hearing: 8th April, 2010.

2011 P L C (C.S.) 596

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

Miss ZUBAIDA KHATOON

Versus

Mrs. TEHMINA SAJID SHEIKH and others

Civil Appeal No. 780 of 2006, decided on 9th December, 2010.

(On appeal against the judgment dated 18-3-2004 passed by Peshawar High Court, Peshawar in W.P. No.22 of 2001).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court was justified to substitute findings recorded by Departmental Promotion Committee relating to promotion of petitioner and respondent.

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

----S. 4---Appeal to Service Tribunal---Principles---Any civil servant who is aggrieved by an order with respect to terms and conditions of his service has a right of appeal before appropriate Tribunal established for such purpose, within the period prescribed---No right of appeal is provided to a civil servant against order of departmental authority determining "fitness" or otherwise of a person to be appointed or "hold a particular post" or to be "promoted" to a higher post or grade.

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

----S. 4---Constitution of Pakistan, Arts.199 & 212---Seniority---Question of eligibility---Consideration---Jurisdiction of High Court---Notification of promotion of appellant was set aside by High Court under constitutional jurisdiction and authorities were directed to promote the respondent---Validity---Promotion Committee seized of issue of inter se seniority of parties was not considering question of eligibility of respondent to be promoted or to hold certain post but her fitness with reference to service record and having examined comparative merits recommended appellant to be promoted and to be senior to respondent---In terms of recommendations made by Promotion Committee, notification was issued which was annulled by High Court---Against such notification of promotion, respondent had no right of appeal in view of specific bar contained in clause `b' of proviso to S.4(1) of Service Tribunals Act, 1973---Judgment passed by High Court was not violative of mandate of Art. 199 read with Art. 212 of the Constitution, as the respondent could not have challenged the notification in question before Service Tribunal in view of specific bar contained in S. 4(1) of Service Tribunals Act, 1973, and main grievance of respondent was that her service record was not considered while deciding the question of her fitness to be promoted---After annulling notification which was assailed before High Court, the Court could not have directed promotion of respondent and instead should have left the matter to be decided by Promotion Committee afresh as that authority was competent to pass appropriate order after de novo exercise---Supreme Court upheld the judgment passed by High Court to the extent of annulling the notification of promotion of appellant and case was remanded to concerned Promotion Committee to decide the matter afresh---Appeal was allowed.

Abdul Malik v. Sabir Zameer Siddiqui 1991 SCMR 1129: Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 683 distinguished.

(d) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Maintainability--- Factual controversy---Scope---Plea raised by respondent was that High Court could not undertake a factual inquiry---Validity---High Court was not recording any new evidence but was proceeding on the basis of admitted facts and if having examined the admitted facts, it had come to the conclusion that authority had passed the order in colourable exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record, High Court could come in aid of person aggrieved to redress the wrong---Petition was maintainable in circumstances.?

Abdul Ghafoor, Supervisor/Inspector, N.H.A. v. National Highway Authority 2002 SCMR 574 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellant.

M. Munir Peracha, Advocate Supreme Court for Respondent No. 1.

Fawad Saleh, Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 9th December, 2010.

2011 P L C (C.S.) 612

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jaffery, JJ

FINANCE DIVISION through Secretary and others

Versus

MUHAMMAD ASLAM and another

Civil Petitions Nos.1158 and 1159 of 2009, decided on 28th September, 2009.

(On appeal against the judgment dated 26-3-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos.1062(R)CS of 2007 and 12(R)CS of 2008).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan, Art. 212(3)---Special allowance--Applicability---Factual controversy---Plea not raised---Authorities declined special allowance to civil servants which was sanctioned by government---Service Tribunal allowed appeal filed by civil servants and found them entitled to special allowance---Plea raised by authorities was that civil servants were not working against posts of technical nature, therefore, technical allowance was not available to them---According to Service Tribunal, paragraph applicable to civil servants clearly indicated that special allowance was available to the posts against which civil servants were working---Plea raised by authorities was based on factual premise and was not raised in the grounds of petition filed before Supreme Court---Authorities failed to refer any document to support the premise on which it had tried to build-up its case--Point of limitation was neither taken by authorities in its parawise comments submitted before Service Tribunal nor it was raised during arguments---Judgment passed by Service Tribunal decided the matter on merits and was unexceptionable---Authorities failed to raise a question of law of public importance within the meaning of Art.212(3) of the Constitution to warrant interference-Leave to appeal was refused.

Dil M. Khan Alizai, Deputy Advocate-General and Ch. Muhammad Akram, Advocate-on-Record for Petitioners (in both cases).

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No. 1 (in both cases).

2011 P L C (C.S.) 623

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Tariq Parvez Khan and Ghulam Rabbani, JJ

PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman

Versus

IQBAL NASIR and others

Civil Appeals No.468, 471-474, 632-633, 852-859, 883-892, 899-901, 950 and 974 of 2010, decided on 23rd December, 2010.

(On appeal from the judgment dated 22-12-2009 passed by the High Court of Sindh at Hyderabad in C.P. No.D-707 of 2009; judgment dated 29-10-2009 passed by the Peshawar High Court, Peshawar in W.Ps. Nos.2140 of 2006, 144 & 398 of 2007, 1938 of 2008 and 2190 of 2009; judgment dated 16-3-2010 in C.P.No.D-297 & 299 of 2008; judgment dated 5-5-2010 passed by the Lahore High Court, Multan Bench in W.Ps. Nos.4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 & 9257 of 2009; judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi in C.Ps. Nos.D-750 & 751 of 2006, 1695 & 1696 of 2008, 98, 298, 300, 682, 1950 & 1951 of 2009; judgment dated 15-6-2010 passed by the Peshawar High Court in W.P. No. 339 of 2006; order dated 14-6-2010 passed by the Lahore High Court, Lahore in W.P. No.21202 of 2009; and judgment dated 17-6-2010 passed by the Lahore High Court, Multan Bench in I.C.A .No.219 of 2009).

(a) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S. 6---Constitution of Pakistan, Arts.185(3) & 199 (5)---Leave to appeal was granted by Supreme Court to consider; whether writ in the matter could not be issued to Pakistan Telecommunication Corporation Limited, as it was not performing functions in connection with affairs of Government and even if it was assumed to be performing such functions, still subject matter of judgment passed by High Court was not connected with affairs of Government; and whether rules framed by Pakistan Telecommunication Corporation Limited were statutory or not.

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

----S. 6--- Constitution of Pakistan, Arts. 185 (3) & 199 (5)--- Leave to appeal was granted by Supreme Court to consider; whether there was no statutory right in favour of employees to continue in service despite retrenchment, which aspect was not adverted to by High Court.

(c) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S. 6---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1 (g)---Constitution of Pakistan, Art. 199---Pakistan Telecommunication Corporation Limited---Status---Non­-statutory rules---Master and servant, principle of---Applicability---Constitutional jurisdiction of High Court, exercise of---Contract employees---Vested right---Respondents were contract employees and on completion of contracts, Pakistan Telecommunication Corporation Authority terminated their services---High Court in exercise of Constitutional jurisdiction, directed the Corporation to reinstate respondents in service---Validity---Federal Government first sold 12% shares of Pakistan Telecommunication Corporation Limited through public subscription and then it sold 26% [all B class shares] to foreign company and remaining 62% shares of Pakistan Telecommunication Corporation Limited were still owned by Federal Government---As long as Government owned majority shares in the Corporation, either in its own name or whether wholly or partially in the name of any other organization or entity controlled by Government, Pakistan Telecommunication Corporation Limited was and should continue to be amenable to jurisdiction of High Court under Art.199 of the Constitution---Pakistan Telecommunication Corporation Limited was a person within meaning of Art.199 (5) of the Constitution---In the absence" of statutory rules, principle of "Master and servant" was applicable and respondents were entitled to seek remedy permissible before Court of competent jurisdiction---Employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and servant" and in absence of statutory rules, Constitutional petitions filed by employees were not maintainable---All employees having entered into contract of service on the same or similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master---Master was within his rights to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance---Contract employees had no right to invoke Constitutional jurisdiction, where their services were terminated on completion of period of contract---As all respondents were covered under the definition of workman, they were entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant---Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation . Limited---Appeal was allowed.

PTCL v. Muhammad Zahid 2010 SCMR 253; PIAC v. Tanweer ur Rehman PLD 2010 SC 676;, Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484; Masood v. PIAC 2001 PLC (C.S.) 41: Ikram Bari v. National Bank 2005 SCMR 100; Muhammad Asam v. PTCL 1997 PLC (C.S.) 1131; Nazir Ahmed Panhwar v. Government of Sindh 2009 PLC (C.S.) 161; Municipal Committee, Arifwala v. Muhammad Ramzan 2005 SCMR 1721; Sharifan Begum v. Abdul Aziz PLD 1975 SC 475; Pakistan International Airlines v. Sindh Labour Court No.5 PLD 1980 SC 323; Ch. Muhammad Ashraf v. State Life Insurance 2002 PLC (C.S.) 948; Hameed Akhtar Niazi v. Secretary, Establishment Division Government of Pakistan 1996 SCMR 1185; PIAC v. Samina Masood PLD 2005 SC 831; Principal Cadet Collage Kohat v. Muhammad Shoaib Oureshi PLD 1984 SC 170; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Engineeer Naraindas v. Federation of Pakistan 2002 SCMR 82 ref.

(d) Constitution of Pakistan---

----Art. 185(3)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal, non filing of---Effect---Requirement of filing Intra-Court Appeal is a rule of practice for regulating exercise of discretion which does not oust or abridge Constitutional jurisdiction of Supreme Court and in certain exceptional circumstances Supreme Court can entertain petitions, or as the case may be, direct appeals even where remedy of Intra Court Appeal under section 3 of Law Reforms Ordinance, 1972, has not been availed by a party.

Imtiaz Ali Malik v. Mst. Surrya Begum 1979 SCMR 22; Pakistan International Airlines Corporation v. Samina Masood PLD 2005 SC 831; Accountant-General for Pakistan, (Revenue) through Auditor-General v. Zia Mohy-ud-Din PLD 2008 SC 164; Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Punjab Employees Social Security Institution Lahore and others v. Manzoor Hussain Khan 1992 SCMR 441; Province of Punjab through Secretary Excise and Taxation, Government of Punjab v. Sargodha Textile Mills Ltd., Sargodha PLD 2005 SC 988 and Commissioner of Income Tax v. Messrs Media Network (PLD 2006 SC 787) rel.

(c) Order---

----Bad order---Non-implementation---Scope---Non-implementation of bad order makes no difference.

Muhammad Munir Piracha, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record with Ms. Zahida Awan, GM (Legal) and Syed Yamin Shah, Manager (HR) for Appellants (in CAs. Nos. 468, 471-474, 632, 633, 853-859, 899-901, 950 & 974/2010).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Appellants (in C.A.852 of 2010).

Nazir Ahmed Bhutta, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in CAs Nos.883-892 of 2010).

Muhammad Rafique Rajwana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in CAs.No.852-859/2010).

Ejaz Faroze, Advocate Supreme Court for Respondents (in CAs. 882-892 of 2010).

Afzal Malik, Advocate Supreme Court for Respondents ((in C.A.No.899 of 2010).

M.A. Ghani, Advocate Supreme Court for Respondents (in C.A.No.900 of 2010).

Malik Qamar Afzal, Advocate Supreme Court for Respondents (in C.As.Nos.471 and 950 of 2010).

Ishatiaq Haider, Advocate Supreme Court for Telecom Foundation (in CAs. Nos.472-474 & 950 of 2010).

Iqbal Nazir, Naqi Butt, Izhar-ud-Din, Syed Ahsan Ali, Shakeel Ahmed and M. Adnan Pasha for Respondents (in person).

Dates of hearing: 4th 22nd, 24th 29th and 30th November, 2010.

2011 PLC (C.S.) 643

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

Syed SABIR HUSSAIN SHAH

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Appeal No. 2213 of 2008, decided on 2nd March, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, passed in ICA No. 262 of 2005).

(a) Punjab Local Fund Audit Department Service Rules, 1981---

----Notification SRO-III-I-6/72, dated, 21-11-1981---Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court to consider impact and effect of notification dated 30-5-2005, in particular the schedule attached thereto, and as to whether the notification was mandatory or regulatory/directory.

(b) Punjab Local Fund Audit Department Service Rules, 1981---

----Notification SRO-III-I-6/72, dated, 21-11-1981 & Schedule---Words "holding post of Divisional Director"---Scope---Petitioner assailed promotion of respondent on the ground that he was serving on transfer in Finance Department---Validity---Department had been making such promotions on correct interpretations of Punjab Local Fund Audit Department Service Rules, 1981---Word "holding post of Divisional Director" appearing in Punjab Local Fund Audit Department Service Rules, 1981, meant holding of substantial post of Divisional Director in the Department, therefore, respondent was eligible to be considered for promotion as Provincial Director---Petitioner failed to make out any case to successfully assail promotion of respondent as Provincial Director in the Department of Local Fund Audit of Punjab-Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Asian Food Industries Ltd. v. Pakistan 1985 SCMR 1753 and Province of Punjab v. Shah Muhammad Chaudhry 1997 PLC (C.S.) 412 ref.

Aftab Gul, Advocate Supreme Court for Appellant.

Mudassar Khalid Abbaasi, Additional Advocate-General Punjab for Respondents Nos. 1 to 3.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No. 4.

Date of hearing: 2nd March, 2009.

2011 P L C (C.S.) 651

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SECRETARY REVENUE DIVISION, CBR/FEDERAL BOARD OF REVENUE, ISLAMABAD

Versus

GUL MUHAMMAD and others

Civil Petitions Nos. 1083, 58 to 60, 443 and 44 of 2010, decided on 15th July, 2010.

(On appeal from the judgment dated 29-3-2010 in Appeal No.89(P)CS of 2005, dated 17-10-2009 in Appeal No.32(R)CS of 2003, dated 10-10-2009 in Appeals Nos.90(P)CS of 2005 and 465(P)CS of 2008, dated 22-12-2009 in Appeals Nos.816(R)CS of 2005 and 343(R)CS of 2006 passed by the Federal Service Tribunal, Islamabad).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Promotion on the Policy of best of best---Plea of petitioner/Authority to deny promotion to the employees on the Policy of best of best had not been accepted by the Service Tribunal---Validity---Establishment Division should bring more objectivety in the criteria for excellence and comparative merit and give more specific details and well argued reasons for denying promotion to an officer who was eligible and fulfilled the requisite criteria, length of service, training requirement, relevant experience etc.---Relief, in circumstances had been rightly granted by Service Tribunal to the employees---Petitions being without substance were dismissed with costs, because Authority knew that Supreme Court had already held such view, and same point had again been agitated without any justification.

Sardar Muhammad Ghazi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent (in Civil Petitions Nos.59 and 60 of 2010).

Nemo for Respondents (in other case).

2011 P L C (C.S.) 656

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Ghulam Rabbani, JJ

MUHAMMAD SHAUKAT

Versus

ZARAI TARAQIATI BANK LTD. (ZTBL) and another

Civil Petition No. 2160 of 2009, decided on 29th December, 2009.

(On appeal from the judgment dated 12-12-2009 in Appeal No.857(R)(CS) of 2009 passed by the Federal Service Tribunal, Islamabad).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Dismissal from service---Conversion of order of dismissal from service into compulsory retirement---Petitioner was transferred from Head Office to zonal office of Bank, at. a close distance of about 200 yards, but instead of joining the duty, petitioner preferred a petition before National Industrial Relations Commission alleging therein unfair labour practice on part of Bank---Said petition was dismissed and after dismissal of petition, the petitioner was dismissed from service---Service Tribunal had also dismissed appeal filed by the petitioner against order of his dismissal from service---Validity---Petitioner having failed to make out any case, counsel for the petitioner had prayed that on humanitarian ground the petitioner could be given relief because he had handicapped child and had no other source to support his child---Counsel had further prayed that dismissal of the petitioner be converted into compulsory retirement---Bank authorities agreed to accommodate the petitioner provided that present order was not quoted as precedent in future---Petition was converted into appeal and penalty of dismissal from service awarded to the petitioner was converted into compulsory retirement with effect from date, the petitioner was dismissed from service accordingly.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Tariq Mehmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

2011 PLC (C.S.) 660

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MOULA BUX LEGHARI

Versus

ADDITIONAL INSPECTOR-GENERAL (AIGP) ESTABLISHMENT, REGIONAL POLICE OFFICER, HYDERABAD and another

Civil Petition No.282-K of 2009, decided on 8th June, 2009.

(Against the judgment, dated 23-6-2008 of the Sindh Service Tribunal at Karachi, passed in Appeal No.83 of 2006).

Constitution of Pakistan---

----Art. 212(3)---Petition for leave to appeal---Maintainability---Controversy about the petitioner's date of birth stood resolved by the Service Tribunal---Jurisdiction of Supreme Court wits restricted only to substantial questions of law of public importance and not determination of controversial questions of fact---No merit was found in the petition, which otherwise was barred by time and no reasonable explanation existed justifying condonation of the delay---Petition was dismissed.

Ansari Abdul Latif, Advocate Supreme Court with Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Abdul Fateh Malik, Additional Advocate-General, Sinndh for Respondents.

2011 P L C (C.S.) 661

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

ABDUL KARIM BURINO

Versus

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS and others

C.A. No.84-K out of C.P.L.A. No.88-K of 2010, decided on 26th August, 2010.

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

----S. 3---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Imposition of penalty of withholding increments---Both the counsel had stated that impugned judgment passed by the Service Tribunal could be set aside and authorities would hold de novo proceedings to be completed within 3 months; that employee would appear before the Inquiry Officer, who after recording the evidence would pass appropriate orders strictly in accordance with law---Appeal was allowed, impugned order was set aside---Authorities were directed to complete the de novo proceedings as per show-cause notice within three months from the date of order.

Sanaullah Noor Ghouri, Advocate Supreme Court and Abdul Saeed Khan Ghouri, Advocate-on-Record for Appellant.

Mazhar Ali B. Chohan, Advocate Supreme Court for Respondents Nos.1 to 3.

2011 P L C (C.S.) 666

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

GUL WALI

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Local Council Board, Peshawar and others

Civil Petition No.177 of 2009, decided on 20th May, 2009.

(On appeal from the judgment, dated 24-2-2008 of the N.-W; F. P. Service Tribunal, Islamabad passed in Appeal No.333 of 2008).

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

----S. 4---Constitution of Pakistan, Art.212(3)---Termination of service---Petitioner who was recruited as Personal Assistant, having not been paid salary and remuneration for the period during which he was posted, he approached Service Tribunal for redressal of his grievance---Service Tribunal instead of granting relief prayed for by the petitioner, declared that his appointment was illegal and void ab initio and as a result thereof his services were terminated---Even counsel for the authorities had stated that the Service Tribunal had no jurisdiction to declare the service of the petitioner void or illegal and agreed to the setting aside of impugned judgment; and that case be sent back to the department---Petition was converted into appeal and impugned order was set aside---Petitioner/appellant would be deemed to be continuously in service and his right to salary for the period for which he had served the department, would be addressed with by the competent authority.

Dr. Naveed Tufail and others v. Government of the Punjab and others 2003 SCMR 291 ref.

Qazi M. Anwar, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos.1-2:

Niaz Ahmed Rathore, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos.3 to 5.

2011 PLC (C.S.) 669

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

ANWAR ALI KHAN

Versus

D.G. FIA and others

Civil Petition for Leave to Appeal No.641-K of 2009, decided on 26th November, 2009.

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Removal from service---Petitioner was removed front service after serving him charge-sheet and holding enquiry against him on certain charges against hint---Departmental representation by the petitioner was not responded and appeal filed by the petitioner was dismissed by the Service Tribunal---Petitioner denied all the allegations levelled against hint in the charge-sheet as well as show-cause notice---Material witnesses were not examined, enquiry was not properly conducted---Service Tribunal passed impugned order by holding that competent Authority could take different view than the view taken by the Inquiry Officer---Service Tribunal had failed to take into consideration grounds taken by the petitioner---Petition for leave to appeal was converted into appeal, by Supreme Court allowed the same, and set aside the impugned judgment and remanded the matter to Service Tribunal to decide the case of the petitioner afresh after hearing the parties.

Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2011 P L C (C.S.) 671

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

Syed MAZHAR HAIDER KAZMI

Versus

SECRETARY AGRICULTURE, GOVERNMENT OF PUNJAB, LAHORE

Civil Petition No.1898-L of 2009, decided on 23rd December, 2009.

(Against the judgment- dated 1-9-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No.1692 of 2009).

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

----Ss. 9 & 21(2)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art.212(3)---Transfer---Petitioner who was transferred from one place of service to another, having been re-transferred to his original place of service only after two months and 24 days, filed appeal before Service Tribunal, which was dismissed---Petitioner had contended that re-transferring order remained original order in terms of S.21(2) of Punjab Service Tribunals Act, 1974 and as no appeal had been provided against said original order, Service Tribunal was not justified to dismiss his appeal on that ground alone---Validity---Held, it was condition precedent that civil servant had to file departmental appeal/representation before the Departmental Authority; and thereafter availing 90 days, appeal was to be filed before the Service Tribunal within one month---Impugned order, in circumstances was in consonance with the mandatory provisions of law---Petition was dismissed, in circumstances.

Mufti Mushtaq Ahmed's case PLD 1981 SC 172 and Gulbat Khan's case 1992 PSC 1071 rel.

Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Faisal Zaman Khan, Additional Advocate-General, Punjab for Respondent.

2011 P L C (C.S.) 681

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE

Versus

Malik RIAZ AHMAD KHOKHAR

Civil Petition No.1146-L of 2009, decided on 21st December, 2009.

(Against the judgment, dated 20-2-2009 passed by the Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in Service Appeal No.6 of 2008).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Expunction of adverse remarks in ACRs---Service Tribunal had expunged said adverse remarks---Adverse remarks against the respondent in his ACRs were set aside in inquiry---Service Tribunal had given findings of fact against the authorities after perusing the record---Held, Supreme Court had no jurisdiction to substitute its own findings in place of findings of the Tribunal while exercising power under Art.212(3) of the Constitution---Even otherwise counsel for the authorities had failed to raise any substantial question of law of public importance as contemplated under Art.212(3)---Petition for leave to appeal was dismissed.

Khan Muhammad Niazi's case 1990 SCMR 1416 and Riaz-ul-Haq's case 1988 SCMR 1994 ref.

Muhammad Hanif Khatana, Acting Advocate-General, Punjab for Petitioner.

Ch. Riasat Ali, Advocate Supreme Court and M.A. Qureshi, Advocate-.on-Record for Respondent.

2011 P L C (C.S.) 683

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa Khan Leghari, JJ

MUHAMMAD IQBAL

Versus

CENTRAL BOARD OF REVENUE and others

Civil Appeal No.39-K of 2009, decided on 30th June, 2009.

(On appeal against the judgment dated 26-1-2009 passed by Federal Service Tribunal, Islamabad, in Appeal No.96(K)(C.S.) of 2004).

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

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Dismissal from service---Petitioner serving as Preventive Officer was dismissed from service after charge-sheeting him and holding inquiry against him on the allegation that he received illegal gratification from a passenger for releasing/allowing a VCR without payment of customs duty and taxes---Appeal was dismissed by the Service Tribunal---Validity---Inquiry was conducted against the petitioner in which he participated---Recording was available to show the activity of the petitioner as a proof qua the allegations of accepting illegal gratification---Nothing was available on record to show that the action of the authorities was illegal, vindictive or tainted with malice---Service Tribunal examined the case in detail and rightly arrived at the just conclusion against the petitioner---In absence of any infirmity, error or jurisdictional defect in the impugned judgment of Service Tribunal, petition against said judgment being devoid of merit, was dismissed.

Petitioner in Person.

Raja Muhammad Iqbal, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.2.

Date of hearing: 30th June, 2009.

2011 PLC (C.S.) 691

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD ILYAS

Versus

FEDERATION OF PAKISTAN and others

Civil Petition No.691-K of 2009, decided on 4th December, 2009.

(Against judgment, dated 4-6-2009 of the Federal Service Tribunal, Karachi, passed in Appeal No.207(K)(C.S.) of 2004).

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

----Ss. 3, 5 & 19---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Dismissal from service---Appeal of petitioner against order imposing major penalty of dismissal from service upon him had been dismissed by the Service Tribunal having been filed after expiry of statutory period of limitation---Petitioner had claimed that he filed the appeal by registered post acknowledgment due within the statutory period of limitation---Petitioner had not produced the postal or acknowledgment-due receipt in proof of his claim which was essential for the just decision of the case to resolve the controversy between the parties---Petition was converted into appeal and case was remanded to Service Tribunal to decide the question involved in the matter afresh on the documents and material produced by the parties within a period of three months.

Tanveer Hussain v. Divisional Superintendent, Railways PLD 2006 SC 249 rel.

M.M. Aqil Awan, Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioner.

Latif-ur-Rehman Sarwary, Advocate Supreme Court, Ghulam Qadir Iatoi, Advocate-on-Record and Rashid Ali Mangi, Divisional Superintendent, Sukkur for Respondent No.3.

2011 P L C (C.S.) 694

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

NAZIR AHMED

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and another

Civil Petition No. 2526-L of 2009, decided on 3rd November, 2010.

(On appeal from the judgment dated 19-10-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3594 of 2007).

(a) Constitution of Pakistan---

----Art. 13---Initiation of disciplinary proceedings against an employee after his acquittal in criminal case---Validity--Criminal proceedings and disciplinary proceedings were not synonymous or interchangeable for having distinct features and characteristics --- Provisions of Art. 13 of the Constitution and maxim "nemo debt bis vexari prouna et causa" (no person should be twice disturbed for the same cause) would not apply to such case.

Bejoy Dutta v. The King AIR 1951 Cal. 452; Bejov Datta v. The King ILR 1950 1 Cal 502; A.M. Rangachariar v. Venkataswami AIR 1935 Mad. 56; Public Prosecutor v. Sabapathy Chetty AIR 1938 Mad. 847 and Rahman Samail v. Emperor 39 Cri L Jour 712 rel.

(b) Constitution of Pakistan---

----Art. 13---Provisions of Art. 13 of the Constitution---Applicability---Essential conditions stated.

Article 130 of the Constitution sanctifies the well-settled principle of law that no person will be tried for an offence on the same set of facts on which he has already been acquitted or convicted. For applicability of the rule of "autre fois acquit", essential conditions to be satisfied are: (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a court of competent jurisdiction, and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact-in-­issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial.

Ismail A. Rehman v. Muhammad Sadiq PLD 1990 Kar. 286; Ramzan Bibi v. Muzaffar Hussain PLD 1967 Lah. 186 and State v. Muhammad Moosa PLD 1970 Kar. 386 rel.

Sheikh Masood Akhtar, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd November, 2010.

2011 P L C (C.S.) 704

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

JAHANGIR SARWAR and others

Versus

LAHORE HIGH COURT and another

Civil Petition No. 2148-L of 2009, decided on 8th November, 2010.

(On appeal from the order dated 10-9-2009 passed by the Lahore High Court, Lahore in Writ Petition No. 16680 of 2009).

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

----S.23---Punjab Judicial Service Rules, 1994, R.7(1)(a)---Sindh Civil Servants Act (XIV of 1973), S. 26---Sindh Judicial Service Rules, 1994, R. 8(1)(b)---Constitution of Pakistan, Arts. 25 & 185(3)---Appointment of judicial officers---Two years law practice---Pre-condition---Reasonable classification, principle of-Applicability-Petitioner assailed provisions of R. 7(1)(a) of Punjab Judicial Service Rules, 1994, whereby condition' of two years' law. practice was made mandatory for any candidate to he appointed as Judicial officer---Plea raised by petitioner was that condition imposed by Punjab Government was discriminatory as no such condition was required by Sindh Government under R. 8(1)(b) of Sindh Judicial Service Rules, 1994---Validity---Sindh Government framed Sindh Judicial Service Rules, 1994, in exercise of powers conferred upon it under S. 26 of Sindh Civil Servants Act, 1973, whereas Punjab Judicial Service Rules, 1994, were framed by Governor under S. 23 of Punjab Civil Servants Act, 1974---Rules applicable in two Provinces were enacted under two different statutes and in view of peculiar circumstances of each Province---Rules made in one Province could not be made applicable to other Province unless so adopted and petitioner failed to mention any such order in that regard---Principle of reasonable classification or differentia was not misinterpreted or misconstrued as Art. 25 of the Constitution did not prohibit reasonable classification with regard to operation of law---Provisions of Sindh Judicial Service Rules, 1994, could not be made applicable in the Province of Punjab---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Pak. Petroleum Workers Union v. Ministry of Interior 1991 CLC 13; Fauji Foundation v. Shamimur Rehman NLR 1984 SCJ 403=PLD 1983 SC 457; Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554; Akram Khan v. State PLD 1976 Lah. 1224; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Kathi Raning v. State of Saurashtra AIR 1952 SC 123; Dhirendra v. Supdt. and Remember AIR 1954 SC 424; Zain Noorani v. Secretary of National Assembly PLD 1957 Kar. 1; Government of Punjab Health Deptt. v. Naila Begum PLD 1987 Lah. 336; Government of Punjab and others v. Mst. Naila Begum PLD 1988 Lah. 331; Charanjit Lal v. Union of India AIR 1951 SC 41; State of West Bengal v. Anwar Ali AIR 1952 SC 75; Rehman Shagoo v. State of J&K 1958 Cri L Jour 885; TK Abraham v. State of Ira. Co AIR 1958 Ker. 129 and PLR 1957 (1) 743 rel.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th November, 2010.

2011 P L C (C.S.) 713

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Tariq Parvez, JJ

SANOBAR KHAN

Versus

GOVERNMENT OF N.-W.F.P. through the Chief Secretary and another

Civil Appeal No. 50-P of 2009, decided on 29th December, 2010.

(On appeal from the judgment of the N.-W.F.P. (now K.P.K.) Service Tribunal, Peshawar, dated 22-1-2007 passed in Service Appeal No. 813 of 2005).

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

----S. 4(b)(ii)---Appeal to Service Tribunal against penalty of censure---Dismissal of appeal by Tribunal for being non-maintainable in view of S.4(b)(ii) of North-West Frontier Province Service Tribunals Act, 1974---Validity---Bar contained in S. 4(b)(ii) of Act, 1974 would not extend to other matters arising out of disciplinary departmental action against civil servant---Tribunal had no jurisdiction to alter or modify quantum of sentence other than those mentioned in S. 4(b)(ii) of North West Frontier Province Service Tribunals Act, 1974, but could examine guilt or otherwise of civil servant and other ancillary matters arising out of departmental inquiry including competency of authority to initiate action or any procedural flaw in inquiry proceedings---Such appeal was competent ---Service Tribunal must have examined merits of case and determined as to whether findings of guilt of civil servant were sustainable---Supreme Court set aside impugned judgment and remanded case to Service Tribunal for its decision on merits.

Government of Balochistan v. Shabir. Ahmed 1990 SCMR 1233 fol.

Abdul Majeed v. Government of Pakistan 2006 SCMR 1415 ref.

Atiq-ur-Rehman Qazi, Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate-on-Record for Appellant.

Naveed Akhtar, Additional A.-G., K.P.K. for Respondents.

Date of hearing: 29th December, 2010.

2011 P L C (C.S.) 718

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

MUHAMMAD AHMAD KHAN and others

Versus

SECRETARY, ENVIRONMENT PROTECTION and others

Civil Petition No. 61-L of 2010, decided on 4th November, 2010.

(On appeal from the judgment dated 12-11-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 26 of 2008).

(a) Civil service---

----Promotion --- Factors requiring consideration stated.

Promotion cannot be claimed as a matter of right, but it does not mean that principles of seniority should be ignored and the senior most must be considered for promotion which is a legal right of an employee. There is no doubt that seniority alone is not the exclusive determining factor to be considered for promotion and factum of fitness and suitability cannot be kept aside.

There is no vested right in promotion or rule determining eligibility for promotion. Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after the consideration of the comparative suitability and the entitlement of those incumbents.

(b) Civil service---

----Seniority cannot be claimed on basis of provisional seniority list not finalized.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Asif Nazeer Awan, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No. 3.

Date of hearing: 4th November, 2010.

2011 P L C (C.S.) 729

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

MALIK DAD and another

Versus

KARRAR KHALID and another

C.A. No.725 of 2009, decided on 18th January, 2011.

(On appeal against the judgment dated 23-12-2001 passed by Federal Service Tribunal, Islamabad in Appeal No.1397(R)CE of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---Limitation---Civil Servant, instead of filing appeal against the original order within 120 days period, chose to wait for the decision of his departmental appeal and put himself on the hold---Civil Servant having lost the first opportunity of filing timely appeal against the original order allowed the first period of limitation to while away before filing his appeal with a delay of twelve months---Second opportunity never arose as his departmental appeal remained pending without an order thereupon and only on such appellate order civil servant could file his appeal thereagainst to avail outer period of limitation-Period of limitation for filing appeal from the date of his representation having expired, while in absence of decision of his departmental appeal, the second period of limitation never became available---Appeal of civil servant against original departmental order was thus, patently barred by time.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Respondent No.1 in person.

Respondent No.2: Ex parte.

Date of hearing: 18th January, 2011.

2011 PLC (C.S.) 762

[Supreme Court of Pakistan]

Present; Raja Fayyaz Ahmed, Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

ABU HURAYRAH SABIR

Versus

ZARAI TARAQIATI BANK LIMITED and others

Civil Petition No.1122 of 2010, decided on 6th October, 2010.

Service Tribunals Act (LXX of 1973)---

----S. 4--Appeal--Appellant not being a civil servant or in service of Pakistan---Effect---Service Tribunal had no jurisdiction in such case-Appeal was dismissed in circumstances.

Pakistan Telecommunication Company Limited through General Manager and another v: Muhammad Zahid and 29 others 2010 SCMR 253; Executive Council, Allama Iqbal Open through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 rel.

Petitioner in person.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Respondents.

2011 P L C (C.S.) 763

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

GHULAM SHABBIR

Versus

MUHAMMAD MUNIR ABBASI and others

Civil Petition No.657-K of 2010, decided on 2nd March, 2011.

(Against judgment dated 27-10-2010 of the High Court of Sindh at Karachi, passed in Civil Petition No.D-863 of 2009).

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

----S. 9-A---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.8-B---Constitution of Pakistan, Arts.199 & 212---Out of turn promotion---Issuance of writ of quo warranto---Scope---Out of turn promotion given on the basis of performance of civil servant, which essentiallypertained to fitness for promotion, was not within the exclusive domain of Service Tribunal and High Court could be approached for issuance of writ of quo warranto---Principles.

A writ of quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the petitioner. However, no precise rules can be laid down for the exercise of discretion by the court in granting or refusing the same and each aspect of the case is to be considered. In such cases it is not necessary that the petitioner be an aggrieved person and further that if it is established that the petitioner has approached the Court with ulterior motive, mala fide intention etc. relief can be declined. In the present case, out of turn promotion was challenged -without claiming any superior right by the petitioner on the ground that such promotion was not warranted under the law. This was not to say that the terms and conditions of service of either petitioner or private respondents were in issue so as to bring the case exclusively within the domain of the Service Tribunal. Eligibility for appointment or promotion to a particular post concerned the candidate's qualification etc. and as such was exclusively within the domain of the Service Tribunal. However, out of turn promotion concerned his eligibility for the same and not his fitness. Eligibility criteria were whether the incumbent had passed the departmental examination or possessed the required seniority etc. Such was not the case in the present matter as the civil servant was given out of turn promotion on the basis of his performance which essentially pertained to fitness for promotion and hence not within the exclusive domain of the Service Tribunal. Opposing party had correctly approached the High Court in quo warranto.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto, issuance of---Principles.

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

----R. 8-B---Out of turn promotion---Validity---Few merit certificates given by judicial and executive authorities and recommendations from the Provincial Home Minister could not be made basis of out of turn promotion,--Out of turn promotion was not only against the Constitution but even against injunctions of Islam---Reward or award should be encouraged for meritorious public service but should not be made the basis of out of turn promotion---Such a promotion should be, if at all, regulated through proper process as per Rule 8-B of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Supreme Court observed that rules should be framed for such purpose.

Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Nadeem Akhtar PLD 1997 SC 382; Government of Punjab v. Rana Muhammad Iqbal 1993 SCMR 1814 and Farhat Abbas v. I.G. 2009 SCMR 245 ref.

M.M. Aqil Awam Senior Advocate Supreme Court and A.S.K.

Ghori, Advocate-on-Record for Petitioner.

Masood A. Norani, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos. 1 to 3.

Abdul Fateh Malik, A.-G. Sindh for Respondents Nos. 4 to 6.

Date of hearing: 2nd March, 2011.

2011 P L C (C.S.) 775

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Secretary Agriculture, Live Stock and Cooperatives Department, Peshawar and others

Versus

ABDULLAH KHAN and others

Civil Appeals Nos.834 to 837 of 2010, decided on 1st March, 2011.

(On appeal from the judgment dated 1-12-2009 of the Peshawar High Court, Peshawar passed in Review Petitions Nos.64, 68, 69 and 66 of 2009 in Writ Petitions Nos. 1645 of 2007, 29 of 2009, 84 of 2009 and 43 of 2009).

North-West Frontier Province Employees (Regularization of Services) Act (XVI of 2009)---

----S. 2(1)(aa)--- "Contract appointment"---Meaning---Appointments in the present case, were made in accordance with the prescribed method of recruitment and through the Department Selection Committee---Cases of such employees did not attract the definition of "contract appointment" contained in S.2(1)(aa) of the North-West Frontier Province Employees (Regularization of Services) Act, 2009---Employer/department had failed to produce anything to establish that employees had in fact been appointed for any "project post"; all that was produced before the High Court were some salary slips and pay-rolls of such employees, but such documents, could not be accepted as proper substitute for positive and definite proof of the nature of the appointment or employment.

Qazi Muhammad Anwar, Advocate Supreme Court for Appellants (in all cases).

Gul Zarin Kiani, Advocate Supreme Court with Waseem-ud-Din Khattak, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 1st March, 2011.

2011 P L C (C.S.) 808

[Supreme Court of Pakistan]

Present: Javed Iqbal, Nasir-ul-Mulk and Sayed Zahid Hussain, JJ

AKHTAR ALI

Versus

DIRECTOR, FEDERAL GOVERNMENT, EDUCATIONAL INSTITUTION FGET DTA, RAWALPINDI and others

Civil Petition No.704 of 2008, decided on 21st April, 2009.

(On appeal from the judgment, dated 19-3-2009 of the Federal Service Tribunal, Islamabad passed in Appeal No.23(P)(C.S.) of 2003).

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

----S. 3---Service Tribunals Act (LXX of 1973), S.5---Modifying of order---Compulsory retirement---Absence from duty--Acquittal from criminal charge---Civil servant was removed from service on the allegation of his wilful absence from duty---Plea raised by civil servant was that his absence from duty was due to circumstances beyond his control as he had been involved in murder case---Validity---Service Tribunal while dealing with appeal, had power under S.5 of Service Tribunals Act, 1973, to vary and modify order of departmental authority---Supreme Court while sitting in appeal over judgment of Service Tribunal could also exercise such power to meet the ends of justice---Civil servant, who had long unblemished service record of about 17 years and he, by force of circumstances (involvement in case in which he was later on acquitted), was prevented from performing his duty---Civil servant was absent from duty entailing some penalty under law and his removal from service was too harsh penalty for him---Supreme Court converted petition for leave to appeal into appeal and converted penalty of removal from service into compulsory retirement---Appeal was allowed.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60; Abdul Hassan v. Secretary, Education (S&L) N.-W.F.P. and 3 others 2008 PLC (C.S.) 77; Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another 2005 SCMR 638; Agricultural Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752; Javed Akhtar and others v. Chief Engineer, Highway Department and others 2006 SCMR 1018; Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Water and Power Development Authority, Lahore and 2 others v. Muhammad Yousaf, Test Inspector PLD 1996 SC 840; Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director. Regional Information Office, Islamabad and 41 others 1991 SCMR 2216; Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774; Inspector-General (Prisons) N.-W.F.P Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2006 SCMR 815; Abdul Sattar and another v. Director Food, Punjab and others 2007 PLC (C.S.) 319 and Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428 ref.

Amjad Ali, Advocate Supreme Court for Petitioner.

Agha Tariq Mehmood, D.A.-G. for Respondents.

Date of hearing: 21st April, 2009.

2011 PLC (C.S.) 817

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Qaim Jan Khan and Zia Perwez, JJ

Civil Appeal No.1555 of 2006

Malik TAJ MUHAMMAD

Versus

SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN and another

(On appeal from the judgment/order, dated 21-7-2006 passed by Federal Service Tribunal, Islamabad in Appeal No.1214(R)CE of 2004).

Civil Appeal No.1558 of 2006

SHAH MOHYUDDIN HASHMI

Versus

EXECUTIVE COUNCIL ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and others

(On appeal from the judgment/order, dated 1-9-2006 passed by Federal Service Tribunal, Islamabad in Appeal No.1524(R)CE of 2004) .

Civil Appeal No.1559 of 2006

Dr. M. TUFAIL IBBRAHIM

Versus

EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and others

(On appeal from the judgment/order, dated 1-9-2006 passed by Federal Service Tribunal, Islamabad in C.M. No.1575 of 2006 in Appeal No.1385(R)CE of 2004).

Civil Appeal No.1560 of 2006

MUHAMMAD ANJUM MALIK

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another

(On appeal from the judgment/order, dated 1-9-2006 passed by Federal Service Tribunal, Islamabad in C.M. No.1554 of 2006 in Appeal No.1174(R)CE of 2004).

Civil Appeal No.1564 of 2006

MUHAMMAD JAVED SALIK LODHI

Versus

SECRETARY MINISTRY OF INTERIOR GOVERNMENT OF PAKISTAN, ISLAMABAD and others

(On appear from the judgment/order, dated 27-7-2006 , passed by Federal Service Tribunal, Islamabad in Appeal No.504(R)CE of 2001),.

Civil Appeal No.1990 of 2006

ZIA ULLAH KHAN N1AZI

Versus

CHAIRMAN, PAKISTAN RED CRESCENT SOCIETY

(On appeal from the judgment/order, dated 27-7-2006 passed by Federal Service Tribunal, Islamabad in Appeal No.120(L)CE of 2005).

Civil Appeals Nos.2734 to 2736 of 2006

MUHAMMAD ASHRAF NAZ

Versus

WAPDA through Chairman and others

(On appeal from the judgment/order, dated 10-10-2006 passed by Federal Service Tribunal, Lahore in Appeal No.54(L)CE, 55(L)(CE and 58(L)(CE) of 2006).

Civil Appeals Nos.1555, 1558, 1559, 1560, 1564, 1990, 2734 to 2736 of 2006, decided on 16th October, 2008.

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

---Ss. 3 & 10---Constitution of Pakistan, Art.212(3)---Dismissal of appeal by Service Tribunal---Plea of appellant that Service Tribunal, after deciding his appeal, had taken a different view by entertaining appeals against departmental penalties---Validity---Supreme Court remanded case to Service Tribunal for its decision afresh in accordance with law.

M. Shoaib Shaheen, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in Civil Appeal No.1555 of 2006).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, Ms. Naheeda Mehoob Ellahi, D.A.-G. and Saqib Jamal, Manager Legal NADRA for Respondents (in Civil Appeal No.1555 of 2006).

Appellant in person (in Civil Appeal No.1558 of 2006).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, and M.S. Khattak, Advocate-on-Record for Respondents (in Civil Appeal No.1558 of 2006).

Appellant in person (in Civil Appeal No.1559 of 2006).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, and M.S. Khattak, Advocate-on-Record for Respondents (in Civil Appeal No.1559 of 2006).

Appellant in person (in Civil Appeal No.1560 of 2006).

Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in Civil Appeal No.1560 of 2006).

M. Shoaib Shaheen, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in Civil Appeal No.1564 of 2006).

Saqib Jamal, Manager Legal NADRA for Respondent No.2 (in Civil Appeal No.1564 of 2006).

Appellant in person (in Civil Appeal No.1990 of 2006).

Ms. Naheeda Mehboob Elahi, D.A.-G. for Respondent (in Civil Appeal No.1990 of 2006).

Mian Mehmood Hussain, Advocate Supreme Court for Appellants (in Civil Appeals Nos.2734 to 2736 of 2006).

Nemo for Respondents Nos. 1 and 2(in Civil Appeals Nos.2734 to 2736 of 2006).

Syed Murtaza Ali Zaidi, Advocate Supreme Court for Respondent No.3 (in Civil Appeals Nos.2734 to 2736 of 2006).

2011 P L C (C.S.) 825

[Supreme Court of Pakistan]

Present. Iftikhar Muhammad Chaudhry, C.J. Jawwad S. Khawaja and Ghulam Rabbani, JJ

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

Versus

YASMEEN BANO

Notice to Chief Secretary, Punjab in Civil Petition No.1536 of 2009 issued vide order, dated 28-8-2009.

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

----Rr. 16 & 23---Appointment of Educators in Education Department on contract basis---In pursuance of Notification dated 19-10-2009 issued by Punjab Government, all such employees having crossed upper age limit would stand regularized and those receiving 30% pay above their salary as social security benefit would be entitled to pension from date of regularization.

Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 rel.

Muhammad Hanif Khattana, Advocate-General, Punjab, Khadim Hussain Qaiser, Additional Advocate-General, Rao M. Yousaf Khan, Advocate-on-Record, Muhammad Aslam Kambo, Secretary Education, Punjab on Court Notice.

Hafiz Aman, Advocate Supreme Court for Advocate-General, N.-W.F.P.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Sajeel Shehryar and Ms. Natalya, Advocates as amicus curaie.

2011 P L C (C.S.) 836

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Mrs. ABIDA PARVEEN CHANNAR

Versus

HIGH COURT OF SINDH

Civil Appeal No.1669 of 2007 arising out of Civil Petition No.219-K of 2007, decided on 23rd February, 2009.

(On appeal against the judgment, dated 5-4-2007 passed by Sindh Subordinate Judiciary Service Tribunal at Karachi in Appeal No.6 of 2005).

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

----R. 9-A---Services of probationer could be dispensed with before expiry of probation period.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 rel.

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

----R.9-A---Probationer only on successful completion of probation period could acquire a sure footing---Principles.

Appointment of a probationer can only acquire a sure footing, if he successfully completes the period of probation and the appointing authority is fully satisfied with his conduct and performance of duties.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 fol.

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

----R.9-A---Misconduct, charge of---Employee's right to show-cause notice before passing of termination order against him by competent authority---Scope stated.

A right to notice is not to be premised merely upon the question whether the order of termination indicated a stigma, but whether allegations of misconduct had any bearing upon the mind of the competent authority passing the order.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 rel.

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

----S. 3-B--Constitution of Pakistan, Art.212(3)---Termination of service during probation period---Judicial Magistrate---Misconduct, charge of---Imposition of such penalty on basis of discreet enquiries conducted by District Judge---Dismissal of appeal by Service Tribunal---Validity---In view of serious allegations of misconduct levelled against appellant, recording definite conclusion against him on basis of discreet enquiries was highly improper---Competent authority had erred by failing to summon entire record, when appellant had levelled allegations of bias against District Judge in departmental appeal---Report of District Judge submitted two months after assuming charge contained allegations relating to period prior to his appointment and same being unrelated to performance of duties by appellant possibility of bias could not be altogether ignored---Supreme Court set aside orders of Service Tribunal and competent authority with direction to reinstate appellant in service while allowing competent authority to initiate enquiry into allegations of misconduct, if considered necessary.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 and Pakistan State Oil v. Muhammad Tahir Khan PLD 2001 SC 980 ref.

(e) Administration of justice---

----Public functionaries---All public powers must be exercised reasonably and honestly for purpose for which same are conferred.

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

----R.19-A---Misconduct, charge of ---Judicial Officer---Discreet enquiries---Validity---Not proper to record definite conclusion on basis of such enquiries---Principles.

When serious allegations of misconduct are levelled against the judicial officers, it is highly improper to record conclusions on the basis of "discreet enquiries". Indeed such inquiries may be permissible for the purpose of enabling the competent authority to determine whether appropriate action should be initiated so as to prevent unnecessary harassment. Nevertheless there can be no justification to come to definite conclusions on the basis of such enquiries.

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

----R. 19-A---Inquiry proceedings---Duty of Judicial Officer---Scope---Judicial Officers should honestly and faithfully report failings of their subordinates to enable competent authority to apply their independent judgment rather than attempting to foist their own prejudices.

M.M. Aqil Awan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellant.

Abdul Fateh Malik, Additional Advocate-General, Sindh for Respondent.

Date of hearing: 23rd February, 2009.

2011 P L C (C.S.) 846

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

SOHAIL BUTT

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE (NORTH.) NATIONAL HIGHWAY AND MOTORWAY POLICE and others

Civil Petition No. 396 of 2009, decided on 20th May, 2009.

(Against the judgment dated 31-12-2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 707(R)/CS of 2007).

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

----S. 4---Dismissal of departmental appeal for being time-barred---Effect---Appeal before Service Tribunal would not be competent---Illustration.

Anwarul Haq's case 1995 SCMR 1505; Chairman PIA's case PLD 1990 SC 951; Dr. Anwar Ali Sahto's case PLD 2002 SC 101; Khyber Zaman's case 2004 SCMR 1426 and Syed Ashfat Hussain Shah's case 2006 SCMR 453 rel.

(b) Constitution of Pakistan---

----Art. 212(3)---Findings of Service Tribunal---Validity---Such findings being findings of fact would not call for interference by Supreme Court.

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

----Ss. 3, 5(1)(4) & 10---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Senior Patrol Officer in National Highways and Motorway Police---Charge of unauthorized absence from duty for about three months-Non-filing of reply to show-cause notice by appellant---Failure of appellant to appear before Inquiry Officer in spite of repeated notices issued to him---Dismissal of departmental appeal for being time-barred---Dismissal of appeal by Service Tribunal on merits as well. as being time-barred---Validity---Appellant as a member of discipline force would not deserve any leniency for having absented himself from duty for such considerable period without securing permission from his high officer---No question of public importance was involved---Tribunal was justified to come to conclusion that appellant had no case even on merits---Supreme Court declined to grant leave to appeal in circumstances.

(d) Constitution of Pakistan---

----Art. 212(3)---Word "satisfied" as used in Art. 212(3) of the Constitution---Meaning stated.

The word "satisfied" means existence of mental persuasion much higher than mere opinion; a mind not troubled by doubt; a mind which has reached on clear conclusion. [Words and phrases].

Blyth v. Blyth {(1966) AER 524 (541)} and Angland v. Payne {1944 NZLR 610 (626)} rel.

(e) Constitution of Pakistan---

----Art. 212(3)---Expression "substantial question of law" as used in Art. 212(3) of the Constitution---Meaning---Such expression would mean a substantial question of law involved in the case as between parties thereof.

Raghuman Prasad Singh and others v. The Deputy Commissioner of Partabgarh and others AIR 1927 P.C. 101 and Sir Chunilal v. Mehta and Sons Ltd. AIR 1962 SC 1314 rel.

(f) Constitution of Pakistan---

----Art. 212(3)---Expression "public importance" as used in Art. 212(3) of the Constitution---Meaning stated.

The word "public importance" can only be defined by a process of judicial inclusion or exclusion, because the expression "public importance" is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of importance is involved. Public importance must include a purpose or aim in which general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned.---[Words and phrases].

Abdul Aziz's case PLD 1982 SC (AJ&K) 16 rel.

(g) Words and phrases---

----"Grants" means permission.

(h) Constitution of Pakistan---

----Art. 212(3)---Appeal to Supreme Court against order of Service Tribunal--- Maintainability--- Constitutional power under Art. 212(3) of the Constitution being discretionary in nature must be exercised reasonably, honestly and not arbitrarily or capriciously or in bad faith---Such appeal would be competent only on ground of law of public importance, otherwise would be barred---Principles.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2011 PLC (C.S.) 856

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

RAJA KHAN

Versus

MANAGER (OPERATION) FAISALABAD ELECTRIC SUPPLY COMPANY (WAPDA) and others

Civil Petition No. 636 of 2009, decided on 21st May, 2009.

(Against the judgment dated 11-2-2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 445(R) CE of 2005).

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

---Ss. 3 & 10-Constitution of Pakistan, Art. 212(3)---Compulsory retirement from service---Dismissal of first departmental appeal for being time-barred---Dismissal of second departmental appeal as not competent---Dismissal of appeal by Service Tribunal on merits as well as its being time-barred---Validity---Petitioner had filed appeal before Tribunal without fulfilling mandatory requirement of S. 4 of Service Tribunals Act, 1973 in regard to limitation---Court could not compromise on limitation---Petitioner during four years of service had been punished for unauthorized absence as many as eight times---Petitioner by his subsequent conduct had accepted punishment of compulsory retirement by getting his pension claim and monthly pension regularly---Supreme Court refused to grant leave to appeal in circumstances.

Haji Ghulam Rasul's case PLD 1971 SC 376; Mst. Amina Begum's case PLD 1978 SC 220 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 rel.

(b) Constitution of Pakistan---

----Art. 212(3)---Service Tribunal, finding of---Validity---Such finding being finding of fact would not call for interference by Supreme Court.

Ch. Muhammad Azim's case 1991 SCMR 255 rel.

(c) Constitution of Pakistan---

----Art. 212(3)---Concurrent findings of fact by Appellate Authority and Service Tribunal---Validity---Supreme Court would not interfere with such findings.

Iftikhar Ahmed Malik's case 2005 SCMR 806 rel.

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

----S. 4---Departmental appeal being tinge-barred---Effect---Appeal before Service Tribunal would not be competent.

Chairman PIA and others v. Nasim Malik PLD 1990 SC 951; Muhammad Aslam v. WAPDA and others 2007 SCMR 513 and Government of Pakistan through Secretary, Establishment Division v. Bashir Ahmad Khan PLD 1985 SC 309 rel.

(e) Limitation---

----Appeal, if required to be dismissed for being time-barred, then its merits need not to be discussed.

Khan Sahib Sher Muhammad Mir's.case 1987 SCMR 92 rel.

(f) Constitution of Pakistan---

----Art. 212(3)---Constitutional jurisdiction under Art. 212(3) of the Constitution---Discretionary in character.

(g) Constitution of Pakistan---

----Arts. 185(3) & 212(3)---Grant of leave to appeal by Supreme Court---Discretionary.

Ghulam Qadir Khan's case 1986 SCMR 1386 rel.

(h) Constitution of Pakistan---

----Arts. 199 & 212(3)---Void order---Constitutional jurisdiction of High Court and Supreme Court---Scope---Such jurisdiction might be refused, if same was meant to enable petitioner to circumvent provisions of law of limitation or if he was stopped by his conduct from challenging order.

Muhammad Ismail's case 1983 SCMR 168; Abdur Rashid's case 1969 SCMR 141 and Wali Muhammad's case PLD 1974 SC 106 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2011 P L C (C.S.) 865

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

PROVINCIAL POLICE OFFICER, N.-W.F.P. and others

Versus

MUHAMMAD NAWAZ

Civil Petition No. 175-P of 2009, decided on 22nd April, 2009.

(On appeal from the order of the N.-W.F.P. Service Tribunal, Peshawar dated 1-1-2009 passed in Service Appeal No. 1372 of 2008).

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

----S. 4---Appeal---Head Constable in Police Department---Removal of appellant's name from Promotion to List "D" on basis of alleged oral complaints against him without issuing him notice or providing him an opportunity of hearing---Validity---Appellant after his appointment as Constable had passed recruit course---Appellant after passing Lower School Course was promoted as Head Constable and his name was brought on Promotion List "D" after passing Intermediate School Course---Inclusion of appellant's name in Promotion List created a vested right in his favour, which could not be withdrawn without adopting proper legal procedure---Oral complaints should not have weighed with competent authority for passing impugned order---Appellant's name had been removed from Promotion List "D" in violation of principle of audi alteram partem---Service Tribunal accepted appeal and set aside impugned order in circumstances.

Muhammad Iqbal and 11 others v. Superintendent of Police, Khanewal and another 2000 PLC (CS) 1127 and Rashid Ahmad and 3 others v. Superintendent of Police and 2 others 1992 PLC (CS) 58 ref.

Qaiser Rashid, A.A.-G. N.-W.F.P. for Petitioners.

M. Tariq Javed, Advocate Supreme Court for Respondent.

Date of hearing: 22nd April, 2009.

2011 PLC (C.S.) 921

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk and Sheikh Hakim Ali, JJ

Dr. NIGHAT BIBI, PHYSICIAN, GENERAL MEDICINE, PIMS, ISLAMABAD

Versus

SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

C.P.L.A. No.595 of 2008, decided on 28th November, 2008.

(On appeal from judgment of Islamabad High Court, Islamabad, dated 30-4-2008 passed in I.C.A. No.2 of 2003).

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---General Clauses Act (X of 1897), S.21---Promotion and seniority---Locus poenitentiae, principle of---Past and closed transaction, principle of---Applicability---Appellant was employee of Provincial Government who was absorbed in Federal Government and was given seniority from the date when she was absorbed-Validity---Such absorption was confirmed and declared valid by superior courts in past litigation thus matter had become past and closed transaction, not to be challenged and re-agitated---Government could not take benefit of its own illegalities and if competent authority was of the view that some higher authority had no jurisdiction, such authority should have shown courage to disobey the order---Once it was not done, the step so taken could not be subsequently retraced by Government if the incumbent otherwise was eligible for benefit so granted---Nobody could doubt eligibility of appellant keeping in view of her past service record and qualifications---Supreme Court converted petition. for leave to appeal into appeal and set aside judgment passed by Division Bench High Court and restored that of Judge in Chambers of High Court whereby appellant was declared permanent employee of Federal Government---Appeal was allowed.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh, and others 2005 SCMR 1814 distinguished.

Wasim Sajjad, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mrs. Naheeda Mehboob Elahi, Deputy Attorney-General with Raja Abdul Ghafoor, Advocate-on-Record and Zamir Naqvi, Law Officer, PIMS for Respondents Nos.1 and 2.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.3.

Date of hearing: 28th November, 2008.

2011 P L C (C.S.) 935

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Akhtar Shabbir and Sarmad Jalal Osmany, JJ

MUHAMMAD ILYAS KHAN

Versus

SENIOR MEMBER, BOARD OF REVENUE, N.-W.F.P., PESHAWAR and others

Civil Petition No.1337 of 2008, decided on 16th October, 2008.

(On appeal from the judgment, dated 25-9-2008 passed by the N.-W.F.P. Service Tribunal in Appeal No.806 of 2008).

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----S. 30(3)---Constitution of Pakistan, Art.212(3)---Successive transfers---Scope---Respondent was Patwari who was transferred to three stations within a span of eight months---Service Tribunal accepted appeal filed by respondent Patwari and set aside his transfer orders---Validity---Successive transfers of respondent to three stations within a span of eight months were against posting/transfer policy of Provincial Government, which indicated that a government servant should not be transferred in ordinary circumstances, prior to completion of a period of three years at one place of posting---Transfer order of respondent was passed during ban period, prematurely under political influence, as copy of the same was sent to private secretary to Provincial Minister for Revenue---Tenure of posting of an officer or official of Government to a District Government was provided in S.30(3) of North-West Frontier Province Local Government Ordinance, 2001, as three years but any officer could be transferred earlier due to exigency of service or in public interest---Dispute raised in petition for leave to appeal related to an individual grievance and no substantial question of law of public importance was involved to warrant interference by Supreme Court under Art.212 (3) of the Constitution---Supreme Court did not find any illegality or infirmity in the judgment passed by Service Tribunal so as to justify interference by Supreme Court under Art.212(3) of the Constitution---Petition was dismissed.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Muhammad Nasir Khan v. Secretary Education, Government of Punjab and others 2000 PLC (C.S.) 312; Abdul Haq v. G.M. S.N.G.P. Ltd. 2000 SCMR 925; Muhammad Binyamin v. WAPDA 1991 SCMR 382; Muhammad Azim v. Chief Engineer Irrigation 1991 SCMR 255; Muhammad Nawaz v. Divisional Forest Officer, Islamabad and 2 others 1982 SCMR 880; Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Saboor Ahmad v. Managing Director, Sui Southern Company Limited and another 2002 SCMR 953 and Faiz Ahmad v. Deputy Postmaster-General, Lahore and others 1991 SCMR 368 rel.

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Haroon Rashid, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 16th October, 2008.

2011 P L C (C.S.) 942

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

DISTRICT COORDINATION OFFICER, DISTRICT DIR LOWER and others

Versus

ROZI KHAN and others

Civil Petitions Nos.660-P, 661-P and 662-P of 2006, decided on 6th February, 2009.

(On appeal from the judgment, dated 17-6-2006 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeals Nos.490, 491 and 492 of 2005).

Constitution of Pakistan---

----Art. 212(3)---Termination/withdrawal of appointment of civil servant---Civil servants, in the present case, were qualified and their appointments were made by the competent authority after observance of due process of law---No proper inquiry, such as issuing of charge-sheet/statement of allegations, show-cause notice, had been issued to the civil servants while terminating/withdrawing their services---Judgment of the Service Tribunal was based on valid and sound reasons and was entirely in consonance with the settled law---Neither there was misreading, nor misconstruction of facts and law was found in the said judgment of Service Tribunal---Any irregularity, whatsoever, if committed by the appointing department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department that it had itself committed some irregularities qua any appointment---Petition for leave to appeal by the department was dismissed by the Supreme Court, in circumstances.

Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 fol.

Ghulam Rasool and others v. Government of Balochistan and others 2002 PLC (C.S.) 47; Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Gohar Riaz 2004 SCMR 1662 and Abdul Salim v. Government of N.-W.F.P through Secretary, Department of Education Secondary, N.-W.F.P, 2007 PLC (C.S.) 179 ref.

Tasleem Hussain, Advocate Supreme Court for Petitioners.

Ijaz Anwar, Advocate Supreme Court for Respondents.

Date of hearing: 6th February, 2009.

2011 P L C (C.S.) 950

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

WAPDA and others

Versus

Qari MUHAMMAD FEROZE and others

Civil Petitions Nos.1174 to 1177 of 2008, decided on 27th October, 2008.

(On appeal against the judgment, dated 26-6-2008 passed by Federal Service Tribunal, Islamabad, in Appeals Nos.26 to 29(P)(C.E.) of 2004).

Constitution of Pakistan---

----Art. 212(3)---Seniority list, preparation of---Pendency of lis before Supreme Court---Effect---Petitioner department and other departments and authorities, particularly in service matter when lis was pending in the court relating to terms and conditions of service, where rights of parties regarding seniority were under consideration and were still to be determined by the court with a resultant consequence of effecting further promotion and other rights like Selection Grade, the department should keep its hands off unless there was specific order of the court for further proceeding on the part of department/authority, in order to avoid further complications and which ought to have been visualized by the department---Petitioner department had, without visualizing such complications, had shown smartness by deciding the matter hurriedly without waiting for decision of court and if any difficulty had then arisen, it was for petitioner department to solve or to suffer for that---Service Tribunal had rightly passed judgment in favour of respondents and declined to interfere---Leave to appeal was refused.

Sheikh Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in all cases).

M. Shoaib Shaheen, Advocate Supreme Court along with Tanveer Ahmed in person (pro forma respondent) for Respondent No.1 (in all cases).

Date of hearing: 27th October, 2008.

2011 P L C (C.S.) 954

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq, JJ

FEDERATION OF PAKISTAN through Secretary Finance Government of Pakistan and others

Versus

KHALID JAVED

Civil Appeal No.48 of 2007, decided on 1st December, 2008.

(On appeal from the judgment, dated 11-10-2006 of the Federal Service Tribunal, Islamabad passed in Appeal No.244(L)(C.S.) of 2003).

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

----S. 3---Removal from service---Major penalty---Employee of financial institution---Embezzlement and negligence---Respondent, who was employee of financial institution, was compulsorily retired on the allegation of embezzlement and negligence but Service Tribunal converted the punishment into reduction in lower scale for five years---Validity---People employed in financial institutions dealt with public money and any negligence or default on their behalf could lead to loss of faith in such institutions---Once public had lost confidence, it was extremely difficult, painstaking and time consuming to rehabilitate the same---Supreme Court took serious notice of misappropriation conducted in a financial institution---Matter was that of late posting of money and no ultimate loss was sustained by customers---Service Tribunal was not justified in reducing punishment of respondent, which was set aside and punishment of compulsory retirement imposed by departmental authorities was restored---Appeal was allowed.

Assistant Director (Admn.) National Savings Centre and others v. Muhammad Anwar 1990 SCMR 1214 fol.

Agha Tariq Mehmood, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record along with Saghir Ahsan Farooqi, National Saving Officer for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 1st December, 2008.

2011 P L C (C.S.) 977

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MUHAMMAD ISHAQUE and others-----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Civil Petitions for Leave to Appeals Nos.184-K to 187-K, 190-K and 212-K of 2010, decided on 24th September, 2010.

(On appeal from the judgment/order of the Federal Service Tribunal Karachi, dated 12-2-2010 in Appeals Nos.83, 48, 45, 282(K)CE of 2005, 491(K)(CE) of 2004 and 450(K)CE of 2002).

Constitution of Pakistan---

----Art. 212(3)---Service Tribunal had failed to take into account that employer organization was very much an entity established and operated by the Federal Government and therefore employees were entitled to invoke the jurisdiction of the Service Tribunal---Leave to appeal was granted to employees to consider the said matter.

Petitioners in person (in C.P.L.As. Nos.184-K, 187-K, 190-K and 212-K of 2010).

Nemo for Respondents.

2011 P L C (C.S.) 982

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Tariq Parvez, JJ

Mian AURANGZEB

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Interior and others

Civil Petition No.2559 of 2010, decided on 14th February, 2011.

(On appeal from the judgment, dated 8-3-2010 of the Federal Service Tribunal, Islamabad passed in Appeal No.1626(R)(CS) of 2005).

Constitution of Pakistan---

----Art. 212(3)---Contention of the petitioner was that he was appointed on ad hoc basis some time in April, 1989, thereafter, the Government made a request for filling in the vacancy through Federal Public Service Commission, petitioner appeared and qualified---Question required consideration was that whether the petitioner, in the given circumstances, when he had served the department for more then twelve years should be counted to his credit---Leave to appeal was granted, inter alia, to consider the above question.

Syed Iftikhar Gillani, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2011 P L C (C.S.) 990

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

LIAQAT ALI

Versus

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

Civil Petition No.307-P of 2007, decided on 10th April, 2009.

(On appeal from the judgment, dated 28-4-2007 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeal No.601 of 2006).

Constitution of Pakistan---

----Art. 212(3)---Termination from service---Absence from duty---Non-holding of regular inquiry---Effect---Civil servant who was involved in criminal case was terminated during the period when he remained fugitive from law---Plea raised by civil servant was that he was acquitted from criminal charge and no regular inquiry was conducted to probe into the matter---Validity---Involvement of civil servant in criminal case and his wilful absence from duty were never denied by him, therefore, non-holding of regular inquiry did not cause any prejudice to him---Civil servant had been dealt with fairly and was terminated by competent authority after completing all codal formalities---Service Tribunal discussed the matter in depth and assigned cogent and sound reasoning before dismissing appeal filed by civil servant---Neither any misreading or non-reading of material on file could be pointed out in judgment passed by Service Tribunal, justifying interference by Supreme Court, nor any substantial question of law of public importance was involved in the case---Supreme Court declined to interfere in judgment passed by Service Tribunal---Leave to appeal was refused.

Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 distinguished.

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 v. Aurangzeb 2003 SCMR 338 ref.

Roohul Amin Khan, Advocate Supreme Court for Petitioner.

2009 P L C (C.S.) 997

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Mahmood Akhtar Shahid Siddiqui, JJ

QASIM WASTI and others

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, REVENUE DEPARTMENT, BOARD OF REVENUE, LAHORE and others

Civil Appeals Nos.702 to 724 of 2008, decided on 26th May, 2009.

(Against the judgment, dated 25-7-2007 of the Punjab Service Tribunal, Lahore passed in Service Appeals Nos.2374, 1182 of 2005, 1846, 1183 of 2006, 2442 of 2005, 2462 of 2004, 1184, 2439 of 2005, 2199 of 2006, 2460 of 2004, 2556 of 2005 and 1852 of 2006).

(a) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---

----R. 8---West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969, Rr.50 to 58, 3 & 4---Seniority---Determination of---Point of time at which a Tehsildar could be said to have been appointed as such---Person cannot be said to have got inducted into service on his selection for appointment to the said post but shall be deemed to have been so appointed after he had successfully completed the prescribed training and had passed the required departmental examination and when he was actually posted as Tehsildar---As an indispensable corollary, the period spent by such a selected person in successfully completing the said training and passing the said departmental examination, cannot and would not be counted towards his service for the purposes of seniority etc.---Findings of Service Tribunal to the contrary were not sustainable in law and were, therefore, set aside by the Supreme Court---Principles.

The normal scheme of selection of civil servants and then their appointments against the posts for which they had been selected, is generally known, is that nothing really intervenes between the two except a ministerial order or a notification. But Rule 8 of West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 has a different story to tell. It clearly prescribes, without any ambiguity, that after a person has been found fit and selected for the post of a Tehsildar and before he is appointed to the said post, a lot needs to be done i.e. he has, inter alia, to successfully complete the prescribed training and to pass the prescribed departmental examination. And the said prescribed training is a two years training ordained by Rules 50 to 58 of the of West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, of 1969 and the said departmental examination is the one envisaged by Rule 3 thereof. It, therefore, follows that a persons selected for appointment does not get appointed as a Tehsildar till he successfully completes the said two years' training and passes the said departmental examination. A reading of Rule 4 and others, including Rules 50 to 58 of the said Rules of 1969, would also reveal that a person so selected for appointment is called a "candidate" till he has successfully completed the said two years' training, has passed the requisite departmental examination and is actually appointed/posted as Tehsildar.

A person selected for appointment as a Tehsildar cannot be said to have been appointed to the said post or to have been inducted into service till after he has satisfied the requirements of Rule 8 of the said 1962 Rules.

Jamal Khan's case 1994 SCMR 759 fol.

(b) Constitution of Pakistan---

----Art. 212---West Pakistan General Clauses Act (VI of 1956), S.13---Seniority---Conflicting orders of departmental authorities become irrelevant when the matter comes to be decided by the Service Tribunal which is then the forum to determine the issues in question with the final word being with the Supreme Court---When the view of Service Tribunal appeared to have been formed in ignorance of S.13, West Pakistan General Clauses Act, 1956, said view of the Tribunal could not sustain.

(c) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---

----R. 8---West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969---Punjab Civil Servants Act (VIII of 1974), S.23(2)---West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 and West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969 were not inconsistent with the provisions of Punjab Civil Servants Act, 1974 and in view of S.23(2) of the said Act, both the Rules, 1962 and 1969 continue to be in force as having been owned and adopted by Punjab Civil Servants Act, 1974.

Ihsan-ul-Haq Ch., Advocate Supreme Court and Ijaz-ul-Ahsan, Advocate Supreme Court for Appellants (in Civil Appeals Nos.702 to 711 of 2008).

Hanif Khatana, Additional Advocate-General along with M. Akram Bhatti, Deputy Secretary (Revenue) for Appellants (in Civil Appeals Nos.712 to 723 of 2008).

Nemo for Appellants (in C.A. No.724 of 2008).

Hanif Khatana, Additional Advocate-General for Respondents (in Civil Appeals Nos.702 to 711 and 724 of 2008).

Riaz Kiani, Advocate Supreme Court for Respondent Malik Ahmed Ali (in Civil Appeals Nos.712 to 723 of 2008).

Iqbal Mehmood Awan, Advocate Supreme Court for Syed Ali Ausat (in Civil Appeals Nos.712 to 723 of 2008).

Nemo for Respondent Muhammad Yasrab (in Civil Appeal No.724 of 2008).

Other respondents: Ex parte.

Date of hearing: 26th May, 2009.

2011 P L C (C.S.) 1007

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud , JJ

Brig. (R.) SAKHI MARJAN, CEO, PESCO, PESHAWAR

Versus

MANAGING DIRECTOR PEPCO, LAHORE and others

Civil Petition for Leave to Appeal No.574 of 2008, decided on 23rd February, 2009.

(On appeal from the judgment, dated 11-3-2008 passed by the Peshawar High Court, Peshawar in Writ Petition No.238 of 2008).

Constitution of Pakistan---

----Art. 185(3)---Contractual employment---Non-holding of inquiry---Termination of service---Remedy---Petitioner was employed in corporation on contract and he was terminated on the allegation of insubordination---Plea raised by petitioner was that no regular inquiry was held depriving him of opportunity of being heard---Validity---It was not necessary that inquiry must be held in each and every case as it depended upon circumstances of each case---Services of an employee could be terminated without holding regular inquiry for the reason that competent authority could dispense withholding of such inquiry especially when allegation levelled against employee was proved on the basis of documentary evidence---Employee of corporation, in absence of violation of law or any statutory rule, could not press into service the constitutional or civil jurisdiction for seeking relief of reinstatement in service---Such employee could only claim damages against his wrongful dismissal or termination---High Court had rightly declined to interfere in exercise of Constitutional jurisdiction for enforcement of contractual obligation---Leave to appeal was refused.

The Secretary, Government of Punjab v. Riaz-ul-Haq 1997 SCMR 1552;Asim Rizwan v. Secretary Information and Broadcasting P.Tv.C. and others C.P.No.549 of 2008; 1998 SCMR 2268; 1999 SCMR 467; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. 2004 SCMR 1274; Allied Bank Ltd. v. Syed Nasir Abbas Naqvi and others 2007 SCMR 1143 and Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357 ref.

Muhammad Aslam v. Inspector-General of Police Punjab 2004 PLC (C.S.) 675; Mst. Samina Nazeer v. District Education Officer (W), Khanewal and others 2004 SCMR 290 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 rel.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Sh. Riazul Haque, Advocate Supreme Court for Respondents Nos.1, 2 and 5.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3 and 7.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondent No.6.

Khan Muhammad Azad, D.A.-G. on Court notice.

Date of hearing: 20th November, 2008.

2011 P L C (C.S.) 1017

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ABDUL WAHAB and another

Versus

SECRETARY, GOVERNMENT OF BALOCHISTAN and another

Civil Appeals Nos.58/Q and 859/Q of 2009 and Civil Petitions Nos.118/Q and 119/Q of 2008, decided on 29th May, 2009.

(On appeal from the judgment, dated 16-10-2008 passed by Balochistan Service Tribunal, Quetta in S.As. Nos.6 and 7 of 2005).

(a) Civil service---

----Termination of service---No one could be allowed, irrespective of the fact who was who to act in an arbitrary, fanciful and whimsical manner, and they had got to be judicious, fair and just in taking such decision---Contention that question of retention and dispensation of an employee fell within the discretion of department was repelled---Termination of civil servants had been dealt with in a careless, cursory and casual manner without examining the merits of case---Explanations furnished by responsible officials of the department for termination of services of employees were vague, sketchy and contradictory as the record spoke otherwise---Supreme Court converted petition for leave to appeal of the employees into appeal and accepted the same.

(b) Discretion---

----Exercise of discretion---Scope.

Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive.

Human Rights Case No.5818 of 2006 2008 SCMR 531; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Abid Hussain v. PIAC 2005 SCMR 25; Manzoor Hussain v. Muhammad Ashraf 1999 PLC (C.S.) 279; Gadoon Textile Mills v. WAPDA 1997 SCMR 641 and Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 ref.

Petitioners in person (in both cases).

Tariq Ali Tahir, Additional Advocate-General, Niaz Ahmad, Chief Engineer (S) PHED, Amjad Mehmood, A.D.C. (Claim) and Muhammad Ishaq, AO(S) for Respondents.

Date of hearing: 29th May, 2009.

2011 P L C (C.S.) 1076

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmad, Asif Saeed Khan Khosa and Ghulam Rabbani, JJ

In the matter of: SUO MOTU CASE NO. 24 OF 2010

(Regarding Corruption in Hajj Arrangements in 2010)

Human Rights Cases Nos. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P, 58118-K of 2010 and C.M.A. No.218 of 2011, decided on 11th March, 2011.

Constitution of Pakistan---

----Arts. 25 & 184(3)---Civil service---Employment on contract after superannuation---Equality of citizens---Discrimination---Disciplinary Force---Supreme Court, in a matter under suo motu jurisdiction, had made observations against a functionary employed in disciplinary force, on contract after superannuation, regarding poor investigation of the case---While other such members of the said Force had been removed, retention of specified functionary, prima facie, seemed to be discriminatory i.e. against the provisions of Art. 25 of the Constitution, because if all of them were serving on contract basis and according to the authorities they were performing duties to the satisfaction, their services had been terminated but the specified functionary who was also a similarly placed person was continuing in office.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan, Dr. Salahuddin Mengal, A.-G. Balochistan, Asadullah Chamkani, A.-G. KPK, Syed Arshad Hussain Shah, Additional A.-G., KPK, Ghulam Dastgir, Chief Secretary KPK, Khawaja Haris Ahmed, A.-G. Punjab, Ch. Khadim Hussain Qaiser, Additional A.-G. Punjab, Nasir Khosa, Chief Secretary, Punjab, Abdul Fateh Malik, A.-G. Sindh, Raja Abdul Ghafoor, Advocate-on-Record, Ghulam Nabi Shah, Secretary Law, Iqbal Ahmed Durrani, Secy. S&G, Sindh, Muhammad Tayyab, Additional Secy. S&GAD and Tariq Pirzada, Commissioner, ICT on Court Notice.

Nemo for Members of Committee of Parliamentarians.

Nemo for Former Minister S&T.

Khurram Latif Khosa, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Former Minister Religious Affairs.

Shahzad Ahmed, JS Admn. (on behalf of Secretary) for M/o Religious Affairs.

Nemo for Former Secretary Religious Affairs.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Abdur Rauf Chaudhry, Estt. Secretary, Khalid Akhlaq Gillani, Additional Secy., M. Ijaz Ghani, Dy. Secy. and Muhammad Arshad, Dy. Secy. for Establishment Division.

Fauzi Zafar, ADPGA for NAB.

Syed Jawed Ali Bukhari, Additional D.-G., Incharge Investigation, Hussain Asghar, Director, M. Azam Khan, Director (Law), Khalid Rasool, Dy. Director, FIA, Khalid Naeem, AD, FIA, Niamat Ali, AD, FIA, Liaqat Ali, S.-I. Police with Rao Shakeel, former D.-G. Hajj (in custody) for FIA.

M. Ikram Chaudhry, Advocate Supreme Court (in C.M.A. No.218 of 2011).

Nemo for Tour Operators.

2011 P L C (C.S.) 1086

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Syed DILAWAR MADAD

Versus

GOVERNMENT OF PAKISTAN and others

Civil Petition No.402-K of 2008, decided on 11th November, 2008.

(On appeal from the order dated 26-7-2008 passed by Federal Service Tribunal, Karachi in Appeal No.15/CE/K of 2008).

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

----Ss. 2(c), 3, 9 & 10---Constitution of Pakistan, Art.212(3)---Employee of statutory corporation---Penalty of compulsory retirement from service was converted to demotion vide order dated 17-5-2002---Appellant's requests to authority made on 11-4-2005 and 20-7-2005 for restoration of his seniority---Rejection of appellant's requests by authority vide order dated 12-6-2008---Appeal in Service Tribunal filed on 10-7-2008---Validity---No rules applicable to appellant existed providing for a departmental representation, review or appeal---Action had been taken against appellant under Removal from Service (Special Provisions) Ordinance, 2000 for being a person in corporation service---Appellant against order of demotion dated 17-5-2002 had not represented within 15 days of its communication as prescribed under S.9 of the Ordinance---Appellant was not entitled to make representation at his sweet will after more than two years of impugned order of demotion nor was to wait its result for more than four years---Impugned order had not been passed on any representation questioning imposition of penalty of demotion---Petition for leave to appeal was dismissed for having no merit.

A.S.K. Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th November, 2008.

2011 P L C (C.S.) 1094

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sabihuddin Ahmed, JJ

HABIBULLAH BHUTTO

Versus

COLLECTOR OF CUSTOMS and another

Civil Appeal 1051 of 2005 arising out of Civil Petition No.571-K of 2003, decided on 23rd October, 2008.

(Against the judgment dated 10-6-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.221(K)(CS) of 2001).

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

----R. 6-A---Disagreement of Authority with findings of Inquiry Officer or Authorized Officer---Effect---Authority, in such, case ought to record proper reasons.

Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Shewani 1996 SCMR 248 rel.

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

----Rr. 5 & 6-A---General Clauses Act (X of 1897), S.24-A---Order of Authorized Officer for holding of fresh inquiry after accepting representation of accused officer against earlier ex parte inquiry---Effect---Earlier ex parte inquiry would stand completely wiped out and only findings recorded in fresh inquiry would be liable to be considered---Authorized Officer or Authority could disagree with findings of Inquiry Officer after giving notice to accused officer and recording reasons therefor, but could not place reliance upon findings on earlier ex parte inquiry, which stood annulled---Illustration.

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

----Rr. 5 & 6-A---Personal knowledge of Authority about facts of case---Validity---Authority, while exercising quasi-judicial powers in disciplinary matters, could not import his personal knowledge to the facts of the case---When Authority had any personal knowledge, then it could cause relevant evidence to be produced before Inquiry Officer to enable him to arrive at a proper conclusion instead of making a mockery of whole legal process by allowing enquiry to proceed and waiting to exercise his revisional powers on basis of his personal knowledge irrespective of outcome of inquiry proceedings---Order of Authority imposing penalty would become illegal and tainted with bias, if he failed to communicate facts in his personal knowledge to accused officer in show-cause notice or to mention in his order, but recorded same in secrecy of his files.

Amin-e-Ajam v. Board of Revenue and another 2007 SCMR 1581 and Muhammad Mohsin Siddiqi v. Government of West Pakistan PLD 1964 SC 64 rel.

M.M. Aqil Awan, Advocate Supreme Court for Appellant.

Shakeel Ahmed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 23rd October, 2008.

2011 P L C (C.S.) 1119

[Supreme Court of Pakistan]

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

SALEEM AKHTAR SIDDIQUI

Versus

SHUJAH AHMED and others

Criminal Original Petition No.39 of 2008, decided on 14th October, 2008.

(For implementation of the Court order, dated 10-11-2008 passed in Criminal Original Petition No.69 of 2007).

Constitution of Pakistan---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt petition---Supreme Court had directed the Secretary, Establishment Division, to consider the promotion case of petitioner in the regular meeting scheduled to be held in February, 2008---In view of the said direction of Supreme Court case of petitioner was placed in the meeting of the Central Selection Board held on 11-2-2008 and was superseded as he had failed to meet the required aggregate threshold of 70% marks---Case of petitioner was again placed in the meeting held on 17-7-2008 and was deferred on the ground that he had not yet earned PER for one full year after his supersession on 11-2-2008---Contention was that since petitioner was posted as OSD, therefore, PER was not required under Para.2.87 of Guide to Performance Evaluation Report---Central Selection Board, in circumstances, was directed to consider the case of petitioner in its meeting going to be held in November, 2008---Contempt petition was disposed of accordingly.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Agha Tariq Mahmood Khan, D.A.-G., Ch. Akhtar Ali, Advocate-on-Record and Zakaullah, S.O., Estb. Div. for Respondents.

2011 P L C (C.S.) 1123

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

GOVERNMENT OF SINDH, KARACHI and others

Versus

RAFIQUE AHMED AGHA

Civil Petition No.108-K of 2007, decided on 19th March, 2007.

(On appeal from the order dated 4-1-2007 passed by the Sindh Service Tribunal, Karachi in Appeal No.40 of 2000).

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

----R. 4(1)(b)(iv)---Constitution of Pakistan, Art.212(3)---Dismissal from service---Authority had filed petition for leave to appeal against judgment of the Service Tribunal whereby penalty of dismissal from service awarded to respondent was set aside and he was ordered to be reinstated in service---Contention of Authority was that Service Tribunal had exonerated respondent of the charges levelled against him and set aide penalty of dismissal from service by ignoring very material, important factual and legal aspect of the case, and that judgment of the Service Tribunal suffered from grave illegality and that Service Tribunal had ignored material portion of the report of the Inquiry Committee---Authority had also alleged that respondent had acted in negligent and careless manner and had allowed illegal removal of the wheat from the store which was in his charge---Contentions raised by the Authority requiring consideration, leave to appeal was granted to consider said contentions.

Dr. Qazi Khalid Ali, Addl. A.-G., Sindh, Karachi and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2011 P L C (C.S.) 1124

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

Mst. IFFAT NAZIR

Versus

GOVERNMENT OF PUNJAB through Secretary Population Welfare Department, Lahore

Civil Petition No.1849 of 2008, decided on 13th January, 2009.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20-10-2008, in, Writ Petition No.10780 of 2008).

Constitution of Pakistan---

----Arts. 199 & 185(3)---Constitutional petition before High Court---Maintainability--Civil service--Promotion, withholding of---Promotion of petitioner was withheld due to pendency of departmental inquiry against her on the allegations of corruption---Plea raised by petitioner was that promotion could not be withheld on account of pendency of disciplinary proceedings---Validity---Constitutional jurisdiction of High Court was not meant to be exercised to compel competent authority to promote civil servant against whom prima facie evidence showing her involvement in serious charges of misconduct was available---Any direction by High Court, in such circumstances would be disharmonious to principle of good governance and canon of service discipline causing undue interference to hamper smooth functioning of departmental authorities---Order passed by High Court, in exercise of Constitutional jurisdiction, was unexceptionable and warranted no interference---Leave to appeal was refused.

Mrs. Sanjida Irshad, Director Nursing EDO (Health), Bahawalpur v. Secretary to Government of the Punjab, Health Department, Lahore 2008 PLC (C.S) 1019 distinguished.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 13th January, 2009.

2011 P L C (C.S.) 1130

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

TARIQ AZIZ-UD-DIN and others: In re

Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P & 14306-G to 14309-G of 2009, decided on 28th April, 2010.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Notification S.R.O. 1047(I)/1993, dated 23-10-1993---Promotion---Selection Grade---Basic Scales-21 to 22---Procedure---Use of discretion---Principles---Provisions of S.9 of Civil Servants Act, 1973, mainly deal with promotions up to Basic Scale-21 procedure whereof has been laid under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Presently rules are not available for promotion to selection grade i.e. front Basic Scale-21 to Basic Scale-22, although in year, 1993 vide Notification S. R.O. 1047 (I)/1993, dated 23-10-1993, such rules were framed but those were rescinded on 4-4-1998---In absence of any rules for promotion to Basic Scale-22, reliance has to be placed on S. 9(2)(a)(b) of Civil Servants Act, 1973, according to which in case of selection post, selection has to be made on the basis of merit and in case of non-selection post on the basis of seniority-cum-fitness-Promotion to posts in Basic Scales-20 and 21 and equivalent, under S.9 (2) of Civil Servants Act, 1973, has to be made on the recommendations of Selection Board---For promotions from Basic Scales- 21 to 22 no other criterion has to be taken into consideration except merit---There are no rules for promotion to selection post of Grade-22, meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in judge made law by full application of mind.

Chairman RTA v. Pak. Mutual Insurance Co. PLD 1991 SC 14; Director Food, N.-W.F.P. v. Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1; Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab v. Secretary Government of Balochistan 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 rel.

(a) Discretion---

----Fair and transparent discretion, exercise of---Principles---Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion---Arbitrariness in any "tanner is to be avoided to ensure that action based on discretion is fair and transparent---Discretion is to be exercised according to rational reasons which means that, there be finding of primary facts based on good evidence; and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner---Actions which do not meet these threshold requirements are considered arbitrary and misuse of power---Discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such power with the scope of law---All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion---Obligation to act fairly on the part of administrative: authority has been evolved to ensure rule of law and to prevent failure of justice.

Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622 rel.

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

----S. 9---Rules of Business, 1973, Rule. 15 (2) ---Constitution of Pakistan Art.184(3)---Human rights---Promotion from Basic Scale-21 to 22---Arbitrary procedure---Exercise of discretion by competent authority---Principle of transparency---Summary to Prime Minister----Procedure---Petitioners were civil servants working under Basic Scale-21 and were aggrieved of promotions of respondents from Basic Scale-21 to 22---Validity---It was mandatory under R.15(2) of Rules of Business, 1973, that a case should be submitted to Prime Minister for his orders based on self contained, concise and objective summary stating relevant facts or points for decision prepared on the same lines as those prescribed in the rules for summary of Establishment etc.---Secretary Establishment pointed out to Supreme Court that there was no practice prevailing for the last about 60 years for forwarding cases of promotion from Basic Scale-21 to 22 and subject to availability of vacancies, Prime Minister could call for the files for promoting officers and notification was issued of his/their promotion on receipt of directions from Prime Minister by Establishment Division, such past practice was followed in the promotion of respondents i.e. mandate of relevant rules was ignored---There was admitted non-adherence to Rules of Business, 1973, and Secretary Establishment sent files without any forwarding letter and cases of all officers totalling 267 were not sent in terms of R.15(2) of Rules of Business, 1973---Due weight was required to be given to Rules of Business, 1973, which had constitutional sanction, whereas while promoting respondents, mandate of law was uncondonably violated---Adopting such arbitrary procedure, not only injustice had been caused to officers who were otherwise senior and also had better case on merits but they had been deprived because there was nothing in black and white before competent authority---Such fact had brought case of petitioners in the area where discretion so exercised by competent authority could not be said to be in consonance with well known principle of fair play as cases of those officers who were not promoted their files were not before him, along with self-contained note by Secretary Establishment in terns of R. 15(2) of Rules of Business, 1973---To ensure justice and openness in view of rule of law, it was obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers in Basic Scale-21 who were eligible for promotion to Basic Scale-22---Such aspect of the matter required application of mind based on consideration and determination of merit in the light of material explicitly showing as to why officers who had been left out were not found to be competent / below in merit in comparison to those promoted to Basic Scale-22---Such consideration of case and determination of merit for parity of treatment had become all the more necessary and in absence of considering candidature of left out officers, it would alone be tantamount to pick and choose and there was no transparency in exercise of discretion by competent authority---Manner in which promotions in civil service had been made, might tend to adversely affect existence of such organ---Honesty, efficiency and incorruptibility were sterling qualities in all fields of life including Administration of Services and such criteria ought to have been followed---Respondents were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which was likely to destroy service structure---Although petitioners had no right to be promoted yet in accordance with S. 9 of Civil Servants Act, 1973, they were, at least, entitled to be considered for promotion---Right contemplated under S.9 of Civil Servants Act, 1973, was neither illusionary nor a perfunctory ritual and withholding of promotion of an officer was a major penally in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of---Supreme Court set aside notifications of promotion of respondents and declared those of no legal. Consequences---Supreme Court directed "competent authority to consider cases of, all officers holding posts in Basic Scale-21 afresh in view of the observations made by Supreme Court---Respondents were not entitled for benefits, perks and privileges--Supreme Court recommended to ensure fairness, justness and the rules rescinded on 4-4-1998 to be re-enacted---Petition was allowed.

Lahore Development Authority v. Shamim Akhtar 2003 MLD 1549; Adil Hamid v. Azad Jammu and Kashmir Government 1991 PLC (C.S.) 1195; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Fazali Rehmani v. Chief Minister, N.-W.F.P. PLD 2008 SC 769; Tanvir Shaukat v. District and Sessions Judge, Narowal 2009 SCMR 764; Zia Ullah Khan v. Government of Punjab PLD 1989 Lah. 554; Zubair Ahmad v. Shahid Mirza 2004 SCMR 1747; Muhammad Zafeer Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; Civil Service Unions (CCSU) v. Minister for the Civil Service (1984) 3 All ER 935; R. v. Secretary of State [1985] 1 All ER 40; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division 2009 PLC (C.S.) 981; Fundamental Law of Pakistan by A.K. Brohi; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Ghuman Singh v. State of Rajasthan (1971) 2 SCC 452; Union of India and others v. Lt.-Gen. Rajendra Singh Kadyan and another (2006) 6 SCC 698; R (ProLife Alliance) v. BBC (2003) 2 All ER 977; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995SC 530; Federation of Pakistan through Secretary, Planning and Development Division, Islamabad v. Muhammad Akram and others 1995 SCMR 1647 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622 ref.

Chairman RTA v. Pak Mutual Insurance Co. PLD 1991 SC 14; Aman Ullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092 and Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705 rel.

(d) Civil service---

---Promotion---Principle---Promotion is not a right but an officer deserves that his case should be considered for promotion in accordance with law.

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

---S. 9(2)(a)-'Merit'-Applicability-Interpretation of word `merit' includes eligibility as well as academic qualifications---Merit includes limitation prescribed under law.

Miss Abida Shabqadar v. Selection Committee 1989 SCMR 1585 rel.

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

----S. 9(2)(a)---Promotion to selection post---Procedure---When promotion is to be made to a selection post, it needs to be purely on merit---In case there is a tie regarding meritorious past record, credibility and confidence among the officers then seniority plays its role.

State of West Bengal v. Manas Kumar Chakrabarti AIR 2003 SC 524 rel.

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

----S. 9---Constitution of Pakistan, Arts.4 & 25---Promotion of junior officers---Effect---Grievance of petitioners was that respondents who were junior to them were promoted to Basic Scale-22, and they were not even considered for promotion---Validity---If left out officers were eligible for promotion, yet not promoted and juniors were promoted, the same amounted to glaring violation of command of Art.4 of the Constitution according to which it was an inalienable right of individual to be dealt with in accordance with law---If officers were considered for promotion having equal merit and eligibility, then seniority was to play a decisive role and ought to have been adhered---Such principle had not been followed and cases of both types of officers were not measured in the same scale to follow dictates of Art.4 of the Constitution, rule of law as well as due process of law.

(h) Constitution of Pakistan (1973)---

----Art. 25---Equality of citizens---Reasonable classification---Principle of intelligible differentia---Applicability---Provision of Art.25 of the Constitution has guaranteed equality of citizens---Denying such protection in peculiar circumstances of case on the basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together front those who have been left out---Intelligible differentia must have rational nexus to the object sought to be achieved by such classification.

Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 265 rel.

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

----R. 8-B---Appointment on acting charge; basis---Object and scope---Vested right---Appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from R.8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---In case where appointing authority is satisfied that no .suitable officer is available to fill the post and it is expedient to fill the same, it may appoint to that post, on acting charge basis, the most senior officer otherwise eligible for promotion in the cadre or service as the case may be.

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

----S. 9---Promotion---Ignoring senior officer---Principle of good governance---Posting a junior officer to hold charge of senior post, ignoring seniors who were eligible for promotion, does not advance object of achieving good governance.

(k) Constitution of Pakistan---

----Arts. 4, 5 & 25---Good governance---Object of good governance, achieving of---Principle---Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application, of mind-Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different Articles including Arts.4 and 25 of the Constitution---Once it is accepted that the Constitution is supreme law of country, no room is left to allow any authority to stake departure from any of the provisions of law and rules made thereunder---By virtue of Arts.4 and 5(2) of the Constitution, even Chief Executive of the country is bound to obey command of the Constitution and to act in accordance with law and decide issues after application of mind with reasons.

Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada 1999 SCMR 2744 and Ch. Zahur Bald v. Mr. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.

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

---S. 9(2)(a)-Promotion to selection post---Competent authority, obligation of---Competent authority was duty bound and obliged to consider merit of all eligible candidates while putting them in juxta­position to find out meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is command of the Constitution.

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

---Preamble---Role of Executive (Bureaucracy)---Scope---Under trichotomy of powers, the Executive (Bureaucracy) has to play the most important role for well being of general public---Although, bureaucrats are not representing any class of masses but whole structure of government depends upon efficient and competent officers who matter in making policies which are ultimately approved by Ministers etc. and if for such purpose selection of officer is made following the principle to determine merit are not employed, running of government on the basis of good policies would ultimately affect general public.

(n) Constitution of Pakistan---

----Art. 184(3) ---Human rights case---Maintainability---Petitioners were aggrieved .of promotion of respondent from Basic Scale-21 to 22---Such promotions were assailed before Supreme Court in exercise of powers under Art.184(3) of the Constitution---Plea raised by government was that few persons had approached Supreme Court by sending miscellaneous applications which have been treated as petitions under Art.184(3) of the Constitution, whereas majority of the officers had accepted the decision, therefore, petitions be dismissed directing aggrieved party to avail legal remedy permissible under law, instead of invoking constitutional jurisdiction of Supreme Court---Validity---Exercise of discretion contrary to settled principles had not only affected the left out officers but had left a far reaching adverse effect upon the structure of civil servants; be in the employment of Federal or Provincial Governments, autonomous and semi-autonomous bodies etc.---If the decision of competent authority under challenge was not examined keeping in view the constitutional provisions and law as well as judgments on the subject, the competent and efficient officers who had served honestly during their service career, would have no guarantee of their future service prospects---Consequently such actions were also likely to affect good governance as well as framing of policies in welfare of public and State---To assure public at large, more particularly the civil servants their fundamental rights would be protected---Supreme Court exercised jurisdiction under Art. 184 (3) of the Constitution in circumstances.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 distinguished.

(o) Civil service---

----Promotion-Principle of merit---Effect---Good governance is largely dependent upon upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to bureaucracy---Civil service is backbone of administration and purity of administration to a large extent depends upon purity of services---Such purity can be obtained only if promotions are made on merit in accordance with law and Constitution, without favouritism or nepotism---Institution is destroyed if promotions / appointments are made in violation of law.

(p) Constitution of Pakistan---

----Art. 4---Word law'---Scope---Wordlaw' is of wider import and in itself mandatorily cast duty upon every public functionary to act in the matter justly, fairly and without arbitrariness.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Sajeel Shehryar, Advocate(on behalf of 69 Officers); M. Ikram Chaudhry, Advocate Supreme Court (on behalf of M. Hafeez of Foreign Service); Dr. Muhammad Aslam Khaki, Advocate Supreme Court (in HRC 9504-G & 13936-G of 2009); Afnan Karim Kundi, Advocate Supreme Court (on behalf of Khurshid Anwar of Foreign Service); Haider Hussain, Advocate Supreme Court (on behalf of M. Salcem and Masood of Accounts (Service); Saleemullah Khan (in HRC No. 14309-G 2009) for Applicants.

Nemo for Applicants (in HRC No. 14306-7/G of 2009).

Anwar Mansoor Khan, AGP on Court notice.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Mian Hassan Aurangzeb, Advocate Supreme Court, M.S. Khattak, Advocate on-Record, Ismail Qureshi, Secretary, Munir Ahmed, Senior is., and Syed Mubashar Raza, JS. for the Establishment Division.

Ishtiaq H. Andrabi, Additional Secretary (A), Shair Bahadur Khan, Legal Advisor for Foreign Office.

Athar Tahir, Naguibullah Malik, Abdul Ghafar Soomro, Maj. (Retd.) Qamar Zaman, Imtiaz Hussain Qazi, Ishtiaq Ahmed Khan, Shahid Rashid, Nasir Mahmood Khan Khosa, Javed Iqbal, Nazar Hussain Mahar, Junaid Iqbal, M. Sami Saeed, Imtiaz Inayat Elahi, Javed Mehniood, Ghulam Ali Pasha, Khawaja Khalid Farooq, Syed Shabbir Ahmed, Tariq Masood Khan Khosa, Dr. Wasim Kausar, Tariq Saleem Dogar, Syed Jawed Ali Shah Bukhari, Muhammad Zafeer Abbasi, Jaweed Akhtar, Dr. Inamullah Khan, Khalid Idrees, Neelam S. Ali, Abdul Shafiq, Ahmed Mehmood Zahid, Batool Iqbal Qureshi, Ghulam Rasool Ahpan, Gul Muhammad Rind, Anisul Hassnain Musavi, Agha Sarwar Qizalbash, Ghalibuddin, Ayub Tarin, Asif Usman Khan, Mansoor Sohail and Haroon Shaukat Promoted Officers on Court notice (all in person).

Dates of hearing: 10th and 26th November, 2009, 7th, 20th, 26th, 28th 29th January, 2010 and 15th February, 2010.

2011 PLC (C.S.) 1211

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Tariq Parvez, JJ

Dr. R.A. SIYAL

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

Civil Review Petition No.194 of 2009, decided on 26th May, 2011.

(On review from the judgment/order of this Court dated 22-10-2009 passed in C.P. No.1164 of 2009).

(a) Civil service---

----Appointments of persons holding current charge post---Proposal should be initiated and referred to Central Selection Board within a month and finalized within six months---Civil servant's plea that Central Selection Board had not adhered to the timelines and delay in his promotion was the fault of functionaries in not following the codel formalities---Validity---Esta Code, was for the in-house working of a department and it did not create any right in favour of the civil servant and even if it did, it was for the purpose of seniority etc. in a particular grade and the legal position remained that civil servant held the same status which was held by him until approval of his case by the Central Selection Board followed by due notification.

(b) Civil service---

----Allotment of plot under the Federal Government Employees Housing Scheme---Eligibility---Cutoff date for filing application was 15-11-2003---Application of civil servant for allotment under Category-I of the Scheme was not considered---Contention of civil servant was that he was promoted with immediate effect to BPS-20 by approval from Prime Minister dated 13-11-2003 and issuance of notification of the promotion dated 20-11-2003 was a mere ministerial procedural formality and any delay in notification was fault on part of the department thus his application for allotment of Category-I plot should have been entertained---Validity---Notification of promotion to BPS-20, dated 20-11-2003, was very clear and specific and promotion of civil servant took effect from date of notification and until such date he was neither entitled nor eligible to apply for the plot in Category-I.

Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3; Director, Social Welfare N.-W.F.P. v. Sadullah Khan 1996 SCMR 1350; Government of the Punjab v. Ghulam Sarwar Khan 1997 SCMR 515; Saghir Ahmad v. Province of Punjab PLD 2004 SC 261 and Abdur Rehman Shaukat v. Muhammad Akram Javed PLD 2004 Lah. 815 ref.

(c) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---No factual or legal flaw having been pointed out by the petitioner in the judgment that was under review, review petition was dismissed.

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

2011 PLC (C.S.) 1218

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ghulam Rabbani, J

AHMAD YAHYA KHAN

Versus

HIGHER EDUCATION COMMISSION through Chairman and others

Civil Petition No.483 of 2011, decided on 6th May, 2011.

(On appeal from the judgment dated 24-2-2011 in W.P. No. 128 of 2011 passed by the Islamabad High Court, Islamabad).

Higher Education Commission Ordinance (LIII of 2002)---

----S. 10---Higher Education Commission Employees (Recruitment) Rules, 2009---Constitution of Pakistan, Arts.199, 25 & 185(3)---Civil service---Promotion---Constitutional petition under Art.199 before High Court---Maintainability---Leave to appeal was granted by Supreme Court to examine whether status of the departmental Rules duly approved by the Controlling Authority (Chief Executive of Pakistan) was required to be determined qua promotion that said Rules were not Statutory Rules; whether the petitioner had rightly invoked the jurisdiction of High Court under Art.199 for redressal of his grievance because of the reason that Commission was discharging its functions in connection with the affairs of the Federation and whether the petitioner, being one of its employees was entitled to seek protection of the constitutional provisions under Art. 25 etc.

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

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 6th May, 2011.

2011 PLC (C.S.) 1242

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Engineer MAJEED AHMED MEMON

Versus

LIAQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES, JAMSHORO and others

Civil Petition No.85-K of 2009, decided on 17th February, 2009.

(On appeal against the order dated 13-11-2008 passed by High Court of Sindh, Karachi in C.P. No.D-1202 of 2008).

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

----Ss. 2(b) & 3---Constitution of Pakistan, Art.185(3)---Probationer---Misconduct---Removal from service---Leave to appeal was granted by Supreme Court where petitioner had contended that even though he was a probationer since there were definite allegations of corruption or irregularity against him, he could not be removed without a proper inquiry.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

Ansari Abdul Lateef, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Kamaluddin, Advocate Supreme Court and Ghiasuddin Mirza, Advocate-on-Record for Respondents Nos.3 and 4.

2011 P L C (C.S.) 1257

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

DIRECTOR-GENERAL, MILITARY LAND AND CANTONMENT DEPARTMENT and another

Versus

Dr. Capt. NAZEER AHMED BALOCH

Civil Petition No.1042-K of 2002, decided on 22nd July, 2008.

(On appeal from the judgment dated 7-9-2002 in Appeal No.273(K)(CS) of 2000 passed by the Federal Service Tribunal).

Compulsory Service in the Armed Forces Ordinance (XXXI of 1971)---

----S. 9-A [as inserted by Compulsory Service in the Armed Forces (Amendment) Act (XXXVI of 1976)]---Medical Officer in Armed Forces---Release of such Officer from service of Armed Forces and his entering service of Federal Government---Effect---Seniority and pay of such officer would be fixed without break with continuity of his service rendered in Armed Forces---Principles.

Akhlaq Ahmed Siddiqui, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd July, 2008.

2011 P L C (C.S.) 1272

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui Tariq Parvez and Mian Saqib Nisar, JJ

GOVERNMENT OF N.-W.F.P. (Now KPK) through Chief Secretary and others

Versus

KALEEM SHAH and others

Civil Appeals Nos. 150-P and 151-P of 2009 along with Civil Petition No. 654-P of 2009, decided on 24th March, 2011.

(On appeal from the judgment/order dated 11-9-2007 and 16-9-2009 passed by Peshawar High Court, Peshawar in W.Ps. No. 475, 1731 of 2006 and 2131 of 2009).

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

----S. 19 [as amended by North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005) w.e.f. 12-7-2005]---Regularization of service of contract employees by operation of law---Scope---Cases of contractual employees though appointed on project works would fell within ambit of S. 19(2) of North-West Frontier Province Civil Servants Act, 1973.

Syed Arshad Hussain Shah, Additional A.-G. KPK for Appellants/Petitioners (in both cases).

Zafar Abbas Zaidi, Advocate Supreme Court for Respondents Nos. 1, 2 and 5 (in C.A. No. 150-P of 2009).

Muhammad Essa Khan, Advocate Supreme Court for Respondent (in C.A. No. 151-P of 2009).

Nemo for Respondent (in C.P. No. 654-P of 2009).

Date of hearing: 24th March, 2011.

2011 P L C (C.S.) 1282

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

ADMINISTRATOR ZILA COUNCIL, SAHIWAL

Versus

ARIF HUSSAIN and others

Civil Appeal No. 1277 of 2005, decided on 17th February, 2011.

(Against the order dated 6-8-2001 of the Lahore High Court, Multan Bench, passed in C.R. No. 741-D of 2001).

Civil Service---

----Reinstatement in service---Back-benefits, entitlement to---Absence of specific assertion/plea in plaint and proof by employee of having remained unemployed between date of his termination from service and date of his reinstatement---Plaint containing prayer for such benefits---Validity---Plaint did not contain any averment which would have put defendant-employer on notice that same had to meet a case for payment of back-benefits on account of plaintiff's alleged unemployment during period he remained out of service---Prayer in plaint merely seeking back-benefits in a cursory manner could not be construed as raising such plea---Plaintiff was, thus, not entitled to back-benefits in circumstances.

General Manager NRT v. Muhammad Aslam 1992 SCMR 2169 rel.

Mian Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court for Appellant.

Muhammad Iqbal Khan, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 17th February, 2011.

2011 P L C (C.S.) 1284

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

PUNJAB PUBLIC SERVICE COMMISSION and another

Versus

Mst. AISHA NAWAZ and others

Civil Appeals Nos.277 of 2011 and C.M.A. No.1604-L of 2011, decided on 23rd June, 2011.

(On appeal from judgment dated 6-7-2010 passed by the Lahore High Court, Lahore, in I.C.A. No.3 of 2010).

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

----S. 7---Constitution of Pakistan, Art.185(3)---Appointments on posts reserved for physically disabled persons---Criteria---Supreme Court emphasized Public Service Commission to formulate rules and policy for considering degree of disability while providing opportunity to such persons against different posts.

(b) Constitution of Pakistan---

----Arts. 185(3) & 199---Law Reforms Ordinance (XII of 1972), S.3---Petition for leave to appeal---Plea raised before Supreme Court by respondent neither raised in constitutional petition nor in Intra-Court Appeal---Validity---Supreme Court declined to allow respondent's counsel to raise such plea.

(c) Policy decision---

----Interference with---Scope---Policy of Government could not be interfered with without showing same to be violative of Fundamental Rights.

Ch. Khadim Hussain Qaiser, Additional Advocate-General, M. Aslam Kamboh, Secretary, Schools, Muhammad Ali Bhatti, Director, PPSC and Muhammad Farooq, Deputy Director, PSC for Appellants.

Tariq Zulfiqar, Advocate Supreme Court for Respondent No.1.

Ms. Shireen Imran, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No.3.

Respondents Nos.2, 4-6: Ex parte.

Date of hearing: 23rd June, 2011.

2011 P L C (C.S.) 1296

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

EXECUTIVE DISTRICT OFFICER (EDU.), RAWALPINDI and others

Versus

Mst. RIZWANA KAUSAR and 4 others

Civil Petitions Nos.1701-L, 1702-L, 1722-L, 1732-L and 1733-L of 2010, decided on 26th May, 2011.

(On appeal against the judgment, dated 22-6-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.2123, 2606, 2602, 2607 and 2214 of 2009).

(a) Locus poenitentiae, principle of---

----Principle of locus poenitentiae would not arise in a situation when some benefit, was awarded to a person against declared law.

Muhammad Nadeem Arif v. IGP Punjab, Lahore 2011 SCMR 408 rel..

(b) Civil service---

----Termination of service after few years of appointment---Appointment order found to be bogus/fake/irregular---Validity---Such charge was vague, non-specific and did not show any lapse on part of employee or commission of any fraud by him or non-possessing of requisite qualification by him or his appointment to be made by an incompetent officer---Department had not found performance of employee to be unsatisfactory---Impugned order was set aside in circumstances.

Muhammad Nadeem Arif v. IGP Punjab, Lahore 2011 SCMR 408; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161 and Executive District Officer (Education) Rawalpindi v. Muhammad Younas 2007 SCMR 1835 ref.

Secretary, M/o Finance and another v. Kazim Raza 2008 PLC (C.S.) 877; Province of Punjab through Secretary Agriculture Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 and Secretary to Government of N.-W.F.P. v. Sadullah Khan 1996 SCMR 413 ref.

Faisal Zaman Khan, Additional Advocate-General and Nizar Ahmed Abbasi, Deptt. Representative, Rawalpindi for Petitioners.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

2011 P L C (C.S.) 1304

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

ABDUL MAJEED

Versus

MANAGER, PIA, LAHORE and others

Civil Petition No.2045-L of 2010, decided on 23rd June, 2011.

(Against the judgment, dated 6-10-2010 passed by Lahore High Court, Lahore in ICA No.128 of 2008).

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

----R. 76---Constitution of Pakistan, Arts.185(3) & 199 --Constitutional petition---Compulsory retirement from service without any show cause notice---Order of Single Bench of High Court directing Authority to reinstate petitioner in service and hold regular enquiry, if any, against him---Intra-Court Appeal filed by Authority accepted by Division Bench of High Court---Joint request by parties to Supreme Court for disposing of petition for leave to appeal with an observation that Authority might hold a regular inquiry against petitioner and pass order after hearing him within specified time---Validity---Supreme Court converted the petition into appeal and accepted the same accordingly without going into question as to whether constitutional petition was maintainable as Authority established under an Act had no statutory rules.

Aurangzeb Mirza, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Ch. M. Sharif, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents.

Date of hearing: 23rd June, 2011.

2011 P L C (C.S.) 1309

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

DISTRICT COORDINATION OFFICER and others

Versus

ZAHEER ALAM and another

Civil Petitions Nos.1956-L and 1957-L of 2010, decided on 24th June, 2011.

(Against the judgment, dated 21-7-2010 passed by Punjab Service Tribunal, Lahore in Appeals Nos.2085 of 2008 and 2836 of 2009).

Civil service---

----Increments on acquisition of higher qualification, grant of---Secondary School Teachers in Education Department---Refusal of department to give increments to such Teachers for not having got Master's Degree in discipline of Education---Service Tribunal accepted teachers' appeal---Validity---Notification dated 25-8-1983 showed that besides M.Ed., six advance increments would be available to those having improved their qualifications in "master degree in any discipline"---Supreme Court refused to grant leave to appeal in circumstances.

Jawwad Hassan, Additional Advocate-General, Punjab and Nizar Ahmad, Law Officer, Education Department, Rawalpindi for Petitioners (in both cases).

Respondents in Person (in both cases).

Date of hearing: 24th June, 2011.

2011 P L C (C.S.) 1352

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

Mst. FIRDOUS BATOOL

Versus

EXECUTIVE DISTRICT OFFICER and another

Civil Petition No.1992-L of 2010, decided on 22nd June, 2011.

(Against the judgment, dated 21-5-2010 passed by Punjab Service Tribunal, Lahore in S.A. No.1668 of 2009).

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

----Ss. 4 & 5---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Reduction in rank from post of Secondary School Teacher to Elementary School Teacher---Dispensing with regular enquiry---Dismissal of appeal. by Service Tribunal---Validity---Nature of allegation levelled against appellant required recording of evidence---Supreme Court set aside impugned judgment while observing that Authority, if desired, could hold a fresh inquiry against appellant within specified time.

Mian Muhammad Nawaz, Advocate Supreme Court for Petitioner.

Zaka ur Rehman, Additional Advocate-General for Respondents.

Date of hearing: 22nd June, 2011.

2011 P L C (C.S.) 1358

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

MUHAMMAD YAHYA KHAN KULACHI---Appellant

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE---Respondent

Civil Appeals Nos. 647 to 649 of 2006, decided on 28th April, 2011.

(On appeal from the judgment dated 10-1-2005 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in Service Appeals Nos.63 to 65 of 2001).

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 2005)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Civil Judge First Class---Adverse remarks in Annual Confidential Report (A.C.R.) recorded by Countersigning Officer (Judge of High Court), expunction of---Dismissal of appeal by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider inter alia whether objective criteria had been followed in recording such remarks by Countersigning Officer.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 2005)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Judicial Officer---Adverse remarks in Annual Confidential Report (A.C.R.) recorded by Countersigning Authority (Judge of High Court) without giving reasons therefor---Dismissal of appeal by Service Tribunal---Validity---Law had not imposed restriction on Countersigning Authority to give reasons for his assessment---Logic behind such omission to give reasons being to enable Countersigning Authority to make a transparent, independent and impartial assessment and give his opinion qua efficiency, performance, integrity and reputation of a Judicial Officer---Impugned remarks could not be brushed aside merely for absence of material in support thereof---Supreme Court dismissed the appeal---Principles.

According to the ACR Dossier of appellant and pursuant to key note instructions for its recording, the Countersigning Authority is not bound to give reasoning for his assessment. No such restriction has ever been laid down in any law that Countersigning Authority must give reasoning for his assessment. It is not an inadvertent omission, but on the contrary it is a deliberate omission and the logic behind it is that no restriction should be imposed on the Countersigning Authority enabling him to make a transparent, independent and impartial assessment and give his opinion qua efficiency, performance, integrity and reputation of a Judicial Officer. In the present case, adverse remarks were recorded by a Judge of the High Court, which cannot be set aside merely on the ground that no material whatsoever was available for recording such adverse remarks. The Judge of High Court is always well-conversant with the conduct, performance, reputation and integrity of a Judicial Officer and he could have various resources including judgment of Judicial Officer to make an independent assessment without any restriction and as may be deemed fit and proper. It is not necessary that every one must know about such resources or the material considered by a Judge of High Court while making such assessment. By no stretch of imagination, it can be imagined that Judge of High Court in the present case was not impartial or not dispassionate in evaluating the performance of a Judicial Officer while recording his ACRs. No mala fide whatsoever has been alleged against such Judge of High Court. Where Reporting Officer or Countersigning Officer has no personal motive or bias and they have evaluated performance of civil servant on the basis of their personal observation, information, same cannot be struck down merely on ground that they were not in a position to prove that adverse remarks recorded in A.C.R., were true. In such cases, approach should be that if no allegation is made against the Reporting or Countersigning Officer about mala fides and their own reputation is not clouded, their evaluation as to the performance of their subordinates is to be accepted.

Although all the civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according Sura 4, Verse 135 of Holy Quran.

Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight, but also be men of integrity and capable of holding the scales of justice even under all circumstances. Judicial Officers are expected to guard their reputation jealously and the Reporting Officers/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias.

An impartial and unambiguous evaluation based on credible information, personal observation and reports of the Inspection Judges falls with the ambit of an objective evaluation. In other words, an evaluation can be termed as objective if it is unambiguous, impartial, unbiased, result of careful consideration and is based on credible information, personal observation of the Reporting Officer or the Countersigning Officer and reports of the Inspection Judges and it not necessary that it must based on tangible material like complaints in writing, resolutions of Bar Associations, transfer applications and assets etc. The adverse remarks with regard to integrity of an officer are made on the basis of his reputation and if the same are required to be supported with tangible material and instances of corruption, then there will be no difference between an A.C.R., and an enquiry report under the Efficiency and Discipline Rules.

Since it is not a legal mandatory requirement to assign reasoning while recording adverse remarks, no case is made out and accordingly the appeal is dismissed.

Registrar Lahore High Court, Lahore v. Mukhtar Ahmad Gondal, Civil Judge 1st Class, Okara C.A. No.169 of 2003; Shabbir Hussain v. Lahore High Court 2004 PLC (CS) 236; F.Q. Matiullah Khan Alizai v. Chief Secretary 1994 SCMR 722; Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117; Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256 rel.

Mian Allah Nawaz, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Khadim Hussain Qaiser, Additional Advocate-General for Respondent (in all case).

Date of hearing: 28th April, 2011.

2011 P L C (C.S.) 1372

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

MUKHTAR AHMAD---Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE and others---Respondents

C.P. No. 2014-L of 2010, decided on 21st June, 2011.

(On appeal from the judgment dated 23-9-2010 of the Federal Service Tribunal, Lahore passed in Appeal No. 277(L)CS of 2002).

Service Tribunal Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art.212(3)---Appeal---Powers of Service Tribunal---Scope---Tribunal in absence of parties could not decide appeal on merit---Principles.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Riaz Ahmed DSP (Legal) for the Respondents.

Shahid Mobeen Additional A.-G. on Court's Call.

Date of hearing: 21st June, 2011.

2011 P L C (C.S.) 1382

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

DIVISIONAL FOREST OFFICER, KASUR and another

Versus

ZAHID ALI

Civil Petition No.1896-L of 2010, decided on 23rd June, 2011.

(On appeal from the judgment dated 19-7-2010 of the Punjab Service Tribunal, Lahore passed in Appeal No.725 of 2010).

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

----Ss. 4 & 5---Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan Art.212(3)---Recovery of Rs.1,08,740 imposed as penalty---Dispensing with inquiry---Waiver of such penalty by Service Tribunal---Validity---Keeping in view nature of allegations, Authority had not conducted regular enquiry---Authority had not given any plausible reason for waiving off inquiry---Supreme Court set aside impugned judgment while observing that the Authority, if desired, could hold de novo inquiry against appellant within specified time.

Ahmed Rauf, Additional Advocate-General for Petitioners.

Respondent in Person.

Date of hearing: 23rd June, 2011.

2011 P L C (C.S.) 1489

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui, Khilji Arif Hussain, Tariq Parvez and Amir Hani Muslim, JJ

REGARDING CORRUPTION IN HAJJ ARRANGEMENTS IN 2010: In the matter of

Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-D, 58118-K of 2010, 1291-K and 1292-K of 2011, decided on 29th July, 2011.

(a) Civil Service---

----Placing an officer as "Officer on Special Duty" (OSD) is tantamount to penalizing him because the expression "OSD" is not known to either the Civil Servants Act, 1973 or the Civil Servants Appointment, Promotion and Transfer Rules, 1973---No officer can be posted as OSD.

Estacode at Serial No.23 ref.

(b) Constitution of Pakistan---

----Arts. 5 & 190---Once a judicial order is passed, it has binding effect on the executive as well as judicial functionaries in terms of Arts. 5 and 190 of the Constitution.

(c) Civil Service---

----Civil servant issued notification in terms of order of the Supreme Court which act on his part was in discharge of his Constitutional commitment as required under Art.190 of the Constitution---Such officer could not be penalized on the ground that he issued the notification in violation of Rules---If said Officer was made OSD, that will not send a good message to the country.

(d) Constitution of Pakistan---

----Arts. 190, 189 & 184(3)---Civil service---Posting and transfer---Judicial review---Scope---Transfer and posting was the domain of the Executive Authority, however, in the present case, keeping in view the peculiar facts and circumstances, instead of passing orders by the Supreme Court itself, Supreme Court had sent the issue of transfer/reposting of a civil servant through Attorney General for Pakistan to the competent authority, but it did not work---Supreme Court, in circumstances, examined the administrative order in exercise of judicial review and passed orders of transfer/reposting and on compliance of said orders issued by the Supreme Court, competent civil servant issued the notification of transfer/reposting which had resulted in making the said civil servant (who issued the notification) as OSD, who had suffered for obeying the lawful order of the Supreme Court---Supreme Court observed that if such acts were allowed to continue, that will have serious impacts on the officials/authorities and will send message to them that if they comply with orders of Supreme Court, without seeking prior approval of the competent Authority, they will be posted out or they shall be proceeded against departmentally---Such situation will discourage upright, honest and committed officers as well, therefore, under such circumstances, Supreme Court could not leave such officers at the mercy of the Executive to deal with them in a manner they like---Executive had to exercise powers under the Rules but such discretion had to be exercised judiciously---Manner in which the civil servant who issued the notification in compliance to the Supreme Court order had been penalized there were strong reasons to believe that it was an act designed to frustrate the orders of the Supreme Court---Immediate reaction (making the said officer OSD) shown by the competent Authority was not called for, because the civil servant had obeyed the judicial order, which he was bound under the Constitution, and every authority in the country was bound to follow it---If any authority made a departure from any of the provisions of the Constitution, it was likely to lead to chaos in the country which may lead to serious consequences---Such an eventuality ought to be avoided by all persons in authority---Under the Constitution, if the Supreme Court passed orders, it should be complied with and no approval of any authority in executive was required for its implementation---Rules or even statutes, which were subordinate to the Constitution could not place bar on the authority of Supreme Court to seek the enforcement of its orders---Notification placing the said officer as OSD was not sustainable in law, however, it was the prerogative of the competent authority to post him at his previous post or give him any other assignment commensurate with his status, but not later than a period of seven days from the date of receipt of present order of the Supreme Court---If no order of his posting and transfer was passed on or before the stipulated period, the notification placing him as OSD shall cease to have effect and he shall be deemed to be at the post from where he was made as OSD until otherwise transferred and posted elsewhere by the competent authority.

Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Judiciary, including the High Courts and the Supreme Court, is bound to preserve the Constitution, as well as to enforce fundamental rights conferred by the Constitution either individually or collectively, in exercise of the jurisdiction conferred upon it under Arts.199 or 184(3) of the Constitution---Judicial restraint---Scope---One of the functions of the judicial functionaries is to decide the matters strictly in accordance with the Constitution and law---Courts are conscious of their jurisdiction and exercise the same with Judicial restraint, but such restraint cannot be exercised at the cost of rights of the citizens to deny justice to them---Scheme of the Constitution makes it obligatory on the part of superior courts to interpret Constitution, law and enforce fundamental rights---Ultimate arbiter is the Court which is the custodian of the Constitution---Supreme Court, in the present case, initiated proceedings to ensure that corruption and corrupt practices by which Hujjaj were looted and robbed had brought bad name to the country and on account of intervention of the Supreme Court some relief had been granted to the Hujjaj as the Government on directions of Supreme Court had paid SR 700 to each Haji---Supreme Court was initially not approached by the Hujjaj but the Parliamentarians themselves had approached the court and court through the Attorney-General for Pakistan had asked the Prime Minister to look into the matter which was of highly sensitive nature which indicated that instead of passing appropriate orders against anyone, Supreme Court, exercised restraint.

(f) Democratic system---

Sindh High Court Bar Association's

----Supreme Court observed that court is of the considered view that democratic system must prevail in the country and there shall be no extra-constitutional dispensation and the Judges of the superior courts were bound down not to take oath under any other dispensation.

case PLD 2009 SC 879 ref.

(g) Constitution of Pakistan---

----Art. 184 & Preamble---Judicial review by Supreme Court---Scope---Independence of judiciary---Scope---Supreme Court enjoys the jurisdiction of judicial review against administrative actions of the executive---Supreme Court is the final arbiter of disputes in order to maintain check and balance and for these reasons, the independence of judiciary has been guaranteed and the very Preamble of the Constitution provides that the "People of Pakistan and the independence of judiciary shall be fully secured"---Judiciary cannot compromise at any cost its independence, as guaranteed under the Constitution, as such compromises would lead the Nation to the situation of the last so many years.

Dr. Mubashir Hasan v. Federation of Pakistan PLD 2010 SC 265 ref.

(h) Constitution of Pakistan---

----Arts. 184, 4, 9, 14 & 25---Jurisdiction of Supreme Court under Art.184 of the Constitution---Scope---Judicial restraint---Cases of massive corruption---Enforcement of fundamental rights of citizens under Arts. 4, 9, 14 and 25 of the Constitution---Whenever Supreme Court will notice that there is corruption or corrupt practices, it would be very difficult to compromise or digest same because the public money of the country cannot be allowed to be looted by anyone whatsoever status he may have---Supreme Court always exercises such jurisdiction judiciously and with judicial restraint and by now parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same is well settled.

(i) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---If the administrative or executive action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.

Commissioner of Income Tax v. Mahindra AIR 1984 SC 1182 ref.

(j) Constitution of Pakistan---

----Art. 199 & 184(3)---Powers of High Court and Supreme Court under Arts.199 & 184(3) of the Constitution is categorized as 'power of judicial review'---Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution---With the expanding horizon of Articles of the Constitution dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the superior courts and can be validly scrutinized on the touchstone of the Constitutional mandate.

Common Cause, A Regd. Society v. Union of India AIR 1999 SC 2979; Union Carbide Corporation v. Union of India AIR 1992 SC 248 = 1991 SCR (1) Supl. 251; Vishaka v. State of Rajasthan AIR 1997 SC 3011 = (1997) 6 SCC 241; Vineet Narain v. Union of India AIR 1998 SC 889; Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374; Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200; Center for Pil v. Union of India Appeal arising out of SLP (C) No.24873 of 2010; Center for Pil v. Union of India Writ Petition (C ) No.348 of 2010; Radhy Shyam v. State of UP (Civil Appeal No. 3261 of 201; Nandini Sundar v. State of Chattisgarh Writ Petition (Civil) No.250 of 2007 and Bank of Punjab v. Haris Steel PLD 2010 SC 1109 ref.

(k) Constitution of Pakistan---

----Part III & Part VII---Parliament has to legislate the law and Constitution to confer jurisdiction upon the Supreme Court to interpret the same.

(l) Constitution of Pakistan---

----Arts. 184(3), 3 & 5---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Massive corruption in the Hajj arrangements for Hajj, 2010---Civil service---Transfer and posting is not within the domain of Supreme Court, but under exceptional circumstances and in exercise of the powers conferred on the Supreme Court by the Constitution to ensure that the money looted from Hujjaj is recovered and the persons/officials responsible for bringing bad name to the country were brought to book so that it may serve deterrent order of the nature are passed---In the present case, an officer was performing functions of investigation of the case independently, whereas the investigation of the case was conducted by him under the supervision of the Supreme Court and he was transferred to some other position, in such circumstances, his re-posting on the same assignment would in no way create problem---If such a straight forward and upright senior officer is penalized then it would amount to discouraging such officers, who would be obeying the orders of the Supreme Court---Such an act on the part of competent authority would be violative of Arts. 3 & 5(2) of the Constitution---Supreme Court directed that order passed by the court for reposting of the said officer shall be implemented in letter and spirit by the Government by adopting all appropriate measures to ensure that no sooner the said officer reports for duty, the investigation team working earlier with him will be provided to him and shall be extended all the facilities so that he could complete investigation of mega corruption in Hajj arrangements.

(m) Constitution of Pakistan---

----Arts. 3 & 184(3)---Civil service---Elimination of exploitation---State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to his work---Civil servant cannot be made OSD if the competent authority is not satisfied with his performance, though the authority has the power to order his transfer but he cannot be penalized.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533; Sajjad Ahmad Javed Bhatti v. Federation of Pakistan 2009 SCMR 1448; Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab 2006 SCMR 1360; Saleemullah Khan v. Federation of Pakistan 2004 SCMR 690; Syed Ajmal Hussain Bokhari v. Commissioner 1997 PLC (C.S.) 754; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Abid Hussain v. Ajaib Ali Shah Naqvi 2004 PLC (C.S.) 1036 and Gobardhan Lal v. State of UP 2000 (2) AWC 1515 = 2000 (87) FLR 658 ref.

(n) Discretion---

----Scope---Discretionary powers vesting in an authority are to be exercised judiciously and in reasonable manner---Authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly, evenly and justly.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Abid Hussain v. PIAC 2005 PLC (C.S.) 1117; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705 and Walayat Ali v. PIAC 1995 SCMR 650 ref.

(o) Statutory functionary---

----Decision making by such functionary---Scope---Held, it was an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function was entrusted to the subjective satisfaction of a statutory functionary, there was an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

Smt. Shalini Soni v. Union of India (1980) 4 SCC 544 ref.

(p) Constitution of Pakistan---

----Arts. 184(3) & 5(2)---Judicial review---Scope---Civil service---Transfers and postings---When a transfer is made contrary to the relevant rules and against the public interest and without allowing the officer to complete his tenure, the Court is empowered to examine such administrative action by applying the principle of judicial review---Civil servant who followed the dictates of Art.5(2) read with Art.190 of the Constitution by obeying order of the Supreme Court cannot be penalized by placing him as OSD on the ground that he violated Rules---However, placing his services against the same post where he has been made OSD or posting against any other position commensurate with his status is within the domain of the competent authority---Principles.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab 2006 SCMR 1360 ref.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan, Amanullah Kanrani, Advocate-General, Balochistan, M. Azam Khattak, Additional Advocate-General, Balochistan, Syed Arshad Hussain Shah, Additional Advocate-General KPK and Ch. Khadim Hussain Qaiser, Additional Advocate-General Punjab on Court notice.

Hafiz Sher Ali, JS, Hajj for M/o Religious Affairs.

Syed Tehseen Anwar Ali Shah, DG and Muhammad Azam, Director Law for FIA.

Date of hearing: 29th July, 2011.

2011 P L C (C.S.) 1575

[Supreme Court of Pakistan]

Present: Javed Iqbal, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

SECRETARY TO GOVERNMENT OF PUNJAB, AGRICULTURE DEPARTMENT LAHORE and another

Versus

FAIZ AHMAD DOGAR

Civil Appeal No. 115 of 2006, decided on 26th November, 2010.

(On appeal from the judgment dated 30-5-2005 passed by the Punjab Service Tribunal, Lahore in Appeal No 306 of 2005).

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

----R. 9(2)---Constitution of Pakistan, Art. 212---Leave to appeal was granted by Supreme Court to consider the contention of Authorities that in view of policy formulated by Government of Punjab, Service and General Administration Department (Regulation Wing) on 19-4-2003, the respondent could not claim pro forma promotion from back date particularly when no other officer junior to him was promoted as Horticultural Officer of Agriculture Department.

Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi Academy of Administrative, Training Walton, Lahore and others 2003 PLC (C.S.) 212 and Rizwan Ashraf v. Capital Development Authority through its Chairman, Islamabad and another 2004 PLC (C.S.) 724 ref.

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

----R. 9(2)---Pro forma promotion---Scope---Departmental Promotion Committee---Convening of meeting---Principle---Predecessor of civil servant stood retired on 9-1-2003 and after completion of necessary formalities the promotion case of civil servant was placed before Departmental Promotion Committee in its meeting held on 6-7-2004 when civil servant was promoted---Service Tribunal allowed the appeal filed by civil servant and he was given pro forma promotion from back date---Validity---Delay had occurred in convening the meeting of Departmental Promotion Committee and convening of meeting could not be called so frequently because consideration for promotion did not involve only the question of seniority but competence, rectitude and antecedent and examination of official record as promotion could not be made in a mechanical manner hence no time limit could be imposed for convening the meeting of Departmental Promotion Committee, which should be held within a reasonable time---Supreme Court directed that 6-7-2004 would be considered as date of promotion of civil servant and set aside the judgment passed by Service Tribunal---Appeal was allowed.

Government of the Punjab v. Muhammad Awais Shahid 1991 SCMR 696 and Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 rel.

Saeed Yousaf Khan, Additional Advocate-General for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2010.

2011 P L C (C.S.) 1640

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui JJ

PAKISTAN RED CRESCENT SOCIETY, PUNJAB PROVINCIAL BRANCH

Versus

ZIA ULLAH KHAN NIAZI

Civil Appeal No. 314-L of 2010, decided on 19th July, 2011.

(On appeal from the judgment dated 30-12-2009 passed by the Federal Service Tribunal, Lahore in Appeal No.120(L)CE of 2005).

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

----S.10---Pakistan Red Crescent Society Act (XV of 1920), S.4---Service Tribunals Act (LXX of 1973), S.4---Appeal---Maintainability---Employee of Pakistan Red Crescent Society---Jurisdiction of Service Tribunal---Determination---Phrase "in accordance with law"---Applicability---Case was remanded to Service Tribunal for decision afresh in accordance with law and Service Tribunal without determining the question of jurisdiction reinstated the employee in service---Validity---Service Tribunal passed the judgment merely because Supreme Court had remanded the case to it for deciding it "in accordance with law" and misdirected itself in deciding the question of jurisdiction---Employee was not a civil servant who could agitate his grievance by way of appeal before Service Tribunal---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society 2004 SCMR 189; Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806; Sajjad Hussain Bukhari v. Treasurer of Charitable Endowment for Pakistan 2005 SCMR 65; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484 and Chairman State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 rel.

Sh. Shahid Waheed, Advocate Supreme Court for Appellant.

M. Hanif Khan Niazi, Advocate Supreme Court for Respondent.

Date of hearing: 19th July, 2011.

2011 PLC (C.S.) 90

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani, C.J. and Ch. Muhammad Ibrahim Zia, J

Kh. MANZOOR QADIR

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 5 others

Civil Appeal No.60 of 2010, decided on 4th May, 2010.

(On appeal from the judgment of the High Court, dated 23-12-2009 in Writ Petition No.592 of 2009).

Earthquake Reconstruction and Rehabilitation Authority Employees' Service Regulations, 2007---

----Reglns 10, 11 & 12---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appointment on contract basis---Abolition of post---Termination of service---Appointment of appellant as Deputy Director (Legal) was on contract basis and his services were liable to be terminated on, one month's notice or one month's pay in lieu thereof,--Appellant in circumstances was not holding a post on permanent basis or appointed on regular basis---Post of Deputy Director (Legal) was abolished and services of appellant were terminated due to downsizing of financial volume of project and other administrative decision---Writ petition filed by appellant against termination of his service had been dismissed by the High Court---Validity---Appellant had claimed that acts of abolition of post of Deputy Director (Legal) and termination of his service, were invalid---Appellant was appointed after interview and he joined the service without any reservation or objection with regard to terns and conditions of his appointment---Rules on the subject lucidly spoke that retention of contract employees was subject to availability of posts and necessity of the employer---If employer no more required service of contract employee, he could terminate services on one month's notice---Such condition was specifically mentioned in the appointment order of the appellant and appellant had not objected to the imposition of that conditions, rather had accepted the same---Appellant, in circumstances had failed to make out any case to bring his grievance within the scope of extraordinary writ jurisdiction---High Court had rightly observed that contractual obligations could not be enforced in exercise of writ jurisdiction---Appellant neither could point out violation of law nor could prove mala fide or malice on part of the respondent---In absence of any infirmity in the impugned judgment of High Court, his appeal before Supreme Court, was dismissed.

?

2007 SCR 243; 1992 SCR 381; PLD 2004 SC (AJ&K) 30; 2007 SCR 243 and PLD 1998 SC(AJ&K) 7 ref.

Raja Muhammad Hanif Khan for Appellant.

Syed Nazir Hussain Shah Kazmi for Respondents.

Date of hearing: 29th April, 2010.