PLCCS 2013 Judgments

2013 P L C (C.S.) 1011

[AJ&K Subordinate Judiciary Service Tribunal]

Before Munir Ahmed Chaudhary, Chairman

ABDUL RAHIM ZUBAIR BUTT

Versus

COMPETENT AUTHORITY and 8 others

Civil Appeal No.2 of 2011, decided on 22nd April, 2013.

(a) Azad Jammu and Kashmir Subordinate Judiciary Service Tribunal Act---

----S. 4---Azad Jammu Kashmir Removal from Service (Special Powers) Act, 2001, Ss.3, 5, 9 & 12---Limitation Act (IX of 1908), S.14---Appeal before Service Tribunal---Removal from service---Judicial Officer---Charge against appellant to have made telephone call to Chief Justice of High Court while impersonating to be an Army General in order to pressurize Chief Justice to get order of his transfer cancelled---Imposition of such penalty by Chief Justice while concurring with findings of Inquiry Committee---Reinstatement of appellant by Prime Minister after accepting his representation---Refusal of Judges of High Court to accept joining report of appellant---Dismissal of appellant's petition for leave to appeal by Supreme Court---Appeal to Service Tribunal---Delay of 132 days, condonation of---Appellant's plea that he had approached Prime Minister and Supreme Court at advice of his legal experts/advocates, thus, time consumed in pursuing such remedies was excludable from period of limitation prescribed for filing appeal before Tribunal---Validity---Supreme Court in its order had observed that refusal of Judges of High Court to accept joining report of petitioner was an administrative order not having been passed in a case or judicial proceedings, thus, same was not appealable before Supreme Court; that such refusal of High Court was continuation of order of removal from service; and that Prime Minister was not competent to entertain representation in case of employee of a court---Supreme Court had observed that appellant had approached wrong forums not competent to hear his case---Appellant had approached after 132 days of passing of order of his removal from service by Chief Justice---Advice of an expert counsel could not regarded as a sufficient cause for condonation of delay---Time consumed by appellant in approaching wrong forums could not be excluded from prescribed period of limitation---Appellant had failed to show any reliable cause for such delay---Service Tribunal dismissed appeal for being time barred.

AIR 1963 SC 1719; PLD 1964 SC 64; PLD 1966 Lah. 1112; PLD 1967 Lah. 1112; AIR 1970 SC 2086; AIR 1971 SC 22; AIR 1973 SC 207; PLD 1975 AJ&K 131; 1976 SCMR 79(B); PLD 1986 SC (AJ&K) 110; 1989 CLC 905; 1990 PLC (C.S.) 598; 1992 SCR 370; 2000 YLR 1891; 2002 SCMR 81-B; PLD 2006 SC (AJ&K) 43-D; 2007 PLC (C.S.) 870(C); 2008 PLC (C.S.) 79; KLR 2008 (L&S) 212; 2010 SCR 131; 1998 MLD 416 and 2001 CLC 946 ref.

1998 MLD 416; 1992 SCR 214; 1992 SCR 98-292; 2001 CLC 946 and Agha Inam-ur-Rehman Khan v. Registrar, Lahore High Court Lahore 2013 SCMR 109 rel.

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

----S. 5(1)---Disciplinary proceedings---Communication of statement of allegations to employee by competent authority---Not a requirement of law.

Muhammad Ashraf Qureshi Vs. Competent Authority and others Civil Appeal No.10 of 2010 rel.

Kh. Muhammad Nasim for Appellant.

Muhammad Yaqoob Khan Mughal for Respondents Nos. 1 to 7.

Nemo for respondents Nos. 8 and 9.

2013 P L C (C.S.) 380

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

Capt. (Retd.) MUKHTAR AHMED SHAIKH

Versus

FEDERAL GOVERNMENT OF PAKISTAN

Shariat Petition No.14/I of 2009, decided on 16th October, 2012.

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

----S. 18---Revised Leave Rules, 1980, Rr.3 & 5---Constitution of Pakistan, Art.203-D---Petitioner had challenged Revised Leave Rules, 1980 being repugnant to the Injunctions of Islam---Government servant was entitled to avail the leave, but it would depend upon the exigencies of service, and the discretion to grant leave would rest with the competent authority---Leave could be refused, or revoked in the interest and in exigencies of public service, which was not in contravention of Islamic Teaching---Government servant was paid reasonable remuneration in return for his service, but the leave could not be claimed as of right---Leave preparatory to retirement being a kind of leave, could not be availed by a government servant at his own will, but it would be granted by the department keeping in view the requirement and exigencies of public service---In view of the provisions of Act of Parliament and Fundamental Rules, and nature of leave to be in consonance with public service requirement and exigencies, the regulatory frame of leave including leave preparatory to retirement, was not in contravention of the Teaching of Islam, in circumstances---Petitioner had no observation against R.3 of Revised Leave Rules, 1980, but it was against R.5 as he had pleaded for encashment/availing entire earned leave on full pay, without any maximum limit/restriction---Such a plea basically would eliminate the very basis for classification of leave into different types, and would turn the leave into one type i.e. earned one only which would cut at the very root of the concept of 'earning leave' on the basis of actual period of duty during which service was rendered, which qualified for earning the leave at a certain rate---Such would be turned into a sort of add-on to the salary at that rate and very concept, structure and purpose of leave would be affected---Petitioner had not referred to any text of Holy Quran and Sunnah of Prophet (p.b.u.h.) in support of such a proposal for doing away with the very concept, structure and purpose of leave, in the prescribed manner---Petition was dismissed.

Mishkat and Ibn-e-Maja ref.

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

----S. 18---Revised Leave Rules, 1980, Rr.16, 17, 19 & 31---Constitution of Pakistan, Art.203-D---Plea against limit on leave preparatory to retirement and its encashment, had the potential to discourage the government employee from availing of leave, during service, for a break from work to attend to psychological and healthy requirements for his ownself and his family, besides attending to other social commitments etc.---Keeping in view the present economic considerations, employee would try his utmost, not to avail any leave during service and save it---Such might even encourage some manipulation in that regard---Whereas, the purpose and design of leave structure and its classification, particularly with its paid element, would attempt to encourage the employees to avail of the leave in that regard---Plea that encashment be allowed any time at the discretion of the employee, specifically on Eids for Muslims and on religious festivals of non-Muslims, had the negative potential, in addition to that, it would convert the "Leave encashment" into a sort of bonus, on add-on to the salary, besides taking away the leave granting authority of the department, who had to take care of exigencies of service and public interest while looking after employee's individual interest---Rule 19 of the Revised Leave Rules, 1980, in fact, provided a welfare package for a government servant, who died during service---Plea, that all leave in the account of the government employee, should not lapse, in all cases, including dismissal, removal, termination, resignation, retirement, invalidation on medical grounds and in-service death, and he should be paid in lieu of all such leave, was without any sound reasoning---Concept of leave should not be considered in isolation, it was an important part of service system, which was intricately integrated with the other components of the service system---One of the most important aspect of systems of leave management, touched intimately on the administrative and disciplinary aspects---Government had the right and authority to make Rules governing the effective management of service---No fundamental right was violated and it appeared that there was no discrimination---Petition was dismissed.

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

----S. 18---Fundamental Rules, R.67---Constitution of Pakistan, Art.203-D---Government servant was entitled to avail his leave, but it would depend upon the exigencies of service; and the discretion to grant leave rested with the competent authority---Encashment of leave preparatory to retirement, was part of the retirement benefits also---Leave could be refused or revoked in the interest and in exigencies of public service---Wisdom behind not allowing the entire amount of the leave accumulated during the entire service i.e. four days per month for each month of effective service, was that the employees were encouraged to proceed on leave and not to ignore their personal/private and family matters; it was part of the objective of maintaining socio psychological balance of the employee with his office/work engagements, through spells/breaks of rest and recreation while attending to his personal and family matters also---No application/petition from general or any class of government servants was on record to become party to the present petition---Petitioner himself also did not seem to be interested, who inspite of service, had absented himself on the various dates---Petition was dismissed.

Nemo for Petitioner.

Nemo for the State.

Nemo for Federal Government.

Date of hearing: 16th October, 2012.

2013 P L C (C.S.) 533

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

MAQBOOL AHMAD QURESHI

Versus

GOVERNMENT OF PAKISTAN through Secretary, Law and Justice, Islamabad and 4 others

Shariat Miscellaneous Application No.7/I of 2012, decided on 30th October, 2012.

Civil Servants Act (LXXI of 1973)---

----S. 17, Proviso (II)---Balochistan Civil Servants Act (IX of 1974), S.17, Proviso (II)---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.17, Proviso (II)---Punjab Civil Servants Act (VIII of 1974), S.16, Proviso (II)---Sindh Civil Servants Act (XIV of 1973), S.18, Proviso (II)---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Petitioner had stated that Proviso (II) of S.17 of Civil Servants Act, 1973, Proviso (II) of S.17 of Balochistan Civil Servant Act, 1974, Proviso (II) of S.17 of North-West Fronteir Province Civil Servants Act, 1973, Proviso (II) of S.16 of Punjab Civil Servants Act, 1974 and Proviso (II) of S.18 of Sindh Civil Servants Act, 1973 of law were being misused as reinstatement took lot of time, and beneficiaries of such decisions were being favoured with arrears of pay without any justification as a burden on the National Exchequer; that said provisions of law did not provide for automatic grant of arrears of intervening period between dismissal/removal/ reduction in rank, and restoration to the original position, but the authority vested under the law to make such an order, depending upon law, facts and circumstances could determine, questions relating to reinstatement etc., including restoration of original position in seniority, cadre, and post, treatment of intervening period as duty or leave and its kind e.g., extraordinary leave/without pay---Validity---No pertinent 'Nass' of Holy Quran and the Sunnah of the Holy Prophet (PBUH), having been quoted by the petitioner in support of his assertion/plea, petition was dismissed by the Federal Shariat Court.

Ayah 188 of Surah Baqrah (2-188) rel.

Petitioner in person.

2013 P L C (C.S.) 549

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

Ch. IRSHAD AHMAD

Versus

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

Shariat Petition No.53/I of 1991, decided on 16th October, 2012.

Revised Leave Rules, 1980---

----R. 16(3)--- Constitution of Pakistan, Art.203-DD--- Repugnancy to Injunctions of Islam---Voluntary retirement---Entitlement to leave preparatory to retirement---Petitioner had challenged Sub-Rule (3) of R.16 of the Revised Leave Rules, 1980 on the ground that it discriminated between civil servants of different grades and it had deprived a group or a class of civil servants of the rights, which were available to the other group of civil servants and that said Rule was repugnant of the Injunctions of Islam---Validity---Sub-Rule (3) of R.16 of the Revised Leave Rules, 1980 had provided that officer of BPS-21 to 22, who opted to retire voluntarily after completing twenty-five years of service, could be granted leave preparatory to retirement equal to entire leave at his credit in leave account on full pay or till the date on which he completed the sixtieth year of his age, which ever was earlier---Government had brought in a scheme, in 1991 under which employees in Grade 21 to 22 were given the option to choose to retire before the date of their superannuation with certain incentive in the form of encashment of leave at credit in the prescribed manner---Government had the power to make Rules in respect of different categories and classes of employees and departments---Government, in circumstances had acted within its powers in the case---Revised Leave Rules, 1980 were still in force throughout Pakistan and in all the Provinces, along with all the relevant amendments which had come in the meantime in the system of Leave Rules---No apparent violation of any rule, and any inconvenience or infringement of any rights of employees was found---Impugned R.16(3) of the Revised Leave Rules, 1980 did not create any discrimination---Voluntary option had been given to certain higher grades of civil servants, as a Policy/Scheme to choose voluntarily for retirement, on or before completion of very substantial portion of their service i.e. 25 years in order to create room for younger/junior lot to make to those position which could also be used to maintain and improve levels of efficiency at management and senior levels of policy and decision making.

Pakistan v. Public-at-Large PLD 1987 SC 304; SSM No.263A 83 and PLD 1984 FSC 34 and 1987 SC 304 ref.

Nemo for Petitioner.

Nemo for the State.

Nemo for Federation of Pakistan.

Date of hearing: 16th October, 2012.

2013 P L C (C.S.) 1491

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

Professor KAZIM HUSSAIN and others

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others

Shariat Petitions Nos.8/I of 2004 linked with 6/I, 8/I, 12/I and 69/I of 1994, decided on 12th December, 2012.

(a) Constitution of Pakistan---

----Art. 203-D(1)---Federal Shariat Court---Jurisdiction---Jurisdiction conferred on Federal Shariat Court by the Constitution is confined only to Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (may peace be upon him) and no other consideration or extraneous circumstance has any bearing on its judgments in Shariat petitions.

(b) Islamic jurisprudence---

---Equality before law---Hallmark of Islamic Injunctions is principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed and there is no concept of discrimination in administration of justice between one person and another on any basis---No human being can be denied or deprived of any fundamental right, in social and legal perspectives, nor any judicial right can be reserved for any particular group on external consideration of his wealth, status, caste, colour or any other ground---Equality before law and equal protection of law is the cardinal principle, which runs like golden chord in all Injunctions of Islam.

Holy Quran, Verses 4:1 rel.

(c) Interpretation of statutes---

----Rules under a statute and Office Memorandums---Object, purpose and scope---Rules made in pursuance of delegated authority must be consistent with statute under which they came to be made---Authority is delegated only to the end that provisions of statute may be better carried into effect and not with the view of neutralizing or contradicting those provisions---Purpose of framing Office Memorandums/Rules is just to facilitate and provide for procedural matters which are subsidiary to the provisions of Act itself---If rules framed under statutes or bye-laws framed under rules, are in excess of provisions of the statute or are in contravention of or inconsistent with such provisions, then such provisions/rules etc. must be regarded as ultra vires the statute and cannot be given effect to.

(d) Constitution of Pakistan---

----Art. 203-D---Office Memorandums No. R.2(3)/03, dated 31-7-2004, Ministry of Housing and Works, F-5(17)/Gaz-Imp(i)/73, dated 20-11-1974 & F.2(1)-R5/91, dated 25-8-1991, Ministry of Finance Division---Repugnancy to Injunctions of Islam---House rent allowance to husband and wife---Entitlement---Petitioners were civil servants and their grievance was that when both husband and wife were civil servants they both were entitled to house rent individually and not only to one out of the two---Validity---Marriage was not a disqualification nor an offence and therefore, civil servant after getting married should not be penalized or deprived of his / her due house rent---Both spouses were entitled to get conveyance allowance even if they were working at same station and same place and same logic applied to house rent as well---Office memorandum/rule to the extent of depriving of house rent allowance to one of the spouses who were civil servants and one of whom was allotted government accommodation, was repugnant to the Injunctions of Islam---Federal Shariat Court, in view of Art.203-D(3) of the Constitution, directed Federal Government, as well as the Provincial Governments of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa and relevant autonomous bodies and institutions including universities, to take necessary steps to amend office memorandums/rules so as to bring the same in conformity with Injunctions of Islam---Petition was allowed accordingly.

Kowkab Iqbal for Petitioners.

Shabbir Mehmood Malik, Standing Counsel-II and Abdul Ghaffar, S.O. M/o Finance, Islamabad for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. A.-G., M. Javed Ali, District Accounts Officer, Finance Department, Punjab and Habib-ur-Rehman, S.O. Judicial-II, Home Department, Lahore for Government of the Punjab.

Muhammad Qasim Mirjat, Addl. A.-G. for Government of Sindh.

Aziz-ur-Rehman and Amanat Ullah, S.O., Finance Department Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.

Azam Khan Khattak, Addl. A.-G. for Government of Balochistan.

Barrister Feroze Jamal Shah Kakakhel as Amicus Curiae.

Date of hearing: 19th June, 2012.

2013 P L C (C.S.) 50

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD SHARIF AWAN

Versus

AZAD GOVERNMENT through Chief Secretary, AJ&K, Muzaffarabad and 3 others

Writ Petition No.106 of 2012, decided on 18th April, 2012.

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

----R. 17---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1979), S.44---Writ petition---Induction of temporary and contract employees on permanent basis---Petitioner who was Assistant in Prime Minister Secretariat and claimed himself to be an elected President of Central non-gazetted Civil Servants (Regd.) Association, had stated that summaries of different Committees regarding temporary and contract employees for their induction on permanent basis, which were forwarded to the Prime Minister for approval was accorded---Petitioner had averred that the authorities were duty bound to issue notification on the basis of said approval and alleged that authorities had advertised certain posts for induction on permanent basis through the impugned proclamation against the approval of the Prime Minister---Petitioner asserted that it was binding obligation of the authorities to notify the order of Prime Minister---Impugned proclamation had revealed that the posts were advertised by the authorities on the basis of consolidated judgment of High Court, to be filled in after adopting due process of law---Petitioner, otherwise was not an aggrieved party within the meaning of S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, as neither any of his right was violated nor threatened---Contention of counsel for the petitioner that order of Supreme Court having been violated by the authorities , the petitioner being President of Non-gazetted Employees Association could invoke the jurisdiction of High Court, was misconceived as in case of any violation of command of Supreme Court, petitioner could move the court through fresh writ petition as a pro bono publico about a cause which was already decided by High Court---Petitioner could not be considered as an aggrieved person for issuance of writ of certiorari for the reason that he was neither candidate or applied nor held any of the disputed posts on contract or temporary basis duly advertised through the impugned proclamation---Petitioner had no locus standi to file the writ petition from the claimed angle which looked to be frivolous one in the given eventualities---Writ petition having no substance was dismissed by High Court.

Mst. Tanveer Ashraf and 25 others v. Azad Government and 2 others 2011 SCR 528; Raja Iqbal Rashid Minhas v. Azad Jammu and Kashmir Council and 3 others PLD 2002 SC (AJ&K) 1 and Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan PLD 1964 (W.P.) Lah. 138 rel.

Mushtaq Ahmed Janjua for petitioner.

Ch. Shoukat Aziz, A.A.-G. for Respondents.

2013 P L C (C.S.) 117

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MEHVISH NAZIR

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 5 others

Writ Petition No.39 of 2012, decided on 6th April, 2012.

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

----S. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Transfer of employee---Petitioner was appointed as Computer Instructor, B-17 on contract basis in the College at place 'S' on recommendation of respective Selection Committee; later on she was posted in college at place 'K'---Through impugned order employee was sent back to her original post in college at place 'S'---Validity---Appointment of petitioner was non-transferable according to one of the conditions of her appointment order; she, in circumstances, was posted in the college at place 'K' by violation of her appointment order as according to Contract Policy, contract appointment was non-transferable---Petitioner having obtained her posting from college at place 'S' to college at place 'K' in violation of said Contract Appointment Policy, and accepted conditions of her appointment order, unlawful order could not be protected through writ jurisdiction---Writ petition was dismissed in circumstances.

Major Muhammad Aftab Ahmed (Rtd.) v. Azad Jammu and Kashmir Government 1993 SCR 307 rel.

Raja Muhammad Arif Rathore for Petitioner.

Mir Sharafat Hussain and Maqsood Ahmed Sulehria for Respondents.

2013 P L C (C.S.) 171

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUDASSAR MANZOOR QURESHI and 19 others

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Secretary Education, Azad Jammu and Kashmir, Muzaffarabad and 3 others

Writ Petition No.231 of 2006, decided on 11th April, 2012.

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

----O. XXIII, R.1---Withdrawal of suit---Scope---Plaintiff at any time after the institution of a suit, could withdraw his suit or abandon part of his claim against all or any of the defendants, when the court was satisfied; (a) that a suit must fail due to some formal defect; or (b) that there were other sufficient grounds to allow the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim---Unless no proper prayer for permission to bring a fresh suit was made, the plaintiff was precluded from instituting any fresh suit in respect of same subject matter or part of it---In order to bring a fresh suit in respect of the subject of dispute, permission of the court was a condition precedent---Court was enjoined upon to accord such permission on the satisfaction that the suit under consideration would fail due to some formal defect, or withdrawal of the suit was justified in the light of the circumstances placed before the court.

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

----S. 44---Writ petition, withdrawal of---Petitioners had failed to point out any formal defect in writ petition already filed; and ex facie the application filed for withdrawal of writ petition, looked to be mala fide for prolonging litigation on the basis of stay order---Application of withdrawal of writ petition was rejected and petition was dismissed.

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

----Ss. 4 & 23---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.16, 17 & 23---Appointment---Ad hoc appointment---Scope and procedure---No appointment could be commended without advertisement and recommendation of Public Service Commission---Service in Azad Jammu and Kashmir was regulated by an Act of the Assembly, which had been promulgated on the strength of S.49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976, had postulated that the appointment against a civil post in connection with the affairs of the Government, would be made in the prescribed manner by the Government or by a person authorized by it in that behalf in the prescribed manner---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, had prescribed the method and manner of appointment to the post in various grades---Rules 16 & 17 of said Rules had prescribed the manner for initial appointment to the posts in grade 16 and R.23 of said Rules postulated the manner of making ad hoc appointments---Even ad hoc appointment could not be made in an arbitrary manner---First condition for making an ad hoc appointment, was that 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---Such appointment was subject to further condition listed in Sub-Rules (1) to (5) of R.23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---Said conditions were mandatory and could not be ignored at the time of making ad hoc appointment---Ad hoc appointment would not confer any right to the persons so appointed in the matter of regular appointment for the same post, nor the service would be counted towards seniority in the grade.

Dr. Naveeda Tofail and others v. Government of Punjab and others 2003 SCMR 291; Secondary (Schools) Government of Punjab Education Department v. Yasmeen Bano 2010 SCMR 739; Irshad Ahmed and 16 others v. Secretary M/o Education Writ Petition No.2010 of 2006 on 2-4.2008; Muhammad Anwar Khan v. Azad Government and others Writ Petition No.10 of 2011 on 6-6-2002; 2012 PLC (C.S.) 1456; Muhammad Bilal Khan's case 2010 PLC (C.S.) 1060 and Mst. Tanveer Ashraf and 25 others v. Azad Government Jammu and Kashmir and 2 others 2012 PLC (C.S.) 524 distinguished

Mst. Tanveer Ashraf and 25 others v. Azad Jammu and Kashmir Government and 2 others 2011 SCR 528 and Hussain Khan and 57 others v. Azad Government and 9 others dated 18-11-2011 rel.

Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Sheikh Manzoor Ahmed v. Azad Government and others 1995 PLC (C.S.) 59 and Mst. Tanveer Ashraf and 25 others v. Azad Jammu and Kashmir Government and 2 others 2011 SCR 528 rel.

Sadaqat Hussain Raja for Petitioners.

Mir Sharafat Hussain for Respondents.

2013 P L C (C.S.) 295

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

MUHAMMAD ZAHID and 29 others

Versus

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

Writ Petition No.949 of 2012, decided on 11th July, 2012.

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

----S. 44---Writ petition---Civil service---Appointment---Petitioners competed for appointment against the post of their respective unit and were recommended by the Public Service Commission, but the Board of Revenue had not issued appointment orders of the petitioners in the light of recommendation of Public Service Commission; and instead deputed the petitioner for training for a period of one year---Petitioners who had been recommended by the Public Service Commission for permanent posting against the declared posts, they were liable to be appointed as such by the competent authority, thereafter they should have been deputed for training, and if the training was not completed by the petitioners, then their confirmation could be refused---Where the Legislature had intended that before the permanent appointment the candidates would be selected for the training, then their appointment could not be deferred till the completion of the training---Authorities were directed to issue formal notification of the appointment of the petitioners, and thereafter they would be deputed for training.

(b) Administration of justice---

----Party could not be penalized for the act of the Authority.

PLD 1994 Lah. 3 rel.

Barrister Humayun Nawaz Khan for Petitioners.

Ch. Shaukat Aziz, Addl. A.-G. for Respondents.

Date of hearing: 11th July, 2012.

2013 P L C (C.S.) 668

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD FAAZAL HASHMI

Versus

FINANCE DEPARTMENT OF AZAD JAMMU AND KASHMIR through Secretary and 2 others

Writ Petition No.1152 of 2011, decided on 14th February, 2013.

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

----Ss. 4(15) & 44---Writ petition---Retired Registrar (BPS-20) of Supreme Court---Application for grant of additional pension equal to admissible pre-retirement Orderly Allowance---Refusal of Government to give such allowance to petitioner for not being an officer of Civil Secretariat---Validity---According to the Constitution, all State-subjects for being equal before law would be entitled to equal protection of law---Executive order would be arbitrary, if same discriminated amongst certain classes and was not founded upon reasonable grounds---Notification dated 19-6-1997 issued by Finance Department giving such allowance to officers in BPS-20 or above working only in Civil Secretariat did not show as to why preferential treatment had been given to them---Such allowance having been granted to petitioner during his service could not be denied after his retirement---High Court accepted constitutional petition in circumstances.

Azad Government and another v. Abdul Kabir Qureshi and others 1994 SCR 402 and I.A. Sharwani and others v. Government of Pakistan through Finance Division, Islamabad and others 1991 SCMR 1041 ref.

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

----S. 4(15)---Equality before law---Scope---Executive order would be arbitrary, if same discriminated among certain classes and was not founded upon reasonable grounds.

Asghar Ali Malik for Petitioner.

Sardar M.R. Khan, A.A.-G. for Respondents.

2013 P L C (C.S.) 678

[High Court (AJ&K)]

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

MUHAMMAD ASIF KHAN and others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary AJ&K Muzaffarabad and others

Writ Petitions Nos.700 of 2011, 1388, 1452 of 2012, decided on 3rd September, 2012.

(a) Civil service---

----Contract employee's claim for his absorption on permanent basis---Validity---Such employee after having given consent for his appointment on contract basis could not claim his regular induction due to principle of acquiescence---Illustration.

(b) Police Rules, 1934---

----Ch. II, R.2.9(4) & (5) [as added by Azad Jammu and Kashmir Government through Notification dated 9-3-2010]---Police Act (V of 1861), S.46---Addition of sub-rules (4) & (5) to R.2.29 of Police Rules, 1934 for establishment of additional Police---Validity---Government had vast powers under S.46 of Police Act, 1861 to promulgate rules---Such added provisions were neither contrary to Azad Jammu and Kashmir Interim Constitution Act, 1974 or its parent Act, 1861 nor harsh nor unreasonable.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Tara Chand and others v. Karachi Water and Sewerage Board Karachi and others 2005 SCMR 499; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; Muhammad Aftab Khan v. District Education Officer and 2 others 2001 P LC (C.S.) 28; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155; Asif Gulab v. Azad Government of State Jammu and Kashmir through its Chief Secretary Muzaffarabad and 3 others 2011 PLC (C.S.) 1402; Mst. Tanveer Ashraf and 25 others v. AJ&K sGovernment and 2 others 2012 PLC (C.S.) 524 and Shakoor Bashir and others v. Azad Government and others in Civil Appeal No.35 of 2010 ref.

Syed Saleem Hussain Kazmi v. Azad Government and 4 others 2005 SCR 259 rel.

Sadaqat Hussain Raja for Petitioners.

Ch. Shaukat Aziz, Addl. A.-G. Raja Aftab Ahmed Khan, Legal Advisor and Raja Ghulam Sarwar Khan for Respondents.

2013 P L C (C.S.) 701

[High Court (AJ&K)]

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

ASIM MAHMOOD and 4 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad and 7 others

Writ Petition No.1784 of 2012, decided on 25th September, 2012.

Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990---

----Rr. 5 & 25---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Appointment---Rule regarding appointment and conditions of service, challenged on the ground of being without lawful authority and ultra vires of the Constitution---Impugned Rule and advertisement, which were bone of litigation between the parties, had already been challenged before the High Court in writ petition, which were decided by the High Court to the effect that impugned Rules and advertisement were violative of quota---High Court had directed that competent authority would make provisions for adapting quota regarding appointments through initial recruitment---Counsel for the petitioners had conceded that against said earlier judgment, a petition for leave to appeal was filed before the Supreme Court which was also dismissed---Solicited relief having already been extended to the petitioners for adapting quota, and same was being followed in all other Government departments for initial recruitment, and its strict adherence had also been commanded, present writ petition, was not maintainable, in circumstances.

Umar Hayyat v. Azad Government and 3 others 1999 PLC (C.S.) 93; Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341; Azizur Rahman Chowdhury v. M. Nasiruddin and 5 others PLD 1965 SC 236; Robkar Adalat v. Sarfraz Alam Assistant Town Planner Mirpur Dev. Authority, Mirpur 1996 MLD 1752; Chief Secretary/Referring Authority Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95; Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Development Authority Muzaffarabad and another v. Shahid Qureshi and 7 others 2004 SCR 80 and Shaukat Hussain Gillani v. Abdul Rehman Abbasi and 2 others 1992 PLC (C.S.) 468 ref.

Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180 rel.

Raja Sajjad Ahmed Khan for Petitioners.

Sardar Abdul Sami Khan and Mushtaq Ahmed Janujua for Respondents.

2013 P L C (C.S.) 848

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Syed SIBTUL HASSAN SABZWARI and others

Versus

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

Writ Petitions Nos.248 of 2009 and 68 of 2013, decided on 30th January, 2013.

(a) Civil service---

----Appointment---Contract appointment for fixed period or till completion of project---Effect---Such contract would not be taken as commitment made by authority to regularize services of contract employee---Illustration.

Waqas Latif and 3 others v. Azad Government and 6 others Civil Appeal No.67 of 2012; Mst. Tanveer Ashraf and 25 others v. Azad Government and 2 others 2011 SCR 528 and Major Muhammad Aftab Ahmed (Retired) v. Azad Jammu and Kashmir Government 1992 SCR 307 rel.

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

----S. 44---Writ---Prayer for equitable relief in writ jurisdiction of High Court---Scope---Such relief could not be obtained by making reference to unlawful executive orders.

Major Muhammad Aftab Ahmed (Retired) v. Azad Jammu and Kashmir Government 1992 SCR 307 rel.

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

----S. 44---Civil Procedure Code (V of 1908), O.XXIII, R.1---Application for withdrawal of writ petition---Satisfaction of court regarding formal defect or other sufficient cause would be necessary before allowing such application---Petitioner had failed to point out any formal defect/ground in pending constitutional petition---High Court dismissed the application in circumstances.

Sajida Maqsood v. Deputy Commissioner/Collector District Muzaffarabad and others decided on 30-11-2012; Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148 and Salma Khalil and 3 others v. Rashida Siddiquee and another 2000 CLC 260 rel.

Tahir Aziz Khan for Petitioners.

Ch. Muhammad Manzoor for Respondents (in Writ Petition No.248 of 2009).

Nemo for Respondents (in Writ Petition No.68 of 2013).

P L C (C.S.) 873

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ABDUL AZIZ MUGHAL

Versus

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

Writ Petition No.2401 of 2012, decided on 9th January, 2013.

Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000---

----Ss. 3, 4 & 5---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---District Accounts Officer (BPS-18)---Charge of illegal payment of mobilization advance to contractor while holding additional charge as Accounts Officer---Order of Secretary to Government suspending petitioner from service after initiating de novo inquiry proceedings against him---Petitioner's plea was that impugned proceedings and order were void as only the Controller General Accounts as competent authority, could pass such order and not the Secretary---Validity---Efficiency and discipline of a civil servant for being terms and conditions were included in S.15 of Azad Jammu and Kashmir Civil Servants Act, 1976---Impugned suspension order affected terms and conditions of petitioner's service, thus, same could be challenged before Service Tribunal, which could also decide question of eligibility , mala fide and coram non judice---High Court dismissed writ petition in limine.

Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Syed Muhammad Ayyub v. The Government of West Pakistan, PLD 1957 (W.P.) Lah. 487; Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others 1993 PLC (C.S.) 1522 and Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department 1981 PLC (C.S.) 194 ref.

Muhammad Sadiq Khokhar v. Engineer-in-Chief, Pakistan Army, G.H.Q. and another 1981 PLC (C.S.) 123 fol.

Kh. Mehmood Ahmad v. Ministry of Education 1982 PLC (C.S.) 554; The Accountant General and others v. Zaman Hussain Khan 1993 SCR 259; Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department 1981 PLC (C.S.) 194 and Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others 1993 PLC (C.S.) 1522 fol.

Tahir Aziz Khan, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 28th December, 2012.

2013 P L C (C.S.) 909

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Syeda SABEEN NAZ

Versus

PRIME MINISTER, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

Writ Petition No.1118 of 2011, decided on 1st January, 2013.

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R. 38---Writ petition---Non-filing of written statement by respondent despite availing several opportunities---Effect---Court in such case would have no alternative except to dispose of writ petition after considering averments made therein and documents annexed thereto and petitioner's affidavit for being a legal evidence---Principles.

Muhammad Ajaib Khan v. Public Service Commission and 3 others 1997 PLC (C.S.) 222 rel.

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

----R. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Section Officers (BPS-17) in Services and General Administration Department, posts of---Written test and interview for such posts advertised in year 2009 were conducted by Public Service Commission from 10th to 13th January, 2011, wherein petitioner qualified against one of two posts allocated to quota of District 'K'---Requisition of 16 additional posts (out of which two additional posts were allocated to District 'K') sent by department vide letter dated 28-7-2010 to Commission before completion of previous selection process---Non-issuance of an amended advertisement by Commission by including therein previous requisition to complete selection process on all posts at one and same time, rather withheld available posts depriving petitioner of her legal right to be appointed against post reserved for District 'K'---Validity---According to R.9 of Azad Jammu and Kashmir Public Service Commissioner (Procedure) Rules, 1994, Commission was bound to issue fresh/amended advertisement after receipt of intimation about additional posts before date of test or interview fixed for previously advertised posts---Commission despite having received subsequent requisition on 28-7-2010 (i.e. much before date of test and interview fixed for previously advertised posts) had not followed its such mandatory procedure---Had two posts reserved through subsequent requisition for District 'K' been included, then petitioner would have been in successful candidates---High Court accepted writ petition and directed the Commission to recommend petitioner against one of withheld posts for her appointment by Government on basis of such recommendations.

(c) Administration of justice---

----No person can suffer for an act of authority, who is bound to pass an order strictly in accordance with law.

Ahmed Latif Qureshi's case PLD 1994 (Lah.) 3 rel.

Farooq Hussain Kashmiri for Petitioner.

Nemo for Respondents.

2013 P L C (C.S.) 966

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ZULFIQAR AHMED and 3 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 10 others

Writ Petition No.267 of 2013, decided on 26th April, 2013.

(a) Administration of justice---

----He who seeks equity must come to the court with clean hands.

Iqtedar Hyder v. Bank of Punjab through its Chairman and another 2001 MLD 1537 and Amanullah Khan and others v. Lahore Development Authority and others 2004 YLR 1038 rel.

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

----R. 13(1) & (3)---Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), S.44---Writ petition---Maintainability---Discretionary relief---Claim of regular promotion on the basis of appointment on officiating basis---Validity---Incumbents were promoted on officiating basis as a stop-gap arrangement, therefore, direction in the nature of mandamus to promote the petitioners on regular basis could not be issued under law---Writ petition was dismissed.

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

----R. 13 (1) & (3)---Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), S.44---Writ petition---Appointment by promotion on officiating basis---Criteria---Right of regular promotion---Officiating appointment could only be made if the post fell vacant as a result of deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the rules to be filled by transfer---Officiating promotion would not confer any right of promotion on regular basis and the same was liable to be terminated as soon as a person becomes available for promotion on regular basis---Statutory law did not confer any right for regular promotion on the basis of officiating promotion---Officiating appointees were not entitled for regular promotion.

Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and others 2004 PLC (C.S.) 247 rel.

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

----S. 12---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.13(1) & (3)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Reversion of civil servant appointed or promoted on officiating basis---Requirement of notice before reversion-Petitioners were promoted on officiating basis and reverted to their original post without serving notice---Validity---Civil servant appointed to a higher post or grade on ad-hoc or officiating basis shall be liable to reversion to his lower grade and post without notice---Petitioners having been promoted on officiating basis, no notice was required to be served upon them under law for their reversion.

Syed Nazir Hussain Shah Kazmi for Petitioners.

Ch. Shaukat Aziz, Addl. A.-G. for Official Respondents.

Barrister Humayun Nawaz Khan for Private Respondents.

2013 P L C (C.S.) 980

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

ABDUL SHAKOOR

Versus

INSPECTOR-GENERAL POLICE, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 4 others

Writ Petition No.216 of 2012, decided on 23rd April, 2013.

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

----S. 44---Writ petition---Disciplinary proceedings---Petitioner complained that his result of Departmental Examination had not been properly evaluated---Application for re-checking/re-evaluation of papers---Petitioner being an employee of disciplined force had criticized the function of his seniors in black and white---Attitude of petitioner was highly objectionable---Disciplinary proceedings were initiated against the petitioner---Effect---Petitioner had not disclosed any mala fide or ulterior motive on part of the official for putting him behind on the scoreboard and could not show any grudge or malice by official against him---Auhorities could not be stopped to do an act provided by law and could not be restrained from taking any departmental action against the petitioner---Petitioner would be at liberty to seek redressal of his grievance if at all an adverse order was passed against him---Writ petition was dismissed.

Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 SCMR 265; Punjab Textbook Board Employees Association through President v. Punjab Textbook Board through Chairman and 2 others 2004 YLR 1014; Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261; Azad J&K Government and others v. Ch. Abdul Majeed and others 2004 MLD 844; Muhammad Ashfaq and another v. Senior Member Board of Revenue and 5 others 2011 MLD 1844; Moosa Bhunji (through legal heirs) v. Bashwani Sales and Service Ltd. and another PLD 1982 Kar. 940; Federation of Pakistan v. Ali Ahmed Qureshi 2000 CLC 1551(2) and Muhammad Hanif v. Mst. Robina Kausar 2000 CLC 1551(1) ref.

Tahir Aziz Khan for Petitioner.

Sardar M.R. Khan, Addl. A.-G. for non-Petitioners Nos.1 to 3.

Abdul Rasheed Abbasi for non-Petitioners Nos.4 and 5.

2013 P L C (C.S.) 993

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Sardar ARIF KHAN and others

Versus

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

Writ Petitions Nos.665 and 666 of 2009, decided on 21st May, 2013.

(a) Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001---

----S. 5---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Appointments in Forest Department on different posts alleged to have been made without advertisement, test, interview and adopting selection process---Notification issued by Government to initiate disciplinary proceedings against petitioners under Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001---Validity---Petitioners were civil servants, against whom no adverse order had been passed by competent authority---Petitioners had an opportunity to repudiate allegations before Inquiry Officer by placing their defence taken in writ petition---Disciplinary proceedings could not be challenged in writ jurisdiction---Disciplinary proceedings falling under S.15 of Azad Jammu and Kashmir Civil Servants Act, 1976 included in terms and conditions of civil servants, which could not be challenged in writ jurisdiction---Petitioners could challenge adverse order, if passed by competent authority, before Service Tribunal---High Court dismissed writ petition in circumstances.

Karachi Transport Workers Union v. Karachi Transport Corporation Ltd. and others 1987 PLC 456; The Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 and Qazi Muhammad Suleman and 5 others v. AJK Government and 2 others 2002 PLC (C.S.) 769 rel.

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

----S. 44---Writ jurisdiction of High Court---Scope---Disciplinary proceedings against civil servant, initiation of---Such proceedings could not be challenged in writ jurisdiction.

Karachi Transport Workers Union v. Karachi Transport Corporation Ltd. and others 1987 PLC 456 rel.

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

----S. 44---Impugned order pertaining to terms and conditions of civil servant---Writ jurisdiction of High Court---Scope---Such order could not be challenged in writ jurisdiction.

The Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 and Qazi Muhammad Suleman and 5 others v. AJK Government and 2 others 2002 PLC (C.S.) 769 rel.

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

----S. 44---Writ petition, point not raised in---Effect---Submission on such point would be against principle of pleadings---Illustration.

Syed Nazir Hussain Sah Kazmi for Petitioners.

Raja Amjad Ali Khan, Legal Advisor for Respondents.

2013 P L C (C.S.) 1037

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Abdul Rasheed Sulehria, J

Mrs. JAMSHED NAQVI

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others

Writ Petition No.762 of 2012 decided on 22nd March, 2013.

Azad Jammu and Kashmir Teachers Foundation Act (XIV of 1997)---

----S. 7(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Appointment on a tenure post---Authority had transferred and appointed the petitioner on a tenure post without imposing any condition---Petitioner had been appointed for fixed tenure mentioned in S.7(2) of the Azad Jammu and Kashmir Teachers Foundation Act, 1997---Authority was competent to extend the appointment but could not curtail the statutory tenure---Appointee of a tenure post had right to enjoy the statutory period of his tenure provided he/she was removed by the Authority on account of misconduct.

Col. (Retd.) Masood-ul-Hassan v. Azad Government of State of AJK through its Chief Secretary and 2 others 1997 PLC (C.S.) 327; Abdul Qayyum Qureshi v. The Government of Punjab and others 1975 SCMR 457 Moazzam Hussain Khan's case PLD 1958 Kar. 35 and Debesh Chandra Das v. Union of India and others AIR 1970 SC 77 rel.

Syed Zulqarnain Raza Naqvi for Petitioner.

Ch. Shaukat Aziz, A.A.-G. for Respondents.

2013 P L C (C.S.) 1165

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD WAQAS

Versus

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

Writ Petition No.1586 of 2011, decided on 25th May, 2013.

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

----S. 44---Writ petition---Civil service---Chief Officer of Municipal Committee (BS-17), post of---Ad hoc appointment of petitioner on such post set aside by Authority without completing selection process---Order of High Court passed in petitioner's earlier writ petition directing Authority to conduct test and interview within 60 days and allow him to continue on ad hoc basis till then---Failure of Authority to comply with such earlier directions of High Court---Re-advertising of such post by Authority after two years of passing of earlier order of High Court---Failure of petitioner to succeed in test and interview conducted by Selection Committee---Effect---Petitioner had not applied for implementation of earlier directions of High Court despite expiry of more than two years, rather had opted to continue his ad hoc appointment against command of Court---Petitioner after having participated unconditionally and without protest in such subsequent selection process would be deemed to have waived his rights in respect of selection likely to be held on basis of such earlier directions of High Court---Petitioner had not approached High Court with clean hands, thus, he was not entitled to discretionary relief---High Court dismissed writ petition in circumstances.

Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141; Iqtedar Hyder v. Bank of Punjab through its Chairman and another 2001 MLD 1537 and Khalid Bashir Bhatti Secretary General, Pakistan Amateur Basketball Federation v. Pakistan Sports Board through Director-General, Pakistan Sports Board Complex, Aabpara, Islamabad and 2 others 2002 CLC 1017 rel.

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

----S. 4---Writ jurisdiction of High Court---Nature---Constitution jurisdiction is discretionary in nature; he who seeks equity must come to court with clean hands.

Sadaqat Hussain Raja for Petitioner.

Mushtaq Ahmed Janjua for Respondents.

2013 P L C (C.S.) 1205

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

MUHAMMAD SADHEER and another

Versus

DIRECTOR-GENERAL, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT AZAD JAMMU AND KASHMIR and 4 others

Writ Petition No.306 of 2007, decided on 8th May, 2013.

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

----Ss. 44 & 47---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Writ petition---Maintainability---Civil service---Non-selection of candidate---Appointment of less qualified candidate was challenged---Petitioner secured first position in the test and interview on re-evaluation of papers---Department decided to cancel the appointment of less qualified appointee and re-advertise the post and did not appoint the petitioner---Respondent appointee who was re-instated by the Service Tribunal contended that after his appointment he became civil servant as such the petitioner was liable to approach the Service Tribunal and writ petition was not maintainable---Validity---For carrying out the command of the Constitution, the Azad Jammu and Kashmir Service Tribunal had been established for determination of the disputes relating to the terms and conditions of the employees who were or had been in the service of Azad Jammu and Kashmir including disciplinary matters---Under S.4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 only a civil servant aggrieved by any final order, (whether original or appellate) made by a departmental authority in respect of any of the terms and conditions of service could file appeal before the Service Tribunal---Petitioner was admittedly not a civil servant and had only challenged the merit list prepared by selection committee and order of re- advertisement of the post, which could not be challenged before the Service Tribunal---Service Tribunal was not competent to give any direction in the present case---Writ petition was maintainable and allowed---Department was directed to appoint the petitioner accordingly.

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

Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others 1999 PLC (C.S.) 941 and Habibullah Ganaie v. Wajahat Rashid Baig and others 1999 PLC (C.S.) 615 ref.

Sardar Muhammad Habib Zia for Petitioners.

Syed Mushtaq Hussain Gillani for Private Respondent.

Nemo for official Respondents.

2013 P L C (C.S.) 1264

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Ch. Jahandad Khan, J

Kh. ABDUL HAMID

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others

Writ Petition No.25 of 2013, decided on 5th April, 2013.

(a) Civil service---

----Policy decision or instructions issued by the competent authority shall have equal binding force as statutory rules if these are not in contravention of rules.

(b) Administration of justice---

---If for performance of an act a specific mode or manner is prescribed then such an act should be performed according to the prescribed manner or not at all.

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

----Ss. 13 & 22---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Re-employment of retired civil servant---Criteria---Re-employment can be made only in public interest---Re-employment will not be made for the purpose of accommodation of retired bureaucrats rather it would be an exception and not a rule--Person re-employed should be highly competent with distinction in his/her profession/field, and no qualified and experienced person is available from the existing cadres.

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

----Ss. 13 & 22---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Appointment of retired civil servant on contract---Non observance of criteria provided under relevant rules---Effect---Powers generally exercised by the government or a public functionary must be backed and strictly in line with the statutory Rules of the land---Travel beyond the rules and regulations has ruined the structure of the bureaucracy which practice causes heart burning among the civil servants who otherwise are qualified and eligible for promotion but had been deprived of by exercising arbitrary powers or on political intervention or accommodation of the highly influential persons who stood retired after attaining the age of superannuation---For good governance strict and faithful compliance of rule of law and Constitution by the rulers and the ruled is sine-qua-non, otherwise, the non-observance of the rules brings a bad name for the institution as well as government.

Muhammad Riaz Khan v. Inspector-General of Police and 19 others 2010 SCR 131; Azad Government and 2 others v. M. Naseer Chaudhry and 2 others 2010 SCR 186; Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others v. Sardar Abdul Aziz Khan 2012 PLC (C.S.) 1502; M. Younas Tahir and another v. Shaukat Aziz and others 2012 SC (AJ&K) 42; 2011 PLC (C.S.) 152; 2006 PLC (C.S.) 1319 and Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60 ref.

(e) Administration of justice---

----When an Act or Rules prescribe a specific mode for performance of an act then such act should be performed in that manner alone otherwise it would be deemed to have not been performed at all.

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

----Ss. 13 & 22---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Retired civil servant was re-employed on contract without observing criteria provided under relevant rules---Effect---No reasons had been shown by the authorities nor any exigency was pointed out for making the appointment in contravention of the rules, therefore, the appointment could not be saved---Re-employment was declared as without lawful authority and set aside.

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

----Ss. 13 & 22---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Locus standi---Contention that petitioner who challenged the re-employment of retired employee was not aggrieved person---Validity---Not necessary that person invoking jurisdiction of High Court must be in possession of a right in strict juristic sense; it is sufficient that it is claimed by him that respondents should perform the duty of their offices in accordance with the mode and manner provided in the statutory provisions---Appointment of retired employee was declared illegal.

Kh. Attah Ullah Chak for Petitioner.

Raja Muhammad Hanif Khan for Respondents.

2013 P L C (C.S.) 1286

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

KHALID MAHMOOD and others

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and others

Writ Petitions Nos.1123 and 1130 of 2011, decided on 8th May, 2013.

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

----S. 44---Writ petition---Civil service---Promotion---Vested right---Amendment in rules of promotion---Petitioners had alleged that proposed amendment in departmental statutory rules would adversely affect the right of his promotion---Validity---No one could claim a vested right in promotion or in the terms and conditions for the promotion to a higher post---Government had power to amend, enhance or alter the qualification and standards for recruitment and promotion in order to maintain efficiency in service---Writ petition was dismissed.

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

----S. 44---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.23(1)---Writ petition---Civil service---Rule making powers of government---Scope---Government or any person authorized in that behalf may make such rules as appear to him to be necessary or expedient for carrying out the purpose of Azad Jammu and Kashmir Civil Servants Act, 1976---Civil servant could not claim promotion to a particular post with assertion that the rules be framed in such a manner so that he may be promoted---Rules could not be made on sweet will of a civil servant which was a sole prerogative of government.

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

----Ss. 44 & 47---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.23(1)---Azad Jammu and Kashmir Rules of Business, 1985, R.16(2)---Writ petition---Maintainability---Rule making powers of government---Procedure and scope---Rules amended in violation of constitutional provisions---Jurisdiction of Service Tribunal---Government is competent to make rules---Rules are always initiated by the department concerned and then submitted to a committee constituted by the government, known as departmental rules committee---All legislations and amendments are also to be routed and made in consultation with the Law, Justice, Human Rights and Parliamentary Affairs Department of the government and then after the approval of the committee, the rules submitted to the government through Services and General Administration Department for obtaining sanction---If rules are violative of the Azad Jammu and Kashmir Interim Constitution Act, 1974 or its parent Act i.e. Azad Jammu and Kashmir Civil Servants Act, 1976 the aggrieved civil servant may invoke jurisdiction of Service Tribunal concerned for redressal of grievance---Writ petition was dismissed.

Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Rizwan Muzaffar v. Azad Government and 8 others 2010 SCR 156 and Ch. Muhammad Inshaullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155 ref.

(d) Interpretation of statutes---

----Malice cannot be attributed to the legislature neither any legislation can be struck down on the ground of malice.

Ch. Muhammad Yousaf v. The State and 4 others 2002 CLC 1130; Raja Muhammad Niaz Khan v. Azad Government and others PLD 1988 SC (AJ&K) 53; Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 and Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 rel.

Syed Nazir Hussain Shah Kazmi and Sadaqat Hussain Raja for Petitioners.

Ch. Shaukat Aziz, Addl. A.-G. for Respondents.

2013 P L C (C.S.) 1482

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

BABAR JAMIL

Versus

CONSERVATOR FOREST, MUZAFFARABAD CIRCLE and another

Writ Petition No.612 of 2010, decided on 8th May, 2013

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

----S. 44---Writ petition---Civil service---Appointment---Deceased employee quota---"Assistance package" to the government employees---Scope---Father of the petitioner died during service---Department was bound to adjust the son or daughter of government servant who died during service---Department refused to appoint the petitioner as the notification of "assistance Package" to the government employees came after the death of petitioner's father without retrospective effect---Validity---Document relied upon by the petitioner was not a part of the petition nor anything had been mentioned about the said document in the text or prayer clause of the petition---Notification had not been given retrospective effect---Petitioner's case had not come within the purview of the "assistance package"---Writ petition was dismissed.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 79---Unattested document---Scope---Photo-state copy, being inadmissible in evidence could not be relied upon.

Subedar (R) Behram Khan v. Custodian Evacuee Property and 5 others 2000 YLR 2326 rel.

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

----S. 44---Writ jurisdiction of High Court---Scope---Person who seeks relief by invoking writ jurisdiction, must come with clean hands.

AJ&K Government and others v. Abdul Ghaffar Butt 1999 PLC (C.S.) 1203 rel.

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

----S. 44---Writ petition---Affidavit---Evidentiary value---Affidavit was considered sufficient in a writ petition as basic proof, if not rebutted by cogent evidence.

Muhammad Sharif Khan's case 1993 SCR 88 rel.

Mushtaq Ahmed Janjuha for Petitioner.

Muhammad Banaras for Respondents.

2013 P L C (C.S.) 12

[Islamabad High Court]

Before Noor Ul Haq N. Qureshi, J

WAQAR ALAM and others

Versus

SECRETARY, ESTABLISHMENT DIVISION and others

Writ Petitions Nos.1206, 1433, 1604 and 1981 of 2011, heard on 29th March, 2012.

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

----Ss. 3, 4, 16 & 18---Sacked Employees (Reinstatement) Ordinance (XI of 2009), Ss.3, 4 & 10---Civil Servants Act (LXXI of 1973), S.11(1)(i)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Sacked Inspectors (BS-16) in Federal Investigation Agency (FIA)---Reinstatement of petitioners in service in BS-16 instead of placing them one grade higher in capacity of Assistant Director (BS-17) on regular basis by counting their previous service---Validity---According to S.10 of Sacked Employees (Reinstatement) Act, 2010, while reinstating sacked employees, each of them would be offered one scale higher than previous scale wherefrom his services were dispensed along with re-designation---FIA was bound to offer post of Assistant Director (BS-17) to petitioners not as a matter of mercy, but in view of S. 10 of Sacked Employees (Reinstatement) Act, 2010---Reinstated sacked employee would not be entitled to seniority or other arrears of pay---According to. S.4(c)(iii) of Sacked Employees (Reinstatement) Act, 2010, reinstated sacked employee would be placed at bottom of seniority list of employer for scale, cadre, group, post or designation except entitlement provided by the said Act---While placing petitioners as Assistant Director (BS-17), they would be placed at bottom of seniority list and reckoned junior to all officers performing services in Grade-17 as Assistant Director prior to their induction' in service---Question of inter-se seniority between petitioners and such previous officers would be determined according to seniority rules---FIA while reinstating petitioners in service had misinterpreted law or deliberately violated the same---Petitioners were entitled to their claim of salaries and other service benefits as provided by S.16 of Sacked Employees (Reinstatement) Act, 2010---High Court directed FIA to redress grievances of petitioners within specified time, otherwise take action against officials found to be involved in violating the law.

Lt. Cot. (R) Muhammad Siddique v. Federation of Pakistan and another Writ Petition No.389 of 2009 and Writ Petition No.1313 of 2010 rel.

S.A. Mahmood Khan Saddozai, Ishtiaque Ahmed Cheema and Muhammad Aftab Alam Rana for Petitioners.

Nazir Abbasi, Standing Counsel, Ibrar-ul-Haq, Assistant Director, I.B. and Amjad Saeed Awan, S.O. Establishment Division for Respondents.

Date of hearing: 29th March, 2012.

2013 P L C (C.S.) 28

[Islamabad High Court]

Before Noor Ul Haq N. Qureshi, J

SAFEER HUSSAIN and 6 others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Secretary of Establishment Division and 5 others

Writ Petitions Nos.1977 and 2094 of 2011, decided on 30th May, 2012.

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

----R. 20-A---Constitution of Pakistan, Art.199----Constitutional petition---Civil Service---"Deputation"---Concept---Posting of officials on deputation---Scope---Petitioners who were in permanent/regular service in the department assailed the practice of posting officers on deputation in their department and sought direction refraining the Authorities from inducting any official on deputation in their department---Validity---Deputation in a government department had a significant feature, which required hiring under special circumstances, where there was no expert person available in the department in the relevant subject or field---Rule 20-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 did not require the continuity of deputation for an indefinite period or the period specified for a deputation and provided the period of deputation not exceeding three years, which may be extended for another period of two years on such terms and conditions as sanctioned by the Federal Government in consultation with the lending organization---No legal bar was provided by law on the concerned authorities to repatriate the deputationst---High Court directed that the respondents be immediately repatriated from the department---Constitutional petitions were allowed, in circumstances.

Sl. No.28 of ESTACODE, Civil Establishment Code (Edition 2007); Syed Imtiaz Ali Shah and 4 others v. Government of Sindh through Chief Secretary and 6 others Constitutional Petition No.D-1491 of 2010 and Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 SCMR 378 rel.

Syed Muhammad Tayyab for Petitioners.

Tariq Mahmood Jahangir, Dy. A.-G. for Respondents.

Shaukat Rehman for Respondent No.4.

Umar Hanif Khichi for Respondent No.5.

Sardar Abdul Sami for Respondent No.6.

Muhammad Shoaib Shaheen for Respondents Nos.5, 8 and 9.

Date of hearing: 3rd May, 2012.

2013 P L C (C.S.) 43

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

MUHAMMAD ZAFAR IQBAL and 5 others

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED (OGDCL) through Managing Director, Islamabad and another

Writ Petition No.3165 of 2006, decided on 19th March, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Petitioners were employees of State owned company and sought direction to the effect that the respondent company should grant pay protection to the petitioners on antedation of their placement to a different grade and restrain the respondent-company from recovering amount from their pay and also refund the recovered amount---Validity----Recovery of the amount in question from the petitioners was a result of antedate promotion of the petitioners and said promotion had benefited the petitioners---Said recovery could not be taken into account in isolation of beneficial order of promotion of the petitioners and could not, as such, be termed as an unjust recovery, as the antedate promotion of the petitioners was in their best interest and adjustment of pay and allowances of the petitioners was a consequential and essential requirement---Said eventuality, neither attracted the principles of locus pentitentiae nor the same could be taken into isolation to the benefits of promotion---High Court directed the company to consider the cases of the petitioners for promotion in the prescribed manner and if the petitioners met the criteria, then they may be promoted---Constitutional petition was disposed of, accordingly.

2005 SCMR 1115 ref.

Abdul Rahim Bhatti for Petitioners.

Jahangir Khan Jadoon for Respondents.

Date of hearing: 19th March, 2012.

2013 P L C (C.S.) 99

[Islamabad High Court]

Before Riaz Ahmad Khan, J

NAZAR MUHAMMAD QURESHI and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and others

Writ Petitions Nos.2765, 2901, 2887, 2891, 2893, 2840, 2842, 2858, 2859, 2860, 2870, 2873, 2874, 2875, 2876, 2878, 2775, 2628, 2793, 2796, 2808 and 2823 of 2011, decided on 18th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Recruitment policy---Selection criteria---Petitioners were aggrieved of change in selection criteria by government regarding selection of officials for Peacekeeping Missions of United Nations---Validity---Policy making was the prerogative of government and High Court in exercise of Constitutional jurisdiction could not make policy for government---If policy itself was not supported by any law or rule or was based on discrimination, then High Court had jurisdiction to examine the same---Government had the authority to refuse sending any officer for United Nations Peacekeeping Mission---If government had decided to send officers, then opportunity of fair competition could not be denied, irrespective of the fact that any officer was a repeater or fresh candidate, though the United Nations, in criteria had held that preference should be given to repeaters---If object of government in changing the policy was to provide opportunity to fresh candidates, then they should improve quality of education and standard of training imparted to police officers and opportunity could not be provided by depriving others from participating in competition---High Court in exercise of Constitutional jurisdiction declared fresh policy letter/guidelines of government as illegal and void---High Court declared that all petitioners eligible to appear in test in accordance with criteria laid down by United Nations Peacekeeping Operations, would have the right to participate in the competition---Petition was allowed accordingly.

Ch. Muhammad Ashraf Gujjar for Petitioners (in Writ Petitions Nos.2765, 2901 and 2840 of 2011).

Malik Muhammad Siddiquie Awan for Petitioners (in Writ Petitions Nos.2887 and 2858 of 2011).

Petitioner in person (in Writ Petition No.2891 of 2011).

Adil Aziz Qazi for Petitioners (in Writ Petitions Nos.2893, 2823, 2859, 2860, 2878, 2628, 2796 and 2808 of 2011).

Asad Iqbal Siddiqui for Petitioners (in Writ Petitions Nos.2873, 2874, 2875 and 2876 of 2011).

Dr. Umair ul Hassan on behalf of learned counsel for Petitioners (in Writ Petition No.2842 of 2011).

Malik Amirdad Awan for Petitioners (in Writ Petitions Nos.2870 and 2793 of 2011).

Petitioners in person (in Writ Petition No.2775 of 2011).

Shafi Muhammad Chandiao, D.A.-G. Ali Akbar, S.P. Legal, NH&MP, Javaid Iqbal, D.S.P. Legal, Rawalpindi on behalf of I.-G.P Punjab, Lahore and Javaid Iqbal Khattak, S.P. Legal, Abdul Rauf, Inspector Legal, Islamabad for Respondents.

Date of hearing: 18th October, 2011.

2013 P L C (C.S.) 133

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

SAIMA AMBREEN

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division Government of Pakistan and another

First Appeal from Order No.58 of 2011, decided on 25th November, 2011.

Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 7(3)---Rules for Section Officers Promotional Examination-2010, Rr.4 (a) & 5(xviii)---Selection for section officers---Eligibility criteria---Petitioner was already serving in BS-17, when she applied for the post of section officer but authorities declared her as ineligible for the post---Validity---Public notice got published by Federal Public Service Commission, as well as the Rules for Selection of Section Officers Promotional Examination-2010, revealed that all civil servants who had put in minimum 8 years of service in BS-11 to 16 were eligible for the examination---Civil servant, already serving in BS-17, having minimum eight years of service in BS-11 to 16, was not eligible for the examination---If petitioner was declared eligible for appointment as Section Officer (BS-17), same would amount to depriving civil servants serving in BS-11 to 16 from promotion/appointment as Section Officer BS-17---High Court, in exercise of appellate jurisdiction, declined to interfere in order passed by Federal Public Service Commission-- Appeal was dismissed in circumstances.

Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134 rel.

Abdur Rehman Siddiqui for Appellant.

Qazi Rafi-ud-Din Babar, Dy. A.-G., Shams-ud-Din, Section Officer, Establishment Division and Kamran Riffat, Assistant Director, Federal Public Service Commission, Islamabad for Respondents.

2013 P L C (C.S.) 162

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

KALIM ULLAH KHAN

Versus

SECRETARY CAPITAL ADMINISTRATIVE AND DEVELOPMENT DIVISION PAKISTAN SECRETARIAT, ISLAMABAD and 2 others

Writ Petition No.2985 of 2011, heard on 1st June, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Employee of Capital Development Authority working on daily wages for last two years by granting him extension---Termination of petitioner's service by Authority without proper written order---Validity---Authority as per verbal order had declined to grant extension in service to petitioner---Person appointed. through written order would be required to be informed through a written order about non-extending his services---Impugned verbal order had no legal backing, thus, was not sustainable under law---Petitioner was entitled to regularization of his service---High Court accepted constitutional petition in circumstances.

2007 SCMR 1328 rel.

Muhammad Qaboor Khattak for Petitioner.

Tariq Mahmood Jahangiri, Dy. A.-G. for Respondents.Date of hearing: 1st June, 2012.

2013 P L C (C.S.) 191

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Dr. Hafiz MUHAMMAD BASHIR and others

Versus

INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD and others

Writ Petition No.1280 of 2012, decided on 16th July, 2012.

International Islamic University Ordinance (XXX of 1985)---

----S. 12---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Contract appointment to the post of Professor made without advertisement---Discrimination---Petitioners had applied to advertised posts of Professors, however, subsequently, said advertisements were cancelled and the respondents were directly appointed to the said posts---Contention of petitioners was that such appointments were violative of merit policy and against principles of justice---Validity---Even for contract employment, advertisement of post was not only essential but in order to ensure transparency and competition, it was also mandatory---Respondents were inducted through a questionable process which could not be accorded approval by the court---No person could be extended favour on the ground that he was distinction holder---Stance of University/employer was not only dubious but also a violation of Art.25 of the Constitution, as other equally placed candidates were awaiting appointment and had been discriminated against---High Court declared appointment of respondents as illegal and directed the University to advertise the posts---Constitutional petition was allowed, in circumstances.

Suo Motu Case No.24 of 2010 PLD 2011 SC 963 ref.

Syed Javed Akbar Shah for Petitioners.

Rehan-ud-Din Khan and Mian Imran Masood for Respondents Nos.1 to 5.

Riaz Hussain Azam for Respondent No.5.

Malik Anwar Mukhtar for Respondent No.6.

Date of hearing: 16th July, 2012.

2013 P L C (C.S.) 206

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

G.M. CHAUDHRY and others

Versus

Dr. KAMRAN JEHANGIR and others

Writ Petitions Nos.4510 of 2010 and 1055 of 2011, decided on 13th March, 2012.

(a) Constitution of Pakistan---

----Art. 199(3)---Constitutional jurisdiction---Bar under Art.199(3) of the Constitution---Principle---Such bar is not attracted to the case where authority involved in the case acted without authority, mala fide and coram non judice.

PLD 2009 SC 868 rel.

(b) National University of Modern Languages Ordinance (XVIII of 2000)---

----S. 11---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of Director General of the University---Locus poenitentiae, principle of---Applicability---Petitioner assailed appointment of Director General of National University of Modern Languages and claimed to be so appointed as he had already been performing the same duty---University contended that petitioner was neither language expert, nor was Brigadier of Army Education Corps and his appointment was made in exigency of service of as stopgap arrangement---University further contended that appointment of Director General of the University would be made according to provision of S.11 of National University of Modern Languages Ordinance, 2000, on the first available opportunity---Validity---Petitioner could not claim restoration against post of Director General, against which he had no lawful right---Under the principle of locus poenitentiae, the competent authority was vested with powers to rescind an illegal order---Appointment of petitioner as Director General was not in accordance with S.11 of National University of Modem Languages Ordinance, 2000, and it had rightly been cancelled/withdrawn by the department---High Court declined to interfere in the appointment made by the University---Petition was dismissed in circumstances.

2001 SCMR 1320; 2002 SCMR 312; 2008 CLC 766; PLD 2010 SC 554; 2010 PLC (C.S.) 276; 2008 PLC (C.S) 715; 2011 PLC (CS) 125; 2008 SCMR 544; 1998 SCMR 2419; 2006 SCMR 678; 2011 PLC (C.S.) 419; 2010 PLC (C.S.) 266; 1998 SCMR 2268; 1999 SCMR 2189; PLD 1972 SC 332; 2004 SCMR 468; 2003 SCMR 1128 and 2005 YLR 1719 distinguished.

1988 SCMR 516; 1986 SCMR 1071 and Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

G.M. Chaudhry in person and Hafiz S.A. Rehman, Senior A.S.C. for Petitioners.

Muhammad Munir Paracha, Noman Munir Paracha, Mir Aurangzeb and Dr. Muhammad Azam for Respondents.

Date of hearing: 28th February, 2012.

2013 P L C (C.S.) 280

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

IRSHAD AHMED and others

Versus

SECRETARY, MINISTRY OF EDUCATION and others

Writ Petitions Nos.46-W, 98-W, 99-W of 2008, 6-W, 94-W, 95-W, 97-W, 109-W, 115-W, 122-W, 130-W, 132-W, 139-W and 140-W of 2009, decided on 21st March, 2012.

Constitution of Pakistan---

----Art. 204---Contempt of Court---Civil service---Non-compliance of order of High Court---Plea raised by petitioners was that the authorities did not comply with the order passed by High Court---Validity---No firm decision for regularizing services of petitioners was in field but it was attached to the outcome of pending decision before Supreme Court, which was not fully supporting their case---Case of petitioners did not come within the ambit of policy made by the authorities and relief of any kind could not be sought---No clear cut direction as contended in application was alleged to have been violated by the authorities---Decision of Supreme Court was communicated which also did not support the version of petitioners---Application was dismissed, circumstances.

Ali Murad Baloch, Musharaf Mahmood Qazi and Muhammad Shoaib Shaheen for Petitioners.

Raja Muhammad Abid, D.A.-G. and M. Zeeshan Akbar, Deputy Director (Legal), FDE for Respondents.

Date of hearing: 15th March, 2012.

2013 P L C (C.S.) 303

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

MUHAMMAD YAQOOB and another

Versus

MANAGING DIRECTOR/CHIEF EXECUTIVE OFFICER OGDCL, ISLAMABAD and another

Writ Petition No.2488 of 2009, decided on 16th May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Successive petitions on the same subject---Res judicata, principle of---Applicability---Scope---Civil service---Promotion---Contention of the petitioners was that they were entitled to ante date promotion in accordance with the relief given by the High Court in disposal of their Labour Appeals---Validity---Successive Constitutional petitions in respect of the same cause of action were nothing but abuse of the process of the Court---Controversy of ante date promotion of the petitioners was finally adjudicated by the High Court and although the same was settled by way of the decision in a Labour Appeal, and not by a decision in the Constitutional Jurisdiction of High Court; yet principles and scheme of successive petitions would apply to the case of the petitioner as the present Constitutional Petition was in respect of the same cause of action---Nature of dispute agitated in the earlier round of litigation was between the same parties and in respect of the same cause of action as such the principles of res judicata would also be applicable to the case of the petitioners and the petitioners could not, therefore, be permitted to re-agitate the same matter by invoking the constitutional jurisdiction of High Court---Constitutional petition was dismissed.

Fazal Din v. Wali Muhammad and 5 others 1972 SCMR 225; Mirza Maqbool Ellahi v. C.D.A. 1998 SCMR 1074; Abdul Majid and another v. Muhammad Riaz Hashim and another 1968 SCMR 816 and Fazal Din and others v. The Custodian, Evacuee Property, Lahore and others PLD 1971 SC 779 rel.

Muhammad Umair Baloch for Petitioners.

Raja Muqsit Nawaz for Respondents.

Date of hearing: 16th May, 2012.

2013 P L C (C.S.) 330

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

Lt. General (Retd.) NAEEM KHALID LODHI

Versus

PRESIDENT OF PAKISTAN through Cabinet Secretary, Islamabad and 4 others

Writ Petition No.114 of 2012, decided on 4th June, 2012.

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

----Ss. 15 & 16---Constitution of Pakistan, Art.199---Constitutional petition---Secretary, Defence Division, Government of Pakistan, post of---Appointment of petitioner on such post on contract of two years on standard terms and conditions w.e.f. 28-11-2011 and until further orders---Termination of service of petitioner on 11-1-2012 without issuing him charge-sheet or show cause notice and his termination order reported by national and international media as his dismissal for gross misconduct---Validity---Petitioner while assuming charge of such post had accepted terms of contract employment including termination of his service without assigning any reason---Petitioner had not denied receipt of one month pay in lieu of notice period and his fresh appointment by Government as Managing Director of a Company on contract basis for a period of three years, thus, he was not entitled to restoration of his contract appointment against post of Secretary---Petitioner could not invoke constitutional jurisdiction of High Court to upset terms and conditions of his contract employment---Government had denied such media reports to be true, thus, High Court could not determine such factual controversy---Provisions of Ss.15 & 16 of Civil Servants Act, 1973 would not apply to petitioner, whose service had not been terminated for disciplinary action---Impugned order was in consonance with standard terms and conditions of petitioner's contract appointment---High Court dismissed constitutional petition in circumstances.

PLD 2009 SC 879; Pakistan Lawyers Forum v. The Federation of Pakistan and another PLD 2011 Lah. 382; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2004 Lah. 130; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Mst. Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad PLD 2011 Lah. 563; Faisal Sultan v. EDO Education and others 2011 PLC (C.S.) 419; Shahid Farooq v. Water and Power Development Authority 2011 PLC (C.S.) 1034; Engineer Shaukat Hussain v. Federation of Pakistan 2011 PLC (C.S.) 174; Secretary Government of the Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Dr. Muhammad Amin v. Azad Jammu and Kashmir Government 2012 PLC (C.S.) 462; WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Abdul Hafeez Abbasi v. M.D. PIA and others 2002 SCMR 1034; Dr. Akhtar Hussain Khan and others's case 2012 SCMR 455; PLD 2011 SC 277; 2011 SCMR 582; PLD 2011 SC 205; Government of Balochistan and others v. Dr. Zahida Kakar and others 2005 SCMR 642; Mashal Khan v. Government of N.-W.F.P. and others 1997 PLC (C.S.) 1155; PLD 1962 SC 108; 1984 CLC 2168; 1987 MLD 153; ABN-AMBRO Bank v. Wasim Dar 2004 PLC 69; Zaka Ullah Bajwa's case 2004 PLC (C.S.) 332; Syed Manzoor Hussain v. Tehsil Nazim and others PLD 2010 Lah. 101; Saeed Ahmad Khan and others's case PLD 1974 SC 151; BP Pakistan Exploration and Production Inc. Karachi v. Additional Commissioner and others 2011 PTD 647; Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Bashir Ahmed v. Messers Roots School Network through Administrator and others 2011 SCMR 290; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Muhammad Mahmood Bawani v. Deputy Collector Building Zone-B and others 2007 SCMR 1209; Major (Retd.) Abdul Salam's case 2004 PLC (C.S.) 864; Kh. Manzoor Qadir v. Azad Government the State of Jammu and Kashmir and others 2011 PLC (C.S.) 90; Writ Petition No.2350 of 2011 and I.C.A. No.85 of 2011 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could take into account press and media reports.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition involving determination of factual controversy---Effect---Relief in constitutional petition could be sought and granted only on basis of established and undisputed factual claims and assertion---Determination of factual controversy would go out of ambit of constitutional jurisdiction of High Court---Principles.

F.K. Butt and Ms. Shafaq Abid for Petitioner.

Tariq Mehmood Jahangiri, Dy.A.-G., Commander M. Hussain Shahbaz, Director Legal, Ministry of Defence, Assad Hussain (Section Officer) Cabinet Division, Islamabad and Amjad Saeed Awan on behalf of Establishment Division for Respondents.

Date of hearing: 25th May, 2012.

2013 P L C (C.S.) 391

[Islamabad High Court]

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

ASMA SHAHEEN and 19 others

Versus

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

Writ Petitions Nos.612 of 2010, 2932 of 2011, 3050, 3994, 4556, 2305, 2278, 753 of 2010, 2943 of 2011, 728, 1402, 1708, 746, 1130, 1834, 2821, 3019, of 2010, 250, of 2011, 3692, 3841, 867, 370 of 2010, 3844 of 2009, 1314, 1137 of 2011, 4540, 3939, 2655, 2560, 2214, 1797 of 2010, 2169, 3008, of 2011, 2971 of 2010, 3012, 3059 of 2011, 1586 of 2010, 2978, 2264, 2881, 3067, 2324 of 2011, 2334 of 2010, 3065 and 2774 of 2011, decided on 24th November, 2011.

(a) Civil service---

----Deputation---Repatriation of deputationist to his parent department before expiry of his tenure of deputation---Scope---Deputation being a contract, deputationist would have no vested right to remain/continue on deputation or his permanent absorption---Competent authority of borrowing department having sole discretion to decide fate of deputationist could repatriate him at any time to parent department---Competent authority in its discretion could absorb some of deputationists according to requirements of his department, capabilities, know-how, performance, qualification, general reputation and on basis of annual confidential reports.

Sajida Abdullah v. District Coordination Officer and 2 others 2011 PLC C.S.) 592; Muhammad Afzal and another v. Chief Secretary, Government of Punjab, Lahore and another 2009 PLC (C.S.) 580; Director-General, Health Services, N.-W.F.P., Peshawar and another v. Dr. Nizakat Iqbal Karim and another 2000 SCMR 67; Dr. Shoukat Pervez v. Federation of Pakistan through Secretary, Establishment Division, Islamabad 2011 PLC (C.S.) 26; Col.(R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019; PLD 2010 SC 759; Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others 2003 PLC (C.S.) 1322; Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department, Lahore and another 2004 PLC (C.S.) 622; Uzma Javed v. Government of Punjab through Secretary Education, Punjab and 2 others 2010 YLR 1968; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Abid Hussain and others v. P.I.A.C. and others 2005 SCMR 25; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another 2005 PLC 428; Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 PLC (C.S.) 367; Mst. Fahim Mumtaz v. Secretary (Schools) 2010 PLC (C.S.) 619 and Lal Khan v. Employees' Old Age Benefit Institution through Chairman and 2 others 2010 PLC (C.S.) 1377 ref.

ESTACODE Sl. No.28 (Chapter-II), Civil Establishment Code (Edition-2007), Volume 1; Dr.Shafi-ur-Rehman Afridi v. C.D.A, Islamabad through Chairman and others 2010 SCMR 378; Prof. M. Ashraf Khan Niazi v. Chairman, Board of Governors, Allama Iqbal Medical College/Jinnah Hospital, Lahore and 2 others 2003 PLC (C.S.) 243; Fida Muhammad v. Government of N.-W.F.P. through Secretary Local Government and Rural Department Secretariat, Peshawar and 3 others 2005 PLC (C.S.) 1207 and Lal Khan v. Employees' Old Age Benefit Institution through Chairman and 2 others 2010 PLC (C.S.) 1377 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Repatriation of deputationist to his parent department---Deputation being a contract, deputationist could not claim absorption or continuance on deputation as a vested right---Deputationist would be bound to go back to parent department, if borrowing department did not require his services----Repatriation of deputationist would not be violative of his fundamental rights or constitutional provisions---Constitutional jurisdiction could not be invoked in such matter.

Dr. Shafi-ur-Rehman Afridi v. C.D.A, Islamabad through Chairman and others 2010 SCMR 378 rel.

(c) Civil service---

----Deputation---Female married civil servant---Right of such female deputationist to continue to serve at the station of borrowing department on basis of wedlock policy---Scope---Nowhere provided in wedlock policy that all deputationists must either be absorbed or continue to serve at place where their spouses were posted.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Non-filing of written comments by opposite party---Effect---Petitioner would have to stand on his own legs as lacunas or weaknesses of opposite party could not prove his case---Such petition involved legal questions, thus, High Court rejected such objection in circumstances.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be invoked for enforcement of a clear legal right, but not to establish a legal right.

Anjuman Fruit Arhtian and others v. Deputy Commissioner Faisalabad and others 2011 SCMR 279 and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 rel.

(f) Constitution of Pakistan---

----Arts. 199 & 212---Civil service---Constitutional petition for grant of deputation allowance---Maintainability---Such matter had direct nexus with terms and conditions of service---Jurisdiction of High Court was barred under Art.212 of the Constitution---High Court dismissed constitutional petition in circumstances.

(g) Civil service---

----Deputation---Absorption of deputationist on permanent basis in borrowing department---Absence of specific rules/criteria regarding such absorption---Effect---Competent authority of borrowing department having sole discretion in such matter was creating untoward situation---High Court observed that Ministry of Law, Justice and Parliamentary affairs to examine such matter and frame specific rules/criteria regarding thereto.

Abdul Rahim Bhatti for Petitioners.

Tariq Mehmood Jehangiri, Dy. A.-G., Muhammad Zeeshan Akbar, Deputy Director Legal, Muhammad Azam, Deputy Director Legal, Federal Directorate of Education, Islamabad for Respondents.

Dates of hearing: 29th September, 17th, 27th October and 15th November, 2011.

2013 P L C (C.S.) 545

[Islamabad High Court]

Before Riaz Ahmad Khan, J

MUHAMMAD RAFIQUE

Versus

MINISTRY OF EDUCATION through Secretary Education, Government of Pakistan, Islamabad and others

Writ Petitions Nos.1508 to 1514 of 2010, decided on 18th February, 2013.

(a) Allama lqbal Open University Act (XXXIX of 1974)---

----S. 18---Constitution of Pakistan, Arts.199, 189, 25 & 4---Civil Service---Increments---Benefit of decision of Service Tribunal to the employees who were similarly placed but not party to proceedings---Petitioners sought benefit of judgment of Supreme Court and Service Tribunal that was given to their colleagues, who were similarly placed in relation to increments in salary---Contention of University authorities (employer) was that said benefit could not be extended to the petitioners as they were not party to proceedings either before the Service Tribunal or the Supreme Court---Validity---Once a decision was made by the Supreme Court, determining a question of law or enunciating a principle of law, the same was binding on all courts in Pakistan---Judgment of the Supreme Court becomes a guideline that had to be followed by everyone---When a person got benefit from the judgment of the Supreme Court, then all other similarly placed persons would become entitled to the same relief, irrespective of the fact as to whether they were party in the earlier litigation or not---If one benefit had been extended to the employee on basis of a judgment of the Service Tribunal, then refusal of the same benefit to other employees who were similarly placed, was violative of Art.4 and Art.25 of the Constitution---Petitioners, in circumstances, were entitled to the salary/increment accordingly---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court binding on other courts ----Once a decision was made by the Supreme Court, determining a question of law or enunciating a principle of law, the same was binding on all courts in Pakistan---Judgment of the Supreme Court becomes a guideline that has to be followed by everyone---When a person got benefit from the judgment of the Supreme Court, then all other similarly placed persons would become entitled to the same relief irrespective of the fact as to whether they were party in the earlier litigation or not.

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

----Ss. 1(3) & 5 --- Constitution of Pakistan, Arts.4 & 25---Decision of Service Tribunal---Scope---If one benefit had been extended to the employee on basis of a judgment of the Service Tribunal, then refusal of the same benefit to other employees similarly placed was violative of Art.4 and Art.25 of the Constitution.

L.K. Sehraee for Petitioner.

Malik Shaukat Nawaz and Sardar Shahid Hanif for Respondents.

Date of hearing: 11th February, 2013.

2013 P L C (C.S.) 789

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

Ch. ABDUL HAMEED

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

Writ Petition No.2238 of 2011, heard on 31st May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Pension, increase in---Contention of the petitioner was that the respondent public Insurance Corporation vide an office memorandum had increased the pension of ex-employees, however, said increase was denied to the petitioner on the ground that the increase was for employees who had retired before the year 1999 while the petitioner retired in the year 2000---Validity---Perusal of office memorandum revealed that it sated "the increase in pension was admissible to those government servants who had retired between the period commencing from July 1999 and introduction of revised pay scales; and such pay scales were revised in December 2001, therefore, the petitioner who retired in the year 2000, was entitled for receiving the increase in pension---High Court directed that the pension of the petitioner be increased in accordance with the office memorandum---Constitutional petition was allowed, in circumstances.

(b) State Life Employees (Service) Regulations, 1973---

----Constitution of Pakistan Art.199---Constitutional jurisdiction of High Court--- Scope--- Service of State Life Insurance Corporation employees---Services of employees of the State Life Insurance Corporation were governed by statutory rules, hence, they could invoke the constitutional jurisdiction of High Court under Art.199 for redressal of their grievances relating to their service matters.

Ghulam Yaqub Malik for Petitioner.

Malik Saeed Javed Akhtar and Tahir Malik for Respondents.

Date of hearing: 31st May, 2012.

2013 P L C (C.S.) 795

[Islamabad High Court]

Before Riaz Ahmad Khan, J

MUHAMMAD ISLAM KHAN

Versus

ZARAI TARAQIATI BANK LTD. and others

Writ Petition No.2092 of 2012, decided on 22nd January, 2013.

National Accountability Ordinance (XVIII of 1999)--

----Ss. 25(b), 25(a) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Civil Service---Corruption/corrupt practices---"Voluntary return" and "plea bargain"---Distinction---Conviction---Scope---Petitioner was dismissed from service on the ground that earlier, an inquiry was initiated against him for corrupt practices which ended after the petitioner's application for voluntary return was accepted---Contention of the petitioner was that voluntary return did not amount to conviction and therefore, no grounds existed to dismiss him from service---Validity---Proviso to S.15(a) of the National Accountability Ordinance, 1999 clearly showed that a person who availed benefits of S.25(b) of the Ordinance (plea bargain) shall also be deemed to be convicted, but said penalty had not been provided for any person who had availed benefit of S.25(a) (voluntary return)---In case of voluntary return, the accused was required to come forward voluntarily to return the assets or gains acquired as a consequence of corrupt practices and if the offer for voluntary return was made prior to authorization of investigation, the Chairman NAB had the authority to accept the accused's offer and the accused may thereafter be discharged from all liabilities---Facility of voluntary return could be attained by the accused prior to authorization of investigation, whereas in case of plea bargain, the offer was made by the accused after the authorization of investigation---In case of a plea bargain, the decision on the offer of the accused amounted to a conviction but in case of voluntary return, no conviction was recorded by any court, therefore, consequences of S.15 of the Ordinance were not attracted to the case of voluntary return---Present case was one of voluntary return and there was no fresh allegation of corrupt practices against the petitioner, and no charge was framed to such effect nor any evidence was recorded---Dismissal from service of petitioner was therefore unjust, without jurisdiction and of no legal effect---High Court set aside dismissal from service order and directed that petitioner be reinstated with all back-benefits---Constitutional petition was allowed, in circumstances.

2007 PLC (C.S.) 247 ref.

PLD 2003 SC 837 and 2011 SCMR 1560 distinguished.

Muhammad Rafiq Rajwana for Petitioner.

Abdur Rehman Siddiqui, Ch. Imtiaz Ahmed, AVP (Law) ZTBL and Muhammad Khan, OG-I, ZTBL for Respondents.

Date of hearing: 16th January, 2013.

2013 P L C (C.S.) 812

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD FARHAN

versus

ESTATE OFFICE through Joint Estate Officer Islamabad and 2 others

Writ Petition No.796 of 2011, decided on 19th February, 2013.

Accommodation Allocation Rules, 2002---

----Rr. 15(2), 15(4) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Civil Service---Retention of official accommodation by civil servant after retirement or transfer---Scope---Petitioner sought a direction to the Estate Officer for the vacation of accommodation allotted to him, but occupied by the previous allottee, who had been transferred to an overseas embassy---Validity---Transfer of previous allottee had not been denied and he had also been provided an accommodation by the overseas embassy---Previous allottee had violated provisions of Rr.15 and 17 of the Accommodation Allocation Rules, 2002 by retaining the possession of the accommodation in Pakistan and also occupying the one provided to him overseas---Possession of two houses at the same time made the previous allottee liable for disciplinary action under R.17 of the Accommodation Allocation Rules, 2002---High Court directed the Estate Officer to immediately have the house vacated and to deliver the possession of the same to the petitioner---Constitutional petition was allowed, in circumstances.

Manzoor Ahmad v. Province of Punjab 1998 PLC (C.S.) 4 and Fazal Abbas v. F.O.P. Writ Petition No.3227 of 2010 rel.

Khurram Mehmood Qureshi for Petitioner.

Qazi Rafi-ud-Din Babar, Dy. A.-G. with Qaiser Mehmood, Estate Officer for the State.

Azizullah Marwat for Respondents.

Date of hearing: 31st January, 2013.

2013 P L C (C.S.) 839

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

ALTAF AHMED and others

Versus

FEDERAL GOVERNMENT OF PAKISTAN and others

Writ Petition No.1397 of 2012, heard on 12th November, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of contract employee---Regularization Policy of Federal Government---Decision made by Cabinet Sub-committee---Scope---Petitioners, who were contract employees, sought direction for the regularization of their service ---Contention of the petitioners was that in the light of the Regularization Policy of the Federal Government, they were eligible for regularization and that the condition imposed that only employees less than fifty years of age could be regularized, was illegal and void---Validity---Petitioners were duly considered for regularization by the Cabinet Sub-Committee, in the light of the Regularization Policy of the Federal Government, however their cases were not recommended for regularization as their ages were not less than fifty years: therefore, a specific decision had been taken on their cases by the Cabinet Sub-committee---Petitioners were seeking regularization of services according to the Regularization Policy of the Federal Government, but at the same time were deviating from the decision of the Cabinet Sub-Committee constituted by the Federal Government for implementation of the said policy---Petitioners had also failed to provide any document to show that they had been discriminated against and therefore, the case of the petitioners was without merit---Constitution petition was dismissed, in circumstances.

2012 SCMR 773; 2006 SCMR 1240; PLD 2010 SC 857; 2003 SCMR 291; 2010 SCMR 431; 1996 SCMR 1185; 2009 SCMR 1; 2009 PLC (C.S.) 229; 2011 SCMR 1602; 2011 SCMR 1864 and 2011 CLC 116 ref.

Muhammad Aftab Alam Rana for Petitioners.

Tariq Mahmood Jahangiri, Dy.A.-G. for Respondents Nos.1 and 2.

Muhammad Ibrahim Baig for Respondent No.3.

Date of hearing: 12th November, 2012.

2013 P L C (C.S.) 858

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

ABDUL REHMAN and another

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

First Appeals from Order Nos.53 and 54 of 2011, decided on 21st February, 2013.

Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 7(3)---Rules of Business, 1973, Schedules I & III---Civil Service---Section Officers Promotion Examinations---Directorate General of Inter Services Intelligence (ISI) and Federal Water Management Cell were neither "Attached Departments" nor fell within the definition of "Federal Secretariat"--- Appellants, who were employees of the ISI and Federal Water Management Cell, in response to an advertisement by the Federal Public Service Commission appeared in the Section Officers Promotion Examination---Subsequently the results of the appellants were withheld and they were declared ineligible to appear in said examination on the ground that the appellants were employees of Departments which were neither "Attached Departments" nor part of the "Federal Secretariat"---Validity---In Schedule-I of the Rules of Business, 1973 the Ministries and Divisions of the Federal Government were mentioned, and in said Schedule, both the ISI and Federal Water Management Cell were not mentioned, therefore, the said departments did not fall within the definition of the "Federal Secretariat"---Schedule-III of the Rules of Business, 1973 contained a list of the Attached Departments, declared by the Federal Government, and in the said list the ISI and Federal Water Management Cell were not mentioned---High Court observed that there was no other criteria or yardstick available in law on basis of which the status of the ISI and Federal Water Management Cell could be determined and in said regard, reliance had to be solely placed on the Rules of Business, 1973---High Court further observed that the appellants were not eligible to appear in the Section Officers Promotional Examination in view of the criteria laid down by the Federal Public Service Commission in the advertisement---Appeals were dismissed, in circumstances.

Muhammad Umair Baloch for Appellants.

Tariq Mehmood Jahangiri, Dy. A.-G., Pir M. Ishaq, Director (Legal), Federal Public Service Commission, Islamabad and Kamran Raffat, Assistant Director, Federal Public Service Commission, Islamabad for Respondents.

Date of hearing: 21st February, 2013.

2013 P L C (C.S.) 864

[Islamabad High Court]

Before Riaz Ahmad Khan, J

SAJID MEHMOOD RAJA and another

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.1213 of 2013, decided on 25th March, 2013.

(a) Civil service---

----Transfer/posting, right of---Scope---Ordinarily, transfer and posting could not be claimed as a matter of right---Civil servant aggrieved of his transfer could agitate his question of transfer before the competent forum, however, the authority to transfer lay with the competent authority and civil servant could not claim transfer or posting as a matter of right.

(b) Civil service---

----Appointment against a particular post at a particular place, right of---Scope---Only the Government could determine as to which officer was suitable for which place---Government had to keep in view the conditions, requirements, importance of the post and suitability and competence of officer to be posted on a post---Court could not step into the shoes of the Government and determine suitability and competence of an officer for a particular post.

1994 PLC (C.S.) 43; 1991 PLC (C.S.) 374 and 1999 PLC (C.S.) 201 rel.

(c) Civil service---

----Government policy regarding posting of officers---Interference by court in such a policy---Scope---Court did not have the power to take the role of policy maker---Government had every right to introduce its policy and the court could not substitute the policy decision with its own opinion---Policy, however, could be challenged at the touchstone of the Constitution and if it was found that the policy itself was violative of any provision of the Constitution or law, same could be struck down---Even where court struck down a policy as being violative of the Constitution or law, it would not give its own policy by substituting the one introduced by the Government.

2006 SCMR 1427 and PLD 2006 SC 697 rel.

(d) Civil service---

----Selection process for a post---Interview---Subjective assessment of a candidate---Scope---Interview (of a candidate) usually involved subjective assessment---Subjective assessment had to be based on some objective criteria, so that the element of arbitrariness and uncontrolled discretion was avoided---Discretion could not be used in an arbitrary manner.

2003 SCMR 291 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Posts of trade officers to be appointed in foreign countries---Selection process/formula---Interview of candidates---Policy of Government to give 70% weightage to interview of candidates during selection process---Interference in such policy by the court---Scope---Officers for the posts in question were to be selected through competitive examination and interview---Respondents successfully cleared the selection process and were selected for postings abroad---Petitioners were unsuccessful in clearing the selection process---Pleas on behalf of petitioners were that 70 % weightage was given to interview for the only reason that Government wanted to select officers on basis of pick and choose by ignoring merit; and that marks were given to some candidates during interview to bring them at par with those who had obtained higher marks in written tests---Validity---Government had every right to introduce its policy and the Court could not substitute the policy decision with its own opinion---Marks in the interview were given on the basis of different attributes namely, interpersonal skills, communication skills, market intelligence and research (skills), IT skills, brand advocacy (skills), conflict resolution (skills) and management skills---Authority given to officers to conduct interview of candidates could not be substituted by the Court as long as assessment made by them was not against the policy or rules---Officers conducting interview of candidates made the assessment according to the objective criteria given in the policy, therefore, the same could not be questioned---Officers conducting the interview had the exclusive prerogative to assess the candidates and award marks---Officers conducting interview belonged to different ministries and on the basis of presumptions it could not be said that all of them were involved in malpractice---Petitioners themselves appeared in the written test and interview, therefore, by their own conduct they were estopped from challenging the process in which they had themselves participated---Constitutional petition was dismissed in circumstances.

2006 SCMR 1427 and PLD 2006 SC 697 rel.

(f) Constitution of Pakistan---

----Arts. 212 & 199---Constitutional petition---Maintainability---Alternate remedy---Posts of trade officers to be appointed in foreign countries---Selection process/formula---Interview of candidates---Policy of Government to give 70% weightage to interview of candidates during selection process challenged by way of constitutional petition before the High Court---Plea that transfer and posting fell within the terms and conditions of service and the petitioners being civil servants had alternate remedy to approach the Service Tribunal, therefore, constitutional petition was not maintainable---Validity---Petitioners were seeking remedy of being posted abroad on the basis of a (Government) policy which did not form terms and conditions of service---Since present constitutional petition was not for the implementation of terms and conditions of service, therefore, bar provided under Art.212 of the Constitution had no application---Constitutional petition was held to be maintainable in circumstances.

Barrister Zafar Ullah and Barrister Afzal Hussain for Petitioners.

Tariq Mahmood Jhangiri, D.A.-G., Abdul Kabir Qazi, Joint Secretary, Ministry of Commerce, for Respondents

Abdul Aziz and Ms. Azra Jamali Respondents in Person.

Date of hearing: 25th March, 2013.

2013 P L C (C.S.) 880

[Islamabad High Court]

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

AMJAD ALI and another

Versus

GOVERNMENT OF PAKISTAN through Secretary of Ministry of Finance and others

Writ Petitions Nos.719 and 843 of 2012, heard on 7th February, 2013.

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

----Rr. 5 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Civil Service---Enhancement of allowances---Ministry of Finance bound to obey sanction of allowance made by Chief Justice. Federal Shariat Court---Petitioners, who were employees of the Federal Shariat Court, prayed for the implementation of two notifications issued by the Chief Justice, Federal Shariat Court whereby their allowances and perks were to be enhanced---Said notifications were not implemented by the Ministry of Finance on the ground that financial benefits to employees were always granted by the Ministry of Finance, keeping in view the resource position of the country---Validity---Under the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, the Chief Justice was fully authorized to sanction or enhance allowances of employees of the Federal Shariat Court---Ministry of Finance, in the present case, did not come forward with any law on basis of which an order passed by Chief Justice Federal Shariat Court, while exercising powers under Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, could not be varied or struck down---Ministry of Finance was bound to obey the orders passed by authorities as prescribed by the rules without taking any exception to the same and could not be allowed to act in defiance of the law and the rules---Ministry of Finance, was therefore, under an obligation to obey the sanction accorded by the Chief Justice, Federal Shariat Court---High Court directed Ministry of Finance to implement the notifications issued by the Chief Justice Federal Shariat Court and make payment of arrears to entitled employees accordingly---Constitutional petitions were allowed, in circumstances.

Government of Pakistan through Ministry of Finance v. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others 1992 SCMR 1852 rel.

(b) Public Functionary---

----Duties of---Public functionaries were duty bound to act in accordance with the rules and law on the subject and could not be allowed to approbate and reprobate.

Petitioner in person.

Tariq Mehmood Jahangiri, Deputy Attorney-General for Respondents.

Date of hearing: 7th February, 2013.

2013 P L C (C.S.) 899

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

INAAM ELAHI NASIR and others

Versus

NATIONAL BANK OF PAKISTAN and others

Writ Petitions Nos.764 of 2007, 1884 and 1885 of 2009, heard on 19th December, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Territorial Jurisdiction of High Court---Scope---Respondent located at a place beyond the territorial jurisdiction of High Court, whereas all the petitioners except one were in service in different cities of another Province---High Court had no jurisdiction to adjudicate upon the matter---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Bank employees---Golden Handshake Scheme, benefit of---Re-calculation of ad hoc relief, Golden Handshake and other benefits---Discrimination---Reasonable classification---Scope---Ex-employees of the bank claiming re-calculation of retirement emoluments---Validity---Ex-employees having exercised the option to retire under the Golden Handshake, were deemed to be retired from service on and from the cut off date---Ex-employees could not be treated at par with those employees who had not exercised such an option and were still continuing in service---Reasonable classification did exist between the two categories of employees i.e. those who had exercised the option and those who had not exercised the option---Ex-employees failed to point out discrimination in their case---Ex-employees received their dues without any objection and were paid emoluments in full for the period they worked after they had opted for the Golden Handshake Scheme---Constitutional petition was dismissed accordingly.

National Bank of Pakistan through Chairman v. Nasim Arif Abbas and others 2001 SCMR 446 rel.

Khyber Zaman v. Government State Bank of Pakistan PLD 2003 SC 839; 1996 SCMR 1185, 71 and 82 and 2003 PLC (C.S.) 796 ref.

Muhammad Shoaib Shaheen for Petitioners.

Ehsan Ahmad G. Khawaja for Respondent.

Date of hearing: 19th December, 2011.

2013 P L C (C.S.) 915

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

Mst. ROBIA AYUB

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education and others

Writ Petition No.1569 of 2011, decided on 19th May, 2011.

(a) Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Maintainability---Civil service---Policy decision---Policy decision cannot be interfered with by High Court under constitutional jurisdiction, unless there exists strong reasons or there is discrimination.

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

----S. 10---Deputation---Wedlock policy---Scope---Claim of civil servant for permanent absorption against the post held as deputationist on the basis of wedlock policy---Validity---Deputation is an administrative agreement between borrowing and lending authorities for utilizing the services of an employee in the public interest and exigency of services against a particular post against which the deputationists cannot claim any right of permanent absorption.

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

----S. 10---Civil servant---Deputation post---Right of civil servant to remain on deputation post on expiry of deputation period---Deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his/her own whims and wishes.

Dr. Shafi-ur-Rehman Afridi v. CDA Islamabad through Chairman and others 2010 SCMR 378 rel.

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

----S. 10---Civil service---Deputation post---Right of civil servant to complete period of deputation---Scope---Civil servant has no vested right to complete the deputation period and in the matter relating to the terms and conditions of service.

Syed Mumtaz Mazhar Naqvi for Petitioner.

2013 P L C (C.S.) 962

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Maj. Gen Retd. Malik MUHAMMAD FAROOQ

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.1515 of 2013, decided on 12th April, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Managing Director (BS-21) of Utility Stores Corporation---Appointment retired Major General of Pak Army on such post on contract of two years---Premature termination of petitioner's contract by Care-Taker Prime Minister---Petitioner's pleas were that impugned act of Care-Taker Prime Minister did not fall within his mandate to hold fair elections; that fixed term contract could not be terminated for any reason except proved misconduct; that such Corporation was a Private Limited Company, thus, petitioner could be removed from such post under Ss.109 & 202 of Companies Ordinance, 1984, but not otherwise---Validity---Policy circulated through Establishment Division Office Memo No.6/2/2000R.3, dated 6-5-2000 for being a political bribe was violative of constitutional mandate, principle of natural justice and motivated to avoid appointments on merits and oblige blue eyed persons---Statute or policy guidelines having any provision violative of Fundamental Rights would be of no value---Constitution ensured elimination of exploitation, but not its promotion---Retired Army Officer not having any preference over other citizens could not be obliged merely for being an Army Officer---Posts of government owned corporations/ organizations/companies etc. would be required to be filled through competitive, credible, fair, open and transparent process and not on basis of personal likings and in violation of merit---Army Officer selected through competitive process would become entitled to appointment with full protection of law---High Court dismissed constitutional petition and directed Secretary Industries to appoint Managing Director through competitive process to be commenced with proper advertisement and completed within specified time, and till then most senior employee of Corporation having requisite qualifications and experience be appointed as its Acting Managing Director.

Ch. Hassan Murtaza Maan for Petitioner.

Tariq Mehmood Jehangiri D.A.-G.

Madam Yasmin, Joint Secretary, Muhammad Alam, Dy. Scretary, M/o Industries.

Abdul Latif (Deputy Secretary) and Shamas-ud-Din (Section Officer) M/o Establishment Division.

2013 P L C (C.S.) 974

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

NAZAR ASLAM

Versus

FEDERAL GOVERNMENT and 6 others

Writ Petition No.2744 of 2011, decided on 29th February, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Appointment in statutory body---Statutory bodies are governed under Acts, Rules and statutes which are meant for the purpose and no one can exceed from its domain, neither supersede nor deviate and if the acts are done by the Authority against public interest and in violation of the statutes---Constitutional petition was maintainable.

2011 MLD 322 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Locus standi---Quo warranto can be moved by any person and the petitioner need not be an "aggrieved party".

PLD 1974 SC 228 rel.

(c) Constitution of Pakistan---

----Art. 199---Federal Board of Intermediate and Secondary Education Act (LXVIII of 1975), S.11---Quo warranto, writ of---Re-appointment of Chairperson of a statutory body---If there were any violations of Rules or Statutes in making the appointment, any body can point those illegalities and can approach the court for the issuance of writ of quo warranto.

(d) Civil service---

----Good governance emphasise that legal procedure should be adopted and right person at right place be appointed for smooth running of the affairs.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Re-appointment of BS-20 officer against the post of BS-22---Post of Chairperson of Secondary Board was upgraded from BS-20 to BS-22, incumbent was an officer of BS-20 and could not have been re-appointed against a post which was two steps higher to her grade---Re-appointment of Chairperson was declared by High Court as violative of rules.

(f) Words and phrases---

----"Public Officer"---Meanings.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Appointment of Grade 20 officer against the post of Grade 22 despite availability of qualified officers---Appointment against merit always creates un-rest among the officers who meet the requirements of posting but are ignored without any justifiable reason---Such actions are not only detrimental to public interest but also against the policy of good governance---Courts are under obligation to strike off such irregularities/illegalities so that people may not lose their confidence in the courts---Constitutional petition was allowed.

(h) Constitution of Pakistan---

----Art. 199---Federal Board of Intermediate and Secondary Education Act (LXVIII of 1975), S.11---Constitutional petition---Re-appointment of Chairperson---Non-obtaining consent of parent department of the appointee---Consent of parent department was not obtained and respondent incumbent was given an extension for two years---Chairperson was appointed by the Federal Government for a term of three years and was eligible for reappointment for a second term---Required qualification for reappointment could not have been ignored---Constitutional petition was allowed.

1997 PLC (C.S.) 451; PLD 1996 SC 771; 2011 MLD 322; PLD 1974 SC 228; 1998 PLC (C.S.) 1016; 2010 SCMR 378; PLD 2007 SC 52; PLD 2010 SC 817; PLD 2010 Lah. 625; 2010 PLC 619; 2009 PLC 722; 2008 PLC 659; 1999 SCMR 1585; 1999 SCMR 2786; 1999 PSC 686; 1997 PSC 273; 2010 PLC 367; 2011 PLC (C.S.) 756; PLD 1996 SC 324; 2011 PLC (C.S.) 482; 2011 PLC (C.S.) 203; 2004 PLC (C.S.) 1328; 2004 PLC (C.S.) 1142; PLD 1965 SC 598; AIR 1970 Kerala 312; AIR 1961 Madras 450 and AIR 1961 SC 647 ref.

Sher Afzal Khan for Petitioner.

Qazi Rafi-ud-Din Babar, D.A.-G. for Respondents Nos.1 to 4.

Malik Anwar Mukhtar for Respondent No.5.

Abdur Rahim Bhatti, ASC for Respondent No.6.

Date of hearing: 27th January, 2012.

2013 P L C (C.S.) 987

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

YAWAR ABBAS and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.807 of 2012, decided on 5th March, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Contractual employee--- Seniority--- Non-statutory service rules---Regularization of services---Fixation of ante dated seniority from the date of initial appointment---Petitioners were regularized in the light of the judgment of Supreme Court through departmental Selection Committee and they were placed on the bottom of seniority list under the relevant rules---Seniority could not be fixed higher than the other regular employees who had already been working in the cadre---Constitutional petition was allowed---Department was directed to fix the seniority of petitioners from ante-date as per the recommendations of Committee.

1992 SCMR 1093, 2007 PLC (C.S.) 138; 2009 PLC (C.S.) 565; 2010 SCMR 1484; 2011 SCMR 944; Muhammad Idris v. ZTBL PLD 2007 SC 681 and Mubeen-ul-Salam's case PLD 2006 SC 602 ref.

(b) Civil service---

----Seniority---Fixation of seniority from ante-date---Petitioners could not claim ante-dated seniority as a matter of right---In the light of directions of Supreme Court, petitioners approached the department, whereby a Committee was constituted---Committee recommended for ante-dated seniority and pay protection from the date of appointment---Department failed to take any decision on said recommendations on the ground that recommendations of the Committee were not binding and department was not supposed to pass any order on the same---Validity---Approach of the department was not only contemptuous but unprecedented as well---Petitioners had approached the department in accordance with the directions of the Supreme Court---Committee was constituted by the department and recommendations were conveyed---Department could not be allowed to take U-turn and say that the Committee was not properly constituted and its recommendations were not binding---Department was directed by High Court to fix the seniority of petitioners from ante-date as per the recommendations of Committee.

(c) Civil service---

----Contractual employees---Regularization of services---Committee was constituted by the department to make recommendations about the regularization of services of contractual employees in view of the judgment of the Supreme Court---Department did not challenge the constitution of Committee, its mandate and recommendations, rather with mala fide intention sat over the recommendations---Act of the department was rarity and uncalled for---Department was directed by High Court to follow/implement the recommendations of Committee.

Hashmat Ali Habib for Petitioner.

Javed Iqbal Standing Counsel.

Shahid Mahmood Khokhar for Respondents Nos.1 and 2.

Syed Kazim Hussain Kazmi for Respondents Nos.3 to 23.

2013 P L C (C.S.) 1004

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

FARID-UD-DIN---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and others---Respondents

Writ Petitions Nos.561 and 607 of 2013, decided on 18th February, 2013.

Capital Development Authority Ordinance (XXIII of 1960)---

----Ss.37 & 49---Islamabad Land Disposal Regulations, 2005, Reglns. 4 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Decision of Board of Capital Development Authority declaring all deputationists on its strength eligible to get allotment of residential plot on fulfilling required criteria---Petitioner, as employee of Federal Government having served the Authority on deputation claimed allotment of plot on basis of said decision of Board---Refusal of the Authority to allot plot to petitioner---Validity---Powers conferred on the Authority to dispose of its land would be regulated through Reglns. 4 & 5 of Islamabad Land Disposal Regulations, 2005---Neither the Authority had appointed petitioner nor had he been absorbed in the Authority---Petitioner could avail right of allotment of plot under 10% quota reserved for Federal Government servants, but he being deputationist could not claim allotment as employee of the Authority---Such decision of Board considering deputationists to be having equal status of regular employees of the Authority was a door of corruption and was not backed by the Constitution---High Court dismissed constitutional petition in circumstances.

Sher Afzal Khan for Petitioner.

2013 P L C (C.S.) 1089

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

MIRAJ GUL

Versus

RUKHSANA AMEEN and others

Civil Revisions Petitions Nos.3 of 2013 and 120 of 2012, heard on 18th February, 2013.

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

----O. I, R. 10---Necessary party, impleading of---Scope---Suit for declaration seeking right of allotment of government accommodation---Suit was decreed concurrently and application for impleadment as party to the suit was dismissed---Contention of applicant was that he was a necessary party to the proceedings, inter alia, on the grounds that he was in occupation of said accommodation which had been earlier allotted to him, and later cancelled by the Department---Validity---Applicant was the necessary party to the proceedings as he was the occupant of the accommodation in question and the plaintiff was aware of the fact that the accommodation had been allotted to the applicant, however the plaintiff dishonestly did not array him as a defendant---Courts had emphatic power to implead any necessary party to reach a just and fair conclusion, which was lacking in the present case---Ignoring the applicant and passing a decree against him in his absence was a classic example of violation of principle of audi alteram partem---Department, prima facie had cancelled the allotment of accommodation under the influence of pending litigation even though earlier the same accommodation was allotted to the applicant on merits---High Court set aside impugned orders of courts below and remanded the case to Trial Court with the direction to implead the applicant as necessary party---Revision was allowed, accordingly.

Muhammad Din v. Sher Muhammad 1999 CLC 1526; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Basharat Ali and others v. Muhammad Anwar and others 2010 SCMR 1210; H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65 and Allah Ditta v. Lahore Development Authority and 5 others 2012 CLC 271 ref.

Shaib Dad v. Province of Punjab and others 2009 SCMR 385 and Muhammad Din v. Sher Muhammad 1999 CLC 1526 rel.

(b) Administration of justice---

----No one should be condemned unheard and decisions should not be made merely on technicalities.

(c) Natural Justice, principles of---

----Judgment and decree of a court of law should be based on the touchstone of natural justice

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

----O. I, R. 10---Necessary party, impleading of---Courts had emphatic power to implead any necessary party to reach a just and fair conclusion.

Sher Afzal Khan for Petitioner.

Syed Mujtaba Haider Sherazi for Respondents.

Date of hearing: 18th February, 2013.

2013 P L C (C.S.) 1113

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

MUHAMMAD GHAFOOR

Versus

MINISTRY OF RAILWAY through Secretary/Chairman and others

Writ Petition No.3216 of 2011, heard on 29th May, 2012.

Constitution of Pakistan---

----Arts. 212 & 199 ----Constitutional petition---Civil service---Move-over to a higher service grade---Constitutional jurisdiction of High Court was barred in such matters under Art.212 of the Constitution---Petitioner who was serving in the Railways Department contended that he was entitled for a move-over from BPS-17 to BPS-18 and that he had been discriminated against as such benefit was granted to a number of other employees of the Department---Validity---By virtue of Art.212 of the Constitution, the petitioner could not have invoked the Constitutional jurisdiction of High Court under Art.199, and therefore, the present Constitutional petition was not maintainable and was dismissed.

Pakistan Railways through G.M. Lahore and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730 rel.

Ghulam Rasool Bhatti for Petitioner.

Tajammal Hussain for Respondents.

Date of hearing: 29th May, 20012.

2013 P L C (C.S.) 1125

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

Raja SHEHRYAR

Versus

PAKISTAN COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH, through Chairman

Writ Petition No.330 of 2012, heard on 12th September, 2012.

(a) Pakistan Council of Scientific and Industrial Research Act (XXX of 1973)---

----S. 18---Pakistan Council of Scientific and Industrial Research Service Regulations, 1981, Regln.24---Constitution of Pakistan, Art.199---Constitutional petition---Civil Service---Ex-Pakistan leave---Foreign study---Reimbursement of expenses incurred on foreign-study---Petitioner was nominated for a course of study abroad and a "No Objection Certificate" (NOC) was also issued in his favour for the same, after which he was granted study-leave along with scholarship for the costs of study---Contention of the petitioner was that subsequently his study leave was withdrawn and he was told that he had to bear expenses for foreign study himself and that he was granted only extraordinary leave without pay---Petitioner sought repayment of the expenses incurred on his foreign study as well as the conversion of the extraordinary leave (without pay) into study leave (with pay)---Validity---Petitioner had himself submitted his willingness, without any protest, that he be granted leave of any kind and had also showed the willingness to bear all expenditures of his study from his own pocket, and therefore, the petitioner did not have justification to request payment of expenditure incurred on his foreign study as well as conversion of leave without pay into study leave (on full pay)---Neither the project under which the availability of funds for foreign study of the petitioner was in existence any more, neither the Project Director who had granted study leave to the petitioner was holding the said post---Petitioner could not ask the department to grant him funds as at the time he was granted "NOC", he was not an employee of the said department but was working on a Project and all benefits and liabilities of the said project had come to an end on its completion---Petitioner was, therefore, not entitled to reimbursement of expenses and neither for the conversion of his leave into study leave---Constitutional petition was dismissed, in circumstances.

PLD 1956 Dacca 153; PLD 1975 SC 620; PLD 1997 Kar. 62; 2010 SCMR 1458; 2011 SCMR 1220 and 2010 SCMR 1301 ref.

(b) Locus Poentientiae---

----Principle of--- Principle of Locus Poentientiae applies where certain vested rights accrue in favour of someone in furtherance of a valid legal order, however, the said principle would not arise in a situation when some benefit accrued due to an illegal order.

Executive District Officer (EDU.) Rawalpindi and others v. Mst. Rizwana Kausar and 4 others 2011 SCMR 1581 and 2011 SCMR 408 rel.

Hafiz S.A. Rehman along with Muhammad Anwar Mughal for Petitioner.

Ch. Amjad Ali, Consultant Legal for Respondent.

Date of hearing: 12th September, 2012.

2013 P L C (C.S.) 1147

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

M. ASHRAF AZEEM

Versus

FEDERAL GOVERNMENT OF PAKISTAN and others

Writ Petition No.2503 of 2009, decided on 12th April, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment in the State-owned companies, corporations, establishments, organizations, etc.---Terms and conditions of appointments---Pay package---Share in profit of the corporation was offered in addition to salary---Reasonableness---Managing Director of the Corporation was allowed to take 3% of the profits from the specific monthly revenue along with his salary and other emoluments---Validity---Terms and conditions of appointment were not only dubious but unprecedented as well and beyond the comprehension that any head of organization would be allowed to take profits from the income/revenue received---As head of the Corporation the respondent was supposed to work for generating/increasing income of the Corporation but not to get share out of it---Although entire package of respondent looked unreasonable but part relating to share in profit was offensive to the rights of regular employees and those who retired by giving their youth to the Corporation but neither being paid reasonable salaries nor their due pension---Held, respondent was not entitled to receive any amount against specified revenue, therefore he was under obligation to return whole amount received by him as 3% monthly revenue---High Court directed to recover the amount received by the Managing Director as 3% of monthly revenue.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment in the State-owned companies, corporations, establishments, organizations, etc.--- Procedure--- Open competition--- Competitive process for contractual appointments---Appointment of the head of State owned corporation was made without any competitive process---Appointment of Managing Director of Corporation was made on contract basis with the approval of Board of Directors of the Corporation---Validity---Process of appointment needed to be competitive, credible, fair, transparent and on merits, instead of political affiliation, specific background and favoritism---If any employee was to be promoted then principle of seniority-cum-fitness had to be followed and if circumstances compel, then any person may be appointed from the open market but through competitive, transparent and objective process---Appointment of Managing Director of the Corporation, in the present case, was result of colourable exercise of authority, without due process, non-transparent approach, against the principles of healthy competition, fairness, openness, merit, offensive to the constitutional provisions and besides the settled law---Notification of appointment of Managing Director of the Corporation was set aside---All appointments made without competitive process were also declared as illegal and void---Secretary, Ministry of Information was directed to commence competitive process with proper advertisement for appointment against the post of Managing Director.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Muhammad Yasin's case PLD 2012 SC 132; and Hajj Corruption's case PLD 2011 SC 963 rel.

Sahibzada Anwar Hamid for Petitioner.

Tariq Mehmood Jehangiri, D.A.-G. and Dr. Babar Awan for Respondent No.2.

Shahid Mehmood Khokhar for Respondents Nos.2 and 3.

Syed Naeem Bukhari, ASC and Ijaz Janjua for Respondent No.4.

Zahoor Barlas, Joint Secretary for Respondent No.3.

Date of hearing: 12th April, 2013.

2013 P L C (C.S.) 1178

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Dr. ALTAF HUSSAIN

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.615 of 2013, decided on 22nd April, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Respondent was appointed on deputation against the post reserved for promotion---Appointment was made by relaxing rules---Petitioner was deprived from right of promotion---Effect---Appointment of respondent was result of some extraneous considerations and not on the principles of merit, transparency, credible process and requisite qualification---Senior official of the establishment who possessed the qualification and experience to be promoted as executive director had been denied the right of consideration, not on the basis of any valid reason rather on flimsy grounds, conjectures and surmises---Appointment of respondent incumbent was declared illegal by High Court and set aside---Department was directed to immediately commence the process of promotion by considering the eligibles on the basis of seniority cum fitness---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 199-Constitutional petition---Civil service---Appointment against public posts---Procedure---Open competition---Appointments in government departments, establishments, organizations, corporations and companies must be based on merits through open, transparent and credible competitive process---Appointments made on political affiliations, extraneous considerations, polluted process and based on favoritism were disapproved.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Amina Turab's case PLD 2013 SC 195; Muhammad Yasin's case PLD 2012 SC 132 and Hajj Corruption's case PLD 2011 SC 963 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Competitive process for appointment--Appointment made without open competition by relaxing rules---Appointing authority came with the explanation that appointment though made besides the prescribed procedure and without competitive process but appointee being most deserving person, highly qualified and richly experienced was accommodated in the public interest---Validity---Appointment without competitive process or merit, promoted the culture of corruption, discrimination and undue favour---If someone picked by Authority is of great caliber, immense talent, illustrious career, accepted eminence and exemplary profile then such person should not be shy of putting himself in the competitive process and earn the appointment on merit instead of favour---Appointment made without competitive process was declared as illegal---Constitutional petition was allowed.

Muhammad Shoaib Shaheen and M. Umair Baloch for Petitioner.

Tafiq Mehmood Jehangiri, D.A-G. , Amjad Saeed Awan, S.O. Estb. Division, Navid Anjum, Legal Advisor, PIMS, Tariq Mehmood Khalid for Respondent No.3.

Date of hearing: 22nd April, 2013.

2013 P L C (C.S.) 1254

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

UNIVERSITY STAFF WELFARE ASSOCIATION, INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD

Versus

RECTOR, INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD and others

Writ Petition No.3362 of 2012, decided on 29th May, 2013.

International Islamic University Ordinance (XXX of 1985)---

----Ss.8, 14, 19 & 26---Constitution of Pakistan, Art.199---Constitutional petition---Writ of quo warranto---Contract appointment---Board of Governors, powers of---Petitioner association assailed appointment of respondent as Vice-President of International Islamic University, by Board of Governors, on contract basis, after his retirement---Validity---Board of Governors was not competent to accord sanction to any illegal act and compromise on principles of transparency, merit, rule of law, credible process and openness of affairs---Appointment of respondent was result of colourable exercise of authority, without due process, non-transparent approach, against principles of healthy competition, fairness, openness, merit, offensive to Constitutional provisions---Re-appointment of respondent could not be termed as credible and in requirement of law applicable---High Court set aside office order regarding appointment of respondent, who ceased to be Vice President of the University---Petition was allowed in accordingly.

Tariq Aziz-u-Din's case 2010 SCMR 1301; Anita Turab's case PLD 2013 SC 195; Muhammad Yasin's case PLD 2012 SC 132; Sh. Riaz-ul-Haq's case in Constitutional Petition No.53 of 2007; Hajj Corruption's case PLD 2011 SC 963; Maj. Gen. (R) Malik Muhammad Farooq v. Government of Pakistan Writ Petition No. 1515 of 2013; Muhammad Ashraf Azeem v. Federation of Pakistan and others Writ Petition No. 2503 of 2009; Dr. Altaf Hussain v. Federation of Pakistan Writ Petition No.615 of 2013 and Dr. Shahbaz Ahmad Qureshi v. Government of Pakistan through Secretary, Establishment Division and others Writ Petition No. 1999 of 2013 ref.

Umair Baloch and Jehangir Wains for Petitioners.

Sardar M. Aslam, Barrister Umar Aslam for Respondents Nos.1 and 2.

Iftikhar Ahmed Bashir for Respondent No.3.

Date of hearing: 29th April, 2013.

2013 P L C (C.S.) 1444

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

RASHEED BAIG and others

Versus

ZARAI TARAQIATI BANK LIMITED

Writ Petitions Nos.3022, 2703 of 2006, 1760, 1882, 2654, 2917, 4232, 4846 of 2010, 465, 468, 1686, 2993 to 2995, 3106, 3116, 3267 of 2011, 119, 575, 596, 854, 3594, 4182 of 2012 and 535 of 2013, decided on 16th May, 2013.

(a) Agricultural Development Bank (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 5---Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981, Regln.22---Constitution of Pakistan, Art.199--- Constitutional petition--- Pension--- Rate and scale of pension---Vested right of employees---Reduction of pension factor---Board of Directors of Bank had reduced the pension factor to the disadvantage of employees---Scope and powers of Board of Directors of the Bank---Employees of Bank had been transferred to company through legislative protection of terms and conditions of service---Overriding effect statutory regulations on the decision of Board of Directors of the Bank---Board of Directors of Bank was not competent to alter terms and conditions of service to the disadvantage of employees---Statutory regulations relating to pension and gratuity still held the field---Decision of Board of Directors carried no value in presence of statutory provisions and guarantees---Section 5 of the Agricultural Development Bank (Re-organization and Conversion) Ordinance, 2002 guaranteed the applicability of same terms and conditions and rules and regulations---Board of Directors had no authority under the law to assume the legislative role ---No decision detrimental to the interest of employees could have been taken without bringing amendments in the statute---Board of Directors of the Bank through arbitrary, colourable and illegal exercise of authority surprised and shocked the employees by reducing pension factor from 2.33% to 1.15% and started paying the same even without approval from the federal government---Decision of Board of Directors of Bank reducing pension factor was set aside---Constitutional petition was allowed.

(b) Agricultural Development Bank (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 5---Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981, Regln.22---Constitution of Pakistan, Art.199---Constitutional petition---Pension---Rate and scale of pension---Accrued vested right of employees---Reduction of pension factor---Board of Directors of Bank had reduced the pension factor to the disadvantage of employees---Ex-post facto approval taken by the finance division---Effect---Alteration in terms and conditions of service---Principles of natural justice, violation of---Ex-post facto approval could be granted in petty matters and not in the matters like pension of employees---Decision of Board of Directors for all practical intents and purposes resulted into structural change in the accrued rights of pension of the employees, was not liable to be entertained by the finance division---Alteration in terms and conditions of service was within the domain of Establishment Division and approval of the federal government could only be conveyed by the Establishment Division---Decision of Board of Directors was unprecedented, polluted, offensive to the constitutional guarantees and was in violation of principles of natural justice and fanciful---Decision of Board of Directors reducing pension factor was set aside---Constitutional petition was allowed.

Muhammad Tariq Badar v. National Bank of Pakistan 2013 SCMR 314; Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan 2006 SCMR 1240 and Manzoor Hussain, Naib Tehsildar v. Deputy Commissioner/District Collector, Layyah 1997 PLC (C.S.) 965 rel.

Abdul Rahim Bhatti, ASC and Yasir Rahim Bhatti for Petitioners (in Writ Petitions Nos.3022, 2703 of 2006, 1760, 2654, 2917, 4846 of 2010, 465, 468, 3116 of 2011).

Muhammad Sarwar Malik and Mosam Khan Khattak for Petitioners (in Writ Petitions Nos.1882, 4232 of 2010, 1686 of 2011, 575, 3594 of 2012).

M. Tariq for Petitioners (in Writ Petitions Nos.2993, 2994, 2995, 3106, 3267 of 2011, 119, 596, 854, 4182 of 2012 and Writ Petition No.535 of 2013).

Dr. Muhammad Azam Khan for ZTBL.

M. Shoaib Shaheen, ASC and M. Umair Baloch for ZTBL (in Writ Petitions Nos.3022 of 2006 and 465 of 2011).

Akhtar Mehmood for ZTBL (in Writ Petitions Nos.596 of 2012 and 535 of 2013).

2013 P L C (C.S.) 1463

[Islamabad High Court]

Before Shaukat Aziz Siddiqi, J

MUHAMMAD ASHFAQ AHMED

Versus

ALI ARSHAD HAKEEM and others

Writ Petition No.812 of 2013, decided on 5th June, 2013.

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

----Ss. 2(a) & 3(2)---Civil Servants Act (LXXI of 1973), S.2(b)(ii)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Contractual appointment---Jurisdiction of Service Tribunal---Scope---Law does not recognize any contract employee as civil servant.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Appointment of the Chairman of a Federal Government organization was challenged by employee of the organization---Locus standi---Petitioner was an employee of the organization and not a stranger to the organization---Appointment on top slot of organization brings structural changes in the organizational behavior of that particular department---If any person in his estimation brought to the organization did not possess the requisite qualification and relevant experience, employee of the same organization could be an "aggrieved person"---In the matters of public interest one need not to be aggrieved himself---Constitutional petition was maintainable.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment against public posts---Process---Competitive process---Criteria---Open competition--- Appointment without advertisement--- Scope---Qualification, experience, exposure, eminence and performance of any individual could not be gauged without inviting others to compete---Approach of picking any individual of personal liking from open market was totally uncalled for and against the principle of transparency, good governance, merit, rule of law and credible process---Impugned appointment was declared as illegal---Constitutional petition was allowed.

(d) Constitution of Pakistan---

----Arts. 27 & 199---Constitutional petition---Civil service---Appointment against public posts---Open competition---Appointment of the chairman of government organization was made without advertisement and competitive process---Validity---Appointment was result of colourable exercise of authority, without due process, non-transparent approach, against the principles of healthy competition, fairness, openness, merit, offensive to the constitutional provisions---Such appointment could not be termed as credible---Appointment was set aside--- Constitutional petition was allowed.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Anita Turab's case PLD 2013 SC 195; Muhammad Yasin's case PLD 2012, SC 132; Sh. Riaz-ul-Haq's case in Constitutional Petition No.53 of 2007 and Hajj Corruption's case PLD 2011 SC 963 rel.

Barrister Zafar Ullah Khan and Abdul Sattar Malik for Petitioner.

Ashtar Ausaf Ali for Respondent No.1.

Muhammad Anwar Mughal for Respondents Nos.2 and 3.

Tariq Mehmood Jehangiri, D.A.-G

M. Majid, Secretary, FBR.

Zarnab Khattak, Supdt. Estb. Div.

Dates of hearing: 2nd and 13th May, 2013

2013 P L C (C.S.) 106

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Nadeem Akhtar, JJ

FIDA HUSSAIN through Attorney

Versus

EXECUTIVE ENGINEER IRRIGATION/DRAINAGE, LARKANA and 4 others

Constitutional Petition No.D-440 and M.A. No.1051 of 2010 and M.A. No.3211 of 2012, decided on 17th October, 2012.

(a) Public functionaries---

----Duties, performance of---Scope---Policies/plans---Safety of public---Public functionaries, departments and organizations were legally bound to perform their duties for the safety, wellbeing and betterment of general public --- Method for discharging such duties stated.

Public functionaries and all such departments and organizations, which are legally bound to perform their functions and duties for the safety, wellbeing and betterment of general public must perform their functions and duties with prudence, vigilance and full responsibility. Proper policies, schemes and plans should be made by them with the assistance of concerned and qualified professionals keeping in view all possible types of dangers, disasters, destructions, hazards, crises, atrocities, catastrophes and pollution, in advance rather then waking up at the last minute or after occurrence of major damage or after loss of precious human lives. Sensible, considerate and effective policy making would mean consideration of welfare and safety of human beings and environment first, and then planning and execution of such policy accordingly. If policies/plans are designed in such manner, possible dangers can be avoided substantially and precious human lives can be saved to a great extent.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Health and safety of public---Public functionaries, duty of---Scope---Open drain/wah/nala running through city---Land along such open drain nala earmarked as green belt for plantation of trees---Encroachment on such land---Discharge of sewerage and septic water into open drain causing pollution and diseases in the area---Inaction of authorities to construct retaining walls on sides of open drain and cover the same with slabs and remove encrochment from such land---Validity---Pollution, infection, disease or constamination in open drain was a slow poison which would affect every person---Such open drain, unless covered by slabs, would be a continuous threat to every person of the city ---Plantation of trees on the green belt along the open drain would be beneficial for every person and would improve environment of the entire city---Authorities had failed to discharge their duties in the required manner and had they taken timely and well-planned steps through proper plans and schemes to avoid pollution and prevent illegal encroachments, situation of city in question would have been completely different---High Court while treating present matter as public interest litigation directed authorities concerned to move proposal to Government for construction of slab cover over the retaining wall along open drain and take steps to remove encroachments from the green belt.

Muhammad Yousaf v. Province of the Punjab, through Secretary Local Government and 6 others 2003 CLC 576; Syed Mansoor Ali Shah and 4 others v. Government of Punjab, through Housing, Physical and Environmental Planning Department, and 3 others PLD 2007 Lah. 403 and Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 rel.

(c) Administration of justice---

----Justice should not only be done, but it should be seen to have been done.

(d) Public functionaries---

----Duties, discharge of---Scope---Duties should not only be discharged, but should be seen to have been discharged.

Rashid Mustafa Solangi for Petitioner.

Imtiaz Ahmed Soomro, A.A.-G. assisted by Ali Raza Pathan, State Counsel along with Abdul Ghafoor Soomro, Executive Engineer, Larkana Drainage Division Larkana for Respondent No.1.

Muhammad Ashique Dhamraho for Respondent No.3.

2013 P L C (C.S.) 121

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHAMMAD AKRAM SOLANGI and 17 others

Versus

DISTRICT COORDINATION OFFICER, KHAIRPUR and 3 others

Constitutional Petition No.D-102 of 2011, decided on 9th May, 2012.

(a) Constitution of Pakistan---

----Art. 4---Protection of law---Scope---To enjoy protection of law and to be treated in accordance with law is inalienable right of every citizen---Article 4 of the Constitution, incorporated doctrine of equality before law or equal protection of law and no action detrimental to life, liberty, body reputation or property of any person could be taken except in accordance with law---Public functionaries were supposed to function in good faith, honestly and within the precincts of its power so that person concerned should be treated in accordance with law.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Factual controversy---Salary, non-payment of---Petitioners claimed to be employed by authorities and despite performing their services, they had been only paid one month salary through bank---Validity---Petitioners had established that salary was credited in their bank accounts which pertained to one month and which fact was also admitted by representative of bank---No convincing documentary evidence had established that petitioners were performing their duties regularly---Authorities not only disputed appointment orders but also refuted claim of petitioners that they ever performed their duties---High Court under its jurisdiction under Art.199 of the Constitution, could not embark upon complicated, controversial or disputed questions of facts---Truthfulness or otherwise of factual disputes could not be determined without inquiry and recording of evidence for which High Court was not an appropriate forum for resolving intricate questions of facts---High Court directed competent Authority to constitute a high powered committee to conduct fair, transparent and impartial inquiry in the matter and verify authenticity and genuineness of appointment orders of petitioners and submit report to competent authority who would take immediate action on that inquiry report---Petition was disposed of accordingly.

2001 PLC (C.S.) 1073; Ikram Bar's case 2005 SCMR 100 and Zahid Ahmed v. Province of Sindh 2012 PLC (C.S.) 124 ref.

(c) Constitution of Pakistan---

----Arts. 4 & 25---Good governance---Scope---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---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 Constitution is supreme law of the country, no room is left to allow any authority to make departure from any of the provisions of law and rules made thereunder.

2011 PLC (C.S.) 1130 rel.

Illahi Bux Jamali for Petitioners.

Ghulam Shabeer Shar for Respondent No.2.

Imtiaz Ali Soomro, Asstt. A.-G.

Date of hearing: 7th February, 2012.

2013 P L C (C.S.) 137

[Sindh High Court]

Before Shahid Anwar Bajwa and Aziz-ur-Rehman, JJ

IRFAN ALI

Versus

SECRETARY, EDUCATION AND LITERACY DEPARTMENT, GOVERNMENT OF SINDH, KARACHI and 6 others

Constitutional Petition No.D-511 of 2010 and M.A. No.1954 of 2012. decided on 25th July, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment to advertised post---Eligibility---Advertisement was published for posts of Primary School Teacher for applicants belonging to specified union council---Petitioner, claiming to be resident of said union council applied for the post and successfully passed the assessment test but was refused an offer letter by the Education Department (respondents) on grounds that he was resident of other union council---Contentions of petitioner were that he had passed the assessment test and was shown to be eligible for the post; that out of the eleven (11) successful candidates, he was the only one not to be issued an offer letter; that he was discriminated against, notwithstanding the fact that he had been declared as successful for the post, and that he used to be a resident of the other union council but later on shifted to the specified union council---Validity---To support his contention that he belonged to the specified union council, petitioner produced his Computerized National Identity Card (CNIC), permanent residence certificate, domicile certificate and residence certificates, however petitioner's previous Identity card, domicile certificate and permanent residence certificate mentioned that he belonged to the other union council---Comments of "mukhtiarkar (revenue)" and ."taluka matiari ", showed that the petitioner was originally inhabitant of other union council but when he applied for the post in question, he ceased to reside in said union council and presently was residing in specified union council in a house owned by his uncle---Petitioner had not produced any document to establish as to when he transferred his residence from other to specified union council---Documents produced by petitioner in support of his contention that he was resident of specified union council were of subsequent dates, i.e. after filing of present petition and said documents were seemingly procured after the advertisement of post in question---Such conduct of petitioner was, prima facie, proof that he had not approached the court with clean hands---Petitioner was not entitled to be appointed against any vacant post in the specified union council---Constitutional petition was dismissed, in circumstances.

Muhammad Ismail and others v. Province of Sindh 2012 PLC (C.S.) 620 ref.

Ayaz Hussain Tunio for Petitioner.

A.B. Soomro, Addl. A.-G. along with Hassan Ali Zardari, Mukhtiarkar, Matiari and Muhammad Siddique Shahani, SDEO on behalf of DEO, Matiari.

2013 P L C (C.S.) 266

[Sindh High Court]

Before Faisal Arab and Nadeem Akhtar, JJ

ABDUL MAJID YOUSAFANI

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division/Ex-Officio Chairman and 4 others

Constitutional Petition No.D-293 of 2012, decided on 12th April, 2012.

Accommodation Allocation Rules, 2002---

----Rr. 6, 7(4) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Allocation of accommodation---Grievance of petitioner was that official accommodation was allocated to respondents who applied subsequent to him---Validity---Petitioner had prior right of allotment as his application was prior to that of respondents on waiting list---Petitioner had first right to choose from the class of accommodation to which he was entitled---Refusal of petitioner to accept accommodation that was meant for Grade 20-21 officers was justified for the reason that such class of accommodation was not meant for Grade-19 officers---Rejecting of accommodation meant for Grade 20-21 officer was not in violation of principles laid down in Rule 10 of Accommodation Allocation Rules, 2002, as refusal was not of a class of accommodation to which petitioner was entitled to---Allotments made in favour of respondents were of the same date on which allotment was made in favour of petitioner---First right to get an allotment of Grade-19 accommodation was of petitioner---One of the respondents was given vacant accommodation meant for Grade-19 officers and still there was an accommodation available for Grade-19 officer---High Court directed authorities to allot vacant accommodation in favour of petitioner after cancelling the same made in favour of one of the respondents earlier---Petition was allowed accordingly.

Mohsin Shahwani for Petitioner.

Muhammad Rafique Rajourvi for Respondent No.3.

Haider Iqbal Wahniwal for Respondent No.4.

Zubair Hashmi for Respondent No.5.

2013 P L C (C.S.) 324

[Sindh High Court]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

Mrs. KANEEZ FATIMA ABRO and 9 others

Versus

PRESIDENT, ZARAI TARQIATI BANK LTD. and 2 others

Constitutional Petition No.D-3200 of 2011, decided on 9th April, 2012.

Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 6---Constitution of Pakistan, Art.199---Constitutional petition---Policy, enforcement of---Re-organisation of Bank---Employees of previous establishment---Petitioners were officials of erstwhile Agricultural Development Bank of Pakistan who had become officials of Zarai Taraqiati Bank---Plea raised by petitioners was that they were entitled to those pensionary benefits as had been prescribed for Federal Government employees from time to time---Validity---Bank having adopted same policy, therefore, it was obliged to give benefits to those officers / executives who retired during relevant time and such benefit could not be denied---High Court directed Zarai Taraqiati Bank Limited to fulfill its obligation in terms of policy and to pay those amongst petitioners who had retired on or after 1-7-1999, the arrears, which might have become due to them in terms of the policy and to continue to pay to petitioners their pension/family pension in consonance therewith---Petition was allowed accordingly.

Abu Hurayrah Sabir v. Zarai Taraqiati Bank Limited and others 2011 PLC (C.S.) 62; Ghulam Shabbir v. Muhammad Munir Abbasi and others PLD 2010 SC 676 and Masood Ahmed Bhutti, Syed Muhammad Dilavez and Nsiruddin Ghori being Civil Appeals Nos.239, 240 and 241 of 2011 ref.

Syed Asad Ali Shah and Obaid-ur-Rehman Khan for Petitioners.

Sanaullah Noor Ghouri for Respondent.

Muhammad Ashraf Khan Mughal, D.A.-G.

2013 P L C (C.S.) 413

[Sindh High Court]

Before Munib Akhtar, J

ANEEL KUMAR

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President and another

C.M.A. No.6662 in Suit No.1029 of 2010, 11077 in Suit No.1661 of 2010, 7179 in Suit No.1066 of 2010, 6666 in Suit No.1031 of 2010 and 6664 in Suit No.1030 of 2010, decided on 29th May, 2012.

(a) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court---Obiter dictum---Scope---Court subordinate to Supreme Court is bound even by an obiter dictum of Supreme Court if it comes within the scope of Art. 189 of the Constitution.

Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883 and Muhammad Shahnawaz v. Karachi Electric Supply Co. Ltd. 2011 PLC (C.S.) 1579 rel.

(b) Pakistan Telecommunication Corporation Limited Service Regulations, 1996---

----Chap. 7---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Termination of service---Plaintiffs were employees of Pakistan Telecommunication Corporation Limited (PTCL) whose service were terminated---Validity---Detailed charge sheet was issued to plaintiffs in which allegations against them were particularized in great detail---Plaintiffs were asked to appear before inquiry committee where they filed detailed written reply---Plaintiffs were given an opportunity of hearing at which they placed reliance on their written reply---Inquiry committee submitted its report, giving careful consideration to the allegations, the relevant record and plaintiffs' reply---Inquiry committee concluded that one of the allegations was not established and plaintiffs were issued with show cause notice who gave reply to the same and were given opportunity of hearing---Plaintiffs were removed from service on consideration of relevant facts---Proper compliance with the provisions of chapter 7 of Pakistan Telecommunication Corporation Limited Service Regulations, 1996 have been made---Plaintiffs failed to make out a case for the grant of interim relief---Application was dismissed in circumstances.

Abdul Rahim v. Pakistan Broadcasting Corporation 1992 SCMR 1213; Pakistan Telecommunication Corporation v. Riaz Ahmed PLD 1996 SC 222; Divisional Engineer Phones v. Muhammad Shahid 1999 SCMR 1526; Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152; Ejaz Ali Bughti v. PTCL 2011 SCMR 333; Pakistan Telecommunication Co. Ltd v. Iqbal Nasir and others PLD 2011 SC 132=2011 PLC (C.S.) 623; Nasiruddin Ghori v. Federation of Pakistan and others 2010 PLC 323; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883; Muhammad Shahnawaz v. Karachi Electric Supply Co. Ltd. 2011 PLC (C.S.) 1579; Indo Swiss Time Ltd. v. Umrao and others AIR 1981 P&H 213; Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. AIR 1980 Kant 92; Amar Singh Yadav v. Shanti Devi and others AIR 1987 Patna 191; Ganga Saran v. Civil Judge AIR 1991 All. 114; Kamleshkumar Ishwardas Patel v. Union of India and others 1995(2) BomCR 640; 1994 Cri.LJ 3105; Bholanath Karmakar and others v. Madanmohan Karmakar and others AIR 1988 Cal. 1; Subramaniam v. Gunasundari (2007) 2 MLJ 241, Jassy Kondody v. Chacko Thomas 1999 Cri.LJ 4707; Panduranga Traders and others v. State Bank of India 2000 (3) ALD 134; 2000 (2) ALT 511; Gujarat Housing Board v. Nagajibhai Laxmanbhai and others AIR 1988 Gujarat 81; State of Madhya Pradesh v. Balveer Singh AIR 2001 M.P. 268; Jabalpur Bus Operators Association and others v. State of M.P. and another AIR 2003 MP 81; Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Ltd. and another PLD 1981 Kar. 720; Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335; National Book Foundation v. Muhammad Arif Raja PLD 2006 SC 175, Basharat Ali v. Director Excise and Taxation 1997 SCMR 1543, Jan Muhammad v. General Manager, Karachi Telecommunication Region 1993 SCMR 1440, I.-G. Police HQ Karachi v. Shafqat Mahmood 1993 SCMR 207 and PIA v. Shaista Naheed 2004 PLC (C.S.) 344 ref.

M.M. Aqil Awan for Plaintiffs (in all suits).

Faisal Mahmood Ghani, Haider Waheed and Atif Rafiq for Defendant (in respective suits).

Dates of hearing: 29th September, 28th October, 2010, 21st December, 2011, 4th January, 11th February and 28th February, 2012.

2013 P L C (C.S.) 440

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

AKHTAR KHAN KHATTAK and 3 others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petitions Nos.D-252, D-323, D-511 and D-2567 of 2011, decided on 5th September, 2012.

(a) Civil service---

----Promotion, consideration for---Change in rules---Effect---Rules in force at time of making decision would be applicable---Principles.

No one has right to be considered in accordance with the rules applicable at the time the rules are brought into existence, but are amended subsequently. Material time will be the time at which decision is being made.

No doubt change in the rules or notification is always prospective, but it is prospective qua the time of consideration and not qua the time regarding employee, who was earlier inducted.

(b) Civil service---

----Promotion policy, change in---Qualification based quota for consideration of promotion prescribed subsequently---Validity---Departmental authority and rules making body had jurisdiction to prescribe such quota for employees coming out of different streams of qualifications---Government could always change promotion policy and prescribe qualification for particular post through amendment in relevant rules---Classification of such qualification would not be arbitrary or discriminatory---Principles.

C.P. No.D-368 of 2007; Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another 2001 CLC 347; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026; Mujeeb Ahmed and others v. Province of Sindh and others 2011 PLC (C.S.) 1193; 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; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134; Eijaz Ahmed Shah v. Federation of Pakistan through Federal Establishment Secretary, Cabinet Secretariat Establishment Division, Government of Pakistan, Islamabad and 6 others PLD 2010 Kar. 309; State of Jammu and Kashir v. Shri Trilok Nath Khosa and others [1974] ICC 19; Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another 1993 SCMR 819; Mehr Zulfikar Ali Babu PLD 1997 SC 11; Ardeshir Cowasjee and others v. Province of Sindh and others 2004 CLC 1353 and Ashfaq Ahmed v. The State 2007 SCMR 641 ref.

(c) Civil service---

----Promotion---Factors essential to be considered by competent authority/Promotion Committee/Selection Board---Scope---Competent authority/Committee/Board would be required not only to look at the past conduct or performance of an employee, but also assess his competence in respect of his ability to shoulder next higher responsibilities in case of his promotion---Mere looking at such past conduct would amount to driving a car blindfolded being guided by a person looking out of back window.

Malik Naeem Iqbal for Petitioners (in Constitutional Petition No.D-252 of 2011).

A.D. Shah for Respondent No.4 (in Constitutional Petition No.D-252 of 2011).

Muhammad Sarwar Khan, Addl. A.-G. Sindh for Official Respondents (in Constitutional Petition No.D-252 of 2011).

Khalid Javed Khan for petitioners (in Constitutional Petition D-323 of 2011).

Muhammad Sarwar Khan, Addl. A.-G., Sindh (in Constitutional Petition D-323 of 2011)

Gul Zameer Solangi for Petitioner (in Constitutional Petition D-511 of 2011).

Muhammad Sarwar Khan, Addl. A.-G., Sindh (in Constitutional Petition D-511 of 2011), A.D. Shah for Petitioner (in Constitutional Petition D-2567 of 2011).

Muhammad Sarwar Khan, Addl. A.-G., Sindh for Respondents (in Constitutional Petition D-2567 of 2011).

Date of hearing: 10th August, 2012.

2013 P L C (C.S.) 465

[Sindh High Court]

Before Munib Akhtar, J

ANJUMAN FALAH-E-BAHBOOD

Versus

GOVERNMENT OF PAKISTAN and others

C.M.As. Nos.593 and 595 of 2011 in Suit No.88 of 2011, decided on 16th July, 2012.

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

----S. 7---Offer converting into promise---Principle---For an acceptance to convert an offer into promise (i.e. a legally binding contract), under S.7 of Contract Act, 1872, it must be "absolute and unqualified"---Acceptance that does not come up to such standard is not an acceptance in the eyes of law and such "acceptance" cannot convert offer into a promise i.e. a contract.

Lark v. Outwaithe (1991) 2 Lloyd's Rep 132, 139 rel.

(b) Pakistan Telecommunication Company Limited Service Regulations, 1996---

----Regln. 17---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, injunction and damages---Interim injunction, grant of---Rent of accommodation--- Plaintiffs were ex-employees of Pakistan Telecommunication Company Limited (PTCL) who after retirement were using accommodation of the company---Grievance of plaintiffs was that they were entitled to pension but PTCL had withheld it in lieu of recovery of rent regarding accommodations being used by them---Validity---Plaintiffs who retired in normal course continued to retain flats occupied by them after lapse of six months period, then they had to pay rent either at penal rate of 11.25% of pension or "standard rent", whichever was higher---PTCL was unable to state whether "standard rent" had at all been notified by it, as relevant for plaintiffs---Pay and pension were two separate and distinct concepts and were separately set out in definition of emoluments (Regln.17.01(b) of Pakistan Telecommunication Company Limited Service Rules, 1996)--- Nothing existed in Regulation 17 of Pakistan Telecommunication Company Limited Service Rules, 1996, as would permit PTCL to adjust penal rent due from any of the relevant plaintiff against pensions payable to such plaintiffs---If at all PTCL wished to recover such amount, it could seek its remedy elsewhere---Plaintiffs were entitled, unless anything to the contrary was shown, to the payment of pension---Plaintiffs must, to a greater or lesser degree (depending on specific circumstances of each) be suffering on account of non-payment of pension---Such injury and suffering must be regarded as materially affecting their lives---All ingredients for interim relief were in place in favour of plaintiffs, therefore, High Court directed PTCL to pay in full all arrears of pension to plaintiffs that had accumulated on account of its putative adjustment by way of rent or otherwise---Application was allowed in circumstances.

PLD 2011 SC 132=2011 PLC (C.S.) 632; Muhammad Shahnawaz and others v. Karachi Electric Supply Co. Ltd. 2011 PLC (C.S.) 1579, Sirius International Insurance Co. v. FAI General Insurance Ltd. [2004] UKHL 54 and [2005] 1 All ER 191 ref.

PLD 2003 SC 430; 2003 PTD 739; PLD 1969 Quetta 13; 2005 SCMR 292; PLD 1973 SC 514; 2009 PLC (C.S.) 703 and 2009 PLC (C.S) 721 distinguished.

Syed Masroor Alvi for Plaintiffs.

Haider Waheed and Atif Chaudhry for Defendant No.2.

Shabana Manzoor and Qaiser Jameel for Defendant No.7.

Dates of hearing: 8th November, 22nd December and 30th May, 2012.

2013 P L C (C.S.) 592

[Sindh High Court]

Before Shahid Anwar Bajwa and Nisar Muhammad Sheikh, JJ

FAYYAZ ALI and 7 others

Versus

PROVINCE OF SINDH through Secretary Services, General Administration

and Coordination Department, Karachi and 2 others

Constitutional Petition No.D-1846 of 2009, decided on 13th March, 2012.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Civil service---Equality of citizens---Discrimination---Petitioners were Data Processing Assistants in Basic Scale-12 and their grievance was that other employees on the same posts in other departments were in Basic Scale-16---Plea raised by authorities was that High Court could not allow upgradation of posts---Validity---Petitioners successfully demonstrated that other persons in various departments of Federal Government with similar qualifications and similar nature of jobs were placed in Basic Scale-16---Authorities failed to demonstrate as on what basis discrimination was being maintained between petitioners and other persons having same qualification and same job in other departments---High Court under Constitutional jurisdiction could order removal of discrimination without any reasonable basis, even if such removal of discrimination involved upgradation---High Court ordered removal of discrimination which was in violation of equality clause as enshrined in the Constitution and directed the authorities to give same grade and treatment to petitioners as was given to similar employees in other departments---Petition was allowed in circumstances.

Javaid Hussain Qureshi v. Finance Department, Government of the Punjab through Secretary Finance and 2 others 2004 PLC (C.S.) 586; Abdul Shakoor v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others C.P. No.40 of 1999 and Javed Latif Memon v. Government of Sindh C.P. No.D-213 of 2010 ref.

Malik Naeem Iqbal for Petitioners.

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

Date of hearing: 7th March, 2012.

2013 P L C (C.S.) 614

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

FAISAL NOOR and others

Versus

REGISTRAR HIGH COURT OF SINDH, KARACHI and others

Constitutional Petitions Nos.D-2355, D-2356 and D-2480 of 2012, decided on 16th August, 2010.

Sindh Judicial Service Rules, 1994---

----Islamabad Judicial Service Rules, 2011, R. 16---Constitution of Pakistan, Art.199---Constitutional petition---Appointment on posts of---Additional District & Sessions Judge (BS-20) in Sindh Province ---Prescribed qualification for such post being a Law graduate having experience of six years as practicing Advocate of High Court or had held judicial office for such period---Petitioners enrolled as Advocates working on different posts in legal departments found not to be eligible for such post---Petitioners claimed to be fully qualified for such posts on ground that according to Explanation to R. 16 of Islamabad Judicial Service Rules, 2011, period of Government Service in legal department or a statutory organization or Supreme Court would be considered as practicing the profession of law---Validity---No such explanation as provided in Rules, 2011 was provided in Rules of Sindh Province---Mere fact that Islamabad High Court having made different provisions would not mean that same would become applicable to Sindh Province---None of petitioners had been advocate of High Court for six years nor held a judicial office for such period---High Court dismissed constitutional petition in circumstances.

Union of India v. Alok Kumar and others AIR 2010 SC 2735; Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350 and Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 rel.

Qazi Abdul Hameed Siddiqui for Petitioners.

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

Date of hearing: 6th August, 2010.

2013 P L C (C.S.) 696

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Munshi ABDUL REHMAN LANGAH

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE) now as Deputy Commissioner, Sukkur and 5 others

C.M.As. Nos.16001 and 16002 in Constitutional Petition No.D-3079 of 2011, decided on 30th November, 2011.

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

----Rr. 4 & 5---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Dismissal from service---Petitioner who was dismissed from service under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, challenged his dismissal order in constitutional petition---Petitioner was a civil servant, whether his dismissal order had been passed in accordance with law or not; and whether it was a mala fide order, could be decided only by Service Tribunal---Constitutional petition being not maintainable, was dismissed, in circumstances.

Abdul Jabbar v. Federation of Pakistan through Secret Ministry of Law and Justice, Islamabad and 2 others 2009 PLC (C.S.) 338; Niaz Ali v. Executive Engineer and 2 others 2011 PLC (C.S.) 61 and Tariq Mehmood v. Government of Punjab 2011 PLC (C.S.) 1120 distinguished.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 rel.

Zulfiqar Ali Sangi for Petitioner.

2013 P L C (C.S.) 747

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

ABDULLAH HANJRAH

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

Constitutional Petition No.D-3705 of 2012, decided on 19th October, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner/candidate had alleged that he had been discriminated, as a result of which he could not participate in the written test for recruitment of Civil Judges/Judicial Magistrates in which he was entitled to participate---Candidate also sought declaration to the effect that he was entitled to appear and contest in the next written test for recruitment---Relief sought by the petitioner was based upon the decision of Division Bench of High Court reported as PLD 2011 Kar. 212---Said judgment was assailed before the Supreme Court where leave to appeal was granted and operation of said judgment was suspended---When fresh advertisement for the posts in question was published, candidate had already crossed the upper age limit of 35 years and his application for seeking relaxation in the upper age limit was turned down by competent authority---Candidate did not file any grievance petition against such decision, nor same had been impugned before High Court---When the first written test was held, petitioner neither participated in such test nor approached the High Court for seeking any declaration with regard to his eligibility to participate in the written test---Only those candidates were eligible to participate in the second written test, who had already cleared the first written test, and secured minimum 50% marks---Petitioner neither participated in the first written test, nor secured the minimum 50% marks---Request of the petitioner, in circumstances, was misconceived---Petitioner had not shown diligence to seek his remedy in accordance with law and had also failed to establish his eligibility which could entitle him to participate in the written test for recruitment of Civil Judges and Judicial Magistrates, as he had already crossed the upper age limit of 35 years.

Darakhshan Jahan and others v. Province of Sindh and others PLD 2011 Kar. 212 and Chairman, Board of Intermediate and Secondary Education v. Ali Mir 1984 SCMR 433 ref.

Ms. Shazia Hanjrah for Petitioner.

Saifullah, A.A.-G. and Muhammad Ashraf, Additional M.I.T.-I for Respondents.

Date of hearing: 19th October, 2012.

2013 P L C (C.S.) 760

[Sindh High Court]

Before Muhammad Tasnim and Aziz-ur-Rehman, JJ

MUHAMMAD IQBAL DASTI

Versus

FEDERATION OF PAKISTAN through Secretary, Water and Power Development, Authority, Islamabad and 4 others

Constitutional Petition No.D-1662 of 2012, decided on 12th December, 2012.

Pakistan Water and Power Development Authority Pension Rules, 1977---

----Chapter III, R.5---Constitution of Pakistan, Art.199---Constitutional petition---Retirement application---Withdrawal---Principles---Grievance of petitioner was that authorities did not let him withdraw application filed by him for pre-mature retirement---Validity---Water and Power Development Authority (WAPDA) employee, under Rule 5 of Chapter III of Water and Power Development Authority Pension Rules, 1977, could withdraw his application for premature retirement or modify date of retirement, before its acceptance---In the present case, not only the request of petitioner was accepted but the same had been acted upon and he had proceeded on Leave Preparatory to Retirement---High Court declined to interfere in the decision taken by authorities---Petition was dismissed, in circumstances.

Muhammad Raza v. Hyderabad Electric Supply Company and others C.P.No.D-264 of 2008; Province of Punjab through the Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal, Ex-Foodgrains Inspector 1984 SCMR 334; Muhammad Naseer v. Deputy Inspector-General of Police, Multan Range Multan and another 2005 SCMR 1928; Section Officer, Government of Punjab, Finance Department and others v. Ghulam Shabbir 2010 SCMR 1425 and I.-G. Punjab, Lahore and others v. Iqbal Mehmood 2012 SCMR 745 rel.

Ms. Nasim Abbasi for Petitioner.

Javed I. Bukhari for Respondents.

Date of hearing: 4th December, 2012.

2013 P L C (C.S.) 768

[Sindh High Court]

Before Muhammad Ali Mazhar, J

GHULAM NABI SHAH

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director and 4 others

C.M.As. Nos.3067 and 4376 of 2011 in Suit No.416 of 2011, decided on 7th December, 2012.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration, damages and permanent injunction---Plaintiff being employee of Pakistan International Airlines (PIA) seeking implementation of decree for correction of his date of birth in service record and extension in his service accordingly---Plaintiff's application under O.XXXIX Rr. 1 & 2, C.P.C.---Validity---PIA was not made party in such decree by plaintiff---Under S.42 of Specific Relief Act, 1877 plaintiff could seek declaration to any legal character against a person denying his title to such character, but he could not seek execution or implementation of decree passed in a suit in which person denying his title to such character or right was not made party---Plaintiff before getting such decree had neither applied nor produced any documentary evidence before competent authority for correction of his date of birth in service record---Relationship between PIA and plaintiff was of master and servant---Contract of personal service could not be specifically enforced---Plaintiff on alleged wrong date of birth had joined service, secured promotions and completed his tenure, but remained silent during such long period, thus, his conduct was hit by principle of estoppel---Plaintiff while reaching age of superannuation had obtained such decree in order to get extension in service---Plaintiff at such belated stage was not entitled to claim any discretionary relief---Plaintiff had claimed damages, thus, question of irreparable loss would not arise in case of refusal of interim injunction---Plaintiff had no prima facie case whereas balance of convenience did not lie in his favour---High Court dismissed application for grant of interim injunction in circumstances.

Administrative Committee of High Court of Sindh v. Arjun Ram K. Talreja 2008 SCMR 255; Bibi Shahjahan v. Azad Government 2010 PLC (C.S.) 78; Muhammad Arshad and another v. Mian Noor Ahmad and others 2008 SCMR 713; Province of Sindh v. Malik Ghulam Hussain 2002 PLC (C.S.) 928; Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School 2004 CLC 1029; Regional Commissioner of Income-Tax, Karachi and 2 others v. Shafi Muhammad Baloch 1997 PLC (C.S.) 1122; Mrs. Zuhaida v. CDGK PLD 2004 Kar. 304; Islamic Republic of Pakistan v. General Traders and Ammunition Manufacturers Ltd. 2008 CLC 1462; The Karachi Catholic Cooperative Housing Society Ltd. v. Mrs. Daphne Mary Mendonca and 6 others 1990 MLD 2232; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633; Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494; Yasmin Abbasey v. Province of Sindh and others SBLR 2009 Sindh 115; and Ayub Gul v. Chairman, Board of Intermediate and Secondary Education, Peshawar and another 2010 PLC (C.S.) 943 ref.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry PLD 1961 SC 531; Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another 1991 MLD 824; PIAC v. Tanweer-ur-Rehman PLD 2010 SC 676; Raziuddin v. Chairman, PIAC PLD 1992 SC 531; Federation of Pakistan v. Dr.Nasir Mahmood Khan 1993 MLD 2158 and Sayyid Yousaf Hussain Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267 rel.

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

----S. 21(a)(b)---Contract of personal service---Not specifically enforceable.

(c) Estoppel---

----Principle of---Object.

The principle of estoppel is based on equity and good conscience and the object is to prevent fraud and secure justice between the parties by promotion of honest and good faith and by preventing them from approbating and reprobating at the same time. Under this principle of law, a person who has made, statement is stopped to make contradictory statement in the same matter subsequently. The foundation of the rule of estopple is the equitable doctrine that it would be unjust, if a person who by his representation has induced another to act as he otherwise would have done, is permitted to deny the truth of his former representation, to the detriment of the person who acted on it. Where a person in spite of having full knowledge of violation of his rights of personal nature, remained quite for reasonably long time without raising any objection or protest, besides estoppel he would be deemed to have acquiesced in the offending act, waiver may be inferred from the conduct and all other attending circumstances of the case.

Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and equity from asserting his rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy. Acquiescence is an important factor in determining equitable rights and remedies in obedience to the maxims, he who seeks equity must do equity and he who comes into equity must come with clean hands.

C M Row, Law of Injunctions, Page- 385, (Eight Edition) fol.

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

----O. XXXIX, Rr. 1 & 2 --- Temporary injunction, grant of --- Object.

Object of interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated for damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff needs for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercise of his own legal right for which he could not be adequately compensated if the uncertainty would be resolved in the defendant's favour at the trial. The court must weigh on need against another and determine where the balance of convenience lies.

Muhammad Nawaz Shaikh for Plaintiff.

Khalid Jawed for Defendants.

Date of hearing: 13th September, 2012.

2013 P L C (C.S.) 904

[Sindh High Court]

Before Naimatullah Phulpoto and Farooque Ali Channa, JJ

Raja ZAHEER AHMED KHUHARO

Versus

PROVINCE OF SINDH through Secretary Home Department and 4 others

Constitutional Petition No.D-417 of 2010, decided on 28th November, 2012.

(a) Constitution of Pakistan---

----Art. 199---Words "aggrieved person" as used in Art.199(1)(a) and (c) of the Constitution---Connotation stated.

Under Article 199 of the Constitution, only a person whose rights have been infringed can file a petition, except a writ of habeas corpus and writ of quo warranto, which can be invoked by any person. The application under sub-Article (1)(a) of Article 199 of the Constitution can be moved by any "aggrieve party", while the application under sub-Articles (1)(c) of Article 199 can be moved by any "aggrieved person". A person aggrieved must be a man, who has suffered a legal grievance, a man against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something, which he has a right to demand or wrongfully affected his title in something. In order that a person be considered an "aggrieved person" within the meaning of Article 199, he must show that his legal rights has been violated or that he has been deprived of the fundamental rights guaranteed under the Constitution or that he seeks performance of the legal duty by the State functionaries and that the non-performance of the duty is to result in loss of some personal benefit or advantage or the curtailment of a privilege.

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

----Art. 27---Constitution of Pakistan, Art. 199---Constitutional petition---Police department---Recruitment in rank of Constable against Shaheed Quota---Petitioner's application to appoint him as Constable in place of his issueless uncle (Constable) killed during service---Refusal of authority to appoint petitioner against such quota---Validity---F.I.R. lodged regarding murder of deceased Constable showed that he was killed in course of his private affairs---Petitioner's claim did not fall within purview of "shaheed" and "legal heirs" as defined in Paras 5 and 6 of Standing Order No.25 of 2008---Petitioner had no statutory right to seek appointment as Constable against such quota, thus, he was not an aggrieved person---High Court dismissed constitutional petition in circumstances.

Mazhar Ali Siddiqui for Petitioner.

Azizul Haque Solangi, Asstt. A.-G. for Respondents.

Date of hearing: 28th November, 2012.

2013 P L C (C.S.) 1046

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

SHAMSUL HAQUE MAHAR and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petitions Nos.D-1615, D-1616 and D-1932 of 2011, decided on 2nd October, 2012.

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

----S. 11---Constitution of Pakistan, Art.199---Constitutional petition---Agricultural Department---Contract employees working for last seven years on basis of annual extension of their contract period, and there was no complaint regarding their conduct, competence and work---Petitioners' plea was that their appointment was on permanent basis, thus, were entitled to all consequential benefits of a regular appointment from date of their initial appointment or in alternative authority be directed to treat them as regular employees in their respective grades from date of their initial appointment---Validity---Appointment of petitioners in year 2005 was for a particular project, which despite continuing from year to year had not yet been concluded---Government was not in a position to state as to when such project would conclude---Word "permanent" in context of employment would not mean lasting till Day of Judgment, but would mean something likely to last for a very long period---Something having continued for seven years could not be said to be temporary anymore---Petitioners for all intents and purposes would be deemed to have been hired on a post of permanent nature---Appointment order of petitioners mentioned therein that Sindh Civil Servants Act, 1973 would be applicable to petitioners---Government could not contend that petitioners despite being governed by said Act were not entitled to all benefits allowed thereunder to civil servants---Petitioners had been recruited for a particular project, thus, Government on administrative ground could neither transfer any of them to another department nor transfer a person from another department to such project, except on deputation basis---Government on completion of such project could exercise its powers under S.11(2) of Sindh Civil Servants Act, 1973---Government was bound to consider petitioners' case for regularization in accordance with observations made in judgment reported as 2011 PLC (C.S.) 281--- Government might frame policy for appointment on contract basis for a limited period---Where Project or job continued beyond limited contract period, then person appointed would be entitled to regularization---High Court accepted constitutional petition and directed authority to regularize services of petitioners in terms of such observations.

Rukhsar Ali v. Government of N.-W.F.P. 2003 PLC (C.S.) 1453; Executive Engineer v. Abdul Aziz PLD 1996 SC 610; M.D. Tahir v. Federal Government PLD 2000 Lah. 251; Abdul Qayyum v. Government of Punjab 1975 SCMR 457; Inspector-General of Police Punjab v. Ali Abbas 1985 SCMR 946; Secretary, Ministry of Defence v. Muhammad Miskeen 1999 SCMR 1296; WAPDA v. Abbas Ali Malano 2004 PLC (C.S.) 1; Chairman Pakistan Railways v. Arif Hussain 2008 PLC (C.S.) 240; Province of Sindh and others v. Gul Muhammad and others Civil Petition No.433-K of 2010; Abid Iqbal Hafiz v. Secretary Public Prosecution Department PLD 2010 SC 841; Government of Balochistan v. Dr. Zahida Kakar 2009 PLC (C.S.) 206 and WAPDA v. Khanimullah 2000 SCMR 879 ref.

Ayaz Ahmed Memon v. Pakistan Railways 2011 PLC (C.S.) 281 rel.

(b) Civil service---

----"Permanent" in context of employment---Connotation -- Such word would not mean lasting till Day of Judgment, but would mean something likely to last for a very long period --­Something having continued for seven (7) years could not be said to be temporary anymore.

WAPDA v. Khanimullah 2000 SCMR 879 rel.

M.M. Aqil Awan for Petitioners (in Constitutional Petition No.D-1615 of 2011).

M.M. Aqil Awan (in Constitutional Petition No.D-1616 of 2011).

Muhammad Nawaz Sheikh (in Constitutional Petition No.D-1932 of 2012).

Mrs. Halima Khan. A.A.-G. for Respondents.

Date of Hearing: 5th September, 2012.

2013 P L C (C.S.) 1071

[Sindh High Court]

Before Naimatullah Phulpoto and Farooq Ali Channa, JJ

KHURSHID ALI JUNEJO

Versus

PROVINCE OF SINDH through Chief Secretary and 5 others

Constitutional Petition No.D-1971 of 2011, decided on 12th December, 2012.

(a) Constitution of Pakistan---

---Arts. 212(3) & 199---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Constitutional petition---Appeal against order of Service Tribunal---Forum---Judgment of Service Tribunal impugned through Constitutional petition before High Court instead of preferring an appeal before the Supreme Court---Maintainability---Accused/petitioner, who was serving in the Food Department, was alleged to have misappropriated bags of wheat---Departmental proceedings were initiated against accused and an F.I.R. was also lodged against him---Accused was removed from service after departmental proceedings and his departmental appeal was also rejected---Service Tribunal converted dismissal of accused to compulsory retirement---Accused was, however acquitted from the charges levelled against him in the F.I.R., and as a result moved an application before the Department for his reinstatement---Department contented that judgment of Service Tribunal was impugned through present Constitutional petition instead of preferring an appeal before the Supreme Court, and that departmental proceedings were entirely different from criminal proceedings---Validity---Constitutional jurisdiction of High Court could only be invoked if no other adequate remedy was provided in law--- Remedy available with accused against the order of Service Tribunal was to file a petition for leave to appeal before the Supreme Court in terms of Art.212(3) of the Constitution---Article 212(3) of the Constitution ousted the jurisdiction of all other courts--- Criminal proceedings against the accused, from which he was acquitted were neither co-extensive nor interconnected with departmental proceedings initiated against him---Constitutional petition was dismissed in circumstances.

2004 SCMR 540 ref.

(b) Civil service---

----Proceedings against civil servant---Simultaneous departmental and criminal proceedings---Scope---Departmental proceedings and criminal proceedings were entirely different---Both said proceedings were neither co-extensive nor interconnected.

2004 SCMR 540 rel.

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

----Ss. 3(2) & 4(1) & Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Appeal against orders of Departmental authority---Forum---Order of Departmental authority, even if passed without jurisdiction, could not be challenged before the High Court, as adequate/alternate remedy had been provided under the law.

(d) Constitution of Pakistan---

---Arts. 212(3) & 199---Constitutional petition---Maintainability---Scope---Civil service--High Court could not exercise jurisdiction in service matters in terms of the ouster clause provided under Art.212(3) of the Constitution.

Saleem Raza Jakhar for Petitioner.

Muhammad Bachal Tunio, Addl. A.-G. for Respondents.

Date of hearing: 12th December, 2012.

2013 P L C (C.S.) 1212

[Sindh High Court]

Before Ghulam Sarwar Korai and Munib Akhtar, JJ

Captain SALIM BILAL

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION (PIAC) through Managing Director PIAC and 2 others

Constitutional Petition No.D-125 of 2012, decided on 3rd May, 2013.

(a) Constitution of Pakistan---

----Arts. 25 & 199(1)(c)---Constitutional petition---Pilot of Pakistan International Airlines Corporation---Refusal of Corporation to pay compensation to petitioner for loss of licence after declaring him to be unfit medically---Petitioner's plea that Corporation had paid such compensation to his other colleagues, thus, its such refusal was violative of Art.25 of the Constitution---Corporation's plea was that petitioner's grievance was contractual in nature and not governed by statutory rules, rather same governed by principle of master and servant, thus, constitutional petition was not maintainable---Validity---Fundamental Rights could not be curtailed, abridged, infringed or violated---Directions under Art.199(1)(c) of the Constitution could be made to any person, which in appropriate circumstances could include a private person---Corporation was a person performing functions in connection with affairs of Federation---High Court could consider question as to whether petitioner had been discriminated or not, thus, basis of alleged discrimination, if based on contractual obligation, would be immaterial---High Court repelled such plea of Corporation---Principles.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman PLD 2010 SC 676; Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd. and another PLD 2009 Kar. 112; S.M. Ismail v. Capital Development Authority and others 2006 CLC 131 and Government of Pakistan and another v. Shoaib Bilal Corporation and others 2004 CLC 1104 ref.

(b) Constitution of Pakistan---

----Arts. 199(1)(c) & 184(3)---Fundamental rights, violation of---Constitutional jurisdiction of High Court---Scope---Such rights could not be curtailed, abridged, infringed or violated---Jurisprudence with regard to substantive application of Art.199(1)(c) of the Constitution being same as developed by Supreme Court in relation to its jurisdiction under Art.184(3) thereof---Directions under Art.199(1)(c) of the Constitution could be made to any person, which in appropriate circumstances could include a private person.

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

----S. 2---Insurance policy---Contract.

(d) Interpretation of documents---

----Contractual provision in a document---Scope---True meaning, scope and applicability of such provision for being a question of law would be determined by courts.

American Life Insurance Company (Pakistan) Ltd. v. Master Agha Jan Ahmed and another 2011 CLD 350 rel.

Ghulam Shabbir Shah for Petitioner.

Shakeel Z. Lari for Respondent No.1.

Khurram Rashid for Respondent No. 2.

2013 P L C (C.S.) 1275

[Sindh High Court]

Before Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ

MUHAMMAD ASLAM and another

Versus

GOVERNMENT OF SINDH through Home Secretary and 4 others

Constitutional Petition No.D-1254 of 2012, decided on 21st May, 2013.

(a) Words and Phrases---

----"Criterion"---Definition.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition-Civil service---Appointment---Recruitment against the quota reserved for children of serving and retired police employees---Petitioner had applied for the post of constable on the basis of son quota, qualified the written test but was not appointed---Standing Order issued by Inspector-General of Police for the appointment on employees' son quota---Criterion---Petitioner fulfilled required conditions of the Standing Order for appointment---Said Standing Order no-where required that qualified candidate should also undergo all tests, as were to by a regular candidate---Petitioner had fulfilled qualification requirement for the job which were described at the time of inviting application---Eligibility of petitioner was nowhere disputed because he was found physically fit and allowed to appear in written test---Petitioner had qualified the written examination for appointment and was not disqualified on any other ground---Department was directed to appoint the petitioner as constable---Constitutional petition was allowed.

(c) Constitution of Pakistan----

----Art. 199---Constitutional petition---Civil service---Policy of recruitment against the quota reserved for children of serving and retired police employees---Manner of selection of candidate was not prescribed in the Standing Order issued by the Inspector-General of Police---Discriminatory treatment---Standing Order itself revealed that seats would be allocated to the quota as per policy of the government from the vacancies available, but manner of selecting the children of employees under such reserved seats under the said Standing Order was not specified---Standing Order in question provided that candidate should only meet criteria to claim relief mentioned in Standing Order---Non-explaining and describing manner of selection of candidate in the Standing Order might be taken as a sword of discrimination---Policy must ensure justice with those being under one umbrella in such a manner and fashion that no one could come out with a plea of discrimination---Authorities were directed by High Court to chalk out a procedure of selection of candidates appointed under employees quota.

Syed Jaffar Ali Shah for Petitioners.

Noor Hassan Malik for Respondents.

Date of hearing: 14th May, 2013.

2013 P L C (C.S.) 1300

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Habib-ur-Rehman Shaikh, JJ

GHULAM MUSTAFA

Versus

CHANCELLOR, MEHRAN UNIVERSITY OF ENGINEERING AND TECHNOLOGY, JAMSHORO AT KARACHI and 3 others

Constitutional Petition No.D-1689 of 2010, decided on 2nd May, 2013.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---Back benefits---Entitlement---Petitioner an employee of university was alleged to have committed forgery and gave fake admission to two students---Petitioner was earlier compulsorily retired from service but on remand, he was proceeded against under Removal from Service (Special Powers) Sindh Ordinance, 2000, and was reverted from Basic Pay Scale 17 to 16---Plea raised by petitioner was that on remand of proceedings punishment of compulsory retirement was set aside and he was entitled to service benefits for the period he remained out of service---Validity---Claim of petitioner asking for back benefits for the period during which he remained compulsorily retired from service, particularly when he was not honourably acquitted from charges, was misconceived in fact and law---Petitioner did not challenge the order by filing appropriate proceedings before competent authority and had chosen not to press earlier petition wherein similar relief was sought---No reasonable cause was shown by petitioner to demonstrate that under what circumstances petitioner was prevented from filing appropriate proceedings against order passed by authorities before proper forum within stipulated period---Petitioner failed to make out a case requiring High Court to exercise its extraordinary Constitutional jurisdiction under Art.199 of the Constitution---Petitioner did not raise any substantial legal ground nor any illegality in the order passed by authorities was pointed out, therefore, High Court declined to interfere---Petition was dismissed in circumstances.

Dr. Muhammad Muzafar v. Federation of Pakistan, Ministry of Port and Shipping through Secretary and 3 others 2012 PLC (C.S.) 205 and Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haq and 2 others 2004 PLC (C.S.) 1151 rel.

Faheem Hussain Panhwar for Petitioner.

Muhammad Arshad S. Pathan for Respondents.

Date of hearing: 17th April, 2013.

2013 P L C (C.S.) 1375

[Sindh High Court]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

Syed ARIF RAZA RIZVI

Versus

FEDERATION OF PAKISTAN through Secretary Defence and 2 others

Constitutional Petition No.D-1505 of 2007, decided on 22nd May, 2012.

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

----Ss. 3, 4, 5 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal from service---Petitioner was flight-steward and he and his colleague airhostess were proceeded against for carrying contraband items---Inquiry Officer held petitioner guilty and exonerated the airhostess, resultantly petitioner was dismissed from service---Validity---Though airhostess was also accused of the charge as was the petitioner, however, she was exonerated of the charge without there being any distinction in evidence pertaining to petitioner and co-accused---Neither inventory of contraband bore signatures of petitioner nor he was in fact asked to sign the same---If petitioner had purchased contraband from duty free shop at the airport, it would not have been difficult for respondent Corporation to obtain some material / evidence to that effect---Management or Captain of airplane, at whose stance petitioner was proceeded against, failed to prove allegation against petitioner---Purported action drawn by Inquiry Officer, who was not competent to hold inquiry, was misconceived, untenable, mala fide and unfounded rather contrary to facts/evidence on record---Petition was allowed in circumstances.

PIAC v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Hyderabad Electric Supply Company v. Mushtaq Ali Brohi 2010 PSC 1392; Civil Aviation Authority v. Javed Ahmed 2009 PLC (C.S.) 679; Shahid Mehmood Usmani v. House Building Finance Corporation 2010 PLC (C.S.) 1360 and Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 PLC (C.S.) 470 ref.

Chaudhary Muhammad Ashraf Khan for Petitioner.

Khalid Javed for Respondents.

Date of hearing: 22nd May, 2012.

2013 P L C (C.S.) 570

[Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

ZAHID MEHMOOD

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar

Service Appeals Nos.95, 96, 97 and 98 of 2011, decided on 21st April, 2012.

(a) Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991)--

----S. 5---Khyber Pakhtunkhwa Civil Servants Efficiency and Discipline Rules, 1973, R.2(1)---Institutions on "Performance Evaluation Report" compiled by Khyber Pakhtunkhwa Government, Paras 3.7 & 5.2---"Performance Evaluation"---"Annual Confidential Report"---Scope---"Performance Evaluation", could be termed as a system of making judgments about performance of officials of various levels by their superiors in order to guide selection and other personnel decision---Confidential Reports rendered by reporting officers, on the performance of officials serving under them, would constitute the most important basis of evaluation---"Character Roll Dossier" maintained for the purpose, contained a systematically prepared and carefully assembled performance record of the official concerned---Since the Confidential Reports would constitute an aid to selection for training, appointment/transfer, promotions, confirmation or screening of officials, it was essential that they were written most carefully---Officer, before he embarked on the report writing work, should try to comprehend the characteristics listed in the Confidential Report forms---Report should give a clear picture of the officer reported upon, unambiguously.

(b) Civil service---

----Adverse remarks, expunction of---In the present case, there were three types of remarks, firstly, regarding integrity "so so", which did not seem to be objective, but reflected ambiguity; no evidence was on record regarding the integrity of the employee, nor anything was pointed out or communicated to him---Secondly, regarding overall grading; employee was assessed as 'Average' and nowhere an 'Average' remark was treated as adverse; once an officer was graded as 'Average', he could not be denied promotion---Lastly, the employee was assessed as not fit for promotion, which in fact was the adverse remark---Validity---Promotion was always made on the basis of seniority-cum-fitness---Seniority would depend upon the seniority list which was circulated annually, whereas fitness would depend upon different factors including, efficiency, performance, quantification of ACRs, professional output etc.---Record did not contain anything regarding the deficiencies of the employee, nor anything was on record that employee was inefficient and his performance was not up to the mark---Denying promotion to an incumbent would amount to punishment, and no punishment could be imposed without any allegations and without any charge-sheet, inquiry etc.---Authenticity, correctness and maintainability of ACRs, were questionable---Depending on the facts and circumstances and long unexplained delay could adversely reflect upon the authenticity of impugned adverse remarks against the employee---Impugned Adverse Remarks were communicated to the employee after unreasonable delay, without any explanation for such delay---If any adverse remarks in the ACR, were biased, unreasonable and contrary to facts, same could not be allowed to remain on record---Reporting and Countersigning Officer was supposed to give an honest, reasonable and unbiased assessment of the civil servant, uninfluenced by personal likes and dislikes, prejudices and partiality---No legal justification being available to uphold the adverse remarks recorded against the employee, same stood expunged, in circumstances.

1996 SCMR 256; 1999 SCMR 277; 2001 SCMR 1707 and PLD 2004 SC 191 ref.

Ijaz Anwar for Appellant.

Zahid Yousaf, A.A.-G. for Respondent.

Date of hearing: 21st April, 2012.

2013 PLC (C.S.) 1

[Lahore High Court]

Before Ch. Shahid Saeed and Abdul Waheed Khan, JJ

MUHAMMAD SAJJAD HUSSAIN

Versus

GOVERNMENT OF PUNJAB through Secretary Establishment, Lahore and 19 others

Writ Petitions Nos.23904, 2457 and 26605 of 2011, decided on 27th February, 2012.

(a) University of Health Sciences Lahore Ordinance (LVIII of 2002)---

----Ss. 12 & 47---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of retired Professor as Vice-Chancellor on contract basis for second time after ending his first term for four years without advertising post or inviting applications from interested candidates---Validity---Appointment of government functionaries must be made by adopting due procedure transparently---All appointments, except of short term or contingent employment, must be made after advertising posts by beating drums and giving opportunities to compete in test/interview so that best from best could be chosen---Appointments made without adopting such procedure would not only be illegal and unlawful, but also against public interest---Respondent during pendency of constitutional petition tendered resignation, which was accepted on same day and he was re-appointed as Vice-Chancellor by Search Committee on same day, when more qualified candidates having Ph.D. Degrees were available---Person once appointed as Vice-Chancellor for a term of four years after its expiry was not legally entitled to keep on holding such office even for one day---Respondent was holding office of Vice-Chancellor for about nine years, though he could not be allowed under law to remain in office any further after expiry of term of four years---High Court declared appointment of respondent as Vice-Chancellor as illegal, unlawful and void ab initio and directed the Government to appoint a Vice-Chancellor after observing due process of law as early as possible.

Hajj Corruption's case PLD 2011 SC 205 (SMC 24/2010) and Haris Steel Industries (Pvt.) Ltd.'s case PLD 2010 SC 1109 rel.

(b) Civil service---

----Appointments of government functionaries---Procedure stated.

The appointments of government functionaries should be made through adopting due procedure transparently. The appointments, except of short term or contingent employment, should be made after advertising the posts by beating the drum and giving opportunity to compete in the test/interview so that best from the best can be chosen. Appointments made without adopting such procedure are not only illegal and unlawful, but also against the public interest.

(c) Public functionaries---

----Public functionary must act under law, but not exceed or deviate from its domain --- Principles.

Statutory bodies are governed under Acts, Rules, Regulations and statutes which are meant for the purpose and no one is allowed to supersede the same. The government functionaries are presumed to act under the law and no one can exceed from its domain, neither supersede nor deviate. If provisions of Act are not complied with, then institutions cannot run smoothly as is required under the law.

Muhammad Arshad Khakwani v. IUB and another 2011 MLD 322 rel.

(d) Administration of justice---

----Something not permitted by law to be achieved directly could not be allowed to be achieved indirectly.

(e) Civil service---

---Appointment or re-appointment on contract or ad hoc basis in Government Departments/Organizations---Adverse results stated.

The appointment on contract basis is never commendable as such appointee being not a civil servant, is always governed in accordance with the terms and conditions of his appointment and cannot be deemed capable enough to effectively command and maintain discipline in the institution. The re-employment definitely blocks the way of others irrespective of the fact whether they are serving in that department/ organization or not, but interested to be appointed against the post of re-appointee.

There is already shortage of employment and million of people in this country are jobless and political interference in recruitment of employees in government departments is no more a secret. In such circumstances, if the persons, who are appointed against the lucrative posts will not retire and hold the same permanently, how the new generation will come forward and prove its abilities. If the government or high-ups intend to continue the appointment of their favourites after their retirement through re-appointment on contract or ad hoc basis, then why the other people, who have no political influence in the society, but have more capabilities, can be deprived from the same treatment as it would be a matter of discrimination to which the Constitution of Islamic Republic of Pakistan, 1973 as well as the injunctions of Islam do not permit in any manner. The courts can only allow such practice if all the employees of the government from bottom to top are treated and accommodated in the same way which, as a matter of fact, will not be possible for the government to do.

Nasir Mahmood Qureshi for Petitioners (in Writ Petitions Nos.23904 of 2011 and 2457 of 2011).

Shahid Ikram Siddiqui for Petitioners (in connected Writ Petition No.26605 of 2011).

Khawar Ikram Bhatti, Faisal Zaman, Addl. A.-G. and Ejaz Farrukh, Senior Law Officer, Health Department, Government of the Punjab.

Aftab Gul, S.M. Aftab for Respondent No.8 (in connected Writ Petition No.26605 of 2011).

Imran Muhammad Sarwar for Respondent No.7 (in connected Writ Petition No.2457 of 2011).

Mazhar Qayyum for PMDC.

Dates of hearing: 13th and 16th February, 2012.

2013 P L C (C.S.) 38

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Mst. NUSRAT BANO

Versus

PROVINCE OF PUNJAB through Secretary Education, Lahore and 7 others

Writ Petition No.6698 of 2010, decided on 19th March, 2012

Punjab Recruitment Policy, 2005-2006---

----Para. 11 (iii)---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Locus poenitentiae, principle of---Applicability---Scope---Teachers recruitment of---Extra 10 marks---Entitlement---Petitioner was resident of the village where school was situated and as per para. 11 (iii) of Punjab Recruitment Policy, 2005-2006, she was entitled to 10 extra marks at the time of preparing merit list---Grievance of petitioner was that the authorities had appointed respondent by giving extra 10 marks to her, who was not resident of the village concerned---Plea raised by respondent was that after implementation on her appointment order valuable rights had accrued in her favour and her appointment could not be recalled on the principle of locus poenitentiae---Validity---Concept of locus poenitentiae was the power to recede till a decisive step was taken but it was not a principle of law that order once passed had become irrevocable and a past and closed transaction---If order was illegal then perpetual rights could not be gained on the basis of such illegal order---High Court directed the authorities to issue appointment letter to the petitioner for the post concerned---Petition was allowed accordingly.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 rel.

Ch. Manzoor Hussain Basra for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. along with Rana Muhammad Younis Law Officer for Respondent No.1.

Ch. Muhammad Ayoub for Respondent No.7.

2013 P L C (C.S.) 46

[Lahore High Court]

Before Rauf Ahmad Sheikh, J

Mrs. RAZIA NADEEM and others

Versus

PROVINCE OF PUNJAB and others

Writ Petitions Nos.2713 and 2722 of 2009, decided on 4th April, 2012.

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

----R. 4(1)(2)---Punjab Public Service Commission (Functions) Rules, 1978, R.5---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Appointment on contract basis---Confirmation---Discrimination---Petitioners, in response to advertisement submitted applications for appointment; went through the selection process and were selected on merits and were recruited purely on contract basis---Tenures of said contract services were extended from time to time, but they were not regularized despite rendering long service, spreading over a period of more than 10 years; and during that period appointments on regular basis and also on contract basis were made through Public Service Commission---Selection of the petitioners was not made arbitrarily or at the whims of any individual, but they were selected on merits after competing with the rival candidates---Petitioners had given most valuable periods of their lives to the Government---Almost all the petitioners had become overage and could not seek employment elsewhere---Petitioners had been denied the right of equal treatment as their colleagues placed in similar positions had been extended the benefit of regularization, which was not permissible in view of Art.25 of the Constitution---Contention that the petitioners were not selected through Public Service Commission and were recruited through the Committee, was not a lawful ground to turn down their persistent and repeated requests for regularization---Authorities were directed by High Court to regularize the petitioners, with immediate effect within a period of two months.

PLD 1965 SC 208; 2010 SCMR 731; PLD 1970 Quetta 115 and PLD 2005 SC 100 ref.

Muhammad Akram Sheikh for Petitioners.

Saif-ur-Rehman, A.A.-G. for Respondents.

Muhammad Javed Rana, Deputy Director Colleges, Rawalpindi.

2013 P L C (C.S.) 58

[Lahore High Court]

Before Ch. Muhammad Younis and Shujaat Ali Khan, JJ

PRINCIPAL, Q.M.C. and others

Versus

ASGHAR ABBAS and others

Intra-Court Appeal No.21 of 2012/BWP, decided on 15th October, 2012.

(a) Civil service---

----Employees (petitioners) appointed on daily wages---Termination of service of said employees after three years due to non-availability of requisite funds---High Court directed concerned authority to consider them as permanent employees---Validity---Person working on purely temporary/work-charge basis could not claim status of permanent employee or retention in service or appointment on permanent basis merely on ground for having served department for a long period---Intra-Court Appeal was accepted and impugned order was set aside.

Executive Engineer, Central Civil Division, Pak P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Abdul Haque v. Manager, Indus Steel Pipe Limited, Kotri 1992 PLC 110; M.A. Rashid v. The Province of the Punjab and 2 others 1987 MLD 153; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Mrs. Wasim Akhtar v. WAPDA, through Chairman, WAPDA and 2 others 2006 PLC (C.S.) 191; The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769 and Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539 ref.

Dr. Mubashar Ahmed v. P.T.C.L. through Chairman, Islamabad and another 2007 PLC (C.S.) 737 rel.

(b) Civil service---

----Employee appointed on temporary or work charge basis---Such employee claiming appointment on permanent basis on ground of lengthy period of service---Validity---Such employee could neither claim status of a permanent employee nor would have vested right to be appointment on permanent basis merely for having served department for a long period---Illustration.

Dr. Mubashar Ahmed v. P.T.C.L. through Chairman, Islamabad and another 2007 PLC (C.S.) 737 rel.

Muhammad Iqbal Sial for Appellants.

Ch. Muhammad Shafi Mayo for Respondents.

2013 P L C (C.S.) 62

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUBARAK ALI ATHAR

Versus

GOVERNMENT OF PAKISTAN through Federal Secretary, Establishment Division, Islamabad and another

Writ Petition No.1680 of 2011, decided on 6th April, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Promotion---Petitioner who joined Police service in 1980, despite having unblemished career as an honest Police Officer, was deferred for promotion in BS-21---Petitioner as per seniority list figured at Serial No.10, whereas the officers at serial Nos.13 to 16, 18 to 20 & 22, who were junior to the petitioner, were promoted---Authority refuted claim of the petitioner alleging that he had bad reputation/ unsatisfactory integrity and that he was placed under watch to be monitored and to oversee his performance---Refuge of Art.212 of the Constitution and S.3(2) of Service Tribunals Act, 1973, was also pressed into service by the Authorities---Question whether a person having requisite eligibility had been rightly selected or not on account of fitness or otherwise for appointment to hold a post; or to be promoted to a higher post or grade, was excluded from the jurisdiction of Service Tribunal, such order was amenable to the jurisdiction of High Court---No material had been placed on record by the Authority in proof of allegation levelled against the petitioner---As the petitioner's deferment was on the basis of said serious allegations against him, he was definitely entitled to a right to explain the same---ACRs of the petitioner were excellent---No other material had been placed on record by the Authority---Order for deferment of petitioner on ground of a stigma of bad reputation/unsatisfactory integrity, was serious one, which could not be allowed to remain in existence without reply by the petitioner---Such stigma must be supported by any evidence and the petitioner had the right to rebut the same; or at least he could be allowed to explain his position---Impugned order was set aside and case was remanded to the authority for reappraisal of the same---Respondent authority would provide an opportunity to the petitioner for explaining the stigma against him---Order accordingly.

Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Government of Pakistan v. Muneer Ahmad Chishti, C.P.L.As. Nos.550 and 551 of 2007; Qamar uz Zaman v. Government of Pakistan Writ Petition No.210 of 2007; Mr. Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; 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; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Muhammad lqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682 ref.

Malik Muhammad Rafiq Rajwana for Petitioner.

Javed Iqbal Ansari for Respondent.

2013 P L C (C.S.) 73

[Lahore High Court]

Before Ijaz Ahmad, J

Ch. ANWAAR UL HAQ ARIF, Advocate

Versus

FEDERATION OF PAKISTAN through Secretary Law, Ministry of Law and Justice, Islamabad and 4 others

First Appeal from Order No.415 of 2009, Writ Petitions Nos.10608 of 2010 and 15898 of 2009, decided on 2nd July, 2012.

Income Tax Ordinance (XLIX of 2001)---

----S. 130(3)---Income Tax Appellate Tribunal Member Rules, 1988, R.3---Federal Public Service Commission Ordinance (XLV of 1977), S.7(3)(a)---Constitution of Pakistan, Arts.193(2), 240, 242 & 199--- Constitutional petition---Quo warranto, writ of---Income Tax Appellate Tribunal Member, appointment of---Age limit---Petitioners assailed appointments of respondents as Members (Judicial) of Income Tax Appellate Tribunal---Validity---Appointments in question related to service of Pakistan and fell under Art.240 of the Constitution and were regulated by S.130 of Income Tax Ordinance, 2001---Appointments against posts in question were made by Federal Public Service Commission as prescribed in Art.242 of the Constitution---Law could not be interpreted in a way which might render Arts.240 and 242 of the Constitution and provisions of Income Tax Ordinance, 2001, and Income Tax Appellate Tribunal Member Rules, 1988, redundant and nugatory---On the closing day and on the day of appointment of respondents, lower age limit of Judge of High Court was 40 years as Constitution (Seventeenth Amendment) Act (III of 2003) was in vogue and Constitution (Eighteenth Amendment) Act (X of 2010) was yet to come---Selection of respondents as Members (Judicial) and their ages being more than 41 years were in accordance with Income Tax Appellate Tribunal Member Rules, 1988, Income Tax Ordinance, 2001 and Art.193 of the Constitution---Appointments of respondents on 15-7-2009 had become past and closed transaction---Punitive application of law had to be prospective and not retrospective---High Court declined to interfere in appointments of respondents as Members (Judicial) of Income Tax Appellate Tribunal---Petition was dismissed in circumstances.

Farhat Ali Khan v. Ch. Muhammad Siddique and others 1998 SCMR 2190; Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160 Shahid Islam v. NIRC and others PLD 1996 Lah. 615; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Lt. General Jamshed Gulzar Chairman FPSC Islamabad and 4 others v. Federation of Pakistan through Secretary Establishment Division Government of Pakistan Islamabad and 2 others PLD 2006 Lah. 512; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Secretary Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others v. Muhammad Ashraf Khan and others PLD 2011 SC 7; Dr. Chandra Bhan Singh v. State of Rajasthan and others AIR 1983 Rajasthan 149 and Manendra Nath Rai and another v. Virendra Bhatia and others AIR 2004 Allahabad 133 ref.

Aljehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; The Chief Land Commissioner Sindh and others v. Ghulam Hyder Shah and others 1988 SCMR 715 and Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 rel.

Mirza Amir Baig and Umar Riaz for Petitioners (in Writ Petitions Nos.10608 of 2010 and 15898 of 2009).

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

Respondent No.4 in person.

Zohaib Imran Sheikh and Mehmood Ahmed Qazi for Respondent No.5.

Syed Nadir Hussain, Deputy Director, FPSC.

Date of hearing: 12th June, 2012.

2013 P L C (C.S.) 96

[Lahore High Court]

Before Sh. Azmat Saeed, CJ

MUHAMMAD MUNAWAR JANG SHER QADRI, Advocate

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 3 others

Writ Petition No.19417 of 2011, decided on 9th April, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Recruitment---Educational qualification, alternate choices---Word "or" was used between choices of qualification advertise for post in question---Contention of petitioner was that he was holding LL.B Degree and was eligible to participate in selection process for appointment of Deputy District Attorney and Assistant District Attorney---Validity---Word 'or' had been used in disjunctive sense and a candidate must either have LL.B Degree or the equivalent qualification---Candidate must not have a LL,B Degree as well as equivalent qualification as the equivalent qualification was subjected to two riders, firstly, recognition of Higher Education Commission and secondly 50% of aggregate marks---Latter conditionality could not travel beyond the disjunctive `or' especially as two alternate separate and distinct qualification had been set forth---Condition of 50% aggregate marks as prescribed was applicable only to the equivalent qualification recognized by Higher Education Commission and not the candidates having LL.B Degree---Candidates possessing LL.B Degree with requisite active practice were eligible to be considered for appointment even if they had not succeeded in obtaining 50% aggregate marks---Petition was allowed in circumstances.

Master Said v. Ch. Iftikhar Hussain, District Judge Jhang and others 2002 CLC 54; Muhammad Sana Ullah v. Allah Din 1993 MLD 399 and Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784 ref.

Shehram Sarwar Ch., Mushtaq Ahmad Mohal and Waqar Ahmad Hanjra for Petitioner.

Muhammad Azeem Malik, Addl. A.-G. and Muhammad Sultan Deputy Director, PPSC for Respondents.

Date of hearing: 5th April, 2012.

2013 P L C (C.S.) 155

[Lahore High Court]

Before Shujaat All Khan and Muhammad Farrukh Irfan Khan, JJ

WAHEED AHMED and another

Versus

NASEEM SADIQ and 3 others

Intra-Court Appeal No.542 in Writ Petition No.18568 of 2012, decided on 2nd August, 2012.

Constitution of Pakistan---

----Arts. 25 & 189 ---Equality of citizens---Several orders passed by High Court/Supreme Court in different background---Effect---Such orders could not be used for pressing into service point of discrimination.

Muhammad Anwar Khan v. Azad Jammu and Kashmir Government and 2 others 1999 PLC (C.S.) 197 rel.

Land Records Manual---

----R. 3.12---Constitution of Pakistan, Art.199---Constitutional petition---Patwaris, recruitment of---Criteria prescribed under R.3.12 of Land Records Manual and Notification No.SOR-III (S&GAD)1-21/2006, dated 17-1-2010 issued by Provincial Board of Revenue---Validity---Such notification being later in time as compared to Land Records Manual would have persuasive effect ---Criteria adopted under such notification could not be challenged, unless same was struck down.

Civil service---

----Qualification of a particular post and classification amongst groups---Powers of competent authority--- Scope--- Competent authority could specify qualification for such post after taking into consideration nature and duties thereof---Competent authority had a right of reasonable classification amongst different groups.

Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others 2006 SCMR 1427; Ibrahim Shah and 11 others v. Executive District Officer, Schools and Literacy Department, District Mardan and 2 others 2008 PLC (C.S.) 1034; N.-W.F.P Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 and 2008 SCMR 531 rel.

Land Records Manual---

----R. 3.12---Constitution of Pakistan, Art.199---Constitutional petition Maintainability---Patwaris, recruitment of-Non-filing of application by petitioner in response to subsequent advertisement issued for such recruitment---Constitutional petition challenging validity of such advertisement---Neither petitioner had filed application pursuant to impugned advertisement nor had Authority entertained his application---Petitioner being non participant could not challenge process of recruitment---High Court dismissed constitutional petition in circumstances. Inn.

Ch. Imran Raza Chadhar for Appellant.

2013 P L C (C.S.) 168

[Lahore High Court]

Before Ibad-ur-Rehman Lodhi, J

Qazi MUNIR AHMED

Versus

SECRETARY HEALTH and 2 others

Writ Petition No.2059 of 2011, heard on 30th August, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Discrimination---Petitioner was appointed to the post in question on contract basis which was later terminated---Petitioner challenged his termination by making representation before the relevant Authority but it was never decided---Petitioner and some of his colleagues filed writ petitions before High Court---Writ petition filed by petitioner was dismissed on ground of laches while those filed by his colleagues were allowed and directions were given to the Authority to regularize their (colleagues) services---Petitioner filed Intra-Court appeal against dismissal of his constitutional petition and consequently his petition was allowed and Authority was directed to decide representation moved by petitioner in one month---Authority dismissed representation of petitioner on ground that he did not fulfil requirements of regularization---Contentions of petitioner were that when intra-court appeal Bench allowed his constitutional petition, he was placed in the same position as his colleagues when their constitutional petitions were allowed and they were directed by High Court to be regularized---Validity---All similarly placed persons had been regularized and when in intra-court appeal, constitutional petition of petitioner was allowed, he attained the same status and deserved to be regularized---Petitioner fulfilled the requirement of rules and was also entitled to be regularized in accordance with the regularization policy---No dissimilarity existed between petitioner and those, who on the basis of a judicial verdict had been regularized in service---Constitutional petition was allowed, orders passed by Authority were declared to be illegal and without lawful authority as a consequence whereof petitioner was ordered to be reinstated in service with all back benefits and to be regularized in service in his capacity of post, which he held at the time of termination of his service.

Sardar Abdul Raziq Khan for Petitioner.

Syed Raza Abbas Naqvi, Asstt. A.-G. Punjab with Dr. Muhammad Irfan Khilji, DMS, District Headquarters Hospital, Rawalpindi and Tariq Mehmood vice Mian Abdul Rauf for Respondents.

Date of hearing: 30th August, 2012.

2013 P L C (C.S.) 195

[Lahore High Court]

Before Ali Baqar Najafi, J

Dr. MOBINA EHSAN

Versus

CHAIRMAN, PPSC and 4 others

Writ Petitions Nos.3195 and 3109 of 2012, decided on 13th December, 2012.

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

----Rr. 19, 29, 22 & 3---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Civil Service---Appointment on basis of domicile---Appointment on ad hoc basis---Petitioner impugned rejection of her application for the post of Professor on ground that petitioner was domicile of Islamabad which was Federal Territory, and only those domiciled in the Province could apply for the said post---Petitioner also impugned appointment made to said post on ad hoc basis---Contention of petitioner inter alia was that she had been a regular employee of the Province for 21 years and to restrict candidates domiciled outside the Province was discriminatory under Art.25 of the Constitution---Validity---Advertisement for recruitment to said post prescribed condition of domicile of the Province under head of "Qualification" and admittedly petitioner was a domicile of Federal territory---Under Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 appointment to the post could be made by promotion, transfer or initial recruitment---Vacancies could be filled with persons domiciled in the Province of Punjab in accordance with merit and ad hoc appointments may be made under strict compulsions---Contention that the petitioner was already in service of the Provincial Government, therefore, the condition of being domiciled in Punjab was required to be dispensed with; was to be repelled by the fact that advertisement did not prescribe any such concession or embargo to a government servant such as the petitioner---Retention of domicile was the right of an individual but so was its change depending on priorities and it was mandatory for candidate to have domicile of the Province of Punjab and therefore, the Provincial Government was within its right to prescribe any criteria permissible under law---Provincial Government, if it considers its own domicile holders (inhabitants) for regular vacancies, does not infringe the Constitutional rights of the inhabitants of the Federal territory---High Court directed that letter of petitioner addressed to the Authorities was to be decided in accordance with law and Policy and observed that all requirements of ad hoc appointments as per the Rules must be strictly complied with---Constitutional petition was disposed of accordingly.

Arif Karim for Petitioner.

Saif-ur-Rehman, A.A.-G. with Dr. A.B. Saleem, APMO, RMC on behalf of the Principal, RMC.

2013 P L C (C.S.) 200

[Lahore High Court]

Before Ijaz Ahmad, J

MUHAMMAD SAJJAD and 10 others

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 2 others

Writ Petitions Nos.1850, 1483, 1678, 1781, 1791 and 697 of 2011, decided on 12th April, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Illegal appointment---Responsibility---Petitioners were recruited by authorities and after they joined service, their appointment letters were cancelled on the ground that they were not domiciled of the Province but were residents of Islamabad Capital Territory---Validity---Domicile in particular Province was not such qualification without which an appointee could not properly perform his duties; it was only a mode of making appointments in an area from amongst its residents---Such factor had to be considered in order to safeguard rights of residents of a particular Union council, Tehsil, District or a Province at the time of appointment---Authorities had demanded and considered domiciles of petitioners and had held them legible for appointment, who during the course of their service did not incur any fresh disability---Petitioner did not become physically or mentally incapacitated and had not changed their places of abode and also not made any false statement or produced any false certificates that would have misled the authorities---Petitioners were petty servants and nature of their assignments were only to facilitate petitioners to earn their livelihood, which was their basic and fundamental right---Appointing authority, in case of an illegal appointment was to be punished and not the petitioners, who if punished would be deprived of their right to earn livelihood and would be disabled to perform their duties towards their dependants---Cancellation of appointment orders in favour of petitioner not hailing from the Province, even if having been passed illegally, would generate misunderstanding and hatred amongst the people of various Provinces and Federal Capital Territory---High Court declared orders terminating service of petitioners as illegal and the same were set aside---Constitutional Petition was allowed in circumstances.

Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector, D.I. Khan and others 2005 PLC (C.S.) 1056 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 PLC (C.S.) 69 rel.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Agricultural Director, Agricultural Engineering Department, Multan and another v. Malik Muhammad Amin PLJ 1983 Tr.C. (Labour) 132; Chairman, Selection. Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161; Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal, Lahore and others 2007 SCMR 318; Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 and Pakistan Telecommunication Co. Ltd through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Karamat Hussain for Petitioners (in Writ Petition No.1850 of 2011).

Raja Ikram Amin Minhas for Petitioners (in Writ Petitions Nos.1483, 1791 and 1781 of 2011).

Jaffar Hussain Kiani for Petitioner (in Writ Petition No.697 of 2011).

Musharraf Mehmood Qazi for Petitioners (in Writ Petition No.1678 of 2011).

Rashid Hafeez, A.A.-G.

Muhammad Zahid, Commandant, Police College Sihala.

2013 P L C (C.S.) 212

[Lahore High Court]

Before Nasir Saeed Sheikh, J

EHSAN-UL-HAQ KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary Agriculture Department, Lahore and 2 others

Writ Petition No.20906 and C.M. No.3093 of 2012, decided on 4th September, 2012.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil Service---Petitioner impugned order for his transfer on the ground that the same was done as political victimization and prayed that the same be declared illegal---Validity---Constitutional petition was directed against a transfer order and was, therefore not competent as posting and transfer of a civil servant was a matter pertaining to the terms and conditions of service of a civil servant---Every civil servant was liable to serve anywhere within or outside the Province in any post under the Provincial Government---No civil servant had any fundamental right with regard to posting, transfer or promotion as such---Constitutional petition was dismissed.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61 rel.

Syed Mansoor Ali Bukhari for Petitioner.

2013 P L C (C.S.) 234

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Mst. SHAZIA SARWAR

Versus

CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and 3 others

Writ Petition No.6604 of 2011, decided on 24th August, 2012.

(a) University of Punjab Act (IX of 1973)---

----Ss. 6(1), 11, 15(3) & 31(2)(iii)---Constitution of Pakistan, Arts.10-A, 105 & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Lecturer in Geography Department---Termination of service after four years on basis of petitioner's unsatisfactory annual confidential reports---University's plea that petitioner was appointed temporarily against a vacant post of Assistant Professor and her services were terminable on one month's notice or pay in lieu thereof; and that constitutional petition was not maintainable due to absence of statutory service rules---Validity---Contract employee would be entitled to hearing, if his/her termination of service was on basis of any allegation---Petitioner's termination from service on such allegation was hit by S.24-A of General Clauses Act, 1897---According to advertisement, post of Lecturer was likely to become permanent with passage of time---Petitioner remained in service as Lecturer for four years without any break or extension---According to condition of probation contained in University statute applicable to employee appointed against permanent post, temporary post of lecturer after one year would become permanent, thus, petitioner would be deemed to be permanent lecturer by operation of law---Governor of Province while acting as Chancellor would be a statutory functionary due to insertion of subsection (8) in S.11 of University of Punjab Act, 1973 for being a referential legislation, thus, amendments brought about in Art.105 of the Constitution would be read therein for being fully applicable thereto---According to S.31(2)(iii) of University of Punjab Act, 1975, Chancellor had exclusive powers to make Efficiency and Discipline Rules pertaining to teachers etc.---Chancellor's powers qua framing of such rules were constitutional, thus, such rules framed by him would be deemed to be statutory rules---High Court declared impugned order to be without lawful authority and of no effect while directing reinstatement of petitioner in service without back-benefits to the extent of salary and she would be entitled to seniority after completion of probation period after her initial appointment as Lecturer.

Aurangzeb Shafi v. Province of Punjab PLD 2011 Lah. 1989; Al-Jehad Trust's case PLD 1996 SC 324; Dayyam Atta Tareen v. NUST and others 2011 CLC 211; Rana Aamer Raza Ashfaq and others v. Dr. Minhaj Ahmed Khan and others 2012 SCMR 6; Chairman State Life Insurance Corporation v. Hamayun Irfan and others 2010 PLC (C.S.) 1183; Pakistan Tele Communication Company v. Muhammad Zahid and others 2010 SCMR 253; Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676; Abdul Rashid Khan v. Registrar Bahauddin Zakaria University 2011 SCMR 944; Azad Jammu Kashmir University v. Major (Rtd.) Rafique Ahmed Daurrani 2005 PLC (C.S.) 1360; Muhammad Khalid Khan v. Quaid-e-Azam University Islamabad 1984 CLC 721; Munaza Habib v. The Vice-Chancellor 1996 SCMR 1790; Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College Bahawalpur 1994 SCMR 532; Muhammad Shahid and others v. Vice-Chancellor Punjab University Lahore 1999 SCMR 2590 and State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 897; University of Punjab v. Ch. Sardar Ali 1992 SCMR 1093; Ijaz Husain Suleri v. The Registrar and others 1999 SCMR 2381; Executive Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132; Munaza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790; Muhammad Shahid and 6 others v. Vice Chancellor, Punjab University, Lahore and 15 others 1999 SCMR 2590 and Rana Aamer Raza Ashfaq's case 2012 SCMR 6 rel.

(b) Civil service---

----Contract employee---Termination of service on basis of an allegation---Scope---Such employee would be entitled to hearing before termination of his service.

(c) Maxim---

----Verba relata hoc maxime operantur per referentiam ut in eis inessee vindentur: Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them.

(d) Interpretation of statutes---

----Referential legislation---Scope---Verba relata hoc maxime operantur per referentiam ut in eis inessee vindentur: words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them.

Pervaiz Inayat Malik for Petitioner.

Muhammad Shahzad Shaukat for Respondents.

Date of hearing: 9th July, 2012.

2013 P L C (C.S.) 248

[Lahore High Court]

Before Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

TANVEER AHMAD KHAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and 3 others

Service Appeal No.2 of 2009, decided on 16th January, 2013.

(a) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 26, 7 & 20---Lahore High Court Notification No.10218/Gaz.1.V.Z.2 (a), dated 10-7-2009---Promotion to post of Deputy Registrar, (Lahore) High Court---Selection process ---Power of competent authority/Chief Justice to appoint or promote any person/officer ---Scope---Promotees/respondents were promoted to the post of Deputy Registrar, (Lahore) High Court by the impugned order of Chief Justice---Appellant, who was Reader, was superseded by the promotees, contended that impugned order of promotion did not furnish any reasons for superseding him; that despite being senior to the promotees he was not promoted; that no "objective criteria" had been evolved for selection to the post of Deputy Registrar, therefore, the impugned order amounted to discrimination---Promotees contended that they were preferred over the appellant because of their better educational qualification, and that under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules, the Chief Justice of the Lahore High Court had unlimited powers to appoint and promote any officer of the High Court ---Validity---Service record of appellant and promotees showed that one of the promotees and the appellant had the same educational qualification, and that appellant was senior to some of the promotees--- Impugned order failed to furnish reasons as to why the appellant stood superseded when his service record and educational qualification were at par with one of the promotees---Impugned order also did not state as to why said promotee was selected for promotion when four other Readers in the selection pool, holding better educational qualification, were ignored---Recruitment under R.7 of the High Court Establishment (Appointment and Conditions of Service) Rules from amongst the pool of officers awaiting promotion on the basis of an open, transparent and intelligent objective criteria followed by a speaking order, was in the public interest and in the larger interest of the institution--- Power of selection under R.7 of the said Rules could not be used to select or pick and choose any officer of liking from amongst the officers without considering all the officers awaiting promotion in the pool---Although educational qualification was a valid parameter for the purpose of selection posts but was not the sole parameter---Power vested with the competent authority/Chief Justice under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules did not vest him with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Rule 26 could not be invoked to pick and choose any officer awaiting promotion or otherwise without first considering all the officers in the pool---Impugned order of promotion to the extent of one of the promotees, who was junior to the appellant and possessed the same educational qualification, was set aside in circumstances and appellant was promoted as Deputy Registrar, w.e.f. 10-7-2009, without back benefits, while the remaining promotees were to retain their inter-seniority as maintained prior to their promotion---High Court directed that all appointments and promotions to selection posts should be made in accordance with R.7 of High Court Establishment (Appointment and Conditions of Service) Rules by considering the service record and other antecedents of the officers by employing an objective criteria, and that Registrar, High Court should place all the orders passed by the competent authority (now or in the past) under R.26 or R.7 (without consideration of the officers in the pool) before the competent authority for appropriate orders in accordance with law---Appeal was allowed accordingly.

Service Appeal No.10 of 1999 distinguished.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.

(b) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 24 & 20 & Schedule II ---Order of appointment or promotion to the post of Deputy Registrar, Assistant Registrar and Private Secretary made by Chief Justice of the High Court---Appeal against such an order---Scope---Where the order passing authority was the Chief Justice of the High Court, the appellate authority against such an order would be a bench of two judges of the High Court.

Service Appeal No.10 of 1999 distinguished.

(c) Civil service---

----Selection-post---Suitability of candidate, determination of---Merit---Scope---Selection post was to be filled purely on merit by carefully evaluating the suitability of the officer for the post---Suitability of the officer for a selection post, was not to be simply gauged on the basis of seniority or eligibility but required a deeper subjective assessment of the meritoriousness of a candidate---To evaluate merit, the ability and achievement demonstrated by the officer in the post held by him played a pivotal role---Competent authority, therefore, had to devise a strategic formulae or intelligent objective criteria or smart parameters that were geared towards evaluating the suitability of the candidate and helped select the best person for the job.

Tariq Aziz-ud-Din and others's 2010 SCMR 1301 rel.

(d) Civil service---

----Selection-post---Selection process---"Discretion" of competent authority---Scope---Discretion at work behind the selection process must be structured, rational, logical and objective---Discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Intelligent objective criteria or smart parameters were tools for the selecting authority to logically fashion its discretion---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301; Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; 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 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

(e) Civil service---

----Selection-post---Selection order made by competent authority---Scope---Non-speaking selection order---Effect---Exercise of structured discretion was incomplete if it was not translated into a speaking order, furnishing reasons---Unreasoned and non-speaking order generated mistrust, suspicion, dubiety and frustration amongst the officers and compelled them to harbour doubts about the recruitment process hence lowering the prestige and credibility of the selection process and as a result of the institution---Such an order also had a dispiriting effect on the officers who continued to work with wavering interest and loyalty thus putting down the overall productivity of the institution.

Messrs Airport Support Services 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 Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799 rel.

(f) Civil service---

----Selection-post---Criteria for selection---Seniority of candidate---Significance---Seniority was not the determining factor in a selection post but could tilt the scales in favour of the senior officer in case of a tie.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

(g) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 26 & 7---Constitution of Pakistan Arts.4, 10A & 25---Power of competent authority/Chief Justice of the (Lahore) High Court to appoint or promote any person/officer of the High Court---Scope---Power vested with the competent authority/Chief Justice under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules did not vest him with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Such an interpretation would offend the constitutional obligation of due process and fair trial under Arts.4 and 10A of the Constitution---Rule 26 of High Court Establishment (Appointment and Conditions of Service) Rules could not equip the competent authority with the license to pick and choose any officer for promotion as that would be facially discriminatory, offending Art.25 of the Constitution---Rule 26 of High Court Establishment (Appointment and Conditions of Service) Rules appeared to empower the competent authority with unabridged power but in substance the said Rule itself regulated and harnessed the power by providing its exercise "in a manner as may appear to him [competent Authority] to be just and equitable"---Power vested under R.26 was an exception and had a limited use and could be invoked in special emergent circumstances---For purposes of appointment and promotion R.26 of High Court Establishment (Appointment and Conditions of Service) Rules would be available to the competent authority only when all the officers available in the talent pool for appointment or promotion to the post in question had been duly considered and not found suitable through a speaking order---Exercise of such special power was harnessed by strict requirement of detailed deliberations by the competent authority followed by a well-reasoned order that would justify side tracking the normal procedure under the Rules.

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 and Manzoor Hussain and 2 others v. Muhammad Ashraf and another 1999 PLC (C.S.) 279 rel.

(h) Discretion---

----Exercise of---Principles---Discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness.

Syed Ijaz Qutab for Appellant.

Shahid Mubeen along with Hafiz Muhammad Sajjad, Assistant Registrar (Gazette-II), Lahore High Court, Lahore.

Respondents Nos.2 to 4 in person.

Syed Aamir Ali, Assistant Registrar (Legislation), on Courts' call.

Date of hearing: 22nd November, 2012.

2013 P L C 269

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUDASSAR KHAN and 5 others

Versus

INSPECTOR-GENERAL POLICE, PUNJAB and 3 others

Writ Petition No.8156 of 2012, heard on 27th September, 2012.

Police Order (22 of 2002)---

----Arts. 7(3) & 112---Assistant Sub-Inspector (Appointment, Promotion and Conditions of Service) Rules, 2011---Constitution of Pakistan, Art.199---Constitutional petition---Departmental promotion---Fixation of upper age limit---Declaration of Assistant Sub-Inspector (Appointment, Promotion and Conditions of Service) Rules, 2011 as ultra vires of Police Order, 2002---Authorities, invited applications for departmental promotion as Assistant Sub-Inspector from in-service graduate constables and Head Constables having a clean service record; and having three years service and age from 18 to 35 years---Fixation of upper age limit of 35 years vide Assistant Sub-Inspector (Appointment, Promotion and Conditions of Service) Rules, 2011 framed by authorities for departmental promotion of in-service graduate constables and Head Constables under second proviso to Art.7(3) of Police Order, 2002, had been challenged by the candidate constables being ultra vires of the main statute---Contention of candidate constables was that no age limit had been provided in Art.7(3), second proviso of Police Order, 2002, but authorities while framing the impugned Rules, had fixed the upper age limit as 35 years, which was in direct conflict with provisions of the main statute---Admittedly under Art.7(3), second proviso of Police Order, 2002 no age limit was provided for departmental promotion in 25% quota to the rank of Assistant Sub-Inspector, but said departmental promotion was subject to rules and through selection by appropriate Public Service Commission from graduate constables or Head constables having clean service record---Under provisions of Art.112 of the Police Order, 2002, Provincial Police Officer had the powers to frame rules with the approval of Government but approval and publication of such rules in official Gazette was mandatory---Impugned rules had not been gazetted, therefore, same could not be deemed to be valid and enforceable rules---Impugned rules, i.e. "Assistant Sub-Inspector (Appointment, Promotion and Conditions of Service) Rules, 2011" were declared without lawful authority, in circumstances.

Syed Nusrat Jamal and another v. Inspector General of Police, Punjab Police, Complex, Lahore and 2 others 2007 PLC (C.S.) 208 and Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 rel.

Malik Ghulam Rasul for Appellants.

Ch. Muhammad Iqbal, Addl. A.-G., Punjab for Respondents.

Date of hearing: 27th September, 2012.

2013 P L C (C.S.) 274

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Mst. SUMAIRA

Versus

DISTRICT COORDINATION OFFICER/ CHAIRMAN, DISTRICT RECRUITMENT COMMITTEE, SARGODHA and 2 others

Writ Petition No.1753 of 2012, decided on 9th March, 2012.

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

----R. 17-A---Constitution of Pakistan, Art.199---Constitutional petition---Employment to children of deceased employee---Object and scope---Basic objective behind R.17-A of Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, is to accommodate one unemployed son/daughter of a public servant who dies while in service or is declared invalid for further service.

(b) Constitution of Pakistan---

----Arts. 29, 30 & 199---Constitutional petition---Civil service---Appointment---Policy for recruitment by government---Principle---Proper policy should be based on overall appreciation of prevalent circumstances, social, moral and financial implications---Such policies to be prepared in consonance with existing service rules---Benefit of recruitment of children of deceased employee cannot be taken away or reduced to minimum threshold level on the whims of particular regimes of politicians or a group of executives at the helm of the affairs at the time of framing such policies.

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

----R. 17-A---Recruitment Policy, 2011---Notification SOR-III (S&GAD) 2-10/2006, dated 26-1-2008---Constitution of Pakistan, Arts.29, 30 & 199---Constitutional petition---Recruitment policy---Employment to children of deceased employees---Notification superseding statutory rules---Father of petitioner, in the present case, was a Government School Teacher, who died during service---Grievance of petitioner was that while preparing merit list, for the post of Secondary School Educator, authorities did not award her ten additional marks under R.17-A of Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974---Plea raised by authorities was that no additional marks were provided under the policy prepared for recruitment---Validity---Provision of R.17-A of Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, was aimed to provide stop gap arrangement for sustainability of a deceased government employee's family on compassionate grounds---Non-adherence of such arrangement in Recruitment Policy for year, 2011, was detrimental to vested rights of dependants of decreased/ incapacitated civil servants bestowed upon them by Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974---Recruitment Policy was meant for the purpose of providing guidelines for making appointments and could not attain status of statutory rules or law promulgated by Assembly or Parliament---Statutory rules could not be modified or superseded by executive instructions---Provision of R.17-A of Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974, was a statutory rule and could not be abrogated, modified, or ignored by an executive instruction while formulating Recruitment Policy---Such clause of Recruitment Policy for year, 2011, was in contravention of R.17-A of Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974---High Court had ample jurisdiction to pass direction to concerned authorities to bring the same in conformity with statutory rules---High Court in exercise of powers under Art.199 of the Constitution, directed the authorities to amend disputed clause of Recruitment Policy for year, 2011, in the light of R.17-A of Punjab Civil Servant (Appointments and Conditions of Service) Rules, 1974 and Notification No.SOR-III (S&GAD) 2-10/2006, dated 26-1-2008---High Court further directed the authorities to award ten additional marks to the petitioner under R.17-A of Punjab Civil Servant (Appointments and Conditions of Service) Rules, 1974 and then if she fell on merit issue her appointment order for the post of Secondary School Educator---Constitutional petition was allowed accordingly.

Dr. Najam Iqbal Ahmad v. Province of Punjab and others 2010 PLC (C.S.) 1477 and Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 rel.

Sh. Shahid Waheed for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. along with Zubair Khan, Deputy Secretary (Education) for Respondents.

2013 P L C (C.S.) 286

[Lahore High Court]

Before Ch. Muhammad Younis, J

SHER AFZAL

Versus

R.P.O. SARGODHA and others

Writ Petition No.1833 of 2012, decided on 12th July, 2012.

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

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Civil service---Transfer---Petitioner had assailed his transfer order, alleging that same was based on mala fide intention and was discriminatory in nature---Petitioner claimed vested right to serve at the present post---Validity---Transfer of civil servant related to the terms and conditions of service subject to law and rules, and it was the prerogative of the competent authority to transfer a civil servant from one place to another---Petitioner having no legal right to be posted against a particular post, no right would be infringed---Civil servant could be asked to serve anywhere by the competent authority---No hard and fast rule was available that only seniors should be transferred first---In the present case, impugned order of transfer was found to be a routine transfer order and not only the petitioner, but 24 others had also been transferred through the said order---Nothing exceptional was found in the order---Constitutional petition, was not maintainable in view of the bar contained in Art.212 of the Constitution.

1994 SCMR 1548; 2010 PLC (C.S.) 668; 2010 PLC (C.S.) 882; 2008 PLC (C.S.) 892 and 2009 PLC (C.S.) 44 distinguished.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Government of Sindh through Secretary Education and Literacy Department and others v. Nazakat Ali and others 2011 SCMR 592 and Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 rel.

Ambreen Khan for Petitioner.

2013 P L C (C.S.) 289

[Lahore High Court]

Before Ch. Shahid Saeed and Abdul Waheed Khan, JJ

AZIZ-UR-REHMAN AKBAR

Versus

SECRETARY, HEALTH DEPARTMENT GOVERNMENT OF THE PUNJAB, LAHORE and another

Intra-Court Appeal No.597 in Writ Petition No.14544 of 2011, decided on 23rd February, 2012.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Civil service---Termination of service---Locus poenitentiae, principle of---Applicability---Appellant who in response to advertisement applied for the post of Progressive Officer (BPS-17), qualified in the test and interview, but instead of appointing him against the post applied for, he was offered a lower grade post of Additional Admin. Officer (BS-16) on contract basis which was accepted by appellant and he was appointed accordingly---Later on when Government introduced a policy for regularization of service of contract employees, name of appellant along with others was forwarded for regularization, but authority refused to recommend his name for said regularization, merely on the ground that no rules existed for the post occupied by the appellant---Services of the appellant, in the meanwhile, were terminated---Appellant had performed his services efficiently without any blemish on his record for about 12 years and the Department had recommended his name for regularization of his service---If any irregularity was found at later stage in appointment of appellant, he should not suffer in any manner---Even if appellant was appointed against a vacancy which was not in existence, the fault could not be attributed to him, but fault if any, was of the department or the competent Authority---Beneficiary of illegal appointment could not be blamed alone because primarily the authority, who had actually wrongfully exercised its power, was found to be held responsible for the same---Once an appointee was qualified to be appointed, his service could not subsequently be terminated on the basis of lapses and irregularities committed by the department itself---Appellant was duly qualified by virtue of his educational qualification for appointment against the post applied for, but he was appointed against a lower grade post---Appellant neither lacked the basic qualification nor eligibility nor requirements for the post---Even under the principle of locus poenitentiae, appellant's services were required to be regularized---Impugned order was set aside and authorities were directed to reinstate the appellant into service from the date he was removed; and also forward his name for regularization of his service to Public Service Commission.

Muhammad Akhtar Shiani v. Punjab Text Book Board 2004 SCMR 1077; Tanveer Ahmad v. Roshan Din and others 1999 PLC (C.S.) 938 and Muhammad Zahid Iqbal and others v. DEO Mardan and others 2006 PLC (C.S.) 1216 rel.

Hafiz Tariq Naseem for Appellant.

Khawar Ikram Bhatti, Addl. A.-G. and Hafiz Khushi Muhammad, Additional Medical Superintendent, Children Hospital, Lahore for Respondents.

Date of hearing: 15th February, 2012.

2013 P L C (C.S.) 299

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Mst. FAIZA IQBAL and 7 others

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education, Lahore and another

Writ Petition No.937 of 2012, decided on 3rd February, 2012.

Punjab Recruitment Policy, 2011---

----Constitution of Pakistan, Arts. 25 & 199--- Constitutional petition--- Civil service--- Appointment--- Discrimination--- System of examination---Additional marks---Petitioners applied for posts in question but their candidature was rejected on the basis of amendment made in the criteria after publication of advertisement in the newspaper---Validity---Imposing condition of obtaining weightage of notified subject equivalent or over 75% marks of total marks of degree for candidates who passed graduation examination through Semester System but placing no such conditions on the candidates who passed their examination through Annual System was not only discriminatory but also violative of Art.25 of the Constitution, which had guaranteed equality and equal protection of law to all citizens---Giving undue preferences to candidates who passed graduation examination through Annual System was not appreciable---If threshold level of obtaining weightage on notified subject, which was not less than 75% out of total marks of degree was not imposed on candidates who passed their Graduation examination through Semester System then petitioners were eligible to be considered for the posts in question---Petition was allowed, in circumstances.

Amir Hamza v. Government of Balochistan and others 2005 PLC (C.S.) 1201; Hussain Badshah and another v. Akhtar Zaman and another 2006 SCMR 1163 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 ref.

M. Sarwar Qamar for Petitioners.

Waqas Qadeer Dar, Asstt. A.-G. along with Ali Hussain Marli, Addl. Secretary, Zubair Khan, Deputy Secretary and Faiz-ul-Hassan Fiazi Under Secretary (Education).

Rana Muhammad Younis Law Officer of Education Department.

2013 P L C (C.S.) 306

[Lahore High Court]

Before Nasir Saeed Sheikh, J

Agha NADEEM

Versus

ADDITIONAL SECRETARY WELFARE, GOVERNMENT OF THE PUNJAB, SERVICES AND GENERAL ADMINISTRATION DEPARTMENT, LAHORE and 2 others

Writ Petitions Nos.1703 and 20124 of 2012, decided on 13th August, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Official residence at Lahore owned by Provincial Government and allotted to petitioner while serving with Provincial Government---Allotment of such residence to respondent after transfer of services of petitioner to Federal Government and his posting at Islamabad---Demand of vacant possession of such residence from petitioner after change in tenure of its retention from five years to two years by Provincial Government---Validity---Services of petitioner were being utilized by Federal Government at Islamabad, but he had not applied for getting residence there---Provincial Government was competent to formulate its policy in order to accommodate its officials in its official residences---Such policy of Provincial Government was not required to be notified in official gazette---Constitutional petition would not be competent to challenge such policy of Provincial Government applicable to all its officials---Petitioner had no vested right or locus standi to retain such residence owned by his ex-employer (i.e. Provincial Government) after his posting at Islamabad with Federal Government---Petitioner had no absolute right to retain such residence after expiry of two years grace period allowed by Provincial Government---Petitioner being a senior civil servant was expected to honour such policy and hand over vacant possession of such residence to Estate Officer---High Court dismissed constitutional petition and granted 15 days time to petitioner for vacation of such residence, and in case of his failure to do so, authority would be at liberty to adopt all lawful means to implement its impugned order.

Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; Government of the Punjab Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Mrs. Naseem Khan v. Province of Punjab through Chief Secretary and 3 others PLD 1992 Lah. 359; Syed Ali Azhar Naqvi v. The Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others PLD 1994 Kar. 67 and Zahoor Textile Mills Ltd. v. Federation of Pakistan and others PLD 1999 SC 880 ref.

Agha Abu-ul-Hassan Arif for Petitioner.

Suqrat Mir Basit for Applicant (in C.M. Nos.3 and 4 of 2002).

Muhammad Akmal, Law Officer, Muhammad Arif Raja, Addl. A.-G. Muhammad Masood Mukhtar, Additional Secretary Welfare, S&GAD. and Umar Farooq, Estate Officer for Respondents.

2013 P L C (C.S.) 315

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ASGHAR ALI

Versus

CHAIRMAN BOARD OF GOVERNORS, LAHORE MUSEUM, LAHORE/CHIEF SECRETARY GOVERNMENT OF PUNJAB and 6 others

Writ Petition No.5074 of 2012, decided on 13th April, 2012.

Lahore Museum Regulations, 1987---

----Regln. 10---Constitution of Pakistan, Art. 199(1)(b)(ii)---Constitutional petition---Quo warranto, writ of---Locus standi---Principles---Appointment---Respondent joined the Lahore Museum on deputation and petitioner had challenged authority of respondent in holding post in question---Plea raised by authorities was that respondent was highly qualified and had rightly joined the post in question on deputation---Validity---Present case fell under the purview of Art.199(1)(b)(ii) of the Constitution---In such-like cases petitioner was not required to establish his locus standi to invoke jurisdiction of High Court, as duty of petitioner was just to bring any illegality/irregularity in the notice of High Court, while acting as informer---High Court, in exercise of its Constitutional jurisdiction, was fully competent to inquire from any person holding public office as to under what authority he had been holding that office---Higher qualification of respondent did not mean that he could be appointed anywhere without observing codal formalities and by violating statutory provisions of law---Writ of quo warranto could be issued where while making appointment violation of legal provisions was made---Respondent in his parent department, was serving in Grade-14, while on deputation he was not only drawing pay and allowances of Grade-16 but also receiving deputation allowance at the rate of 20% of his basic pay which was not only extra burden on financial position of the acquiring department but had also created a sense of deprivation amongst employees of the department who were fully eligible to hold post in question---High Court declared appointment of respondent on deputation basis as illegal, without lawful authority and in violation of regulations---Petition was allowed, in circumstances.

Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720; Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad, through Chairman and others 2010 SCMR 378 and Ali Hussain Bukhair and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others 1992 PLC (C.S.) 289 rel.

Ajmal Khan Kakar for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. along with Nighat Siddique, Deputy Secretary Information.

Safdar Hussain Ranjha for Respondent No.3.

Respondent No.4 in person.

2013 P L C (C.S.) 344

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ZAKA ULLAH BAJWA

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Public Prosecution Department, Lahore

Writ Petition No.13078 of 2010, decided on 10th August, 2012.

(a) West Pakistan Civil Service (Applications for Posts) Rules, 1957---

----Rr. 8 & 3---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R.4(2)---Constitution of Pakistan, Art.199---Constitutional petition---Deputy Prosecutor General (BS-18), post of---Appointment of petitioner on such post recommended by Public Service Commission, but refusal of Provincial Government to issue him appointment letter due to pendency of inquiry and registration of criminal case against him and his removal from pervious service---Petitioner's plea was that Service Tribunal had converted his penalty of removal from service into withholding of one increment for one year---Validity---Public Service Commission had offered such post to petitioner subject to verification of his academic qualification and information submitted by him---Competent authority had withheld appointment order of petitioner after coming to know about his removal from previous service and pendency of inquiry and criminal case against him---Petitioner had neither disclosed factum of inquiry and criminal case nor applied for such post with permission of Appointing Authority as envisaged under R.8 of Punjab Civil Service (Application For Posts) Rules, 1987---Mere offer of appointment would not create any vested right in favour of a candidate---Conversion of such penalty by Tribunal would mean that some of charges stood proved against petitioner---High Court, in constitutional jurisdiction, could not compel department to appoint a person, which department was not willing to appoint due to adverse entries in his previous service record and accused in criminal case---Petitioner had failed to establish his vested right viz-a-viz such post, thus, question of its infringement would not arise warranting interference by High Court in constitutional jurisdiction---High Court dismissed constitutional petition, in circumstances.

Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 PLC (C.S.) 771 rel.

(b) Civil service---

----Appointment on a post, offer of---Validity---Mere such offer would not create vested right in favour of a candidate.

Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 PLC (C.S.) 771 rel.

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

----S. 21---West Pakistan General Clauses Act (VI of 1956), S.20---Authority having power to make an order would have power to undo the same.

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

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction being discretionary in nature could not be exercised to perpetuate any ill-gotten gain.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230 rel.

Hafiz Tariq Nasim for Petitioner.

Ch. Khadim Hussain Qaisar, Addl. A.-G. for Respondent.

2013 P L C (C.S.) 353

[Lahore]

Before Ali Baqar Najafi, J

Raja MUHAMMAD NASIR KHAN

Versus

ACTING VICE-CHANCELLOR and others

Writ Petitions Nos.2431, 2063, 2680, 2485 and Criminal Original No.141-W of 2012, decided on 12th December, 2012.

University of Wah Act (IV of 2009)---

----Ss. 12, 10 & 18---Constitution of Pakistan, Art.199---Constitutional petition---Educational institution---Appointment of Vice-Chancellor---Distinction between "Acting Vice-Chancellor" and "tenure appointment of Vice-Chancellor"---Petitioners impugned the appointment of respondent as Acting Vice-Chancellor on the grounds that said appointment was not made in accordance with prescribed procedure and that post of Vice-Chancellor had been lying vacant for over two years---Validity---- Under the University of Wah Act, 2009 post of Vice-Chancellor was described as a tenure post whereas the post of Acting Vice-Chancellor was temporarily arranged until regular incumbent was made available and therefore, the post of Acting Vice- Chancellor was for an interim period---Exact powers of Acting Vice- Chancellor had to be defined in unequivocal terms for a definite period by the Board constituted under University of Wah Act, 2009---Disastrous consequence may ensure for a university being run without its Vice- Chancellor for an indefinite period and in the present case, a serious search of the Vice-Chancellor was lacking---Said two posts could not be equated as one was a tenure post described as an Officer of the University and the second (Acting Vice-Chancellor) was bound by the empowering instrument issued by the Board constituted under University of Wah Act, 2009---Office of Acting Vice-Chancellor could not be dispensed with for a long period such as in the present case---During such period, Acting Vice-Chancellor would not be the substitute for the Vice-Chancellor---High Court declared appointment order of respondent as having been passed without lawful authority and without following the procedure and rules under the University of Wah Act, 2009---High Court further directed the concerned authority to appoint Vice-Chancellor in accordance with prescribed procedure---Constitutional petitions were allowed, accordingly.

Dr. Aftab Ahmad Malik v. University of Engineering and Technology and others 2005 PLC (C.S.) 80 and Board of Governor Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928 ref.

Syed Nazim Hussain for Petitioner.

Abdul Rehman Khan, Legal Advisor for Respondents.

2013 P L C (C.S.) 407

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD JAVAID NASEEM

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and another

Writ Petition No.19033 of 2010, decided on 25th November, 2011.

(a) Constitution of Pakistan---

----Art. 199---National Accountability Ordinance (XVIII of 1999), S.18(d)---Constitutional petition---Laches---Civil servant in BS-18---Promotion---Supersession of petitioner by Selection Board in September 2008 due to pendency of an inquiry against him in National Accountability Bureau (NAB)---Petitioner challenging his supersession after his promotion in October, 2009 on regular basis---Validity---Selection Board had superseded petitioner due to persistently bad repute on account of corruption and pendency of such inquiry---Petitioner had not challenged his supersession for two years without any plausible explanation---Petitioner's grievance regarding his supersession suffered from delay and laches---High Court dismissed constitutional petition, in circumstances.

Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

(b) Constitution of Pakistan---

----Art. 199---National Accountability Ordinance (XVIII of 1999), S.18(d)---Constitutional petition---Civil servant in BS-18---Promotion---Inquiry against petitioner before National Accountability Bureau (NAB)---Promotion of petitioner by Selection Board subject to his clearance by NAB---Validity---Serious allegations of forging and fabricating certain files for getting exemptions of plot were levelled against petitioner---Authorities at petitioner's request had kept departmental proceedings in abeyance till conclusion of inquiry by NAB---Rational behind imposing such condition by competent authority would not only be to maintain balance with alleged wrong done by petitioner, but also to make an example for others as preventive measures for reformation of public functionaries---If petitioner was exonerated by NAB from alleged charges, then he would be promoted in next cadre from date of his clearance for promotion by competent authority---Issuance of direction to competent authority to promote petitioner without conclusion of NAB proceedings would destroy fiber of discipline in service and encourage others to resort to such illegal activities---High Court observed that best judges to decide such issues would be departmental authorities as compared to anyone else and dismissed constitutional petition in circumstances.

Sh. Muhammad Riaz v. Government of the Punjab through Secretary, Communication and Works and another 2003 PLC (C.S.) 1496 and Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637 ref.

Muhammad Akbar Khan v. Inspector-General of Police, N.-W.F.P. Peshawar and 4 others 2000 SCMR 36 rel.

Hafiz Tariq Nasim for Petitioner.

Waqas Qadeer, Astt. A.-G. along with Ijaz Ahmad S.O. Home Department for Respondents.

2013 P L C (C.S.) 432

[Lahore High Court]

Before Shujaat Ali Khan, J

MUHAMMAD SHAFIQ and another

Versus

BOARD OF INTERMEDIATE AND SECONDARYEDUCATION, LAHORE through Chairman and 5 others

Writ Petition No.13069 of 2012, decided on 25th May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employees of Board of Intermediate and Secondary Education---Such employees moved the High Court for redressal of their grievance qua terms and conditions of their service---Said employees for being governed by non-statutory rules could not invoke constitutional jurisdiction of High Court---High Court dismissed constitutional petition for being not maintainable.

Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132; Asad Bashir v. Chairman Board of Intermediate and Secondary Education Lahore and others 2006 PLC (C.S.) 110 and Muhammad Anwar Hussain v. Chairman Board of Intermediate and Secondary Education Gujranwala and 2 others 2000 PLC (C.S.) 678 ref.

Pakistan International Airline Corporation and others v. Tanveer ur Rehman and others PLD 2010 SC 676; Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education Rawalpindi and others 2004 SCMR 35; Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 and Abdul Rashid Khan v. Registrar Baha-ud-Din Zikrya University 2011 SCMR 944 rel

Muhammad Iqbal and others v. Executive District Office (Revenue) Lodhran 2007 SCMR 682; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employees of an institution being governed by non-statutory rules could not maintain constitutional petition for redressal of their grievance qua terms and conditions of their service.

Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132; Asad Bashir v. Chairman Board of Intermediate and Secondary Education Lahore and others 2006 PLC (C.S.) 110 and Muhammad Anwar Hussain v. Chairman Board of Intermediate and Secondary Education Gujranwala and 2 others 2000 PLC (C.S.) 678 ref.

Pakistan International Airline Corporation and others v. Tanveer ur Rehman and others PLD 2010 SC 676; Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education Rawalpindi and others 2004 SCMR 35; Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 and Abdul Rashid Khan v. Registrar Baha-ud-Din Zikrya University 2011 SCMR 944 rel

Muhammad Iqbal and others v. Executive District Office (Revenue) Lodhran 2007 SCMR 682; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 distinguished.

(c) Constitution of Pakistan---

----Art. 189 --- Judgment of Supreme Court---Binding effect---Such judgment would be binding on all organs of the State including Subordinate Courts.

Ch. Shahid Tabassam for Petitioners.

Mehboob Azhar Sheikh, Legal Advisor B.I.S.E.

2013 P L C (C.S.) 459

[Lahore High Court]

Before Ch. Shahid Saeed and Ch. Muhammad Younis, JJ

GOVERNMENT OF PUNJAB and others---Appellants

Versus

Raja MUHAMMAD JAVED----Respondent

Intra-Court Appeal No.30 of 2011, decided on 7th June, 2012.

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

----Ss. 8 (2) & 21---Punjab Forestry and Wildlife (Wildlife Executive) Service Rules, 1978---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Promotion---When civil servant was not promoted, he assailed amendment in Punjab Forestry and Wildlife (Wildlife Executive) Service Rules, 1978, and single Judge of High Court strike down amendment in question---Validity---No one could claim vested right, in promotion or in terms and conditions for promotion to a higher post---Civil servant could not claim vested right in other higher tiers in the hierarchy except for the post which civil servant was holding---Civil servant had no vested right to be promoted to a higher post as he was not competent to challenge amendment in rules which was made to enhance qualification and standards for recruitment and promotion so that efficiency in service was maintained---Single Judge of High Court could not strike down amendment in rules which had been made in accordance with law after fulfilling all formalities and requirements thereof---Division Bench of High Court set aside judgment passed by Single Judge of High Court ---Intra-court appeal was allowed accordingly.

Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143; Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&B) Punjab and others PLD 1988 SC 155; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; Tasleem Jan and others v. Muhammad Zaman and others 2005 SCMR 695 and Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61 rel.

Zubaida Khatoon v. Tehmina Shaikh 2001 SCMR 265; Sameen Asghar v. Federation of Pakistan 2010 PLC (C.S.) 725; Manzoor Hussain v. Province of Punjab 1989 PLC (C.S.) 42; Dr. Ehsan-ul-Haq v. Province of Punjab 1980 SCMR 972; Tariq Azi-ud-Din and others: In re: Human Right Case 2011 PLC (C.S.) 1130: M. Zafeer Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; Karachi (DB); Khan M. Mutiur Rehman v. Government of Pakistan 2006 PLC (C.S) 564; S. Khursheed Hassan Hashmi v. Chief Secretary, Government of Sindh 2007 PLC (C.S.) 589; Ikramuddin Syed v. Chief Secretary to Government of Sindh 1985 PLC (C.S.) 407; S. Abdul Ghafar Wasti v. The Collector of Central Excise and Land Customs and others 1982 SCMR 888; Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315 and Governor N.-W.F.P. v. Gul Naras Khan 1987 SCMR 1709 distinguished.

Rashid Hafeez, A.A.-G. Asmat Ullah Raheem, Law Officer and Mirza Muhammad Akbar, Admn. Officer, Wildlife Department for Appellant.

Ch. Afrasiab Khan and Barrister Imran Hassan Ali for Respondent.

Date of hearing: 31st May, 2012.

2013 P L C (C.S.) 484

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

USMAT BATOOL

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Registrar and 5 others

Writ Petition No.4526 of 2010, decided on 23rd May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Advertisement for recruitment---Scope---Petitioner was a candidate for post in question and her grievance was that authorities changed criteria for recruitment---Validity---Advertisement in relation to filling up of vacancies was a promise stating all rules which the authority undertook to observe in consideration for giving employment to the most suitable candidate---No deviation should take place from the advertisement and if at all any deviation was necessary in order to overcome some shortfall/legal lacunas then such changes should have been advertised in the same manner as original advertisement and also to be notified to each and every applicant if process of filling up the posts commenced in the meanwhile---Authorities did not exercise its authority for appointment in just, fair and transparent manner, thus transgressing and breaching trust vested in it---Criteria for short - listing candidates was contrary to terms and conditions of the advertisement and the same was declared illegal and without lawful authority---High Court declared consequent appointments as illegal, void and the same were set aside and authorities were directed to prepare fresh list of eligible candidates---Constitutional petition was allowed accordingly.

Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad and 2 others 1997 PLC (C.S.) 855; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 rel.

Syed Muhammad Hasnain Shah for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents Nos.1 to 4.

Muhammad Ramzan Khalid Joya for Respondents Nos.5 and 6.

Muhammad Ishaque, Clerk/Assistant Legal B.Z.U.

2013 P L C (C.S.) 492

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Mst. MEHMOODA ARIF

Versus

DISTRICT COORDINATION OFFICER (DCO)/ CHAIRMAN RECRUITMENT COMMITTEE and 3 others

Writ Petition No.17919 of 2009, decided on 3rd February, 2012.

(a) Civil Service---

----Recruitment Committee---Discretion, exercise of---Principle---Selection/Recruitment Committee is expected to exercise discretion judiciously, honestly, objectively and in accordance with law.

Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 rel.

(b) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Civil service---Recruitment Committee---Discretion, exercise of---Recruitment policy---Awarding additional marks---Petitioner applied for Secondary School Educator and her grievance was that authorities did not award her additional two marks for computer literacy (M.S. Office), as it was stated in the advertisement---Authorities contended that award of two additional marks for computer literacy were discretion of Recruitment Committee---Validity---Nothing was laid down in advertisement nor in the recruitment policy as to how two marks set out in the policy were to be awarded to computer literate candidate---Only requirement for award of two additional marks as laid down in advertisement and policy was "Computer Literate (M.S. Office)", while reading the advertisement every candidate possessing such qualification expected to obtain those two marks---Giving discretion for grant of two additional marks to Selection/Recruitment Committee at its own level through a corrigendum would promote misuse of discretion which could result in nepotism, corruption, feeling of despondency and hatred against the State and was detrimental and discriminatory to candidates who expected to be treated on merit---Such candidates had acquired a vested right to be considered for award of two marks for computer literacy as laid down in the advertisement and Recruitment Policy for year, 2008-09, after expiry of last date of receipt of application---No justification existed for the department to deviate from conditions as laid down in the advertisement and recruitment policy---Any amendment made after last date of submission of applications was illegal and unfair, resultantly corrigendum notification was mala fide and made in colourable exercise of authority in order to oblige candidates of their own choice---High Court declared corrigendum notification void ab-initio, having no legal effect on the rights of candidates and was set aside---High Court directed the authorities to issue appointment order to the petitioner for post in question---Petition was allowed accordingly.

Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056 ref.

Mehmood-ul-Hassan Kawan for Petitioner.

Malik Shakeel Ahmad Khan for Respondent No.4.

Waqas Qadeer Dar, Asstt. A.-G. along with Ali Hussain Marli, Addl. Secretary, Zubair Khan Deputy Secretary and Faiz-ul-Hassan Fiazi Under Secretary (Education) for Respondents.

2013 P L C (C.S.) 535

[Lahore High Court]

Before Umar Ata Bandial, C.J.

ZAFAR IQBAL and 2 others

Versus

FEDERATION OF PAKISTAN through Federal Secretary and others

Writ Petition No.14787 of 2012, decided on 14th January, 2013.

National College of Arts Ordinance (XXVIII of 1985)---

----S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Appointment---Appointment to post of Principal made on acting-charge/temporary basis---Scope---Appointment of regular Principal of National College of Arts, Lahore ("College") ---Post of Principal of the College was without a regular incumbent for the last three years during which period different faculty members of the College were appointed to the said post on acting charge/temporary basis till their respective dates of superannuation---Contention on behalf of petitioner was that competent authority should be directed to appoint a Principal of the College by notifying/circulating the result in the light of the summary put forward before the Prime Minister for making such appointment---Validity---Law favoured regular appointment to public posts rather than same being tossed around amongst acting-charge Principals for a period exceeding three years---Premier institution like the College in question did not have a regular Principal for more than three years and ad-hoc arrangements were being resorted to---Such state of affairs depicted governmental indifference and vacillation---Even if temporary appointment to the post of Principal was to be made, it had to be ensured that eligibility criteria was duly satisfied---Temporary appointment would be justified only if the qualifications and criteria for the post were raised to a higher level of accomplishments so that further search for a suitable candidate was justified---Summary submitted to Prime Minister regarding appointment of a regular Principal did not disclose that a panel of three candidates, recommended by the Selection Committee was already available with the Federal Government; that candidates were finalized after scrutiny undertaken by the selection committee after advertisement of the post, and that each of the candidates qualified for the eligibility criteria given in the regulations and published in the advertisement---High Court directed that concerned authorities should place the matter of appointment of Principal before the competent authority to consider whether, in circumstances, fresh advertisement for the post ought to be resorted to, and if so whether pending finalization of the process of recruitment by the Federal Government the recommendees of the selection committee might also be considered amongst candidates for temporary appointment; that if any of the candidates recommended in the last selection process had not applied for the appointment under the latest advertisement, the Federal Government should consider his candidacy in the current process on the basis of previous record.

Muhammad Ahmad Pansota for Petitioners.

Mian Muhammad Qamar-uz-Zaman for Respondent No.2.

Muhammad Jahanzeb Wahla, Standing Counsel for Pakistan along with Syed Zaki Hussain Naqvi, S.O. Cabinet Division Islamabad.

Ali Sabtain Fazli and Mahmood Ahmad Ghazi for Applicants (in C.M. No.5 of 2012).

2013 P L C (C.S.) 538

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

MUHAMMAD SAEED AHMAD

Versus

SECRETARY TO GOVERNMENT OF PUNJAB HEALTH DEPARTMENTand others

Writ Petition No.28136 of 2012, decided on 7th February, 2013.

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

----Ss. 8 & 3(2)---Constitution of Pakistan Art.199---Constitutional petition---Civil service---Upgradation in service grade---Alternate remedy---Petitioner sought upgradation of his post on the ground that in the year 1987 a letter was issued which updated technical posts in different departments and contended that he had been discriminated against---Validity----Petitioner was alleging discrimination against orders passed 14 years ago, and there was nothing on record to explain the delay incurred by the petitioner in agitating the issue---Petitioner was considered for upgradation and denied the same as the petitioner had a promotion channel available to him under the new 4-tier structure---Upgradation was a form of promotion and under S.8 of the Punjab Civil Servants Act, 1974, promotion was 'term and condition' of service---Civil servant would be eligible to be considered for promotion provided he possessed prescribed qualifications and under S.3(2) of the Punjab Civil Servants Act, 1974 the Service Tribunal had exclusive jurisdiction in respect of matters of 'terms and conditions' of service---Petitioner, therefore, had an effective, efficacious remedy available to him for redressal of his grievance and could approach the Service Tribunal---Constitutional petition was dismissed, in circumstances.

Abid Hussain and 5 others v. Secretary to Government of the Punjab, Finance Department, Civil Secretariat, Lahore and 5 others 2012 PLC (C.S.) 26 distinguished.

Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696 rel.

Syed Ikhtisar Ahmed for Petitioner.

Syed Nayyar Abbas Rizvi, Addl. A.-G. for the State.

Date of hearing; 7th February, 2013.

2013 P L C (C.S.) 559

[Lahore High Court]

Before Syed Iftikhar Hussain Shah, J

Syed BAQIR HUSSAIN RIZVI

Versus

SENIOR MEMBER BOARD OF REVENUE and 2 others

Writ Petition No.8520 of 2011, heard on 20th December, 2012.

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

----S. 9---Punjab Service Tribunals Act (IX of 1974) S.5---Constitution of Pakistan, Arts.212 & 199---Constitutional petition---Civil service---Transfer/posting---Political victimization---Petitioner impugned his transfer to be posted at another place within a short span of time, on the ground that transfer orders were a result of political victimization---Validity---Transfer was a matter relating to terms and conditions of service and the bar contained in Art.212 of the Constitution would be fully attracted to the case---Article 212 ousted jurisdiction of all courts and orders of departments even if without jurisdiction or mala fide, could only be challenged before the Service Tribunal and the jurisdiction of civil courts including the High Court was specifically ousted---Petitioner, therefore, had no vested right to remain posted at a particular place---Constitutional petition was dismissed, in circumstances.

Zahid Akhtar v. Government of Punjab through Secretary and others PLD 1990 SC 530 and Muhammad Saleh Asim v. Secretary Schools Education 2009 PLC (C.S.) 44 distinguished.

Government of Sindh through Secretary and others v. Nizakat Ali and others 2011 SCMR 592; Ayyaz Anjum v. Government of Punjab H.P.P.D. and others 1997 SCMR 169; Abdul Ghafoor and others v. Government of Punjab and others 2011 PLC (C.S.) 782; Ms. Anyesha Bashir Wani and others v. Government of Pakistan and others 2012 PLC (C.S.) 31; lmran Arif Ranjha and others v. Punjab Public Service and others 2012 PLC (C.S.) 609 ref.

Khalid Mehmood Wattoo v. Government of the Punjab and others 1998 SCMR 2280; Peer Muhammad v. Government of Balochistan 2007 SCMR 54; Secretary, Education N.-W.F.P. and others v.. Mustamir Khan and others 2005 SCMR 17 and Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department and others 1997 SCMR 169 rel.

Malik Muhammad Saleem for Petitioner.

Syed Athar Hussain Shah Bokhari for Respondents.

Date of hearing: 20th December, 2012.

2013 P L C (C.S.) 576

[Lahore High Court]

Before Sagheer Ahmad Qadri, J

NADEEM HAROON JAMEEL

Versus

REGIONAL CHIEF EXECUTIVE, NATIONAL BANK OF PAKISTAN and 3 others

Writ Petition No.2143 of 2011, decided on 11th June, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Termination of services of bank employees---Ex parte order---Court duty of---Scope---Petitioner was an employee of bank, who was terminated from service on the allegations of forgery and fraud---Order of termination was passed ex parte due to pendency of criminal proceedings against petitioner---Petitioner sought reinstatement in service on the ground that he had been acquitted bycourt of competent jurisdiction from criminal trial---Validity---Whenever a Court, tribunal or authority would proceed ex-parte against a person/party, it was its responsibility to apply correct law/rules as well as procedure---Court must ensure rather was responsible to apply correct law/rules as well as procedure applicable in the circumstances according to subject concerned---Court, Tribunal or Authority, while proceeding ex-parte against a person was responsible to safeguard interest of that person in his absence---Tribunal or any authority first had to decide its Jurisdiction in the light of law/rules applicable and it was not necessary that whenever an objection was raised then a tribunal/authority should consider its jurisdiction keeping in view the law/rules applicable, rather without raising any such objection and specially in cases where ex parte proceedings were carried on, the tribunal/the authority must first consider and determine its jurisdiction in the light of law/rules applicable at that time and then proceed further---Petitioner's colleague under the same allegations/charges was tried by court of competent jurisdiction and was acquitted like petitioner and he was terminated but later on reinstated, therefore, petitioner was also entitled to the same treatment---High Court set aside the termination order and directed the authorities to reinstate petitioner in service with all back-benefits---Petition was allowed in circumstances.

Liaquat Hussain v. Government of Punjab through its Secretary, C&W Department, Lahore PLD 2009 Lah. 101; Mst. Samina Abid v. Chairman, Pakistan International Airlines, Quaid-e-Azam International Airport, Karachi and 2 others 2009 CLR 1573; Civil Aviation Authority through Director General v. Javed Ahmad and another 2009 SCMR 956; Abdul Tauheed Khan v. Director-General, C.A.A. Karachi and others 2009 PLC (C.S.) 497; Managing Director, Pakistan Television Ltd., Islamabad and 3 others v. Sadique Ahmed, Associates Engineer and 2 others 2007 PLC (C.S.) 1244; Arif Ghafoor v. Managing Director, H.M.C., Texila and others PLD 2002 SC 13; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315l; Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board 2005 SCMR 499 ref.

(b) Administration of justice---

----Whenever a Court, tribunal or authority would proceed ex-parte against a person/party, it was its responsibility to apply correct law/rules as well as procedure---Court must ensure rather was responsible to apply correct law/rules as well as procedure applicable in the circumstances according to subject concerned---Court, tribunal or authority, while proceeding ex-parte against a person was responsible to safeguard interest of that person in his absence---Tribunal or any authority first had to decide its jurisdiction in the light of law/rules applicable and it was not necessary that whenever an objection was raised then a tribunal/authority should consider its jurisdiction keeping in view the law/rules applicable, rather without raising any such objection and specially in cases where ex-parte proceedings were carried on, the tribunal/the authority must first consider and determine its jurisdiction in the light of law/rules applicable at that time and then proceed further.

Liaquat Hussain v. Government of Punjab through its Secretary, C&W Department, Lahore PLD 2009 Lah. 101; Mst. Samina Abid v. Chairman, Pakistan International Airlines, Quaid-e-Azam International Airport, Karachi and 2 others 2009 CLR 1573; Civil Aviation Authority through Director General v. Javed Ahmad and another 2009 SCMR 956; Abdul Tauheed Khan v. Director-General, C.A.A. Karachi and others 2009 PLC (C.S.) 497; Managing Director, Pakistan Television Ltd., Islamabad and 3 others v. Sadique Ahmed, Associates Engineer and 2 others 2007 PLC (C.S.) 1244; Arif Ghafoor v. Managing Director, H.M.C., Texila and others PLD 2002 SC 13; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315l; Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Seweraje Board 2005 SCMR 499 ref.

Rizwan Haider for Petitioner.

Ehsan G. Khawaja for Respondents.

2013 P L C (C.S.) 598

[Lahore High Court]

Before Nasir Saeed Sheikh and Rauf Ahmad Shaikh, JJ

FARRUKH SHAKEEL MALIK

Versus

GUL REHMAN and 3 others

Intra-Court Appeals Nos.602, 617 of 2011 in Writ Petition No.3035 of 2010, decided on 15th November, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Disposal of such petition by High Court after issuing pre-admission notice to respondent, but without passing a formal admission order therein---Validity---Passing of formal order of admission of such petition had some consequences on administrative side so as to classify cases for record purposes---Issuance of pre-admission was not statutorily required, but such notice could not be termed as an incomplete intimation or opportunity to respondent to present his point of view---Issuance of pre-admission notice would be a notice for all practical purposes to respondent to appear and put up his defence/point of view in the case---Respondent once having elected to engage a counsel, submit written parawise comments and address full-fledged arguments through his counsel at pre-admission stage, then necessary requirement of affording a sufficient opportunity of hearing to him would stand fulfilled---Principles.

Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549; I.C.A. No.170 of 2010 and Dr. Azim Ur Rehman Khan MEO v. Government of Sindh and another PLD 2004 SC 1142 distinguished.

(b) Civil service---

----Appointment---Candidate once having failed in written test conducted for a post could not be called later on for interview for the same post.

(c) Void order---

----Basic order being void ab initio---Effect---Entire superstructure raised on such order would be bound to fall.

Yousaf Ali v. Muhammad Aslam Zia and 2 others and Muhammad Aslam Zia and 2 others v. Yousaf Ali PLD 1958 SC 104; Karim Dad v. Member III, Board of Revenue, Balochistan and 5 others PLD 1985 Quetta 252; PLD 1977 SC 599; Messrs Friend Engineering Corporation, The Mall, Lahore v. Government of Punjab and 4 others 1991 SCMR 2324 rel.

(d) Civil service---

----Vacancies in autonomous bodies, public corporations and local authorities, filling of---Legal obligations of officials stated.

All the autonomous bodies, public corporations and local authorities are under legal obligation to publish notices for inviting applications for filling the vacancies with correctly specifying the required qualifications as per the policy, rules and regulations governing such vacancies and holding test and interview also if it is so prescribed.

Hafiz Tariq Nasim for Appellant.

Dr. M. Akmal Saleemi and Naseem Kashmiri, Deputy Attorney-General for Respondents.

Date of hearing: 2nd November, 2011.

2013 P L C (C.S.) 625

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

Barrister SARDAR MUHAMMAD

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.29005 of 2012, heard on 15th January, 2013.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope and object of proceedings---Quo warranto proceedings afforded a judicial remedy by which any person, who held an independent substantive public office was called upon to show by what right he held the said office, so that his title to it might be duly determined, and in case the finding was that the holder of the office had no title, he would be ousted from that office by a judicial order---Procedure of quo warranto gave the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he had a right---Quo warranto proceedings also tended to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reason of its apathy.

Halsbury's Law of India -- Vol.35 (Constitutional Law-II) Lexis Nexis Butterworths 2007-p.145 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto, remedy of---Scope and object---Object of constitutional remedy of writ of quo warranto was to protect the sanctity of the "public office" by safeguarding against unlawful appointments---Constitutional objective in regard to said remedy appeared to be more institutional---Constitutional courts, acting as gatekeepers, protect the sanctity of a "public office" and, as a result, shield public institutions from usurpers---Constitutional obligation was to ensure that persons selected to man public institutions were appointed in accordance with law without the slightest taint of impropriety---Writ of quo warranto was also a constitutional platform for the "whistle-blowers" to come forward in public interest and raise their concern about wrongdoing within organizations, as a result of which institutions/organizations were more open and accountable to their employees, shareholders and the greater public in their activities.

(c) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Quo warranto, writ of---Nature of proceedings---Locus standi of petitioner---Scope---Proceedings of writ of quo warranto were not strictly adversarial in nature and could be put into motion by any person (who need not be aggrieved)---Said proceedings, therefore, carried an inquisitorial rigour to protect the "public office" and, more importantly, the public institution behind it.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Territorial jurisdiction of High Court to issue such a writ, determination of ---For the purposes of a writ of quo warranto the focus was on the jurisdictional locale of the public office rather than the physical presence (i.e., residence or office) of person holding the office---Geographical location of the individual holding public office was of little significance---Real test was to see the geographical extent of the jurisdiction enjoyed by the "public office"---Physical location of the place of work or residence of the "person" holding public office was insignificant and the territorial jurisdiction of the "public office" under the law was relevant.

Messrs Sethi & Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 ref.

(e) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(2) & (3)---Constitution of Pakistan, Art.199(1)(b)(ii)---Appointment of Members and Chairman of Pakistan Telecommunication Authority challenged by way of writ of quo warranto---Territorial jurisdiction of High Court to issue such a writ---Scope---Members of Pakistan Telecommunication Authority (PTA) including the Chairman, exercised jurisdiction nationwide, therefore, their appointment could be challenged in any High Court in Pakistan---Even if the Pakistan Telecommunication (Re-organization) Act, 1996 provided that the head office of Chairman PTA was in Islamabad it would still make no difference because the test was the territorial jurisdiction of the public office---Geographical jurisdiction of the "public office" was determined under the law that established the said public office and it was the same law that helped determine whether the public office fell with the territorial jurisdiction of a particular High Court---No person could be deprived of the constitutional remedy of quo warranto, under Art.199 of the Constitution, against a statutory or public sector institution that operated nationwide, on mere cosmetics and technicalities like the location of the place of work, head office or the residence of the incumbent to the public office.

(f) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo-warranto, writ of---Territorial jurisdiction of High Court to issue such writ---Scope---Public office belonging to a Provincial public or statutory authority with its jurisdiction limited to the Province---Territorial jurisdiction of High Court to issue writ of quo warranto in relation to such public office---Scope---For purposes of issuing writ of quo warranto, such a public office would fall within the territorial jurisdiction of the High Court of the relevant Province.

(g) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(3)---Constitution of Pakistan, Arts. 199(1)(b)(ii) & 212---Service Tribunals Act (LXX of 1973), S. 4---Appointment of Chairman of Pakistan Telecommunication Authority (PTA) challenged by way of writ of quo warranto---Maintainability---Plea that transfer/posting order of Chairman PTA (a civil servant) could not be assailed before the High Court in terms of the bar contained under Art.212 of the Constitution---Validity---Article 212 of the Constitution was attracted only if the concerned Service Tribunal had the jurisdiction to entertain the appeal under S.4 of the Service Tribunals Act, 1973---Under section 4 of the Service Tribunals Act, 1973, only an aggrieved civil servant could agitate a matter before the Service Tribunal---In the present case, the transferee and appointee i.e., Chairman PTA was not aggrieved of his transfer/posting order but a member of the general public was, hence, Art.212 of the Constitution was not attracted.

(h) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Locus standi of petitioner/ "whistle blower"---Scope---For purposes of maintaining a writ of quo warranto there was no requirement of an "aggrieved person"---Any "whistle blower" need not be personally aggrieved in the strict sense for purposes of a writ of quo warranto.

(i) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope---Appointment to public office---Selection and recruitment process---Judicial review---Scope---Entire process of recruitment leading to an appointment to a "public office" could be judicially reviewed under Art.199(1)(b)(ii) of the Constitution---Such process had to pass the test of law, which included the settled principles of due process, openness, fairness, participation and transparency---Appointment to a "public office" was a public trust reposed by the people in the competent authority and it was a key institutional decision and marked the future progress, growth and development of the public institution, which was to be manned by the prospective incumbent to the said public office---Such trusteeship in the hands of the competent authority (the Executive) could not be discharged in a whimsical, temperamental, partial and preferential manner---Recruitment process must be above board, devoid of even the slightest taint of favoritism---Court was under an obligation to judicially review the integrity of the selection process to a public office.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 and Sindh High Court Bar Association, through Honorary Secretary v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 4 others PLD 2009 Kar. 408 rel.

(j) Civil service---

----Public sector post---Recruitment process---Public notice/ advertisement of post---Scope and benefits---For purposes of filling public sector posts, participatory recruitment process, through open public advertisement was to be followed---Requirement to reach out to the public (through public notice or advertisement) before filling public posts was an essential obligation of trusteeship to be exercised by the executive---Workable democracy must be pillared in an unwavering commitment to rule of law and due process with the vision to develop inclusive and participatory institutions, which formed the bedrock and engines of growth of any progressive nation---Recruitment to a "public office" orchestrated behind closed-doors, driven by greed of nepotism, without open public participation was undemocratic and deeply injured the constitutional objectives of political, social and economic justice and also fractured the ownership of an ordinary person in the government and gradually eroded their confidence in the State.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Abdul Jabbar Memon and others (Human Rights Case) 1996 SCMR 1349; Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Obaid Ullah and another v. Habib Ullah and others PLD 1997 SC 835 and Abdur Rashid v. Riaz ud Din and others 1995 SCMR 999 rel.

(k) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(3) & (8)---Rules of Business, 1973, R. 15---Chairman of Pakistan Telecommunication Authority, appointment of---Selection process---Scope---After the appointment of three Members of the Pakistan Telecommunication Authority ("Authority"), the Federal Government was to appoint the Chairman from amongst the three Members providing a pyramidic stewardship structure for running the Authority---Such second tier appointment of Chairman required initiation of a fresh process but with a different set of considerations---One of the considerations was evident from S.3(8) of Pakistan Telecommunication (Re-organization) Act, 1996, which provided that the powers of the Authority in matters relating to its administration and staff should be exercised by the Chairman---Other considerations or qualifications needed to be drawn up by the Cabinet Division in consultation with the Establishment Division in order to develop the profile of an ideal Chairman which could best serve the interest of the Authority---Such exercise was mandatory and was required to be undertaken prior to the selection of Chairman---Three Members of the Authority had to undergo a fresh interview by the Selection Committee unless rules under the Act (not yet framed) provided another transparent alternative---Recommendations of the Selection Committee along with the recommendations of the Cabinet and Establishment Divisions charting out a clear comparative evaluation of the three Members was to be placed before the competent authority (Prime Minister) for approval in terms of Rule 15 of the Rules of Business, 1973---Unless the summary put up before the competent authority was in accordance with the said manner, the exercise of discretion would lack relevant facts resulting in abuse of discretion---Any appointment without first framing the profile of the Chairman and without carrying out a comparative evaluation of the Members for the selection of the Chairman, would be open to the negative forces of nepotism and favourtism.

(l) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(2)---Members of Pakistan Telecommunication Authority (PTA), appointment of---Ad hoc/temporary appointment of a Member---Legality---No provision existed in Pakistan Telecommunication (Re-organization) Act, 1996 for making ad hoc or temporary appointments to the post of Member, PTA.

(m) Constitution of Pakistan---

----Art. 99(3)---Rules of Business (1973)---Scope and purpose ---Conduct of Business of Federal Government---Adherence to the rule of law, in general, and to the Rules of Business, in particular, in conducting its business determined the quality of governance of the government in power---Rules of Business (1973) flowed out of the Constitution, and were the sinews of a workable government---Besides providing a departmental organogram of a workable democracy, said Rules were a fine weave of democratic principles including: participatory engagement, written and reasoned dialogue, divergence of opinion, open and transparent deliberations, etc.---Rules of Business (1973) besides providing a procedural manual for the Federal Government to conduct its business also acted as constraints on governmental power.

(n) Constitution of Pakistan---

----Pt. II, Chapts. 1 & 2 [Arts.7-40]---Fundamental Rights and Principles of Policy--- Public institutions, development of--- Scope and importance---"Inclusive institutions" and "extractive institutions", meaning of---Developing sound and strong public institutions was a constitutional obligation with its foundations pillared in democracy, equality, tolerance, social, economic and political justice---Institutional design and the configuration of its governance must be sensitive to the Fundamental Rights of the people and its vision aligned with the Principles of Policy---Such broad principles translated into institutional literature required the public institution to be open, equitable, accessible, transparent, rule-based, participatory and inclusive---Public institutions were trustees of the people and worked for the advancement of public interest---Persons who manned public institutions must invariably be selected from the public through a broad-based, publically accessible selection system---Such institutions were referred to as "inclusive institutions" as opposed to "extractive institutions"---To be inclusive, economic institutions must feature secure private property, an unbiased system of law, and a provision of public services that provided a level playing field in which people could exchange and contract---Institutions opposed to the properties of an inclusive institution were called extractive institutions - extractive because such institutions were designed to extract incomes and wealth from one subset of society to benefit a different subset.

Daron Acemoglu & James A. Robinson- "Why Nations Fail - the origins of power, prosperity and poverty" by Crown Business - 2012. Pp. 74, 75 and 76 ref.

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

----S. 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7 & 8---Appointment by transfer---Civil servant transferred to a post under S.10 of Civil Servants Act, 1973 without qualifying the requirements of the said post---Legality----Section 10 of Civil Servants Act, 1973 only casted an obligation on a civil servant that he could be transferred to any post, it did not entitle the Federal Government or the civil servant to appoint or to be appointed, as the case might be, to any post through transfer without qualifying the requirements of the said post under the law---Such aspect was also evident from the reading of Rr.7 and 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Said Rules provided that promotions and transfers to posts in BS-2 to 18 and BS-19 to 21 and equivalent should be made on the recommendations of the appropriate Departmental Promotion Committee or Selection Boards, respectively---Section 10 of Civil Servants Act, 1973, therefore, was subject to the requirement of the post in question.

(p) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----Ss. 3(4) & 6---Member of Pakistan Telecommunication Authority (PTA) ---Impartiality ---"Conflict of interest" of a Member ---Scope---Section 3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 provided that a person to be considered for appointment as a Member of PTA must not even have a hint of conflict between his private interest and the interest of the institution/PTA (public interest)---Said section provided that a Member of PTA should not have any business connection with any person, which rendered telecommunication services in Pakistan or abroad---In a case of "conflict of interest" what needed to be seen was whether the Member, PTA, had any direct or indirect financial interest or business connection with any person, any establishment or firm which rendered telecommunication services in Pakistan or abroad or supplied telecommunication equipment to any telecommunication sector in Pakistan or abroad---Actual influence of the interest on the decision-making of the Member was not relevant---Concept (of conflict of interest) was akin to "automatic disqualification for bias" and was rooted in perception and appearance rather than the actual influence based on empirical data on the decision making of the regulator---"Explanation" provided under S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 brought under its fold even the involvement of a spouse or blood relation of any Member with any telecommunication establishment---Such statutory pre-condition for a Member to be unbiased, insular, unconnected and impartial actually defined the character of the public institution---Fundamental to any effective regulatory institution was its fierce and unflinching independence, neutrality and detachment from the players it was set out to regulate---Effective and neutral umpirage by the regulator provided fair competition and a level playing field in the market and it was only with such backbone of independence that PTA could successfully watch the interests of users of telecommunication services by making decisions that were prompt, non-discriminatory, equitable, consistent and transparent.

Pinochet (No.2) [2000] 1 A.C. 119 at 132-133 ref.

(q) Constitution of Pakistan---

----Arts. 4, 18 & 25---Business/trade in the public sector---Fair competition---Scope---Due process under Art.4 of the Constitution, freedom to carry out a lawful trade or business under Art.18 by maintaining fair competition and the right against discrimination under Art.25 of the Constitution, collectively provided the requisite constitutional underpinning to maintain level playing field, in all public sectors, at all times.

(r) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S.3(3)---Rules of Business, (1973), R. 3(3), Sched. II, Item No.53---Constitution of Pakistan, Art. 199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---Public advertisement not made---Lack of public interest---Effect---Cabinet Division enjoyed administrative control over PTA and had laid down a procedure for appointment of Chairman and Members of PTA---Under the said procedure the appointment to the post of Member was subject to advertisement in the press followed by interview by the Selection Committee---Panel of three names was to be recommended by the Selection Committee for final approval of one name by the competent authority (Prime Minister) on the basis of the recommendations of the Establishment Division and the Selection Committee---Said procedure had not been followed in the present case and the Chairman, riding high on the horse of favourtisim, effortlessly landed as Chairman PTA behind closed doors and at the exclusion of any other more deserving candidate---No public advertisement was made prior to appointing the Chairman---Appointment of the Chairman was stealthily rushed through, without first drawing up his profile---Competent authority did not consider whether Chairman was suitable for the post ---Entire recruitment process lacked logic and was devoid of public interest---Constitutional petition was allowed, appointment of Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

(s) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(3)---Rules of Business, (1973), Rr. 8(2), (3), 11(c), 15(2) & 3(3), Sched. II, Item No. 53---Constitution of Pakistan, Art.199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---Role of Cabinet and Establishment Divisions in appointment of Chairman, PTA---Scope---Cabinet Division was under a constitutional obligation under the Rules of Business (1973) to supervise and oversee the affairs of PTA which was under its administrative control and inspite of summary put up by the Cabinet Division to appoint another person as acting Chairman, the Establishment Division practically ignored the said summary and issued a letter, which stated that respondent should be considered for appointment---Need assessment for any such appointment had to be initiated by the Cabinet Division enjoying administrative control over PTA---Summary put up by the Cabinet Division was not agreed upon by the Establishment Division---Under the Rules of Business (1973), such conflicting opinions should have +been placed before the competent authority (Prime Minister), who after weighing the view points of both the Divisions should have exercised its discretion, however same was not done in the present case as the competent authority approved the appointment of respondent as Member and as Chairman through the same order---Record also revealed that inspite of the fact that Cabinet Division enjoyed administrative control over PTA under the Rules of Business (1973), the Establishment Division, as a consultee department, had overshadowed and monopolized the appointment of Chairman, leaving the concerns and recommendations of the Cabinet Division un-redressed---Rule 15(2) of the Rules of Business (1973) required a "self-contained, concise and objective summary" to be placed before the Prime Minister (competent authority)---Objective summary placed before the Prime Minister in the present case should have disclosed all the relevant facts including the bypassing of the Office Memorandum of the Establishment Division; procedure formulated by the Cabinet Division; lack of public advertisement; bypassing of interview; handpicked selection of Chairman; disregard of the divergent views of the two Divisions and the monopolizing role of Establishment Division---Since the summary put before the Prime Minister (competent authority) lacked material particulars the discretion so exercised by the competent authority on the basis of the summary remained irreparably defective---Constitutional petition was allowed, appointment of Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

Shaikh Zayed Hospital and Post Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another 2010 PLC (C.S.) 967 ref.

(t) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(3)---Civil Servants Act (LXXI of 1973), S.10---Constitution of Pakistan, Art.199(1)(b)(ii)---Constitutional petition---Appointment to post of Chairman, Pakistan Telecommunication Authority (PTA) made by way of transfer order---Legality---Plea that a civil servant (respondent) had simply been appointed as Member and then Chairman, PTA through transfer under S.10 of the Civil Servants Act, 1973, hence, his appointment was not in conflict with Pakistan Telecommunication (Re-organization) Act, 1996---Validity---Post of Member and Chairman, PTA could not be filled through a mere transfer order without following an open and transparent procedure of appointment for the said posts---Invoking S.10 of Civil Servants Act, 1973 for the appointment of respondent to the post of Member and Chairman, PTA appeared to be a colourable exercise of power---Question was as to how respondent was handpicked from the pool of civil bureaucracy without a proper broad-based search on the basis of an objective criteria---Pre-ordained selection of respondent, besides being illegal, carried a ring of favouritism---Constitutional petition was allowed, appointment of respondent as Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

(u) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 3(3) & (4)---Constitution of Pakistan, Art. 199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---"Conflict of interest" of Chairman---Scope---"Regulatory Capture", concept of---Scope- Respondent sat on the Board of Pakistan Telecommunication Company Limited (PTCL) as a Chairman and during such period note was put up by the Establishment Division proposing his name for the Member of Pakistan Telecommunication Authority (PTA)---Stepping down of respondent as Chairman PTCL and his appointment as Member and Chairman PTA had a striking and somewhat dubious synchronicity i.e., both the actions took place on the same day---Time spent by respondent on the Board of PTCL, which spread over several months, cloaked him in a fiduciary bond with PTCL besides making him privy to the strategic vision and future financial planning of the said company---Such relationship and linkage of respondent with PTCL constituted "business connection" and more importantly a perception of business connection, therefore, it was highly unethical and distasteful besides being irregular and illegal that respondent, the day he stepped down as Chairman PTCL, was appointed as Chairman of the PTA, which was the apex regulatory authority in the telecom sector---Appointment of respondent in such circumstances, appeared to be ex-facie discriminatory, to the interests of the users of telecommunication services, as well as, telecommunication service providers other than PTCL and its subsidiary---Independence of respondent was further weakened since record showed that he accepted a hefty sum of money as Chairman's fee for attending Board meetings during his stay at PTCL---Federal Government had majority shareholding in PTCL, therefore, appointment of a nominee of the Federal Government (civil servant) as Chairman of PTA amounted to direct or indirect financial interest of the Federal Government through respondent in the matter---Being an employee of the Federal Government, respondent was likely to watch out for or be amenable to the interests of the Federal Government and its telecommunication service provider in the market---Conflict of interest provision [S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996] was also a statutory safeguard against any possibility of "Regulatory Capture"---Fiduciary relationship of respondent with the telecommunication provider i.e., PTCL, was offensive to S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 and passed for regulatory capture or the perception of it---Conflict of interest blunted the independence and fiat of the Regulator (i.e. PTA) and the fear of regulatory capture shattered the confidence of the market which was grounded in fair competition---Independence of the regulator (i.e. PTA), the disqualification on the ground of conflict of interest, fair and meritorious appointments to public office were measures to ensure that PTA shielded against regulatory capture and provided a level playing field in the telecom sector---Allowing respondent to continue even for one extra day as a Member and Chairman, PTA would have been an affront to justice and fair play, laying serious threat to the level playing field and fair competition in the telecom sector---Constitutional petition was allowed, appointment of respondent as Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

(v) Constitution of Pakistan---

----Art. 18(b)---Regulation of trade, commerce or industry---"Regulatory capture", concept of---Scope---Regulatory capture occurred when a regulatory agency, created to act in the public interest, instead advanced the commercial or special concerns of interest groups that dominated the industry or sector it was charged with regulating---Regulatory capture was a form of government failure---(Regulatory) capture occurred when some special interest, typically an industry group, persuaded government actors to exercise the coercive power of the State in ways that were not in the "public interest", i.e. the interests of the industry group diverged from the public interest and the government choose the former over the latter.

M. Elizabeth Magill- Dean and Richard E.Lang Professor, Stanford Law School. - Courts and Regulatory Caputre. ref.

Babar Sattar, Syed Raza Ali and Barrister Sardar Muhammad Ali for Petitioner.

Nasim Kashmiri, Dy. A.-G. for Respondents Nos.1, 2 and 4.

Ali Sibtain Fazli and Nasar Ahmed for Respondents Nos.3 and 5.

Barrister Mahrukh Hameed, Assistant Director, PTA for Respondent No.3.

Sohail Shafiq (ASJ/Senior Research Officer), Sher Hassan Parvez, Amir Munir, Nadeem Ahmed Sohail Cheema and Rai Muhammad Khan (Civil Judges/Research Officers) Lahore High Court Research Centre (LHCRC).

Date of hearing: 15th January, 2013.

2013 P L C (C.S.) 674

[Lahore High Court]

Before Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

TANVIR REHMAT MALIK

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

S.A. No.9-Gaz-II of 2009, decided on 22nd November, 2012.

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

----R. 8---Promotion to post of Assistant Registrar (BS-18) under R.8 of High Court Establishment (Appointment and Conditions of Service) Rules Criteria for entitlement---Scope---Educational qualification of a candidate, relevance of---Appellant was denied promotion to post of Assistant Registrar, despite being senior to other candidates, on the basis that he had lesser educational qualification compared to other candidates--- Legality--- Rule 8 of High Court Establishment (Appointment and Conditions of Service) Rules indicated that criteria for promotion was seniority-cum-fitness, therefore, educational qualification was not one of the factors required to be considered for entitlement to promotion---Even otherwise, educational qualification fell within the definition of "eligibility" and not within the parameters of fitness---Competent authority had not argued that appellant was not eligible or that he did not have the requisite seniority or was for any reason unfit for promotion---High Court directed that appellant stood promoted to post of Assistant Registrar, but without entitlement to back benefits as he had voluntarily waived them---Appeal was allowed accordingly with the observation that in case the competent authority considered it necessary to include educational qualification as one of the criteria for promotion, R.8 of High Court Establishment (Appointment and Conditions of Service) Rules might appropriately be amended.

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

----R. 8---Promotion to post of Assistant Registrar (BS-18) under R.8 of High Court Establishment (Appointment and Conditions of Service) Rules---Criteria for entitlement Educational qualification of a candidate, relevance of---Educational qualification was not one of the criteria to be considered for promotion in terms of R.8 of High Court Establishment (Appointment and Conditions of Service) Rules.

Syed Ijaz Qutab and Muhammad Ahmad Pansota for Appellant.

Shahid Mubeen, Addl. A.-G. along with Hafiz Sajjad, Assistant Registrar for Respondent.

2013 P L C (C.S.) 717

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD AKRAM and 180 others

Versus

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

Writ Petition No.20968 of 2009, decided on 31st October, 2012.

(a) Constitution of Pakistan---

----Art. 25--- Equality of citizens--- Reasonable classification---Principle---Provisions of Art.25 of the Constitution forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy twin tests of classification being founded on intelligible differentia which distinguishes persons or things that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.

(b) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Equal treatment---National Judicial Policy Making Committee (NJPMC), recommendations of---Petitioners (employees) were working in different courts established under Federal laws---Grievance of petitioners was that they had not been given benefits which similarly placed employees working under different provincial High Courts were getting on recommendations of NJPMC---Validity---Authorities did not deny that establishment of High Courts of Lahore, Sindh and Quetta were getting allowances detailed in recommendations of NJPMC---Petitioners were admittedly placed in similar category in which employees of district judiciary and establishment of High Courts of provinces were working and as such petitioners were entitled for the same treatment---Similarly placed employees of District Judiciary, establishment of High Courts were getting benefits under recommendations of NJPMC but petitioners were being deprived of the same---Such denial of authorities was in violation of Art.25 of the Constitution and the same was declared without lawful authority---Petitioners were entitled to get benefits under recommendations of NJPMC as confirmed by authorities---Petition was allowed accordingly.

Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341 (370); Salman Adil Siddiqui v. Province of Sindh 2008 PLC (C.S.) 220; Abdur Rashid v. Secretary Establishment Division 1991 SCMR 1288; Attiyya Bibi v. Federation of Pakistan 2001 SCMR 1161; Muhammad Akram v. Selection Committee 2003 CLC 18; Government of Punjab v. Mubarak Ali PLD 1993 SC 375; Mian Mehmood Ahmad v. Hong Kong and Shahghai Banking Corporation Ltd. through Manager and 6 others 2010 CLD 293; Federation of All India Customs and Central Excise Stenographers (Recognized) and others v. Union of India and others AIR 1988 SC 1291; Northern Area of Supreme Court's case 2010 PLC (C.S.) 141; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Amanullah Khan Yousafzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar. 451; Secretary Revenue v. Muhammad Saleem 2008 SCMR 948; Mrs. Manawa Sunni v. Director Army Education 1991 SCMR 135; Administrator District Council Larkana and others v. Gulab Khan and 5 others 2001 SCMR 1320; Hussain Badsha and another v. Akhtar Zaman and others 2007 PLC (C.S.) 157; Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others 2007 PLC (C.S.) 285; Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 and Mehar Muhammad Nawaz v. M.D. Small Business Corporation C.A.No.427 of 2005 ref.

Aftab Ahmad Bajwa and Syed Ijaz Qutab for Petitioners.

M. Nasim Kashmiri, Dy. Attorney-General for Pakistan.

Ch. Muhammad Iqbal, Addl. A.-G., Punjab for Respondents.

Date of hearing: 12th October, 2012.

2013 P L C (C.S.) 745

[Lahore High Court]

Before Ali Baqar Najafi, J

TIBRAK MASOOD and others

Versus

E.D.O.(E) and others

Writ Petition No.2293 of 2010, decided on 25th September, 2012.

Constitution of Pakistan---

----Art. 199---Civil service---Appointment---Petitioners who applied for the post of Chowkidar and Naib Qasid, respectively in a Government School, claimed that they were better qualified than any one else, being the local residents; that their father had donated 25 Kanals of land for the school in the village; and that they should at least have a job at the lower level in said school; which was the minimum acknowledgment to which his family was entitled---Constitutional petition was disposed of with the direction to the authorities to accommodate the petitioners in the next seat falling vacant for the post against their eligibility; with a further direction to incorporate in recruitment policy a provision of such acknowledgment through some posts for those who had donated their land for the noble projects of the government schools.

Raja Abdul Rehman for Petitioners.

Khursheed Ahmad Satti, A.A.-G. with Shaimim Akhtar Kiani, Dy. D.E.O.(W) Sohawa for Respondents.

2013 P L C (C.S.) 752

[Lahore High Court]

Before Ijaz Ahmad and Ch. Muhammad Younis, JJ

BASHIR AHMAD

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman and 3 others

Intra-Court Appeal No.100 of 2006 in Writ Petition No.679 of 2006, decided on 19th September, 2012.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art.199---Intra-court appeal---Maintainability---Civil Service---Removal from service---Impugned judgment passed by the Single Judge of High Court was based on sound reasoning and each and every aspect of the matter had been discussed and dealt with in detail---Proviso to S.3 of the Law Reforms Ordinance, 1972 had provided that appeal referred to in subsection (ii) of S.3 of Law Reforms Ordinance, 1972 would not be available and competent, if the application brought before the High Court under Art.199 of the Constitution would arise out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any court, Tribunal or authority against the original order---Order of removal from service against the petitioner/appellant was assailed in the constitutional petition and appeal was provided to the departmental authority against the same---Appellant availed said remedy by filing an appeal---Intra-court appeal against the judgment of the Single Judge was barred by Proviso of S.3 of the Law Reforms Ordinance, 1972.

Sardar Riaz Karim for Appellant.

Haji Muhammad Aslam Malik, Legal Advisor for Respondents-Board.

2013 P L C (C.S.) 1062

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

Dr. MASOOD SALEEM

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another

Writ Petitions Nos.22405 and 22406 of 2012, decided on 16th November, 2012.

(a) Civil service---

----Rotation Policy notified on 22-7-2000 by Government of Pakistan for transfer and posting of Officers (BS-19) of Police Service of Pakistan---Criteria to be followed explained.

Mushtaq Ahmad v. Ch. Saeed Ahmad and another 1996 SCMR 1649; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Tariq Aziz ud Din and others: in re: 2010 SCMR 1301 ref.

Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Application of Rai Manzoor Nasir's case C.P. No.23 of 2012 and C.P. No.11 of 2012, Crl. Original Petitions Nos.23, 24 and 27 of 2012 in C.P. No.11 of 2012 and H.R.C. No.14427-P of 2012 rel.

(b) Administration of justice---

----Deviation from a particular procedure laid down for doing an act could be labelled as being arbitrary---Principles.

Where a particular mode is laid down for doing an act and there is no impediment in adopting the procedure laid down, a deviation from that procedure amounts to being unreasonable and can be labelled as being arbitrary.

(c) Policy decision---

----Once decision was taken and guidelines in form of policy were formulated, then any deviation or departure therefrom would have to be explained with reasons.

Salman Akram Raja for Petitioner.

Naveed Ahmad Malik, Dy. A.-G. and Syed Nayyar Abbas Rizvi, Addl. A.-G. for Respondents.

Date of hearing: 5th November, 2012.

2013 P L C (C.S.) 1183

[Lahore]

Before Mamoon Rashid Sheikh, J

USMAN TARIQ

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Writ Petition No.85 of 2013, heard on 15th January, 2013.

Punjab Public Service Commission Regulations, 2000---

----Constitution of Pakistan, Art.199---Constitutional petition---Combined Competitive Examination---Petitioner having failed in paper of English Composition was held by Commission not to be eligible to appear in interview---Re-checking of answer paper at petitioner's request, but no error in its counting and marking was found by Commission---Refusal of Commission to re-evaluate marks of petitioner's , answer to one question in such paper carrying 30 marks---Validity---Petitioner had failed to point out against Examiner or Chairman of Commission any criminality, fraud or abuse of Regulations in marking such paper---Marking of answer papers being a technical job could best be undertaken by experts and not by High Court in exercise of constitutional jurisdiction---Constitutional jurisdiction meant primarily for correcting jurisdictional errors in impugned orders of Tribunals or executive authorities could not be invoked for giving decisions on merits, which the functionary concerned only was entitled to make under relevant law---High Court could not conduct inquiry or record evidence to determine such disputed facts---Re-evaluation of paper, if directed by High Court, would result in an un-ending chain of litigation bringing whole system of examination of Commission at stake---High Court dismissed constitutional petition in circumstances.

Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Ms. Shakeela v. University of Peshawar through Vice-Chancellor and another PLD 2003 Pesh. 69; Rabial Riaz v. Board of Intermediate and others 2011 YLR 1656; Muhammad Usman Qayyum v. University of Engineering and Technology, Lahore and 5 others 2004 SCMR 606; Farmanullah Khan v. Controller of Examination, Karachi University 2010 MLD 85; Khurshid Ahmad v. Bahauddin Zakariya University, Multan and 3 others 1999 CLC 694 and Miss Avdhani Meena Ramchandra and others v. Maharashtra State Board of Secondary and Higher Secondary Education, Pune and others AIR 1981 Bombay 126 ref.

Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 rel.

Khawaja Haris Ahmad and Adnan Tariq for Petitioner.

Muhammad Azeem Malik, Addl. A.-G, Punjab and Khawaja Salman Mahmood, Asstt. A.-G., Punjab.

Muhammad Farooq Raja, Deputy Director (Legal) and Muhammad Hanif, Deputy Director (Secretary), Punjab Public Service Commission, Lahore.

Dates of hearing: 9th, 11th and 15th January, 2013.

2013 P L C (C.S.) 1199

[Lahore High Court]

Before Ijaz ul Ahsan and Mrs. Ayesha A. Malik, JJ

Dr. MURTAZA JAFFARI

Versus

FEDERATION OF PAKISTAN and others

Intra-Court Appeal No.118 of 2013, decided on 16th May, 2013.

National College of Arts Ordinance (XXVIII of 1985)---

----S. 9---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---National College of Arts, Lahore---Appointment of regular/permanent Principal of National College of Arts, Lahore ("the College")---Selection process---Candidate for the post of Principal failing to appear before the Selection Committee for his interview without any lawful reason---Selection Committee directed to consider name of such candidate for selection and conduct his interview in the interest of justice---Post of Principal of the College was without a regular incumbent for about three years during which period different persons were appointed to the said post on acting charge/temporary basis---Selection process for post of Principal was repeated from time to time without culminating in appointment of a permanent Principal---Selection Committee undertook process of selection of permanent Principal for the fourth time and sent a summary to the Prime Minister (competent authority) recommending names of candidates in question for appointment---Plea of one of the candidates in question (who was recommended during the fourth selection process) was that he held a doctorate degree, however the summary sent to the Prime Minister did not disclose such fact; that if such fact had been brought to the knowledge of the competent authority (i.e. Prime Minster), he would have been selected as a permanent Principal, and that the Single Judge of the High Court despite coming to the conclusion that summary sent to the Prime Minster included incomplete facts, referred the matter back to the Federal Government for appointment of a permanent Principal---Validity---Fifth attempt was made by the concerned authorities to find a suitable person for appointment as Principal of the College---Said post was re-advertised, applications were received and a Selection Committee was again constituted for shortlisting candidates to send recommendations to the Prime Minister for selection---Candidates in question (who were recommended for selection during the fourth selection process) were invited to appear before the Selection Committee for interview for purpose of shortlisting of candidates---Candidates in question did not appear before the Selection Committee, despite the fact that they were called for interview and were also issued call letters and subsequently informed on telephone about the interview---Candidates in question did not provide any cogent or logical explanation for not appearing before the Selection Committee, and in their absence all available candidates were interviewed and three names were shortlisted---Minutes of meeting of the Selection Committee indicated that it examined the previous record of the candidates in question but was of the view that it was not possible to assess said candidates without interview as composition of present Selection Committee was different from the previous one---Despite the fact that candidates in question did not participate in the meeting of the Selection Committee without lawful reason or justification, it was in the interest of justice and in order to ensure that the most suitable person was appointed as Principal of the college, High Court directed that Selection Committee should hold a meeting on or before 30-6-2013, during which it should invite the candidates in question and conduct their interviews from the point of view of establishing their suitability for the post of Principal of the College; that Selection Committee should be furnished with all the requisite information by the competent authority including the fact that one of the candidates in question held a doctorate degree; that in case the Selection Committee found any or more of the candidates in question to be suitable, it shall include his/their name in the list of recommendees already sent to the Prime minister; that in case one or more candidates in question despite being invited, refused or failed to appear before the Selection Committee for an interview, their cases shall not be processed any further and the Prime Minister shall proceed to decide the matter in accordance with law strictly adhering to the principles of transparency, impartiality and merit---Intra-court appeal was disposed of accordingly.

Dr. Abdul Basit for Appellant.

Ch. Muhammad Jahanzeb Wahla Standing Counsel assisted by M. Naeem Akhtar, Deputy Secretary, Cabnit Division, Islamabad.

Muhammad Qamar-uz-Zaman for National College of Arts.

Muhammad Ahmad Pansota for Respondents Nos.5 and 6.

2013 P L C (C.S.) 1250

[Lahore High Court]

Before Umar Ata Bandial, C J and Amin-ud-Din Khan, J

GEPCO---Petitioner

Versus

Malik WAQAS AHMAD and others---Respondents

I.C.A. No.316 of 2010, heard on 26th June, 2012.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Civil Service---Recruitment---Walk in interviews---Appellant, Power Company (employer) assailed judgment of Single Judge in a constitutional petition, whereby appointments made by the Power Company against various advertised posts, were declared illegal on ground that same were non-transparent as they were made on the basis of "walk-in" interviews only---Validity---In the recruitment process 432 persons were appointed and only 138 of those had survived scrutiny on the touchtone of merit transparency and fairness while the rest of the appointments had been accommodated on extraneous considerations which found no merit or sanction in the existing rules and regulations and which was also a violation of the rules of competition, transparency and fairness for appointment to public office---Selection based on interviews alone was arbitrary since it was entirely subjective---No illegality was found in order of Single Judge---High Court directed that copy of its judgment be sent to the National Accountability Bureau for examination of causes of issuance of letter by Managing Director of the Power Company on basis of which the recruitment process became derailed---Intra-court appeal was dismissed, accordingly.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Waheed Ahmed and another v. Executive District Officer (Revenue) Faisalabad and others 2012 PLC (C.S.) 733 rel.

Muhammad Ilyas Khan, Aurangzeb Mirza along with Hashmat Ali Kazmi Director, HR & Admn., Syed Ejaz Ahmad, Manager HRM and Muhammad Siddique Malik, Director (Legal), GEPCO for Petitioner.

Asad Mehmood for PEPCO (Respondents)

Date of hearing: 26th June, 2012.

2013 P L C (C.S.) 1369

[Lahore High Court]

Before Ali Baqar Najafi, J

FAKHAR IMAM

Versus

GOVERNMENT OF PUNJAB through Secretary and 3 others

Writ Petition No.14377 of 2013, decided on 20th June, 2013.

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

----R. 17-A---Punjab Fisheries Department Service Rules, 2011, R.42---Constitution of Pakistan, Art.199--- Constitutional petition---Appointment---Mandatory appointment of child of government servant---Criteria---Disqualification from appointment on the basis of lack of required educational qualification---Scope---Father of petitioner was retired on medical ground---Petitioner/son of retired government servant applied for his appointment on the seat vacated by his father---Petitioner was refused the appointment by the department as he had passed Matriculation examination in "E-grade"---Qualification of the post in question was Matric with second division---Effect---One child of a government who had been declared invalidated/incapacitated of service should be provided a job against the post in BS-1 to BS-5 in the department without observance of formalities prescribed under the rules/procedure, if such child otherwise was eligible for the post---Perusal of the matric certificate of the petitioner revealed that he had obtained grade-E, but said certificate did not mention second or third division; in departmental rules, the word "second division" without prescribing grades was mentioned---Petitioner was not specifically disqualified in circumstances---Department was bound to appoint at least one child of such government servant---Department was directed to consider the petitioner for appointment in circumstances.

Syed Muhammad Ahmad Abbas Bukhari, for the Petitioner.

Syed Abid Ali Tahir, A.A.-G. with Rukhsana Kausar, Law Officer, Forest Department, Bilal Ahmed, Assistant Director Fisheries and Tasawar Mehmood, ADF for Respondents.

2013 P L C (C.S.) 1372

[Lahore High Court]

Before Atir Mahmood, J

Dr. MUHAMMAD JAVED ARIF (Dr. Muhammad Arif Javed)

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.993 of 2013(BWP), decided on 13th June, 2013.

Punjab Medical and Health Institutions Act (IX of 2003)---

----S. 18---Punjab Medical and Health Institutions Rules, 2003, Sched. V, Art.42---Constitution of Pakistan, Art.199---Constitutional petition---Medical Officer/Administrator, post of---Non-selection of petitioner for being over-age though period of two years of his service as Medical Officer in Health Department claimed to be excludable from his age---Validity---Process of recruitment had already completed and selected candidates had joined service---No fresh post had been advertised for which petitioner could sought relaxation of upper age limit---High Court dismissed constitutional petition in circumstances.

Dr. Malik Muhammad Hafeez for Petitioner.

Manzoor Ahmad Warriach, A.A.-G. with Muhammad Iqbal Sial, Legal Advisor (QMC) for Respondents.

Date of hearing: 13th June, 2013.

2013 P L C (C.S.) 1384

[Lahore High Court]

Before Atir Mahmood, J

Mst. SHAHNAZ AKHTAR

Versus

D.E.O. and others

Writ Petitions Nos.266 and 224 of 2013(BWP), decided on 9th May, 2013.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil service--- Contract appointment---Senior Elementary School Educator (BPS-14), post of---Termination of such Educator by Authority on ground of her appointment letter to be fake---Petitioner's plea was that termination of her service without holding proper inquiry was illegal---Validity---Authority had come to know about such fraudulent appointment from a complaint filed against petitioner before Director Anti Corruption---Competent Authority after obtaining fact finding report from department had dispensed with requirement of further inquiry and provided opportunity of personal hearing to petitioner---Record showed that such post had not been advertised nor had petitioner submitted application for her appointment thereagainst---Signature of concerned officer on offer letter were forged and its entry in dispatch register had been fabricated---Petitioner had not pleaded or argued that her appointment order was genuine, rather had admitted same to be forged before court---High Court dismissed constitutional petition in circumstances.

Executive District Officer (Edu), Rawalpindi and others v. Mst., Rizwana Kausar and 4 others 2011 SCMR 1581; The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 and Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Saadullah Khan 1996 SCMR 413 ref.

Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 rel.

Jamshaid Akhtar Khokhar for Petitioner.

Saeed Ahmed Chaudhry, Asst. A.-G. and Muhammad Sabir, Superintendent DEO (Women), Bahawalnagar for Respondents.

Date of hearing: 9th May, 2013.

2013 P L C (C.S.) 1398

[Lahore High Court]

Before Atir Mahmood, J

ABDUL MAJEED SHEIKH

Versus

ZARAI TARAQIATI BANK LTD. and others

Writ Petition No.2385 of 2006(BWP), heard on 3rd June, 2013.

(a) Civil service---

----Disciplinary proceedings---Removal from service---Corruption, charge of---Acquittal of civil servant from such charge by competent court---Effect---Civil servant due to such acquittal would be deemed not to have committed charged offence---Competent authority in such case would be bound to reinstate civil servant in service forthwith and could not deprive him of his lawful right to be reinstated in service.

Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf 2007 SCMR 537 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Agricultural Development Bank of Pakistan, employee of---Removal from service---Corruption, charge of---Pendency of criminal proceedings against petitioner on basis of such charge in Anti Corruption Court---Report of Inquiry Officer found petitioner to be innocent while suggesting to competent Authority to wait for final decision of the Court---Imposition of penalty of removal from service by competent authority without issuing show cause notice to petitioner---Plea of Bank was that petitioner could not be reinstated for having reached age of superannuation---Validity---Competent authority had neither adhered to recommendations of Inquiry Officer nor issued show cause notice to petitioner, but had condmned him unheard---Competent Authority was obliged to wait for decision of the court and act thereupon---Said court had acquitted petitioner from the charge, thus, he would be deemd to be not to have committed such offence and was liable to be reinstated in service forthwith---Petitioner though was not entitled to be reinstated due to attaining age of superannuation, but same would not deprive him of monetary benefits to which he was entitled under law---High Court set aside impugned order while observing that petitioner would be deemed to be in service from date of removal from service till date of attaining age of superannuain and entitled to all benefits.

Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993; Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf 2007 SCMR 537; Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others 2000 PLC (C.S.) 331 and Dr. Muhammad Islam, Instructor, Animal Husbandry In-Service Training Institute, Daudzai, Peshawar District v. Government of N.-W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 PLC (C.S.) 1430 ref.

(c) Natural justice, principles of---

----No one can be condemned without giving him proper opportunity of defence.

Mukhtar Ahmed Malik for Petitioner.

Muhammad Afzal Siddique Chaudhry for Respondent.

Date of hearing: 3rd June, 2013.

2013 P L C (C.S.) 1409

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

FAISAL SULTAN

Versus

GOVERNMENT OF PUNJAB and others

Writ Petitions Nos.4213 of 2010(BWP) and 4417 of 2012, decided on 17th July, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Recruitment---Requirement of being "Computer Literate-MS Office"---Scope---Petitioners were selected for posts of educators, however, Recruitment Committee subsequently terminated their selection on the ground that the petitioners were not eligible for two marks to be awarded for computer literacy on the ground that they did not possess a Microsoft Office Certificate from a recognized institution---Validity---Perusal of record showed that no criteria was laid down either in the advertisement or in the Recruitment Policy which explained as to how said two marks would be awarded to a computer literate candidate and the only requirement for the award of said two marks was that the person should be "Computer Literate-MS Office"---While reading the advertisement every candidate possessing such qualification expected to obtain the two marks and subsequent notification imposing condition of possessing diploma in MS-Office was not publicized by the authorities in any newspaper and remained an internal document---Appointing authority therefore, could not amend and give a further meaning/ qualification to the term "Computer Literate-MS Office" as contained in the original advertisement---Term "Computer Literate-MS Office" to an ordinary person of a prudent mind would mean any person who was able to work on a computer and in particular was familiar with the knowledge of "Microsoft Office" would be considered computer literate and should expect to be awarded the two marks---Petitioners possessed a diploma in Microsoft Office from a private institution and had acquired a vested right to be considered computer literate as laid down in the advertisement and Recruitment Policy---High Court directed the Recruitment Committee to award the petitioners the two marks and reconsider their cases accordingly---Constitutional petitions were allowed, accordingly.

Ghulam Mustafa v. The Mehran University of Engineering and Technoloey, Jamshoro and 7 others 1986 CLC 1056 and Chambers 21st Century Dictionary rel.

(b) Words and Phrases---

----Literate---Meaning of: "Able to read and write" and "educated".

Chambers 21st Century Dictionary rel.

(c) Words and phrases---

-----Computer Literate---Means someone who is educated but does not hold a university degree---Term "computer literate" therefore, to an ordinary person of a prudent mind wound mean any person who was able to use or work on a computer.

Chambers 21st Century Dictionary rel.

Nadeem Iqbal Ch. for Petitioner.

Hafiz Abdul Hameed Bhatti for Petitioner (in W.P. No.4417 of 2012).

Muhammad Tahir Saeed Ramay A.A.-G. along with Sardar Muhammad Ch. EDO (Education) Bahawalnagar.

2013 P L C (C.S.) 1472

[Lahore High Court]

Before Shezada Mazhar, J

Brig. (R) SAJID IMTIAZ HUSSAIN

Versus

SECRETARY MINISTRY OF COMMERCE and another

Writ Petition No.21371 of 2012, heard on 14th June, 2013.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil service---Termination from service---Regular inquiry---Scope---Contract appointment of the petitioner had been terminated by levelling allegation of insubordination---Petitioner had not been allowed to explain his case nor any show-cause notice was issued to him---Show-cause notice or regular inquiry---Necessity---Holding inquiry was not necessary in each and every case as it depends upon the circumstances of the case---Service of an employee could be terminated without holding regular inquiry---Competent Authority could dispense with holding of inquiry especially when the allegation levelled against the employee had found to be proved on the basis of documentary evidence---Constitutional petition was dismissed.

Muhammad Amjad v. The Chief Engineer, WAPDA and others 1998 PSC 337 and Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Gohar Riaz 2004 SCMR 1662 ref.

Muhammad Aslam v. Inspector-General of Police Punjab 2004 PLC (C.S.) 675 and Mst. Samina Nazeer v. District Education Officer (W), Khanewal and others 2004 SCMR 290 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Civil service---Termination from service---Employment in Corporation---Non-statutory rules of service---Effect---Damages---Employee of Corporation in the absence of violation of law or any statutory rule, could not press into service the Constitutional or civil jurisdiction for seeking relief of re-instatement in service---Terminated employee of such Corporation could only claim damages against his wrongful dismissal or termination---Constitutional petition was not maintainable.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Master and servant, relationship of---Scope---Termination from service of the corporation's employee---Non statutory rules of service---Scope---In case of an employee of a Corporation where protection could not be sought under any statutory instrument or enactment the relationship between the employer and employee was that of a Master and Servant.

Nisar Ahmed v. The Director, Chiltan Ghee Mill 1987 SCMR 1836 rel.

Ch. Waqar Ahmad Kamboh for Petitioner.

Arshad Mehmood and Badar Munir Malik, A.A.-G. for Respondents.

Dates of hearing: 10th and 14th June, 2013.

2013 P L C (C.S.) 25

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Waqar Ahmed Seth, JJ

Syed KAMAL HUSSAIN SHAH

Versus

CHIEF JUSTICE, PESHAWAR HIGH COURT PESHAWAR through Registrar, Peshawar High Court, Peshawar and 2 others

Service Tribunal Appeal No.26 of 2011, decided on 7th April, 2012.

Provincial Civil Services Pay Revision Rules, 1978---

----R. 7---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.4---Limitation Act (IX of 1908), Ss.5 & 14---Grant of annual increment---Limitation---Appellant who was appointed as Civil Judge in BPS-17 in the year 1988, claimed that in the last week of March, 2008, it came to his notice that he was not granted first ever increment with effect from 31-12-1988; that he upon said knowledge applied for grant of the same on 31-3-2008 (after about 20 years) before competent Authority---Appellant nowhere in his appeal or at the arguments stage had explained the position as to how he got the knowledge and information at the belated stage (after 20 years)---Appellant being a Judicial Officer, conscious of the fact, must have filed an application for condonation of delay, but no such application was filed---By no stretch of imagination such a long period and careless attitude of the appellant could be condoned---Each and every day was to be explained from the cause of action, but same had not been done---Appellant, otherwise could not take the benefit of R.26(b) of Fundamental Rules, as he was not having six months service at a stage in the relevant scale.

Appellant in person.

Barrister Waqar Ali, A.A.-G. for Respondents.

Date of hearing: 7th April, 2012.

2013 P L C (C.S.) 34

[Peshawar High Court]

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ

SADAQAT ALI

Versus

GOVERNMENT OF N.-W.F.P. and others

Writ Petition No.1324 of 2010, decided on 15th February, 2012.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Civil Service---One step-up promotion by the order of the Chief Minister---Discrimination---Chief Minister had awarded one-step up promotion to the petitioner---Petitioner, however, was granted only next higher pay scale of BPS-17, which was personal to him specifically and for the purpose of pay only; and the same was assailed by the petitioner---Validity---Record showed that the Chief Executive had issued a directive which was in itself clear inasmuch as there was no distinction that said promotion would be only for grant of higher pay scale---Directive of the Chief Executive were clear in all its intents and purposes, and the same was not only defied but discrimination was meted out to the petitioner in violation of Art.25 of the Constitution---High Court directed the Authorities to grant one-step up promotion to the petitioner which would be person specific without prejudicing the rights of other employees; without affecting the matter of seniority, inter se, other officials/employees and the post of the petitioner would automatically stand downgraded to the original scale as and when vacated by the petitioner on account of his transfer or retirement---Constitutional petition was allowed, accordingly.

Writ Petition No.1536 of 2009 dated 24-2-2011 rel.

Aziz-ur-Rehman for Petitioner.

Ikramullah Khan, A.A.-G. for Respondents.

Date of hearing: 15th February, 2012.

2013 P L C (C.S.) 69

[Peshawar High Court]

Before Khalid Mehmood, J

TANVIR-UD-DIN

Versus

Messrs NATIONAL RADIO TELECOMMUNICATION CORPORATION (PVT.) LTD. (NRTC) through Managing Director and 3 others

Writ Petition No.525 of 2009, decided on 5th June, 2012.

Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Petitioner, a company employee, impugned order of early/premature retirement from his post as an Engineer with the Company on the ground that he had a vested right to serve the said Company till date of his attaining superannuation---Validity---Respondent Company was not established under any statute, had no statutory rules and was registered under the Companies Ordinance, 1984---No Constitutional petition could be entertained in case of companies which were governed by the Companies Ordinance, 1984---Case of the petitioner, therefore, did not come within the ambit of government service or as an employee of a statutory body---Constitutional Jurisdiction of High Court could, therefore, not be invoked---Constitutional petition being not maintainable, was dismissed.

Frontier Sugar Mills v. Sulah-ud-Din PLD 1975 SC 244 and Pakistan International Airline v. Tanveer-ud-Rehman PLD 2010 SC 676 rel.

Abdul Rehman Qadir for Petitioner.

Malik Faisal Khan for Respondents.

Date of hearing: 5th June, 2012.

2013 P L C (C.S.) 142

[Peshawar High Court]

Before Mazhar Alam Khan Miankhel and Khalid Mehmood, JJ

KHAISTA REHMAN and 2 others

Versus

EXECUTIVE DISTRICT OFFICER SCHOOLS AND LITERACY DISTRICT DIR LOWER and others

Writ Petitions Nos.2093, 1896 of 2007, 294 of 2008, 3402 of 2009, 3620, 4378 of 2010, 2288 and 159 of 2011, decided on 28th June, 2012.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Civil service---Appointment---Petitioners, despite being trained Drawing Masters (teachers) were placed at high pedestal of merit and qualified for the appointment, were ignored and other candidates were appointed as Drawing Masters---Petitioners submitted their requisite qualifications along with certificate of Drawing Master before the authorities for their appointment---After test and interview, the merit list was prepared, wherein the petitioners were declared higher in merit, but instead of appointing them, the other candidates were appointed on the ground that Drawing Master certificate obtained by the petitioners from respective Institutions, were not equivalent to the certificate which was prerequisite for the post of Drawing Master---Authorities in subsequent appointments had also appointed other candidates who had obtained Drawing Master certificates from the same institution from where the petitioners had obtained, but the petitioners had been deprived though they had also qualified from the same institution---Act of authorities was discriminatory and was in utter violation of Art.25 of the Constitution, which had shown the mala fide on their part---Petitioners had been deprived on lame, excuse on the ground of delaying tactics regarding the verification of Drawing Master certificates obtained by the petitioners---Petitioners had wrongly been deprived for appointment against the post of Drawing Master, which required interference by the High Court---Constitutional petition was allowed and the authorities were directed to appoint th'e petitioners against post in question.

Khalid Rehman for Petitioners.

Akhtar Munir Khan, D.A.-G. for Respondents. Date of hearing: 28th June, 2012.

2013 P L C (C.S.) 153

[Peshawar High Court]

Before Waqar Ahniad Seth and Shah Jehan Akhundzada, JJ

NAHEED JAN

Versus

ADDITIONAL CHIEF SECRETARY, (FATA) SECRETARIAT, KHYBER PAKHTUNKHWA, PESHAWAR and 2 others

Writ Petition No.1875-P of 2012, decided on 15th August, 2012.

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan, Arts.212 & 199---Civil Service---Constitutional Jurisdiction of High Court---Scope- Transfers/postings of civil servant---Petitioner impugned order for his transfer from Hospital on the ground that the same was violative of the spousal policy of the Provincial Government---Validity---Article 212 of the Constitution created a specific bar on the High Court to give relief to the petitioner---Transfer and positing was one of the conditions defined in Chapter II S.10 of the Civil Servants Act, 1973; and therefore, High Court lacked jurisdiction to entertain constitutional petition challenging order for transfer or posting---Constitutional petition was dismissed.

Noor Muhammad Khattak for Petitioner.

2013 PLC(C.S.)165

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Irshad Qaiser, JJ

MEHR REHMAN

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and another

Writ Petition No.604 of 2009, decided on 9th August, 2012.

Constitution of Pakistan---

----Art. 199(5)--- Constitutional petition--- Maintainability--- Civil service---Promotion---Petitioner an employee of High Court as Driver--Supersession of petitioner despite being senior than private respondent promoted as Garage Superintendent---Validity---Administration of High Court headed by Registrar was functioning under supervision of the Chief Justice---High Court under delegated powers of Governor could make Rules regarding appointment of its staff and their terms and conditions---Chief Justice under such Rules could exercise' in respect of officers and servants of High Court same powers as Governor could exercise in respect of employees of the Provincial Government---Object of entrusting such powers to Chief 'Justice would be to ensure independence of judiciary being one of vital organ of Government --Chief Justice had accorded sanction to up-gradation of one post of Driver (BPS-5) as Garage Superintendent (BPS-11)---Petitioner and respondent were considered for promotion, but preference was given to respondent due to his experience for such post and satisfactory performance---Registrar of High Court had passed impugned order on directions of competent authority (i.e. Chief Justice)---Petitioner's departmental appeal/representation had been dismissed---Petitioner could not challenge orders of Chief Justice made on administrative side---High Court dismissed constitutional petition for being non-maintainable in circumstances.

Muhammad Iqbal and others v. Lahore High Court' through Registrar and others 2010 SCMR 632 rel.

M. Ayub Shinwari for Petitioner.

Ijaz Anwar for Respondents.

Date of hearing: 9th August, 2012.

2013 P L C (C.S.) 214

[Sindh Service Tribunal]

Before Ghulam Nabi Soomro, Chairman, Qazi Qamaruddin, Member-I and Mrs. Akhtar A. Choudhry, Member-II

Syed IRFAN AHMED and others

Versus

CHIEF ENGINEER BUILDING DEPARTMENT, GOVERNMENT OF SINDH and others

Appeals Nos.163, 164, 165, 166, 167, 168 and 169 of 2009, decided on 12th October, 2011.

(a) Approbate and reprobate---

----No body can be allowed to approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 376; Overseas Pakistanis Foundation and others v. Sqn.Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Federation of Pakistan v. Amir Hamza 2001 PLC (C.S.) 1037 and Chairman Selection Committee/Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmed and another 1997 SCMR 15 rel.

(b) Civil service---

----Seniority---Matter relating to the seniority of the parties having attained finality, would be deemed as a past and closed transaction; and same could not be reagitated after lapse of a period of about 7 years.

Wazir Khan v. Government of N.-W.F.P. Irrigation 2002 SCMR 889; Abdul Rab v. Secretary Works and Services Department and others Service Appeal No.33 of 2009 and Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

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

----S. 21---Locus poenitentiae, principle of---Applicability---Scope---Powers of receding till a decisive step was taken, was available to the authority, if the previous order passed by it, had not been acted upon.

Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Azfar Khan, Assistant Manager, Finance and Accounts, Aklasc, Muzaffarabad and others v. Managing Director, Aklasc, Muzaffarabad and another 1999 PLC (C.S.) 1485 rel.

Muhammad Arshad Khan Tanoli for Appellants (in Appeal No.163 of 2009).

Muhammad Bachal Tunio, Addl. A.-G. for Official Respondents.

Abdul Hameed Shaikh for Respondents Nos.4 and 5 (in all connected appeals except Appeals Nos.164 and 166 of 2009).

Date of hearing: 15th September, 2011.

2013 P L C (C.S.) 223

[Peshawar High Court]

Before Khalid Mahmood, J

MUNSIF SHAH

Versus

PEPCO through Managing Director, Lahore and 4 others

Writ Petition No.546 of 2010, decided on 29th February, 2012.

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

----S. 9---Promotion Policy of Establishment Division dated 24-10-2007---Promotion---Features of the Promotion Policy (2007)---Eligibility criteria for consideration for promotion were fulfillment of prescribed minimum length of service for promotion to various respective higher scales; satisfactory completion of mandatory training; possessing qualification/experience and other conditions prescribed in the relevant Recruitment Rules; officer superseded earlier shall be considered after earning Annual Confidential Report for one full year---Officer may be superseded for not conforming at least any of the reasons to the effect that: officer did not qualify the aggregate score prescribed for promotion; officer had not passed Departmental Promotion Examination in due chances; superseded officer would not lose eligibility for consideration, no matter how many times officer was superseded; officer superseded for want of passing Departmental Promotion Examination in due chances would be considered as a normal candidate in the next Promotion Board after passing Departmental Promotion Examination without prejudice to the reason that officer has not passed Departmental Promotion Examination in due chances and in case of supersession, officer would lose seniority vis-a-vis his/her juniors, approved for promotion in the same Board---Officer may be deferred for confirmation for any of the reasons that if officer had not undergone the prescribed training (where applicable); non-submission of ACRs by the concerned officer to his Reporting Officer(s); where the Board considers the record as incomplete, or wants to further watch the performance of the officer or for any other reason to be recorded in writing; if disciplinary or departmental proceedings were pending against the officer; if the officer was on deputation abroad with a foreign government, private organization or international agency; where the inter se seniority of the officer was sub judice; in case officer is deferred for promotion, but subsequently approved for promotion, the officer will regain his/her seniority with his/her original batch, however, date of promotion will remain the same on which officer was actually promoted.

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

----S. 9---Promotion---Entitlement---Employee, being qualified and eligible, joined department as Junior Engineer Electrical, on open merit basis and was promoted as DMG/Xen in PESCO under the administrative control of respondent/PEPCO---Numerous Xen/Senior Engineers were promoted to the post of Superintending Engineer, but the employee despite being senior most and qualified and having completed all codal formalities and requirements mandatory for promotion, had been deprived from such promotion---Penalty imposed on employee vide order through which increment for one year was withheld/stopped, was set aside on acceptance of appeal of the employee---Even otherwise, censure and minor penalty, was not a hurdle in the way of promotion of employee---Employee, in circumstances, had wrongly been superseded by ignoring the criteria laid down for promotion, which was void ab initio---Promotion of employee to the higher post being a matter of legal right, employee was entitled for award of up-gradation and promotion from the date when his very first junior, was promoted and back benefits---Authorities were directed to consider the case of employee for the purpose of upgradation/promotion from such date accordingly.

Abdul Majeed v. Government of Pakistan and others 2006 SCMR 1415; Fida Hussain Javed and 3 others v. Director Food, Punjab and others 2004 SCMR 62; Muhammad Afzal Khan v. Government of Punjab and others 2009 PLC (C.S.) 40; Hammad Raza Qureshi v. Departmental Promotion Committee, Punjab Lahore and others 2008 PLC (C.S.) 551; Muhammad Saifullah v. Chief Secretary, Government of Sindh and 2 others 1985 PLC (C.S.) 1108; Maj. Ziaul Hassan v. Mrs. Naseem Chaudhry 2000 SCMR 645; Javed Hussain Shah v. Government of the Punjab and others 2005 PLC (C.S.) 974 and Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 rel.

Abdur Rehman Qadir for Petitioner.

Rana Asif Saeed along with A.D. PEPCO for Respondents.

Date of hearing: 29th February, 2012.

2013 P L C (C.S.) 698

[Peshawar High Court]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

MUHAMMAD NASEER KHAN

Versus

GENERAL MANAGER (HR-OPS), SUI NORTHERN GASE PIPE LINES LTD., LAHORE and 4 others

Writ Petition No.1754-P of 2012, decided on 1st November, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual employment---Public limited company (employer) having non-statutory service rules---Terms and conditions of service---Constitutional petition under Art.199 of the Constitution challenging deductions made from monthly salary of an employee working for a corporation having non-statutory service rules---Employer establishment had non-statutory executive service rules, which were contractual in nature and lacked statutory protection---Writ could not be issued in such circumstances---Constitutional petition was dismissed as being not maintainable.

PLD 2006 SC 602; PLD 1999 SC 1106; Ali Gohar v. M.D. SNGPL and others 1998 PLC (C.S.) 828 and Mian Abdul Wahid v. MD SNGPL Writ Petition No.1499 of 2006 rel.

Saadullah Khan Warwat for Petitioner.

2013 P L C (C.S.) 712

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Shah Jehan Khan Akhundzada, JJ

MUHAMMAD SHAHAB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and 2 others

Writ Petition No.3345 of 2010, decided on 12th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Reinstatement---Locus poenitentiae, principle of---Scope---Appointment order not to be withdrawn/rescinded once same had taken legal effect---Appointee applied for the advertised post in question and was declared successful in the test and interview, whereafter he was appointed to the post---Subsequently appointment of appointee to the post was withdrawn vide impugned order on the basis that he did not secure a place in the final merit list and his appointment order was issued inadvertently---Legality---Appointee was appointed after due process for appointment---Attendance register available on record confirmed that appointee duly joined his place of posting and marked the attendance register for about 10 days---Contention of Department that appointee was appointed inadvertently was not supported by any documentary proof---Appointee was issued appointment letter after going through all the requisite procedure and joined his place of posting, as such a valuable right under the principle of locus poenitentiae had accrued in his favour, which could not be taken away---Constitutional petition was allowed, impugned order was declared as illegal, unlawful and ineffective and appointee was re-instated in service.

The Secretary Government of Punjab through Secretary Health Department Lahore and others v. Riaz ul Haq 1997 SCMR 1552 ref.

(b) Locus poenitentiae, principle of---

---Scope---Order, withdrawal of---Principle of locus poenitentiae was available to government or relevant authorities but an order could not be withdrawn or rescinded once same had taken legal effect and certain rights were created in favour of an individual.

(c) Civil service---

----Termination of appointment---Inquiry---Right of personal hearing---Scope---When any action was proposed to be taken against an employee appointed even on ad-hoc or contract basis, a regular inquiry had to be conducted, so that the concerned employee not only knew the allegations against him, but was also able to defend himself before the inquiry officer---Right of personal hearing could also not be taken away from an employee.

M. Ayub Shinwari for Petitioner.

Fazalur Rehman, A.A.-G. for Respondents.

Date of hearing: 12th September, 2012.

2013 P L C (C.S.) 715

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Shah Jehan Khan Akhundzada, JJ

SAJID ALI SHAH

Versus

GENERAL MANAGER WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) (PROJECTS) PESHAWAR and 3 others

Writ Petition No.1184/P of 2012, decided on 20th November, 2012.

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

----S. 2(1)(b)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service of a person employed on contract or on work-charged basis---Petitioner was appointed on daily wages basis with one day break after 89 days; and said order was extended from time to time, but vide impugned order his services were terminated being no more required, which order had been called in question by the petitioner---Provisions of S.2(1)(b)(ii) of Khyber Pakhtunkhwa Civil Servants Act, 1973 did not include the person who was employed on contract basis or work-charged basis, or paid from contingencies---Person temporarily employed, could not claim to be a person of having any legal character; and employer was always to be held so arbiter to deal with the employee in accordance with the terms of his contract---If the service of a temporary employee was terminated in conformity with the terms and conditions of his agreement, he would have no cause of action---Petitioner's appointment being purely temporary on daily wages basis, his services in terms of his employment contract could be terminated in the absence of any alleged violation of provision of law/statutory rules.

Shamshad Ali Khan v. Commissioner Lahore and others 1969 SCMR 122; 1981 PLC (C.S.) 15; Nizamuddin v. CAA 1999 SCMR 467; PSIC v. Ahmad Akhtar Sheema 2002 SCMR 549 and Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101 rel.

Ajmal Lateef for Petitioner.

Shakirullah Afridi for Respondents.

Date of hearing: 20th November, 2012.

2013 P L C (C.S.) 1405

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Musarrat Hilali, JJ

Engineer SIDDIQ ULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 2 others

Writ Petition No.228-P of 2012, decided on 4th June, 2013.

Khyber Pakhtunkhwa Establishment of Information Technology Board Act (XI of 2011)---

----S. 8---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Selection process---Re-advertisement of post after completion of selection process---Petitioner had applied for the post in question---Petitioner along with other candidates was shortlisted and called for test/interview/presentation---After completion of entire process of selection, the petitioner had topped the merit list---Department decided to re-advertise the post in question---Contention was that vested right had accrued to the petitioner, therefore, the department could not re-advertises the post in question---Validity---Plea raised by the petitioner that he had topped the merit list

was substantiated by the minutes of selection committee---Entire process of selection had been carried out as per terms and conditions prescribed for the post in question---No allegation was on record to the effect that selection of petitioner was not on merits or it was made in violation of any rules/regulations---No plausible reason had been rendered by the department regarding non-appointment of the petitioner as well as re-advertisement of the post in question---Petitioner had been duly selected, a right had accrued to him for the job---Authorities were directed to appoint the petitioner against the post in question---Constitutional petition was allowed.

Ijaz Anwar for Petitioner.

Obaid Razaq, A.A.-G. for Respondents.

Date of hearing: 4th June, 2013.

2013 P L C (C.S.) 1413

[Peshawar High Court]

Before Lal Jan Khan Khattak, J

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

Versus

FARID ULLAH KHAN

Civil Revision No.79-D of 2013, decided on 10th June, 2013.

(a) Khyber Pakhtunkhwa Service Tribunal Act (I of 1974)---

----S. 3(2)---Civil Procedure Code (V of 1908), S.9 & O.XXXIX, Rr.1 & 2---Constitution of Pakistan, Art.212(3)---Correction of date of birth in the official record of civil servant---Suit for injunction---Jurisdiction of civil court---Suit filed by plaintiff was decreed, government department was directed to correct date of birth of civil servant---Appellate court dismissed the appeal filed by petitioner/defendant---Validity---According to Art.212 of the Constitution, administrative courts and tribunals had been established having exclusive jurisdiction in respect of the matter relating to terms and conditions of persons who are in service of Pakistan---Article 212(2) of the Constitution commanded that no court or tribunal shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction to such court or tribunal extended---Khyber Pakhthunkhwa Service Tribunal Act, 1974 was enforced to deal with the matters relating to the terms and conditions of service of civil servants---Provincial Government had established Service Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of civil servants---Service Tribunal had the exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants----Both the courts below had fallen in error by assuming jurisdiction to entertain and adjudicate upon, in circumstances---Judgment and decree passed by both the courts below was set aside---Revision petition was accepted.

(b) Khyber Pakhthunkhwa Service Tribunal Act (I of 1974)---

----S. 3(2)---Khyber Pakhthunkhwa Civil Servants Act (XVIII of 1973), S.8---Constitution of Pakistan, Art.212(3)---Correction of date of birth in seniority list of civil servant---Terms and conditions of service---Scope---Suit filed by plaintiff/civil servant for correction of date of birth in seniority list of government department was decreed by civil court---Appellate Court dismissed the appeal of defendant---Plaintiff contended that correction of date of birth in seniority list did not fall under terms and conditions of service---Validity---Ensuing effect of correction of date of birth would not only be an extension in the service of the plaintiff in his department but it would also have an effect on his pay and pension and also lead to deprive other civil servants of their rights of promotion which were matters relating to the terms and conditions of service falling within the jurisdiction of Service Tribunal---Judgment and decree passed by civil court was set aside---Revision petition was accepted.

Sanaullah Khan Shamim, D.A.-G. for Petitioners.

Jehanzeb Ahmad Chughtai for Respondent.

Date of hearing: 10th June, 2013.

2013 P L C 1455

[Peshawar High Court]

Before Qaiser Rashid Khan and Lal Jan Khan Khattak, JJ

SHAFQAT MUNIR

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Education, N.-W.F.P., Peshawar and 5 others

Writ Petition No.213 of 2010, decided on 4th April, 2013.

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)-

----Ss. 2(b) & 3---Constitution of Pakistan, Art.199---Constitutional petition---Contractual appointment---Employment in public school not run by government---Claim of regularization---Scope---Petitioner was appointed on contract basis in a public school which was not governed by government---Petitioner had claimed for his regularization into service---Validity---Petitioner was not employee of the government rather he was employee of a public school which was not run by government but was governed by its Board of Directors---Petitioner was not employee of government and the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 had not been enacted for such cases---Contractual employee working in public school not run by the government but by a Board of Directors could not become beneficiary of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Constitutional petition was dismissed.

Saleemullah Khan Ranazai for Petitioner.

Khan Wali Khan Mehsud, A.A.-G. for Respondents.

Date of hearing: 4th April, 2013.

2013 P L C (C.S.) 1477

[Peshawar High Court]

Before Mazhar Alam Khan Miankhel and Nisar Hussain Khan, JJ

Dr. MUHAMMAD ANWAR and 3 others

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and 2 others

Writ Petition No.3360-P of 2012, decided on 18th June, 2013.

Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Reglns. 9(d) & 40---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Rejection of application which was filed after closing date---Reasonable grounds for delay--Scope---Applications of the petitioners had been received by the Commission after five months of closing date---Commission had refused to entertain petitioners' applications and did not allow them to participate in interview---Petitioners had submitted their applications with the plea that because of curfew imposed in their agency/area they were not able to file applications within time---Validity---Commission had the powers to accept the applications received after closing time and date and relax the Regulations to avoid hardship specially in the case that such relaxation would not amount to violation of any law, rule or government order---Reasons extended by the petitioners for their non-submission of their application had not been denied by the Commission---Commission was under obligation to have considered the applications---High Court directed the Commission to consider the case of petitioners in the light of Regulations.

Muhammad Isa Khan for Petitioners.

Akhtar Naveed, Standing Counsel for Respondents.

Date of hearing: 18th June, 2013.

2013 P L C (C.S.) 928

[Punjab Subordinate Judiciary Service Tribunal]

Before Ijaz ul Ahsan, Chairman Syed Mansoor Ali Shah and Sh. Ahmad Farooq, Members

SAEED AHMAD AWAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

S.A. No.5 of 2011, heard on 7th February, 2012.

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

----Rr. 4 & 7---Misconduct---Inefficiency---Removal from service---Penalty of removal from service was imposed on Civil Judge/Judicial Magistrate, after holding inquiry against him on allegation that he was not writing judgments/orders despite having announced the same---Enquiry Officer reported that charge of misconduct could not be proved against him, while charge of inefficiency stood established---Enquiry Officer after due application of mind, considered it appropriate to take a lenient view by recommending imposition of minor penalty of censure upon the Judicial Officer---Administrative Committee of the High Court on the recommendation of Hearing Judge imposed major penalty of removal from service---Validity---Charge of misconduct against civil servant had nowhere been proved---No evidence was on record to the effect that civil servant was either dishonest or had committed any act which would fall within the meaning of misconduct---Allegation against Judicial Officer was, that he had 31 judicial files lying in his chamber, without written judgments and orders; as a Judicial Officer, it was his duty to take steps to ensure that same was remedied---Nothing was available in the record to show that the Judicial Officer made any effort to remedy the situation and acted carelessly in that regard---Enquiry Officer, in circumstances, was justified in finding some degree of inefficiency on the part of Judicial Officer to justify recommendation to impose minor penalty of censure---No charge of dishonesty or corruption was on record against the Judicial Officer, and his professional performance was up to the mark his case was not fit for enhancement of penalty---Impugned order of competent authority was set aside, he was reinstated into service with all back benefits---Penalty of censure recommended by Enquiry Officer, was upheld which would remain intact.

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

----R. 4(1)(b)---Inefficiency---Major penalty---Major penalty, as the term suggested, was a serious and extreme punishment; in the context of Service Laws, it could mean the end of a person's career---Such penalty could not be imposed lightly and without proof of serious allegations---Even where there was a charge of inefficiency, such inefficiency must be of a lasting character---Single slip or lapse on the part of a Government servant, would not justify inference of his being inefficient---Punishment awarded must be proportionate to and commensurate with the magnitude of the offence.

A.U. Musarrat v. Government of West Pakistan PLD 1977 SC 24; M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691 and Punjab Food Department Lahore and another v. Javed Iqbal and others 2006 SCMR 1120 rel.

Mian Bilal Bashir and Raja Tasawer Iqbal for Appellant.

Syed Nasir Ali Shah for Respondent.

Date of hearing: 7th February, 2012.

2013 P L C (C.S.) 81

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

HAROON-UR-RASHID and others

Versus

REGISTRAR BALOCHISTAN HIGH COURT, QUETTA and others

Constitutional Petitions Nos.247, 266, 306, 317 and 376 of 2012, decided on 22nd June, 2012.

(a) Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002---

----Rr. 5 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Assistant District Attorney applying for recruitment for Additional District and Sessions Judges---Entitlement---Petitioners' (Assistant District Attorneys) grievance was that they had been disallowed to apply for the posts of Additional District and Sessions Judges---Validity---Requirement under R.7 of Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, was that an applicant should be a law graduate from recognized university and should have at least five years practice as an advocate---If Assistant District Attorney was a law graduate and had practiced as an advocate for a period of five years he/she was entitled to apply for such post---Petition was allowed accordingly.

(b) Balochistan Civil Judges/Judicial Magistrates Service Rules, 2002---

----R. 6(ii)---Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981), S.2---Constitution of Pakistan, Arts.25, 27, 34, 36 & 199---Constitutional petition---Quota seats---Disabled persons, women and minorities---Petitioners assailed seats reserved for such persons at the time of recruitment for the posts of Civil Judges cum Judicial Magistrates---Validity---Category of women and minorities could be considered to be a 'class' as envisaged in first proviso to Art.27(1) of the Constitution and the class was reasonable classification---Special quota fixed for women and non-Muslims was neither illegal nor unconstitutional---Though category/classification of disabled persons did not find specific mention in the Constitution but the same could be categorized as a 'class' in terms of first proviso to Art.27(1) of the Constitution and Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, was also enacted by the Legislature---Challenge to special quota for disabled persons, therefore, failed and High Court declared that the same would be taken into consideration wherever applicable---Petition was allowed accordingly.

Mushtaq Ahmed Moral v. The Hon'ble Lahore High Court, 1997 SCMR 1043; Obaidullah v. Habibullah, PLD 1997 SC 835; Riaz Hanif Rahi v. Registrar, Lahore High Court PLD 2008 SC 587; Muhammad Asim Kurd v. Assistant Commissioner-Cum-Returning Officer 1996 CLC 1772; Khiali Khan v. Haji Nazir PLD 1997 SC 304; Shrin Munir v. Government of Punjab PLD 1990 SC 295; Mrs. Azra Sahi v. Government of Pakistan 2004 PLC (C.S.) 206; Muhammad Majid v. United Bank Ltd. 2006 CLD 186; Muhammad Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103 and Asif Saeed v. Registrar. Lahore High Court PLD 1999 Lah. 350 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Administrative decision of Registrar of High Court---Constitutional petition was not maintainable against the High Court but against the order of the Registrar of the Court.

Muhammad Aslam Chishti for Petitioners (in Constitutional Petition No.247 of 2012).

Nadir Ali Chalgari and Khurshid Anwar Khosa for Petitioners (in Constitutional Petition No.266 of 2012).

Ehsan Rafiq Rana for Petitioners (in Constitutional Petition No.306 of 2012).

Obaidullah Quresh for Petitioners (in Constitutional Petition No.317 of 2012).

Najamuddin Mengal for Petitioners (in Constitutional Petition No.376 of 2012).

Tariq Ali Tahir, Addl. A.-G. for Respondents.

Dates of hearing: 24th, 28th May, 2012.

2013 P L C (C.S.) 370

[Balochistan]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

MUHAMMAD JAN and 10 others

Versus

SECRETARY HEALTH DEPARTMENT GOVERNMENT OF BALOCHISTAN and 2 others

Constitutional Petition No.22 of 2012, decided on 19th December, 2012.

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

----S. 4---Constitution of Pakistan Arts. 199 & 212---Constitutional petition---Maintainability---Issuance of appointment letters in pursuance of approval granted by competent authority for appointment of petitioners against vacant posts on basis of recommendations of Recruitment Committee---Withdrawal of such approval by competent authority while directing to readvertise such posts---Such controversy did not relate to terms and conditions of service of petitioners, thus, remedy of appeal before Service Tribunal would not be available to them---Bar contained in Art. 212 of the Constitution, thus, would not restrain High Court from exercising its jurisdiction under Art.199 thereof.

(b) Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.24-A(2)---Constitutional petition---Civil service---Appointment---Issuance of appointment letters in pursuance of approval granted by competent authority for appointment of petitioners against advertised vacant posts on basis of recommendations of Recruitment Committee---Withdrawal of such approval by competent authority and submissions of joining reports by petitioners---Validity---Record showed that Recruitment Committee had unanimously recommended petitioners on merits---Such approval had already been acted upon as petitioners had been issued appointment letters on its basis and had submitted joining reports, when competent authority on fifth day of such approval had issued impugned order without assigning any reason---Appointment of petitioners on basis of such approval had given them vested right, which could not be taken away after having been acted upon---Nothing was available on record either to show any bias, mala fide or favouritism or to disprove initial presumption of correctness attached to official act of Recruiting Committee recommending petitioners---Appointment of petitioners was not illegal as per the record---Petitioners had been condemned unheard---Appointment orders of petitioners were still intact as there was no order terminating their service---Authority could withdraw impugned order before same was acted upon, but not thereafter---High Court declared impugned order as void and of no legal effect while observing that petitioners would not be entitled to receive pay for period during which impugned order remained in field.

Peer Muhammad v. Government of Balochistan 2007 SCMR 54 ref.

Province of Punjab v. Sarwari Begum 2004 SCMR 279; Asjad Mahmood v. Federation of Pakistan 2002 PLC (C.S.) 1161; Chairman Development Authority v. Sajjad Ahmed Sheikh 2004 PLC (C.S.) 1095; Syed Yousaf Ali Shah v. Administrator Municipal Corporation Bahawalpur 2002 PLC (C.S.) 1451; Mumtaz Hussain v. D.M/D.C., Khairpur 1990 PCr.LJ 1784 and Ghulam Muhammad v. Superintending Engineer 1998 PLC (C.S.) 87 rel.

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

----S. 24-A(2)---Provisions of S.24-A of General Clauses Act, 1897---Scope stated.

Section 24-A(2) of the General Clauses Act, 1897 regulates the exercise of powers by the State functionaries. It recognizes the doctrine that where the statute confers powers to make any order or give any direction to any authority, office or person, the same should be exercised reasonably, fairly, justly and for advancement of the purpose of the enactment.

(d) Vested right---

----Illegality could not create vested rights.

(e) Locus poenitentiae, principle of---

----Applicability---Scope---Power of receding or going back on a decision would be available to an authority only upto the time such decision had not been carried into effect.

Mumtaz Hussain v. D.M/D.C., Khairpur 1990 PCr.LJ 1784 and Ghulam Muhammad v. Superintending Engineer 1998 PLC (C.S.) 87 rel.

Muhammad Kamran Mulakhail, Baz Muhammad Kakar and Ashraf Bazai for Petitioners.

Tariq Ali Tahir, Addl. A.-G. Assisted by Dr. Shah Nawaz R.M.O. Helpers Eye Hospital, Quetta for Respondents.

Date of hearing: 6th December, 2012.

2013 P L C (C.S.) 502

[Balochistan High Court]

Before Qazi Faez Isa, C.J., Abdul Qadir Mengal and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD ASIF JAN and others

Versus

CHAIRMAN SELECTION through Chairman and others

Constitutional Petitions Nos.525, 569, 570, 573, 597, 711, 713 and 800 of 2011, decided on 16th August, 2012.

Per Qazi Faez Isa, C.J.; Abdul Qadir Mengal and Muhammad Hashim Khan Kakar JJ agreeing [Majority view].---

(a) Constitution of Pakistan---

----Arts. 18, 25, 27 & 199---Constitutional petition---Civil service---Recruitment---Transparency---Discrimination---Petitioners assailed appointments ---Plea raised by petitioners was that appointments were made on the basis of nepotism and political influence by disregarding merit---Validity---Appointments were made to posts in question by contravening applicable rules, through non-transparent process by resorting to nepotism and by unduly, unjustly and unfairly favouring candidates of a particular area---Appointments were made by violating fundamental rights of all other applicants as it infringed equal opportunity to compete guaranteed to them by Arts.18 & 25 of the Constitution and they were discriminated against---Such appointments were illegal and unconstitutional and the same were of no legal effect and created no right title, interest, benefit and or privilege in the appointees---Chairman and members of Departmental Selection Board did not check whether those selected by them had stipulated skills---Failure to prepare merit lists, preparing a 'Resultant' list and appointing persons thereon, by not conducting tests in respect of certain posts and also by not preparing any merit list in respect of them demonstrated that they were not fit to serve on Departmental Selection Committee---High Court set aside appointments made by Departmental Selection Committee and also directed the authorities to pay cost in respect of each petition---Balochistan Service Tribunal, under the circumstances, did not have any jurisdiction, therefore, appointees could not assail their termination from service before Service Tribunal---Constitutional petition was allowed in circumstances.

C.Ps. Nos.23 and 57 of 2009 ref.

Per Abdul Qadir Mengal, J

(b) Constitution of Pakistan---

----Art. 242---Balochistan Public Service Commission Act (II of 1989), S.3---Public Service Commission---Branches, constitution of---Principle---Government was not debarred to constitute branches of Public Service Commission in Chairmanship of the Chairman of Balochistan Public Service Commission, who could conduct test and examinations for initial appointments and in case of officers contesting on merits, their examinations to be held at their Divisional Headquarters, then by Provincial Public Service Commission at Capital City Quetta---High Court, for the sake of general public interest recommended the Provincial Government to immediately set up branches of Balochistan Public Service Commission at Divisional Headquarters by enhancing manpower of members of the Commission, who would sit at Divisional Headquarters, conduct tests and examinations for initial appointments purely on merits and stop bad governance, culture of corruption, nepotism, favoritism on every level and further fully carry directions in respect of quota of backward areas and bring them at par with developed districts of the Province, so no individual of the Province could feel deprived of his rights.

Petitioner in person (in C.P. No.525 of 2011).

Syed Nazeer Agha for Petitioners (in C.Ps. Nos.569 and 570 of 2011).

Syed Nazeer Agha and Syed Iqbal Shah for Petitioners (in C.P. No.573 of 2011).

Khushnood Ahmed for Petitioners (in C.P. No.597 of 2011).

Syed Nazeer Agha for Petitioners (in C.Ps. Nos.711, 713 and 800 of 2011).

Syed Ayaz Zahoor, Kamran Murtaza for Respondents and A.-G. for Respondents.

Date of hearing: 11th April, 2012.

2013 P L C (C.S.) 736

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

ABDUL MALIK and others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Home and Tribal Affairs Department and others

Constitutional Petitions Nos.339 and 558 of 2012, decided on 3rd December, 2012.

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

----S. 5---Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009, Rr.17 & 9---Constitution of Pakistan Arts.18, 25 & 199---Civil Service---Ad hoc appointment---Relaxation of Rules---Scope---Petitioners, who were serving Risaldars in the Provincial Levies Force, impugned appointment of respondents to the said post which was made in relaxation of Rules and on an ad hoc basis on directives of the Provincial Chief Minister and Provincial Home Minister---Validity---Provincial Legislature had not granted the Provincial Government any power to "relax" any Rule---No provision existed in the Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009 which enabled the Provincial Government to do anything in the purported "relaxation of rules"---If persons were appointed as levies officers on the personal whims of a Minister or on the basis of "safarish", the fundamental rights of those aspiring to such posts were transgressed, including their right to aspire to such posts (Article 18 of the Constitution), to be considered equal before the law (Article 25(1) of the Constitution) and the guarantee that they will not be discriminated against (Article 25(2))---Number of violations were committed in the present case, as firstly, the rules were relaxed, secondly, the appointments were made on ad hoc basis, thirdly they were made without placing advertisements by inviting all interested persons and fourthly, no test was conducted---Appointments therefore, violated provisions of the Constitution, the Balochistan Civil Servants Act, 1974 and the Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009---High Court set aside the ad hoc appointments of the respondents declaring the same to be void ab inito and directed the respondents to refund all salaries and benefits received by them---Constitutional petitions were allowed, in circumstances.

Abdur Rasheed v. Riazuddin 1995 SCMR 999; In re: Abdul Jabbar Memon 1996 SCMR 1349; Government of N.-W.F.P. v. Muhammad Tufail Khan PLD 2004 SC 313 and Mushtaq Ahmed Mughal v. Hon'ble Lahore High Court, 1997 SCMR 1043 rel.

(b) Public functionary---

-----Duties of--- Bureaucracy was duty bound to point out if any law, rule or regulation was being violated and not to move a summary, which was in clear contravention thereof---Bureaucrats were under a bounden duty to say no when the provisions of the Constitution, any law or rule were sought to be violated; and if they do not, then they must suffer the consequences.

(c) Constitution of Pakistan---

----Art. 248---Protection to Ministers under Art.248 of the Constitution---Scope---Civil Service---Appointment against Rules---Protection accorded under Art.248 of the Constitution, amongst others to Ministers, only extends to acts done or purported to be done in the exercise of powers and performance of their office---Minister, if he/she sought appointment of a particular individual (against rules), would not be able to take shelter behind Art.248 of the Constitution.

Nadir Ali Chalgari for Petitioners (in C.P. No.339 of 2012).

Shai Haq Baloch, Asstt. A.-G. for Respondents Nos.1 and 2 (in C.P. No.339 of 2012).

Muhammad Iqbal Lehri for Respondent No.3 (in C.P. No.339 of 2012).

Baz Muhammad Kakar for Petitioner (in C.P. No.558 of 2012).

Shai Haq Baloch, Asst. A.-G. for Official Respondent (in C.P. No.558 of 2012).

Date of hearing: 12th September, 2012.

2013 P L C (C.S.) 1132

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

QAISER KHAN and 8 others

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and 3 others

Constitutional Petition No.507 of 2012, decided on 24th April, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Appointment, process of---Violation of merit procedure---Effect---Vested right---Scope---Petitioners had successfully passed the written test but before the interview could be conducted, the tests were cancelled and Authority decided to start process of appointment afresh---Validity---Written test was conducted in violation of merit/procedure, which had brought into doubt the credibility and transparency of selection process---Government was within its right to cancel the selection process before any appointment had been made, particularly when serious contravention of the applicable procedure was made---No illegality had been committed by the government in cancelling the test result---No vested right had accrued to the petitioners---Constitutional petition was not maintainable.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Syllabus for examination conducted for appointment of Naib-Tehsildars---Subjects of syllabus as to the duties of Naib-Tehsildars---Naib-Tehsildar's duties were two-fold, as a revenue officer and as a law enforcement officer---Candidate who would be appointed as Naib-Tehsildar would only be tested for their knowledge of English, Islamic Studies, Pakistan Studies, Mathematics and General Knowledge but candidate's knowledge of the revenue laws and Criminal Procedure Code was not tested---Validity---High Court observed that Government would test candidates for the knowledge and competency that was a prerequisite for the work required---Testing the knowledge of Land Revenue Laws and the Criminal Procedure Code would help in choosing right man/woman for the job of Naib-Tehsildar---Writing and intellectual input a basic ability to operate a computer would also be tested.

Adnan Ejaz Sheikh and Rauf Atta for Petitioners.

Tariq Ali Tahir, Addl. A.-G. for Respondents.

Date of hearing: 24th April, 2013.

2013 P L C (C.S.) 1143

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

NASIR MEHMOOD

Versus

DIRECTOR EDUCATION (COLLEGES), BALOCHISTAN, QUETTA and 5 others

Constitutional Petition No.337 of 2012, decided on 9th May, 2013.

(a) Constitution of Pakistan---

----Art. 199-Constitutional petition---Civil service---Appointment---Right of appointment of a candidate stood next on merit list---Petitioner applied for the post of Lecturer and after clearing test and interviews stood fourth on merit---Candidates who came first, second and third on merit list were appointed but subsequently the appointment of one candidate was cancelled and department decided to re-advertise the post---Petitioner claimed for appointment being next candidate---Validity---Petitioner had not placed on record the advertisement made by the department for the posts of lecturers in the Colleges---Petitioner had applied for the post of Lecturer in a specified college and not for any post in any College---Appointment of the candidate at the other college was cancelled which had no concern with the candidature of the petitioner---Decision of the Selection Committee for re-advertisement of post did not suffer from any illegality or irregularity warranting interference by High Court---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Appointment---"Hope certificate" by University---Scope---Appointment on the basis of "hope certificate" issued by the University---Validity---University could not make a categorical statement that candidate would pass his final examination---Concept of "hope certificate" was beyond comprehension---If for a particular job certain educational qualifications were required those had have to be met before the candidate applied for the same---High Court deprecated acceptance of "hope certificate" by government or any local or statutory body.

Abdul Ghani Mashwani for Petitioner.

Tariq Ali Tahir, Addl. A.-G. for Respondents.

Date of hearing: 1st April, 2013.

2013 P L C (C.S.) 1417

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

BALOCHISTAN IRRIGATION AND POWER EMPLOYEES' UNION through President and another

Versus

CHAIRMAN, BALOCHISTAN DEVELOPMENT AUTHORITY and 4 others

Constitutional Petition No.359 of 2009, decided on 31st January, 2013.

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

----S. 14---Balochistan Development Authority Act (X of 1974), S.16---Constitution of Pakistan Art. 199---Quo warranto, writ of---Posts of Chairman, Balochistan Development Authority and Member Technical of Chief Minister's Inspection Team---Re-employment of respondent as the Chairman by his own order after attaining age of superannuation---Validity---Record showed statement of respondent to the effect that though he could not issue such order in his own favour, but he did so---Nothing on record to show that either respondent or any one else had rescinded such order of his re-employment as Chairman---Such re-employment of respondent after attaining age of superannuation was violative of S.14 of Balochistan Civil Servants Act, 1974---Summary forward to Chief Minister neither disclosed necessity of re-employment of respondent nor stated that same was in public interest---Appointment as Chairman could be made under law with prior approval of authority next above appointing authority, but respondent had violated the law---Subsequent appointment of respondent as Member was also illegal as nothing was on record to justify his such appointment in terms of S.14(1) of Balochistan Civil Servants Act, 1974---Chief Secretary and three Provincial Secretaries had not supported re-employment of respondent, but Chief Minister had preferred the opinion of respondent---Chief Minister had no power under Rules of Business to substitute his personal opinion for professional opinion of such Secretaries and Chief Secretary---High Court set aside re-employment of respondent as Chairman and Member of Balochistan Development Authority for being illegal.

Chamber of Commerce and Industry v. Director-General QDA PLD 2012 Quetta 31; Masood-ul-Hassan v. Khadim Hussain PLD 1963 SC 203; Manzoor Hussain Gilani v. Sain Mullah PLD 1993 SC (AJ&K) 12; Parameswaran v. State Prosecutor AIR 1951 Travancore-Cochin 45; Hamdullah v. Saifullah Khan PLD 2007 SC 52; Fazl-e-Haq, Accountant-General, West Pakistan v. The State PLD 1960 SC 295; Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822; Pakistan v. Abdul Hamid PLD 1961 SC 105; Khan Faizullah Khan v. Government of Pakistan PLD 1974 SC 291; Supreme Court Bar Association v. Federation of Pakistan PLD 2011 SC 273 and Muhammad Riaz Akhtar v. Secretary to Government of Punjab 2011 SCMR 588 ref.

Muhammad Riaz Ahmed for Petitioner.

Syed Ayaz Zahoor for Respondent No.2.

H. Shakil Ahmed, Ayaz Sawati and Shai Haq, Asstt. A.-G. for Official Respondents.

Date of hearing: 7th November, 2012.

2013 P L C (C.S.) 145

[Sindh Subordinate Judiciary Service Tribunal]

Before Shahid Anwar Bajwa and Nisar M. Shaikh, Members

GHULAM NAUMAN SHAIKH

Versus

GOVERNMENT OF SINDH through Secretary Law Department, Karachi and 18 others

Service Appeals Nos.25 and 45 of 2001, decided on 8th March, 2012.

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

----S. 9 [as amended by Sindh Civil Servants (Amendment) Ordinance (XIII of 1984)J---Sindh Judicial Service Rules, 1994, R.6---Sindh Service Tribunals Act (XV of 1973), S.4---Selection grade---Appeal---Maintainability---Plea raised by judicial officer was that he be granted Selection Grade B-21 with effect from the date his juniors were given selection grade, as up-gradation was not promotion to higher post---Validity---Legislature in its own wisdom though had excluded word "grade" from S.9 of Sindh Civil Servants Act, 1973, but it did not chose to confer jurisdiction on Service Tribunal even in respect of the matter which related to promotion to a higher grade (in consideration to promotion to a higher post)---Section 4(b) of Sindh Service Tribunals Act, 1973, had provided that no appeal would lie against an order determining fitness to be promoted to a higher grade, therefore, appeal filed by petitioner was not maintainable---If only criterion was to promote the senior most, for what purpose would recommendations of Selection Board be required because in that situation there should not have the need of Selection Board; one only needed to go to seniority list and pick seniors and appoint them---Lawmaker in its wisdom had chosen to specifically provide that it would be the basis of "recommendations" of "Selection Board", so there had to be a Selection Board which was to select amongst judicial officers and such process of selection, a priori involved assessment and determination of fitness---As the jurisdiction of Service Tribunal was barred by S.4(b) of Sindh Service Tribunals Act, 1973, therefore, the Tribunal declined to consider other contentions raised by the judicial officer---Appeal was dismissed in circumstances.

Abdul Hameed Anjutn and others v. Federation of Pakistan and others PLD 2010 SC 857; Muhammad Siddique, Stenographer,. FIA Headquarters, Islamabad and another v. Secretary, Establishment Division, Islamabad and 5 others 2001 PLC (C.S.) 341; Mubusher-Ul-Haque, S.D.O., P.W.D., Muzaffarabad v. Azad Government of the State of Jammu and Kashmir through Chief Secretary; Azad Government of the State of J&K, Muzaffarabad and 2 others 1991 PLC (C.S.) 426; Mahbub Ali Malik v. Corporation of the City of Lahore and 3 others PLD 1958 Lah. 370; M. Awais Shahid v. Government of the Punjab 1984 PLC (C.S.) 1319; Muhammad Yaqoob Bhatti v. Director Labour Welfare and others 1997 PLC (C.S.) 727; Sadaqat Ali v. Director-General Department of Supplies (Admn. Wing), Karachi and 3 others 1993 PLC (C.S.) 406; Ahrnad Din Ansari v. Secretary, Ministry of Commerce, Islamabad and 4 others, 1993 PLC (C.S.) 1433, Saad Sharif v. Major (Retd) Sikandar Hayat Shaheen, D.I.-G. and others 1992 PLC (C.S.) 1374; Muhammad Fazal Khan v. Muhammad Muskeen and 2 others 1994 PLC (C.S.) 1207; Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others 1996 SCMR 850, Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144 and Abdul Rehman v. District and Sessions Judge, Bhakkar and another 1994 PLC (C.S.) 1544 ref.

Khalid Imran for Appellant (in Service Appeal No.25 of 2001).

Sher Muhammad K. Shaikh, Addl. A.-G. for Respondents (in Service Appeal No.25 of 2001).

Khalid Imran for Appellant (in Service Appeal No.45 of 2001). Sher Muhammad K. Shaikh, Addl. A.-G. for Respondents (in Service Appeal No.45 of 2001).

Date of hearing: 17th December, 2011.

2013 P L C (C.S.) 115

[Balochistan Service Tribunal]

Before Nasrullah Khan Achakzai, Chairman, Muhammad Naeem Khan Ghilzai and

Shagufta Begum, Members

MUHAMMAD HAYAT

Versus

SECRETARY SOCIAL WELFARE, WOMEN DEVELOPMENT AND SPECIAL EDUCATION DEPARTMENT GOVERNMENT OF BALOCHISTAN QUETTA and others

Service Appeal No.94 of 2011, heard on 3rd April, 2012.

Balochistan Service Tribunals Act (V of 1974)---

----S. 4, proviso (a)---Appeal before Service Tribunal without first filing departmental appeal---Maintainability---Appellant filed direct appeal before Service Tribunal without first filing departmental appeal against the impugned order---Mandatory provisions of proviso (a) of S.4 of Balochistan Service Tribunals Act, 1974, having not been complied with, appeal before Service Tribunal was not maintainable.

Gohram Soomro v. Secretary Ministry of Education 2011 PLC (C.S.) 526 ref.

Ali Hassan Bugti for Appellant.

Naseer Ahmed Bangulzai, Asstt. A.-G. for Respondents.

Date of hearing: 3rd April, 2012.

2013 P L C (C.S.) 1365

[Sindh Service Tribunal]

Before Mujeebullah Siddiqui, Chairman and Ameer Faisal, Member-I

AHMED

Versus

SECRETARY, FOOD DEPARTMENT GOVERNMENT OF SINDH and others

Appeal No.121 of 2011, decided on 11th July, 2013.

(a) Sindh Service Tribunal Act (XIV of 1973)---

----S. 4(a)---Appeal---Maintainability---Departmental appeal---Appeal filed before Tribunal without filing representation or departmental appeal---Effect---Appeal preferred before Service Tribunal without recourse to the departmental appeal was not maintainable.

WAPDA v. Fida Hussain 2004 SCMR 1439 distinguished.

(b) Sindh Service Tribunal Act (XIV of 1973)---

----S. 4(a)---Appeal to Service Tribunal---Departmental appeal---Mandatory requirement of law---Non-filing of departmental appeal---Effect---Appellant filed appeal before Tribunal without availing departmental remedy---Contention was that valuable right of the appellant was involved and departmental appeal being a procedural technicality, appellant could not be knocked out for non-filing of departmental appeal---Validity---Provision of law which was particularly in negative terms was mandatory---Departmental appeal was not a procedural technicality-Departmental appeal was a mandatory requirement of law.

(c) Sindh Service Tribunal Act (XIV of 1973)---

----S. 4(a)---Appeal to Service Tribunal---Departmental appeal---Scope---Appellant filed appeal before Tribunal without filing departmental representation on the issue---Appellant contended that his representation on the same matter filed before issuance of impugned order may be deemed to be an appeal---Validity---Representation made before issuance of impugned order could not be treated as departmental appeal, however, courts should try to provide remedy to the litigants, as far as possible without violating the law---Service Tribunal taking lenient view directed the departmental authority to treat the representation as departmental appeal.

Muhammad Nawaz Shaikh for Appellant.

Ms. Shahida Jatoi State Counsel for A.A.-G.

Date of hearing: 11th July, 2013.

2013 P L C (C.S.) 377

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sarmad Jalal Osmany, JJ

TEHSIL MUNICIPAL OFFICER, TMA KAHUTA and another

Versus

GUL FRAZ KHAN

Civil Petition No.1041 of 2011, decided on 21st June, 2012.

(On appeal from the order of the Lahore High Court, Rawalpindi Bench dated 16-5-2011 passed in I.C.A. No.123 of 2010).

Constitution of Pakistan---

----Art. 185(3)---Work charge (contractual) employment---Employee working on work charge basis claiming to be a regular employee---Employment on work charge (contractual) basis, irrespective of its period of length, not to accord employee status of regular employee---Respondent was initially employed by Health Department as chowkidar (watchman) on a work charge basis but after devolution of said Department all its assets, liabilities and offices were succeeded to the Municipal Administration (petitioner)---Services of respondent were transferred to the Municipal Administration, which paid him regular salary---High Court declared respondent to be a regular employee of the Municipal Administration (petitioner) on grounds of his continuous service for 13 years, since the Municipal Administration failed to show that his employment was contractual---Validity---Record showed that respondent was employed by the Health Department on a work charge basis initially for three months and his employment was extended at regular intervals for three months at a time---Documents placed on record by respondent clearly indicated that his employment with Municipal Administration was also on work charge basis and he was paid for the work he performed---Respondent's employment whether with the Health Department or with the Municipal Administration remained on work charge basis and he was never appointed as a regular employee and his employment on work charge basis, whatever its period of length, would not accord him status of regular employee---High Court had erred in holding the respondent a regular employee simply on account of failure of Municipal Administration to show that his appointment was on a work charge or contractual basis---Respondent had to substantiate his claim for regular appointment and same could not be deemed to have been established on failure of the Municipal Administration to prove the contrary---Petition for leave to appeal was converted into appeal and allowed, impugned judgments were set aside and respondent was held not to be a regular employee of the Municipal Administration.

Sardar Tariq Anees, Advocate Supreme Court for Petitioners.

Sh. M. Suleman, Advocate Supreme Court for Respondent No.1.

Mudassar Khalid Abbasi, Additional A.-G., Punjab, Shahzad Asghar, XEN and Hamid Khan Niazi, SDO, Official Respondents.

Date of hearing: 21st June, 2012.

2013 P L C (C.S.) 497

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

FAISAL NOOR JUNEJO and another

Versus

HIGH COURT OF SINDH through Registrar

C.Ps. Nos.258-K and 259-K of 2012, decided on 1st November, 2012.

(Against the judgment dated 16-8-2012 passed by High Court of Sindh).

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

----R. 8(1)--- Additional District and Sessions Judge, post of---Eligibility---"Judicial office", meaning of---Scope---Petitioners had applied for posts of Additional District and Sessions Judge on basis of an advertisement---One of the petitioners was employed as Judicial Assistant in the Supreme Court, while the other one was employed as Senior Translator in the High Court---Both petitioners were not found to be eligible to appear in the exam for the posts in question---Contention of petitioners were that they could be considered to be holding post of "Judicial officers" and also had the relevant experience (in terms of years) to qualify for the posts in question---Validity---Rule 8(1)(d) of Sindh Judicial Service Rules, 1994 provided that in case of appointment to post of Additional District and Sessions Judge, apart from possessing the qualification mentioned in R.8(1)(a) of said Rules, (candidate) had to be a practising advocate of the High Court and courts subordinate thereto with a minimum practice of six years or he should have held a "Judicial office" for a period not less than six years, with a clean record of service---Admittedly petitioners were not practising advocates of High Court or courts subordinate thereto---Office of Judicial Assistant and that of Senior Translator were not at par with a "Judicial Office"---Petition for leave to appeal was dismissed accordingly.

Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91 rel.

(b) Words and phrases---

----"Judicial office"---Definition.

Ballentine's Law Dictionary (Third Edition) ref.

(c) Words and phrases---

----"Judicial"---Definition.

Black's Law Dictionary (Eighth Edition) ref.

Kazi Abdul Hameed Siddiqui, Advocate Supreme Court for Petitioners (in both petitions).

Abdul Ghani Soomro, Registrar Sindh High Court for Respondent (in both petitions).

Date of hearing: 1st November, 2012.

2013 P L C (C.S.) 530

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

KHURRAM IQBAL

Versus

DEPUTY DIRECTOR FOOD, D.-G. KHAN and another

Civil Appeal No.447-L of 2009, decided on 18th September, 2012.

(On appeal from judgment of Punjab Service Tribunal, Lahore dated 21-1-2009 passed in Appeal No.1594 of 2008).

Civil service---

----Removal from service---Appointment to the post despite failing to meet the required minimum grade (division) in degree---Principles---Holding further qualification would not relax the requirement of minimum grade (division) in degree---Minimum educational qualification for the post in question was Matriculation with a second division---Appellant admitted not having the said qualification at the time of his selection and appointment but contended that he also had passed his F.A. (Intermediate) examination, therefore, without taking into consideration his further educational qualification, he could not have been non-suited and removed from service on account of lack of minimum qualification for the post---Validity---Appellant did not have the minimum required educational qualification for the post in question---Mere holding of F.A. (Intermediate) qualification would not do away the basic requirement of Matriculation in second division, therefore, Service Tribunal was justified in dismissing appeal of appellant---Supreme Court observed that out of about 140 candidates, who had applied for the post in question, the appellant, who even lacked the basic qualification was interviewed and found suitable for appointment despite the fact that it was beyond the jurisdiction of the appointing authority to give any relaxation in the matter of minimum required qualification meant for the post in question---Appeal was dismissed in circumstances.

Government of Punjab v. Zafar Maqbool Khan 2012 SCMR 686 rel.

Muhammad Anwar Gumman, Advocate Supreme Court for Appellant.

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Respondents.

Date of hearing: 18th September, 2012.

2013 P L C (C.S.) 542

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

Mrs. KAUSAR A. GHAFFAR

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Petition No.1524-L of 2012, decided on 9th October, 2012.

(On appeal from the judgment dated 2-5-2012 passed by Punjab Service Tribunal, Lahore in Appeal No.3723 of 2011).

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

----S. 4(1)(b)--- Promotion Policy, 2010, para. 12(1)--- Promotion, fitness for---Selection Board determining civil servant unfit for promotion---Appeal against such order of Selection Board before Service Tribunal---Maintainability---Petitioner's case for promotion from BS-20 to BS-21 was considered by the Selection Board but she was superseded on the basis that she was not fit to be promoted as she had only obtained 70.38 marks out of 100, whereas minimum threshold of 75 marks was required for promotion to BS-21 in view of paragraph 12(1) of Promotion Policy, 2010---Petitioner's appeal filed before Service Tribunal was dismissed---Contentions of petitioner were that she was ignored by the Selection Board and that recommendations of the Selection Board reflected mala fides on part of the Provincial Chief Secretary, who presided over the Board---Validity---Selection Board did not find the petitioner fit to be promoted in view of the quantification criteria laid down in Promotion Policy, 2010 and found that she had not obtained the minimum threshold percentage required for promotion to BS-21---Fact that petitioner was duly considered by the Selection Board and not found fit clearly indicated that the issue did not relate to eligibility but fitness of the petitioner to be promoted, which question could not be a subject matter of appeal in view of S.4(1)(b) of Punjab Service Tribunal, 1974---Mala fides attributed to the Provincial Chief Secretary were vague, unsubstantiated and could not be the basis to interfere with the order of the competent Board determining fitness of the petitioner to be promoted---Petition for leave to appeal was dismissed accordingly.

Muhammad Rahim Khan v. Chief Secretary, N.-W.F.P. PLD 2004 SC 65 ref.

Muhammad Azam v. Muhammad Tufail 2011 SCMR 1871; Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 rel.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 129(e)---Official acts of competent authority---Presumption---Scope---Presumption of regularity was attached to official acts and they could not be annulled on vague allegations.

Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 9th October, 2012.

2013 P L C (C.S.) 562

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa and Sh. Azmat Saeed, JJ

Agha INAM-UR-REHMAN KHAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Civil Appeal No.1660 of 2006, decided on 22nd October, 2012.

(Against the judgment dated 9-9-2005 of Lahore High Court, Lahore passed in S.A. No.22 of 2000).

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5(a)---Punjab Civil Servants Act (VIII of 1974), S. 21---Constitution of Pakistan, Arts.105 & 192---Civil Judge---Order of dismissal---Representation before Governor---Legality---Time barred appeal against order of dismissal---Civil Judge (appellant) was dismissed from service by the competent authority/Chief Justice of the High Court vide order dated 9-3-2000---Said order was conveyed to the Civil Judge in question on 23-3-2000, and he filed an appeal before the Chief Justice of the High Court, which appeal was returned for proper presentation before the forum having jurisdiction in the matter---Civil Judge thereafter filed a representation before the Governor, which remained undecided and after a lapse of three months he filed a fresh appeal before the Tribunal on 19-7-2000 in terms of S.5(a) of Punjab Subordinate Judiciary Service Tribunals Act, 1991---Said appeal was dismissed as being time barred---Contentions on behalf of Civil Judge were that in terms of S.21(2) of Punjab Civil Servants Act, 1974 the remedy of representation was usable before the authority next above the authority which had made the dismissal order; that Governor of the province was the authority above the Chief Justice of the High Court, who had passed the dismissal order, therefore, representation before the Governor was competent and a validly invoked remedy, which was not decided within 90 days, constraining him to avail his right of (fresh) appeal, which was filed within time---Validity---Chief Justice of the High Court in his capacity as the competent authority had passed the dismissal order dated 9-3-2000, therefore, he (Chief Justice) had no authority to hear the appeal---Appeal filed before the Chief Justice of the High Court was neither competently instituted nor filed before the forum having jurisdiction, therefore, said appeal was returned via a letter, which never communicated that Civil Judge in question should avail any remedy of representation before the Governor in terms of S.21 of Punjab Civil Servants Act, 1974---Opting to approach the Governor instead of approaching the Tribunal within time, was the Civil Judge's own deed or comprehension of the law---Remedy under S.21(2) of Punjab Civil Servants Act, 1974 was only available before the authority next above the authority which made the order; the Governor of a province by no stretch of the constitutional scheme or interpretation of any provision of the Constitution or the law on the subject could be held to be an authority next above the Chief Justice and Judges of the High Court---Representation filed by civil judge before the Governor was not within the purview and contemplation of S.5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991 read with S.21(2) of Punjab Civil Servants Act, 1974, therefore, 90 days' time period was not available to the civil judge as envisaged under S.5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991---Dismissal order was passed on 9-3-2000 and conveyed to the civil judge in question on 23-3-2000, therefore, appeal filed before the Tribunal on 19-7-2000 was filed much beyond the prescribed period of limitation i.e. thirty days---Appeal was dismissed accordingly.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 rel.

(b) Constitution of Pakistan---

----Arts. 105 & 192---Chief Justice and Judges of the High Court---Governor of province, authority of--- Scope--- Neither on the touchstone of the constitutional scheme nor on the established rule of independence of judiciary, the Governor could be said to be an authority next above the High Court for any purpose whatsoever.

Asmat Kamal Khan, Advocate Supreme Court for Appellant.

Arif Raja, Additional A.-G. Punjab and M. Akram, DR (Confidential), Lahore High Court, Lahore for Respondent.

Date of hearing: 22nd October, 2012.

2013 P L C (C.S.) 786

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

KHALID MEHMOOD

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others

Civil Petition No.912-L of 2011, decided on 5th December, 2012.

(On appeal from the judgment dated 31-1-2011 passed by Punjab Service Tribunal, Lahore in Appeal No.2530 of 2009).

Civil service---

----Ante-dated promotion---Promotion with effect from date of availability of vacancy--- Civil servant (petitioner) was inducted in BS-17 and was subsequently given various assignments in BS-18 on current charge basis---Grievance of civil servant was that he should have been considered for promotion with effect from the date when the post in BS-18 fell vacant--- Service Tribunal dismissed appeal filed by civil servant--- Validity--- Civil servant was inducted into service in BS-17--- Subsequently he was promoted to BS-18 on current-charge basis, however by that time he was eligible and qualified to be promoted to BS-18 and even vacancies were available---Petition for leave to appeal to Supreme Court was converted into appeal and allowed, and competent authority was directed to consider civil servant for promotion to BS-18 with effect from the date when the vacancy occurred, provided he was qualified to be considered for the same.

Government of N.-W.F.P. v. Buner Khan 1985 SCMR 1158; Islamic Republic of Pakistan v. Abdul Karim, Deputy Accountant General, N.-W.F.P. 1978 SCMR 289 and Abu Saeed v. Government of N.-W.F.P. 1990 SCMR 1623 rel.

Asif Nazir Awan, Advocate Supreme Court for Petitioner.

Khawar Ikram Bhatti, Additional A.-G. on Court's Call.

Date of hearing: 5th December, 2012.

2013 P L C (C.S.) 793

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUZAFFAR ALI

Versus

COMMANDANT RANGERS and another

Civil Petition No.60-L of 2012, decided on 12th December, 2012.

(On appeal from the judgment dated 24-11-2011 passed by Federal Service Tribunal, Lahore in Appeal No.41(L)CS/2009).

Constitution of Pakistan---

----Art. 212(3)---Hawaldar serving in Pakistan Rangers---Misconduct---Lengthy absence without leave---Effect---Dismissal from service---Petitioner, who was serving as Hawaldar in Pakistan Rangers remained absent without leave on various dates, including one stretch for a period of 2 years, 11 months and 5 days---Petitioner was proceeded against on charge of misconduct and inquiry proceedings against him culminated in his dismissal from service---Departmental appeal filed by petitioner failed and his appeal before Service Tribunal was also dismissed---Contentions of petitioner were that he was absent on account of unavoidable circumstances; that he was falsely involved in an F.I.R. on account of which his whole family absconded and there was no one who could inform his department, and that he informed his department immediately after his acquittal from the case---Validity---No justifiable explanation was provided by the petitioner for his absence for the lengthy period of 2 years, 11 months and 5 days---Even after his acquittal, petitioner did not inform his department for more than a week---Penalty awarded to petitioner was not unwarranted in such circumstances---Petitioner had not raised any question of public importance in terms of Art.212(3) of the Constitution to warrant interference---Petition for leave to appeal was dismissed accordingly.

Rana Habib-ur-Rehman Khan, Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Petitioner.

Muhammad Arshad, Legal Inspector, Pakistan Rangers for Respondents.

Date of hearing: 12th December, 2012.

2013 P L C (C.S) 801

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

SECRETARY, GOVERNMENT OF PUNJAB (C&W) and others

Versus

IKRAMULLAH and 5 others

Civil Petitions Nos.733-L, 737-L, 755-L, 1988-L, 1989-L and 1990-L of 2012, decided on 2nd January, 2013.

(On appeal from the judgments dated 7-2-2012 and 11-7-2012 passed by Punjab Service Tribunal, Lahore in Appeals Nos.1530, 1529, 1797, 1748, 1749 and 1796 of 2011).

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

----S. 13---Constitution of Pakistan, Art. 212(3)--- Power of competent authority to impose penalty---Scope---Plea for enhancement of penalty, dismissal of---Enhancement of penalty by competent authority without assigning any reasons for disagreeing with report of inquiry committee---Specific liability of each guilty official not apportioned---Effect---Respondent-officials were proceeded against by their Department (petitioner) for causing huge loss to the public exchequer during the construction of a road---Inquiry committee recommended award of minor penalties, which were disagreed with by the competent authority, awarding major penalties to respondent-officials---Appeals filed by respondent-officials before the Service Tribunal were allowed and penalties awarded to them were reduced---Contentions on behalf of Department were that charges levelled against respondent-officials were serious and they had caused huge loss to the public exchequer, and that competent authority had the power under S.13 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 to award penalties, as had been done in the present case---Validity---Inquiry committee in its detailed report discussed the role attributed to the respondent-officials in the light of the evidence recorded during inquiry and came to the conclusion that some of the charges were proved, while others were either partially proved or not proved at all---Competent authority without assigning any reasons to disagree with the findings of the inquiry committee with reference to evidence collected, enhanced the penalty and converted the same into major penalties---Where competent authority proposed to enhance the penalty it had to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officials who were inquired into---Only reason assigned by competent authority was that it had gone through the record and defence plea of respondent-officials and also inspected the road personally---Mere deplorable condition of the road at the site was not enough to hold each respondent-official guilty unless competent authority specifically referred to the role and liability of each one of the respondent-officials in the light of the evidence collected during inquiry---Even otherwise inspection of the road by competent authority was carried out four years after its completion and that too in the absence of respondent-officials---No question of public importance was raised in the present petition to warrant interference by the Supreme Court---Petition for leave to appeal was dismissed in circumstances and leave was refused.

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

----S. 13---Power of competent authority to impose penalty---Scope---Enhancement of penalty by competent authority after disagreeing with report of inquiry committee---Principle---Where competent authority proposed to enhance the penalty it had to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of the official who was inquired into.

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

----Ss. 5(1) & 4(1)--- Constitution of Pakistan, Art. 212(3)---Penalty/sentence awarded by Service Tribunal---Interference by Supreme Court---Scope---Service Tribunal as appellate authority enjoyed jurisdiction to modify sentence (awarded by Departmental authorities) and in the absence of any question of public importance it would not proper for the Supreme Court to interfere in the order of Service Tribunal.

Syed Jamshed Hussain v. Chief Minister Punjab, Lahore 2008 PLC (C.S.) 161 and Government of N.-W.F.P. v. Asif Iqbal 2010 SCMR 1345 rel.

Muhammad Arif Raja, Additional A.-G., Khalid Saleem, Law Officer, C&W Dept., Hafiz Fayyaz Ahmed, Law Officer, C&W Department for Petitioners.

Asif Nazeer Awan, Advocate Supreme Court for Respondents (in C.P. 733-L of 2012).

Jari Ullah Khan, Advocate Supreme Court for Respondents (in C.P. 737-L of 2012).

Nemo for Respondents (in C.Ps. 757-L, 1988-L and 1990-L of 2012).

Respondents in person (in C.P. 1989-L of 2012).

Date of hearing: 2nd January, 2013.

2013 P L C (C.S.) 887

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

WAQAS LATIF and 3 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 6 others

Civil Appeal No.67 of 2012, decided on 6th October, 2012.

(On appeal from the judgment of the High Court dated 12-3-2012 in Writ Petitions Nos.993, 1242 and 1575 of 2010).

(a) Civil service---

----Appointment of civil servant --- Method.

Except the method of appointment on merit determined through a transparent open competition, no other method, tactic, policy or practice can be approved.

(b) Interpretation of statutes---

----Notification or executive order---Effect---Spirit of validity enforced law, except by following legal method of amending such law, could not be defeated by any executive order or notification---Principles.

(c) Azad Jammu and Kashmir Civil Servants Act, 1976---

----S. 22---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---Azad Jammu and Kashmir (Relaxation of Age Limit) Rules, 1997---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Temporary employees of Community Infrastructure Service Program---Order of authority to fill posts of such employees on permanent basis by referring them to Public Service Commission on basis of "one post one candidate"---Dismissal of constitutional petition of such employees by High Court---Validity---Such employees had gained experience, thus, had equal right to compete in open transparent selection process and prove their merit---Such employees, if having been successful in proving their merit, could not be discriminated on basis of their temporary appointments---Period of ad-hoc continuous service rendered by such employees would be counted while computing their upper age limit---Supreme Court set aside the order and declared the impugned condition to be illegal and directed the Authority to fill such posts according to law.

Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2011 SCR 528 and 1995 PLC (C.S.) 59 ref.

Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2011 SCR 528 rel.

Azad Government and others v. Ghulam Mustafa Abbasi and others Civil Appeal No.91 of 2009 distinguished.

Sadaqat Hussain Raja, Advocate for Appellants.

Ch. Shoukat Aziz, Addititional Advocate-General for Respondents Nos.1 and 3.

Raja Muhammad Hanif, Advocate for Respondents Nos.1 to 4, 6 and 7.

Raza Ali Khan, Advocate for Respondents Nos.6 and 7..

Date of hearing: 12th June, 2012.

2013 P L C (C.S.) 1000

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

MEHMOOD AMJED

Versus

ISLAMABAD CAPITAL TERRITORY POLICE through I.-G. Police, Islamabad and another

Civil Appeal No.652 of 2012, decided on 28th February, 2013.

(On appeal against the judgment dated 17-4-2012 passed by Federal Service Tribunal, Islamabad, in Appeal No. 2282(R)SC of 2011).

Police Rules, 1934---

----R.13.8(2)---Promotion to post of Head Constable, examination for---Division of candidates into different batches---Preparation of separate seniority list for each batch rather than a joint list for all batches---Legality---Appellant was selected for Lower School Course along with 413 other Constables---Police department in view of convenience, divided the candidates into three batches---Appellant was placed in batch No. 3 and successfully passed the course and was placed at Serial No. 4 of the final result of his batch, while his overall position in the course from all three batches was 6th---Plea of appellant was that a joint seniority list should have been prepared for all three batches; that formation of three separate batches by taking into consideration the result of each batch separately had affected his seniority and the same should have been determined as per R.13.8(2) of Police Rules, 1934---Validity---Police department divided the course into three batches and thereafter determined seniority of candidates in accordance with their batches instead of considering all the course mates of the batches as a whole, thus seniority list prepared was a clear violation of R.13.8(2) of Police Rules, 1934---No distinction could be made between the batches as admittedly they all passed on the same day, therefore, they would be considered to have passed simultaneously and as such combined result of all course mates had to be taken into consideration as per R.13.8(2) of Police Rules, 1934---Appeal was allowed and police department was directed to proceed in accordance with R.13.8(2) of Police Rules, 1934.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellant.

Dil Muhammad Khan Alizai, D.A.-G. and Sajid Abbas, Inspector (L) for Respondents.

Date of hearing: 28th February, 2013.

2013 P L C (C.S.) 1008

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Muhammad Ather Saeed, JJ

KASHIF ZAFAR

Versus

POSTMASTER-GENERAL and others

Civil Appeal No.174-K of 2010, decided on 4th May, 2012.

Civil service---

----Reinstatement---Equality of treatment between similarly placed employees---Civil servant was appointed as a clerk in the Postal Department after complying with all the codal formalities---Services of civil servant were terminated without any show cause notice; without providing him any opportunity of hearing and without any allegation of misconduct---Appeals filed by civil servant before Department and Service Tribunal respectively were also dismissed on the ground that his services were terminated during the probationary period---Contention of civil servant was that services of other employees of Postal Department similarly placed to him were also terminated during probationary period but they were reinstated by the Supreme Court after they forwent back benefits---Contention of Department was that civil servant was appointed on dependent quota and not on merit, and provided quota was exceeded when appointment of civil servant was made---Validity---Appointment of civil servant was not based on dependent quota rather same appeared to have been made on merit---No reason existed as to why case of civil servant should be dealt with differently than how the Supreme Court dealt with other similarly placed employees of the Department---Appeal was allowed, judgment of Service Tribunal was set aside and directions were given to reinstate the civil servant immediately but without back benefits.

Sohail H.K. Rana, Advocate Supreme Court for Appellant.

Ashiq Raza, D.A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondents.

Karim Bux Siyal, Divisional Superintendent, Postal Services Hyderabad.

Date of hearing: 4th May, 2012.

2013 P L C (C.S.) 1029

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

MUHAMMAD ASLAM KHAN

Versus

FEDERATION OF PAKISTAN and others

Civil Petition No.747-K of 2011, decided on 13th March, 2012.

(On appeal from the judgment dated 16-6-2011, passed by the Federal Service Tribunal Islamabad, Karachi Bench in Appeal No.07(K)CE of 2011).

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

----S. 3---Service Tribunals Act (LXX of 1973), S. 3(2)---Employee of Civil Aviation Authority (CAA)---Grievance relating to terms and conditions of service--- Service Tribunal, jurisdiction of--- Scope---Civil Aviation Authority (CAA) had no statutory rules, thus its employees did not have a remedy before Service Tribunal regarding all grievances relating to their terms and conditions of service---Petition for leave to appeal was dismissed by the Supreme Court accordingly.

Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523 rel.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 13th March, 2012.

2013 P L C (C.S.) 1043

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sarmad Jalal Osmany, JJ

CHAIRMAN/SECRETARY, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD

Versus

AFTAB MEHDI

Civil Petition No.785 of 2011, decided on 19th June, 2012.

(On appeal from the judgment of the Federal Service Tribunal, Karachi Bench, Karachi, dated 27-2-2011 passed in Appeal No.60(K)CS of 2008).

Civil service---

----Imposition of major penalty of removal from service notwithstanding report of inquiry committee---Propriety---Only "slight lapse" in performance of duty by civil servant---Major penalty modified to minor penalty---Railway Department (petitioner) initiated disciplinary action against Divisional Engineer (respondent) after collapse of a railway bridge---Allegation against Engineer was that he did not take appropriate timely action to protect the bridge and safeguard railway traffic---Four charges were levelled against the Engineer, out of which inquiry committee found only one i.e. abnormal delay in processing proposal for repairs of the bridge---Inquiry committee took note of the fact that engineer made correspondence with the Headquarters regarding poor condition of the bridge and necessity of its repair---Inquiry Committee only blamed the Engineer for not submitting an "urgency certificate" to the Headquarters to indicate urgency for carrying out repair works---Notwithstanding findings of the inquiry committee, competent authority imposed major penalty of removal from service on the engineer---Appeal filed by engineer before Service Tribunal was partially allowed, he was reinstated in service and penalty imposed on him was modified to stoppage of one increment for one year---Validity---Engineer did submit proposals to Headquarters for carrying out repairs of the bridge and it was the Headquarters which was, to a great extent, responsible for delay in approving the proposal because of making unnecessary queries---Reports further showed that Engineer did make temporary repairs of the bridge, which remained safe for trains operations during his positing for 12 months and even 17 months after he was transferred out---Only charge found proved by the inquiry committee was Engineer's failure to submit "urgency certificate" to the Headquarters while making proposal for repair of the bridge---Imposition of major penalty on Engineer for such a "slight lapse" was not understandable---Service Tribunal was justified in modifying the penalty imposed to stoppage of one increment---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Syed Anwar Shah, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 19th June, 2012.

2013 P L C (C.S.) 1059

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

Mian GHULAM SARWAR SAMIJA

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, MULTAN

Civil Petition No.1787 of 2009, decided on 1st June, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 2-7-2009 passed in Appeal No.780(R)CS of 2006).

Civil service---

----Concurrent departmental and criminal proceedings---Statement made by complainant during criminal proceedings relied upon in departmental proceedings---Legality---Civil servant, who was serving as an inquiry clerk in Pakistan Railways, allegedly received illegal gratification---Concurrent departmental and criminal proceedings were initiated against civil servant on the statement made by the complainant before the police---Complainant subsequently resiled from his statement and civil servant was acquitted of the criminal charge, however departmental proceedings resulted in civil servant's dismissal from service---On directions of the Supreme Court another inquiry was conducted, however civil servant was once again found guilty, but this time he was awarded punishment of reduction in time scale by five steps for three years---Appeal filed by civil servant before Service Tribunal failed---Civil servant contended that complainant had exonerated him during the criminal and departmental proceedings; that departmental inquiry officer could not rely upon earlier statement of complainant made to the police as such statement was outside the scope of the departmental inquiry---Validity---During departmental inquiry proceedings complainant completely exonerated civil servant of any culpability, rather he stated that both parties had friendly relations---Complainant was the star witness of the case but he did not support the allegations made against civil servant in the statement of allegations---Nothing else existed on record to substantiate the allegations---Statement made by complainant to the police during investigation of the criminal case was not part of the record of departmental proceedings---Even otherwise, such statement of complainant could not be accepted as evidence since it was not subjected to cross-examination---Petition for leave to appeal was converted into appeal by the Supreme Court and allowed, impugned judgment of Service Tribunal and order of departmental authority, whereby it imposed penalty on civil servant, were set aside---Charge against civil servant stood dismissed.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court for Petitioner.

Abbas Mirza, Advocate Supreme Court for Respondent.

Date of hearing: 1st June, 2011.

2013 P L C (C.S.) 1069

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

GENERAL MANAGER/PERSONNEL, PAKISTAN RAILWAYS H.QS., LAHORE and others

Versus

Sheikh MURTAZA

Civil Petition No.236 of 2011, decided on 19th December, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi Bench, dated 10-11-2010, passed in Appeal No.418(K)CS of 2003).

Civil service---

----Civil servant repatriated to West Pakistan from East Pakistan---Absorption of civil servant in relevant/concerned Corporation---Claim of continuity in service and back benefits after repatriation---Civil servant (respondent) was repatriated to West Pakistan from East Pakistan and sought his absorption in Pakistan Railways (petitioner)---Pakistan Railways claimed that his appointment would be treated as fresh appointment and he would not be entitled to claim continuity in service and was thus not entitled to back benefits---Civil servant ultimately accepted his service in Pakistan Railways under objection after a long delay---Ministry of Finance found civil servant entitled to all the salary and financial benefits which would have accrued to him, had he continued in East Pakistan during the period after 16-12-1971 till his superannuation---Pakistan Railways rejected order of Ministry of Finance and concluded that civil servant could not claim continuity in service and back benefits---Service Tribunal allowed appeal filed by civil servant and found him entitled to continuity in service and monetary benefits by way of salary and allowance from 16-12-1971 till his date of superannuation---Validity---Civil servant was made to run from pillar to post for a period of about 15 years before being allowed to join service in Pakistan Railways---Civil servant suffered for a long period due to mala fide and discourteous conduct of Pakistan Railways---No question of public importance was involved in the present petition which might justify exercise of jurisdiction by the Supreme Court for granting leave---Petition for leave to appeal was dismissed in circumstances and leave was refused with the observation that claim of civil servant was to be settled and all his legal dues were to be paid by Pakistan Railways within 30 days.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 19th December, 2011.

2013 P L C (C.S.) 1076

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD MOHSIN GHUMAN and 6 others

Versus

GOVERNMENT OF PUNJAB through Home Secretary, Lahore and others

Civil Appeals Nos. 972 to 978 of 2011, decided on 24th September, 2012.

(On appeal from the judgment dated 28-9-2011 passed by Lahore High Court, Lahore in W.Ps. Nos.20009, 12221, 19867, 20127, 21080, 22036 and 20985 of 2011).

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

----R. 3(v)---Police Order (22 of 2002), Art.7(3)--- Police service---Non-applicability of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 to advertised post of police service---Special law on a subject prevailing over general law on the same subject---Scope---Posts of Assistant Sub-Inspectors (ASIs) were advertised and one of the conditions laid down therein related to age limit of candidates i.e. between 18 and 25 years of age---Appellants, who were serving police officers, contended that they fulfilled all the conditions for the advertised posts except for the condition of upper age limit of 25 years; that according to R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, period of their continuous Government service was to be excluded from the upper age limit prescribed for the advertised posts; that R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, began with the non obstante clause "Notwithstanding anything to the contrary contained in any rules applicable to any post or service" , therefore, said Rules also applied to police officers---High Court dismissed constitutional petition filed by the appellants on the grounds that in the presence of special law i.e. Police Order, 2002 and the Rules framed thereunder, general law i.e. Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 would not apply, therefore, appellants were not entitled to receive benefit of the said Rules---Validity---Recruitment to various posts in the police service was to be made under the special law i.e. Police Order, 2002---Article 7 of Police Order, 2002 related to the recruitment of various ranks, including Assistant Sub-Inspector---Non-obstante clause in R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, which read "Notwithstanding anything to the contrary contained in any rules applicable to any post or service", referred to the Rules which were applicable to the post or service in question---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 applied to Punjab Civil Servants Act, 1974 and not to the special law, i.e. Police Order 2002 and the Rules framed thereunder---Contention of the appellants that general law would override special law in terms of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (non-obstante clause), was not only against the legislative intent in the said provision but also against the declared law---Appeals were dismissed accordingly.

I.G.P. v. Mushtaq Ahmad Warriach PLD 1985 SC 159; Ahmed Ali v. D.I.-G. of Police Lahore 2004 PLC (C.S.) 730; Ehsan Ullah v. Inspector-General of Police 2006 PLC (C.S.) 964; Ghulam Mustafa v. Punjab Public Service Commission Lahore 2008 PLC (C.S.) 1117 and 'Understanding Statutes' by S.M. Zafar (page 840) ref.

Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. PLD 1979 Lah. 603 and Sh. Azhar Salam and Haji Muhammad Saifullah v. Federation of Pakistan PLD 1988 Lah. 725 distinguished.

Montreal Corporation v. Montreal Industrial Land Company AIR 1932 PC 252; Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue) Multan PLD 1968 Lah. 344 and R.S. Raghunath v. State of Karnatak AIR 1992 SC 81 rel.

(b) Civil service---

----Department head, notification of---Derogation of relevant values and law---Effect---Such notification could not override mandate of legislative intent.

(c) Interpretation of statute---

----"Non obstante clause", interpretation of---"Non obstante" clause had to read in the context of what the legislature intended in the enacting part of the provision.

Interpretation of Statutes by NS Bindra ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in all).

Jawad Hasan, Additional A.-G. Punjab for Respondents.

Date of hearing: 24th September, 2012.

2013 P L C (C.S.) 1087

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

GHULAM SHABBIR

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and others

Civil Petition No.2432 of 2010, decided on 14th November, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Karachi, dated 9-9-2010 passed in Appeal No.117(K)CS of 2005).

Service Tribunal Act (LXX of 1973)---

----S. 4(1)---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 10 (since repealed)---Limitation for filing appeal before Service Tribunal where rejection of Departmental appeal was not communicated to the petitioner (civil servant)---Scope---Civil servant was awarded major penalty of compulsory retirement under the Removal from Service (Special Powers) Ordinance, 2000---Departmental appeal of civil servant was rejected---Appeal filed before Service Tribunal was dismissed as barred by time---Contention of civil servant was that he could not file his appeal before Service Tribunal in time since it was not communicated to him that his Departmental appeal had been rejected---Validity---After lapse of 90 days from filing of Departmental appeal, civil servant had 30 days to file service appeal before the Service Tribunal whether or not his Departmental appeal was rejected---Appeal filed by civil servant before Service Tribunal was clearly barred by time---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Nasir Ahmed Bhutta, Advocate Supreme Court for Petitioner.

Rai M. Nawaz Kharral, Advocate Supreme Court for Respondents.

Date of hearing: 14th November, 2011.

2013 P L C (C.S.) 1095

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

FEDERATION OF PAKISTAN through Secretary Law, Justice and Parliamentary Affairs

Versus

MUHAMMAD AZAM CHATTHA

Civil Petition No.1334 of 2012, decided on 24th September, 2012.

(On appeal from the judgment dated 16-5-2012 passed by the Islamabad High Court, Islamabad in I.C.A. No.116 of 2012).

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

----S. 4(b)---Sacked Employees (Reinstatement) Ordinance (XXIII of 2009), S. 6(2)---Banking Tribunals Ordinance (LVIII of 1984), Ss.4(1) & 4(3)---Constitution of Pakistan, Art. 185(3)---Contract employee---Removal from service before expiry of employment period---Reinstatement and regularization of such employee via notification under S.4(b) of Sacked Employees (Reinstatement) Act, 2010---Validity---Competent authority withdrawing said notification on account of it being issued inadvertently---Legality---Contract employee (respondent) was appointed as Presiding Officer of Banking Tribunal for a period of three years but his contractual appointment was terminated by the competent authority after about two years, however subsequently he was reinstated in terms of S.6(2) of Sacked Employees (Reinstatement) Ordinance, 2009 for remaining period of one year against supernumerary post of BPS-22---Contract employee was not satisfied with the said notification and challenged the same in writ petition before the High Court, claiming that he was entitled to be re-instated on the original terms and conditions entitling him to a salary, allowances and privileges as that of High Court Judge---High Court directed competent authority to consider the case of contract employee as a consequence of which competent authority via notification under S.4(b) of Sacked Employees (Reinstatement) Act, 2010 reinstated and regularized him in government service with entitlement to pay, allowances and privileges as admissible to a Judge of the High Court---Subsequently competent authority withdrew said notification contending that it had inadvertently issued the same---Intra court appeal filed by competent authority was dismissed---Contentions of competent authority were that contract employee was initially appointed for a period of three years, out of which he discharged his functions for two years and in respect of the left over period of one year, he was reinstated and served the left over period, therefore, notification of his reinstatement and regularization was issued on account of inadvertence---Validity---Contract employee was appointed under S.4 of the Banking Tribunals Ordinance, 1984, therefore, he was not a person who was in the service of State, nor was he a member of the civil service of the Federation or holding a civil post in connection with the affairs of the Federation in a Ministry, Division or Department---Section 4 of the Banking Tribunals Ordinance, 1984 prescribed no terms and conditions of service---Contract employee's status to continue in service was subject to pleasure of the President as was noted in his appointment notification---Reinstatement of employee for a period of one year under S.6(2) of Sacked Employees (Reinstatement) Ordinance, 2009 was illegal, unwarranted and void---Sacked Employees (Reinstatement) Act, 2010 dealt with persons who were in employment of a corporation or in government service but the case of contract employee in question was not covered in either of the two categories, therefore, he was not entitled to be regularized as a Government servant--- Competent authority had rightly withdrawn the notification by which contract employee was reinstated and regularized in terms of S.4(b) of Sacked Employees (Reinstatement) Act, 2010--- Petition for leave to appeal was converted into appeal and allowed accordingly with a direction to the competent authority to probe into the matter as to who was responsible for negligence and/or corrupt practices and proceed against those found responsible.

Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal PLD 1996 Lah. 672; Halsbury's Laws of England (3rd Ed.) Vol. 11, P.244, Para 414; Federation of Pakistan v. Ali Ahmed Qureshi 2001 SCMR 1733; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Messrs Malik and Haq v. Muhammad Shamsul Islam Chowdhury PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative Bank Limited PLD 1966 SC 445; Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, WAPDA 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Syed Akbar Ali Bokhari v. State Bank of Pakistan PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275; Brig. (R.) Sakhi Marjan v. Managing Director PEPCO 2009 SCMR 708 and S.S. Shetty v. Bharat Nidhi, Ltd. AIR 1958 SC 12 ref.

(b) Civil service---

----Contract employee---Dismissal from employment before expiry of period of service---Remedy---Scope---Contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.

(c) Civil service---

----Government service, proof of---Pre-requisites---Where a person claimed that he was a person in government service, he had to establish that he held a post or office in connection with the affairs of the Federation or of a Province and included an All-Pakistan Service.

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

Dil Muhammad Alizai, D.A.-G. and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Muhammad Azam Chattha for Respondent.

Date of hearing: 24th September, 2012.

2013 P L C (C.S.) 1115

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Tariq Parvez and Amir Hani Muslim, JJ

S.M.C. NO.15 OF 2010 AND C.M.As. NOS. 2689, 3244 OF 2010 AND C.M.As. NOS.5383, 3068 OF 2011

(Suo Motu action regarding regularization of the contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council): In re

H.R.C. NO.44517-K OF 2010

(Application by Muhammad Ashraf regarding regularization of the contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council): In re

H.R.C. NO.13938-P OF 2010

(Application by Muhammad Nawaz Sial): In re

H.R.C. NO.22070-P of 2011

(Application by Muhammad Afzal Bajwa): In re

CONSTITUTIONAL PETITION NO.74 OF 2011

MUZAFFAR KHAN and others

Versus

GOVERNMENT OF PAKISTAN and others

S.M.C. No.15 of 2010, C.M.As. Nos.2689, 3244 of 2010, 5383, 3068 of 2011, H.R.C. No.44517-K of 2010, H.R.C. No.13938-P of 2010, H.R.C. No.22070-P of 2011 and Constitutional Petition No.74 of 2011, decided on 21st November, 2012.

(a) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 8(c)(iii), 12(1) & 16(3)(a)---Khyber Pakhtunkhwa Zakat and Ushr Act (XVII of 2011), S. 8(c)(ii)---Sindh Zakat and Ushr Act (X of 2011), S. 8(c)(ii)---Balochistan Zakat and Ushr Ordinance (I of 2011), S.8(c)(ii)---Constitution of Pakistan, Art. 184(3)---Matter regarding regularization of contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council---Contract employees---Regular appointment, right of---Scope---Petitioners were employed on contractual basis for fixed terms by their respective District Zakat Committees and were paid emoluments out of the Zakat Fund set up under the Zakat and Ushr Ordinance, 1980---Petitioners sought regularization of their services at par with other regular employees of Zakat and Ushr Department---Contentions of petitioners were that they had been serving the Zakat and Ushr Department for periods ranging from 10 to 17 years; that they were not employees of a project mandated to be wound up upon its completion but were employed in a permanent department of the Government, and that they were performing functions similar to those of regular employees---Validity---Petitioners were employed/recruited on contract basis by the Chairman of the District Zakat Committees on fixed salaries for specific terms, which were extended from time to time---Petitioners were not appointed against any particular post and their appointment was not made by any government official or authority---Appointment of petitioners was not under a particular law but under a policy decision taken by the Central Zakat Committee---Nature of petitioners' employment was for a specific purpose/task and on such score they had no vested right for regular appointment---After the 18th Amendment in the Constitution subject of Zakat and Ushr was devolved to the provinces, however system of collection and disbursement of Zakat remained unchanged notwithstanding such devolution---Before devolution of subject of Zakat and Ushr to Provinces, petitioners were paid their salaries from the Zakat Fund under S.8(c)(iii) of Zakat and Ushr Ordinance, 1980, and even after devolution of the subject to the Provinces, provisions similar to said section were incorporated in enactments made by the Provinces, i.e., Khyber Pakhtunkhwa Zakat and Ushr Act, 2011, Sindh Zakat and Ushr Act, 2011 and Balochistan Zakat and Ushr Act, 2012---Status of petitioners thus remained unchanged even after devolution of the subject of Zakat and Ushr to the Provinces---Petition was dismissed accordingly.

Hadi Bux v. Government of Sindh PLD 1994 SC 532; Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141; Abdul Majid Sheikh v. Mushaffe Ahmed PLD 1965 SC 208; Managing Director, S.S.G. v. Saleem Mustafa PLD 2001 SC 176 and Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 ref.

Government of Balochistan v. Zahida Kakar 2005 SCMR 642 rel.

(b) Civil service---

----Contract employees---Regular appointment, right of---Scope---Contract employees did not have a vested right for regular appointment.

Government of Balochistan v. Zahida Kakar 2005 SCMR 642 rel.

(c) Constitution of Pakistan---

----Arts. 25, 27 & Part IV, Ch. 3 [Arts.129 - 140A]--- Province, decision of--- Discrimination--- Scope--- Decision by one Province regarding any matter could not be cited as a ground for discrimination, if another Province did not make the same decision, since holding otherwise would be an intrusion into the economy of the Provinces.

Habibullah Shakir, Additional AGP, M. Shafiq, Account Officer, M/o Religious Affairs for Federation of Pakistan.

Jawad Hassan, Additional A.-G., Punjab, M. Yousaf Butt, Administrator Zakat, Punjab and Taimoor Yousaf, LO (Zakat) for Province of Punjab.

Syed Arshad Hussain Shah, Additional Advocate-General, Khyber Pakhtunkhwa and Syed Maqbool Hussain Shah, DS, Zakat for the Province of Khyber Pakhtunkhwa.

Qasim Mirjat, Additional A.-G. and Hanif M. Merchiwala, Additional Secretary, (Zakat) for the Province of Sindh.

M. Azam Khattak, Additional A.G. and Syed Abdul Manan, Secretary, Zakat for the Province of Balochistan.

Tariq Mehmood, Senior Advocate Supreme Court and Muhammad Nawaz, in person for the Employees.

Amjad Ali, Advocate Supreme Court (in Constitutional Petition No.74 of 2011).

Mushtaq Ahmed Mohal, Advocate Supreme Court (in C.M.A. No.3068 of 2011).

Nasir Ahmed Bhutta, Advocate Supreme Court (in C.M.A. No.2742 of 2010).

Applicant in person (in H.R.C. No.44517-K of 2010).

Abdul Rahim Bhatti, Advocate Supreme Court and M. Afzal Bajwa, Amicus Curiae (in C.M.A. No.5383 of 2011).

Date of hearing: 21st November, 2012.

2013 P L C (C.S.) 1136

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Tariq Parvez, JJ

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

Versus

SIDDIQ AKBAR

Civil Appeal No.1186 of 2012, decided on 30th January, 2013.

(On appeal from the judgment/order dated 12-9-2012 passed by Lahore High Court, Lahore in W.P. No.7249 of 2012).

(a) Civil service---

----Dismissal from service---Rights of employee on reinstatement in service---Employee reinstated in service after exoneration of the charge--- Right/entitlement of such employee to continuation of service, increment in salary and pro forma promotion for the period he remains suspended or dismissed---Scope---Employee (respondent), in the present case, was charge-sheeted for misappropriation and embezzlement on basis of which he was dismissed from service---Fresh inquiry committee was constituted on the directions of the Supreme Court, which committee exonerated employee of the charges---Competent authority treated period during which employee remained dismissed as extraordinary leave without pay and he was denied salary for such period on the ground that he physically remained out of service---Competent authority also denied the employee increment of two years during which he remained dismissed from service and also did not consider him for promotion with retrospective effect as he was dismissed from service and his Annual Confidential Reports for such period were not available---High Court allowed constitutional petition filed by employee and ordered that period for which he remained dismissed was to be considered as period spent on duty; that annual increment for the two years during which he remained dismissed were to be granted to him, and that he should also be considered for pro forma promotion with effect from the date when his batchmates were promoted---Validity---Once an employee was reinstated in service after exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed could not be attributed as a fault on his part---Absence of employee, in the present case, during period of his suspension and subsequent dismissal was not voluntary on his part but it was due to the order of the employer-Corporation (appellant), which restrained him from attending his job/duty---Exoneration of the charge meant that employee stood restored in service, as if he was never out of service of the employer-Corporation---Period during which employee remained dismissed, therefore, was to be considered as period he "remained in service"---Since absence/non-attendance of employee at work was not voluntary on his part and it was due to the steps taken by the employer-Corporation, therefore, his service record could neither be adversely affected nor could he be denied any benefit to which he would have been entitled had he not been suspended or dismissed---Appeal was dismissed accordingly.

(b) Limitation---

----Bar of limitation---Principles---Limitation was a bar against a party in pursuing its cause and not a bar regarding assumption of jurisdiction by a court because the court for justified reasons could condone the time limitation.

Ali Muhammad v. Muhammad Shafi PLD 1996 SC 292 and Chairman, State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 ref.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Respondent.

Date of hearing: 30th January, 2013.

2013 P L C (C.S.) 1163

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

SUO MOTU CASE NO.12 OF 2011: In the matter of

(Suo Motu Action taken upon the application of Memona Parveen regarding enhancement of salary/stipend of Industrial Home Teachers, which is Rs.500 per month).

Suo Motu Case No.12 of 2011, decided on 10th January, 2013.

Constitution of Pakistan---

----Arts. 3, 9 & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding salary/stipend of Industrial Home Teachers--- Statutory minimum wage--- Scope--- Teachers imparting vocational training to students in Industrial Homes provided monthly stipend/salary of Rs.500 by the Provincial Government, which was less than the statutory minimum wage paid to an unskilled labourer/worker---Supreme Court observed that exploitation was strictly prohibited under Art.3 of the Constitution; that in the present case Arts.3 & 9 of the Constitution were not being complied with as it appeared that Provincial Government was releasing about Rs.500 per month for each teacher to Non-Governmental Organizations (NGOs), who allegedly after adding some more amount to the same, made payment of salaries to the teachers in question; that under the statutory provision even an unskilled labourer was paid a minimum wage of Rs.8,000 per month, thus teachers in question, who were trained and were deputed to teach students, deserved more than the statutory minimum wage, and that monthly stipend/salary of teachers in question was fixed in the year 1991 and thereafter no steps were taken to revise the scale of payment---Supreme Court directed the concerned Provincial Secretary to appear in Court and explain as to why from the year 1991 onwards the amount of Rs.500 had not been increased to a reasonable extent, despite the fact that recommendations to do the same had already been made, and to assist the Court in the matter of registration of Non-Governmental Organizations (NGOs) and the financial assistance, if any, which was being extended to them by the Provincial Government.

Jawwad Hassan, Additional A.-G., Muhammad Shafiq Awan, District Officer, Social Welfare, Rawalpindi on Court's Notice.

Date of hearing: 10th January, 2013.

2013 P L C (C.S.) 1171

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

Ch. MUHAMMAD MASAUD AKHTAR KHAN

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE

Civil Petition No.979-L of 2011, decided on 18th February, 2013.

(On appeal against the judgment dated 18-3-2011 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in S.A. No.18 of 2004).

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5(b)---Constitution of Pakistan, Art. 185(3)---Personal misconduct committed by a Judge---Scope---Benefit of promotion and consequential financial relief refused to Judge due to his unsatisfactory service record---Inquiry Committee found that District and Sessions Judge ("Judge") (petitioner) was guilty of obtaining an ex parte decree regarding disputed property against all legal norms and when such decree was set aside by the High Court, he remained in possession of the property, and that he did not disclose such property in any of his declaration of assets---Inquiry Committee recommended imposition of major penalty of compulsory retirement---High Court agreed with findings of inquiry committee---Request of Judge for retirement from service was thus accepted and he was retired from service and disciplinary proceedings against him were dropped---Subsequently a notification was issued through which 21 District and Sessions Judges were granted Selection Grade (BS-21) whereas Judge in question was ignored despite being senior most of them---Representation filed by Judge before High Court was rejected and his appeal before Service Tribunal was also dismissed on the grounds that he could not be given benefit of the notification due to his unsatisfactory service record, and even otherwise in view of S.5(b) of Punjab Subordinate Judiciary Service Tribunal Act no appeal was allowed before the Tribunal against a decision of departmental authority determining the fitness of a person for promotion---Validity---Judge in question was the most senior Judge of the District and he malafidely and without giving a thought to his status retained possession of disputed property even after ex parte decree obtained by him was set aside by the High Court and his suit was dismissed upon remand---Judge retained possession of disputed land and made no effort either to settle the matter with the owner of property or conversely have the mutation based upon such ex parte decree cancelled---Such conduct could not be expected of a judicial officer who himself was responsible for adjudicating the rights of others---High Court was correct in not allowing benefit of the notification to the Judge, who could not be allowed promotion and consequent financial relief benefit when his conduct was not above board---Petition for leave to appeal was dismissed by the Supreme Court with the observation that if in the process of seeking justice a Judge himself became embroiled in dilatory tactics and retained possession of land unlawfully, then such conduct had to be deprecated.

Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad PLD 1997 SCMR 141; Federation of Pakistan and others v. Public at Large and others PLD 1988 SC 202; Fazali Rehmani v. Chief Minister, N.-W.F.P. Peshawar and others PLD 2008 SC 769; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and 4 others 1999 SCMR 1605; Muhammad Rahim Khan v. The Chief Secretary N.-W.F.P. and others PLD 2004 SC 65 and Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118 ref.

A.K. Dogar, Senior Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Khadim Hussain Qaiser, Additional A.-G. Punjab and Akram Dy. Reg. (Confidential) L.H.C. for Respondent.

Date of hearing: 18th February, 2013.

2013 PLC (C.S.) 1191

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Khilji Arif Hussain and Ejaz Afzal Khan, JJ

REGARDING PUTTING OF TWO GOVERNMENT OFFICERS NAMELY HASAN WASEEM AFZAL AND HIS WIFE FARKHANDA WASEEM AFZAL AS OSD: In the matter of

C.M.A. No. 4918 of 2012 and C.M.A. No.8 of 2013 in Constitutional Petition No.23 of 2012, decided on 26th April, 2013.

Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution---Civil service---Promotion---Posting of civil servants, with outstanding past records, as Officers-on-Special Duty (OSD) without any explanation---Propriety---Political victimization---Violation of directions given by the Supreme Court in the case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195)---Two senior civil servants in question, who were officers in BS-21, were made Officers-on-Special Duty (OSDs) since the years 2008 and 2011 respectively and were not given any postings---Cases of said two civil servants were forwarded for promotion but were deferred on the sole ground that they could not earn any Performance Evaluation Reports (PERs) because of their being posted as Officers-on-Special Duty (OSDs), which was not an act of their own doing---Civil servants in question could not earn any Performance Evaluation Reports (PERs) one way or the other because of their posting as Officers-on-Special Duty (OSDs), but this could not be construed to their detriment under any canons of law and propriety---No reason had been given by the concerned department and officials for such treatment---Record also did not show anything which could call for such treatment---Had the past performance or integrity of civil servants in question been below the mark, they could have been treated as such but there was nothing of that sort---"Let them suffer" might be a command of expediency but it could not be approved when, "give them their due" was a command of justice, which prima facie appeared to have been denied to the civil servants out of indignation and ill-will of the high ups---Past record of civil servants had been outstanding throughout---Civil servants had initiated a contest in the High Court (for redressal of their grievance), but called it off when the concerned department assured the High Court that they would be considered for promotion, however nothing in black and white was done towards what was assured---One of the civil servants was due to retire in a day or so while the other one was going to retire in a year in grade 21---Present case appeared to be a typical case of political victimization, where even a moment's delay could cause irreparable harm and immeasurable loss to the officers whose merit lacked intercessional props and pillars---Supreme Court directed Secretary of concerned department to convene a meeting for passing an appropriate order after considering the civil servants in question for promotion to the next higher scale but before sunset.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 ref.

Applicants in person.

Dil M. Khan Alizai, D.A.-G., Malik Sher Afzal, Joint Secretary, Abdul Latif, Dy. Secy. Sarfraz Durrani, Dy. Secy. and Shahbaz Kirmani, SO (Legal), Establishment Division for Respondent.

Date of hearing: 26th April, 2013.

2013 P L C (C.S.) 1223

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

ZARAI TARAQIATI BANK LIMITED and others

Versus

SAID REHMAN and others

Civil Appeals Nos.269 to 275, 1047, 1048 of 2011 and Civil Petition No.657 of 2012, decided on 15th February, 2013.

(On appeal from the consolidated judgment of the Peshawar High Court dated 28-10-2010 passed in W.Ps. Nos.327, 328, 525 of 2008 and 2745 of 2010 and consolidated judgment dated 29-6-2011 passed in W.P. No.569 of 2011 and W.P. No.3975 of 2010 and order dated 28-2-2012 passed in W.P. No.184 of 2010).

(a) Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 6---Zarai Taraqiati Bank Limited Staff Regulations, 2005---Agricultural Development Bank (Staff Service) Regulations, 1961---Promotion Policy, 1999---Constitution of Pakistan, Art. 199---Legislation by reference---Scope---Bank employee---Promotion of employees in service of Agricultural Development Bank of Pakistan ("Bank") prior to the promulgation of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002---Promotion Committee of Bank not recommending promotion of such employees on the basis that they failed to meet the threshold required for promotion under the applicable Zarai Taraqiati Bank Limited Staff Regulations, 2005, and that their promotion was not governed by the Agricultural Development Bank (Staff Service) Regulations, 1961 or by Promotion Policy, 1999---Employees challenged recommendations of Promotion Committee by filing constitutional petition before High Court claiming that their promotion was governed by Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999 and not by the Regulations of 2005---Maintainability---Contention of Bank was that even if employees in question were governed by Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, the same were non-statutory, therefore, constitutional petition would not be maintainable---Validity---Section 6 of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002 provided two fold security to employees who were in service of the Bank prior to the promulgation of the said Ordinance: Firstly the employees of the Bank, prior to promulgation of said Ordinance, stood transferred and became employees of the Company, and secondly they were made subject to the same rules and regulations as were applicable to them before the promulgation of the said Ordinance---On account of S.6 of the said Ordinance, the previous Regulations relating to promotion of employees in question, i.e. Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, which were non-statutory, stood incorporated by way of legislative reference and thereby acquired a statutory status under the new dispensation and the employees acquired a legal right for their enforcement---Constitutional petition before High Court, filed against recommendations of Promotion Committee, would be maintainable in such circumstances---Appeal filed by Bank was dismissed accordingly.

Masood Ahmed Bhatti v. Federation of Pakistan 2012 SCMR 152; Muhammad Tariq Badr and others v. National Bank of Pakistan Civil Appeals Nos.1416, 1417 of 2009 and Civil Petition No.176-Q of 2009 and Muhammad Amin v. President Zarai Taraqiati Bank Ltd. 2010 PLC (C.S.) 710 rel.

Principal, Cadet College, Kohat v. Muhammad Shoab PLD 1984 SC 170; Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education 2004 SCMR 35 and Asad Bashir v. Chairman Board of Intermediate and Secondary Education, Lahore and others 2006 PLC (C.S.) 110 distinguished.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Anwar Hussain v. Agricultural Development Bank of Pakistan 1992 SCMR 1112; Masood Ahmad Bhatti v. Federation of Pakistan 2012 SCMR 152; Muhammad Amin v. President Zarai Taraqiati Bank Ltd. 2010 PLC (C.S.) 710; Executive Council Allama Iqbal Open University v. Muhammad Tufail Hashmi 2010 SCMR 1484 and Wood's Estate's case [1886] 31 Ch D 607 ref.

(b) Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 6---Zarai Taraqiati Bank Limited Staff Regulations, 2005, Para. 14(h)---Agricultural Development Bank (Staff Service) Regulations, 1961---Promotion Policy, 1999---Promotion of employees in service of Agricultural Development Bank of Pakistan ("Bank") prior to the promulgation of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002---Promotion Committee of Bank not recommending promotion of such employees on the basis that they failed to meet the threshold required for promotion under the Zarai Taraqiati Bank Limited Staff Regulations, 2005---Employees challenged recommendations of Promotion Committee by filing constitutional petition before High Court claiming that their promotion was not governed by the Regulations of 2005 but by the Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999---High Court allowed the constitutional petition holding that promotion of employees was not governed by the procedure provided in the Regulations of 2005 and directed the Bank to send cases of employees to the Promotion Committee for consideration afresh in accordance with the same rules and regulations which were applicable to them prior to the promulgation of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002---Bank contended that Zarai Taraqiati Bank Limited Staff Regulations, 2005 were voluntarily and consciously adopted by the employees who took all the monetary benefits under it, and after sitting/participating in the competitive process for promotion as contemplated by Paragraph 14(h) of the Regulations of 2005 and after failing to meet the threshold required for promotion, the employees were estopped by their own conduct from turning around and claiming promotion on the basis of the previously applicable Agricultural Development Bank (Staff Service) Regulations, 1961 or Promotion Policy, 1999---Validity---By virtue of S.6 of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002, employees in question acquired a statutory right to be considered for promotion in accordance with the same rules and regulations which were applicable to them before the promulgation of said Ordinance---Employees in question, therefore, were to be considered for promotion in terms of Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, which admittedly was not done by the Promotion Committee in the present case---Contention of Bank that employees in question having derived all monetary benefits under Zarai Taraqiati Bank Limited Staff Regulations, 2005 were estopped from claiming promotion under previously applicable rules and regulations, was not tenable, Firstly because there was no estoppel against law; secondly, no document had been placed on record to indicate that the option (of monetary benefits) was exercised voluntary and even if it was, it would not prevent employees from seeking enforcement of the procedure laid down in Regulations for promotions which were in vogue prior to the promulgation of Ordinance of 2002; thirdly, employees challenged the entire impugned process at the earliest before formal orders could take effect, and fourthly the monetary benefits received by the employees could be adjusted by the Bank if so advised---Appeal filed by Bank was dismissed accordingly.

Rajya v. Gopikabai AIR 1979 SC 79 ref.

(c) Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002)---

----S. 6--- Legislation by reference--- Scope--- Section 6 of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002 was an instance of legislation by reference.

(d) Legislation---

----Legislation by reference---Scope---Legislation by referential incorporation fell into two categories; first, where a statute by specific reference incorporated the provisions of another statute as of the time of adoption; second, where a statute incorporated by general reference the law concerning a particular subject as a genus---In the case of former category, the subsequent amendment made in the referred statute could not automatically be read into the adoption statute---In the case of latter category, it might be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the general law on the subject adopted by general reference.

Wood's Estate case [1886] 31 Ch D 607 ref.

Rajya v. Gopikabai AIR 1979 SC 79 rel.

(e) Interpretation of statutes---

----Legislation by reference---Scope---Statute which referred to law of a subject generally adopted the law on the subject as of the time the law was invoked; and this would include all the amendments and modifications of the law subsequent to the time the reference/statute was enacted.

Rajya v. Gopikabai AIR 1979 SC 79 ref.

(f) Delegated legislation---

----Rules and regulations framed under an Act by statutory bodies---Scope---Rules and regulations framed under any Act were meant to regulate and limit the statutory authority---All statutory authorities or bodies derived their powers from statutes which created them and from the rules or regulations framed thereunder---Any order passed or action taken which was in derogation or in excess of the powers of statutory authority or body, could be assailed as ultra vires---Statutory bodies were invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fell within their lawful domain to carry out the purposes of the Act.

(g) Delegated legislation---

----Reasons justifying need for delegated legislation---Firstly, there is pressure on parliamentary time; secondly, the technicality of subject matter necessitates prior consultation and expert advice on interests concerned, and thirdly, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate.

Sukhdev Singh and others v. Bhegat Ram and others AIR 1975 SC 1331 ref.

(h) Delegated legislation---

----Statutory rules or regulations---Salient characteristics.

Following are the salient characteristics of statutory rules or regulations:--

(i) Rules or Regulations are framed by statutory or public body;

(ii) they are framed under the authority or powers conferred in the statute; and

(iii) they have statutory Governmental approval or statutory sanction.

(i) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court--- Scope---Employee of statutory/public authority governed by statutory rules---Statutory authority passing order relating to the employee in violation of statutory rules---Interference by High Court in its constitutional jurisdiction---Scope---Statutory rules created certain rights for employees and imposed obligations on the statutory authorities---Statutory authorities and functionaries could not deviate or act in derogation to such rules or regulations---Any order passed or action taken by a public authority which was in conflict with such statutory rules could be challenged under Art. 199 of the Constitution.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court, Mian Muhammad Hanif, Advocate Supreme Court, Muhammad Munir Peracha, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Hamid Ahmed, Advocate and Rashid Sultan, Advocate for Appellants (in all cases).

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents (in C.As. Nos. 269 to 275 of 2011).

Shakeel Ahmed, Advocate Supreme Court for Respondents (in C.P. No.657 of 2012).

Dates of hearing: 5th, 6th, 7th, 13th, 19th, 21st and 22nd November, 2012

2013 P L C (C.S.) 1281

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

AHMED KHAN DEHPAL

Versus

GOVERNMENT OF BALOCHISTAN and others

C.P. No.14-Q of 2013, decided on 23rd January, 2013.

(On appeal against the judgment dated 24-12-2012 passed by the Balochistan Service Tribunal, Quetta in S.A. No.93 of 2012).

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

----R. 12A---Constitution of Pakistan, Art.212(3)---Alteration in date of birth recorded at the time of joining service---Scope---Date of birth of civil servant (petitioner) was recorded as 2-2-1953 in his secondary school certificate and the Service Book---After many years in service civil servant claimed that his actual date of birth was 2-2-1958, and consequently instituted a suit for correction of his date of birth, which suit was decreed in his favour---Civil servant approached his department for correction of his date of birth but to no avail---Departmental representation filed by civil servant failed and appeal filed before the Service Tribunal was also dismissed---Validity---According to R.12A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 date of birth once recorded at the time of joining government service would be final and thereafter no alteration in the date would be permissible---In the present case idea to have the date of birth altered appeared to be an afterthought of the civil servant---Question was as to how the civil servant, who joined the service in 1982, could not know about his actual date of birth despite the passage of more than two decades, especially when at various stages during his studies as well as service he filled many examination forms, pro formas as well as service book---Petition for leave to appeal was dismissed in circumstances.

Muhammad Sharif v. Chief Secretary and another 2011 PLC (C.S.) 35 distinguished.

Khalil Ahmad Siddiqui v. Pakistan through Secretary Interior, Interior Division, Government of Pakistan and 5 others 2003 PLC (C.S.) 696 and Khalil Ahmed Siddiqui v. Pakistan through Secretary Interior, Islamabad and 5 others 2004 PLC (C.S.) 1044 ref.

M. Hadi Shakil Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd January, 2013.

2013 P L C (C.S.) 1294

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ

MIR AJAB KHAN and another

Versus

DEPUTY POSTMASTER-GENERAL, SRP, DERA ISMAIL KHAN and others

Civil Appeals Nos.512 of 2011 and 447 of 2012, decided on 23rd April, 2013.

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

----S. 4(1)---Appeal before Service Tribunal, filing of---Limitation---Departmental authority not communicating its decision to civil servant within 90 days---Effect---Where within the stipulated period of (90 days) decision of departmental authority was not communicated to the civil servant, he had an option to either file appeal (before the Service Tribunal) within the next 30 days without waiting for decision of departmental authority, or he could wait till the date of communication of decision of departmental authority and from said date he could file appeal within the next 30 days.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 and Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111 ref.

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

----S. 19---Appeal before (Punjab) Service Tribunal, filing of---Limitation---Decision on departmental appeal or review petition not received within a period of 60 days---Effect---Where civil servant had availed opportunity of departmental appeal or review and decision of the same was not received by civil servant within 60 days, then on the expiry of such period he could prefer appeal before the (Punjab) Service Tribunal within the next 30 days, notwithstanding, as to whether departmental appeal had been decided or not.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 and Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111 ref.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 10---Appeal before Service Tribunal, filing of---Limitation---Decision on representation or review petition filed before competent authority not received within a period of 60 days---Effect---Where civil servant had availed opportunity of representation or review before competent authority and decision of the same was not received by civil servant within 60 days, then on the expiry of such period he could prefer appeal before the Service Tribunal within the next 30 days, notwithstanding, as to whether representation or review had been decided or not.

(d) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 10---Appeal before Service Tribunal, filing of---Limitation---Representation or review not available under the rules of the competent authority---Civil servant, in such circumstances, would file appeal before the Service Tribunal within 90 days.

(e) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----Ss. 9 &10---Appeal before Service Tribunal, filing of---Limitation---Decision on representation or review petition filed before competent authority not received within a period of 60 days---Effect---Where an appeal had been filed under S.9 of Removal from Service (Special Powers) Ordinance, 2000 within a period of 15 days, the aggrieved (civil servant) should wait for 60 days and on the expiry of such period he would have an option either to approach the Service Tribunal within 30 days or wait till the decision of competent authority and on the communication of the same, he could file appeal within 30 days.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.512 of 2011).

Muhammad Asif, Advocate Supreme Court and S.M. Khattak, Advocate-on-Record for Appellants (in C.A. No. 447 of 2012).

Jawad Hassan, Additional A.-G. Punjab, Raja Maqsood Hussain, Suptd. Excise and Malik Shahzad Hussain, Senior E.T.O. for Respondents (in C.A. No. 447 of 2012).

M.S. Khattak, Advocate-on-Record for Respondents (in C.A. No.512 of 2011).

Date of hearing: 23rd April, 2012.

2013 P L C (C.S.) 1308

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Sh. RIAZ-UL-HAQ and another

Versus

FEDERATION OF PAKISTAN through Ministry of Law and others

Constitutional Petitions Nos.53 of 2007 and 83 of 2012, decided on 25th March, 2013.

(a) Constitution of Pakistan---

----Art. 9---Access to justice, right of---Scope---Right of access to justice was a well-recognized inviolable right enshrined in Art.9 of the Constitution and was equally found in the doctrine of "due process of law"---Such right included the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal.

(b) Constitution of Pakistan---

----Arts. 9 & 175(3)---Access to justice and independent judiciary, right of---Scope---Right of access to justice and independent judiciary was one of the most important rights of the citizens and if there was any threat to the independence of judiciary, it would tantamount to denial of access to justice, which was a fundamental right under Art.9 of the Constitution.

Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Public interest litigation, nature of---Jurisdiction of Supreme Court---Scope---Public interest litigation was inquisitorial in nature and not adversarial---Supreme Court had the jurisdiction to adjudicate upon a case if it fell within the ambit of inquisitorial proceedings.

Wattan Party v. Federation of Pakistan PLD 2011 SC 997; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 and Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.

(d) Words and phrases---

----"Court"---Meaning.

Corpus Juris Secundum Vol 21; Halsbury's Laws of England, 4th Edn. Vol. 10; The Oxford Companion to Law by David M. Walker; Words and Phrases Legally Defined (1969 Edn. Vol 1, p.367); The Major Law Lexicon, 4th Edn. 2010; Black's Law Dictionary and Ballentine's Law Dictionary ref.

(e) Constitution of Pakistan---

----Arts. 175(3), 2A, Preamble & Part.II, Chap. 1 [Arts. 8 to 28]---Independence of judiciary---Scope and significance---Independence of judiciary was a basic principle of the constitutional system of governance---Constitution made it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances and this was a legal obligation assigned to the Judiciary---Judiciary was called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, and to do so, it had to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances, and also had to be strong and independent enough to dispense justice fairly and impartially.

Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869 ref.

(f) Constitution of Pakistan---

----Art. 8---Vires of legislation---Judiciary, duty of---Scope---Judiciary had the duty to examine vires of a legislation at the touchstone of the Constitution.

Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Chenab Cement Products v. Banking Tribunal PLD 1996 Lah. 672 and Kilbourn v. Thompsons 103 US 168; 26 L ED 377 ref.

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

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Appointment of Chairman and Members of Federal and Provincial Service Tribunals---Procedure---Constitutionality---Plea that petitioners had no cause of action to file the present petition as the Chairman and the Members of Service Tribunals were appointed in accordance with law, and that the present matter was not one of great public importance and no Fundamental Rights of the petitioner had been infringed---Validity---Civil servants being citizens of Pakistan had Fundamental Rights including the right of access to justice as envisaged under Art.9 of the Constitution---Enforcement of terms and conditions of service of civil servants depended upon an impartial, independent and unbiased Tribunal---(Civil) services were the backbone of the State as the affairs of the Government were performed by the civil servants, therefore, ultimately, the general public got affected from the functioning of the Service Tribunals; as such, present case involved a question of public importance---Constitutional petition was maintainable accordingly.

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

----S. 3---Punjab Service Tribunals Act (IX of 1974), S.3---Balochistan Service Tribunals Act (V of 1974), S.3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 175, 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals, judicial functions of---Scope---Separation of Service Tribunals from the Executive---Scope---Service Tribunals performed 'judicial functions' in exercise of 'judicial powers' conferred upon them by the Legislature and therefore, enjoyed status of a 'Court' and were required to be separated from the Executive in terms of Art.175(3) of the Constitution---Tribunal did not always function as a 'Court', nor its action was always judicial; however, the determining factor was the nature of the dispute to be resolved by the Tribunal---When the Tribunal had to determine a dispute relating to a right or liability, recognised by the Constitution or law and was under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acted judicially---Whenever judicial power was vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it was a court---Exercise of judicial power was considered to be an essential feature of a court, and it distinguished a court from an administrative tribunal---Under S.5(2) of the Service Tribunals Act, 1973, the Tribunal was deemed to be a civil Court having all the powers which were vested in the civil court---Section 5(1) of Service Tribunals Act, 1973 provided that the Tribunal could set aside, vary or modify the order in an appeal before it, after full and final hearing of the appeal, thus, the Tribunal performed judicial functions---Service Tribunals were not only deemed to be civil court(s) but also exercised judicial powers, therefore, they were included in the term 'Court' mentioned in Art.175 of the Constitution, as such, (Service) Tribunals were to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of courts---Service Tribunals (Federal and Provincial) were bound to follow the principle of independence of judiciary for the purpose of ensuring enforcement of fundamental right of access to justice under Art.9 of the Constitution, thus, they were required to be separated from the Executive under Art.175(3) of the Constitution---Constitutional petition was disposed of accordingly.

Shell Co. of Australia Limited v. Federal Commissioner of Taxation (1930) All E R 671; United Engineering Workers' Union v. Uevanayaqam (1976) 2 All E R 367; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 ref.

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

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3--- Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3--- Sindh Service Tribunals Act (XV of 1973), S.3---Federal Service Tribunal Chairman and Members Service Rules, 1983, R.1---Service Tribunals (Qualifications of Members) Rules, 1974, R.2---Constitution of Pakistan, Arts.212(1)(a), 175, 2A, 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Chairman and Members of Federal and Provincial Service Tribunals--- Procedure--- Constitutionality---Consultation with the Chief Justice of Pakistan/Chief Justice of the respective High Court---Scope---Although the Act(s) and the rules (regarding Service Tribunals) did not provide for consultation with the respective Chief Justice, but since (Service) Tribunals established under Art.212 of the Constitution fell within the contemplation of Art.175(3) of the Constitution, the requirements of said provision had to be adhered to while making appointment of the Chairman/Members of the (Service) Tribunals---Matters regarding appointment of the Chairman and Members of the Service Tribunals were as important as those of Judges of the High Courts---Whenever the appointment of a 'judicial officer' or the Chairman/Member of a Tribunal performing 'judicial functions' was made, consultation with the concerned Chief Justice was a prerequisite---For making the Chairman and the Members of the Service Tribunals independent, it was necessary to make their appointments with the meaningful consultation of the Chief Justice i.e. for the purpose of Federal Service Tribunal, with the Chief Justice of Pakistan and for Provincial Service Tribunals, with the Chief Justice of the respective High Court---All appointments made without such consultation were void---Where a retired Judge of the High Court was to be appointed as Chairman of the (Service) Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal---Tenure of such incumbent should not be for a period of more than three years for one time only---Although there were civil servants who were quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members (of Service Tribunals) had to be made in consultation with the Chief Justice, on having gone through the credentials of nominees (civil servants) and by also giving preference to those, who had a legal background and had not reached the age of superannuation in respect to their tenure, which was to be restricted to a one time tenure of not more than a period of three years or till the date of superannuation, whichever was earlier---Where District Judges or incumbent civil servants were not available for appointment, the Executive with the consultation of the respective Chief Justice might appoint Advocates qualified for appointment as a Judge of the High Court, either as a Member or the Chairman(of Service Tribunals), as the case might be---Supreme Court declared that S.3(1), (3), (3)(b), (4) & (7) of the Service Tribunals Act, 1973; S.3(3)(b) of the Sindh Service Tribunals Act, 1973; S.3(3)(b) of the Khyber Pakhtunkhwa Service Tribunals Act, 1974; S.3(3)(b) of the Balochistan Service Tribunals Act, 1974; R.1 of Federal Service Tribunal Chairman and Members Service Rules, 1983, and R.2 of Service Tribunals (Qualifications of Members) Rules, 1974 were void, ultra vires to the Constitution and unconstitutional being in derogation of Arts.2A, 9 and 175 of the Constitution---Supreme Court directed that Federal and Provincial Governments were allowed 30 days' time to make fresh appointments of Chairmen/Members of the (Service) Tribunals, following the conclusions and findings of the present petition; that if no steps were taken within the stipulated time, either through temporary or permanent legislation, the provisions of the legislation which had been declared void (and unconstitutional) would seize to have effect, as a consequence whereof, the incumbent Chairmen/Members of the(Service) Tribunals, whose cases were not covered under the proposed provisions, would seize to hold their positions---Constitutional petition was disposed of accordingly.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Imran v. Presiding Officer, Punjab Special Court PLD 1996 Lah. 542; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Hazrat Baz v. Political Agent/District Magistrate Khyber Agency PLD 2010 Pesh. 7; Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 and S.P. Sampath Kumar v. Union of India AIR 1987 SC 386 ref.

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

----S. 3(3)(b)---Punjab Service Tribunals Act (IX of 1974), S.3(3)(b)---Balochistan Service Tribunals Act (V of 1974), S.3(3)(b)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3(3)(b)---Sindh Service Tribunals Act (XV of 1973), S.3(3)(b)---Constitution of Pakistan, Arts.212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Members of Federal and Provincial Service Tribunals---Legal/judicial experience of such Members---Scope---Law prescribed that the Chairman of the (Service) Tribunal must be a person who was or had been qualified to be a Judge of the High Court, which had an inbuilt mechanism of having legal/judicial experience, however, there was no requirement of having legal or judicial experience for the Members of the (Service) Tribunal---Where the Members, who belonged to the Executive, constituted a Bench, there was likelihood that they might not be able to decide the judicial question in an appropriate manner, having no judicial experience and if the case was against the orders of the President/Governor or senior officers they might not be able to act fairly, justly and independently being under pressure, thereby eroding the concept of fair administration of justice--- Supreme Court observed that it was necessary that not only the Chairman but the Members of the (Service) Tribunals also had legal/judicial experience, therefore, a person who was or had been qualified to be a District Judge, might be appointed as Member of the (Service) Tribunal--- Constitutional petition was disposed of accordingly.

Muzaffar Hussain v. The Superintendent of Police 2002 PLC (C.S.) 442 ref.

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

----S. 3(3)(a)--- Punjab Service Tribunals Act (IX of 1974), S. 3(3)(a)---Balochistan Service Tribunals Act (V of 1974), S.3(3)(a)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3(3)(a)---Sindh Service Tribunals Act (XV of 1973), S.3(3)(a)---Constitution of Pakistan, Arts.212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of a sitting Judge of the High Court as Chairman of Federal/Provincial Service Tribunal---Propriety---Supreme Court observed that preferably, it would be appropriate and in the interest of the institution if a sitting Judge (of the High Court) was not asked to perform his duties as Chairman of a Federal or Provincial Service Tribunal, however, appointments for the position of Chairman could conveniently be made from amongst the Judges who had been Judges of the High Court--- Constitutional petition was disposed of accordingly.

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

----S. 3-A---Punjab Service Tribunals Act (IX of 1974), S.3-A---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.5---Balochistan Service Tribunals Act (V of 1974), S. 3(3)---Sindh Service Tribunals (Procedure) Rules, 1974, Rr.23 & 24---Constitution of Pakistan, Arts.212(1)(a), 9 & 184(3)--- Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Composition of Benches---Guidelines---Supreme Court observed that the Chairman should preferably constitute each bench comprising of one judicial/legal Member and one Member from civil service; that in such a situation, with reference to the disputes of civil servants, both (Members) could give their input on the judicial and executive sides, which would improve the quality of decision making and the judgments pronounced and strengthen the independence of judiciary in its role of enforcing the Fundamental Right of access to justice, and that where a single Member Bench was to be constituted, preference should be given to the judicial Member to hold the hearing.

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

----S. 3---Punjab Service Tribunals Act (IX of 1974), S.3---Balochistan Service Tribunals Act (V of 1974), S.3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 175(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Financial autonomy---Allocation of independent budget---Scope---(Service) Tribunals, as judicial fora, should enjoy financial autonomy as had been given to the High Courts and the Supreme Court, otherwise they cannot discharge their functions independently---(Service) Tribunals must be duly empowered to disburse their annual funds, allocated by the Parliament and the Provincial Assemblies, in their respective annual budgets, within the prescribed limit by the Chairman of the respective Tribunals, without the need to seek approval of the Finance Ministry or Provincial Finance Department---Supreme Court directed that independent budgetary allocation for annual expenditures of the Service Tribunals should be provided for in accordance with the Constitution, enabling the Tribunals to function independently---Constitutional petition was disposed of accordingly.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 ref.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in Constitutional Petition No.53 of 2007).

Nemo for Petitioners (in Constitutional Petition No.83 of 2012).

Attorney General for Pakistan (absent) on Court's Notice.

Muhammad Azam Khattak, Addl. A.-G. for Government of Balochistan.

Syed Arshad Hussain Shah, Addl. A.-G. for Government of Khyber Pakhtunkhwa.

Jawwad Hassan, Addl. A.-G. for Government of Punjab.

Muhammad Qasim Mirjat, Addl.A.-G. for Government of Sindh.

Raja Faisal Iftikhar, Deputy Secretary for Law Commission.

Date of hearing: 9th January, 2013.

2013 P L C (C.S.) 1388

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Civil Appeal No.841 of 2012

(Against the Judgment dated 2-7-2012, passed by the Lahore High Court, Lahore, in F.A.O. No.415 of 2009.)

Ch. ANWAAR UL HAQ ARIF, ADVOCATE SUPREME COURT

Versus

FEDERATION OF PAKISTAN through Secretary Law and others

Civil Petition No.1724-L of 2012

(Against the Judgment dated 2-7-2012, passed by the Lahore High Court, Lahore, in W.P. No.15898 of 2009.)

MUHAMMAD KAMRAN, ADVOCATE

Versus

FEDERATION OF PAKISTAN through Secretary Law and others

Civil Appeal No.841 and Civil Petition No.1724-L of 2012, decided on 30th April, 2013.

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 130(3)---Constitution of Pakistan, Art. 193(2)---Judicial Member of Income Tax Appellate Tribunal, appointment of--- Eligibility criteria---Minimum age---Scope---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001---Interpretation of said words by way of referential legislation---Federal Public Service Commission (FPSC) published an advertisement seeking applications for appointment of Judicial Members, Income Tax Appellate Tribunal---Minimum age for applicants was set at 40 years--- Both the respondents, who were below 45 years of age at the closing date for receipt of applications, complied with the recruitment procedure and were appointed as Judicial Members, Income Tax Appellate Tribunal---Plea that S.130(3) of Income Tax Ordinance, 2001 provided that a person could only be appointed as a Judicial Member of the said Tribunal if he was qualified to be a Judge of the High Court, for which minimum age of 45 years was provided under Art.193(2) of the Constitution, therefore, respondents were not qualified to be appointed---Validity---For appointment as Judicial Member of Income Tax Appellate Tribunal, two categories of persons had been provided under S.130(3) of Income Tax Ordinance, 2001, one who had exercised powers of District Judge and the other who had been an advocate of High Court, and both categories of persons were required to fulfil one common qualification i.e. they should be qualified to be a Judge of the High Court---Article 193(2) of the Constitution provided that for appointment as a Judge of the High Court, a person had to be not less than 45 years of age---Although said minimum age was reduced to 40 years by way of Constitution (Second Amendment), Order, 2007, but said amendment was declared to be unconstitutional and void ab initio by the Supreme Court, thus the Constitution continued to lay down an age of not less than 45 years---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001 incorporated by way of referential legislation the whole text and tenor of Art.193(2) of the Constitution, which provides for qualification for appointment to post of Judge of High Court---Both respondents were less than 45 years of age at the time of their appointment---Recommendation letter and notification of appointment of respondents as Judicial Members of Income Tax Appellate Tribunal were held to be without lawful authority and of no legal effect and were accordingly set aside---Federal Public Service Commission (FPSC) was directed to undertake fresh exercise for appointment of Judicial Members of the said Tribunal at the earliest---Appeal was allowed accordingly.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 130(3)---Constitution of Pakistan, Art. 193(2)---Judicial Member of Income Tax Appellate Tribunal, appointment of---Eligibility criteria---Minimum age---Scope---Person who sought appointment to office of Judicial Member, Income Tax Appellate Tribunal should have an age of not less than 45 years, as provided under Art.193(2) of the Constitution.

Mushtaq Ahmed Mohal, Advocate Supreme Court for Appellant (in C.A. No.841 of 2012).

Maqbool Elahi Malik, Senior Advocate Supreme Court for Petitioner (in C.P. No.1724-L of 2012).

Shafi Muhammad Chandio, D.A.-G., M.S. Khattak, Advocate-on-Record and Pir Muhammad Ishaq, Director (L) FPSC for Respondents Nos. 1 to 3.

Respondent No.4 in person.

Nemo for Respondent No.5.

Date of hearing: 10th January, 2013.

2013 P L C (C.S.) 1458

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

CAPITAL CITY POLICE OFFICER, LAHORE and 4 others

Versus

LIAQUAT ALI---Respondent

Civil Appeal No.286-L of 2011 out of Civil Petition No.981-L of 2010, decided on 2nd May, 2013.

(Against the order dated 5-4-2010 of the Lahore High Court, Lahore in Writ Petition No.3950 of 2010.)

Civil service---

----Pensionary emoluments---Risk allowance and fixed daily allowance, entitlement to---Period of leave preparatory to retirement---Police official, after completion of 26 years of service applied for leave preparatory to retirement with effect from 1-1-2009 to 31-12-2009, which was duly allowed---Pensionary dues of police official were calculated by the police department out of which a deduction of Rs.81,900 was made on the basis that he was not entitled to risk allowance and fixed daily allowance on account of Punjab Government Notification No.8904/FI dated 26-5-2009---Police official filed constitutional petition before High Court contending that department had made the deduction illegally under the garb of the said notification---High Court allowed the constitutional petition and held that police official could not be deprived of risk allowance and fixed daily allowance under the garb of the notification in question---Plea of department that in view of notification in question benefit of risk allowance and fixed daily allowance could only be availed by officers on duty and any officer who was on leave for a period of more than 4 months could not avail the allowances---Validity---Admittedly police official was on leave from 1-1-2009 to 31-12-2009---Notification in question stated that an officer who was on leave for a period beyond 4 months, was not entitled to risk allowance and fixed daily allowance---Department had rightly made deductions from pensionary emoluments of police official---Impugned order of High Court was set aside and it was held by Supreme Court that police official was only entitled to 4 months risk allowance and fixed daily allowance, and if any deductions for the 4 months period had been made from his pensionary emoluments, the same might accordingly be adjusted---Appeal was allowed accordingly.

Ms. Salma Malik, Additional A.-G. for Appellants.

M. Walayat Umar, Advocate Supreme Court for Respondent.

Date of hearing: 2nd May, 2013.

2013 P L C (C.S.) 1480

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD INAYAT GONDAL

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE and others

Civil Petition No.244-L of 2013, decided on 7th March, 2013.

(Against the judgment dated 24-1-2013 passed by the Lahore High Court, Lahore in Objection Case No.6471 of 2013.)

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Constitution of Pakistan, Art. 185(3)---Judicial officer dismissed from service---Appeal to Service Tribunal---Early hearing of Service Appeal sought by judicial officer---Non-interference by Supreme Court in administrative matters of High Court---Scope---Plea of judicial officer (petitioner) that he was facing grave hardship on account of his dismissal from service and his Service Appeal had not so far been heard by the (Punjab) Subordinate Judiciary Service Tribunal, therefore an appropriate observation might be made by the Supreme Court facilitating hearing of his appeal at an early date---Validity---Supreme Court was generally slow in interfering with the administrative matters of High Court---Supreme Court directed judicial officer to file an application before the Chief Justice of High Court for redressal of his grievance---Petition for leave to appeal was disposed of accordingly with the observation that if such an application was filed, the Supreme Court was sanguine that Chief Justice of High Court might consider passing an appropriate direction facilitating hearing of judicial officer's Service Appeal by the concerned Tribunal at its earliest convenience.

Petitioner in person.

M. Arif Raja, Additional Advocate-General, Punjab with Muhammad Akam, Deputy Registrar for Respondents.

Date of hearing: 7th March, 2013.

2013 P L C (C.S.) 1487

[Supreme Court of Pakistan]

Before Mian Saqib Nisar and Amir Hani Muslim, JJ

MUHAMMAD ASLAM

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD

Civil Appeal No.159 of 2011, decided on 10th July, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 25(b), 15(a), proviso & 9---Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S.5(5)---Government official entering into a plea bargain with National Accountability Bureau (NAB)---Disqualification of such official from holding public office---Scope---Removal of such official from his department without conducting of a regular inquiry---Legality---Accused while serving as Divisional Accounts Officer was alleged to have committed irregularities and corruption---Accused was arrested by National Accountability Bureau (NAB) , but entered into a plea bargain, which was accepted and he was released under S.25(b) of National Accountability Ordinance, 1999---Chairman NAB informed department of accused that he had entered into a plea bargain, which implied that he was deemed to have been convicted under the National Accountability Ordinance, 1999 and should cease to hold public office forthwith---Resultantly accused was issued a show cause notice by his department and consequently removed from service---Appeals filed by accused against his removal were also dismissed by his department and Federal Service Tribunal respectively---Plea of accused that his department did not conduct a regular inquiry before removing him from service, and that he could only be disqualified from holding public office if he was convicted of committing any offence mentioned under S.9 of National Accountability Ordinance, 1999---Validity---Case of accused was regulated by S.25(b) of National Accountability Ordinance, 1999, as he had entered into a plea bargain during pendency of his trial, and National Accountability Court ordered his release under the said section---Consequence of such an order by the National Accountability Court was provided under proviso to S.15(a) of National Accountability Ordinance, 1999, which provided that on approval of plea bargain in term of S.25(b) of National Accountability Ordinance, 1999, the accused stood disqualified for a period of ten years from holding any public office---Accused had not denied entering into a plea bargain---Since documents on basis of which departmental proceedings had been initiated were not in dispute, the competent authority could dispense with regular inquiry, as no material was required to be collected for proceeding against the accused---Accused could not take the plea that he was deprived of an opportunity to rebut the charge, because the documents on the basis of which departmental proceedings were initiated had not been denied by the accused---Appeal was dismissed in circumstances.

M.D. Chaudhry, ASC for Appellant.

Sajid Ilyas Bhatti, D.A.-G. and M.S. Khattak, AOR for Respondent.

Date of hearing: 10th July, 2013.

2013 P L C (C.S.) 350

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J.

NADEEM AKHTAR

Versus

Sardar MUHAMMAD KHALIL KHAN and 2 others

Civil P.L.A. No.138 and Civil Miscellaneous No.181 of 2011, decided on 25th January, 2012.

(Petition for leave to appeal from the judgment of the Service Tribunal, dated 20-10-2011 in Service Appeal No.193 of 2011).

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

----S. 9---Azad Jammu and Kashmir Service Tribunals Act, 1976, S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)---Azad Jammu and Kashmir Rules of Business, 1985---Transfer---Petitioner who was serving at place 'B', was transferred to place 'M' and respondent was transferred in his place---Respondent feeling aggrieved filed appeal before the Service Tribunal, which was accepted and transfer order was set aside on the ground that it was against the provisions of Azad Jammu and Kashmir Rules of Business, 1985, and petitioner had filed petition for leave to appeal to Supreme Court against order of the Service Tribunal---Department concerned was divided into two Divisions/Zones, one for 'north' division and the other for 'south' division; each division had its own official who could exercise jurisdiction within his respective territorial jurisdiction and could pass transfer orders---If any employee was to be transferred from one zone to the other zone, such order was to be passed by the Government as same was not in the control of said official---Place 'B' where the petitioner was serving and was transferred to place 'M' was within territorial jurisdiction of official of 'north' and place 'M' was within the jurisdiction of 'south'---Transfer order, in the present case was passed by official of south Zone whereby respondent was transferred to the area which was in the jurisdiction of official of north zone---Such order being violative of Azad Jammu and Kashmir, Rules of Business, 1985, Service Tribunal, in circumstances, had correctly resolved the proposition---No substantial question of public importance being involved in the case, petition for leave to appeal, was dismissed by the Supreme Court, in circumstances.

Sardar Muhammad Azam, Advocate for Petitioner.

Sardar Shahzad Ahmed, Advocate for Respondents.

Date of hearing: 23rd January, 2012.

2013 P L C (C.S.) 357

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

FAZAL-E-RABBI KHAN

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 4 others

Civil Appeal No.83 of 2012, decided on 12th October, 2012.

(On appeal from the judgment of the High Court dated 29-5-2012 in Writ Petition No.1831 of 2011).

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

----S. 44---Writ petition before High Court, competency of---Civil service---Promotion---Promotion was one of the terms and conditions of service of civil servants; and proper remedy available to the civil servants was before the Service Tribunal---Service Tribunal, however had no jurisdiction to issue any sort of direction to any authority to perform an act strictly in accordance with law; and if direction was sought, the proper remedy was to invoke the writ jurisdiction of the High Court---Contention that writ petition was not competent, was misconceived, especially when same was not hit by the principle of laches.

Syed Riaz-ul-Hassan v. Azad Government and 4 others 2012 PLC (C.S.) 1426 rel.

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

----S. 44---Azad Jammu and Kashmir High Court (Procedure) Rules, 1984---Writ petition before High Court---Duty of High Court---Issues raised before High Court, were required to be attended properly and dilated upon comprehensively, but High Court failed to discharge its duty; and instead of deciding the real controversy through a speaking order, dismissed the writ petition in limine---Such practice was violation of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, which had not been followed in letter and spirit---High Court was to look into the matter of the case and decide all the issues involved in the writ petition.

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

----Ss. 4 & 8---General Clauses Act (X of 1897), S.6---Azad Jammu and Kashmir Electricity Department Service Rules, 1993---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Appointment---Promotion---Appellant, who was inducted into the service in the year 2002 as Sub-Engineer in leave arrangement, later on was appointed on regular basis after test and interview on the recommendations of the concerned Selection Committee in year 2006---After acquiring the degree of B. Tech (Honours) name of appellant was included in the seniority list and was placed at serial No.10 of the seniority list---At the time when the seniority list was prepared, the services of the appellant were governed by Azad Jammu and Kashmir Electricity Department Service Rules, 1993 [as amended in year 2007], which had been enacted in the year 2010 repealing the earlier Rules of 1993/2007, and under said new Rules the quota for promotion of the officials of the appellant's cadre was reduced from 15% to 5%---Said Rules had not been given any effect, question was, whether the Rules could be applied retrospectively or prospectively---If any new law was enacted, its effect would be prospective, and not retrospective, unless it was expressly given retrospective effect---When a right had accrued to a person, that could not be taken away through a repealing law---Case of the appellant was to be judged for promotion on the yardstick of the Azad Jammu and Kashmir Electricity Department Service Rules, 1993 [as amended in 2007]---Under said Rules, if any right had accrued to him, that could not be taken away by way of any amendment in the Rules---Case was remanded to High Court to be decided afresh after considering all controversial points, through a speaking order after providing full opportunity of hearing to both the parties.

Muhammad Hafeez Khan v. Mst. Sabiha Khanam PLD 1996 SC (AJ&K) 1; Nizam Din and another v. Custodian and 15 others 2011 SCR 390; Azad Government and 4 others v. Shezad Naseem Abbasi 2006 SCR 396; Basharat Hussain and 2 others v. Muhammad Imtiaz and 6 others 2009 SCR 530; Saeed Ahmad v. The State PLD 1964 SC 266; Janardhan Reddy and others v. The State of Hyderabad and others A1R 1951 SC 217; Isamdad Khan and others v. Muhammad Khurshid Khan and others Civil Appeal No.52 of 2005 and Rehmatullah Zia v. Aziz-ud-Din Qureshi and others 1998 PLC (C.S.) 132 rel.

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

----S. 8---Promotion---Officiating charge---Civil servant could not claim promotion on the basis of officiating charge, however, the fact of being senior could not be left unattended, while considering matter of promotion.

Abdur Rashid Abbasi, Advocate for Appellant.

Noorullah Qureshi, Advocate for Respondents.

Date of hearing: 10th July, 2012.

2013 P L C (C.S.) 587

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, J

ADNAN GHULAM RASOOL

Versus

NOSHEEN QURESHI and 6 others

Civil PLA No.177 of 2012 and Civil Miscellaneous No.165 of 2012, decided on 13th November, 2012.

(On appeal from the judgment of the High Court dated 9-7-2012, in Writ Petition No.508 of 2012).

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

----S. 42---Civil service---Agricultural Husbandry Department---Instructor Plant Protection (B-17), post of---Prescribed qualification for such post being B.Sc. (Hons.) Agriculture in Plant Protection---Private respondent holding degree in B.Sc. (Hons.) Agriculture recommended for such post by Public Service Commission---Authority's plea that inclusion of Plant Pathology in B.Sc. Agriculture degree as one of its subjects would not amount to degree of Plant Protection---High Court declared such recommendations to be without lawful authority---Validity---Posts of Instructors as mentioned in statutory rules were of different nomenclatures having separate and distinct prescribed qualifications---Degree in B.Sc. (Hons.) Agriculture for being awarded in different disciplines could not be substituted with B.Sc. Agronomy, Agriculture Engineering, Soil Science, Horticulture or Plant Protection---Respondent could not produce certificate of equivalence from Higher Education Commission being sole authority to determine status and equivalence of degrees---Court could not substitute its opinion or any terms existed in statutory rules i.e. to substitute term of Plant Protection with Plant Pathology and Plant Entomology---Authority would have to act according to enforced law---Supreme Court refused to grant leave to appeal to private respondent in circumstances.

Raja Muhammad Sohrab v. AJ&K Government and others 2002 PLC (C.S.) 1138 and Muhammad Resham Khan v. Azad Jammu and Kashmir Government and others 2002 SCR 527 ref.

Muhammad Resham Khan v. Azad Jammu and Kashmir Government and others 2002 SCR 527; Dr. Khawaja Mushtaq Ahmed v. Azad Government and others 2002 PLC (C.S.) 1398 and Raja Muhammad Sohrab v. AJ&K Government and others 2002 PLC (C.S.) 1138 rel.

(b) Interpretation of statutes---

----Courts would interpret law as same existed on statute book, but could not substitute, subtract or add therein.

Muhammad Resham Khan v. Azad Jammu and Kashmir Government and others 2002 SCR 527; Dr. Khawaja Mushtaq Ahmed v. Azad Government and others 2002 PLC (C.S.) 1398 and Raja Muhammad Sohrab v. AJ&K Government and others 2002 PLC (C.S.) 1138 rel.

(c) Interpretation of statutes---

----Substitution or amendment in law is duty of legislative body or authority and not of the court.

(d) Public functionaries---

----Authority would have to act according to enforced law.

Humayyun Nawaz Khan, Advocate for Petitioner.

Kh. Muhammad Nasim, Advocate and Sardar M.R. Khan, Additional Advocate-General for Respondents.

Date of hearing: 7th November, 2012.

2013 P L C (C.S.) 619

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Sardar Muhammad Sadiq Khan, J

FAISAL AMEEN

Versus

GHULAM HUSSAIN AWAN and 6 others

Civil Appeal No.71 of 2011, decided on 15th October, 2012.

(On appeal from the order of the High Court dated 4-4-2011 in Writ Petition No.466 of 2011).

(a) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 34---Civil Procedure Code (V of 1908), O.XLIX, Rr.1 & 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Civil service---Promotion---Suspension of notification of promotion---Appellant having been promoted vide notification, respondent challenged said notification in writ petition before High Court along with stay application---High Court vide impugned order suspended operation of said notification subject to objections from other party till further order---Validity---High Court suspended the operation of notification of promotion without serving notice upon appellant---High Court, in circumstances, had not fulfilled the requirement of Azad Jammu and Kashmir High Court Procedure Rules, 1984 and had failed to consider the necessary ingredients for issuance of stay order, i.e., prima facie arguable case, balance of convenience and irreparable loss---Order of High Court was bad in law as mandatory provisions of R.34 of Azad Jammu and Kashmir High Court Procedure Rules, 1984, were not complied with---If the order passed in favour of appellant remained intact, no irreparable loss would have occurred to the respondent---Order passed by High Court was set aside and case was remanded to the High Court for passing order afresh after hearing the counsel for the parties.

Syed Saleem Hussain Kazmi v. Azad Government and others 2005 SCR 259; Rashad Saleem v. Ch. Zafar Iqbal and others 2009 SCR 18; Dr. Muhammad Ejaz Khan v. Dr. Maqbool Ahmed others Civil Appeal No.187 of 2009 and Ghiasul Haq and others v. Azad Government and others PLD 1980 SC (AJ&K) 5 rel.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 34---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 47---Appeal to Supreme Court---Maintainability---Order passed subject to objections by other party---When the order was passed by the lower forum, subject to objections by other party, normally, the party would resort to the lower forum; and file objections; and Supreme Court would refrain from interfering in such order, but if order passed by the lower forum was against the legal provisions, then the party could file petition for leave to appeal against the said order in the Supreme Court---In the present case, the impugned order offended the provisions of R.34 of Azad Jammu and Kashmir High Court Procedure Rules, 1984 and O.XLIX, Rr.1, 2, C.P.C.---Said order also appeared against the provisions of S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Appeal to Supreme Court was competently filed, in circumstances.

Mushtaq Ahmed Januja, Advocate for Appellant.

Mrs. Bilqees Rashid Minhas, Advocate for Respondent No.1.

Date of hearing: 3rd October, 2012.

2013 P L C (C.S.) 728

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

Raja SHAHNAWAZ KHAN

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 3 others

Civil Appeal No.38 of 2012, decided on 10th August, 2012.

(On appeal from the judgment of the High Court, dated 2-3-2012 in Writ Petition No.1187 of 2011).

Azad Jammu and Kashmir Zakat and Usher Act, 1985---

----Ss. 9 & 13---Claim of Chairman Zakat Council for entitlement to the terms and conditions as of Judge of High Court---Appellant being a practising lawyer, having more than 25 years practice in his credit, was appointed as Chairman Zakat Council, but in the appointment notification, the terms and conditions, were not determined---Prime Minister issued direction that terms and conditions as available to previous Chairman be provided to the appellant/Chairman---Said directions of the Prime Minister, having not been carried out, Chairman filed writ petition claiming that terms and conditions of his predecessors in office were equal to that of the Judge of the High Court---High Court dismissed the writ petition of the Chairman---During pendency of writ petition, vide notification on the recommendation of concerned Committee, an honorarium of Rs.50,000 was fixed for the Chairman---Writ petition was dismissed by High Court on the ground that as the Government, which was competent to determine the terms and conditions of the Chairman had fixed honorarium vide its notification---Chairman had challenged validity of said notification, mainly on the ground of being discriminatory---All predecessors Chairman and successors in the office of the Chairman were Advocates like the Chairman having same qualification, experience and suitability---All were equally qualified, belonging to the same profession, and were the State Subjects of the Azad Jammu and Kashmir---Equally placed persons, deserved equal treatment before law, was the constitutional guarantee of fundamental right---Among equals, the Constitution did not allow any discrimination, whether it was in shape of executive order or a Legislative Act---Chairman, in the matter of terms and conditions of service had been discriminately treated, which could not be authenticated or allowed, being without lawful authority and unconstitutional---Chairman was declared entitled to the same terms and conditions as his predecessors or successor had been granted---Judgment of High Court was set aside, in circumstances.

Azad Jammu and Kashmir Government and others v. Muhammad Yunas Tahir and others 1994 CLC 2339 and Mst. Tanveer Ashraf and others v. Azad Government and 2 others 2010 SCR 528 rel.

Raja Gul Majeed Khan, Advocate for Appellant.

Mushtaq Ahmed Janjua, Advocate for Respondents.

Date of hearing: 7th June, 2012.

2013 P L C (C.S.) 755

[Supreme Court (AJ&K)

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

WAJID MUNIR

Versus

MIRPUR DEVELOPMENT AUTHORITY MIRPUR through Chairman and 25 others

Civil Appeal No.6 of 2011, decided on 21st November, 2012.

(On appeal from the judgment/order of the High Court, dated 24-2-2010 in Writ Petition No.5 of 2009)

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

----Ss. 44 & 42---Writ petition before High Court---Scope---Appeal to Supreme Court with the leave of the court had been filed against the judgment of the High Court, whereby writ petition filed by the appellant had been dismissed in limine---Dismissal of writ petition in limine, did not appear to be consistent with the principles of administration of justice---If a party would satisfy the court that it had brought the matter for consideration in which legal proposition of violation of a principle of law; or fundamental rights was involved; and such assertion despite being in possession of record, neither was refuted by submission of relevant documents or counter affidavit, would justify admission of the writ petition for regular hearing---Admission of writ petition for regular hearing, though would not mean final adjudication or grant of prayed relief, but appellant had succeeded in establishing that in his writ petition, question of violation of statutory law and fundamental rights were involved; and those assertions had not been rebutted by the other side through counter affidavit or submission of relevant documents---Such state of affairs demanded admission of writ petition for the ends of justice---Writ petition was admitted for regular hearing---Case was remanded by the Supreme Court with direction that High Court would proceed further in accordance with law and finally dispose of the same.

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

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Appointment---Appeal to Supreme Court---When certain posts including the posts of constables were advertised, appellant and many others applied for the same, but the authorities without conducting test and interview appointed the private respondents---Appellant challenged said orders through writ petition, but High Court dismissed the petition in limine---Validity---Appellant in his writ petition had specifically alleged that the authorities had violated the statutory rules as no merit list was prepared and that only on the basis of favouritism, some persons had been appointed who did not even fulfil the required qualification for the post---Statement of facts averred in the writ petition had been supported by an un-rebutted affidavit of the appellant---Authorities in their pre-admission comments, neither had submitted copy of merit list nor any other document supposed to be in their possession to rebut the factual statement of the appellant---Authorities, even had not filed counter affidavit to rebut or deny the contents of the affidavit of the appellant---Assertion made by the appellant, prima facie, seemed to be true---Such state of affairs demanded admission of writ petition for the ends of justice.

(c) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

---R. 38---Writ petition---Scope---Affidavit---Necessity---Ordinarily, the question arose for determination in writ petition, had to be decided upon affidavit and documents---High Court was vested with the powers to issue direction that such question, as it could consider necessary to be decided on evidence; and in such a manner as it deemed fit, and in that case it could follow such procedure and could pass such order as appeared to be just---Generally, on the question of fact, unrebutted affidavit was treated to be sufficient proof.

Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88 rel.

Ch. Muhammad Mehfooz, Advocate for Appellant.

M. Reaz Alam, Advocate for Respondents.

Date of hearing: 21st November, 2012.

2013 P L C (C.S.) 816

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

Prof. Engineer NAIB HUSSAIN

Versus

Engineer Prof. Dr. MUHAMMAD RIAZ MUGHAL and 12 others

Civil Appeal No.125 of 2012, decided on 7th December, 2012.

(On appeal from the judgment of the High Court dated 26-11-2012 Writ Petition No.119 of 2011).

(a) Mirpur University of Science and Technology Ordinance (XI of 2008)---

----Ss. 2(y), 10, 11 & 41---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Appointment of Vice-Chancellor of University---Chancellor, for the transitory period, was vested with discretionary powers for appointing the first Vice-Chancellor while dispensing with the mode and procedure of appointment prescribed in Mirpur University of Science and Technology Ordinance, 2008---Said Ordinance had attached some personal qualifications with the Vice-Chancellor, and whenever the Vice-Chancellor, whether permanently or under transitory provision was appointed, no exemption was available with regard to the personal qualifications mentioned in S.10(1) of the Ordinance and without the said qualifications, no one could be appointed or given the status of Vice-Chancellor---While exercising the powers under the transitory provisions of S.41(2) of Mirpur University of Science and Technology Ordinance, 2008 Chancellor was vested with the discretionary powers without having regard to procedure and mechanism for regular appointment---Person, who on the establishment of the university had firstly been designated as Vice-Chancellor, he would be called as First Vice-Chancellor for the purpose of transitory provision of S.41(2) of Mirpur University of Science and Technology Ordinance, 2008---Under transitional statutory provisions, powers could not be exercised for an indefinite period or to defeat the purpose, a permanent provision of the statute---Once, the Chancellor had exercised his powers under transitory provision and appointed first Vice-Chancellor, the discretionary powers under transitory provision, would come to an end---Same could not be revived or reexercised by appointing another person in the office of Vice-Chancellor---Appellant's qualification being not up to the mark, to be labelled as an eminent academic or scholar of international repute, notification appointing him as Vice-Chancellor, was rightly quashed by High Court, in circumstances.

A.G. Varadarajulu and another v. State of Tamil Nadu and others AIR 1998 SC 1388 rel.

(b) Interpretation of statutes---

----Non obstante clause in statute---Scope---Not necessary that each and every non obstante clause in a statute would exclude application of all provisions of statutes---Scope of non obstante clause had to be determined.

(c) Words and phrases---

----'First'---Dictionary meaning and scope.

Chamber 20th Century Dictionary, New Edition, page 473; Chambers 21st Century Dictionary, page 494 and GEM Practical Combined Dictionary, Two in one, 21st Century, Edition, page 286 rel.

(d) Words and phrases---

----'Appointment'---Dictionary meaning and scope.

Black's Law Dictionary Sixth Edition, page 99 and Concise Oxford Dictionary of Current English, Fifth Edition, page 55 rel.

(e) Words and phrases---

----'Additional charge'---Meaning and scope.

Civil Establishment Code, Edition 2007-2008 rel.

(f) Interpretation of statutes---

----Transitional provision---Scope and status---Scope and status of such provision, was limited, and it would operate and remain in force till the main provision of statute would come in to operation---Under the transitional and statutory provisions, powers could not be exercised for an indefinite period or to defeat the purpose, intent and spirit of the permanent provision of the statute---Principles.

Interpretation of Statute by B.M. Gandhi, Edition 2006 page 83 and Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition 2010 rel.

Khalid Rashid Chaudhry, Advocate for Appellant.

Mian Sultan Mehmood, Advocate for Respondent No.1.

Sardar Muhammad Raziq Khan, Advocate for Respondents Nos.1-A and 13.

Raja Ghazanfar Ali, Advocate-General for Respondents Nos.2 and 12.

Date of hearing: 29th November, 2012.

2013 P L C (C.S.) 831

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

NAILA BASHIR

Versus

Syeda ZANIB-UN-NISA and 4 others

Civil Appeal No.113 of 2012, decided on 26th January, 2013.

(On appeal from the judgment of the Service Tribunal dated 15-8-2012 in Service Appeal No.677 of 2012).

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

----S. 9---Transfer of civil servant---Authority had power to transfer a civil servant, and every civil servant was bound to serve under the Government, inside or out of Azad Jammu and Kashmir, wherever he was transferred, provided his terms and conditions of service were not adversely affected.

Nazir Fatima v. Azad Government and others (Civil P.L.A. No.182 of 2009 and Mst. Sabia Aziz v. Director Technical Education and 5 others 2011 SCR 545 rel.

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

----S. 9---Transfer of a teacher---Procedure---Proper procedure for transfer of a teacher was that the process of the transfer had to be initiated from the office of relevant authority; and after fulfilling the requirement, order be passed---In the present case, the proposal for transfer of two teachers was initiated by the Minister of Irrigation department, who had no authority to submit a proposal of such transfer---Minister Education, could not act upon the proposal submitted by said unconcerned Minister and order for transfer---Very proposal submitted by said unconcerned Minister was not legal one, and order passed on said proposal by the Minister of Education, was against the rule of prudence; and was not a judicious order---Education department on the proposal of unconcerned Minister issued transfer order, which was cancelled on the direction of the Speaker of Legislative Assembly---Transfer orders should be initiated from the concerned department and reasons be assigned in the proposals of transfers, but that had not been done in the case.

Naheed Nazir v. Nazir Fatima and others (Civil Miscellaneous No. 197 of 2009 rel.

Sardar Muhammad Habib Zia, Advocate for Appellant.

Sardar M.R. Khan, Additional Advocate-General and Kh. Muhammad Nasim, Advocate for Respondents.

Date of hearing: 14th January, 2013.

2013 P L C (C.S.) 844

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD YOUSAF CHOUDHRY

Versus

DIRECTOR-GENERAL, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 2 others

Civil Appeal No.35 of 2011, decided on 10th December, 2012.

(On appeal from the judgment of the Service Tribunal dated 4-12-2010 in Service Appeal No.345 of 2010).

Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----R. 4(1)(b)(ii)---Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001, Ss.3(1)(F) & 5---Compulsory retirement from service---Employee serving as Naib Qasid in the department, was compulsorily retired from service, without issuing him any show-cause notice and without conducting any inquiry against him---Validity---Compulsory retirement was a punishment, which could not be imposed on employee without due course of law---Authority was under obligation to follow the procedure prescribed by law---Punishment of compulsory retirement could only be imposed by the Authority after inquiry by the Committee constituted under S.5 of Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001---Question, whether employee's retirement was due or not on a specific date, or he had attained the age of superannuation, had no concern with the case as it was a different matter---Impugned judgment of compulsory retirement passed by the Authority, and judgment of Service Tribunal whereby appeal of the employee was dismissed, was set aside---Employee would be deemed to be reinstated in service.

Mushtaq Ahmed Janjua, Advocate for Appellant.

Sardar Abdul Sammie Khan, Advocate for Respondents Nos.1 and 3.

Date of hearing: 10th December, 2012.

2013 P L C (C.S.) 918

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

FINANCE DEPARTMENT through Secretary and 3 others

Versus

TARIQ ZIA ABBASI and 8 others

Civil Appeal No.141 of 2011, decided on 6th October, 2012.

(On appeal from the judgment of the Service Tribunal, dated 20-7-2011 in Service Appeal No.267 of 2011).

Azad Jammu and Kashmir Service Tribunals Act, 1976---

----S. 4---Azad Jammu and Kashmir Rules of Business, 1985, R.2(xx), Schedule-I---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47---Special allowance---Government vide notification granted Special Allowance of 20% of basic pay to the employees of Civil Secretariat from BSP-1 to 21---Employees of Azad Jammu and Kashmir Legislative Assembly Secretariat claimed that they were also entitled to the said Special Allowance---Appeal before Service Tribunal was accepted and employees were held entitled to get said Special Allowance---Validity---Notification whereby Special Allowance of 20% of basic pay had been granted to the employees of Civil Secretariat, had clearly provided that said allowance would be admissible only to the employees of Civil Secretariat; and that employees of other departments, which were either Special Institutions; or attached departments, were not entitled to the same---Notification, whereby Special Allowance was granted to employees of Civil Secretariat only, being self-speaking, employees, who were not employees of Civil Secretariat, but were employees of Legislative Assembly Secretariat, were not entitled for such Special Allowance; as Legislative Assembly was not part of Civil Secretariat---Appeal to Service Tribunal, which was not filed against final orders, otherwise was incompetent and was liable to be dismissed on that ground also---Judgment of Service Tribunal was set aside by Supreme Court, in circumstances.

Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46; I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCMR 1041; Government of Pakistan through Ministry of Finance v. M.I. Cheema and others 1992 SCMR 1852; The Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431; Government of Punjab through Secretary, Finance Department, Lahore v. Mubarak Ali Khan and 8 others PLD 1993 SC 375; Maj. Rtd. Tanvir Ahmed v. Government of Pakistan through Secretary Establishment Division Rawalpindi and others 1993 PLC (C.S.) 322; Abdul Aziz Malik v. Chief Secretary Government of Punjab 1994 PLC (C.S.) 1134; Ch. Nazir Ahmed and others v. Secretary to Government of Punjab and others 1995 PLC (C.S.) 365 and Zahid Hussain v. Accountant General and another 2009 SCR 6 ref.

Asghar Ali Malik, Advocate for Appellants.

Abdul Rasheed Abbasi, Advocate for Respondents.

Date of hearing: 11th July, 2012.

2013 P L C (C.S.) 934

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others

Versus

MUJAHID HUSSAIN NAQVI and another

Civil Appeal No.165 of 2000, decided on 9th October, 2012.

(On appeal from the judgment of the High Court dated 5-10-1999 in Writ Petition No.215 of 1998).

(a) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 3, 4 & 6---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Civil service---Reversion and dismissal from service---Writ petition before High Court---Maintainability---Three appeals filed by the employee against order of his reversion were pending before Service Tribunal when he was dismissed from service---Employee, later on withdrew said appeals and filed writ petition to challenge all orders, including the order of his dismissal from service---When cause of action arose to the employee in respect of his reversion order, his appeals before the Service Tribunal were maintainable; and it was only the Service Tribunal which had jurisdiction to decide, whether the reversion orders were validly passed or not---Dismissal of the employee from the service, did not have the effect of taking away the jurisdiction from the Service Tribunal to decide appeals---Employee, in circumstances, had wrongly withdrew the appeals from the Service Tribunal---According to S.47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, High Court had no jurisdiction to entertain a dispute over which the Service Tribunal had the exclusive jurisdiction---High Court was to first determine the question of its jurisdiction before passing the impugned judgment---Writ petition filed by the employee in respect of his reversion order before High Court was not maintainable.

Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Chairman M.D.A. Mirpur and 4 others v. Muhammad Ajmal Qureshi and another 2001 PLC (C.S.) 127; Alam Din v. Mayor, Municipal Corporation, Mirpur and 4 others 2000 YLR 189; Muhammad Ajaib v. Public Service Commission and 3 others 1997 PLC (C.S.) 222; Aisha Hameed Qadri v. Nomination Board and 6 others 1997 CLC 1713; Muhammad Arshad Khan v. Chairman MDA and 6 others 1997 MLD 3066; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13; Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1987 SC (AJ&K) 109 and Azad Government and another v. Aftab Ahmed Cheema 2005 PLC (C.S.) 1253 distinguished.

Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5 and Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 rel.

(b) Azad Jammu and Kashmir Law Department Manual, 1984---

----Ss. 29 & 39---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42--- Appeal to Supreme Court, competency of---Respondent/employee had contended that appeal filed by the appellants was not competent as sanction for filing appeal was granted by the Law Minister, whereas under Ss.29 & 39 of Azad Jammu and Kashmir Law Department Manual, 1984, no suit/appeal could be filed without the sanction of the Government---Validity---Supreme Court was bound by the Government order by which it was directed that appeal could be filed against the employee which was issued in accordance with the Rules of Business as it had been issued in the name of the President---Argument of the respondent employee that no proper sanction was issued by the Government, was repelled, in circumstances.

(c) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XVII, Rr.4 & 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Respondent/employee had contended that affidavit in support of the contents of the memorandum of appeal sworn by Advocate, was in his personal capacity---Contention was repelled as under O.XVII, R.4, Azad Jammu and Kashmir Supreme Court Rules, 1978, it was provided that affidavit in support of the contents of memorandum of appeal would be filed by the Advocate-on-record who was filing appeal---Other objection of the respondent was that affidavit was not sworn in before any of the authorities mentioned in R.8 of Azad Jammu and Kashmir Supreme Court Rules, 1978---Objection was not helpful to respondent because affidavit had been duly attested by the Notary Public as provided by the Rules.

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

----Ss. 42 & 44---Azad Jammu and Kashmir Supreme Court Rules, 1978, Rr.4 & 8---Appeal to Supreme Court---Non-filing of counter-affidavit by appellants in the High Court---Effect---Respondent had raised objection that no counter affidavit had been filed by the appellants, in the High Court as well as in Supreme Court---Validity---In the absence of a counter-affidavit, the uncontested affidavit could not be believed---Uncontroverted affidavit had to be believed, if there was no material to the contrary on the record---Written statement and the original file summoned from the Services and General Administration Department was available before the High Court---Objection raised by the respondent that the affidavit was uncontroverted, had no force, in circumstances.

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

----S. 44---Writ jurisdiction of High Court---Scope---Finding of fact recorded by an administrative authority performing functions under a statute, was sacrosanct---High Court, while exercising writ jurisdiction, could not substitute its opinion for the opinion of the administration authority.

(f) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 3, 4, 6 & 8---Dismissal from service on ground of forgery/misconduct---Prime Minister as competent authority had directed for initiation of disciplinary proceedings against the employee, on the ground that he had interpolated the order passed by the Prime Minister---Charge against the employee was held to be proved---Finding was recorded by the Prime Minister in the capacity as the competent authority under R.8 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---Prime Minister had the exclusive authority to determine the guilt of the employee in view of the recommendations of authorized officer---Employee was bound to prove his innocence and disprove the finding recorded by the Prime Minister, but he failed to bring on record any such material on the basis of which it could be ascertained that he had not committed any forgery---Finding of forgery was recorded by an independent, impartial and highest executive authority of the State---Throughout the litigation, the employee had never challenged the impartiality of the Prime Minister/competent authority---Prime Minister being justified to hold that the employee had committed forgery, High Court was not right to hold otherwise.

(g) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4 & 6---Dismissal from service---Employee had raised objection that proper procedure had not been adopted while proceeding against him---Validity---Two procedures had been provided in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, out of which any one could be followed while proceeding against a civil servant---One prescribed procedure was that an inquiry was conducted by an Inquiry Officer, while in the other no Inquiry Officer was appointed; and the authorized Officer would inform the accused employee forthwith by an order in writing of the action proposed to be taken against him---In the present case, the holding of inquiry was considered not necessary and other procedure as contained in R.6 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, was followed---Authorized officer having decided to proceed against the employee in exercise of the discretion vested in him by law, objection of the employee was repelled, in circumstances.

(h) Administration of justice---

----Court of law could not substitute its opinion for the opinion of administrative authority and could only interfere with an order, if it was found that the discretion had been exercised arbitrarily or capriciously.

(i) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4, 6, 7, 8 & 9---Misconduct---Dismissal from service---Employee had raised objection that Authorized Officer had not provided an opportunity of showing cause to him; and that he had been condemned unheard---Validity---Authorities in their written statement before the High Court, had given comprehensive details with regard to tampering with the order of Prime Minister / competent authority by the employee---Employee had refused to receive the notice sent by Authorized Officer under R.6(3) of Efficiency and Discipline Rules, 1977---Authorized Officer in his report had mentioned that employee did not join the proceedings---Every attempt was made to require the employee to appear before the Authorized Officer, but he intentionally and deliberately did not join the proceedings---Employee knew from the very beginning that disciplinary proceedings had been ordered against him---Findings recorded by Authorized Officer as well the competent authority, could not be differed with---Objection was overruled, in circumstances.

(j) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4 & 8---Dismissal from service---Employee had contended that while passing dismissal order against him, R.8 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 had been violated, because fresh notice was not issued by the authority before passing said order---Rule 8 did not contain that a fresh notice would be given to accused employee, but had provided that authority would afford an opportunity of being heard---In the initial stage all efforts were made for the appearance of the employee to show cause, but on one pretext or the other he failed to appear and show cause and he could not explain said failure---Authority had no occasion to provide any opportunity of hearing to the employee---Under said R.8 the opportunity of hearing was only to be provided to a person who had joined the proceedings and had submitted his explanation---Objection raised by the employee that no fresh notice was issued to him by the authority, was repelled, in circumstances.

(k) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4 & 6---Azad Jammu and Kashir Interim Constitution Act (VIII of 1974), S.44---Dismissal from service---Writ petition before High Court---Maintainability---Counsel for employers had contended that the authority who passed the dismissal order of the employee, having not been arrayed as party in the line of respondent in the High Court, writ filed by the employee was not maintainable---In absence of the necessary party i.e. competent authority, the writ was not maintainable, and was liable to be dismissed on that sole ground.

University of Punjab v. Shahid Nazir 1986 SCMR 805; Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K) 109; National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Muhammad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355; Liaqat Ali and another v. Municipal Corporation Mirpur and 5 others 1997 CLC 692; Azad Jammu and Kashmir Government and others v. Gohar Rehman and others 1996 CLC 1502; Muhammad Nazir Khan v. Azad Government and 4 others 2001 YLR 3271; Khalil Ahmed Aqeel v. Member Board of Revenue 2004 PLC (C.S.) 949; Raja Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110; Muhammad Nazir v. Azad Government and Pearl Development Authority Civil Appeal No. 131 of 1999; Muhammad Shafi v. Feroz Khan 1994 SCR 19 and Abdul Hamid Khan v. Muhammad Zameer Khan and others 1990 MLD 1617 rel.

Asghar Ali Malik, Advocate for Appellants.

Nemo for Respondent No.1.

Date of hearing: 11th July, 2012.

2013 P L C (C.S.) 1031

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

AZAD GOVERNMENT through Chief Secretary and another

Versus

Raja HABIBULLAH KHAN and another

Civil Appeal No.207 of 2010, decided on 17th January, 2013.

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

----S. 4(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)---Civil service---Upgradation of post---Representation of civil servant was dismissed by the competent authority being time-barred---Service Tribunal without determining the question of limitation had accepted appeal and department was directed to promote the civil servant---Validity---Service Tribunal was bound to first of all determine the question as to whether representation had been rightly dismissed being time-barred or not---Service Tribunal had not pondered upon said important basic vital legal proposition raised before it---Copy of representation was available on record according to which same was filed after the lapse of three year's period---Representation on the face of it was time-barred, thus while rejecting the same, the competent authority had not acted in violation of law---Order of the Service Tribunal was set aside.

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

----S. 4(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47(3)---Civil service---Representation of civil servant before competent authority was time-barred---Effect---Appeal of civil servant before the Service Tribunal was also time-barred---Findings of Service Tribunal on the question of limitation totally against the settled principles of law could not be sustainable.

Shabir Ahmed v. AJK Government and another 1997 PLC (C.S.) 478 rel.

(c) Azad Jammu and Kashmir Up-gradation of Posts Rules, 1984---

----Sched.---Civil service---Upgradation---Claim on the basis of principle of parity with other departments only---Effect---Services of a civil servant were regulated by law---For each and every post, rules were enforced which clearly mentioned the grade of post, channel of promotion, criteria of upgradation of the post, promotion of incumbent and without any statutory provision, neither any civil servant could be granted higher grade in random manner nor could be any post upgraded.

(d) Civil service---

----Upgradation of post---Allegation of discrimination---Civil servant claimed parity with the post of other department---Service Tribunal accepted appeal of civil servant and directed to promote the civil servant---Effect---Mere nomenclature of any post did not entitle the incumbent for the grade and privileges of the same nomenclature of the post in any other department or organization---Neither principle of parity was attracted nor it was recognized by any principle of law enunciated by the superior courts---Civil servant had no locus standi or cause of action---Grant of grades and upgradation of post blindly, without taking into consideration the facts and background of the matter, was not an exercise of jurisdiction in a judicious manner---Service Tribunal had fell in grave error of law and facts while passing the impugned judgment---Order of Service Tribunal for grant of upgradation was set aside.

Ch. Shoukat Aziz, Additional Advocate-General for Appellants.

Respondents: Ex parte.

Date of hearing: 14th November, 2012.