PLCCS 2014 Judgments

2014 P L C (C.S.) 56

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ZAHEER AHMED SHEIKH

Versus

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

Writ Petition No.584 of 2013, decided on 15th June, 2013.

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

----S. 44---Writ petition---Civil service---Re-employment policy---Re-employment on contract after retirement---Procedure---Respondent retired Secretary to government was re-appointed on contract basis---Provisions of re-employment policy of government had been violated in re-employment of respondent---Validity---Re-employment beyond superannuation should be an exception and not the rule, which should be recommended only in cases where government considered that the person was highly competent, with distinction in his profession/field and no qualified experienced person was available from the existing cadres---Retention of the officer should be in the public interest and should not block the promotion prospects of other officers---No request for grant of ex-post facto approval to the re-employment, extension in service, contract employment in any circumstances should be entertained---Administrative secretary concerned should refer the proposal of re-employment to the scrutiny committee in the form of summary, containing recommendation of the Minister incharge--- Perusal of the impugned notification of re-employment of respondent revealed that all the provisions contained in the policy notification were not taken into consideration at the time of appointment of respondent---Appointment of respondent was declared illegal and set aside---Writ petition was allowed.

(b) Administration of justice---

----Act/Rule prescribing performance of an act in a specific way---Deviation---Scope---Where an Act or Rule prescribed a specific mode for performance of an act, then such act should be performed in that manner otherwise, it would be deemed to have not been performed at all.

Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 and Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60 rel.

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

----S. 44---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), Ss.4 & 5---Writ petition---Maintainability---Civil service---Promotion---Writ of mandamus---Consideration for promotion---Direction to competent authority--- Powers of Service Tribunal---Scope---Petitioner aggrieved by non consideration for promotion invoked the constitutional jurisdiction of High Court---Validity---Petitioner solicited direction in the nature of mandamus for promotion against the disputed post and for implementation of departmental statutory rules---Direction could not be issued by the Service Tribunal---High Court directed the respondent department to place the case of petitioner for promotion before the Selection Board---Writ petition was allowed.

Abdul Khaliq v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706 rel.

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; Sardar Aftab Ahmed and 5 others v. Maj. (Rtd.) Muhammad Aftab Ahmed and 3 others 1999 MLD 187; Mst. Sardar Begum and another v. Additional Custodian, Evacuee Property, Azad Jammu and Kashmir Government and others PLD 1980 SC AJK 1; Arif Hussain Dar v. Board of Revenue through Secretary, Muzaffarabad and 5 others PLD 2002 AJK 14 and Azad Government and 2 others v. Muhammad Naseer Chaudhary and 2 others 2010 SCR 186 ref.

Kh. Attaullah Chak and Maqsood Ahmed Sulehria, for Petitioner.

Abdul Rasheed Abbasi and Syed Hazoor Imam Kazmi, for Respondents.

2014 P L C (C.S.) 237

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

NAEEM AHMED ABBASI

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 4 others

Writ Petition No.717 of 2011, decided on 18th June, 2013.

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

----S. 44---Writ petition---Civil service-Appointment---Failure to meet the required "minimum qualification"---Principles---Post of Audio/Video Technician was advertised, "minimum qualification" required was Matric in Science along with three years diploma in electronics---Petitioner having higher qualification in the field was refused to allow to participate in the test and interview as he had not possessed "minimum qualification" provided for induction---Petitioner was Matric with science and also had Degree of Bechlors of science in Electronics---"Minimum qualification" for appointment meant that anybody possessing the qualification less than the prescribed could not be considered for appointment but if a candidate having higher qualification was available, the bar of "minimum qualification" would not operate---Validity---Petitioner was Matric with science subject but was not in possession of the diploma in electronics---Petitioner had not fulfilled the "minimum qualification" for the post in question---Petitioner was lacking the "minimum qualification", therefore not entitled for the appointment---Writ petition was dismissed.

Umar Hayat v. Azad Government and 3 others 1999 PLC (C.S.) 93 ref.

Khurram Iqbal v. Deputy Director Food, D.G. Khan and another 2013 SCMR 55 rel.

(b) Pleadings---

----Parties could not be allowed to travel beyond their pleadings.

(c) Administration of justice---

----No direction could be issued in absence of necessary part.

Abdul Rasheed Abbasi for Petitioner.

Sadaqat Hussain Raja for private Respondents.

Noorullah Qureshi for Official Respondents.

2014 P L C (C.S.) 361

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD NAZIR CHAUDHARY and 2 others

Versus

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

Writ Petition No.670 of 2013, decided on 13th May, 2013.

(a) Azad Jammu and Kashmir Appointment and Condition of Service Rules, 1977---

----R. 7---Azad Jammu and Kashmir Service Tribunal Act, 1975, S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47--- Writ petition--- Maintainability--- Civil servant---Transfer---Deputation---Terms and conditions of service---Jurisdiction of Service Tribunal---Scope---Employees of Local Council Service were transferred in Local Government and Rural Development Department---Petitioners aggrieved by transfer/deputation of respondents employees invoked the writ jurisdiction of High Court---Petitioners claimed infringement of their basic right from such transfers---Validity---Writ in such like cases was not competent---Grounds raised in writ petition were related to terms and conditions of service---Petitioner had other alternate adequate remedy---Disputes relating to the terms and conditions of the civil servants were given exclusively within the jurisdiction of Service Tribunal---Writ petition was dismissed.

Abdur Rasheed v. AKMIDC and 3 others 2004 PLC (C.S.) 990 and Muhammad Latif Khan v. Sarwar Hussain and others 1995 PLC (C.S.) 182 rel.

Miss Kokab Al-Saba Roohi for Petitioners.

2014 P L C (C.S.) 585

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Dr. MUHAMMAD IQBAL

Versus

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

Writ Petition No.32 of 2007, decided on 11th April, 2013.

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

----O. VIII, R. 5---Allegation of fact---Specific denial in written statement---Scope---Allegation of fact if not denied specifically or by necessary implication in written statement, that fact shall be taken to be admitted by the other party.

(b) Azad Jammu and Kashmir Civil Servants Act, 1976---

----S. 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Promotion of civil servant after superannuation/retirement---Scope---Petitioner was serving in Health Department as Project Director in Grade BS-19; he was deputed as Director Health in Grade BS-20 on current charge basis---Petitioner being fully eligible for the regular promotion in BS-20, requested the department for promotion---Secretary, Health referred the promotion case of the petitioner to the Services Department but the same was not referred to the Selection Board; in the meanwhile, the petitioner on attaining the age of superannuation was retired from service---Petitioner's case was not referred for promotion in Grade BS-20 due to negligent and inefficient attitude of the department---Petitioner could not be deprived from his right of promotion merely due to his retirement---Civil servant during the period of service was eligible for confirmation in any service or against any post, retirement from service, would not deprive him of such confirmation---Petitioner was retired from service but he was eligible to be promoted in Grade B-20, when he took over the charge of Director Health Services---Petitioner was deprived of valuable right of promotion and all the benefits by the negligent and careless acts of the department---Department was directed to refer and recommend the case of the petitioner for promotion with all benefits, salary, etc. and to issue order of promotion of the petitioner---Writ petition was allowed.

Muhammad Riaz Alam for Petitioner.

Muzaffar Ali Zafar, Addl. A.-G. for Respondents.

2014 P L C (C.S.) 754

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Syed SHARAFAT HUSSAIN NAQVI and others

Versus

PUBLIC SERVICE COMMISSION AZAD JAMMU AND KASHMIR through Secretary and others

Writ Petitions Nos.1248 of 2009, 368 and 813 of 2010, decided on 11th October, 2013.

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

----S. 44---Writ petition---Civil service---Appointment---Advertisement for appointment of Assistant Sub Inspectors in the Police Department---Failure of Public Service Commission to fill up all the posts advertized---Effect---Contention of Public Service Commission was that 44 posts were advertized instead of 53---Validity---Names of candidates "A, C, D, E & F" were included in the merit list but were not appointed---Candidates "A, C, D, E & F" had qualified the examination of Public Service Commission and they were entitled for appointment as Assistant Sub Inspector---Public Service Commission had admitted the advertisement of 53 posts in the newspaper---Forty candidates had been appointed and 13 posts had not been filled up by the Public Service Commission on the basis of overall merit list---Public Service Commission was directed to issue appointment order of candidates "A, C, D, E & F" as Assistant Sub Inspector---Writ petitions were disposed of accordingly.

2002 PLC (C.S.) 714 and 2012 SCR 367 ref.

Muhammad Yaqoob Khan Mughal, Sadaqat Hussain Raja, Raza Ali Khan and Atta Ullah Chak for Petitioners.

Asghar Ali Malik, Syed Shafqat Hussain Gardezi, Sardar Muhammad Reaz and Manzoor Pervaiz for Respondents.

2014 P L C (C.S.) 787

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

JAVAID IQBAL

Versus

INSPECTOR-GENERAL OF POLICE, AZAD KASHMIR GOVERNMENT MUZAFFARABAD and 5 others

Writ Petition No.293 of 2007, decided on 10th October, 2013.

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

----Ss. 44 & 4---Writ petition---Civil service---Police constable---Change of cadre from constable to junior clerk and rechange to constable---Allegation of discrimination---Contention of Authority was that neither there was any provision of individual recruitment nor cadre of police force could be changed to ministerial staff---Validity---Department had not specifically denied the contents of writ petition---Evasive denial would amount to admission---Version of department was approbation and reprobation---Petitioner had been waiting for fulfillment of obligation by the department---Other constables junior to the petitioner were adjusted as junior clerk by the department---Petitioner had filed the present petition vigilantly without any delay---Petitioner was competent for absorption as junior clerk---Submission of department with regard to Police Rules was contrary to practice and rules referred by them---Petitioner was an aggrieved person who had been deprived of his fundamental right of "equality before law" and "protection from discrimination"---Department was directed to adjust the petitioner as junior clerk in the Police Department along with all the consequential service benefits forthwith---Writ petition was accepted in circumstances.

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

----O. VIII, R.4---Evasive denial amounts to admission.

Kh. Muhammad Naseem and Farooq Hussain Dar, for Petitioner.

A.A.-G. for official Respondents.

Aftab Ahmed Awan for Respondent No.4.

2014 P L C (C.S.) 846

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Engr. AWAIS SAMAD and others

Versus

AJ&K GOVERNMENT through Chief Secretary, and others

Writ Petitions Nos.518 of 2012 and 87 of 2013, decided on 13th December, 2013.

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

----R. 10-B---Azad Jammu and Kashmir Interim Constitution Act, 1974, S.44---Writ petition---Current charge appointment---Promotion---Scope---Promotion and appointment on current charge basis shall come to an end on appointment of person on regular basis by the Selection Board or on expiry of six months whichever occurred earlier.

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

----S. 27(5A)---Azad Jammu and Kashmir Interim Constitution Act, 1974, S.44---Writ petition---Appointment---Persons employed in government service---Registration of Engineers with Engineering Council---Scope---Petitioners challenged the appointments of private respondents as executive engineers---Contention of the petitioners was that private respondents/B.Tech. Honors engineers not registered with the Pakistan Engineering Council as professional engineers were not qualified to be appointed as Executive Engineer---Validity---Registration of engineers with Pakistan Engineering Council was necessary for professional engineers and not for persons who were employed in government services.

2000 PLC (C.S.) 13; PLD 1963 SC 203; PLD 1969 SC 42; PLD 1987 Lah. 286; PLD 1993 SC (AJ&K) 12; PLD 1995 SC 701; 2001 PLC (C.S.) 11 and PLD 2002 SC (AJ&K) 1 ref.

PLD 1995 SC 701 rel.

Sardar Muhammad Habib Zia for Petitioners (in Writ Petition No.518 of 2012).

Kh. Iftikhar Ahmad for Respondent No.10 (in Writ Petition No.518 of 2012).

Muhammad Yaqoob Khan Mughal for Petitioners (in Writ Petition No.87 of 2013).

Ch. Amjad Ali for Respondents Nos.6, 8 and 9 (in Writ Petition No.87 of 2013).

Nemo for other Respondents.

2014 P L C (C.S.) 912

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SHAHEENA AKHTAR

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad and 7 others

Writ Petition No.122 of 2013, decided on 13th March, 2014.

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

----S. 44---Writ petition---Alternate remedy---Scope---Civil service---Transfer of employee---Contention of petitioner was that department was bent upon cancelling her transfer order on account of political pressure whereas department contended that petitioner got her transfer order issued by using political pressure---Validity---Transfers and promotions of Government employees would fall within the ambit of "terms and conditions" of service and if any Government employee was affected and any policy or rules and regulations were violated then proper forum for redressal was the Service Tribunal---Matters with regard to terms and conditions of service could not be agitated through a writ petition---If any Government employee was transferred violating the policy then such employee had an alternate remedy to approach the Service Tribunal instead of filing a writ petition by the High Court---Writ petition was dismissed in limine.

Sheikh Masood Iqbal for Petitioner.

Ch. Muhammad Siddique for non-Petitioner No.8.

Nemo for other non-Petitioners.

2014 P L C (C.S.) 968

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Prof. Dr. KHALID MAHMOOD and another

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 8 others

Writ Petition No.1095 of 2013, decided on 17th December, 2013.

(a) Women University of Azad Jammu and Kashmir Bagh Ordinance (VI of 2013)---

----S. 10(2)---Women University of Azad Jammu and Kashmir Bagh Ordinance (XCIII of 2013), S.40(2)---General Clauses Act (X of 1897), Ss.6, 24 & 30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Appointment of Acting Vice-Chancellor for Women University---Transitory period---Discretionary power, exercise of---Scope---Contention of petitioner was that appointment of respondent as Acting Vice-Chancellor for Women University was without lawful authority and coram non judice---Validity---Respondent was appointed on deputation till the date of her retirement on attaining the age of superannuation---Women University of Azad Jammu and Kashmir Bagh (Ordinance VI of 2013), stood elapsed after its statutory life whereupon Ordinance No. XCIII of 2013 was promulgated---No provisions for transitory period had been made in the subsequent Ordinance---No saving clause was included in the new Ordinance---If an order was validly passed under an Ordinance which was re-enacted in second Ordinance then non-providing of saving clause would not affect the appointment made/action taken under the previous Ordinance---Appointment of Vice-Chancellor could be made by the Chancellor in accordance with the provisions of S.10(2) of Ordinance, 2013 which did not visualize acting appointment---Acting arrangement could be made by the Chancellor when office of the Vice-Chancellor was vacant or incumbent was absent or was unable to perform the function of the office due to illness or some other cause ---Chancellor could make such arrangement for the performance of duties of the Vice-Chancellor as he deemed fit---Acting appointment/ arrangement could be made when office of the Vice-Chancellor had been permanently filled in and he was unable to perform the functions---Appointment of respondent was without lawful authority---Powers provided in the subsequent Ordinance had already been exercised by the Chancellor by appointing the respondent for the transitory period and same powers could not be exercised second time---Discretionary power should be exercised judiciously and on the basis of rational and objective criteria---Respondent should not suffer for an act of the Authority and she would be entitled for salary for the period performed by her---Chancellor was directed by the High Court to make appointment of the Vice-Chancellor of the University on permanent basis after receiving the recommendations of the Research Committee/Senate, of a duly qualified person in the light of Supreme Court Judgment on the subject---Writ petition was disposed of accordingly.

The State v. Shafi M. Sehwani and another PLD 1997 Lah. 563; Mujahid Hussain Naqvi, Advocate Supreme Court Muzaffarabad and others v. Justice (Rtd.) Basharat Ahmed Sheikh, Mohtasib, Acting Chairman Ehtesab Bureau AJ&K, Mohtasib Secretariat Muzaffarabad and others PLJ 2002 AJ&K 49; Raja Muhammad Nasir Khan v. Acting Vice-Chancellor and others 2013 PLC (C.S.) 353; Prof. Engineer Naib Hussain, Vice-Chancellor, Mirpur University of Science and Technology, Mirpur v. Engineer Prof. Dr. Muhammad Riaz Mughal, Mirpur University of Science and Technology, Mirpur and others 2013 SCR 529; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 and Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546 rel.

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

----S. 4---Right of education---Scope---Right of education was protected as a Fundamental Right.

Sadaqat Hussain Raja for Petitioners.

Sardar M.R. Khan, A.A.-G. and Raja Muhammad Hanif Khan for Respondents.

2014 P L C (C.S.) 1055

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

IFTIKHAR AHMED KHAN

Versus

AZAD JAMMU AND KASHMIR BOARD OF INTERMEDIATE AND SECONDARY EDUCATION MIRPUR through Chairman and 9 others

Writ Petition No.52 of 2013, decided on 11th June, 2013.

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

----S. 44---Writ petition---Maintainability---Alternate remedy---Civil service---Suspension of employee---Petitioner was suspended by the Chairman Board of Intermediate Secondary Education---Chairman of the Board ordered for initiation of departmental inquiry against the petitioner---Petitioner challenged his suspension and order of departmental inquiry being without lawful authority---Validity---No final order had been passed against the petitioner---Petitioner had a right of appeal, if any penalty was imposed upon him---Petitioner was entitled to file an appeal against his suspension order before Authority of Board but he did not file the same---Writ petition lay where there was total absence of jurisdiction but if there was an adequate remedy available then writ petition did not lie---Writ petition was dismissed.

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

----S. 44---Writ petition---Maintainability---Civil service---Quashing of criminal proceedings---Jurisdiction of High Court---Scope---Ehtesab Bureau found the Masters degree of petitioner as bogus---Ehtesab Bureau had initiated criminal proceedings against the petitioner---Petitioner challenged initiation of criminal proceedings before High Court---Validity---Matter was under investigation before the Ehtesab Bureau---High Court had no jurisdiction to quash criminal proceedings at the stage of investigation---High Court, in exercise of writ jurisdiction was not competent to assume the role of investigation agency or trial court to give verdict as to whether accused person committed an offence or not---Writ petition was dismissed.

2002 MLD 1250 rel.

(c) Administration of justice---

----Proceedings regarding criminal and civil liabilities could be initiated side by side against the same person.

Babar Ali Khan for Petitioner.

Ch. Muhammad Anwar for Respondents Nos.1 to 6.

Aurangzaib Chaudhary, Deputy Chief Prosecutor for Respondents Nos.7 and 8.

2014 P L C (C.S.) 1299

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Ch. Jahandad Khan, JJ

Kh. MUSHTAQ AHMED DAR and 13 others

Versus

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

Writ Petition No.142 of 2009, decided on 9th July, 2013.

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

----Ss. 44 & 4---Writ petition---Maintainability---Civil service---Employee of subordinate judiciary---Up-gradation of post of staff of district judiciary---Allowance to the said staff---Equality before law---Scope---Contention of petitioners was that their posts had not been upgraded and allowances for the employees of subordinate judiciary in Pakistan and employees of all the departments of Azad Jammu and Kashmir were receiving privileges on the basis of parity with Pakistan---Validity---Service Tribunal could not give direction under S.4 of Service Tribunals Act, 1973---High Court was the proper forum for any direction if required to be issued---Government had upgraded the posts of employees of other departments but the employees of subordinate judiciary had not been given the same benefit---Rules for appointment for the employees of other departments and subordinate judiciary were also the same---Posts for the employees of district judiciary could not be upgraded due to different nomenclature which were equivalent to the posts of employees of other departments---Government had not denied the claim of the petitioners---Government was directed to upgrade the posts of petitioners in accordance with law---Job of petitioners and similarly placed other employees was same with their counterpart in the Punjab---Petitioners had been treated discriminatory and action of Government was also against the principle of equality before law---Staff of subordinate judiciary in the Azad Jammu and Kashmir was entitled to the enhancement of allowances as had been granted to the staff of subordinate judiciary in the Pakistan---Writ petition was accepted accordingly.

Azad Government and 3 others v. Farhat Shaheen 2007 SCR 62; Finance Department of AJ&K and 2 others v. Mazhar Iqbal 2003 SCR 155 and Muhammad Yousaf v. Government of Punjab and others dated 13-10-2011 rel.

(b) Azad Jammu and Kashmir Service Tribunals Act,1973---

----S. 4---Appeal, filing of---Scope---Appeal could be filed against the final order of the departmental authority with regard to terms and conditions of service.

Azad Government and 3 others v. Farhat Shaheen 2007 SCR 62 rel.

Mir Sharafat Hussain for Petitioners.

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

2014 P L C (C.S.) 48

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, C.J.

MUHAMMAD JAZIB ROOMI and another

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

First Appeals from Order Nos.68 and 69 of 2011, decided on 21st August, 2013.

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

----Ss. 7 & 10---Federal Public Service Commission Rules for Competitive Examination---Allocation---Reserved quota---Appellants were candidates who qualified written test as well as viva-voce of Competitive Examination, 2010 and were included in Punjab quota---Grievance of appellants was that post in each grade had to be considered separately for the purposes of allocation of prescribed merit and provincial quota should be calculated in addition to allocation of seats in open merit---Validity---Claim of appellants that reserved quota should start from excluding open merit seats was not rational---Vacancies earmarked to the province of Punjab were allocated in accordance with prescribed policy---Candidates of Punjab province were allocated against same number of open merit vacancies in various groups/services irrespective of their gender up to overall merit position and only female candidates were allocated against remaining vacancies reserved for women quota of Punjab---Appeal was dismissed in circumstances.

2004 PLC (C.S.) 99; 1997 PLC (C.S.) 958; 1999 SCMR 1863; 2009 PLC (C.S.) 966 and 2010 PLC (C.S.) 783 distinguished.

Abdur Rahman for Appellant (in F.A.O. No.68 of 2011).

Appellant in person (in F.A.O. No.69 of 2011).

Qazi Rafee ud Din Babar D.A.-G. with Muhammad Khalil Director (Legal), Mumtaz Hussain Shaukat A.D. (C.SS) and Rameez Ahmad, Director (CE) FPSC for Respondents.

Dates of hearing: 12th December, 2011, 14th November, 2012, 28th January, 14th February, 21st March, 17th April, 13th May and 4th June, 2013.

2014 P L C (C.S.) 247

[Islamabad High Court]

Before Riaz Ahmad Khan, J

RAKHSHINDA HABIB

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.1021 of 2010, decided on 13th June, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---"Best of the best policy"---Supersession---Petitioner's deceased husband was superseded on the ground of "best of the best policy"---Validity---Petitioner's husband had attained required threshold, but had not been promoted due to the policy known as "best of the best" as well as the criteria of excellence and comparative merit---"Best of the best policy" had no basis and was liable to be struck down---Respondents were directed to consider the case of petitioner's late husband for promotion.

2011 SCMR 295 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Laches---Promotion---Recurring cause of action---Civil servant aggrieved by his supersession filed appeal before Service Tribunal---Appeal pending before Service Tribunal was abated due to the death of civil servant---Constitutional petition was filed by the wife of deceased civil servant after three years of the death of her husband---Validity---Loss in pensionary benefits being caused to the petitioner was on yearly basis, it was thus recurring loss---Constitutional petition did not suffer from laches, in circumstances and was allowed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Claim of promotion by the legal heirs of deceased employee---Scope---Pensionary benefits of promotion to legal heirs of deceased civil servant---Entitlement---Petitioner's deceased husband was superseded who had filed appeal before Service Tribunal---Appeal pending before Service Tribunal had been abated due to the death of civil servant---Wife of deceased civil servant had filed constitutional petition seeking promotion of his late husband---Validity---Civil servant could not be promoted after his death, however, pensionary benefits of promotion could be extended to the legal heirs of the deceased employee---Authorities were directed to consider the case of deceased civil servant for promotion and if he would be found entitled, the benefits of promotion be extended to legal heirs.

2005 PLC (C.S.) 1424 rel.

Abdul Rahim Bhatti and Yasir Rahim Bhatti for Petitioner.

Syed Jalil Hussain, D.A.G. and Rao Abdul Ghaffar, Standing Counsel.

Kashif Jamil, Assistant Director, M.O.F.A.(SSA).

Date of hearing: 3rd June, 2013.

2014 P L C (C.S.) 297

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Dr. ASMATULLAH and others

Versus

INTERNATIONAL ISLAMIC UNIVERSITY and others

Writ Petition No.2942 of 2012, decided on 6th August, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Appointment to academic positions---Petitioners impugned appointment of respondents to various academic positions at the University without advertisement and adherence to competitive process---Validity--- Appointments were made without competition and advertisement---Transparency and rule of law were the only mechanisms through which institutions could be run in order to achieve the objectives for which they were established---Mannerism in which the respondents were inducted could not be termed less than dubious and sham---High Court set aside appointment of respondents, and declared the same to be non-transparent, and illegal---Constitutional petition was allowed, in circumstances.

Constitutional Petitions Nos.11 and 23 of 2012 rel.

Syed Javed Akbar for Petitioners.

Barrister Sardar Umer Aslam for Respondents Nos.1 to 6.

2014 P L C (C.S.) 306

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

AZIZ AHMAD MALIK

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.2886 of 2012 and Criminal Original No.68-W of 2013, decided on 4th March, 2013.

(a) Drugs Act (XXXI of 1976)---

----S. 31(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Chairman of Drug Court, appointment of---Contractual appointment made without following proper procedure and prescribed guidelines---Legality---Petitioner was appointed as Chairman of Drug Court vide notification for a period of 2 years on contract basis with effect from the date of assumption of charge or till further orders, whichever was earlier---Subsequently competent authority issued another notification vide which respondent was appointed in place of the petitioner---Contention of petitioner was that his appointment was for a period of 2 years, therefore, respondent could not have been appointed in his place---Validity---Appointment of petitioner and respondent both were made without following the procedure and prescribed guidelines provided by SI. No. 89 of ESTACODE---Reasons for cancellation/termination of appointment of petitioner were not assigned, and similarly reasons for appointing respondent in place of petitioner were also not assigned---Even requirement of 30 days' notice or payment of basic salary in lieu thereof, had not been fulfilled---Contracts of appointment of both petitioner and respondent were incomplete and thus a nullity in the eyes of law---Notifications vide which petitioner and subsequently respondent were appointed were declared to be null and void---High Court directed the concerned authorities to proceed with appointment of Chairman of Drug Court by adopting the procedure laid down under the law, rules and guidelines provided for such purpose---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual appointment made in violation of the rules---Power of High Court to interfere in such appointment---Scope---Functionaries (competent authority) did not have prerogative or unfettered discretion to delay matters of appointment by adopting a procedure which was beyond the rules, and then to rectify such mistake by issuing supporting notifications and additional orders.

Constitutional Petitions Nos.23 and 11 of 2012 ref.

(c) Constitution of Pakistan---

----Art. 199----Contractual appointments made by the Executive---Power of High Court to interfere in such appointments---Scope---Primarily it was the suitability of the Executive (in matters of appointment), but when illegalities were brought to the notice of the High Court, it had to decide the same by issuing directions and declarations in accordance with the mandate provided by the Constitution.

Hafiz S.A. Rehman for Petitioner (in Writ Petition No.2886 of 2012).

Malik Zahoor Akhtar Awan, Standing Counsel and Noshad Khan, S.O. Ministry of Law for Respondent No.1 (in Writ Petition No.2886 of 2012).

M. Jahangir Wains for Respondent No.2 (in Writ Petition No.2886 of 2012).

Hafiz S.A. Rehman for Petitioner (in Criminal Original No.68-W of 2013).

M. Jahangir Wains for Respondent No.1.

Malik Zahoor Akhtar Awan, Standing Counsel for Respondent No.2 (in Criminal Original No.68-W of 2013).

Date of hearing: 27th February, 2013.

2014 P L C (C.S.) 367

[Islamabad High Court]

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

Dr. M. SOHAIL KARIM HASHMI

Versus

FEDERATION OF PAKISTAN and others

Writ Petitions Nos.969 and 2041 of 2011, decided on 13th January, 2012.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 9(1)(c) & 33(1)---Pakistan Medical and Dental Council Regulations, 2007, Regln.55---Pakistan Medical and Dental Council Employees Service and Administrative Rules, 2009---Constitution of Pakistan, Art.199---Constitutional petition---Registration of criminal case of embezzlement against petitioner---Initiation of disciplinary proceedings against petitioner and suspension of his service by order of the President of the Council due to his involvement in such criminal case---Dismissal of petitioner's departmental appeal by Prime Minister filed against such inquiry order---Validity---Medical and Dental Council Regulations, 2007 had been made by the Council in exercise of its powers under S.33 of Pakistan Medical and Dental Council Ordinance, 1962 with previous sanction of Federal Government---Council in exercise of powers conferred by Regln.55 of Regulations had framed for its internal use Pakistan Medical and Dental Council Employees Service and Administrative Rules, 2009 with previous sanction of Federal Government---Council had not notified the Rules, in official gazette, thus, same were non-statutory---Service of petitioner was governed by non-statutory Rules, he could not invoke constitutional jurisdiction of High Court for redress of his grievance---Constitutional petition was dismissed.

2010 SCMR 1495; 2010 PLC (C.S.) 876; 2007 SCMR 229; PLD 2007 SC 323; 1990 SCMR 999; PLD 2010 Lah. 546; 2010 SCMR 624; PLD 2010 SC 61; 2003 PLC (C.S.) 1029; PLD 2011 SC 963; 2011 SCMR 1886; 2011 SCMR 1990; PLD 2010 Lah. 404; 2011 SCMR 132; 1993 SCMR 346; PLD 2005 SC 806; PLD 1992 SC 132; 2007 PLC (C.S.) 751; 2011 SCMR 1912 and 1991 SCMR 78 ref.

Dr. M. Sohail Karim Hashmi v. Federation of Pakistan through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2009 SCMR 1472; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; PLD 2010 SC 676 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Muhammad Shoaib Shaheen along with Sardar Nasir Ahmed Saghir for Petitioner.

Tariq Mahmood Jahangiri, Dy. A.-G. for Respondents Nos.1, 2 and 5.

Malik Qamar Afzal for Respondents Nos.3 and 4.

Dates of hearing: 23rd and 24th December, 2011.

2014 P L C (C.S.) 516

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

REHAN ALI

Versus

MINISTRY OF TECHNICAL PROFESSIONAL through Secretary and 3 others

Writ Petition No.2841 of 2011, decided on 5th July, 2012.

(a) National Vocational and Technical Training Commission Act (XV of 2011)---

----Ss. 15 & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Organization with non-statutory Rules---"Public servant" and "civil servant"---Distinction---Contract employee seeking regularization of service---Petitioner was appointed in National Vocational and Technical Training Commission ("the Commission") on contract basis and pleaded that despite performing his duties honestly for more than 2 years, he had not been regularized; that present constitutional petition against the Commission was maintainable as S.15 of National Vocational and Technical Training Commission Act, 2011 defined all employees of the Commission as "public servants"---Validity---Section 15 of National Vocational and Technical Training Commission Act, 2011 defined all employees of the Commission as "public servants", but every public servant must not be considered a "civil servant"---Even if petitioner was deemed to be a "civil servant", then his appeal lay to the (Service) Tribunal---Rules framed under S.17 of National Vocational and Technical Training Commission Act, 2011 were not approved as yet by the Government, therefore, same were non-statutory---Constitutional petition against the Commission was not maintainable in such circumstances---Service rules of the Commission did not contain any provision for regularization of contract or daily wage employees, therefore petitioner could not claim regularization in service as a right---No right of petitioner had been violated----Petitioner was removed from service and preferred a petition before the Labour Court, and he had also filed a representation before the Prime Minister, which was pending adjudication---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Maintainability--- Organization with non-statutory rules---Constitutional petition against organization with non-statutory rules by an employee regarding his service matter was not maintainable---Illustration.

(c) Civil service---

----"Public servant" and "civil servant"---Distinction---Every "public servant" must not be considered a "civil servant"---Illustration.

Muhammad Ramzan Khan for Petitioner.

Barrister Afzal Hussain for Respondent No.2.

Date of hearing: 2nd July, 2012.

2014 P L C (C.S.) 562

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, C.J.

JAVED MAHMOOD

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.932 of 2013, decided on 1st April, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Appointment as director of public joint venture---Petitioner was appointed as director of the company vide a notification, for a period of three years, however, before expiry of his tenure, his appointment was cancelled vide another notification, and said notification appointed the respondent in his place---Contention of petitioner was that his appointment could not have been cancelled abruptly without assigning any reason---Validity---Admitted fact on record was that the petitioner, vide a notification, was appointed for a period of three years and without assigning any reason, his appointment could not be cancelled---Alleged complaint against the petitioner required proper inquiry as serious allegations had been levelled against the petitioner and without providing him an opportunity to present his defence, no prompt action could have been taken against the petitioner---Impugned notification, did not mention anything about receipt of complaint against the petitioner and therefore, removal of the petitioner could not be considered legal---Perusal of joint-venture agreement (between Pakistan and China) revealed that the appointment of directors shall be made alternatively with mutual consent of the parties, and therefore if the petitioner was to be replaced by another person from Pakistan, such person could have only be appointed for the remainder of the petitioner's tenure, therefore, the impugned notification on such score was also illegal---High Court set aside impugned notification---Constitutional petition was allowed, accordingly.

PLD 2012 SC 132; 2012 PLC (C.S.) 462; PLD 2010 SC 676; 2011 PLC (C.S.) 116; 2012 PLC (C.S.) 807; 2011 PLC (C.S.) 26; PLD 2011 SC 132; 1995 SCMR 453; 2001 SCMR 909; 1997 SCMR 1508; 1993 SCMR 346 and 1998 SCMR 68 ref.

PLD 2012 SC 132; 2012 PLC (C.S.) 462; PLD 2010 SC 676; 2011 PLC (C.S.) 116; 2012 PLC (C.S.) 807; 2011 PLC (C.S.) 26 rel.

Zaheer Bashir Ansari for Petitioner.

Syed Ali Zafar and Zafar Khaliq Khan for Respondent No.1.

Abdul Hafeez Amjad for Respondent No.2.

Masroor Shah for Respondent No.3.

Date of hearing: 14th March, 2013.

2014 P L C (C.S.) 609

[Islamabad High Court]

Before Riaz Ahmad Khan, J

Miss ZAKIA NAURIN and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petitions Nos.13, 2044, 2293, 3278, 3325, 3385, 3767, 2195, 2229, 2570, 2592, 2642, 2970, 2971, 3352, 3407, 3463, 3557, 3592, 3593, 3595, 3654, 3961, 3963, 4174, 4188, 962,963, 1110, 1892, 2020, 961, 836, 833, 794, 2887, 1983 of 2012, 2082 of 2006, 1951 of 2009 and 2911 of 2011, decided on 31st December, 2012.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Policy introduced by Federal Government to regularize contractual employees in all Ministries/ Divisions/Attached Departments/ Autonomous Bodies/ Corporation having rendered services for a period of one year on contract basis---Refusal of Authority to regularize services of petitioners being contract employees (PBS-17) in Pakistan Railways, Commissioner Afghan Refugees, Higher Education Commission, Live Stock and Dairy Development Board, Earthquake Reconstruction and Rehabilitation Authority---Validity---Record showed that Ministry of Railways had regularized some Medical Officers in BPS-17 in compliance of such policy without referring their cases to Federal Public Service Commission---Ministry of Railways had no authority to give a policy contrary to policy of Federal Government---Petitioners-employees of Railways were entitled to be treated alike other employees having been regularized---Government in said Policy had also provided that same would apply to all employees getting salary from non-development/recurring budget under arrangement of Government---Commissioner Afghan Refugees was attached Department of Federal Government, thus, its said policy was equally applicable to petitioners-employees---Such policy was applicable to autonomous bodies also, thus, Higher Education Commission would fall within its ambit---Higher Education Commission having regularized some officers under said policy could not deny same treatment to petitioners-employees---Such policy would equally apply to employees of Livestock and Dairy Development Board for being under Ministry of Livestock and Dairy Development---Policy would apply to Employees of Earthquake Reconstruction and Rehabilitation Authority having been established by Government under Earthquake Reconstruction and Rehabilitation Act, 2011---Petitioners-employees had been discriminated unlawfully as cases of similarly placed other employees had been sent for regularization to Cabinet Sub-Committee---Petitioners had not sought implementation of terms and conditions of service, High Court on ground of discriminatory treatment meted out to petitioners could issue proper writ---Sending names of one set of employees for regularization and denying same treatment to other similarly placed set of employees would be violative of Art.25 of the Constitution---High Court accepted petitions with directions to Cabinet Sub-Committee to consider petitioners' cases for regularization in accordance with such policy.

PLD 2011 SC 22; 2002 SCMR 82 and 2003 PLC (C.S.) 796 rel.

Muhammad Shoaib Shaheen, Muhammad Umair Baloch, Ijaz Anwar, Nasim Hussain, Muhammad Faazil Siddiqui, Shafqat Mahmood, Imtiaz Anwar Cheema, Muhammad Ramzan Khan, Mumtaz Ahmed and Yasir Rahim Bhatti and Riasat Ali Azad for Petitioners.

Petitioner in person (in Writ Petition No.3767 of 2012).

Muhammad Munir Peracha, Malik Anwar Mukhtar and Nauman Munir Peracha, for H.E.C.

Muhammad Khalid Zaman for C.D.A.

Muhammad Asif Khan and Aftab Ahmed Butt for Housing Foundation.

Saeed Ahmed Zaindi and Ch Muhammad Ashraf Gujjar for ERRA.

Tajammal Hussain for Pakistan Railway.

Babar Ali for Livestock.

Muhammad Usman Ghani, for SAFRON.

Qazi Rafiuddin Babar D.A.G.

Raja Shakeel Abbasi, Standing Counsel.

Nadeem Arshcd S.O. Legal Finance Division.

Rasool Bakhsh Rohi, S.O. I.P.C.

Amjad Saeed Awan, S.O. Establishment and Syed Nizam ud Din, Assistant Director.

Iftikhar Anjum, Director, ERRA.

Farrukh Javed, SEED Certification Officer, Ministry of NFS&R.

Tariq Mehmood, Director Legal, I.S.I.

Zubair Ahmed Director Admin, T.B. Control Programme.

Dates of hearing: 18th, 19th; 21st and 31st December, 2012.

2014 P L C (C.S.) 685

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD TARIQ MALIK

Versus

PAKISTAN through Secretary Establishment Division and 2 others

Writ Petition No.4451 of 2013, decided on 13th January, 2014.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 3(5), (7) & (12)---Constitution of Pakistan, Art. 199---Constitutional petition---Chairman, National Database and Registration Authority ("NADRA")---Removal from office---Legality---Mala fides of Government---Petitioner was appointed as Chairman, NADRA---Federal Government removed petitioner from his office on the basis that he had been appointed by the previous Government without following the proper procedure in law; that his appointment was based on his political affiliations; that he was involved in corrupt practices and committed pilferage of millions of rupees---After removal of petitioner from office Federal Government appointed respondent as Acting Chairman, NADRA---Legality---Notification of petitioner's appointment showed that he was appointed as Chairman, NADRA in accordance with S.3(5) of National Database and Registration Authority Ordinance, 2000, and said post was a tenure post---Petitioner could not have been removed from office of Chairman except by adopting the procedure for termination from such office provided under S.3(12) of National Database and Registration Authority Ordinance, 2000---Even if appointment of petitioner was illegal as argued by Federal Government, his removal from office should not have taken place by an illegal procedure, and he should have been provided an opportunity of hearing---Federal Government did not argue the reasons it had provided in its summary by which petitioner was removed from office---Instead of following the law Federal Government had adopted a threatening attitude, which indicated that the Government frightened the petitioner with regard to his future actions in case he decided contrary to the wishes of the Government--- Such conduct by Government showed its ill-attitude, bad governance and its ill-design plans for the future--- Federal Government avoided to refer the case of petitioner to the Federal Commission for Selection of Heads of Public Sector Organizations, which had been formed on the directions of the Supreme Court and had the jurisdiction to remove heads of statutory bodies in case of their wrongful appointments---Federal Government appointed respondent as Acting Chairman, NADRA by way of a special measure as his entire appointment process including summary of his appointment, finalization on the administrative side, notification of appointment, and issuance of salary cheque was completed on the same day---Neither Federal Government nor respondent could explain as to what was the urgency because of which the process of respondent's appointment was completed so hurriedly---Removal of petitioner appeared to be case of victimization---Federal Government woke up from a lengthy dream after election authorities referred cases to NADRA for certain verifications, and the petitioner refused to follow directives (of the Government)--- Proceedings initiated for removal of petitioner as Chairman, NADRA was a colourful exercise tainted with mala fides, consequently High Court set aside notification whereby services of petitioner were terminated--- High Court also set aside notification by which respondent had been assigned to look after the work of the office of Chairman, NADRA---Constitutional petition was allowed accordingly.

Khawaja Asif's case 2013 SCMR 1205 ref.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 3(5)---Post of Chairman, National Database and Registration Authority ("NADRA")--- Nature--- Said post was a tenure post.

(c) Interpretation of statutes---

----Alteration in law---Agreement by itself could not override the law or its operation---No one could alter or amend the law or its effects by mutual agreement.

Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; Mst. Ghulam Sakina v. Khaliq Bari 1984 CLC 71; United Bank Ltd. Karachi v. Messrs Gravure Packaging (Pvt.) Ltd 2001 YLR 1549; Abdul Razzak v. Karachi Development Authority 1991 CLC 1551; Muhammad Atif Hanif v. Government of the Punjab 2013 CLC 1612 and Sukhdev Singh, Oil and Natural Gas v. Ghagat Ram AIR 1975 SC 1331 rel.

(d) Public office---

----Public official---Termination simpliciter from office---Legality---Such termination was illegal, repugnant and ultra vires of the Constitution.

Agha Salim Khurshid v. Federation of Pakistan 1998 PLC (C.S.) 1345; Muhammad Aslam v. Vice Chairman 2010 PLC (C.S.) 266; Habib Bank Limited v. Ghulam Mustafa Khairati 2008 SCMR 1516; Faisal Sultan v. E.D.O. 2011 PLC (C.S.) 419 and Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 rel.

(e) Public office---

----Public official appointed on "Acting charge basis"---Legality---Such appointment was devoid of legality unless provided for by law.

Hamid Mir v. Federation of Pakistan PLD 2013 SC 244; Bank of Punjab v. Harris Steel PLD 2010 SC 1109 and Barrister Sardar Muhammad Ali v. Federation of Pakistan PLD 2013 Lah. 343 rel.

(f) Employment---

----Contractual employment---Termination from service---Procedure---One could not be ousted (from employment) even if he was a contract employee unless the legal procedure was adopted.

(g) Public office---

----Public official---Removal from service on basis that appointment to office was illegal---"Audi alteram partem", principle of---Scope---Such official had to be provided an opportunity of hearing and defence.

Pakistan International Airlines Corporation through its Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector D.I.Khan and others 2005 SCMR 85; Secretary to Government of N.-W.F.P. Zakat v. Sadaulla Khan 1996 SCMR 413 and Collector of Custom and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 rel.

Babar Sattar along with Ms. Sarah Rehman for Petitioner.

Muhammad Akram Sheikh, along with Ch. Hassan Murtaza Mann, for Respondent No.1.

Muhammad Shoaib Shaheen for Respondent No.2.

Amjad Saeed Awan, S.O. Establishment Division.

Muhammad Imtiaz, Addl. Secretary, Ministry of Interior.

Tariq Aleem Gill, Section Officer, Ministry of Interior.

Date of hearing: 13th December, 2013.

2014 P L C (C.S.) 750

[Islamabad High Court]

Before Riaz Ahmad Khan, J

SOHAIL NAJEEB

Versus

MINISTRY OF FINANCE and others

First Appeals from Order No.140, 187 of 2010 and 33 of 2013, heard on 23rd January, 2014.

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

----S. 34---Companies Ordinance (XLVII of 1984), S.7---Termination of services of employees of Commission---Appeal to High Court---Maintainability---Jurisdiction conferred by S.7 of the Companies Ordinance, 1984 was confined to the matters which were expressly covered by the Companies Ordinance, 1984 itself, such as winding up proceedings, etc. and not the matters, which were not expressly covered by the Companies Ordinance, 1984---Remedy of appeal before High Court under S.34 of Securities and Exchange Commission of Pakistan, Act, 1997 therefore, could be availed only in the cause provided under the Companies Ordinance, 1984 and no other grievance or cause could be agitated before High Court---Employment of the appellants was not covered by the Companies Ordinance, 1984 and therefore, appeal would not lie before High Court in respect of any grievance regarding employment of officers of Securities and Exchange Commission of Pakistan---Appeals were dismissed.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 ref.

Shazia Baig and others v. Securities and Exchange Commission of Pakistan and others 2011 PLC (C.S.) 900 rel.

Abdur Rehman Siddiqui, Syed Naeem Bukhari, Ch. Asghar, Iftikhar Ahmed Bashir and Ijaz Janjua for Appellant.

Makhdoom Ali Khan, Saad M. Hashmi and Khurram M. Hashmi and Khawaja Azhar Rasheed Advocates, for SECP.

Sheikh Muhammad Yaqoob, DAG.

Ibrar Saeed, Law Officer SECP.

Nadeem Arshad, S.O. Finance Division.

Date of hearing: 23rd January, 2014

2014 P L C (C.S.) 853

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

SHAHZADO LANGAH

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.26 of 2014, decided on 10th January, 2014.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Scope---Quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office, is called upon to show by what right he holds the said office so that his entitlement to it may be duly determined and in case the finding is that the holder of the office has no entitlement he would be ousted from that office by judicial order.

(b) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Judicial review---Procedure of "quo warranto" gives 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 has a right---Proceedings of "quo warranto" tend 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.

(c) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Constitutional jurisdiction of High Court---Objects and scope---Object of constitutional remedy of quo warranto is to protect the sanctity of the public office and to safeguard against unlawful appointments---Constitutional objective appears to be more institutional, acting as gatekeepers, the constitutional courts protect the sanctity of a public office and as a result, shield public institutions from usurpers---Constitutional obligation is to ensure that persons selected to public institutions are appointed in accordance with law without the slightest taint of impropriety---High Court is a constitutional platform for petitioner to come forward in public interest and raise their concern about wrongdoing within organization.

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

(d) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Locus standi---Scope---Proceedings of quo warranto are not initiated as a matter of course---Court can and will enquire into the conduct and motive of the petitioner---No precise rule can be laid down for the exercise of discretion by the court in granting or refusing the same and each aspect of the case is to be considered---Petitioner must not himself be an aggrieved party but he must at least show his bona fide.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan and 2 others 1997 MLD 3167; Arun Kumar v. Union of India and others AIR 1982 Rajasthan 67; The Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Dr. Kamal Hussain v. M. Siraj ul Islam PLD 1959 SC 42; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Government of Sindh v. Hasina 1979 SCR 17; Jan Muhammad and others v. Government of N.-W.F.P. 1993 CLC 1067; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Zafar Ali Shah v. Federal Government of Pakistan 1994 CLC 5; Ali Raza Asad Abidi v. Justice Muhammad Ilyas 1995 MLD 2022; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; M.Liaqat Munir Rao v. Shams-ud-Din 2004 PLC (C.S.) SC 1328; Syed Amjad Ali v. Ch. Amir Afzal and others PLD 2006 SC (AJ&K) 69; Ghulam Ali Shah v. Election Commission of Pakistan 2008 CLC 738; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 rel.

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

----Ss. 5 & 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7, 8 & 10---Constitution of Pakistan, Arts.4 & 199---Constitutional petition--- Direct recruitment--- Scope--- Petitioner questioned the appointment of a lawyer against the post of Secretary Law, Justice and Human Rights Division of government of Pakistan on the ground that the said post was to be filled through promotion and not otherwise---Validity---Post of Secretary Law and Justice was required to be held by a person having professional career and qualification in legal discipline---In case the post in question was assumingly be allowed to be filled amongst the persons holding the positions of BS-21 irrespective of their qualification of law, the same would not justify the descriptions and requisites attached with the said post---Law had not prohibited to fill up the said post through direct recruitment on contract basis---No one could be prevented to do an act which was not prohibited under any law---After implementation of judicial policy, the post of Secretary Law and Justice could only be filled through direct recruitment from amongst professional lawyers as had been done in the present case---Constitutional petition was dismissed.

Muhammad Shafique Raja v. Government of Punjab and others 1991 CLC 617 ref.

G.M. Chaudhry for Petitioner.

2014 P L C (C.S.) 929

[Islamabad High Court]

Before Riaz Ahmad Khan, J

ROOMANA GUL KAKAR

Versus

NATIONAL ASSEMBLY SECRETARY OF PAKISTAN and others

Writ Petition No.3176 of 2013, heard on 9th December, 2013.

(a) National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973---

----R. 7(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Deputation---Repatriation to parent department---Scope---Inquiry proceedings against deputationist---No repatriation to parent department till completion of inquiry proceedings---Civil servant/petitioner, who was serving in her parent department in a Province, was taken on deputation in the National Assembly Secretariat---Prior to completion of her deputation period she was repatriated back to her Provincial parent department due to some inquiry proceedings against her, and she was directed to ensure her presence as and when required in connection with inquiry pending against her---Legality---Order of civil servant's repatriation was passed in presence of an inquiry---Repatriation of civil servant was only possible after consultation with the Provincial Government [Rule 7(2) of National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973], which consultation had not taken place in the present case---Impugned order meant that civil servant would have to attend the inquiry proceedings by coming from her Province to Islamabad---Impugned order of repatriation was thus illegal---Since inquiry proceedings were pending against civil servant, therefore, till the completion of the same, she could not be repatriated to her Provincial parent department---Impugned order of civil servant's repatriation was set aside in circumstances---Constitutional petition was allowed accordingly.

(b) National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973---

----R. 7(2)---Deputation---Civil servant from a province serving in National Assembly Secretariat on deputation---Repatriation to Provincial parent department---Scope---Repatriation of such a civil servant was only possible after consultation with the Provincial Government.

Petitioner in person.

Muhammad Anwar Mughal, Raja Khalid Mahmood Khan, Standing Counsel, Saadat Hassan Khan, Officer Incharge (Litigation) National Assembly for Respondents.

Date of hearing: 9th December, 2013.

2014 P L C (C.S.) 1084

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD SALEEM

Versus

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

Writ Petition No.2258 of 2013, decided on 19th February, 2014, Constitution of Pakistan---

----Art. 199---National Management College Leave Policy---Constitutional petition---Civil service---Promotion, eligibility and entitlement---Non-consideration of ---Petitioner was selected for Senior Management Course for promotion---Petitioner attended the said course, but could not complete the same and absented himself beyond period of 7 days due to his conviction in contempt case, which was subsequently suspended---Contention of the petitioner was that he had completed 95% of the said Course and his absence was beyond his control, hence, he was eligible for consideration for promotion to BS-20---Validity---Petitioner remained absent from the course for more than 23-days without any intimation, which the petitioner could have communicated from the jail---Burden to intimate to the authorities in that regard was on the petitioner, which he did not discharge, hence, adverse orders were passed against him in consonance with the National Management College's Leave Policy---Constitutional petition was dismissed in circumstances.

PLD 2010 SC 61; 2010 SCMR 1301; 2000 PLC (C.S.) 563; PLD 2011 SC 927; 2011 PLC (C.S.) 419; AIR 1993 SC 892; PLD 2010 Lah. 498 and PLD 2011 Lah. 382 ref.

Petitioner in person.

Jahangir Khan Jadoon, Standing Counsel with Mushtaq Ahmed Admn. Officer, National Management College for Respondents.

2014 P L C (C.S.) 1199

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

TAHIR MAHMUD

Versus

QASIM M. NIAZI and others

Writ Petition No.1296 of 2014, heard on 4th April, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Disciplinary proceedings initiated against the petitioner for release and diversion of PWP-II Funds---Three inquiry officers were changed in a short span of time---Record was not provided to the petitioner despite repeated requests and the inquiry was conducted in hasty manner---Petitioner exhibited distrust on the inquiry officer---Show cause notice was issued to the petitioner without providing inquiry report and without recording the statement of defence witnesses---Petitioner filed constitutional petition, whereupon, respondent assured to follow the procedure---Petitioner never objected the initiation of inquiry, but only requested the authorities to follow the procedure---Non-observance of legal procedure despite assurance before the court in earlier constitutional petition---Stance taken by the Authority that the procedure which had been followed was not substantiated by any documentary evidence---Effect---Petitioner could approach the court when steps provided by law were not followed by the competent authority or by authorized officer or if any mala fide intention came to light---High Court could issue directions to the functionaries to act in accordance with law and not contrary to law regarding inquiry proceedings---In case of violation of statutes or rules, the only way which remained with an aggrieved person was to resort to the constitutional jurisdiction of High Court---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 4, 10-A, 11 & 199---General Clauses Act (X of 1897), S.24-A---Constitutional jurisdiction---Scope---Civil service---If any functionary transgressed the limit of laws while exercising the powers not vested in him/it, he/it could be restrained by issuing a writ exercising constitutional jurisdiction to protect the rights of any individual regarding fair trial as guaranteed under Arts.4, l0-A, 11 of the Constitution as well as S.24-A of General Clauses Act, 1897---Merely because of retirement of a delinquent officer under the charge could not be made basis for depriving such officer from his rights otherwise guaranteed by law, rules and the Constitution---Constitutional petition was allowed.

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

----S. 4---Constitution of Pakistan, Arts.212(2) & 199---Constitutional petition---Maintainability---Non-functioning of Service Tribunal at relevant time---Effect---Bar of Art.212(2) of the Constitution---Scope---Until the establishment and functioning of the Service Tribunal, the bar of Art.212(2) of the Constitution would not be applicable, however, the concerned Government was directed to expedite appointment of the Chairman, Service Tribunal in terms of S.3 of the Service Tribunals Act, 1973---When relief claimed did not come within S.4 of the Service Tribunals Act, 1973, same was not hit by Art.212 of the Constitution---Issuance of impugned show cause notice had not been challenged through the present Constitutional petition, rather the proceedings initiated by the Inquiry Officer being contrary to law and rules had been challenged---When such was the matter before the High Court, jurisdiction lay with the High Court, when other remedial ways were seized for the petitioner.

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

----Rr. 5, 6, 6(5) & 7---Non-observance of procedure prescribed for inquiry---Effect---Procedure prescribed under Rr.5 to 7 of Government Servants (Efficiency and Discipline) Rules, 1973, manifested some rights in favour of civil servant and were mandatory in nature, including provision of record, cross-examination of witnesses and production of defence witnesses, but, in the present case, such rights/opportunity had not been provided to the civil servant by the authorities, despite submitting many applications---Inquiry Officer had not observed the procedure in that regard, nor any warning had been issued to the civil servant, and no satisfactory reply was given---Rule 6(5) of Government Servants (Efficiency and Discipline) Rules, 1973 depicted administration of warning that the finding shall be recorded to that effect and shall proceed to complete the inquiry in such manner to substantiate justice.

Petitioner in person.

Hafiz S.A. Rehman, Anwar Mughal, Sana Ullah Zahid, D.A.-G. with Umer Saleem Bhatti, S.O. (Litigation), Ministry of Commerce for Respondents.

Date of hearing: 4th April, 2014.

2014 P L C (C.S.) 1255

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

NOOR AZAD KHAN

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and 2 others

Writ Petition No.1596 of 2013, decided on 21st June, 2013.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Civil service---Pendency of departmental proceedings---Direction to expedite such proceedings---Plea of civil servant/petitioner that pendency of departmental proceedings against him was a stigma, and was a hurdle in his way for further promotion--- Validity--- High Court directed concerned authorities to expedite the departmental proceedings against the civil servant and conclude the same within a period of one month---Constitutional petition was disposed of accordingly.

Muhammad Qaboor Khattak for Petitioner.

Rehan Seerat for Respondents Nos.2 and 3.

Raja Shakeel Abbasi, Standing Counsel.

2014 P L C (C.S.) 1262

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

ADNAN KHAN

Versus

FEDERATION OF PAKISTAN through Secretary M/o Information and Broadcasting and another

Writ Petition No.264 of 2011, heard on 9th February, 2012.

Constitution of Pakistan---

----Art. 199 ---Constitutional petition---Civil service---Advertised post---Prescribed criteria for candidates---Written test and interview---Entitlement to appear in interview---Minimum marks of 50% required for entitlement to appear in interview---Petitioner-candidate admitted that he was granted only 34% marks in the written test, which was less than the minimum marks required---Petitioner could not qualify in the written exam, therefore he was not entitled to appear in the interview---Constitution petition was dismissed accordingly.

Abdul Rehman Siddiqui for Petitioner.

Qazi Rafi-ud-Din Babar, D.A.-G. for Respondent No.1.

Rehan Seerat for Respondent No.2.

Date of hearing: 9th February, 2012.

2014 P L C (C.S.) 1267

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

S.J. INDUSTRIES through Sheikh Javed Rafi

Versus

PRIVATIZATION COMMISSION, MINISTRY OF FINANCE GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Writ Petition No.17526 of 1998, decided on 2nd June, 2014.

Privatization Commission Ordinance (LII of 2000)---

----S. 36---Constitution of Pakistan, Art. 199---Constitutional petition---Privatization of an industry ("Enterprise")---Golden Hand Shake scheme introduced for workers of the enterprise by purchaser of industry--- Irregularities in payment--- Information sought by Privatization Commission---Petitioner had purchased the Enterprise in question---Privatization Commission sent a notice to the petitioner seeking information regarding alleged irregularities in payment of Golden Hand Shake---Plea of petitioner that payment of Golden Hand Shake was made after entering into an agreement with the Collective Bargaining Agent; that matter regarding payments under the Golden Hand Shake was a past and closed transaction, thus probing into alleged irregularities was illegal and without jurisdiction---Validity---No final or effective order had been passed by the Privatization Commission, as only a notice had been issued to the petitioner requiring to submit some documents---Hesitation on part of petitioner to submit documents spoke volumes against the petitioner---Although petitioner entered into an alleged agreement with the Collective Bargaining Agent, but workers of the Enterprise could agitate their grievance as they were not a party to the said agreement---In terms of the sale agreement whereby petitioner purchased the Enterprise, the petitioner was bound to supply annual audited accounts performance activity reports and other relevant information etc. within three years of the ownership of the project, nevertheless it did not mean that now Privatization Commission was precluded from getting any information from the petitioner---No Fundamental Right of the petitioner had been infringed---Constitutional petition was dismissed accordingly.

Asad Iqbal Siddiqui for Petitioner.

Rehan Seerat for Respondent No.1.

Date of hearing: 26th May, 2014.

2014 P L C (C.S.) 42

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Sadiq Hussain Bhatti, JJ

NAZIR OAD

Versus

REGISTRAR HIGH COURT OF SINDH

Constitutional Petition No.D-3511 of 2011, decided on 27th November, 2012.

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

----R. 13---Constitution of Pakistan, Art.199---Constitutional petition---Posts of Civil Judges and Judicial Magistrates---Upper age limit fixed for such post was 30 years, while 3 years relaxation was allowed for an Advocate of High Court---Petitioner (Advocate of High Court) being over age by nine (9) months and ten (10) days sought relaxation in upper age limit on the ground of being member of Schedule Caste---Petitioner's plea was that High Court could allow such relaxation under Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 and R.13 of Sindh Judicial Service Rules, 1994---Validity---Record showed that petitioner on the same ground had earlier sought relaxation of upper age limit, which had been declined by Chairman Selection Board/Chief Justice---Petitioner had to approach Chairman again and not to bypass such forum by having approached High Court directly---Petitioner could neither prove any mala fide or discrimination nor point out any of his legitimate right guaranteed by Constitution---Relaxation in upper age limit to a member of Schedule Cast could not be allowed in absence of any applicable rule---Sindh Judicial Service Rules, 1994 only would govern appointment in judicial service---Erroneous denial of a legitimate right guaranteed by Constitution or provided by any statue/rules/regulations would entitle an aggrieved person to invoke constitutional jurisdiction of High Court---Petitioner was allowed to participate in written tests subject to result of his constitutional petition--- High Court dismissed constitutional petition with observations that petitioner, if having passed such written tests, would be at liberty to approach the Chairman for age relaxation well before cut of date of interviews.

C.P.No.D-3095 of 2012 on 31-8-2013 and C.P. No.283-K of 2012, decided on 1-11-2012 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Erroneous denial of a legitimate right guaranteed by Constitution or provided by any statute/rules/regulations would entitle an aggrieved person to invoke such jurisdiction.

Petitioner in person.

Saifullah, A.A.-G. for Respondent.

Date of hearing: 20th November, 2012.

2014 P L C (C.S.) 234

[Sindh High Court]

Before Naimatullah Phulpoto and Riazat Ali Sahar, JJ

MUHAMMAD IBRAHIM

Versus

SECRETARY TO GOVERNMENT OF SINDH and 3 others

Constitutional Petition No.D-761 of 2012, decided on 2nd August, 2012.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Transfer---Petitioner had challenged his repeated transfer from one place of working to another---No specific mala fide had been alleged by the petitioner against any of the authorities---Transfer of an employee was part of service and it related to the terms and conditions of service---Petitioner under Art.212 of the Constitution, could approach Service Tribunal and jurisdiction of High Court was barred.

Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others Civil Petition No.K-534 rel.

Habibullah G. Ghouri for Petitioner.

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

2014 P L C (C.S.) 304

[Sindh High Court]

Before Muhammad Ather Saeed and Irfan Saadat Khan, JJ

MUHAMMAD HANIF and 7 others

Versus

GOVERNMENT OF SINDH through Secretary, Education Department and another

Constitutional Petition No.D-852 and C.M.As. Nos.2464, 2465 of 2009, decided on 4th May, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination from service--- Show-cause notice--- "Audi alteram partem", rule of---Scope---Termination without giving any opportunity of hearing---Effect---Respondent department had terminated the services of petitioners without issuance of show-cause notice or giving them any opportunity of hearing---Validity---Rule of audi alteram partem had not been followed by the department---Petitioners had been terminated without providing of any opportunity---Respondents were directed to re-instate the petitioner---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination from service---Appointments made by Caretaker government---Scope---Petitioners were appointed during the Caretaker regime and they were dismissed from service without issuance of Show-Cause Notice---Petitioners services were terminated on the plea that Caretaker government was not empowered to make appointments during its tenure---Validity---No provision of law had prevented the Caretaker government from making any appointment during its tenure---Impugned termination orders of the petitioners were set aside, in circumstances---Petitioners were re-instated into service with all back benefits---Constitutional petition was allowed.

Hadi Bux Bhatt for Petitioners.

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

2014 P L C (C.S.) 356

[Sindh High Court]

Before Ghulam Sarwar Korai and Nadeem Akhtar, JJ

SHAHAB MAZHAR BHALLI

Versus

PAKISTAN RAILWAYS through Divisional Superintendent and another

Constitutional Petition No.D-3094 of 2013, decided on 22nd August, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Allotment of government residential accommodation---Retention of such accommodation despite transfer to other department---Scope---Petitioner while working as Superintendent, Railway Police was allotted Bungalow---Subsequently petitioner was transferred to Sindh Police, but Bungalow allotted to him remained in his possession---Contention of the petitioner was that Sindh Police Department has not provided any residence to him, therefore he was entitled to retain the possession of Bungalow in question and Railway department could not take back the possession of said Bungalow---Validity---Bungalow in question was for residential purpose of employees of Railway department---Bungalow was allotted to the petitioner while he was posted as Superintendent Railway Police---Petitioner was no more employee of Railway department---Retaining the Bungalow from the date of transfer to Sindh Police was unauthorized and without any policy of Railway Department---Railway Department was fully justified in not accepting the rent sent by the petitioner---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199(1)(5)---Constitutional petition---Issuance of writ by High Court against order issued by Registrar of High Court by order of the Chief Justice of High Court---Scope---No writ or order could be issued to the High Court or Supreme Court, as it amounts issuance of the same against the Supreme Court or High Court itself---Administrative or executive orders passed by the Chief Justice of the High Court or the Registrar while acting under the orders of the Chief Justice, enjoy the protection falling under the ambit of Art.199(5) of the Constitution of Pakistan.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315 and Muhammad Imran v. Peshawar High Court Peshawar, through Registrar and 2 others 2011 PLC (C.S.) 1465 rel.

Abdul Salam Memon for Petitioner.

Nemo for Respondents.

Dates of hearing: 26th and 31st July, 2013.

2014 P L C (C.S.) 389

[Sindh High Court]

Before Ghulam Sarwar Korai and Nadeem Akhtar, JJ

Syed ABID ALI SHAH

Versus

PROVINCE OF SINDH through Chief Secretary and another

Constitutional Petition No.D-2862 and Miscellaneous No.20254 of 2013, decided on 23rd August, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Deputation---Repatriation of deputationist to parent department---Scope---Petitioner was employee of government of Pakistan and placed on deputation at the disposal of government of Sindh and was permanently adjusted/absorbed in government of Sindh---Absorption of Federal government employees in government of Sindh was declared unconstitutional by Supreme Court---Petitioner was repatriated to parent department---Contention of the civil servant was that his parent department had ceased to exist and after permanent absorption in government of Sindh, petitioner/civil servant could not be repatriated to his parent department---Validity---Petitioner was in the service of federal government and his services were absorbed in government of Sindh---Petitioner had ceased to be an employee of the Sindh government and he was liable to be repatriated to his parent department---Impugned notification of repatriation of the petitioner to his parent department had not suffered from any legal defect or infirmity---Parent department of the petitioner had ceased to exist, therefore, petitioner's services repatriated to the Federal Government for adjustment in any department of the federal government.

Zamir Ghumro for Petitioner.

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

Date of hearing: 30th July, 2013.

2014 P L C (C.S.) 422

[Sindh High Court]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

GHULAM NABI MAHER and 6 others

Versus

GOVERNMENT OF SINDH through Secretary, Transport Department, Karachi and 2 others

Constitutional Petition No.D-1172 of 2010, decided on 5th March, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Sindh Road Transport Corporation---Contract employees of such Corporation---Termination of service without giving one month's prior notice---Petitioner's claim for pay of notice period, gratuity and leave encashment---Validity---Record showed that petitioners as regular employees of such Corporation had already received their dues in shape of a Golden Hand Shake---Corporation had re-employed petitioners on contract basis on condition that their service could be terminated at any time without notice and without assigning any reason---Petitioners were not entitled for any gratuity or leave encashment---Corporation while terminating service of petitioners was not legally obliged to issue them one month's prior notice or assign any reason therefor---High Court dismissed constitutional petition in circumstances.

Zain Packaging Industries Limited, Karachi v. Abdul Rashid and others 1994 SCMR 2222 and Waseem Ali v. Chief Administrator Auqaf, Punjab and 2 others 2011 PLC (C.S.) 1630 ref.

Dr. Ishaque Muhammad Shah v. President, National Bank of Pakistan and 2 others 2010 PLC 748 rel.

Abdul Ghani Khan for Petitioners.

Choudhry Bashir Ahmed Gujjar, Asstt. A.-G. and Muhammad Arshad S.O. (Legal) Finance Department, Government of Sindh Karachi for Respondents.

Date of hearing: 26th February, 2013.

2014 P L C (C.S.) 473

[Sindh High Court]

Before Ghulam Sarwar Korai and Nadeem Akhtar, JJ

SHAHAB MAZHAR BHALLI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

Constitutional Petition No.D-3133 of 2013, decided on 23rd August, 2013.

(a) Constitution of Pakistan---

----Arts. 199 & 224(1A)---Constitutional petition---Civil service---Transfer of civil servant---Caretaker government---Functions and powers---Scope---Petitioner/civil servant assailed his transfer by the order of caretaker government---Contention of civil servant/petitioner was that the Caretaker government was not empowered to order transfer of civil servant/petitioner---Validity---Caretaker Government (Prime Minister and Cabinet) was required to perform its functions to attend the day-to-day matters which were necessary to run the affairs of the State and also to watch the national interests in any eventuality in the absence of an elected government---Such government was not authorized to make decisions, appointment having effect on the working policies of the future government, which was likely to take-over after the elections and was not vested with the authority to take decisions concerning the affairs of the government, which were bound to pre-empt the scope and sphere of activity, powers and jurisdiction of an elected government---Caretaker government possessed limited powers and authority particularly in view of the fact that when it was appointed there was no National Assembly in place and thus the important aspect of accountability was absent---Impugned notification of transfer of civil servant was issued and passed by the caretaker government and the same was void and of no legal effect--- Constitutional petition was allowed.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 rel.

(b) Constitution of Pakistan---

----Art. 224(1A)---Caretaker government---Powers and functions of.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 rel.

Abdul Salam Memon for Petitioner.

Nemo for Respondents.

Date of hearing: 30th July, 2013.

2014 P L C (C.S.) 479

[Sindh High Court]

Before Nisar Muhammad Shaikh and Shahnawaz Tariq, JJ

MUHAMMAD JAMEEL and 45 others

Versus

TALUKA NAZIM, TALUKA MUNICIPAL ADMINISTRATION KHAIRPUR and 5 others

Constitutional Petitions Nos.D-20, 757, of 2010, 1040, 2978 of 2011, 516, 582, 674, 793, 1826, 2217, 2370, 2772, 3298, 3472 of 2012 and 360 of 2013, decided on 8th October, 2013.

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

----Ss. 49, 57 & 58---Sindh Local Government (TM/UAAPT) Rules, 2001, R.3--- Constitution of Pakistan, Art.199--- Constitutional petition---Temporary appointment---Termination from service---Non-issuance of show-cause notice---Natural justice, principles of---Applicability---Petitioners were appointed by Taluka Nazim in Taluka Municipal Administration and they accordingly joined the services---Subsequently, the salaries of the petitioners were stopped by the authorities on account of their appointment being illegal---Contention of the petitioners was that the penal action taken by the authorities without serving show-cause notice or hearing the petitioners was violative of principles of natural justice---Validity---Penal action initiated by the departmental authorities to terminate services of petitioners straightaway without affording them opportunity of hearing was illegal---Authorities were bound to issue show-cause notices separately to all the petitioners, although appointed temporarily, by mentioning the set of allegations that they had been appointed by the then Nazim illegally and without adopting the prescribed procedure under the rules---Authorities had acted in utter violation of the principle of audi alteram partem, which was applicable to all judicial as well as non judicial proceedings and was to be read as a part of every statute---Penal action of termination from service taken by the authorities was ab initio void, unconstitutional, ultra vires and against the norms of principles of natural justice---Constitutional petition was allowed.

1998 PLC 19 and Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 rel.

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

----Ss. 49, 57 & 58---Sindh Local Government (TM/UAAPT) Rules, 2001, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Temporary appointment---Termination from service---Personal hearing, right of---Scope---Right of personal hearing to a person against whom an adverse order was to be made was mandatory instead of a straightaway termination from service---Proper course for the authorities was to issue show-cause notice and to conduct inquiry to ascertain the question of his fitness to retain him in service for which he was recruited---Joint order of termination of service passed by the authorities was violative of principles of natural justice and the same had to be treated as a void order.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointments---Lapses/irregularities committed by the departmental authorities---Termination of services of appointees/employees---Scope---Departmental authorities had themselves been guilty of making irregular appointment on purely temporary basis and the employees had not lacked requisite qualifications---Departmental authorities had themselves appointed them on temporary basis in violation of rules for reasons best known to them---Departmental authorities could not be allowed to take benefit of their lapses in order to terminate the service of employee merely because department had committed irregularity in violating the procedure governing appointment.

Tehsil Municipal Administration v. Hanif Masih 2006 TD (Labour) 237; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Abdullah v. Government of Sindh through Secretary Health Services and 2 others 2006 PLC (C.S.) 183 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Arbitrary/wrongful exercise of administrative powers---Lapses/ irregularities committed by the departmental authorities---Action to be taken against delinquent officials responsible for making illegal appointments---Scope---Beneficiary of illegal appointment could not be blamed because primarily the authority who had actually wrongfully exercised its powers, for the reasons best known to it, was bound to be held responsible for the same---Petty employees who had to earn livelihood to support their families and if after having served for a long period they were removed from service discriminately, such action would not promote the cause of justice and it would give rise to a number of problems---Instead of removing the employees from service, action should have been taken against the authority who wrongly exercised its powers.

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

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Salary of irregular appointees, withholding of---Scope---Salaries of the petitioners were stopped on the ground that their appointment was illegal---Validity---Salaries of the petitioners could not be withheld on the ground that their appointment was illegal having been made in violation of the relevant recruitment rules---Action should have been taken against those who were sitting at the helm of affairs---Employees could not be held responsible in any manner whatsoever---Direction to withhold the salaries of the petitioners suffered from inherent vice and the same was void ab initio and could not be given effect to---Principle object behind all legal formalities was to safeguard the paramount interest of justice---Legal precepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fide---Impugned orders were set aside and departmental authorities were directed to release salaries of the petitioners---Constitutional petition was allowed.

Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 and 2000 SCMR 556 rel.

(f) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Disciplinary proceedings---Maxim: "audi alteram partem"---Applicability---Principle embodied in the Maxim, audi alteram partem, was mandatory and essential during the course of initiation of disciplinary proceedings against an employee irrespective of the factum that either it was provided in the relevant rules of concerned department, authority, organization, firm and autonomous body or in the terms and conditions of employment---Any action initiated against any employee or worker without issuance of show-cause notice and conducting of inquiry regarding the allegations levelled against the employee or workman, such penal action would be deemed to be illegal, ultra vires, unconstitutional, bad in law, and not sustainable in the eye of law, and same shall be declared illegal, ab initio void having no legal effect upon continuation of service of said employee or workman.

(g) Constitution of Pakistan---

----Arts.4, 25, 199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Arbitrary, unjust exercise of powers by State functionaries---Scope---Denial of vested right having accrued in favour of any party would justify issuance of direction by High Court under constitutional jurisdiction to set right the wrong---Inspite of the bar contained in Art.212 of the Constitution, the High Court under Art.199 of the Constitution had ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Art.4 of the Constitution---Purpose of constitutional jurisdiction was to do complete justice and no one should be allowed to get away with ill-gotten gains---Constitutional jurisdiction was corrective and directory in nature and it was to be tampered with equity---Superior Courts, in exercise of constitutional jurisdiction, would act as conscious keeper of the Constitution and ultimate protector of rights of citizens and the society at large---High Court could not shut its eyes to wanton use and misuse of powers by State functionaries and the property of the State, therefore, there was no legal embargo for filing of Constitutional petition for availing immediate relief by the aggrieved citizens against State functionaries, if misusing their legal authority.

1986 CLC 1403; 2005 PLC (C.S.) 154 and 2010 CLC 860 rel.

Ghulam Shabbir Shar, Sohail Ahmed Khoso and Illahi Bux Jamali for Petitioners.

Qalandar Bux Phulpoto for Respondents.

Imtiaz Ali Soomro, A.A.-G.

Date of hearing: 4th September, 2013.

2014 P L C (C.S.) 507

[Sindh High Court]

Before Faisal Arab and Muhammad Shafi Siddiqui, JJ

JAVED HUSSAIN LANGAH and 5 others

Versus

GOVERNMENT OF PAKISTAN through Secretary and 292 others

Constitutional Petition No.D-214 of 2011, decided on 24th October, 2012.

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

----S. 4(a)(b)---Sacked Employees (Reinstatement) Ordinance (II of 2009)' S.6---Constitution of Pakistan, Art.199---Constitutional petition---Sacked employees---Reinstatement and promotion---Principles---Petitioners were employees of National Highway Authority and their grievance was that their path of promotion could not be blocked by contract employees reinstated over and above them furthermore they should be promoted first and then sacked employees should be absorbed on leftover seats---Validity---Reinstatement was categorized by Sacked Employees (Reinstatement) Ordinance, 2009 as well as Sacked Employees (Reinstatement) Act, 2010, in two heads i.e. in terms of Ordinance, a person in corporation or government service held post on contract against a regular post and his contract was extended at least once and he had been subsequently dismissed from service, such employee would be reinstated immediately and adjusted against regular post---Other limb of such provision of law dealt with person in corporation or government service appointed on contractual basis against a temporary post and was dismissed, removed or terminated before completion of his contract period, such person would be reinstated immediately for remaining portion of his contract---Contract employee against temporary post was to be reinstated for remaining portion of his contract and he could not be considered at par with all those contract employees who were employed against a regular post, such was the position until Sacked Employees Reinstatement Ordinance, 2009, was in force---Sacked employee appointed on permanent or temporary post; or regular or ad hoc post or otherwise in any corporation or government service against regular or temporary post, in terms of S.4(a) of Sacked Employees (Reinstatement) Act, 2010, would be reinstated and regularized in regular service of the employee on one scale higher of his substantive scale, grade, cadre, group or post of designation, whatever the case might be, held by such employee at the time of his dismissal from service or at the time forced golden handshake was given to the sacked employee---Provisions of S.4(a) of Sacked Employees (Reinstatement) Act, 2010, needed no clarification that it was not meant for an employee who was appointed purely on contract basis---Word "temporary" used in S.4(a) of Sacked Employees (Reinstatement) Act, 2010, or the word "otherwise" could not be kept at par with the word "contract basis"---Constitutional petition was allowed in circumstances.

Ms. Beenish Qureshi for Petitioner.

Munir-ur-Rehman, D.A.-G. for Respondent No.1

Yasir Ahmed Shah for Respondents Nos.2 to 4.

M.M. Aqil Awan for Interveners.

Date of hearing: 24th October, 2010.

2014 P L C (C.S.) 607

[Sindh High Court]

Before Faisal Arab and Salahuddin Panhwar, JJ

MAZHAR MUHAMMAD

Versus

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Vice-Chancellor and another

Constitutional Petition No.D-1087 of 2011, decided on 2nd October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Selection---Standard/criteria---Domain of employer---Scope---Petitioner applied for the post of Manager (Sports) in the University---Scrutiny committee of the University after short listing, called the candidates for interview---Petitioner due to lack of experience was neither short-listed nor called for interview---University after completing all the formalities, appointed a suitable candidate against the post in question---Contention of the petitioner was that he had all the requisite qualifications, as described in the advertisement and the appointee had lacked required experience, therefore process of recruitment and appointment was illegal---Validity---Petitioner had failed to point out any material to show that respondent appointee had no requisite experience at the time of appointment---Employer had prerogative to set standard for selection and made selection from those selected persons who had qualification for appointment---Person though had qualification could not say that he should be selected for appointment in place of particular person---Constitutional petition was dismissed.

2005 SCMR 126; 2012 PLC 1340; 2004 YLR 1969 and PLD 2010 SC 679 ref.

Moiz Ahmed for Petitioner.

Khalid Javed for Respondent No.1.

2014 P L C (C.S.) 623

[Sindh High Court]

Before Farooq Ali Channa and Aftab Ahmed Gorar, JJ

NADEEM AKBAR

Versus

PROVINCE OF SINDH through Secretary, Local Government Department and 2 others

Constitutional Petition No.D-293 and C.M.As. Nos.36687, 932 of 2013, decided on 31st July, 2013.

Sindh Councils Unified Grade Service Rules, 1982---

----R. 4(2)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Appointment---Locus standi---Process of recruitment in Sindh Local Government Board---Role of Provincial Public Service Commission---Scope---Contention of the petitioner was that advertised posts in Sindh Local Government Board were to be filled in through Sindh Public Service Commission---Validity---Petitioner challenging the recruitment process had neither applied for any advertised post in question nor he was civil servant, therefore, Constitutional petition was not maintainable---Contention of the petitioner that appointment in Sindh Local Government Board could only be made upon the recommendations of Sindh Public Service Commission was without substance---Constitutional petition was dismissed.

Fazal Ahmed Samtio v. Province of Sindh 2010 PLC (C.S.) 215 rel.

Dr. Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Shoukat Ali v. Federal Public Service Commission 2010 PLC (C.S.) 455; Shaikh Zayed Hospital and Post Graduate Medical Institutes v. Dr. Muhammad Saeed 2010 PC (C.S.) 976; Dr. Pirzada Jamaluddin Siddique v. Federation of Pakistan 2012 (C.S.) 996; Inman Hussain v. Water and Power Development Authority PLD 2010 SC 546; 2011 PLC (C.S.) 548; Ehsan Ullafi v. Inspector-General of Police, Punjab, Lahore 2006 PLC (C.S.) 964 and Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar AIR 1995 SC 77 ref.

Bakhshan Khan Mahar for Petitioner.

Barrister Zamir Ghumro for Respondents Nos.1 and 2.

Liaquat Ali Shar, Addl. A.-G.

Noor Hassan Malik, State Counsel.

Date of hearing; 24th July, 2013.

2014 P L C (C.S.) 649

[Sindh High Court]

Before Sajjad Ali Shah and Aziz-ur-Rahman, JJ

SHAHID AHMED PATHAN

Versus

OIL AND GAS DEVELOPMENT COMPANY LTD. through Managing Director and 2 others

Constitutional Petition No.D-413 and M.As. Nos.5246, 2282, 5247 of 2013, decided on 4th September, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employees of Oil and Gas Development Corporation are governed by statutory Rules---High Court under Art.199 of the Constitution is right forum for its employees instead of Service Tribunal.

M.D., O.G.D.C.L. and another v. Saleem Ataf and others C.P. No.22405 of 2010 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact---Such jurisdiction is primarily meant to provide expeditious and efficacious remedy where illegality, impropriety and flagrant violation of law regarding impugned action of Authority is apparent on the face of record and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts---Controversial questions of fact cannot be decided in exercise of powers under Art.199 of the Constitution---Disputed and controversial questions of fact can only be determined by competent forums after recording of evidence---Constitutional petition in such like situation is not competent, however, subject to certain exceptions.

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

----R. 12-A---S.R.O.521(I), dated 31-7-2000---Constitution of Pakistan, Art.199---Constitutional petition---Date of birth, alteration in---Principle---Petitioner was employee of Oil and Gas Development Corporation and just few months before his retirement, he wanted to get his date of birth changed in his service record---Validity---Date of birth once recorded at the time of joining of government service was final and under R.12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, no alteration in it was permissible---Such provision was inserted by notification S.R.O.521(1) dated 31-7-2000, before that date alteration in date of birth was permissible but not thereafter---Idea of change/alteration in date of birth was an off-shoot of an afterthought and was common practice/matter of common knowledge that civil suits were used to be filed by employees at the verge of their retirement just for prolonging tenure and enjoying of perks and privileges---Petitioner was not entitled to seek any correction in his date of birth on the basis of fresh matriculation certificate issued to him in year, 2012 under directions of defunct Executive District Officer Education, who on the face of record was never authorized by any competent authority to order such changes in date of birth of petitioner---Petition was dismissed in circumstances.

Syed Tahir Abbas Shah v. OGDCL through M.D. Head Office, Islamabad and another 2011 SCMR 1912; M.D., O.G.D.C.L. and another v. Saleem Ataf and others C.P. No.22405 of 2010; Khalil Ahmad Siddiqui v. Pakistan through Secretary Interior, Interior Division, Government of Pakistan and 5 others 2003 PLC (C.S.) 696 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

Syed Muhammad Saulat Rizvi for Petitioner.

Javed Iqbal for Respondents Nos.1 and 2.

Muhammad Ali Shaikh, D.A.-G.

2014 P L C (C.S.) 729

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Mrs. Ashraf Jahan, JJ

Dr. NASEEM GHANI

Versus

UNIVERSITY OF KARACHI through Registrar and another

Constitutional Petition No.D-354 of 2012, decided on 4th December, 2013.

(a) Maxim---

----"Vigilantibus non dormientibus, Jura subveniunt": Law gives help to those who are watchful and not to those who sleep upon their rights.

(b) University of Karachi Declaration of Date of Birth Rules, 1970 ---

----R. 2---Constitution of Pakistan, Art.199---Constitutional petition---Retirement age of employee was calculated on the basis of date of birth mentioned in matriculation certificate---Scope---University authorities, retired the petitioner as per the date of birth mentioned in her matriculation certificate---Contention of the petitioner/employee was that at the time of her appointment, she submitted middle school certificate showing her correct date of birth, therefore it was incumbent upon authorities to record his date of birth as mentioned on the same and not of matriculation certificate---Validity---Assertion of petitioner regarding production of her middle school certificate showing her different date of birth was an afterthought as the requirement as per service rules applicable to the petitioner was for production of only matriculation certificate by the candidate, therefore there was no occasion for the production of middle school certificate for any purpose---Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Age---Correction/ change in date of birth of employee---University employee at fag-end of his career, sought change in her date of birth---Petitioner/employee got her matriculation certificate rectified with regard to date of birth and sought rectification of his date of birth in service record, which was refused by the authorities---Contention of the petitioner was that as she got rectified her date of birth on matriculation certificate, therefore University authorities should also correct the same in service record---Validity---Employee could have corrected date of birth within two years of joining service and thereafter such option was not open to him/her---Service rules regarding correction of age within two years from entry into service were apparently sound and logical---Employee could not be normally permitted rise from deep slumber and dramatically announce change in date of birth, when about to retire---Constitutional petition was dismissed.

Syed Iqbal Hyder v. Federation of Pakistan and another 1998 SCMR 1994 and Mrs. Yasmeen Abbasi v. Province of Sindh and others SBLR 2009 Sindh 115 ref.

Haq Nawaz Kiani v. The Province of Punjab through Chief Secretary, Government of Punjab and others 1998 SCMR 801 and Government of Punjab through Secretary Education Department Lahore v. Prof. Jamila Malik 1999 SCMR 861 rel.

Petitioner in person.

Moen Azhar Siddiqui for Respondents Nos.1 and 2.

2014 P L C (C.S.) 797

[Sindh High Court]

Before Muhammad Ali Mazhar and Sadiq Hussain Bhatti, JJ

GHULAM MUHAMMAD----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and another----Respondents

Constitutional Petition No.D-613 of 2013, decided on 25th January, 2014.

(a) Hyderabad Development Authority Act (XIII of 1976)---

----S. 7---Sindh Civil Servants Act (XIV of 1973), Ss.2(1)(b)(i) & 10---Constitution of Pakistan, Art.199--- Constitutional petition---Appointment of civil servant by way of transfer against non-cadre post---Scope---Petitioner, who while working as Revenue Officer in Water and Sewerage Board was transferred and posted as Director General of City Development Authority and subsequently repatriated to his parent department---Contention of the petitioner was that he was competently appointed by the government, therefore the order of repatriation was politically maneuvered and illegal---Validity---Development Authority was a statutory body and had its statutory rules under which its employees were governed---Government could appoint Director General of the Authority on such terms and conditions as may determine, but the said post was a cadre post, therefore the Government could not appoint any person on a cadre post without fulfilling the requisite formalities of the other mandatory requirements---Civil servant of a non-cadre post could not be transferred to hold the cadre post which was meant for recruitment through competitive process---Petitioner was initially appointed as Accounts Officer, then posted as Chief Financial Officer and then Director General of the Authority---Petitioner was not brought in through competitive process to hold the post in question, therefore was required to be repatriated to his original posting/department---Constitutional petition was dismissed.

Zahid Akhter v. Government of Punjab and others PLD 1995 SC 530 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 distinguished.

2013 SCMR 1752 rel.

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

----Ss. 4, 5 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Tenure, appointment and transfer---Discretion of executive authority---Scope---Appointing authority could not be allowed to exercise discretion at their whims or in an arbitrary manner, rather they were bound to act fairly, evenly and justly---Ordinary tenure for a posting had been specified in the law or rules, such tenure must be respected and could not be varied except for compelling reasons.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 rel.

Abrar Hassan, Usman Shaikh, Muhammad Iqbal Ch. for the Petitioner.

Khalid Jawed Khan, A.-G., Adnan Karim, A.A.-G., Abdul Jalil Zubedi, A.A.-G. for Respondents.

Muhammad Nawaz Shaikh, for the intervener.

Nazir Ahmed Dhoon, Additional Secretary, Local Government Department, Government of Sindh.

2014 P L C (C.S.) 873

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Syed ALI IRTEZA RIZVI

Versus

PAKISTAN REINSURANCE COMPANY LIMITED through Chairman/Secretary and another

Constitutional Petitions Nos.D-3526 of 2011 and D-246 of 2012, decided on 30th April, 2014.

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

----Reglns. 29 & 30---Constitution of Pakistan, Art.199---Constitutional petition---Allegation of misconduct against employee---Fresh inquiry, holding of---Scope---Proper opportunity of hearing and right of defence---Allegation against petitioners, who were General Secretary and President of Pakistan Reinsurance Corporation Employees Union respectively, was that they forcibly entered into room of Corporation Secretary and used foul and abusive language for acceptance of demands of workers---Petitioners claimed that they were exonerated in the first inquiry, however record of same was allegedly lost due to a fire at the office of respondent-corporation---After a second inquiry petitioners were found guilty of misconduct and were punished by placing them four stages lower in time scale---Plea of petitioners was that they were exonerated in the first inquiry report; that appointment letter whereby Inquiry Officer was appointed, was not provided to them to know as to who was going to conduct the inquiry; that Inquiry Officer who found them guilty was biased; that an Inquiry Officer was changed/replaced due to protest lodged by the petitioners, however the same person appeared as a witness in the inquiry against them, and that they had been victimized on account of their trade union activities---Validity---Proper opportunity was not given to the petitioners---During second inquiry Chairman of the Corporation and security guard were not called by Inquiry Officer---Present case was a fit case for holding of a fresh inquiry---Impugned office order, whereby petitioners were awarded punishment, was set-aside in circumstances with directions that fresh inquiry should be conducted against petitioners; that management of the respondent-corporation should appoint a senior officer as Inquiry Officer to hold the inquiry; that ample opportunity of hearing and right of defence should be given to the petitioners in the inquiry proceedings, and that Inquiry Officer should record statement of all witnesses with right of cross-examination to the other side---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Inquiry proceedings against an official---Factual controversy relating to inquiry proceedings---Such controversy could not be thrashed out by the High Court in its constitutional jurisdiction.

Moiz Ahmed for Petitioner (in C.P. No.3526 of 2011).

Syed Shoa-un-Nabi for Petitioner (in C.P. No.246 of 2012).

Syed Daanish Ghazi, Rizwan Saeed and Sikandar Khan for Respondent No.1.

Abdul Sadiq Khan Tanoli, Standing Counsel.

2014 P L C (C.S.) 914

[Sindh High Court]

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

NIZAMUDDIN

Versus

GOVERNMENT OF SINDH through Chief Secretary and 2 others

Constitutional Petition No.D-23 and M.As. Nos.109, 846, 1883 of 2013, decided on 16th April, 2013.

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

----S. 10---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Posting and transfer of civil servant---Terms and conditions of service---Transfer of petitioner before expiry of three years with malice---Claim of transfer/posting as a right---Effect---Nothing had been brought on record to show that the act of the authorities was tainted with malice or was based upon political considerations---Facts disclosed in the petition also did not suggest that it was a case of frequent unreasonable transfer/posting---Impugned transfer/posting had been made in view of administrative exigency---Transfer/posting of a civil servant was a matter which related to terms and conditions of the service which were required to be agitated before the competent authority---Civil servant could not dispute his transfer and posting by way of filing constitutional petition---Constitutional petition was dismissed.

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

----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition--- Maintainability--- Alternate remedy--- Terms and conditions of service--- Transfer of civil servant--- Jurisdiction of Service Tribunal--- Scope--- Civil servant can be transferred /posted by the competent authority to meet the administrative exigency, and a civil servant cannot raise any objection in that regard---If a civil servant was aggrieved by such transfer/posting then such dispute, which relates to terms and conditions of the employment, can be agitated before the forums provided under the statute upto Service Tribunal, and not by way of filing a constitutional petition---Constitution provides for creation of an independent forum i.e. Service Tribunal for resolution of disputes by civil servant and prohibits filing of constitutional petition---Constitutional petition was dismissed.

Corruption in Hajj Arrangements In 2010 PLD 2011 SC 963; Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and others 2013 SCMR 1 and Syed Mehmood Akhtar Naqvi and others v. Fedration of Pakistan and others PLD 2013 SC 195 distinguished.

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

Amjad Ali Sahito for Petitioner.

Syed Tarique Ahmed Shah for Respondent No.3.

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

Date of hearing: 16th April, 2013.

2014 P L C (C.S.) 933

[Sindh High Court]

Before Nisar Muhammad Shaikh, J

SOHAIL AKHTAR CHANG

Versus

ABDUL KARIM and 8 others

Representation/Appeal No.HC/ADMN/00849, decided on 22nd March, 2014.

(a) Civil Service---

----Civil Service---Seniority---Fixation of---Civil servant filed objections regarding provisional seniority list, which was rejected treating the list as final---Civil servant was considered for promotion on numerous occasions, but was superseded by way of promoting his juniors owing to his questionable record---Such supersessions were never challenged by him---Appeal was dismissed in circumstances.

(b) Sindh Judicial Staff Services Rules, 1992---

----R. 11(1) Explanation-II---Appellant was superseded twice by his juniors when they were promoted---Effect---Officer promoted first shall rank senior to the officer promoted subsequently.

(c) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1974---

----R. 13(iv)---Appellant was considered for promotion, but was superseded---Effect---Clause (iv) of R.13 related to the civil servant who had not been considered for promotion, while the appellant in the present case, was considered for promotion, hence, said rule was not of any help to his case.

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

----Ss. 4 & 8---Civil servant who was not promoted to the higher grade in 'one batch' together with others, could not retain inter se seniority as in the lower grade.

Appellant in person.

Respondent No.1 in person.

Nadeem Nawaz, Establishment Clerk/Representative of District and Sessions Judge, Hyderabad.

Nemo for Respondents Nos.2 to 9.

Date of hearing: 10th July, 2013.

2014 P L C (C.S.) 954

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

ZAMIR IQBAL KHAN and another

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petition No.D-5463 of 2013, decided on 23rd January, 2014.

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

----S. 10---Constitution of Pakistan, Arts.212 & 199---Constitutional petition---Transfer and posting---Terms and conditions of service---Bar of Art.212(2) of the Constitution---Scope---Civil servant aggrieved by transfer invoked the Constitutional jurisdiction of High Court---Contention of the petitioner was that impugned transfer order was passed during ban period and in violation of rules and instructions---Validity---Constitutional petition under Art.199 of the Constitution was not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal had exclusive jurisdiction---High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief would first decide the question of its jurisdiction---Matter relating to posting and transfer of civil servant related to terms and conditions of service and thus fell within the exclusive jurisdiction of Service Tribunal---Question of posting of government servant squarely fell within the jurisdictional domain of competent authority and even if the order was mala fide, ultra vires or coram non judice, the matter fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as result of bar of Art.212 of the Constitution---Constitutional petition was dismissed.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 distinguished.

Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Ayyaz Anjum v. Government of Punjab and others 1997 SCMR 169; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Imam Bakhsh and others v. Deputy Commissioner, Layyah and others 1992 SCMR 365; Rana Muhammad Sarwar v. Government of Punjab and another 1990 SCMR 999 and Peer Muhammad v. Government of Balochistan and others 2007 SCMR 54 rel.

Sarfraz Ali Metlo for Petitioners.

Abdul Jalil Zubedi, A.A.-G.

Abdul Fattah Malik and Ms. Farkhunda Mangi for Respondent No.3.

Date of hearing: 20th January, 2014.

2014 P L C (C.S.) 1014

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Prof. Dr. MASOOD HAMEED KHAN and others

Versus

GOVERNOR OF SINDH throughPrincipal Secretary and others

Constitutional Petitions Nos.D-4469, D-4526 and D-4885 of 2013, decided on 12th June, 2014.

Dow University Health Sciences (Sindh Act No.X of 2004)---

----S. 12---Constitution of Pakistan, Art.199---Civil service---Appointment against the post of Vice-Chancellor---Vested right---Scope---Past and closed transaction---Discrimination Amendment in S.12 of Dow University Health Sciences Act, 2004, whereby term of the office of Vice-Chancellor was reduced from three consecutive terms to two consecutive terms and a proviso was added to the effect that the Vice-Chancellor who remained Vice-Chancellor of the University for more than two terms on commencement of the Amendment in the Act ceased to hold the office---Petitioner had enjoyed two consecutive terms of the office of the Vice-Chancellor and was appointed as such for third term, which ceased on the basis of amendment in S.12 of Dow University Health Sciences Act, 2004---Contention of the petitioner was that after his appointment a vested right had been created in his favour and the same had been a past and closed transaction, which could not be reopened on the basis of amendment in the statute with retrospective effect---Validity---Philosophy or standpoint of "past and closed transaction" was not applicable to the case of appointment of Vice-Chancellor who had served eight years but for the third term also he was claiming the Vice-Chancellorship as a vested right---Ongoing or tenure not completed for the third term could not be treated as "past and closed transaction"---Legislature had made amendment to ensure that nobody would be able to enjoy the third term as Vice-Chancellor for a period of twelve years which would create frustration and exasperation amongst the persons who were also eligible to be appointed Vice-Chancellor, but in the present case the Vice-Chancellor did not want to leave the position for his successor in interest---Such elongated and lengthened tenure of a person to a particular post or office usually brought to a standstill and/or immobilize the avenue and forthcoming prospects of other eligible and suitable persons---Appointment for the third term could not be considered as past and closed transaction when the legislature within its competence and powers had incorporated specific proviso to handle the situation and it was not the petitioner only whose appointment was negated through proviso to amended S.12 but the amendment was made in other universities also in which the Vice-Chancellors were given the appointment or extension for the third term---Legislature was competent to make the laws to maintain and create harmony among all institutions---Third term of the Vice-Chancellor, in the present case, could not be claimed as a vested right---Appointment letter clearly expressed that the petitioner was appointed for a period of four years or till the pleasure of Chancellor which manifested that the appointment was made in the nature of revocable contract which could not be specifically enforced---Ousting of third tenure of Vice-Chancellor in the entire Province of Sindh could not be treated discriminatory to the petitioner rather it was a reasonable classification in the entire province, so nobody would be able to hold the third term as Vice-Chancellor in the university/institution---Amendment of the statute was neither discriminatory nor had violated the equal protection of law---Constitutional petitions were dismissed.

Province of East Pakistan v. Sharafatullah and others PLD 1970 SC 514 and Gulshan Spinning Mills Ltd. and others v. Government of Pakistan 2005 PTD 259 ref.

Ghulam Hyder Shah and others v. The Chief Land Commissioner Sindh and others 1983 CLC 1585; The Chief Land Commissioner, Sindh v. Ghulam Hyder Shah and others 1988 SCMR 715; I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041; Ch. Nazir Ahmad v. Government of Punjab and others PLD 2013 Lah. 621; Dr. Mobashir Hassan and others v. Federation of Pakistan PLD 2010 SC 265 and Fida Hussain v. The State PLD 2002 SC 46 distinguished.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Ghulam Mustafa Insari v. Government of the Punjab and others 2004 SCMR 1903; Ch. Shabbir Hussain v. Registrar, Lahore High Court Lahore PLD 2004 SC 191; Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad and others 1989 SCMR 1892; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; Yar Muhammad v. Secretary, Finance Department Government of Punjab 2011 SCMR 1537; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan and others 1993 SCMR 1905; N.-W.F.P. Public Service Commission v. Muhammad Arif and others 2011 SCMR 848 and Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 rel.

Dr. Muhammad Farogh Naseem for Petitioner (in C.P. No.D-4469 of 2013 and for Respondent No.4 in C.P. No.D-4526 of 2013).

Haider Waheed for Petitioner (in C.P. No.D-4526 of 2013).

Zeeshan Adhi for Petitioner (in C.P. No.D-4885 of 2013).

Sibtain Mehmood, A.A.-G.

Date of hearing: 6th May, 2014.

2014 P L C (C.S.) 1032

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Mrs. ZEENAT AHMED

Versus

FEDERATION OF PAKISTAN through Secretary Defence and 2 other

C.MA. No.4063 of 2014 in Constitution Petition No.D-877 of 2014, decided on 12th June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Transfer to another station---Wedlock Policy, violation of---Scope---Transfer in question was neither in public interest, nor for valid reason---Petitioner was holding of additional charge of the post of other station---Effect---Petitioner challenged her transfer from place `K' to 'R' on the ground of Wedlock Policy and mala fide---Petitioner was not issued three months' notice before transfer from one station to another---Contention of the petitioner was that she had been transferred without any exigency of service on the basis of mala fide intentions in violation of Wedlock Policy---Validity---Mere holding of an "additional charge" of other station in a particular period of time did not mean that the petitioner could not be given the advantage and benefit of wedlock policy in future nor this could be presumed that the petitioner had waived her right to claim this benefit---Once the competent authority issued wedlock policy, it was their responsibility to implement and adhere to such policy guidelines so that the benefit might be given to all such persons entitled for the same; Its implementation could not be left at the whims and volition of the competent authority to bestow this benefit or advantage on pick and choose basis---Such type of guidelines or policy should be implemented across the board without any discrimination---Civil servant could not claim any particular post as vested right but, in the present case, the petitioner had not claimed any vested right against any particular post but the petitioner only wanted the implementation of wedlock policy in her case which was introduced keeping in view the socio-economic problems and hardships faced by husbands and wives in Government Service due to posting at different stations---Facility was extended through Office Memorandum to "such class" of Government servants also, to be able to serve at the place of resident of their spouses, irrespective of the fact that such spouses were employed with the Government, private sector or even unemployed---Constitutional petition was accepted in circumstances.

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

----S. 10---Constitution of Pakistan, Arts.199 & 35---Constitutional petition---Posting and transfer---Wedlock Policy---Article 35 of the Constitution wherein it was provided as principle of policy that the State shall protect the marriage, the family, the mother and the child---Wedlock Policy explicated or itinerant around this principle of policy which was intended to ensure the benefit of a family and it also advanced social good---Unless there were insurmountable hurdles, requests of the husband and the wife to be posted at one station were required to be considered with an element of compassion and kindness.

(c) Constitution of Pakistan---

----Arts. 212(2) & 199---Service Tribunals Act (LXX of 1973), S.3---Constitutional jurisdiction of High Court---Scope---Civil service---Transfer in violation of transfer policy---Alternate remedy of appeal---Contention of the petitioner was that as the Service Tribunal was not functioning, therefore, the High Court had jurisdiction to entertain the constitutional petition against the transfer order---Validity---Service Tribunal was not functional, the petitioner could not be non-suited on the ground of non-functioning of Tribunal, as the petitioner could not be given directions to approach the non-functional Service Tribunal---High Court, before exercising extraordinary jurisdiction, must be satisfied about the non-availability or inefficacy of alternate remedy provided under law and once it was shown to the satisfaction of the High Court that alternate remedy was expedient and effective, then obviously High Court would be reluctant to exercise constitutional jurisdiction---To disentitle a person from extra-ordinary relief, the alternate remedy available must be a remedy in law i.e. remedium juris, which was not less convenient, beneficial and effective---To effectively bar the jurisdiction of the High Court under Art.199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which was sought to achieve through a constitutional petition---If no adequate or alternate remedy was provided under the law constitutional jurisdiction could be set into motion for the redress of an aggrieved person---Constitutional petition could be invoked without waiting the statutory period of 90 days unless the Service Tribunal was functioning.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Dr. Younis Asad Shaikh v. Province of Sindh, Secretary Health Department 2009 PLC C.S.) 735; Miss Rukhsana Ijaz v. Secretary, Education Punjab 1997 SCMR 167; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Mrs. Abida Jabeen v. Secretary Education Schools) Government of Punjab 2012 PLC C.S.) 665 ref.

Sarfraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232; Sajida Abdullah ESE Teacher) v. District Coordination Officer and 2 others 2011 PLC C.S.) 592; Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others 2003 PLC C.S.) 1322 and PLD 2011 SC 277 Suo Motu Case No.24 of 2010 and Human Rights cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 rel.

Khalid Jawed for Petitioner.

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

Muhammad Arshad Khan Tanoli for Respondent No.3.

Asif Hussain Mangi, Standing Counsel.

Date of hearing: 6th May, 2014.

2014 P L C (C.S.) 1060

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

AYAZ ALI and 4 others

Versus

GOVERNMENT OF SINDH through Chief Secretary and 67 others

Constitutional Petition No.D-2069 of 2011, decided on 7th May, 2014.

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

----R. 11-A---Constitution of Pakistan, Art.199---Constitutional petition---Quota of deceased employee---Notification of policy---Retrospective effect---Petitioner applied for vacancy of tube-well operator in place of his deceased father but authorities declined to appoint him against deceased quota---Validity---Notification dated 17-7-2009 provided cutoff date as 17-7-2007, and benefit of deceased quota was made applicable to petitioner whose father had expired on or after 17-7-2007---Delay in appointment could not be attributed to petitioner, as such notification dated 17-7-2009 being adversely affecting petitioner, could not be applied retrospectively---Prior to issuance of such notification, petitioner had already acquired a vested right and was entitled to be governed by earlier notifications dated 2-9-2002 and 11-3-2008, read with letter dated 13-12-2008 issued by Services and General Administration Department---Petitioner was entitled to be appointed under deceased quota after fulfillment of requisite codal formalities as otherwise required under policy---Petition was allowed in circumstances.

Shafqat Ali v. Government of Sindh 2010 PLC (C.S.) 536; Hafeezullah and another v. Province of Sindh 2012 PLC (C.S.) 889 and Zafar Ali Kalhoro v. Government of Sindh in C.P No.D-647 of 2010 ref.

Sher Muhammad Baloch for Petitioners.

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

Date of hearing: 23rd April, 2014.

2014 P L C (C.S.) 1153

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Dr. IQBAL JAN and others

Versus

PROVINCE OF SINDH and others

C.M.As. Nos.33746 of 2013, 8421 and 8422 of 2012 in Constitutional Petition No.D-3462 of 2012, decided on 14th May, 2014.

(a) Sindh (Regularization of Ad hoc and Contract Employees) Act (XXV of 2013)---

----Ss. 2(b), 2(d), 2(e) & 3---Constitution of Pakistan, Arts.3, 4, 25, 38 & 199---Constitutional petition---Contract employees---Regularization of service---Object and Scope of Sindh (Regularization of Ad Hoc and Contract Employees) Act, 2013---Exploitation---Discrimination---Eligibility and suitability of the petitioners was not questioned---Contention of the petitioners was that they were made a subject of discrimination, as summary for regularization of their services of other similarly circumstanced employees of Health Department had been forwarded, but the petitioners were left out despite the fact that during the pendency of the Constitutional Petition on 25th March, 2013, Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 had been promulgated---Regularization of project post and exclusion of employees on daily-wages and work-charged basis---Scope---Employee who had been appointed on ad hoc and contract basis against the post in BS-1 to BS-18 or equivalent basic scales, who were otherwise eligible for appointment on such post and was in service in the Government department and its project in connection with the affairs of the Province, immediately before the commencement of said Act, shall be deemed to have been validly appointed on regular basis---Said Act excluded the employees appointed on daily-wages and work-charged basis from its purview---After promulgation of said Act, there was no interference or hindrance for regularization of employees who were performing their duties on ad hoc or contract basis and any denial to such right to any employee who was otherwise eligible under the said Act would be deemed to be exploitation---Under Art.3 of the Constitution, it was the responsibility of the State to ensure elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work---Government was responsible to apply and allow the benefit to all employees placed in equal and similar circumstances without any discrimination and not to pick and choose the employee for conferring the benefit or advantage---When the law giver had declared or promulgated any beneficial law, it was his responsibility to implement it across the board with an open heart and benevolence without any conservative or rigid approach---Said Act was a beneficial statute proclaimed with the sole aim to provide and secure the rights of a particular category or class of employees for their betterment and to safeguard and preserve the contractual or ad hoc employment into a permanency---Said Act enshrined that the efforts should be made to bequeath the benefit and its advantage to all the deserving employees in rem rather than to seek ways and means to deprive them on one or the other pretext which was against the norms of good governance---Constitutional petition was disposed of with directions to the authorities.

Muhammad Akram Solangi and others v. D.C.O, Khairpur and others 2013 PLC (C.S.) 121 and Ikram Bari's case 2005 SCMR 100 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Relief moulding of---Court may take judicial notice of the changed situation and circumstances and can also mould and modify the relief accordingly.

Zamir Ghumro for Petitioners.

Abdul Jaleel Zubedi, A.A.-G.

Date of hearing: 14th May, 2014.

2014 P L C (C.S.) 1177

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

Syed AZAM RAZA

Versus

SINDH AGRICULTURE UNIVERSITY through Registrar and another

Constitutional Petition No.D-244 of 2010, decided on 29th May, 2014.

Sindh Agriculture University Act (V of 1977)---

----S. 28(vi)---Sindh University Law (Amendment) Ordinance (II of 1982), S.4(b)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Civil service---Upgradation---Petitioner was appointed as LAN Technician on the basis of Bachelor's Degree in Computer Sciences on contract basis by the duly constituted Selection Board and was subsequently regularized as LAN Technician in BPS-16 plus usual allowances as admissible under the rules against the vacant post of LAN Technician (BPS-17) on which the petitioner was already working---Petitioner, after obtaining his Master Degree sought his upgradation in BPS-17---Contention of the authorities (University) was that the terms and conditions of service of respondent/University were not governed by statutory rules, therefore, constitutional petition was not maintainable and that no vacant post of LAN Technician (BPS-17) was available with the University---Validity---Petitioner's services were regularized by the Vice-Chancellor of the University in exercise of powers vested in him under S.28(vi) of Sindh Agriculture University Act, 1977 read with S.4(b) of the Sindh University Laws (Amendment) Ordinance, 1982---Order of regularization of services of the petitioner, had stated that the services of the petitioner would be subject to provisions of Sindh Agriculture University Employees (Efficiency and Discipline) Statutes and other service statutes and rules enforced from time to time, therefore, the contention of the authorities that there were no statutory rules of employment was itself contradictory to the regularization order issued by the authorities---Objection regarding the maintainability of the Constitutional petition was misconceived and was repelled and it was held that since the respondent/University was a statutory body and had statutory rules governing the terms and conditions of employment, therefore, constitutional petition was maintainable---Petitioner, at the time of regularization of his services, was adjusted against a vacancy which was of (BPS-17) and not of (BPS-16); petitioner had thereafter qualified himself for being regularized in (BPS-17) as admittedly petitioner had obtained the Master's Degree and that fact was not in dispute, therefore, the vacancy in BPS-17 was available and the petitioner was working against that post as a LAN Technician but in BPS-16 instead of BPS-17---When the petitioner had obtained the Master's Degree, the post of LAN Technician (BPS-17) existed at that time---Act of university whereby the petitioner had been asked to wait and apply for the said post afresh as and when the same was advertised after going through the process of fresh appointment was not proper and justified---Petitioner had not been dealt with in accordance with law and had been deprived of his lawful rights despite having requisite qualification as well as lien of a post on which the petitioner was already working and a clear vacancy for which existed---Any subsequent advertisement for such vacant post after the petitioner had obtained Master's Degree was not legal and correct and could not be appreciated---When the vacancy was available, the promotion was a right of such person, who was otherwise qualified and as soon as the petitioner passed and obtained the Master's Degree, he should have been awarded (BPS-17)---Constitutional petition was allowed to the extent of grant of upgradation to (BPS-17) and the claim of back benefits was refused.

Abdul Rashid Khan v. Registrar, Bahauddin Zakaria University, Multan and others 2011 SCMR 944; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381 and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 ref.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Janaid Ahmed 2013 SCMR 1707 rel.

Syed Muhammad Saulat Rizvi for Petitioner.

Muhammad Arshad S. Pathan for Respondents.

Date of hearing: 13th May, 2014.

2014 P L C (C.S.) 1217

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

MOULA BUX alias NOUMAN and another

Versus

GOVERNOR OF SINDH/CHANCELLOR University of Sindh and others

Constitutional Petitions Nos.D-310 of 2012, D-1499 Karachi D-25(Hyd.) and D-1500(Kar.) of 2014, decided on 12th June, 2014.

Sindh University Act (XVI of 1972)---

----S. 13(1) [as amended by Sindh University Laws (Amendment) Act (XLIII of 2013]---Constitution of Pakistan, Arts.199(1)(b)(ii), 48 & 105---Constitutional petition---Jurisdiction of High Court---Judicial review---Scope---Appointment against the post of Vice-Chancellor of University---Whether a vested right of or person working as Vice-Chancellor---Past and closed transaction---Discrimination---Reasonable classification---Scope---Violation of guidelines formulated by the authorities for the appointment of Vice-Chancellor of the public sector University as well as Art.105 of the Constitution---Sindh University Laws (Amendment) Act, 2013 introduced amendments, whereby terms of the office of Vice-Chancellor were reduced from three consecutive terms to two consecutive terms---Petitioner enjoyed two consecutive terms of the office of the Vice-Chancellor and was appointed as such for third term, which ceased on the basis of amendment in the Sindh University Act, 1972---Contention of the petitioner was that after his appointment a vested right had been created in his favour and matter of appointment had become a past and closed transaction, which could not be reopened on the basis of amendment with retrospective effect; that through the amendment a proviso to the effect that the existing Vice-Chancellor would cease to hold the office was added, but in the case of another university no such proviso was added, so the petitioner could not be removed and he was entitled to complete his third term---Validity---Philosophy or standpoint of past and closed transaction was not applicable in the case of appointment of Vice-Chancellor who had served eight years but for the third term also he was claiming the Vice-Chancellorship as a vested right---Legislature had made amendment to ensure that nobody would be able to enjoy the third term as Vice Chancellor---If a person would be allowed to continue as Vice-Chancellor for 10 to 12 years, it would create frustration and exasperation amongst the persons who were also eligible to be appointed Vice-Chancellor, but in the present case the Vice Chancellor did not want to leave the position for his successor in interest---Such elongate and lengthened tenure of a person to a particular post or office usually brought to a standstill and/or immobilize the avenue and future prospectus of other eligible and suitable persons---Once the law had been amended in such a way that no person shall be allowed to continue third term as Vice-Chancellor, then the same was not discriminatory---Ousting of third tenure of Vice-Chancellor in the entire Province of Sindh could not be treated discriminatory to the petitioner, rather it was a reasonable classification in the entire province, so nobody would be able to hold the third term as Vice-Chancellor in the university/institution---Present was a case of a reasonable classification, which was applicable across the board---Curtailment of Vice Chancellor's third tenure was expressly mentioned in the Amending Act without any doubt or ambiguity in language, which was capable of being interpreted only in one way---Ongoing or uncompleted tenure for the third term could not be treated as past and closed transaction---Legislature was competent to make the laws to maintain and create harmony among all institutions---Court had no power to question laws made by the duly constituted legislature under the Constitution so long as the legislative authorities acted within the ambit of their powers under the Constitution---Scope of judicial review was limited only to determining whether the enactment was within law-making power conferred on the legislature and whether it violated any express conditions limiting that power---Legislature, which was competent to make a law, had full plenary powers within its sphere of operation to legislate retrospectively or retroactively, therefore, vested rights could be taken away by such legislation and it could not be struck down on that ground---Petitioner was appointed for the third term vide Notification dated 13-8-2014, but his third tenure of two years was made effective from 8-1-2014; Amendment in the law was made by the Sindh Assembly on 19-8-2013, which was assented by the Governor Sindh on 28-8-2013 and the amended Act was gazetted on 16-9-2013; petitioner assumed the charge of third tenure on 8-1-2014 when the law was already amended so after change in law no such benefit could be claimed for the third tenure which was prohibited under the law---Constitutional intent and mandate of Arts.48 & 105 of the Constitution were one of the foundational values of the Constitutional scheme---President and Governor were bound by the advice tendered by the Prime Minister and Chief Minister respectively and in the manner as provided in the Constitution---Constitutional petition of the petitioner was dismissed in circumstances.

Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal Lahore and others 2007 SCMR 318 and Safdar Ali Sahito v. Province of Sindh through Chief Secretary, Government of Sindh and 10 others 2011 PLC (C.S.) 956 ref.

Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; National Industrial Cooperative Credit Corporation Ltd. v. Province of Punjab and another PLD 1992 Lah. 462 and Ghulam Hyder Shah and others v. The Chief Land Commissioner Sindh and others 1983 CLC 1585 distinguished.

Regarding Pensionary benefits of the Judges of Superior Courts PLD 2013 SC 829; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; The Province of East Pakistan and others v. Sirajul Haq Patwari and another PLD 1966 SC 854; Rana Aamer Raza Ashfaq and another v. Dr.Minhaj Ahmed Khan and another 2012 SCMR 6; Molassess Trading and Export (Pvt.). Ltd. v. Federation of Pakistan and others 1993 SCMR 1905; 2001 PLC (C.S.) 956; I.A. Sherwani's case 1991 SCMR 1041; Ch. Nazir Ahmad's case PLD 2013 Lah. 621 and Dr. Mobashir Hassan's case PLD 2010 SC 265 rel.

Zamir Ghumro and Malik Naeem Iqbal for Petitioner (in C.P.No.D-1499 of 2014).

Jhamat Jethanand for Petitioner (in C.P.No.D-1500 of 2014) and for Respondent No.5 (in C.P.No.1499 of 2014).

Abdul Jalil Zubedi, A.A.-G.

Date of hearing 21st May, 2014.

2014 P L C (C.S.) 1292

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

ASGHAR KHAN and 5 others

Versus

PROVINCE OF SINDH through Home Secretary Government of Sindh and 4 others

Constitutional Petition No.D-723 of 2011, decided on 12th May, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Vested right---Laches, principle of---Scope---In year, 2008, petitioners applied for jobs in Sindh police and they were successful in physical and written tests---Petitioners claimed to have a vested right to be appointed for the posts in question---Plea raised by authorities was that petition filed in year, 2011 was hit by principle of laches and petitioner did not have any vested right---Validity---Petitioners did not have vested right for enforcement under Art.199 of the Constitution on the date when they filed petition and it was hit by laches---Consideration upon which Court refused to exercise its discretion, where petition was delayed, was not limitation but matters relating to conduct of parties and change in situation---Laches in the simplest form meant failure of a person to do something which should have been done by him within a reasonable time, if remedy of Constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches---Grant of relief in Constitutional jurisdiction was discretionary and it was required to be exercised judiciously---No hard and fast rule could be laid down for the exercise of discretion by Court for grant or refusal of relief in exercise of extraordinary jurisdiction---Petition was dismissed in circumstances.

Manthar Ali M. Jatoi v. Government of Sindh 1988 PLC (C.S.) 344; Abdul Razzak v. The Collector of Customs and another 1995 CLC 1453; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Chairman, PCSIR v. Dr. Mrs. Khalida Razi 1995 SCMR 698 and Secretary Finance v. Ghulam Safdar 2005 SCMR 534 ref.

Abdul Salam Memon for Petitioners.

Sibtain Mehmood, A.A.-G. and Malik Tariq, D.S.P. (T&R) and Inspector Abdul Rehman for Respondents.

Date of hearing: 14th February, 2014.

2014 P L C (C.S.) 1306

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

MUHAMMAD URS

Versus

GOVERNMENT OF SINDH through Home Secretary and 3 others

Constitutional Petition No.D-1292 of 2011, decided on 20th May, 2014.

Police Rules, 1934---

----R.16.32---Sindh Police (Efficiency and Discipline) Rules, 1988, R.6(3)(b)(i)---Constitution of Pakistan, Art.199---Constitutional petition---Compulsory retirement of petitioner---Finality of order---Revisional jurisdiction---Scope---Petitioner served police department for 36 years but due to his absence without leave, he was proceeded under R.6 (3)(b)(i) of Sindh Police (Efficiency and Discipline) Rules, 1988, and penalty of compulsory retirement was imposed upon him---Appellate authority set aside the penalty and accepted appeal filed by petitioner by converting his absence without leave into medical leave---Authorities sought revision of order passed by appellate authority and declined to implement order already passed in appellate jurisdiction---Validity---Appellate authority passed a judicial order in appeal which by all means was final in nature---Though order of Appellate authority was subject to revision in terms of R.16.32 of Police Rules, 1934, but such revision was only available to petitioner and not department itself and it could only be preferred to the authority next above the prescribed Appellate authority---Appellate authority was the highest authority in police department, as such no revision could have been preferred in the matter, even by petitioner himself---Whether order passed by Appellate authority was correct or not, could only be decided by challenging the same further in accordance with law and not by seeking clarification or reconsideration of the comments already filed by department---Appellate authority in clear terms had passed order in favour of petitioner and after setting aside order of compulsory retirement treated absence period (without any qualification) as leave on medical grounds---After passing of order in appeal, Appellate authority had become functous officio, as no clarification or modification of such order was permissible under the law---Appellate authority had conclusively decided that petitioner stood retired from service at the age of 60 years, therefore, inference drawn by department that there was no categorical decision regarding intervening period was not correct and subsequent orders passed, could not be sustained which were set aside---High Court directed the authorities to implement order passed by Appellate authority in letter and spirit, treating entire period of absence of petitioner as leave with pay on medical grounds---Petition was allowed accordingly.

Petitioner in person.

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

Date of hearing: 7th May, 2014.

2014 P L C (C.S.) 1313

[Sindh High Court]

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

AHMED

Versus

SECRETARY EDUCATION AND LITERACY DEPARTMENT GOVERNMENT OF SINDH and 3 others

Constitutional Petition No.D-1707 of 2011, decided on 16th April, 2013.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches--- Civil service---Appointment on contract basis---Petitioner was issued appointment order whereafter posting had not been given to him---Petitioner approached High Court after considerable lapse of time---No explanation with regard to laches had been given---Contract period of three years of service had already lapsed---Effect---High Court declined to exercise discretion under constitutional jurisdiction and to grant relief to the petitioner who had approached High Court after considerable lapse of time when the contract period of his service had already expired---Constitutional petition was dismissed.

Lal Bux Khoso for Petitioner.

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

2014 P L C (C.S.) 1363

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Syed MUHAMMAD ABBAS RIZVI and others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and others

Constitutional Petitions Nos.D-1085, D-513, D-1760, D-2731, D-3883, D-4242 of 2013 and D-4454 of 2012, decided on 30th October, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---High Court---Bar of jurisdiction---Scope---No final order of departmental authority---Where there was no final order of any departmental authority in field which could be assailed in the Service Tribunal, then the bar of jurisdiction under Art. 212 of the Constitution would not apply.

S.H.M. Rizvi v. Maqsood Ahmed PLD 1981 SC 612; Mian Muhammad Aslam v. The Auditor General of Pakistan 1995 PLC (C.S.) 1178 and Riffat Hassan and others v. Federation of Pakistan 2011 PLC (C.S) 562 ref.

Khalilur Rehman v. Government of Pakistan PLD 1981 Kar. 750; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 PLC (C.S.) 182; Government of Sindh v. Nizakat Ali and others 2011 SCMR 592 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 distinguished.

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

----R. 11(2)(c)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Bar of jurisdiction under Art.212 of the Constitution---Scope---Implementation of a notification issued by the Federal Government---Police Service of Pakistan---Constitutional petition filed before the High Court by police officers seeking implementation of a notification issued by the Establishment Division, Government of Pakistan with reference to R.11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---No order of any departmental authority was in the field which could be assailed in the Service Tribunal---Effect---Constitutional petition would be maintainable in circumstances and bar of jurisdiction under Art.212 of the Constitution would not apply.

(c) Words and phrases---

----"Seniority"---Meaning.

(d) Words and phrases---

----"Ante-dated" --- Meaning.

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

----Rr. 7 & 11(2)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Police service---Claim of ante-dated seniority---Vacancies in Police Service of Pakistan ("PSP")---Provincial quota---Whether date of regular appointment to such vacancies was from the day when the respective vacancy arose or from the date when delayed notification for appointment was issued---Inordinate delay or inaction on the part of Provincial Government in making recommendations for appointment against its allotted quota of vacancies---Effect---Under R.11(2)(c) of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, each officer shall reckon his date of regular appointment to the Police Service of Pakistan from the date when vacancy arose in the senior cadre reserved for that particular province, however this had to be read with R.7 of the said Rules, which provided that members of the police cadre of a Province were appointed to the service on the basis of selection made on the recommendation of the Governor---Said rules implied that as soon as vacancy arose in relation to quota of the province in Police Service of Pakistan, the province should immediately send their recommendations for encadrement in the Police Service of Pakistan---In the present case, recommendation was made by the Provincial Government much after the date of arising of the vacancies in their allotted quota and the petitioner-police officers were claiming seniority with effect from the year 1999 when the vacancies arose in the Police Service of Pakistan for the Provincial Government---Nothing was available on record to demonstrate that the Establishment Division of the Government of Pakistan or Provincial Government made any correspondence amongst themselves for immediate recommendation for encadrement when the vacancies arose---If petitioner-police officers were given ante-dated seniority from the year 1999, i.e. when the vacancies arose in the Police Service of Pakistan, the seniority of many other police officers would be upset and without performing the requisite length of service to a particular post, petitioner-police officers would also claim future promotions on the basis of their antedated seniority---By reason of inaction and procrastination on the part of the Provincial Government, on one hand petitioner-police officers were frustrated and on the other hand, if their grievance was redressed under the force of circumstances, the entire seniority list of police service would be upset and the police officers at large would be seriously affected---If the Province was under deep slumber and failed to forward recommendations of petitioner-police officers to fill up its allotted quota in the Police Service of Pakistan when the vacancies arose in the year 1999, in all conscience, other police officers should not suffer or face the adverse consequence on their career---High Court directed that petitionerpolice officers were not entitled to claim antedated seniority, and their seniority would be reckoned from the date of their notification of encadrement in Police Service of Pakistan and not from the date of arising of vacancy; that in future, the Provincial Government shall send its recommendations immediately for appointment of members of police cadre of Province in accordance with R.7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, upon arising of vacancies against its share in Police Service of Pakistan; that the benefit of R.11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, shall be given in future to all those members of police cadre who were recommended for appointment in Police Service of Pakistan by the province immediately and promptly upon occurrence of vacancy in the Police Service of Pakistan; that in order to avoid complications and combative repercussions in future, the Secretary Establishment Division, Government of Pakistan, should issue notification of encadrement immediately upon receiving the recommendations from the Province for appointment under R.7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, so that retroactive or ex post facto seniority issue/dispute should not crop up or come into sight amongst the members of Police Service of Pakistan---Constitutional petition was disposed of accordingly.

Farman Ali v. Muhammad Ismail 1990 SCMR 1216; D.G. Intelligence Bureau v. Amir Mujahid Khan and others 2010 PLC (C.S) 946 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 ref.

Khalid Javed Khan for Petitioners (in C.P. No.D-1085 of 2013).

Kazi Abdul Hameed Siddiqui for Petitioner (in C.P. No.D-513 of 2013).

Ghulam Akbar Khan Jatoi for Petitioners (in C.Ps. Nos.D-1760 of 2013, D-2731 of 2013, D-3883 of 2013 and D-4242 of 2013).

Ms. Shazia Hanjrah for Petitioner (in C.P. No.D-4454 of 2012).

Shahab Usto for Respondents Nos.4 and 5 (in C.P. No.D-1085 of 2013).

Respondents Nos.4 and 5 present in person.

Asif Hussain Mangi, Standing Counsel.

Shamsuddin, Section Officer, Establishment Division, Government of Pakistan, Islamabad.

Abdul Jaleel A. Zubedi, A.A.-G.

Asad Malhi, A.S.P. Clifton and Akhtar Farooq, A.S.P. Ferozabad are also present.

Date of hearing: 30th May, 2014.

2014 P L C (C.S.) 590

[Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal]

Before Justice Waqar Ahmad Seth and Justice Rooh-ul-Amin Khan, Members

SHAKEEL AZAM AWAN

Versus

CHIEF JUSTICE, PESHAWAR HIGH COURT through Registrar and another

Service Appeal No.7 of 2001, decided on 16th March, 2013.

(a) Civil service---

----Corruption, charge of---Validity---Such charge could not be levelled unless proved by cogent and sufficient evidence.

Raja Muhammad Shafique Javed v. Lahore High Court, through Registrar 2005 PLC (C.S.) 1015 rel.

(b) Civil service---

----Disciplinary proceedings---Judicial Officer---Decided case summoned from Record Room without adopting procedure---Effect---Such act of Judicial Officer would amount to negligence and violation of procedure---Negligence having caused no pecuniary loss or disadvantage to any one would be condonable---Illustration.

Government of Islamic Republic of Pakistan v. Muhammad Yaseen 2002 SCMR 857; Raja Muhammad Shafique Javed v. Lahore High Court, through Registrar 2005 PLC (C.S.) 1015 and Khalid Siddique v. Secretary Excise and Taxation Department, Punjab 2002 SCMR 690 rel.

(c) Civil service---

----Disciplinary proceedings---Charge, proof of---Scope---Charge must be proved on firm evidence.

Khalid Mansoor v. Director FIA 2008 SCMR 1174; Province of Punjab through Director Food v. Farooq Ahmed Rehman 2008 SCMR 1349 and Shibli Farooqui v. Federation of Pakistan and others 2009 SCMR 281 ref.

Ali Qaswar Bokhari v. Secretary Ministry of Interior, Islamabad and others 1999 PLC (C.S.) 1332 rel.

Appellant in person.

Naveed Akhtar, A.A.-G. along with Farhatullah Khan, Additional Registrar (Admn.) for Respondents.

Date of hearing: 16th March, 2013.

2014 P L C (C.S.) 1

[Lahore High Court]

Before Ijaz ul Ahsan, J

AAMIR JUNAID and 143 others

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 5 others

Writ Petition No.12113 of 2010, decided on 19th June, 2013.

(a) Constitution of Pakistan---

----Arts. 4, 10-A, 25 & 199---Constitutional petition---Revenue Department---Naib Qasids/Gardeners/Drivers/Telephone Operators/ Watchmen/Junior Clerks, posts of---Appointments on such advertised posts on contract basis through Departmental Recruitment Committee---Issuance of appointment letters to petitioners on 7-4-2010 and joining their respective services after having been interviewed and selected by such Committee---Termination of services of petitioners vide order dated 31-5-2010 without notice and personal hearing alleging their appointments having been made without observing codal formalities---Department's plea was that District Officer (R) was Appointing Authority and due to his going on leave during recruitment process on account of illness of his father, Deputy District Officer (R) had attended such Committee and signed appointment letters of petitioners, thus, DDO(R) could not exercise powers of DO(R) being an appointing authority, which rendered recruitment process irregular and illegal; and that department had initiated disciplinary proceedings against DDO(R) for his such illegal acts---Validity---Two Members out of five Members of such Committee in their comments filed in Court had conceded to have interviewed petitioners, considered their suitability and recommended their appointments on merits according to contract policy---Nothing was available on record to show issuance of show-cause notice to petitioners or initiation of disciplinary proceedings against them---Record showed that while proceeding on leave, DO(R) being appointing authority had authorised DDO(R) to act in his place and represent him in such Committee, who acted accordingly for being deputized in place of DO(R)---DO(R) had defended his act of delegating powers to DDO(R) and appointments made on his behalf under signatures of DDO(R)---Recruitments, therefore, had been made by a duly appointed Committee, which had owned and defended process of recruitments, whereas issuance of appointment letters to petitioners was merely a formality---Petitioners had no knowledge about working of Government Departments, rather they had acted bonafidely in making applications for recruitment against respective posts---Petitioners after having been selected by such Committee could not be deprived of their accrued valuable rights without due process of law merely on basis of such hyper technical objection of department and that too in absence of any fault on their part---Petitioners had not been alleged to be unqualified for respective posts etc.---Department was legally and constitutionally obliged to have issued notice to petitioners and provided an opportunity to defend themselves in a meaningful manner, but they had been deprived of their such right without just cause---Petitioners, though appointed on contract basis, were entitled to be treated fairly in terms of Arts.4 & 25 of the Constitution---High Court as guardian of constitutional rights of citizens could interfere in a matter involving denial of such rights to them by State functionaries---Courts would jealously and vigorously guard principles of natural justice, which had been violated by department---Record showed that DDO(R) had been exonerated of charges levelled against him in inquiry proceedings regarding appointment of petitioners---High Court set aside impugned termination order while directing department to re-process cases of petitioners by adopting suggested procedure.

Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Fauji Foundation and another v. Shamimur Rchman PLD 1983 SC 457; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another PLD 1989 Kar. 404; Said Karim v. Inspector-General of Police, N.-W.F.P., Peshawar and another 1998 PSC (CS) 337sic; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266; Naubahar Ali v. Vice-Chancellor and others 2010 PLC (C.S.) 783; Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others 2010 PLC (C.S.) 406; Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others 2006 PLC (C.S.) 707; Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others 2007 PLC (C.S.) 179 and Dr. M. Sohail Karim Hashmi v. Federation of Pakistan, through Secretary, Ministry of Health and another 2009 SCMR 1472 rel.

(b) Constitution of Pakistan---

----Arts. 4 & 25---Civil service---Termination of---Contract employees---Scope---Such employees would be entitled to be treated fairly in terms of Arts.4 & 25 of the Constitution.

Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Fauji Foundation and another v. Shamimur Rchman PLD 1983 SC 457; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another PLD 1989 Kar. 404 rel.

Hafiz Tariq Naseem for Petitioners.

Faisal Zaman Khan, Addl. A.-G. along with Nadeem Ashraf, Senior Member (BOR) and Zulfiqar Ali, Director Legal (BOR) for Respondents.

Date of hearing: 19th June, 2013.

2014 P L C (C.S.) 15

[Lahore High Court]

Before Shoaib Saeed, J

Dr. MANZOOR AHMAD

Versus

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

Writ Petition No.3806 of 2013, decided on 6th May, 2013.

Punjab Civil Service Rules---

----R.7.2---Constitution of Pakistan, Art.199---Constitutional petition---Salary of government servant under suspension---Entitlement of salary of such employee---Scope---Petitioner was denied the salary during suspension---Validity---Government servant under suspension shall remain entitled to the pay and allowances that he was drawing immediately before his suspension---Department was directed to make arrangements of arrears of salaries of the petitioner as well as regular payment of future salary---Constitutional petition was allowed.

Malik Muhammad Zafar Iqbal for Petitioner.

Mehr Nazar Abbas Chawan, A.A.-G. for Respondents.

2014 P L C (C.S.) 29

[Lahore High Court]

Before Ijaz ul Ahsan and Shahid Bilal Hassan, JJ

Lt. Commander (Retired) NAEEM JAVED

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor, Lahore and another

Writ Petition No.6763 of 2008, heard on 18th July, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Non-statutory rules of service---Principle of "master and servant"---Scope----Principle of "master and servant" was applicable to the employees whose services were not governed by any statutory rules---Constitutional petition was not competent.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Contractual employee---Termination of contract---Claim of re-instatement---Scope---Where the services of contract employee were terminated before time, at best, he could claim damages to the extent of unexpired period of his service---Constitutional petition was not maintainable.

Federation of Pakistan v. Muhammad Azam Chattha 2013 SCMR 120 rel.

(c) University of the Punjab Act (IX of 1973)---

----S. 15(3)---Constitution of Pakistan, Art.199---Constitutional petition---Termination of retired employee appointed on contract---Applicability of government directive on autonomous University---Scope---Petitioner after his retirement was appointed on contract basis in the University---Government issued direction to remove all employees appointed after retirement on contract basis---Before completion of tenure of contract, the Vice-Chancellor of the University, while complying with the directive of government relieved the petitioner from the University service---Contention was University was not under the administrative control or supervision of the government, directive issued by the government was not binding on University being governed by an independent statute---Validity---University being an autonomous body was not bound by the directive issued by the government---University administration was empowered to decide whether they were to follow the directions given by the government or not---University authorities, in their wisdom opted to follow the directions of the government issued in respect of appointment of retired employees---University administration had taken a step in the right direction as all postings/appointments should normally be made on regular basis after the publication and observance of necessary formalities---Re-employment of retired employees on contract had been deprecated---Constitutional petition was dismissed.

PLD 2011 SC 277 and 2011 SCMR 582 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy of termination of retired officials appointed on contract basis---Pre-mature retirement---Scope---Petitioner, a University employee having premature retirement was not governed by the government policy---Policy of government was relatable to re-employment of retired officers/officials and had not distinguished between any category of premature retired persons---Constitutional petition was dismissed.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Termination simpliciter---Natural justice, principles of---Personal hearing---Scope---Petitioner's contractual appointment was terminated without giving any opportunity of personal hearing---Contention was that termination of petitioner was in violation of principles of natural justice---Validity---Petitioner was not being stigmatized so the ground of violation of natural justice was insignificant---Right of hearing was always to be linked by the merits of the case and was not a technical right---Constitutional petition was dismissed.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 and Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029 rel.

Munshi Tahir Zahoor v. Additional Secretary to Chief Justice 2006 PLC (C.S.) 101; Zonal Manager U.B.L. and another v. Mst. Parveen Akhtar PLD 2007 SC 298; Pakistan International Airlines Corporation through Chairman v. Shehzad Farooq Malik 2004 SCMR 158; Abdul Rashid Khan v. Registrar Bahauddin Zakaria University Multan and others 2011 SCMR 944; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; Usman Ghani and others v. Islamia University and others 2012 PLC (C.S.) 830; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan International Airline Corporation and others v. Tanweer ur Rehman and others PLD 2010 SC 676; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 and Dr. M. Afzal Beg v. University of the Punjab and others 1999 PLC (C.S.) 60 ref.

(f) Administration of justice---

----Right of hearing---Such right was always to be linked by the merits of the case and was not a technical right.

Tariq Masood Khan for Petitioner.

Muhammad Shahzad Shaukat, Legal Advisor University of the Punjab, Lahore for Respondents.

Date of hearing: 18th July, 2013.

2014 P L C (C.S.) 39

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Rao MUHAMMAD AFTAB

Versus

PROVINCE OF PUNJAB through Secretary Schools, Education, Lahore and 3 others

Writ Petition No.3725 of 2012, decided on 17th February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Post of school teacher, advertisement for---Educational criteria for applicants---Mentioning of specific criteria in the advertisement---Effect---Provincial Government advertised post of Elementary School Educator (Science-Math), BS-9---One of the educational criteria for applicants laid down in the advertisement was Intermediate of Science (F.Sc.) with Physics, Chemistry, Biology and Mathematics---Petitioner applied for said post on basis of his Diploma of Associate Engineer in Electronic Technology, but his application was rejected on the ground that said diploma was not equivalent to Intermediate of Science (F.Sc.)---Legality---Admittedly petitioner had not passed F.Sc. examination with the subjects provided in the advertisement rather obtained a diploma of Associate Engineer in Electronic Technology---Had the intention of concerned department been to appoint candidates having qualification 'equivalent' to F.Sc. (Physics, Chemistry, Biology, Mathematics) it would have stipulated the same in the advertisement---Non-mentioning of such fact in the advertisement meant that only those candidates were required who had (specific) qualification as laid down in the advertisement---Petitioner did not fulfill the criteria as laid down in the advertisement---Even otherwise petitioner, during his three years diploma, studied subjects which were not theoretically as detailed and extensive as required by a student who had passed F.Sc. in Physics, Chemistry, Biology and Mathematics---No illegality or irregularity was committed by the concerned authority in rejecting application of petitioner for the post in question---Constitutional petition was dismissed in circumstances.

Mian Tariq Hussain for Petitioner.

Muhammad Arif Raja, Addl. A.-G. on Court's call.

2014 P L C (C.S.) 73

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

GHULAM YASIN

Versus

ACCOUNTANT-GENERAL PUNJAB and others

Writ Petition No.21545 of 2011, heard on 17th November, 2011.

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

----S. 18---Punjab Civil Services (Pension) Rules, 1955, Ch.VIII---Constitution of Pakistan, Arts.9, 25, 212, 2A, Preamble & 199---Constitutional petition---Civil Service---Pension---Commutation of pension---Quantum of pension to be granted to civil servants after lapse of the period of commutation, determination of---Increase in pension---Effect of such increase on the quantum of pension payable after lapse of period of commutation---Petitioners, after retirement from civil service commuted 50% of their pension for a period of 15 years and during said period of commutation, the monthly (50%) pension had increased by certain percentages over the years---Contention of the petitioners/pensioners was that after the period of commutation ended, the restored commuted portion of the pension should be at par with the 50 % pension as it stood after lapse of 15 years---Validity---Pension of the petitioners was increased every year in the range of 5% to 20% and 50% pension of the petitioners in the year 2008 was much higher than in the year 1993---Said increase in pension covered the inflationary tendencies over the years---Pensioners commuted their 50% pension for a period of 15 years, which meant that a lump sum payment of 50% of the pension on the basis of the pension as it stood in the year 1993 was worked out over a future period of 15 years and handed over to the pensioners ---During said period of 15 years, the benefit of increase in pension was enjoyed by the pensioners only to the extent of 50% which was the pension received by them monthly---Under the Punjab Civil Services (Pension) Rules, 1955, the pension stood restored at the end of the commutation period which meant that the pensioners were once again entitled to 100% pension as it stood on that day---Best index to gauge the pension due on the said date was the amount of 50% pension being received monthly by the pensioners on the said date and pension due would now be double the said amount---Preposterous to imagine that a civil servant be given pension in the year 2008 which he was entitled to draw in 1993 (15 years ago) as such action offended the right to livelihood of the pensioners guaranteed under Art.9 of the Constitution and failed to meet the test of economic justice which is also an integral part of right to life as provided in the Preamble and the Objectives Resolution to the Constitution (Art.2A)---Depriving a civil servant of his lawful pension was also discriminatory when compared to equally placed retired civil servants who were drawing the current rate of pension, which offended Art.25 of the Constitution---No civilized system could provide for such an unreasonable and uneconomical post retirement benefit to their employees who had given their golden years for the public service of the country---Petitioners were therefore, entitled to all increments in pensions accumulated over the last 15 years and restored computed portion of the pension must be at par with the remaining 50% net pension as it stood on the day of the expiry of the commutation period--- Constitutional petitions were allowed, accordingly.

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

Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Muhammad Arshad Saeed, D.I.-G. Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 29 others 1994 SCMR 1033 and Smt. Poonamal v. Union of India AIR 1985 SC 1196 rel.

Additional Accountant-General Pakistan Revanue, Lahore v. A.A. Zuberi 2011 PLC (C.S.) 580; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Muhammad Arshad Saeed, DIG Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 29 others 1994 SCMR 1033 and Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153 ref.

(b) Civil Service---

----Pension---Object concept, significance and purpose---Pension was a post retirement benefit of a civil servant that was earned by a civil servant by giving the best years of his life in the service of the country---Such post retirement monetary allowance was geared to comfort and protect a civil servant in the post retirement days when he ordinarily had no other source of income, was infirm and of old age---Pension was therefore, the very life-line of a civil servant in post-retirement days and, therefore, an integral part of his livelihood and perhaps more dearer than the salary received during his service---Pension cannot be a static amount as it had to provide for the rising cost of living and escalating inflation which a retired civil servant had to face and survive in and therefore like salary, pension was a real time concept.

Additional Accountant-General Pakistan Revanue, Lahore v. A.A. Zuberi 2011 PLC (C.S.) 580; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Muhammad Arshad Saeed, D.I.-G. Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 29 others 1994 SCMR 1033; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; and Smt. Poonamal v. Union of India AIR 1985 SC 1196 rel.

Syed Muhammad Saqlain Rizvi, Mian Masood Ahmed for Petitioner (in connected Writ Petition No.6293 of 2011).

Khawaja Salman Mahmood, Asstt. A.-G., Punjab, Khalid Mehmood, Deputy Secretary (SR) Finance Department, Irfan Ahmad Janjua, Law Officer, Accountant-General, Punjab, Lahore, M. Mushtaq Qaisrani, Account Officer, Accountant-General Officer, Punjab, Lahore for Respondents.

Date of hearing: 17th November 2011.

2014 P L C (C.S.) 203

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

KHALID HABIB

Versus

PAKISTAN TELECOMMUNICATION CORPORATION LTD. and others

Writ Petition No.27001 of 2011, decided on 18th December, 2012.

(a) Constitution of Pakistan---

----Art. 199(1)(a)(i)--- Constitutional petition--- Maintainability---Territorial jurisdiction---Order passed by a person performing in connection with the affairs of Federation---Order was passed by the Prime Minister at Islamabad---Constitutional petition was filed before Lahore High Court---Validity---Prime Minister of Pakistan was a representative of all federating units of Pakistan and was the chief executive of the government and as such he was a person undoubtedly who was performing functions in connection with the affairs of Federation---Prime Minister was deemed to be functioning in the entire Pakistan and as such there was no doubt that impugned order could be assailed successfully before the Lahore High Court.

Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Salahuddin and 3 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Mst. Shahida Maqsood v. President of Pakistan and another 2005 SCMR 1746; Dr. Zahoor Ahmed Shah v. Pakistan Medical and Dental Council through Secretary and another 2005 MLD 718; Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad PLD 2006 Lah. 789; Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others 1998 SCMR 2389; Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; Superintendent of Police Head Quarter Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387; Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703 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 rel.

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Danish Kaneria v. Pakistan and others 2012 CLC 389; Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and 3 others 2010 PTD 1233; Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others PLD 2009 Kar. 154; Mayzone Pak. International v. Additional Secretary, Government of Pakistan 2002 CLC 388 and Mohtarma Benazir Bhutto and another v. Federation of Pakistan and 2 others PLD 1999 Kar. 39 distinguished.

Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Allama Iqbal Open University v. Tuffail Hashmi 2010 SCMR 1484; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; 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 and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152 ref.

(b) Islamabad High Court Act (XVII of 2010)---

----S. 4---Constitution of Pakistan, Art.199-Constitutional petition---Concurrent jurisdiction of Islamabad High Court and Lahore High Court in respect of capital territory---Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory in original appellants, revisional and other jurisdiction as under the constitution or the laws in force immediately before the commencement of the Islamabad High Court Act, 2010---Islamabad High Court enjoys the jurisdiction in respect of capital territory which was earlier enjoyed by the Lahore High Court---Inspite of the promulgation of Islamabad High Court Act, 2010 the Lahore High Court has the jurisdiction over Islamabad capital territory---Lahore High Court and Islamabad High Court therefore, enjoy concurrent jurisdiction on Islamabad capital territory.

Hafiz Tariq Naseem for Petitioner.

Mirza Aamir Baig for Respondents.

Date of hearing: 18th October, 2012.

2014 P L C (C.S.) 229

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUMTAZ HUSSAIN BHUTTA

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Water and Power, Islamabad and 4 others

Writ Petition No.24428 of 2012, decided on 14th December, 2012.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Employee of Pakistan Electric Power Company---Transfer of petitioner from PEPCO to National Transmission and Distribution Company (NTDC) by order of Secretary, Ministry of Water and Power---Validity---Federal Government owned 100% shareholding in PEPCO, but had no role in its management vesting with its Board of Directors exclusively---Petitioner had not challenged any order of his appointing authority i.e. PEPCO, but had challenged order passed by a third party i.e. Federal Government, which was not managing business of PEPCO---Petitioner was neither civil servant nor were his service rules statutory---Ministry of Water and Power was neither Chairman nor Director of PEPCO, rather was alien to affairs of PEPCO---Federal Government had no authority to pass impugned order---High Court declared impugned order to be without lawful authority and of no legal effect.

Suo Motu case No.18 of 2010 PLD 2011 SC 927; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and anathor 2012 SCMR 6; Tahir Abbas v. FESCO, Jhang and others 2011 PLC (C.S.) 354; Syed Mehboob Ali and 21 others v. Province of Sindh through Chief Secretary to Government of Sindh and 3 others 2011 PLC (C.S.) 37; Ghazanfar Ali v. Zarai Taraqiati Bank Limited, Islamabad through President and 4 others 2011 PLC (C.S.) 648; Syed Tahir Abbas Shah v. OGDCL through M.D. Head Office, Islamabad and another 2012 PLC (C.S.) 885; Yahya Khan v. Director Commercial Accounts PTCL and another 2012 PLC (C.S.) 1011; C.P. No.23 of 2012; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Shoua Junejo and others v. PIA and others 2012 SCMR 1681; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and another 1996 PLC (C.S.) 803; Muhammad Latif Khan v. Sarwar Hussain 1995 PLC (C.S.) 182 and Manzoor Hussain Sial v. PEPCO and others W.P.No.19194 of 2011 ref.

Malik M. Rafiq Rijwana for Petitioner.

Hafiz Tariq Nasim for Respondent No.5.

Aamer Chaudhry for Respondent No.3.

Date of hearing: 26th November, 2012.

2014 P L C (C.S.) 244

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD KHAN RANJHA and another

Versus

SECRETARY, GOVERNMENT OF PUNJAB, IRRIGATION DEPARTMENT, LAHORE and 5 others

Writ Petition No.20001 of 2012, decided on 23rd May, 2013.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Terms and conditions of service--- Promotion---Jurisdiction of High Court---Scope---Plea of mala fides---Petitioners being aggrieved from the promotion of junior colleague contended that impugned order of promotion was against fairness, rules and inter se seniority and liable to be declared as illegal---Validity---For resolution of issues relating to terms and conditions of service, Service Tribunal had the exclusive jurisdiction and the constitutional jurisdiction of High Court could not be invoked---Order of departmental authority, even though without jurisdiction or mala fide did not confer upon High Court jurisdiction to act in a matter in view of constitutional ouster as contained in Art.212 of the Constitution and the Service Tribunal had complete jurisdiction to interfere in such matters---Constitutional petition was dismissed being not maintainable.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Punjab through Secretary Health Department v. Dr. S.M. Zafar Bukhari PLD 1997 SC 351; Hasan Khan Marwat Inspector Police Department N.-W.F.P. Peshawar v. Inspector-General of Police N.-W.F.P. Peshawar and 3 others 2004 PLC (C.S.) 298; Government of Pakistan through Establishment Division Islamabad and 7 others' case PLD 2003 SC 110 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 rel.

Malik Muhammad Awais Khalid for Petitioner.

Iqbal Ahmed Malik for Respondent.

Waqas Qadeer Dar A.A.-G.

Ms.Saima Nawaz, Law Officer Irrigation.

Asif Mushtaq Ahmed Law Officer S&GAD.

2014 P L C (C.S.) 253

[Lahore High Court]

Before Shahid Waheed, J

MUHAMMAD SIDDIQUE

Versus

DIVISIONAL FOREST OFFICER, OKARA

Writ Petition No.1089 of 2011, heard on 30th May, 2013.

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

----Ss. 1(iii) & 21---Constitution of Pakistan, Art.199---Constitutional petition--- Civil service--- Retired civil servant--- Departmental proceedings against retired employees---Time period---Scope---Period of initiation of departmental proceedings---Departmental proceedings initiated against employee after four years of his retirement---Validity---Proceedings could be initiated against a retired employee provided the same were initiated against during his service or within one year of his retirement and finalized not later than two years of his retirement---Time lag provided in law was manifestly intended to safeguard the interest of pensioners so that the Sword of Damocles should not hang upon retired employees for an indefinite period---Petitioner stood retired as forest guard, the pension was sanctioned and the proceedings under Punjab Employees Efficiency Discipline and Accountability Act, 2006 were initiated after a lapse of about four years, from the date of retirement, against the petitioner---Provisions of Punjab Employees Efficiency Discipline and Accountability Act, 2006 were not applicable to the petitioner as neither the proceedings were initiated against him during his service nor within one year of his retirement---Proceedings under Punjab Employees Efficiency Discipline and Accountability Act, 2006 on account of lapse of time could not be initiated against the petitioner, resultantly no punishment could be inflicted thereunder---Show-cause notices were set aside---Constitutional petition was allowed.

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

----Ss. 1(iii), 2(n) & 21---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Misconduct---Departmental proceedings after retirement---Criteria---Time period and grounds for departmental proceedings---Recovery of amount from retired government servant---Pendency of audit para against retiring government servant---Undertaking given by the employee for release of pension---Effect---Release of pension after obtaining undertaking from retiring government servant to the effect that in case the recovery would be established at any stage against him then he would be liable to pay amount of recovery---Order for recovery from petitioner was passed after four years of retirement---Contention that notwithstanding the lapse of four years after retirement the Authority in pursuance of audit paras was within its right to effect recovery of disputed amount from the petitioner---Validity---No audit para in respect of financial irregularities was pending against the petitioner at the time of his retirement---No Demand Certificate (NDC) was issued for the sanction of pension of the petitioner---Allegations on the basis of which impugned show cause notices had been issued neither pertained to misappropriation or embezzlement and financial irregularities nor the same could be attributed to the petitioner as they related to departmental inaction/slackness/negligence---Impugned order for recovery was void ab initio in circumstances.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Order passed under wrong provision of law---Effect---When Authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form---Court must ascribe the act of public servant to an actual existing authority under which it would have validity rather than to one under which it would be void.

P. Balakotaiah v. Union of India and others AIR 1958 SC 232 rel.

(d) Punjab Civil Service Pension Rules, 1963---

----R. 1.8---Constitution of Pakistan, Art.199---Constitutional petition---Disciplinary proceedings against retired civil servant---Withholding or withdrawing pension of civil servant---Scope---Powers of Authority to withhold or withdraw pension of retired civil servant---Criteria---Procedure---Good conduct was made an inseparable condition for the grant or continuance of pension to government servant and the government reserved to itself plenary power to withhold or withdraw a pension or any part thereof if the pensioner was convicted for serious crime or found guilty of grave misconduct whether during or after completion of his service---Petitioner had neither been convicted for serious crime nor found guilty of grave misconduct during or after completion of his service---Government was also empowered to order for recovery from the pensioner of the whole or any part of any pecuniary loss caused to the government if the pensioner was found in departmental or judicial proceedings to have been guilty of grave misconduct or negligence during his service---Petitioner was neither found guilty of causing losses due to his negligence or fraud in judicial or departmental proceedings nor any departmental proceedings were initiated against the petitioner within a year from the date of his retirement---Impugned order and show-cause notices issued against the petitioner were declared as illegal.

The Government of N.-W.F.P. through Secretary of the Government N.-W.F.P. Communication and Works Department, Peshawar v. Muhammad Said Khan and another PLD 1973 SC 514 rel.

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

----Ss. 2(h)(ii), 16, 17 & 19---Constitution of Pakistan, Arts.199 & 212(2)--- Constitutional petition--- Maintainability--- Terms and conditions of service---Retired government employee---Penalty order passed by Authority---Remedy of appeal before Service Tribunal---Scope---Petitioner, a retired civil servant challenged the order imposing penalty of recovery along with show-cause notices---Contention was aggrieved employee by any final order under Punjab Employees Efficiency Discipline and Accountability Act, 2006 would prefer an appeal to the Service Tribunal---Validity---Only a person in government service or who was a member of a civil service of the province or who held a civil post in connection with the affairs of the province or any employee serving in any court or tribunal being aggrieved by an order could prefer an appeal before the Service Tribunal---Petitioner being a retired person did not fall within the definition of 'employee', therefore had no remedy of appeal---Provisions of Punjab Employees Efficiency Discipline and Accountability Act, 2006 was not applicable to the petitioner and therefore, the Authorities by initiating the proceedings thereunder against the petitioner went out of the law and exercised a jurisdiction not vested in him by law---High Court could control action of an administrative or executive officer by an appropriate order if he had gone out of law i.e. exercised jurisdiction not vested in him by law or wrongly denied or omitted to exercise a jurisdiction or where the law under which he acted prescribed the manner in which he was to act, materially departed from the law---Impugned orders and notices were void ab initio---Constitutional petition was allowed.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Shahid Mubeen, Addl. A.-G. for Respondent No.1.

Date of hearing: 30th May, 2013.

2014 P L C (C.S.) 268

[Lahore High Court]

Before Umar Ata Bandial, C.J. and Mrs. Ayesha A. Malik, J

Agha NADEEM

Versus

ADDITIONAL SECRETARY WELFARE and 3 others

Intra-Court Appeal No.557 of 2012 in Writ Petition No.1703 of 2012, heard on 7th November, 2012.

Punjab Services and General Administration Department (S&GAD) (Allotment Policy), 1997---

----Rr. 33(g) & 15---Law Reforms Ordinance (XII of 1972), S.3---Civil service---Intra-court appeal---Government accommodation---Right to retain accommodation after transfer of allottee---Scope---Appellant impugned order of Single Judge whereby his constitutional petition seeking direction that he be allowed to retain official accommodation for a period of five years after his transfer to the Federal Government, was dismissed---Contention of the appellant was that as per the Allotment policy, a vested right had been created in his favour which could not be taken away by a subsequent amendment to said policy which reduced entitlement to retain accommodation after transfer from five years to two years---Validity---Allotment Policy provided that an officer of the rank of the appellant was entitled to retain official accommodation for a period of five years or till the provision of accommodation at his new place of posting, whichever was earlier---Meaning to be attributed to the phrase "whichever is earlier" was that an officer upon being transferred could retain a designated house for up to five years provided he applied for residential accommodation at his new place of posting---Contention of the appellant that on account of R.33(g) of the Punjab Services and General Administration Department (S&GAD) (Allotment Policy), 1997; the appellant could retain official accommodation for up to five years and only then apply for residential accommodation from Federal Government, could not be agreed with---Allotment was an entitlement while in service and not a vested right of the appellant---Rule 15 of the said Allotment Policy provided that government servant had no vested right or claim to the allotment of a government owned residential accommodation---Upon posting to the Federal Government, appellant lost the right to retain official accommodation owned by the Provincial Government---No illegality therefore existed in the findings of the Single Judge---Intra-court appeal was dismissed, in circumstances.

Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864 and Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

Shahram Sarwar Chaudhry for Appellant.

Dr. Abdul Basit for Respondent No.4.

M. Arif Raja, A.A.-G. along with M. Masood Mukhtar, Additional Secretary (W) and M. Akmal, Law Officer, Estate Office.

Date of hearing: 7th November, 2012.

2014 P L C (C.S.) 284

[Lahore High Court]

Before Syed Muhammad Kazim Raza Shamsi, J

ATTA MUHAMMAD and another

Versus

FEDERATION OF PAKISTAN through Secretary States and Frontier Regions Division, Islamabad and 2 others

Writ Petition No.31979 of 2012, decided on 21st June, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition--- Civil service--- Contractual appointment---Extension of contract---Scope---Petitioners had been appointed on contract after retirement---Authority refused for renewal of contract for further period due to unsatisfactory physical health---Petitioners were physically and mentally declared as fit by the Medical officer---Non-extension of contract did not amount to violation of fundamental rights---Competent Authority had found the petitioners unsuitable for the renewal of their contract appointment---Contract employee had no right whatsoever for his appointment or extension whatever the case might be---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual appointment after retirement---Claim of further extension for contract---Policy of regularization of contract employees---Scope---Authority had refused to extend the contract of the petitioners---Validity---Services of the contract employees had ordered to be regularized in view of the government policy---Policy of regularization was not applicable to the case of the petitioners as after attaining the age of superannuation they had no right to continue the job till their death---Contract employee could not be equated vis-a-vis a regular employee connected with the affairs of the Federation---Petitioners were not entitled for extension of contract.

Tehsil Municipal Officer, TMA, Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 and Federation of Pakistan through Secretary Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120 rel.

(c) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Civil service---Contractual appointment---Extension of contract---Authority had refused to extend the contract of the petitioners while contract of certain employees were extended---Plea of discriminatory treatment---Validity---Authority had extended the contractual appointment of those persons who had not attained the age of superannuation---Petitioners were given contractual appointment after superannuation---Case of petitioners was distinguishable from other employees---Question of mala fide and discriminatory treatment was not made out, in circumstances---Constitutional petition was dismissed.

Kashif Ali Chaudhry for Petitioner.

Iftikhar Shahid, Dy. A.-G. with Muhammad Usman Ghani, Project Director (Legal).

2014 P L C (C.S.) 300

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ISRAR HUSSAIN

Versus

D.C.O. and others

Writ Petition No.2032 of 2012, decided on 16th October, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Appointment to post of School Educator---Reserved quota for disabled persons---Petitioner, who was suffering from visual disability namely, Retinatus Pigmentoza, was rejected from consideration for post of School Educator under quota for disabled persons---Contention of Provincial Authority was that under the Recruitment Policy, blind, deaf and dumb were not eligible to apply for said post and petitioner's visual disability therefore, barred him from consideration---Validity---High Court observed that petitioner did not suffer from disability which prevented his mobility notwithstanding the fact that he may have had some visual disorder---Petitioner moved freely in court and it could be safely assumed that he was not a blind person and his disability was such that did not create any hurdle in his free movement and was unlikely to prevent him from using the blackboard effectively, while teaching---Disability certificate issued by competent authority was available on record according to which nature of his disability was only low vision and he was fit to work---High Court directed the authorities to consider case of petitioner for appointment under reserved quota for the disabled and issue him appointment order if he fell on merit for the post---Constitutional petition was allowed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Grant of relief not prayed for by the petitioner---Scope---Under Art.199 of the Constitution, High Court had ample powers to mould a relief in aid of justice.

Messrs Facto Belarus Tractors Ltd. Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries Production and Special Initiatives Islamabad and others PLD 2006 Kar. 479 rel.

Haroon Irshad Janjua for Petitioner.

Shahid Mehmood Abbasi, Asstt. A.-G. along with Rao Attique Ahmad EDO (Education) for Respondents.

2014 P L C (C.S.) 315

[Lahore High Court]

Before Shezada Mazhar, J

AHTSHAM-UL-HAQ

Versus

BOARD OF GOVERNORS, DISTRICT PUBLIC SCHOOL AND COLLEGES SECRETARIAT, OKARA through Chairman and 3 others

Writ Petition No.13996 of 2013, heard on 14th June, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Non-statutory body---Expression "person" occurring in Art.199(5) of the Constitution--- Connotation--- Constitutional jurisdiction of High Court---Scope---Order of termination from service was passed by the Board of Governors of a School---Validity---Charter of School had no statutory value and revealed that it did not fall within the definition of "person" connected with the affairs of the Federation, a Province or a local authority---Constitutional petition was dismissed being not maintainable.

Muhammad Zubair Akram v. Aitcheson College, Lahore PLD 2000 Lah. 489 distinguished.

Mushtaq Ahmad Mohal for Petitioner.

Badar Munir Malik, A.A.-G. with Mumtaz Hussain Settlement Clerk, Additional District Collector Office for Respondents.

Date of hearing: 14th June, 2013.

2014 P L C (C.S.) 326

[Lahore High Court]

Before Ali Baqar Najafi, J

PERVAIZ AKHTAR

Versus

FEDERAL GOVERNMENT

Writ Petition No.1870 of 2012, heard on 4th September, 2012.

Civil Servants Act (LXXI of 1973)---

----S. 9---Fundamental Rules, Pt. II, R. 17---Guide to Performance Evaluation (2004), S. 2, Para. 2.87---Constitution of Pakistan, Art. 199---Constitutional petition---Promotion---Evaluation report on Officer on Special Duty---Scope---Civil servant remained Officer on Special Duty (OSD) without complaint for the period between February 2007 to October 2008 and during such period he was not promoted due to incomplete remarks in his Annual Confidential Report (ACR), which was not his fault---Colleagues of civil servant were promoted to BS-21 in the year 2009---Subsequently civil servant was placed at serial No. 1 of the seniority list issued on 26-4-2012 and committee was constituted for his ante-dated promotion from BS-20 to BS-21 but it was deferred on the basis of his incomplete record---Civil servant filed appeal before the Appellate authority but same was pending without progress---Civil servant (petitioner), through present constitutional petition, sought a direction to the concerned authority for his ante-dated promotion in BS-21 without loss of further time and a further direction to convene a meeting to consider his promotion to BS-22 as he qualified for the same---Contentions of civil servant were that his case was at par with his colleagues who had been granted ante-dated promotions, and that according to S.2, paragraph 2.87 of "A Guide to Performance Evaluation (2004)", reports of Officers on Special Duty who had been assigned any job, were to be written in the normal manner, benefit of which was not extended to him---Validity---Civil servant had an unblemished record of service with honesty, efficiency and compatibility---Non-availability of record for promotion including Annual Confidential Report (ACR) by the concerned Department was not the fault of the civil servant for which he could be made to suffer---Section 2, paragraph 2.87 of "A Guide to Performance Evaluation (2004)" was attracted to the present case as admittedly civil servant was presently placed at serial No.1 in the seniority list circulated on 26-4-2012 and had a fair chance of being promoted on the basis of R.17 of Fundamental Rules---Right of a civil servant as contemplated under S.9 of Civil Servants Act, 1973 was neither illusory nor a perfunctory ritual and withholding of promotion of any officer was a major penalty in accordance with Government Servants (Efficiency and Discipline) Rules, 1973---To be considered for promotion was the vested right of the civil servant which was to be based on seniority cum fitness and the best assessment in such regard could be made by the competent authority---Since civil servant was approaching his superannuation and his appeal was pending before the Appellate authority, therefore, said Appellate authority was directed to decide his appeal expeditiously in accordance with the law, rules, policy and guidelines of the Supreme Court applicable to him---Constitutional petition was disposed of accordingly.

Tariq Aziz-ud-Din and others' case 2010 SCMR 1301 and Secretary Schools of Education and others v. Rana Arshad Khan and others 2012 SCMR 12 rel.

Mirza Shamas-ul-Hassan v. Secretary Establishment and others Writ Petition No.64 of 2007 ref.

Sahibzada Anwar Hamid for Petitioner.

Sajid Tanoli, Standing Counsel for Respondent.

Date of hearing: 4th September, 2012.

2014 P L C (C.S.) 332

[Lahore High Court]

Before Abid Aziz Sheikh, J

KAMRAN AHMAD

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 3 others

Writ Petition No.10379 of 2013, heard on 12th November, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition against Government owned and controlled Company---Maintainability---"Function test" of company---Scope---Expended functions of the Federation or a Province in contemporary age, role of modern welfare State and its various institutions has increased manifold---Government is regulator and dispenser of special services and it has power to create jobs, issue licenses, fix quotas, grant leases, enter into contracts and provide variety of utility services and basic amenities to the people, such entire entrepreneurial activities are at times carried out through companies created under the statute or under the Companies Ordinance, 1984---Test to determine whether such company was a "person" amenable to judicial review was from the functions performed by that Company to which the courts have generally classified it as "functional test"---Functions of such companies/institutions if have element of public authority, public or statutory duties to perform and carry out its transaction for the benefit of public and not for private gain or benefit, that would be amenable to judicial review.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitcheson College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 and Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against Electric Power Company---Maintainability---Question was as to whether Electric Power Company was a "person" within the meaning of Art.199 of the Constitution---"Function test" of company---Scope---Electric Power Company was not a statutory authority as it was not established under a statute but incorporated as a company under the Companies Ordinance, 1984---Said company was an entity wholly owned and controlled by the government and for all intents and purposes, company followed the policies laid down by the government regarding supply of electricity under its controlled areas---Indeed, such company was a "public utility company" providing basic amenities to the public at large, therefore was a body corporate performing functions in connection with the affairs of the State and therefore, amenable to the constitutional jurisdiction of High Court.

Malik Waqas Ahmed and another v. Government of Pakistan, through Secretary of Ministry for Water and Power and 13 others 2011 PLC (C.S.) 455; Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others 2011 PLC (C.S.) 116; Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed 2013 SCMR 1707 and Tahir Abbas v. FESCO, Jhang and others 2011 PLC (C.S.) 354 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition by an employee of government owned and controlled company---Maintainability---Contractual relationship between employer and employee---Intervention/protection of statutory Rules---Principle of "master and servant", applicability of---Scope---If the relationship between employer and employee was the result of contract freely entered into by the contracting parties then the principle of "master and servant" would apply, however, said principle would not apply if some law or statutory rules intervened and placed fetters upon freedom of the parties in the matter of the terms of contract.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Nisar Ahmad v. The Director, Chiltan Ghee Mills 1987 SCMR 1836; National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832; Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404 and Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition by an employee of government owned and controlled company---Maintainability---Adoption of statutory service Rules by government owned company---Effect---Petitioner/employee of government owned company was aggrieved of his non-induction on higher post---Contention of the petitioner/ employee was that as per the terms and conditions of his appointment letter, he is governed by the statutory Rules of WAPDA, therefore High Court had jurisdiction to interfere in the matter---Validity---Petitioner employee was governed under the terms and conditions of contract appointment letter and the Rules and Regulations of WAPDA employees were also made applicable to the petitioner not through any statute but in terms of contract appointment letter---Mere adoption of statutory Rules of the government or their application by reference will not automatically lend a statutory cover or content to such rules---Terms and conditions of petitioner employee in circumstances were contractual and not statutory---Rules adopted through a contract by government owned company had not became statutory automatically, therefore violation of such Rules would be a breach of contract and not enforceable being neither a statute nor conferring any statutory protection to the employee---Petitioner employee was not governed under statutory Rules and as such terms and conditions of contract of his service were not enforceable through constitutional petition---Constitutional petition was dismissed.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024; Chairman WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Lt. Col. Shujaddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; Raziuddin v. Chairman, Pakistan International Airlines Corporation PLD 1992 SC 531; The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Nisar Ahmad v. The Director, Chiltan Ghee Mills 1987 SCMR 1836; National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832; Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman 1995 SCMR 650; House Building Finance Corporation through Managing Director, Karachi and another v. Inayat Ullah Shaikh 1999 SCMR 311; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Aziz Ullah Memon v. Province of Sindh 2007 SCMR 229; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Civil Aviation Authority through Director-General v. Javed Ahmad and another 2009 SCMR 956; Viteralli v. Saton (1971) 1 W.L.R. 1578 (359 US 535 Second Series 1012); Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations v. Bhagat Ram, Association of Clause II Officers, Shyam Lal, Industrial Finance Corporation AIR 1975 SC 1331 rel.

Dr. Abdul Basit assisted by Mehmood Nazir Rana for Petitioner.

Respondent No.1: Ex parte vide order dated 28-10-2013.

Ch. Abdus Sattar for Respondent No.2.

Ch. Imran Raza Chadhar for Respondents Nos.3 and 4.

Date of hearing: 12th November, 2013.

2014 P L C (C.S.) 378

[Lahore High Court]

Before Shujaat Ali Khan, J

TAYYABA KOMAL

Versus

DISTRICT COORDINATION OFFICER, SIALKOT and 4 others

Writ Petition No.1601 of 2013, decided on 19th March, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Non issuance of appointment order---In case of droppage/non-joining of selectees, candidate next on the merit list, was entitled for appointment---Incumbent upon the appointing authority to offer appointment to a person next in the merit list when the persons on the higher merit list either refused to join the service or relinquish the job after joining the same---Constitutional petition was allowed---Departmental authorities were directed to issue appointment letter in favour of the petitioner.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Recruitment Policy, 2011, S.IX(c) & (d)---Non-appointment of petitioner/candidate came next on merit list within prescribed time period---Department did not process the case of the petitioner despite application filed within stipulated period---Effect---Public authorities could not be allowed to play havoc with the fate of the masses especially with those who had exceptional academic record and had the ability to serve the Nation in a better way---Petitioner was held entitled for appointment.

(c) Discretion---

----Public authorities---Discretion vested with the public authorities should be exercised with reasonableness and nobody can be left unbridled to tinker with the future of the citizens.

(d) Administration of justice---

---Way of justice cannot be allowed to be impeded on the basis of technicalities rather the same should allow to take its due course even the heaven may fall.

Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 S C 166 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court has to ensure the constitutional guarantees of the citizens of the country provided under the Constitution and has least concern about the consequences in case a deserving person is given his right.

Pervaiz Inayat Malik for Petitioner.

Rana Shamshad Khan, A.A.-G. for Respondents.

Muhammad Sajjad Aslam, EDO(E) Respondent No.3.

2014 P L C (C.S.) 386

[Lahore High Court]

Before Muhammad Yawar Ali, J

MUHAMMAD RAUF PATWARI

Versus

DISTRICT COLLECTOR/DCO, TOBA TEK SINGH and 6 others

Writ Petition No.26319 of 2012, decided on 19th October, 2012.

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

----Ss. 5(b) & 9(d)---Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Initiation of inquiry by competent authority---Directions to accused (civil servant) to file reply/defence---No final order passed---Writ not to be issued in such circumstances---Patwari (petitioner) was alleged to have deliberately made a wrong entry in the "Khasra Girdawari"---Competent authority (respondent) passed an order under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 for holding an inquiry, whereafter a revenue official was appointed as the inquiry officer to conduct inquiry against the Patwari, who was given seven days to submit his defence in writing---Contentions of Patwari were that he was being victimized by higher officials of the Revenue department and that miscarriage of justice would take place in case impugned order calling upon him to submit a written reply was not declared to be illegal---Validity---No final order had been passed against the Patwari---After receiving a complaint, competent authority sent a notice to the Patwari indicating therein that an inquiry was being initiated against him and he was directed to file his reply---Without waiting for result of the inquiry, Patwari had filed the present constitutional petition---Constitutional petition would not be maintainable against initiation of an inquiry or issuance of a notice directing the petitioner to file his reply---Only a reply had been sought from the Patwari and no final order had been passed--- Present constitutional petition was filed pre-maturely and was accordingly dismissed.

Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC (C.S.) 939 and Virasat Ullah v. Bashir Ahmad Settlement Commissioner (Industries) and another 1969 SCMR 154 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Civil service---Initiation of an inquiry or issuance of a notice directing petitioner civil servant to file his reply---Constitutional petition would not be maintainable in such circumstances.

Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC (C.S.) 939 rel.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Civil service---Constitutional petition against mere issuance of a notice---Maintainability--- No writ could be issued in such circumstances.

Virasat Ullah v. Bashir Ahmad Settlement Commissioner (Industries) and another 1969 SCMR 154 rel.

Shabbir Hussain Dhillon for Petitioner.

2014 P L C (C.S.) 413

[Lahore High Court]

Before Mamoon Rashid Sheikh, J

NIDA TAHIR

Versus

PROVINCE OF PUNJAB through Secretary Schools and 3 others

Writ Petition No.11035 of 2013, decided on 30th May, 2013.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Advertised post, eligibility for---Discrimination----Academic qualification---Provisional certificates of education---Petitioner applied for advertised post of school educator---After clearing the recruitment process and interview, petitioner's name was still not included in the final merit list as she had appended her provisional certificates of bachelor's degrees with her application and not her original academic transcripts and/or degree---Plea of petitioner that her University had not issued original academic transcripts/degrees in time when she applied for the post in question; that there was no variance between her provisional certificates and original academic transcripts; that a similarly placed candidate from another district was selected for post of school educator on basis of provisional certificates, therefore she had been discriminated against---Validity---Petitioner was declared successful by her University and in such respect a provisional certificate was issued to her, which she appended with her application at the time of applying for the post in question---Petitioner applied for the post within time---Whilst petitioner was declined appointed for lack of original academic transcripts and/or degree, a similarly placed candidate in another district was appointed to post of school educator on basis of his provisional certificate---Post in question came under the purview of Provincial Department of Education, therefore if in one district candidates could be accommodated on basis of provisional certificates, then question was why not candidates from another district---Seats for the post in question were lying vacant---High Court directed the Provincial Secretary Education (Schools) to consider the petitioner's case after affording her an opportunity of fair hearing bearing in mind that in another district similarly placed candidates had been accommodated and that seats for the post in question were lying vacant in the petitioner's district---Constitutional petition was disposed of accordingly.

Mian Tariq Hussain for Petitioner.

Hafiz Ansaar-ul-Haq, Addl. A.-G. and Ms. Safia Aslam, DEO (W-EE), Toba Tek Singh for Respondents.

2014 P L C (C.S.) 418

[Lahore High Court]

Before Abid Aziz Sheikh, J

BEHRAM KHAN

Versus

CHAIRMAN STRATEGIC PLANNING DIVISION, CHAKLALA CANTT., ISLAMABAD and 2 others

Writ Petition No.12580 of 2011, decided on 4th June, 2013.

(a) National Command Authority Act (? of 2010)---

----Ss. 7(d)(p), 9(3) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Medical allowance---Employees of autonomous organization---Terms and conditions of federal government employees, applicability---Government of Pakistan granted medical allowance to all the civil pensioners of the federal government---Petitioner/retired employee of autonomous body (Pakistan Atomic Energy Commission) claimed that respondent Commission was bound to extend medical allowance granted by federal government---Validity---Petitioner was an employee of Pakistan Atomic Energy Commission which was autonomous organization---Petitioner was governed under the Employees Service Regulation made by Authority under the National Command Authority Act, 2010---Petitioner/retired employee of autonomous organization could not claim any benefit arising out of any letter of Finance Division and policy issued and meant for employees of the federal government as of right unless the said policy or benefit had been adopted by the competent authority---Terms and conditions of employees of federal government would not become applicable automatically on the employees of autonomous organization/ Commission without adopting and declared applicable by the authority for its employees---Constitutional petition as dismissed.

(b) Constitution of Pakistan---

----Art. 199---National Command Authority Act (? of 2010), Ss.7(d)(p), 9(3) & 15---Constitutional petition---Maintainability---Non-statutory service rules---Scope---Service rules of Pakistan Atomic Energy Commission under which the services of its employees was being governed were not statutory in nature, therefore, constitutional petition was not maintainable---Constitutional petition was dismissed.

Dr. Nazar Ahmad v. Federation of Pakistan through Federal Secretary and 3 others 2012 PLC (C.S.) 1537; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Executive Council, Allama Iqbal Open University Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Muhammad Qasim and 6 others v. Home Department, Government of Punjab through Secretary, Civil Secretariat Lahore and 2 others 2004 PLC 69; Muslim Commercial Bank Ltd. and 2 others v. Muhammad Umar Malik PLD 1993 Lah. 281; Ghous Bux v. Muhammad Suleman and others 2011 MLD 1159; Messrs Standard Hotels (Pvt.) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413; Messrs Abdul Hamid v. Board of Intermediate and Secondary Education 1991 MLD 672 and Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183 rel.

Muhammad Jehangir Khan for Petitioner.

Mian Abdul Basit for Respondents.

2014 P L C (C.S.) 433

[Lahore High Court]

Before Ijaz Ahmad, J

AMER BASHIR ZIYA

Versus

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

Writ Petition No.12685 of 2012, decided on 6th March, 2013.

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

----S. 11-A---Calendar of Baha-ud-Din Zakariya University, Multan, Vol. I, Chap. VII, Paras Nos. 3 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Professor of Physics, posts of---Recommendation of respondent's name for such post by Selection Board without considering other two candidates including that of petitioner while disagreeing with evaluation reports made by two Referees/Experts against the respondent---Validity---Selection Board had not given any reason for its disagreement with such reports---Selection Board could not brush aside such reports by mere relying upon opinion of Dean of Faculty and Chairman considering respondent as suitable candidate---Result of allowing Selection Board to disagree with such reports on such ground would be that no referee would take pain to evaluate publications, research papers and supervise Ph.Ds. and research reports regarding candidates---High Court partly accepted constitutional petition while directing University to reconsider matter of appointment to such post including the respondent.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 rel.

(b) Words and phrases---

----"Consultation"---Meaning explained.

Muhammad Anis and others v. Abdul Haseeb and other PLD 1994 SC 539; Black's Law Dictionary; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 and Pakistan Medical and Dental Council v. Ziauddin Medical University and others PLD 2007 SC 323 ref.

(c) Calendar of Baha-ud-Din Zikariya University, Multan---

----Vol. I, Chap. VII, Paras.5 & 6---Teachers in University, appointment of---Non-giving due weight by Selection Board to opinions of Experts/Referees nominated by Vice-Chancellor---Effect.

Muhammad Mehmood Ashraf Khan for Petitioner.

Mian Abbas Ahmad for Respondent No.5.

Malik Muhammad Tariq Rajwana for B.Z.U.

Date of hearing: 19th February, 2013.

2014 P L C (C.S.) 459

[Lahore High Court]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD YASIR ANWAR

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY and 3 others

Writ Petition No.4259 of 2013, decided on 30th May, 2013.

(a) Bahauddin Zakariya University Act (III of 1975)---

----Ss. 16, 24 & 26---Constitution of Pakistan, Art.199---Constitutional petition---Contractual employment--- Regularization--- Semester Implementation Committee---Scope---Change/addition in eligibility criteria for appointments in the University---Petitioner, a contractual employee was denied for regularization due to addition of eligibility criteria for the post held by him---Criteria of eligibility for appointment was changed by Semester Implementation Committee of the University---Validity---Whole scheme of law dealt with the affairs of the University and relevant chapter in the calendar of the University provided a process of selection and allied matters in the University, Semester Implementation Committee figured nowhere---Only Syndicate, Senate and in some emergent situation the Vice-Chancellor were competent to take necessary steps to run the administrative affairs of the University---Addition in eligibility criteria for appointment of Lecturers recommended by Semester Implementation Committee, was thus, not sustainable.

(b) Bahauddin Zakariya University Act (III of 1975)---

----Ss. 16, 24 & 26---Constitution of Pakistan, Art.199---Constitutional petition--- Contractual employment--- Regularization--- Locus poenitentiae, principle of--- Subsequent change/addition in eligibility criteria for appointments---Effect---Petitioner, a contractual employee was denied regularization due to addition of eligibility criteria for the post held by him---Criteria of eligibility for appointment was changed after the appointment of petitioner---Validity---Right had accrued to the petitioner to be regularized on the strength of eligibility criteria provided by Syndicate, which was in existence and holding the field at the relevant date (appointment)---Eligibility of the petitioner was to be adjudged on the touchstone of the criteria prevailing at the relevant date when he satisfactorily completed two years of service on contract---Subsequent change in eligibility criteria and that too by incompetent and irrelevant Committee which was alien to the scheme provided in the relevant rules could not be relied upon, particularly, in order to defeat a right which had already accrued to the petitioner---Principle of Locus poenitentiae would not permit even the competent authority to undo any appointment even if found defective after a long time and the incumbent would not liable to be removed from service---University was directed by the High Court to treat the petitioner as regular employee---Constitutional petition was allowed.

Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598 rel.

(c) Bahauddin Zakariya University Act (III of 1975)---

----Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Contractual employment in University---Regularization---University created by Statute---Normally, a right against a University could not be enforced by maintaining a constitutional petition but there was no complete bar on the constitutional jurisdiction of High Court, in entertaining the constitutional petition dealing with the affairs of a University which otherwise was a creation of a statute---Petitioner was eligible to be regularized in service of the University---University was directed by the High Court to treat the petitioner as a regularized employee---Constitutional petition was allowed.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 rel.

Khadim Nadeem Malik for Petitioner.

Malik Muhammad Tariq Rajwana, Legal Adviser for Respondent/University.

2014 P L C (C.S.) 464

[Lahore High Court]

Before Ali Baqar Najafi, J

SAJID AZIZ

Versus

SECRETARY SCHOOLS and others

Writ Petition No.1972 of 2012, decided on 6th September, 2012.

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

----R. 3(v)---Punjab Civil Servants Act (VIII of 1974), S.23---Constitution of Pakistan, Arts.179 & 199---Constitutional petition---Recruitment with an age limit---Relaxation of upper age limit for government employee---Scope---Recruitment of School Educators with age limit of 20 to 35 years---Application of candidate (petitioner), who was a government employee, was rejected as he was over age---Contentions of candidate were that he had been in Government service for 15 years and 5 months and as per R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 such time period had to be excluded for the purposes of considering his application and upper age limit for the post in question had to be relaxed in his case---Contentions on behalf of Provincial Government were that recruitment process was initiated on the basis of a recruitment policy, wherein no provision for relaxation of upper age limit for government servants was provided; that candidate had not challenged the said policy, therefore, he was not entitled to any relief, and that judgments of High Court relied upon by the candidate were pending adjudication in the Supreme Court---Validity---Right of government servant under R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 was always available to him and he could press the same into service for further employment on contract or permanent posts---Law and rules framed under Punjab Civil Servants Act, 1974 had a higher value than policy letters---Judgments of High Court relied upon by the candidate were impugned before the Supreme Court but they were not suspended and in the event of a final verdict of the Supreme Court the entire law would have to be changed without any reservation as contemplated under Art.179 of the Constitution---Constitutional petition was allowed and concerned authority was directed to entertain the application of the candidate without raising objection as to upper age limit as he was fully entitled to the benefit of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976.

Shahid Akhter v. Secretary School, Education and others 2012 PLC (C.S.) 851 and Shahzada v. Secretary Education and others Writ Petition No.157 of 2012 ref.

Malik Muhammad Kabir for Petitioner.

Khursheed Ahmad Satti, A.A.-G. for Respondents.

2014 P L C (C.S.) 504

[Lahore High Court]

Before Ali Baqar Najafi, J

PARVAIZ AKHTAR

Versus

FEDERAL GOVERNMENT

Writ Petition No.1870 of 2012, heard on 4th September, 2012.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan, Art.199--- Constitutional petition---Civil Service---Promotion----Petitioner, a civil servant, sought direction to the effect that his pending appeal before Secretary Establishment in relation to his antedated promotion be decided expeditiously and as per the latest seniority list---Case of promotion of petitioner was deferred by Authorities on ground of incomplete record, including incomplete remarks on petitioner's Annual Confidential Reports (ACRs)---Validity---Petitioner, admittedly had an unblemished record of service and non-availability of the record needed for promotion, including Annual Confidential Reports (ACRs) by the Department was not the fault of the petitioner for which he could not be made to suffer---Relevant rules for promotion were attracted to the case of the petitioner and he had a fair chance of being promoted, being at serial number one on the seniority list---Promotion was to be encouraged on basis of merit---Right of a civil servant contemplated under S.9 of the Civil Servants Act, 1973 was neither illusory nor a perfunctory ritual and withholding of promotion of any officer was a major penalty under Government Servants (Efficiency and Discipline) Rules, 1973---Consideration for promotion was a vested right of the petitioner which was to be based on seniority-cum-fitness and the best assessment of such tangible material which could be made by the competent authority---High Court directed that appeal of the petitioner pending before Secretary Establishment be decided in accordance with law, rules, policy and precedents/guidelines of the apex court; expeditiously and preferably within a fortnight---Constitutional petition was disposed of, accordingly.

Tariq Aziz-ud-Din and others' case 2010 SCMR 1301 and Mirza Shamas-ul-Hassan v. Secretary Establishment and others Writ Petition No.64 of 2007 ref.

Secretary Schools of Education and others v. Rana Arshad Khan and others 2012 SCMR 12 and Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.

Sahibzada Anwar Hamid for Petitioner.

Sajid Tanoli Standing Counsel for Respondents.

Date of hearing: 4th September, 2012.

2014 P L C (C.S.) 529

[Lahore High Court]

Before Umar Ata Bandial, C.J.

Rana MEHTAB, ADVOCATE

Versus

F.O.P. and others

Writ Petition No.6065 of 2012, decided on 21st March, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Appointment made to public posts in exercise of public authority must have the cover of law---Appointment of Muavineen by Provincial Government on directions of the Chief Minister's Secretariat---Petitioner impugned the appointment of Muavineen, who were workers appointed on voluntary and honorary basis without remuneration---Contention of the petitioner was inter alia that appointment of such workers did not have cover of any law---Validity---Held, since the Muavineen had ceased to hold office after the expiry of the terms of the elected Provincial Assembly and there was no complaint on record available against any Muavin, no direction needed to be issued---High Court, however, observed that in the past such appointments which were made outside the purview of the law had been struck down by the courts---High Court directed that the executive government should be cautious that the appointments to public posts made in exercise of public authority must necessarily have the cover of the enabling law---Constitutional petition was disposed of accordingly.

Shah Ahmad Khan v. Government of Punjab PLD 2007 Lah. 191 rel.

Petitioner in person.

Ahmad Rauf, Addl. A.-G. for Respondent.

2014 P L C (C.S.) 555

[Lahore High Court]

Before Muhammad Qasim Khan, J

Malik OBAID ULLAH

Versus

GOVERNMENT OF PUNJAB through Secretary, Education, Lahore and 4 others

Writ Petition No.7890 of 2010, decided on 28th October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service-Appointment of Subject Specialists---Distinct categories of subjects---Scope---Posts of SESE for different subjects were advertised---Petitioner/candidate being qualified for the post of SESE (Arabic) applied against disabled quota but was not selected on merit---Contention of the petitioner/candidate was that since in other categories of SESE posts against disabled quota were vacant so he could be appointed against such vacant posts-- Validity-Candidate/person who applied against the post of SESE (Arabic) could not be posted against the post of SESE (Oriental), Physical Education or Arts and Drawing---Subject specialists in a particular subject could educate the students better because of their specific knowledge in such subject---Person who did not possess specialization in a particular subject may not be able to properly educate or guide the students---Subjects of Arabic, Physical Education, Oriental, Arts and Drawing were of entirely different fields and the students of each category had required to go through altogether changed and distinct courses and as such the same being different entities, could not be equated or clubbed with each other to declare them one category for the purpose of disabled quota---Constitutional petition was dismissed.

Malik Muhammad Zafar Iqbal for Petitioner.

Mubashir Latif Gill, A.A.-G. with Muhammad Javed Rafiq, Deputy DEP(E), Multan for Respondents.

2014 P L C (C.S.) 567

[Lahore High Court]

Before Umar Ata Bandial, C.J. and Shezada Mazhar, J

CHAIRMAN NPT and another

Versus

SHAFQAT TANVIR MIRZA and another

Intra-Court Appeal No.356 of 2012 and C.M.No.745 of 2013, heard on 5th June, 2013.

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

----S. 2(b)---Constitution of Pakistan Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Progressive Papers Pension Rules, 1985---Constitutional petition---Intra-court appeal---"Civil Servant", meaning of---Scope---Pension---Right to claim periodic increases in pension---Petitioner was retired employee of a company Progressive Papers Limited which was fully owned by National Press Trust Limited and had sought increase in pension in line with that given to civil servants; which was allowed---Contention of appellants was that petitioner did not fall within definition of "civil servant", and was therefore not entitled to increase in pension in line with that of retired civil servants---Held, that employees whose terms and conditions of service were not governed by statutory law did not qualify as civil servants---Under the Progressive Papers Pension Rules, 1985, the petitioner did not have any statutory or vested right to claim pension in the status of a civil servant, and as an employee of the company he was only entitled to receive pension according to Progressive Papers Pension Rules, 1985---Any higher right claimed under an inapplicable status could not sustain---Claim for increment in pension given to civil servants, therefore lacked legal force---Appeal was disposed of.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 rel.

(b) Constitution of Pakistan---

----Arts. 9 & 199-Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Right to life---Denial of payment of pension to employee--- Compensation--- Petitioner, a retired employee of Progressive Papers Limited, which was owned by the National Press Trust, was denied payment of pension for a period of sixteen years---High Court considered the question as to whether an employer with impunity could deny or withhold financial right of its employees for a period of sixteen years---Held, that petitioner had been denied the legal right to receive pension admittedly guaranteed to the petitioner, and delay in such entitlement was without cause and merited redress by payment of compensation to the petitioner---Employer avoided to perform its duty to grant a legal right guaranteed to its employee which was meant as sustenance of the petitioner after his termination from service---Right to life under Art.9 of the Constitution included right to livelihood and hence sustenance---High Court directed that past pension along with 10 percent annual increase be paid to petitioner---Intra-court appeal was disposed of, accordingly.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619 rel.

Shahid Mehmood Khokhar for Appellant.

Barrister Maqsooma Bokhari for Respondent No.1.

Muhammad Sharif for Applicant (in C.M. No.745 of 2013).

Date of hearing: 5th June, 2013.

2014 P L C (C.S.) 575

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

AFTAB AHMED and another

Versus

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

Writ Petition No.2709 of 2011, decided on 9th December, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Maintainability---Scope---Civil service---Advertisement for post of Assistant Executive Engineer in the newspapers---Minimum qualification being Bachelor's degree in Civil, Electrical, Mechanical, Architecture and Town Planning Engineering from a recognized University---Rejection of candidature of petitioners being employees of Military Engineering Services on the ground that they were holding B.Tech. (Hons.) degree---Contention of petitioners was that B.Tech. (Hons,) degree was to be treated at par with B. Sc. (Engineering)/B.E. degree---Validity---High Court declined to entertain constitutional petition when other appropriate remedy was available but same was not a rule of law barring jurisdiction but a rule by which High Court, would regulate its jurisdiction---High Court, in exercise of its constitutional jurisdiction had power to grant relief to the aggrieved party when a statutory functionary had acted malafidely or in a partial, unjustified and oppressive manner---Appointments, in the present case, had been made against the said posts of persons having B.Tech. (Hons.) degree in Civil Engineering---Subsequent change in Rules could not have a retrospective effect---Service of petitioners was not governed by Pakistan Engineering Council Act, 1976---Provisions of said Act were applicable only to the professional Engineers and Consulting Engineers who were in practice and not to the persons working in Government department---Petitioners had been dealt with in a discriminatory manner---Respondents had failed to explain the rationale behind refusal to entertain the applications of the petitioners---Authorities were directed to make fresh decision---Constitutional petitions were accepted in circumstances.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 rel.

Ch. Imran Hassan Ali for Petitioners.

Faisal Mahmood Raja, Standing Counsel.

Kamran, Assistant Director (Legal), F.P.S.C.

2014 P L C (C.S.) 582

[Lahore High Court]

Before Rauf Ahmad Shaikh, J

Malik MUHAMMAD ESSA KHAN

Versus

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

Writ Petition No.5423 of 2010, decided on 15th February, 2013.

(a) Civil service---

----Charge sheet---Clerical mistake in charge sheet which had not prejudiced civil servant could be corrected at any stage.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Bank employee---Findings recorded by Inquiry Officer on question of fact could not be interfered through constitutional jurisdiction.

(c) National Bank of Pakistan (Staff) Rules, 1973---

----R. 36(c)---Degradation of employee---Scope---Rule 36(c) of the National Bank of Pakistan (Staff) Rules, 1973 had provided the penalty of degradation to a lower stage in pay scale but that could not be for indefinite period.

(d) National Bank of Pakistan (Staff) Rules, 1973---

----R. 36(c)---Government Servants (Efficiency and Discipline) Rules, 1973----Degradation of employee---Provisions of R.36(c) of the National Bank of Pakistan (Staff) Rules, 1973 and Government Servants (Efficiency and Discipline) Rules, 1973 were almost similar on the subject.

Member (A.C.E. & S.T.), Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others 2008 SCMR 1165 ref.

Muhammad Amin Farooqi for Petitioner.

Ehsan Ahmad G. Khawaja for Respondents Nos.2 and 3.

Date of hearing: 6th February, 2013.

2014 P L C (C.S.) 602

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUSHTAQ HUSSAIN

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Education and 2 others

Writ Petition No.1274 of 2004, heard on 21st May, 2013.

Constitution of Pakistan---

----Arts. 199 & 212---Punjab Service Tribunal Act (IX of 1974), S.4---Punjab Local Government Ordinance (XIII of 2001), S.28---Constitutional petition---Maintainability--- Impugned order against civil servant was not passed by competent authority---Effect---Jurisdiction of High Court in matters relating to terms and conditions of service---Scope---Petitioners were promoted on the recommendations of departmental promotion committee---District Coordination Officer recalled the promotion order of the petitioners---Contention of the petitioners was that District Coordination Officer was not their competent authority and as such the impugned order was illegal---Department objected to the maintainability of constitutional petition as remedy of appeal was available before Service Tribunal---Validity---District Coordination Officer could not be termed as "departmental authority" of the petitioner---Appeal lay to Service Tribunal against an order, whether original or appellate made by a "departmental authority"---Constitutional petition was allowed.

Dilawar Hussain and another v. District Coordination Officer, Okara and 2 others 2004 CLC 324 and Mian Muhammad Aslam v. The Auditor-General of Pakistan, Islamabad and 2 others 1995 PLC (C.S.) 1178 rel.

Ch. Abdul Sattar Goraya for Petitioner.

Mubashir Latif Gill, A.A.-G. for Respondents.

Date of hearing: 21st May, 2013.

2014 P L C (C.S.) 620

[Lahore High Court]

Before Shoaib Saeed, J

MUHAMMAD ARSHAD TEJA and 10 others

Versus

CHAIRMAN TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY, LAHORE and 3 others

Writ Petition No.15063 of 2011, decided on 24th September, 2013.

Higher Education Commission Ordinance (LIII of 2002)---

----S. 10(o)---Pakistan Engineering Council Act (V of 1976), S.8---Constitution of Pakistan, Art.199---Constitutional petition---Promotion---Compensation allowance---Equivalence of degrees---Scope of powers---Petitioners having B.Tech. (Hons.) degree claimed for special compensation allowance as admissible to employees having Engineering degrees---Petitioners possessing B.Tech. (Hons.) degrees were not allowed compensation allowance as their degrees were not recognized by Pakistan Engineering Council equivalent to B.E./B.Sc. Engineering degree---Contention of the petitioners was that Higher Education Commission has declared B.Tech (Hons.) degree equivalent to B.E./B.Sc. Engineering and as such they were entitled to receive special compensation allowance---Validity---Higher Education Commission had the sole authority for determination of equivalency not only with regard to engineering qualification but in other disciplines as well---Pakistan Engineering Council only regulates affairs of Engineers---Higher Education Commission having sanctity of law had rightly found that B.Tech (Hons.) and B.E./B.Sc. Engineering though two distinct disciplines of knowledge in the field of engineering and technology but could be considered parallel to each and at par for the purpose of grades, pay, promotions and other benefits---Petitioners having B.Tech (Hons) degrees were entitled to benefit of special compensation allowance as admissible to graduate engineers---Employees/petitioners having B.Tech. (Hons.) Degrees had been eligible for further grades, promotion, pay/increments as well as other job benefits and allowances as given to engineers holding B.E./B.Sc. degrees---Constitutional petition was allowed.

Ch. Wadood Ahmad for Petitioners.

Muhammad Javed Saeed Pirzada, A.A.-G. for Respondents.

2014 P L C (C.S.) 629

[Lahore High Court]

Before Shoaib Saeed, J

Syed IFTIKHAR HUSSAIN NASIR

Versus

PUNJAB PUBLIC SERVCE COMMISSION, LAHORE through Chairman and 6 others

Writ Petition No.448 of 2012, decided on 30th September, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Non-production of corrected certificate within provided time frame---Effect---Petitioner applied for the post of Zilladar and qualified the written examination---During interview it was observed by the Public Service Commission that petitioner's name on Matriculation Certificate was incorrect---Petitioner was directed to get his name corrected within ten days failing which his interview would be considered as cancelled---Petitioner got corrected his certificate from the relevant Board but failed to submit the same within ten day, therefore the Public Service Commission dropped his name---Contention of the petitioner was that droppage of his name merely due to non-submission of corrected certificate within stipulated time frame was not justified---Validity---Petitioner approached the Board of Intermediate and Secondary Education and was accordingly issued Secondary School Certificate mentioning his correct name but failed to submit the same within time given by Public Service Commission---Correction of name by the relevant Board was time consuming process and beyond the control of the petitioner and as such not recommending his name was unjustified---Petitioner had possessed much higher qualifications than those mentioned in the advertisement and was legitimately eligible for appointment as Zilladar---Public Service Commission was directed to recommend the name of the petitioner for appointment---Constitutional petition was allowed.

Shahid Iqbal Khan for Petitioner.

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

2014 P L C (C.S.) 631

[Lahore High Court]

Before Ijaz ul Ahsan and Mrs. Ayesha A. Malik, JJ

PROJECT DIRECTOR, PUNJAB RURAL SUPPORT PROGRAM (PRSP), LAHORE and 2 others

Versus

REHMAT ALI and another

Intra-Court Appeal No.839 of 2012 in Writ Petition No.21154 of 2011, decided on 27th June, 2013.

Insurance---

----Group Insurance Policy, 2008---Group Life insurance for employees---Accidental death benefit for legal heirs of employees---Respondents were legal heirs of employee who died when he met with an accident, and were duly paid amount under group life insurance---Respondents had contended that they were also entitled to accidental death benefit; and their Constitutional petition in such regard was allowed---Contention of the appellants was inter alia, that at the time of death, the Life Insurance Policy did not cover accidental death benefit---Validity---Accidental death benefit was only available under the group life insurance policy issued by State Life Insurance Corporation of Pakistan, for the year 2008-09; which expired on 31-5-2009 and when the said group insurance policy was renewed, it only provided for one benefit, namely insurance claim, which was duly paid to the deceased---Group life insurance policy covering the period during which the deceased died, did not provide for accidental death benefit---Impugned order was, therefore, not sustainable in the eye of the law and was set aside.

Umer Sharif for Appellants.

Hafiz Khalil Ahmad for Respondents.

Date of hearing: 19th June, 2013.

2014 P L C (C.S.) 719

[Lahore High Court]

Before Ibad-ur-Rehman Lodhi and Mahmood Ahmad Bhatti, JJ

PUNJAB TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY (TEVTA) through Authorized Signatory

Versus

MUHAMMAD ATIF AMIN and 2 others

Intra-Court Appeal No.359 of 2013 in Writ Petition No.5780 of 2011, decided on 17th December, 2013.

(a) Constitution of Pakistan---

----Arts. 199 & 4---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition--- Civil service--- Intra-court appeal---Advertisement for making appointment to the vacant posts---Non-issuance of appointment letters by the Authority---Scope---Candidate filed constitutional petition for issuance of appointment letter which was accepted by High Court and departmental authorities were directed to issue appointment letters in favour of persons who were on the top of merit list as prepared by them---Validity---Various posts were advertised by the employers-college in the newspaper giving impression that same were needed to be filled---Respondent applied for the posts of Store Keeper and Junior Clerk and when his papers were found in order, he was short-listed for interview---Respondent (candidate) came at the top of the merit list and he opted to join as a Store Keeper---Appointment letter of respondent was ready but process of appointment was disrupted---After completion of formalities and declaring respondent as successful candidate Authority could not cancel appointment process---Authority vested in the Government and its Institutions could not be exercised at its whims and caprices of powers---Authority was bound to act honestly, fairly, equitably and by not allowing itself to be influenced by any extraneous considerations---Departmental authorities were accountable for their deeds and misdeeds and they could not get away with their arbitrary orders with impunity---Government had stopped the process of recruitment without assigning any reason which was repugnant to the principles of openness, fairness and transparency---All offices and posts were to be filled by those who were the best qualified and richly deserve for them---Intra-court-appeal was dismissed in limine.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; 2000 PLC (C.S.) 9 and 2011 PLC (C.S.) 1366 rel.

(b) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---Scope---State should ensure the elimination of all forms of exploitation.

Ijaz Ahmad Awan for Appellant.

2014 P L C (C.S.) 737

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan and Abdus Sattar Asghar, JJ

NATIONAL BANK OF PAKISTAN

Versus

KHALID JAVED QURESHI and others

Intra-Court Appeal No.180 of 2012, decided on 17th April, 2013.

(a) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----S. 2(f)---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Sacked employees---Golden Handshake Scheme---Scope---Employees who had opted retirement under golden handshake scheme, claimed their re-instatement as sacked employees---Constitutional petition filed by employees was accepted---Appellant/Bank filed Intra-court appeal---Employees had not been appointed between the dates as mentioned in the Preamble of Sacked Employees (Re-instatement) Act, 2010---Employees having voluntarily opted golden handshake scheme were precluded from being entitled for re-instatement under the Sacked Employees (Re-instatement) Act, 2010---Validity---Golden Hand Shake scheme was launched for voluntarily acceptance of its terms and conditions---Respondents/employees had independently exercised their free option by offering volunteer acceptance of scheme and had received all pecuniary benefits towards full and final settlement---Employees had also executed "No demand certificate" and had severed their relationship and lien with the appellant/bank once for all---Essential ingredients and pre-requisites of a valid "offer" and "acceptance" were fulfilled---None of the parties/beneficiaries of the golden handshake scheme was legally competent to rescind or revoke it at any subsequent event---Bank had become functus officio and could not be permitted to wriggle out of their obligations and solemn commitments---Employees' had exercised their option for golden handshake scheme were not entitled to their re-instatement---Intra-court appeal was allowed.

(b) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----S.2(f)---Constitution of Pakistan, Art.199---Constitutional petition---Sacked employees---Time specific applicability---Scope---Employees' dates of appointment and relinquishment of their charge were much prior to the dates conspicuously specified in the Sacked Employees (Re-instatement) Act, 2010---Provisions of Sacked Employees (Re-instatement) Act, 2010 were totally alien and inapplicable to the case of such employees, being time specific.

Government of Balochistan through Additional Chief Secretary v. Aziz Ullah Menon and 16 others PLD 1993 SC 341 ref.

(c) Interpretation of statutes---

----Law should be interpreted in such a manner that it should be saved rather than destroyed.

(d) Interpretation of statutes---

----Courts should lean in favour of upholding constitutionality of legislation, and it was therefore incumbent upon the courts to be extremely reluctant to strike down laws as unconstitutional.

Multiline Associates v. Ardshir Cowsjee and 2 others PLD 1995 SC 423 rel.

(e) Interpretation of statutes---

----Preamble of a statute is good means to find out its intent.

(f) Interpretation of statutes---

----Harmonious construction of statute is to be made keeping in view the different provisions of the statute after fully understanding the intention with which the same had been made and object was intended to be achieved.

Syed Haidar Shah v. Mukhtar Hussain Shah PLD 1963 (W.P.) Lah. 548 and DG Khan Cement Company Ltd. and others v. Federation of Pakistan 2004 SCMR 456 rel.

Mugis Aslam Malik for Appellant.

Malik Abdul Latif Khokhar and Faiz Rasul Khan Jalbani for Respondents.

2014 P L C (C.S.) 759

[Lahore High Court]

Before Shezada Mazhar, J

MUHAMMAD ATTIQ-UR-REHMAN and others

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment and 4 others

Writ Petitions Nos.19428, 19429, 19430 of 2012, 14450 of 2013 and F.A.O. No.400 of 2013, heard on 20th December, 2013.

(a) Rules of Business (Federal), 1973---

----Rr. 2(xx), 3(3) & 4(5)---Subordinate Offices of Federal Government---Determination of status of federal government offices---Scope---Any office of federal government other than a Ministry, Division or an attached department is "subordinate office"---Distribution of business or the constitution of the Division is to be notified by the Prime Minister.

(b) Constitution of Pakistan---

----Arts. 4, 25, 27 & 199---Constitutional petition---Civil service---Promotional examination of government employees---Government servants working under field offices of the Federal Board of Revenue were restrained from participating in the examination---Scope---Contention of the petitioners/government servants was that employees working in the head office of Federal Board of Revenue were eligible whereas those working in the field offices were declared ineligible to appear in the promotional examination and as such the ineligibility criteria was discriminatory---Validity---Ineligibility criteria laid down by the respondent department was clearly discriminatory because in a democratic dispensation a society believing in rule of law there should be no arbitrary policy, decision/administrative orders---All similarly placed persons were entitled to be treated in the similar manner---Notification declaring the petitioner employees working in the field offices as ineligible to appear in the Promotional Examination was illegal and unlawful---Constitutional petition was allowed.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Humayatullah Farukhi PLD 1969 SC 407; Anjum Pervaiz and 2 others v. General Manager (Operations), Pakistan Railways, Lahore and 4 others 2010 PLC (C.S.) 1280; Sher Muhammad Khan and others v. The Secretary, Establishment Division, Government of Pakistan, Islamabad and 3 others 2006 PLC (C.S.) 77; Riaz Hanif Rahi and others v. Registrar, Lahore High Court, Lahore and others 2008 PLC (C.S.) 1175 and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 ref.

Kh. Umar Masood for Petitioners (in Writ Petitions Nos.19428 to 19430 of 2012).

Mian Jaffar Hussain for Petitioner (in Writ Petition No.14450 of 2013).

Appellant in person (in F.A.O. No.400 of 2013).

Mushtaq Ahmad Mohal for Petitioner (in C.M. No.7 of 2013 and Writ Petitions Nos.19428 to 19430 of 2012).

Ibrar Ahmad for FBR.

Ch. Muhammad Shakeel for Khadim Hussain Zahid, for FBR.

Haroon Rashid, A.D. (Legal) for FPSC, Headquarters, Islamabad.

Qamar-ul-Haq Bhatti, Standing Counsel.

Date of hearing: 20th December, 2013.

2014 P L C (C.S.) 773

[Lahore High Court]

Before Abdus Sattar Asghar, J

ZAHRA HAIDER

Versus

FEDERAL BOARD OF REVENUE and others

Writ Petition No.28011 of 2013, heard on 7th February, 2014.

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

----S. 9---Promotion---Eligibility---Determination of fitness---Right of consideration for promotion---Scope---"Eligibility for promotion" and "determination of fitness" are two different criteria---Eligibility primarily relates to terms and conditions of service and their applicability to the civil servants---Question of fitness is a subjective evaluation on the basis of objective criteria---Civil servant has a right to be considered for promotion if eligible on account of possessing prescribed minimum qualification---Civil servant has no vested right to be promoted.

(b) Service Tribunal Act (LXX of 1974)----

----S. 4---Civil Servant Act (LXXI of 1973), S.9---Constitution of Pakistan, Arts.199 & 212---Constitutional jurisdiction of High Court---Scope---Promotion---Deferment---Terms and conditions of service---Civil servant/petitioner aggrieved by her deferment invoked the Constitutional jurisdiction of High Court---Objection was raised on the maintainability of the Constitutional petition on the basis of bar of Art.212 of the Constitution---Validity---Civil servant aggrieved with respect to the terms and conditions of service had right to file appeal before appropriate tribunal established for such purpose---Law had not provided any remedy of appeal or representation in the matters relating to determination of fitness of a civil servant to be promoted to a higher post---Petitioner/civil servant had no right of appeal or representation against the impugned recommendation of Departmental Selection Board (DSB)---In view of the specific bar contained in clause (b) of proviso to S.4(1) of the Service Tribunals Act, 1973, the petitioner/civil servant had no adequate efficacious remedy, therefore, he/she had a right to seek the constitutional remedy---Constitutional petition before High Court was not violative to the mandate of Arts.199 & 212 of the Constitution---Departmental Selection Board was directed to consider the case of the civil servant/petitioner's promotion---Constitutional petition was partly allowed.

Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 PLC (C.S.) 596 rel.

Ahmed Faheem for Petitioner.

Ibrar Ahmed for Respondents Nos.1 and 5.

Date of hearing: 7th February, 2014.

2014 P L C (C.S.) 782

[Lahore High Court]

Before Shoaib Saeed, J

WAHEED AKHTAR

Versus

DISTRICT COORDINATION OFFICER, DISTRICT KHANEWAL and 2 others

Writ Petition No.3594 of 2012, decided on 5th December, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for the post of Sanitary Workers in the newspaper---Non-issuance of appointment letter due to stay order granted by the Labour Court---Scope---Petitioner qualified for the post and was declared eligible for appointment and was placed at serial No.16 in the list---Nineteen candidates were issued appointment letters discriminating/ignoring the petitioner due to the fact that stay order had been issued and one seat was kept vacant---Keeping the said seat vacant was unjust and contrary to the rights protected under the Constitution---Stay order was granted in favour of worker of respondent-department who was performing his duty as a water-career and petitioner was eligible for the post of Sanitary Worker---Said two posts had no compatibility---Post against which petitioner was selected was published through an advertisement which had no nexus with stay order granted by the Labour Court---Withholding of appointment letter of petitioner was violative of rights accrued to him on account of his selection as an eligible/qualified/successful candidate---Authorities were directed to issue appointment letter to the petitioner and adjust/absorb him against the post to which he qualified---Constitutional petition was accepted in circumstances.

Athar Aziz Chaudhary for Petitioner.

Ch. Iftikhar Ahmad Warraich for T.M.A.

2014 P L C (C.S.) 793

[Lahore High Court]

Before Ibad-ur-Rehman Lodhi, J

ALI AHMAD

Versus

EXECUTIVE DISTRICT EDUCATION OFFICER, SIALKOT and another

Writ Petition No.10311 of 2012, decided on 12th November, 2013.

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

----Rr. 16, 17 & 17-A---Punjab Employees, Efficiency, Discipline and Accountability Act (XII of 2006), S.16---Constitution of Pakistan, Art. 199--- Constitutional petition--- Contractual appointments---Termination---Scope---Unemployed children of deceased employee---Term "Post" in Rr.16 & 17 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974---Connotation---Petitioner's father was a regular employee who died during service---Petitioner was given appointment on contract basis in place of his deceased father---Petitioner's contractual appointment was terminated on account of absence---Departmental appeal of the petitioner was also dismissed as being contractual employee, he did not have the remedy of departmental appeal---Validity---In case of death of a civil servant, who died during service, one unemployed child of his, was to be appointed against a post---Term "post" provided in the Rr.16 & 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, was referable to the "post", which was being held by the deceased civil servant of the aspiring child for the appointment---Father of the petitioner was a regular employee in education department and his appointment on contract basis was alien to such scheme of law as provided under the R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---In the present case, the petitioner (child of deceased civil servant) was treated as contract employee and was proceeded against in such capacity and his departmental appeal was also dismissed holding that contract employee had no right of appeal---All actions against the petitioner (child of deceased civil servant), while treating him as an employee on contract basis had lost their efficacy---Petitioner (child of deceased civil servant) was a regular employee and he was to be dealt with on any available disciplinary grounds by giving him a status of regular employee---Punitive actions taken against the petitioner were not sustainable, therefore the impugned order was set aside and the petitioner was ordered to be re-instated in service---Constitutional petition was allowed.

Petitioner in person.

Muhammad Nasir Chohan, Asstt. A.-G. Punjab with Muhammad Zahoor-ul-Haq, Headmaster Government High School Kharotta Syedan Sialkot on behalf of Respondent No.1.

2014 P L C (C.S.) 820

[Lahore High Court]

Before Shujaat Ali Khan, J

ABDUL WAHID and 4 others

Versus

CITY DISTRICT GOVERNMENT through District Coordination Officer, Lahore and 3 others

Writ Petition No.18885 of 2013, decided on 12th December, 2013.

Constitution of Pakistan---

----Arts. 199 & 10-A---Punjab Office of Ombusman Act (X of 1997), S.32--- Constitutional petition--- Maintainability--- Civil service---Declaration of appointment of an employee as violative of recruitment policy by the Ombudsman---Discrimination---Audi alteram partem, principle of---Locus poenitentiae, principle of---Applicability---Scope---Contention of employees was that order of Ombudsman was coram non-judice---Validity---Recruitment of anybody including the petitioners had not been challenged before the Ombudsman---Matter before the Ombudsman was with regard to provision of record qua the recruitment process and nobody had agitated any grievance against the petitioners---Relief could not be granted beyond the prayer clause---Ombudsman could entertain the complaint with regard to conduct of a government official but could not declare the appointment of persons as illegal who were neither party before him nor any relief was claimed against them by the complainant---When impugned order was patently illegal or was without jurisdiction then constitutional jurisdiction of High Court could not be abridged on account of availability of alternate remedy---High Court being custodian of fundamental rights of citizens was under obligation to take care of orders passed by the executive and quasi judicial forum when same were brought before it in constitutional petition---Petitioners being contract employees had no alternate remedy except to invoke the constitutional jurisdiction of High Court against the order whereby their services were dispensed with---Ombudsman prior to holding appointment of petitioners as illegal did not afford them an opportunity of hearing---Impugned order passed by the Ombudsman was violative of principles of audi alteram partem which was applicable not only on judicial proceedings rather same was also to be followed in quasi judicial proceedings---Petitioners had already served the department for more than two years out of total period of their contract i.e. three years and their case was covered by the principle of locus poenitentiae---Nothing was available on record against the petitioners or that they used any illegal means while getting their appointment---No action had been taken against the persons who were members of recruitment process---Other persons were also appointed by the recruitment committee but penal action had been taken only against the petitioners which had made the case a classical case of discrimination---Impugned order passed by the Ombudsman was not tenable which was set aside---Constitutional petition was accepted in circumstances.

Member (Colonies) Board of Revenue, Punjab, Lahore and others v. Muhammad Shafi and others 2008 SCMR 589; Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L.Rs and 5 others PLD 2005 SC 592; Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others 2006 SCMR 1356; Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28 and Muhammad Hafeez v. Judge Family Court and others 2013 CLC 470 ref.

Citi Bank N.A. v. Shahansha Hussain 2009 CLD 1564; Dr. Nighat Bibi v. Secretary, Ministry of Health 2009 SCMR 775; Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Messrs Ahmed Clinic v. Government of Sindh 2003 CLC 1196; Messrs Dewan Salman Fiber Ltd. and others v. Government of N.-W.F.P., through Secretary, Revenue Department, Peshawar and others PLD 2004 SC 44; Director Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350; Chairman; Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak 1999 SCMR 1004; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077 and Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary N.-W.F.P. Peshawar and others 2007 PLC (C.S.) 179 rel.

Naveed Ahmad Khawaja for Petitioner.

Iftikhar Ahmad Mian for Respondent No.1.

Rana Shamshad Khan, A.A.-G. along with Shabbir Ahmad Mughal A.O.R. of P.L.G.B. for Respondents.

2014 P L C (C.S.) 871

[Lahore]

Before Mrs. Ayesha A. Malik, J

UMAR HAYAT KHAWAJA

Versus

NATIONAL BANK OF PAKISTAN through President and 2 others

Writ Petitions Nos.1991, 23107, 30394, 24912 and 26449 of 2012, heard on 14th April, 2014.

Constitution of Pakistan---

----Art. 199---National Bank of Pakistan Instruction Circulars Nos.37/99 and 57/99---Constitutional petition---Unutilized Privilege Leave, payment of---Grievance of petitioners (retired officers of National Bank of Pakistan] was that by virtue of National Bank of Pakistan Instruction Circular No.37/99 the Privilege Leave on the unutilized amount was frozen for encashment at the time of retirement; that at the time of their retirement they were not granted said Privilege Leave---Validity---National Bank of Pakistan Instruction Circular No.57/99 provided that frozen unutilized Privilege Leave balance could be claimed up to a maximum of 180 days at the time of retirement subject to availability of funds---Petitioners admitted that Privilege Leave amount for 180 days had been given to them, therefore there was no further amount due to them---Petitioners had filed present constitutional petition after having availed all retirement benefits when all outstanding dues were paid at the time of their retirement at which point no claim for any amount was made---Petitioners retired in the years 2002, 2005, 2006 and 2011 respectively, therefore their claim was also hit by laches as present constitutional petition was filed in the year 2012---Constitutional petition was dismissed in circumstances.

Umar Hayat Khawaja for Petitioner.

Ch. Muhammad Ashraf Khan and Umar Abdullah for Respondents.

Date of hearing: 14th April, 2014.

2014 P L C (C.S.) 876

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

KOKAB IQBAL

Versus

MANAGER NATIONAL BANK OF PAKISTAN, LAHORE and 3 others

Writ Petition No.16300 of 2011, heard on 14th April, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Bank employee---Delay in seeking relief for (ante dated) promotion---Effect---Petitioner worked as a clerk-cum-typist with National Bank of Pakistan ("Bank")---Grievance of petitioner was that he was entitled to promotion as Grade-III officer with effect from 1-1-1992, but he was denied such promotion for no justifiable reason---Validity---Record showed that petitioner was promoted to Officer Grade-III on 5-1-2006---Petitioner accepted his promotion in the year 2006 without any objection---Issue of (ante-dated) promotion was not agitated by petitioner until filing of present constitutional petition, therefore it was hit by laches---Nothing on record substantiated claim of petitioner rather it showed that he was told time and again that the issue of his (ante dated) promotion was closed and that he had no claim---Admittedly petitioner presently stood retired and sought a promotion, which he was repeatedly told he was not entitled to---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Non-disclosure of fact in petition--- Effect--- Bank employee--- Claim for (1ante dated) promotion---Petitioner had already retired at the time he filed present constitutional petition seeking ante dated promotion---Such fact of retirement was not disclosed in the constitutional petition---Petitioner was not entitled to relief claimed on such ground alone---Constitutional petition was dismissed accordingly.

Umar Hayat Khawaja for Petitioner.

Umar Abdullah for Respondents.

Date of hearing: 14th April, 2014.

2014 P L C (C.S.) 900

[Lahore High Court]

Before Shezada Mazhar, J

KHURRAM NAWAZ SIDDIQUI and another

Versus

DEPUTY DIRECTOR (ADMN.), FAISALABAD DEVELOPMENT AUTHORITY and 4 others

Writ Petition No.19748 of 2013, decided on 13th March, 2014.

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

----Ss. 2(xxiii), 10 & 27(5A)---Pakistan Council of Architects and Town Planners Ordinance (IX of 1983), Ss.2(a) & (b) & 10---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Arts.4, 25 & 199---Constitutional petition---Regularization of employment---Principle of legitimate expectancy---Petitioners employees were aggrieved of orders of Employer Development Authority for submission of their registration certificate with Pakistan Engineering Council and Pakistan Council of Architects and Town Planners for the extension of their contract after expiry of six months---Such conditions were not added in earlier contract (at the time of appointment)---Requirement of registration with the Engineering Council and Council of Architects was mentioned in the Advertisement published for the appointment---Petitioners alleged that condition of registration was an afterthought---Validity---For an Engineer and Architect/Town Planner, it was necessary for them to have studied the course which had been duly accredited by the respective Councils and if they had not studied the accredited course, they would not get registration from the said Councils---Section 2(a) & (b) of the Pakistan Council of Architects and Town Planners Ordinance, 1983 and S.2(xxiii) of Pakistan Engineering Council Act, 1975 provided that the petitioners could not be called Architect/Planner or Engineer unless they were holding degree from an institution whose programs were duly accredited by the respective Council---Constitutional petition was dismissed.

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

----S. 27(5A)---Holding of post in an engineering organization to perform professional engineering work---Condition---In order to work in any engineering organization engineers were required to get them registered with the Pakistan Engineering Council as a registered engineer or professional engineer.

(c) Punjab Development of Cities Act (XIX of 1976)---

----S. 7---Pakistan Engineering Council Act, 1975 (V of 1976), S.2(xxv)---Development Authority---"Engineering Organization"---Determination--- Development Authority was an "engineering organization" which was required to carry out not only functions of professional engineers, but also provided engineering services---Work which needed to be carried out by an employee of the Development Authority was related to the engineering professional work and engineering services, hence the requirement of registration with the Pakistan Engineering Council was applicable on the employees who were carrying out these engineering works and services for Development Authority---Authority had sought the services of the petitioners for performing functions of an engineer and an architect as defined in S.7 of the Development of Cities Act, 1976, therefore, the provisions of both Pakistan Engineering Council Act, 1975 and Development of Cities Act, 1976 were applicable to the petitioners.

(d) Pakistan Council of Architects and Town Planners Ordinance (IX of 1983)---

----S. 28---Work of architect/town planner without registration with Pakistan Council of Architects and Town Planners---Effect---Working as architect/town planner without registration with the Pakistan Council of Architects and Town Planners is an offence---Employees of the Development Authority who were required to perform functions of an architect and town planner required registration with Pakistan Council of Architects and Town Planners.

Malik Muhammad Awais Khalid for Petitioner.

Ali Akbar Qureshi for Respondents.

Tahir Khalid, Deputy Director Legal, F.D.A.

Date of hearing: 3rd March, 2014.

2014 P L C (C.S.) 923

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

MUKHTAR AHMAD CHEEMA

Versus

INSPECTOR-GENERAL, PUNJAB POLICE, LAHORE and 2 others

Writ Petition No.777 of 2014, decided on 4th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner, a police official was selected for Advance Class Course, relieved on 16-1-2014 and same day underwent medical examination---Petitioner allegedly reported at Training College, some 17 days after the start of the classes---Petitioner took a stance that he was precluded from joining the said course---Validity---Law Officer not only confirmed the facts stated by the petitioner, but also expressed his inability to defend the action of the Commandant Police Training College, rather the allegation of delay of 17 days in joining the course was stated to be the outcome of some misconception---Posture adopted by the Commandant Police Training College, was declared as perplex and unreasonable---Petitioner was informed by the Inspector General of Police, on 13-1-2014 regarding this, selection for the said course and he was relieved on 16-1-2014 and reported at the College on 17-1-2014 i.e. within four days from start to finish---Even if the petitioner was keen to join the course earlier, it was humanly impossible for him to have reported at the college before 17-1-2014---Action taken by Commandant Police Training College, to slam the doors of Police College, on the petitioner was declared to be unwarranted, illegal and of no legal effect---Constitutional petition was allowed in the circumstances and intervening period was ordered not to be counted or set up against the petitioner while calculating his attendance at Police Training College.

Rana Asif Saeed for Petitioner.

Malik Muhammad Bashir Lakhesir, Asstt. A.-G. with Abdul Rouf D.S.P. (Legal), Police College Sihala, Islamabad and Shehzad Ahmad, D.S.P. (Legal) Regional Police Officer Office, Multan for Respondents.

2014 P L C (C.S.) 948

[Lahore High Court]

Before Shah Khawar, J

SHAMA KHAN ZAFAR

Versus

DISTRICT COORDINATION OFFICER, LODHRAN and others

Writ Petition No.15606 of 2012, decided on 14th April, 2014.

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

----S. 8---Constitution of Pakistan, Arts.4 & 199---Constitutional petition---Promotion---Regularization---Entitlement---Petitioner while serving as PTC was adjusted as EST against a leave vacancy and then was confirmed as such---Non-consideration of petitioner, who was figured at Serial No.17 for promotion by the Departmental Promotion Committee owing to pendency of inquiry in respect of Advance Audit Para No.2 regarding irregular appointment against the post of EST, whereas, juniors, who were figured at Serial Nos.18 to 65 were promoted---Contention was that pendency of inquiry and even minor penalty could not come in the way of promotion---Legality---Pendency of inquiry and one minor penalty could not come in the way of promotion of a civil servant---Civil servant could not claim promotion as a matter of right but it was an inalienable right of every civil servant that he be considered for promotion along with his batch-mates---Constitutional petition was allowed.

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

----S. 9---Constitution of Pakistan, Arts.4 & 25---Promotion of junior officers---Effect---Grievance of petitioners was that respondents who were junior to them were promoted to Basic Scale-16, and they were not even considered for promotion---Validity---If left out officer was eligible for promotion, yet not promoted and juniors were promoted, the same amounted to glaring violation of command of Art.4 of the Constitution according to which it was an inalienable right of individual to be dealt with in accordance with law.

(c) Constitution of Pakistan---

----Arts. 4, 25 & 199---Constitutional petition---Public functionaries---Duty to adhere to the constitution---Scope---All the State functionaries are duty bound to strictly adhere to the Constitution and specially Arts.4, 5 & 25 of the Constitutions, while dealing with their day to day business---Public functionaries should not wait for intervention of the superior courts but to extend equal treatment and protection of law whenever they are seized of the matters of the aggrieved persons.

(d) Constitution of Pakistan---

----Arts. 5 & 199---Constitutional jurisdiction---Scope---Loyalty to State---Under Art.199 of the Constitution, High Court has the jurisdiction to protect and enforce the fundamental rights of the citizens which have been denied---According to Art.5 of the Constitution loyalty to State and obedience to Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.

(e) Constitution of Pakistan---

----Art. 5---'Citizen'---Scope --Word 'citizen' does not confine to the ordinary citizen of the country but also covers persons functioning in connection with the affairs of the Federation, Province or a legal authority.

Noor Ahmad Khan Meo for Petitioner.

Aurangzeb Khan, Asstt. A.-G., Punjab for Respondents.

2014 P L C (C.S.) 963

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

MUHAMMAD ALAMGIR

Versus

NATIONAL BANK OF PAKISTAN through Regional Head and others

Writ Petition No.9361 of 2012, heard on 31st May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Retired bank employee---Non-entitlement to promotion---Scope---Promotion notification---Prospective effect---Notification applicable to existing employees and not retired employees---Petitioner who was an employee of the Bank retired on 10-4-2008---Subsequent to that on 29-4-2008 the Bank approved its promotion policy, and issued a notification whereby promotion was given to regular employees of the Bank with effect from 1-1-2008---Claim of petitioner was that in light of said notification, he was entitled to promotion, notwithstanding the fact that he had retired from the bank on 10-4-2008---Validity---Plain reading of the notification in question showed that its operation was prospective, and it applied to all 'existing officers'---Nothing in the language of the notification suggested that its benefit would apply to retired employees, rather it suggested that it would apply to all officers presently employed---By way of notification in question only those employees were eligible for promotion who were in the service of the Bank at the relevant time---Notification could not have retrospective effect unless it was specifically stated---If the notification was intended to include retired employees it would clearly say so---No reason existed to assume that effective date of promotion would include retired employees---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Retired Bank employee---Entitlement to promotion---Scope---Retired employee could not take benefit of a (promotion) notification (issued by the employer) after his retirement---Once employee had retired he had severed all ties with the employer and there was no basis upon which any benefit could be claimed.

(c) Notification---

----Prospective effect---Scope---Notification which was prospective in its operation from the date of its issuance, could not be given retrospective effect unless specifically stated.

Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864 rel.

Umar Hayat Khawaja for Petitioner.

Umar Abdullah for Respondents.

Date of hearing: 31st May, 2012.

2014 P L C (C.S.) 979

[Lahore High Court]

Before Shah Khawar, J

ABDUL MAALIK and others

Versus

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, MULTAN and others

Writ Petition No.9271 of 2013, decided on 6th May, 2014.

(a) Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---Civil service---Promotion/selection of petitioners against the post of Lower Division Clerks against 33% quota reserved for the former class-IV staff---Withholding of promotion order without show-cause notice---Locus poenitentiae, principle of---Applicability---Accrual of vested right---Scope---Contention of the petitioners was that after their promotions/selections a vested right had been accrued in their favour, but their promotions/selections had been withdrawn without issuing a show cause notice and giving an opportunity of personal hearing to the petitioners in violation of Principle of Natural Justice---Validity---When a vested right was accrued in favour of petitioners, the same could not be withheld by just putting the petitioners to surprise---State functionaries were required to afford a proper opportunity of hearing to an individual against whom an adverse order was going to be passed---Petitioners had acquired a vested right by way of their promotions and admittedly neither any show cause notice was issued nor they were afforded a right of hearing, which had made the whole exercise as illegal, unconstitutional and in glaring violation of the principles of natural justice---Constitutional petition was accepted in the circumstances.

(b) Natural justice, principles of---

----State functionaries were required to afford a proper opportunity of hearing to an individual against whom an adverse order was going to be passed.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 rel.

Ahmed Raza for Petitioner.

Mian Ashfaq Hussain Legal Advisor for Pakistan Railways with Jahanzaib Ahmed Khan Divisional Personnel Officer, Multan Pakistan Railways for Respondents.

Date of hearing: 6th May, 2014.

2014 P L C (C.S.) 987

[Lahore High Court]

Before Shah Khawar, J

HUMAIRA HAFEEZ

Versus

GOVERNMENT OF PUNAJB and others

Writ Petition No.11856 of 2013, decided on 5th May, 2014.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition--- Maintainability--- Civil service--- Advertisement for recruitment on regular basis---Appointment on contract basis---Locus poenitentiae, principle of---Applicability---Vested right---Scope---Pleas of financial constraints and principle of promissory estoppel---Validity---Principles of promissory estoppel and locus poenitentiae were not attracted as the appointment was offered through advertisement on the regular basis---Plea of Authority that due to financial constraints the petitioner could not be appointed on regular basis was not convincing and could not be accepted as vested right by way of selection of the petitioner had been accrued in her favour and at the later stage, Authorities could not be allowed to take a U-turn---After her appointment on regular basis, petitioner could not be compelled to work on contract basis---Plea of financial constraints was not accepted by the High Court as the advertisement could not be issued without approval from the Finance Department---Petitioner could not be made victim of the shortcomings of the department as the Authorities were under the constitutional obligation to treat the petitioner in accordance with law---Acceptance of job by the petitioner on contract basis could not be made basis of withholding of permanent appointment as due to prevailing circumstances of un-employment in the country, the petitioner had no other option but to accept the same---Petitioner had not lost her Constitutional right to invoke the jurisdiction of the High Court under Art.199 of the Constitution and in the same manner the High Court could not be precluded from exercising powers of judicial review against such-like arbitrary actions of the executive---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review of arbitrary actions of executive---Scope---Promissory Estoppel---Applicability---Acceptance of job by the petitioner on contract basis could not be made basis of withholding of permanent appointment, as due to prevailing circumstances of un-employment in the country, the petitioner had no other option but to accept the same---Petitioner had not lost her constitutional right to invoke the jurisdiction of the High Court under Art.199 of the Constitution and in the same manner the High Court was not precluded from exercising powers of judicial review against such-like arbitrary actions of the executive---Constitution petition was allowed.

Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 and Pakistan v. Muhammad Hamayatullah PLD 1969 SC 407 rel.

Haji Muhammad Tariq Aziz Khokhar for Petitioner.

Muhammad Aurangzeb Khan, Asstt. A.-G. with Abid Hussain Principal Vocational Training Institute Kot Mithan and Ansur Mehmood, Area Manager, D.G. Khan for Respondents.

2014 P L C (C.S.) 997

[Lahore High Court]

Before Shoaib Saeed, J

Mst. ZUBAIDA KHATOON

Versus

DISTRICT HEALTH OFFICER, MULTAN

Writ Petition No.3609 of 2013, decided on 19th December, 2013.

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

----R. 12-A---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Alteration in date of birth record of civil servant---Contention of petitioner was that she was retired pre-maturely---Validity---Date of birth of an employee once recorded at the time of joining government service was final and no alteration in the same was permissible and such date was to be reckoned as recorded in the service book---Petitioner must have filled her date of birth on many forms and proformas and it was inconceivable that on the verge of retirement she came to know her date of birth mentioned in the service book was incorrect---Such alteration in date of birth of petitioner was an afterthought as she did not move any application for correction of the same during period of her service---Constitutional jurisdiction in matters with regard to terms and conditions of service of civil servants being barred, Constitutional petition was dismissed.

Muhammad Mehrban Ranjha for Petitioner.

Mirza Muhammad Saleem Baig, A.A.-G. with M. Javed Superintendent for Respondent.

2014 P L C (C.S.) 1045

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD KHALID MEHMOOD

Versus

DIRECTOR-GENERAL POSTAL SERVICES, ISLAMABAD and 4 others

Writ Petition No.3002 of 2014, decided on 20th March, 2014.

Constitution of Pakistan---

----Arts. 199 & 212(3)---Constitutional petition---Civil service---Successive transfers in a short span of few months/weeks---Violation of transfer policy and wedlock policy---Considerable influence and clout of private respondent, who enjoyed the patronage of the local politicians---Authority contended that the transfer was ordered in "public interest"---Validity---All sorts of transfer orders were sought to be justified in the name of "public interest", without comprehending the implications thereof---Expression "public interest" denoted that it was the supreme interest of the public that was to be factored into at the time of passing such orders---Roving inquiry was not required to find out "public interest"---"Public interest" was to be discernible from a mere reading of the order in question---High Court observed that time had come when Government departments were sounded not to invoke the overworked cliché of "public interest" to justify their illegal, unlawful and motivated orders passed at the behest of the influential persons---Superior Courts had invariably viewed with disfavor the postings and transfers of public servants every few months---Constitutional petition was allowed.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 rel.

Syed Hamid Hassan Pirzada for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. with Aftab Hussain DS(PS), Multan and Shahid Yousaf AS, Multan Circle for Petitioners.

Mian Tanvir Kamran for Respondent No.5.

2014 P L C (C.S.) 1068

[Lahore High Court]

Before Umar Ata Bandial, C.J.

Dr. Kh. KHURSHID AHMAD

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.3048 of 2013, heard on 25th February, 2014.

(a) Punjab Health Department (Medical and Dental Teaching Posts) Service Rules 1979---

----Sched. II---Regulations for the Appointment of Teachers and Examiners under the Medical and Dental Institutions of Pakistan, page 5---Constitution of Pakistan, Art. 199---Constitutional petition---Medical University---Associate Professor appointed on contract basis---Regularization---Eligibility criteria/qualification---Qualification for regularization of service would be that which was prevalent at the time of appointment---Changed eligibility criteria for regularization of appointments only applied prospectively---Petitioner was appointed as an Associate Professor of Radiology on contract basis in the year 2007---Petitioner possessed a Diploma in Medical Radiology Diagnostics ("Diploma") but not a Fellowship of the College of Physicians and Surgeons ("FCPS")---In the year 2011 Provincial Government extended benefit of its Regularization Policy to Professors and Associate Professors in the medical teaching cadre, however the petitioner was declined such benefit on the ground that he did not possess the required FCPS or equivalent qualification---Validity---Recruitment record of teachers in the year 2007 to senior teaching posts in radiology at Government Medical Colleges showed that the DMRD qualification was treated as an alternate qualification fulfilling the minimum prescribed criteria for appointment to such teaching posts---In the year 2011 the Provincial Government and the Pakistan Medical and Dental Council amended the eligibility qualification for appointment of senior faculty in radiology by confining it to FOPS or equivalent post-graduate qualification---Such change of law must apply prospectively and it could not be used to discredit existing appointments---Changed criteria of eligibility could not apply retrospectively for regularization of appointments made in the past---Relevant benchmark for eligibility for regularization was the applicable qualification enforced at the time of initial appointment---Presently the Provincial Government teaching cadre comprised of four Professors of Radiology, who were at the pinnacle of the teaching hierarchy and all of them held a DMRD qualification in radiology---Teaching faculty with DMRD qualification was performing its duties without complaint about skill or knowledge---Academic qualifications alone were not an indicator of the appropriate level of skill, knowledge, training and proficiency in a profession---Respondent authorities had not complained of a single instance of petitioner's alleged incompetence, default or negligence---Petitioner's service record was unblemished and all his ACRs ranked him as a sound professional---To disqualify the petitioner merely on account of his professional qualification, that had time and again sufficed for the Provincial Government, and on the basis of which the petitioner was appointed in the first place, would amount to gross unfairness---Provincial Government had erred in holding the petitioner to lack the requisite qualification prescribed in service rules for regularization as Associate Professor ---Consequently, the same was declared to be illegal and without lawful authority---Constitutional petition was allowed accordingly with the direction that petitioner was eligible for consideration for regularization in the post of Associate Professor.

(b) Civil service---

----Contract appointment---Regularization of service---Prescribed qualification---Prescribed qualification for the purpose of regularization of service of a contract appointee should be that which was prevalent at the time of his appointment.

(c) Civil service---

----Contract appointment---Regularization of service---Scope---Regularization in service was not an initial recruitment but the confirmation of an existing employment.

S.M. Zaman, Dr. Abdul Basit, Zulfiqar Ahmad Warriach and Mian Muhammad Anas Bin Ghazi for Petitioner.

Shahid Mubeen, Addl. A.-G. along with Ijaz Farrukh, Law Officer, KEMU, Amir Rasheed Malik, Law Officer and M. Naseer-ud-Din, Section Officer, Health Department, Government of the Punjab for Respondents.

Date of hearing: 25th February, 2014.

2014 P L C (C.S.) 1080

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD MASOOD and others

Versus

MARKET COMMITTEE and others

R.A. No.4 of 2014, decided on 5th March, 2014.

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

----Ss. 2(h) & 19(1)---Constitution of Pakistan, Arts.199 & 212(2)---Constitutional petition---Maintainability---Penalty imposed upon the employee under the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Constitutional jurisdiction of High Court was barred under Art.212(2) of the Constitution---Appeal lay to the Service Tribunal, irrespective of the status of civil servant---Validity---Petitioners being employees of the Market Committee squarely fell within the definition of an "employee" given under S.2(h) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Employees proceeded under said Act, which itself provided a mechanism for redressal of their grievance under its S.19---Employees proceeded under the Punjab Employees Efficiency Discipline and Accountability Act, 2006 had been provided a forum for the redressal of his grievance, therefore bar contained in Art.212(2) of the Constitution was attracted---Petitioners/employees need not to be civil servants to invoke the jurisdiction of Punjab Service Tribunal being the employee of Market Committee when proceeded under the Act.

Tanveer Hussain v. Director, Agriculture (Economics and Marketing), Punjab, Lahore and 3 others 2012 PLC (C.S.) 948 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 distinguished.

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

----O. XLVII, R.1---Review---Scope---Review of order sought on the ground of different interpretation of provision of law already considered---Validity---Where the order sought to be reviewed did not suffer from any ambiguity or legal error the review petition was liable to be dismissed---Matter which had been fully considered in the order/judgment of the court, it could not be allowed to re-argue through a review application---Where a decision was given without considering some statute then its reconsideration was justified but where the statutory provision had been considered and an interpretation was given thereon, merely because another view was possible would not justify the review of the order---Review petition was dismissed.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 rel.

Ch. Muhammad Ali Imran for Petitioners.

2014 P L C (C.S.) 1088

[Lahore High Court]

Before Ijaz Ahmad and Ch. Muhammad Masood Jahangir, JJ

PAKISTAN through Chief Engineer Works/Project Director

Versus

Raja MUHAMMAD ZAMAN KHAN

Regular First Appeals Nos.94 or 1998 and 67 of 1999, heard on 7th November, 2013.

Contract---

----Building construction contract---Delay in execution of work caused by contractor/employer---Claim of overhead charges by employee---Hudson's formula of calculating offsite overheads---Applicability and scope---Plaintiff/employee through suit claimed compensation of the overhead charges from the employer on account of delay caused by the employer---Trial Court partially accepted/decreed the claim of employee/plaintiff and granted him 15% overhead expenses on the final work under the Hudson's formula---Validity---Trial court had observed that there was no evidence on the basis of which it could be estimated that how much actual loss had been suffered by the employee/plaintiff, therefore employee/plaintiff was entitled to the extent of 5% instead of 15% of the total value of the contract---Impugned judgment and decree was modified to such effect.

Karachi Transport v. Karachi Tameerat Ltd. PLD 1992 SC 479 rel.

Saeed Akhtar for Appellant.

Muhammad Shoaib Abbasi for Respondent.

Date of hearing: 7th November, 2013.

2014 P L C (C.S.) 1125

[Lahore High Court]

Before Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ

ANWAR-UL-HAQ SHAHID BARI

Versus

T.M.A. and others

Intra-Court Appeal No.1 of 2014, decided on 20th January, 2014.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)--- Intra-court appeal--- Maintainability--- Award of emoluments and pensionary benefits---Scope---Employee of Local Government filed constitutional petition for issuance of emoluments and other pensionary benefits which petition was disposed of with the direction to the department to decide his appeal after affording opportunity of hearing to the parties---Contention of department was that intra-court appeal was not maintainable as petitioner had availed the remedy of appeal before concerned department---Validity---Petitioner had filed an appeal before the concerned department before filing constitutional petition, intra-court appeal was not maintainable---Intra-court appeal was dismissed in limine.

Jamshaid Akhtar Khokhar for Appellant.

Saeed Ahmad Choudhary, A.A.-G. for Respondents.

2014 P L C (C.S.) 1128

[Lahore High Court]

Before Shah Khawar, J

JAVAID-UR-REHMAN

Versus

SPECIAL JUDGE ANTI-CORRUPTION, D.G. KHAN and others

Writ Petition No.797 of 2014, decided on 17th April, 2014.

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

----Art. 27---Constitution of Pakistan, Art. 199 & 212---Constitutional jurisdiction---Scope---Recruitment in rank of Police Constable against Shaheed Quota---Factual controversies---Petitioner was appointed on "Shaheed's claim" on the basis of a fake school leaving certificate and misstatement that his father was martyred in a police encounter---On complaint a detailed inquiry was conducted and certificate was found bogus---Criminal case was registered against the petitioner, which culminated into conviction by Special Judge Anti Corruption in the light of confessional statement of the petitioner---Petitioner submitted certificate issued by the Headmaster Government Elementary School, "B", which was proved to be correct, but at the time of appointment as constable, petitioner had relied upon a certificate issued by the Headmaster Government High School, "SJ"---Petitioner's father was not martyred, rather another constable was martyred---Petitioner availed all the remedies available to him by way of filing departmental appeals, appeal before the Tribunal and even before the High Court, but failed to make out a case for exercise of a constitutional jurisdiction---Validity---High Court could not indulge in the factual controversies and that too when the petitioner had exhausted all the legal remedies available to him---Article 212 of the Constitution had placed specific bar on the jurisdiction of High Court to entertain and adjudicate upon the matters pertaining to the terms and conditions of service of civil servants---While exercising powers under Art.199 of the Constitution, the powers of High Courts were not as that of an appellate court---High Court could only exercise constitutional jurisdiction in matters, where no factual controversy was involved and the order was without jurisdiction---Exercise of jurisdiction by the High Court under Art.199 was very limited in its scope, that had to be used very carefully---To invoke the constitutional jurisdiction of High Court, the petitioner had to show that he had left with no other adequate remedy under the ordinary laws of land and he was to satisfy the court that he was really an aggrieved person and certain orders or directions of a court, authority or tribunal needed rectification---Constitutional petition was dismissed.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Secretary to Government of N.-W.F.P. and 2 others v. Saifur Rehman 1997 SCMR 1073; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 and Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1965 SCMR 284 distinguished.

Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 212(3)---Constitutional petition---Maintainability---Civil service---Terms and conditions of service--- Factual controversies---Jurisdiction of High Court---Scope---High Court could not indulge in the factual controversies and that too when the petitioner had exhausted all the legal remedies available to him---Article 212 of the Constitution had placed specific bar on the jurisdiction of High Court to entertain and adjudicate upon the matters pertaining to the terms and conditions of service of civil servants---While exercising powers under Art.199 of the Constitution, the powers of High Courts were not as that of an appellate court---High Court could only exercise constitutional jurisdiction in matters, where no factual controversy was involved and the order was without jurisdiction---Exercise of jurisdiction by the High Court under Art.199 was very limited in its scope, that had to be used very carefully---To invoke the constitutional jurisdiction of High Court, the petitioner had to show that he had left with no other adequate remedy under the ordinary laws of land and he was to satisfy the court that he was really an "aggrieved person" and certain orders or directions of a court, authority or tribunal need rectification---Constitutional petition was dismissed.

Allah Bakhsh Kulachi for Petitioner.

Muhammad Aurangzeb Khan, A.A.-G.

Muhammad Shabbir Asif, S.-I. D.P.O. Office, Multan.

2014 P L C (C.S.) 1173

[Lahore High Court]

Before Shah Khawar, J

Dr. MUNIR AHMAD RASHID

Versus

SECRETARY HEALTH and others

Writ Petition No.827 of 2013, decided on 30th April, 2014.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Factual controversy---Bar of Art.212 of the Constitution---Determination of question of qualification and eligibility of the post of Assistant Professor advertised for a period of one year till the availability of regular incumbent/selectee by the Punjab Public Service Commission---Contention of the petitioner was that he fulfilled the criteria for appointment mentioned in the advertisement, but respondent had been appointed against the post of Assistant Professor in violation of the qualification and eligibility criteria mentioned in the advertisement---Validity---Controversy pertaining to the qualification and eligibility for appointment against a post was in the sole domain of authorities---Judgment of the Selection Committee duly constituted by the authorities in the matter of appointment could not be called in question by way of filing Constitutional petition---Divergent claims presented by the parties needed evidence, which could not be allowed under Art.199 of the Constitution---High Court under Art.199 of the Constitution, could only interfere in the matter where action of public functionaries was based on mala fide, violation of law or rule and discrimination---Constitutional petition was also not maintainable under Art.212 of the Constitution being devoid of merits---High Court while directing the authorities to get the post filled up through the Punjab Public Service Commission within the stipulated period.

Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999; Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development Department, Lahore and others 1998 SCMR 1948 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 rel.

Muhammad Ramzan Khalid Joeya for Petitioner.

Allah Bakhsh Khan Kalachi for Respondent No.2.

Malik M. Saleem for Respondent No.5.

Dr. Mukhtar Ahmad, Demonstrator/Litigation Officer, D.G. Khan Medical College, D.G. Khan.

2014 P L C (C.S.) 1184

[Lahore High Court]

Before Umar Ata Bandial, C J

Justice (R) KARAMAT NAZIR BHANDARI

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.13537 of 2013, heard on 25th March, 2014.

(a) Constitution of Pakistan---

----Art.182---Ad hoc judge of Supreme Court---Powers---With respect to performance of functions and exercise of authority, no distinction can be drawn between an ad hoc judge and a permanent judge of the Supreme Court.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1 rel.

(b) High Court Judges (Leave, Pension and Privileges) Order (3 of 1997)---

----Para. 15---Constitution of Pakistan, Arts.182 & 199---Constitutional petition---Pension benefits---Petitioner claimed that his service as ad hoc judge of Supreme Court was not included in total service for computing his pensionary benefits---Validity---Petitioner who rendered service as ad hoc judge of Supreme Court had been discharging functions and duties in service of Pakistan---Such service qualified under the terms of paragraph 15 of High Court Judges (Leave, Pension and Privileges) Order, 1997, for accretion of petitioner's pensionary benefits---One year's service, under paragraph 15 of High Court Judges (Leave, Pension and Privileges) Order, 1997, could be translated to an accretion in pension of petitioner to the extent of 2% of his salary as determined by the President---Eligibility to claim accretion occurred upon completion of such period of service in Pakistan by petitioner on the date till when he served as ad hoc judge of Supreme Court and pension amount payable to petitioner must have included such accretion---High Court declared order passed by authorities, refusing to include period of service in Supreme Court, as illegal---High Court directed Federal Government to pay petitioner pension including therein accretion of 2% of his determined salary---Petition was allowed in circumstances.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1 and Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others PLD 1994 SC 60 ref.

Syed Feisal Hussain Naqvi for Petitioner.

Khawar Farooq, D.A.G. for Respondents.

Date of hearing: 25th March, 2014.

2014 P L C (C.S.) 1207

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

Syed AMJAD ALI SHAH

Versus

MANAGING DIRECTOR, PTV CORPORATION and 40 others

Writ Petition No.22836 of 2013, heard on 14th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Apprehension with regard to disturbance of seniority---Scope---Contention of respondents was that present constitutional petition was based on apprehension and same was not maintainable---Validity---Present constitutional petition was based on apprehension that seniority of petitioner would be disturbed if same was given to the respondents prior to disposal of his representation---No seniority list had been made and prayer of petitioner could not be granted at such stage---Respondents were bound to implement the decisions of Supreme Court and High Court---Issue of seniority inter-se the petitioner and respondents had still not been decided and only appointment letters had been issued in pursuance of judgment of Supreme Court---Grievance of petitioner was premature and he might if so advised seek appropriate remedy if his seniority was adversely affected once a list was made before the competent forum---Constitutional petition was dismissed in circumstances.

Ishtiaque Ahmad for Petitioner.

Munawar Sultan Sial for Respondents Nos.1 to 4.

Malik Amjad Pervaiz for Respondents Nos.5 to 10, 13, 14, 16 to 18, 26 and 34.

Date of hearing: 14th February, 2014.

2014 P L C (C.S.) 1256

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

TAHIRA YASMIN and others

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petitions Nos.7072, 4118, 4651 4652, 8828, 11906, 17989, 30917 of 2013 and 504 of 2014, decided on 5th June, 2014.

(a) Civil service---

----Contract appointment---Regularization---Regularization of one post would not entitle persons on another post to demand regularization and on the same terms.

(b) Civil service---

----Contract appointment---Regularization---Not a vested right---Contract appointees did not have a vested right of regularization.

2013 SCMR 304 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Posts for a particular program/project---Contract appointment---Regularization---Not a vested right---Regularization of petitioners/contract employees only after recommendation by Public Service Commission---Similarly placed contract appointees from other departments regularized without recourse to Public Service Commission---Whether discrimination---Contention of petitioners/contract employees that they should not be discriminated against, and their services should also be regularized without recourse to Public Service Commission---Validity---Policy of Government was that contract appointees on project/programme posts would be regularized on the recommendations of the Commission---Contract employees from other departments who had been regularized without recourse to Commission were holding posts different from the ones held by petitioners---When considering discrimination in regularization, each post had to be seen, and not the regularization of every post in the department---Petitioners did not have a vested right for regular appointment---Besides petitioners never moved the competent authority for regularization---Constitutional petition was dismissed accordingly.

2013 SCMR 304 ref.

Hafiz Tariq Nasim for Petitioners (in Writ Petition No.7072 of 2013).

Ahmad Awais for Petitioners (in Writ Petition No.4118 of 2013).

Mehmood Ahmad Qazi for Petitioners (in Writ Petitions Nos.4651, 4652 and 11906 of 2013).

M. Asif Bhatti for Petitioners (in Writ Petition No.504 of 2014).

Malik Saleem Iqbal Awan for Petitioners (in Writ Petition No.30917 of 2013).

Khalid Ishaq for Petitioners (in Writ Petition No.17989 of 2013).

Rao Athar Akhlaq for Petitioners (in Writ Petition No.8828 of 2013).

Mrs. Samia Khalid, A.A.-G. along with Asif Mushtaq Law Officer, S&GAD, Abdul Hamid, Superintendent (G-II), Health Department for Respondents.

Date of hearing: 25th March, 2014.

2014 P L C (C.S.) 1264

[Lahore High Court]

Before Shezada Mazhar, J

JAMES EMMANUEL

Versus

FEDERATION OF PAKISTAN through Secretary, Statistics Division, Islamabad and 3 others

Writ Petition No.30567 of 2013, heard on 19th March, 2014.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Terms and conditions of service---Posting and transfer---Plea of mala fide---Petitioner was aggrieved of his transfer and assailed said order before High Court in Constitutional jurisdiction---Validity---Question of posting of government servant fell within exclusive domain of competent authority---Transfer related to terms and conditions of service and provisions of Art.212 of the Constitution had ousted jurisdiction of High Court to interfere in such matters---Petitioner had no legal right to be posted against a particular post or at a particular place---Even grounds of mala fides or lack of jurisdiction did not confer jurisdiction on High Court---No appeal/representation was filed by petitioner before competent authority against transfer order and directly approached the High Court through constitutional petition which was not maintainable in view of bar contained under Art.212 of the Constitution---Petition was dismissed in circumstances.

Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279; Sh. Riaz ul Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Sarfraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232; Mst. Sattan and others v. Group Captain Masroor Hussain, Officer Commanding P.A.F Station Sargodha Cantt. PLD 1962 (W.P.) Lah. 151 and Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111 ref.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 rel.

Asmat Kamal Khan for Petitioner.

Waqas Qadeer Dar, Deputy Attorney-General along with Kashif Bara, Section Officer, Statistics Division for Respondents.

Date of hearing: 19th March, 2014.

2014 P L C (C.S.) 1270

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

Mst. FARHANA NAZ and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2942 of 2013, decided on 3rd March, 2014.

(a) Constitution of Pakistan---

----Arts. 9 & 199---Constitutional petition---Civil service---Contractual employee--- Regularization--- Right of livelihood--- Change in qualification for the post---Effect---Subsequent change in policy requiring different qualifications could not affect the right of the petitioners/employees from being extended the benefit of regularization as at the time of appointment they possessed relevant qualifications---Extraordinary constitutional jurisdiction of High Court was always exercised with compassion and could not disregard the fact that non-regularization of service of the petitioners/employees was an act which was violation of right of livelihood.

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

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual employee---Regularization---Change in nomenclature of post---Effect---Change in nomenclature should not be used an excuse to deprive the employees from the benefit of regularization of their services---Petitioners/employees were not considered for regularization on the basis of change in nomenclature when most of the petitioners would not be eligible to be re-employed---Right to be regularized had accrued to the petitioners/employees at such a belated stage---High Court directed the authorities to consider the cases of petitioners of regularization.

Tanveer Iqbal for Petitioners.

Shahid Mahmood Abbasi, A.A.-G. for Respondents.

Qazir Zahoor Hussain, EDO (Education), Attock in person.

Syed Musa Raza, A.D. (Admn.) in person.

Date of hearing: 24th February, 2014.

2014 P L C (C.S.) 1315

[Lahore High Court]

Before Ch. Muhammad Masood Jahangir, J

SAEED AHMAD and 2 others

Versus

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

Writ Petition No.32249 of 2013, heard on 6th May, 2014.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Notification No.F-1-1/2011, dated 14-10-2011---Civil service---Grant of 20% Deputation Allowance and upgradation as per the criteria laid down by the Federal Government vide Notification dated 14-10-2011 regarding the employees of education department for their promotion---Contention of the petitioners was that neither they had been given the benefit of upgradation as per the criteria of the Federal Government, nor 20% deputation allowance---Validity---Employees of similar cadre although belonging to Federal as well as Provincial Governments had to be treated alike---Federal Government of Pakistan through Establishment Division for disbursement of deputation allowance @ 20% had already issued letter dated 29-2-2012 to the Chief Secretary, Government of the Punjab with a request for payment of the said allowance---High Court directed the respondents to take all necessary steps to remedy the grievances of the petitioners as early as possible---Provincial Government was also directed to give effect to the letter dated 29-2-2012 in letter and spirit by way of disbursing 20% deputation allowance to the petitioners from the date of their entitlement---Constitutional petition was disposed of accordingly.

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

Mian Jaffar Hussain for Petitioners.

Aamir Rehman, Dy. A.-G. and Muhammad Arif Yaqoob Khan, A.A.-G. for Respondents.

Date of hearing: 6th May, 2014.

2014 P L C (C.S.) 1326

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

M.I. SANITARY STORE through Proprietor and another

Versus

FEDERATION OF PAKISTAN through Secretary Commerce and 2 others

Writ Petitions Nos.12255, 12663, 12665, 13123, 13552, 13124 and 13138 of 2014, heard on 19th May, 2014.

(a) Interpretation of statutes---

----Purposive interpretation---Interpretation of a statute must be fashioned in a manner that advanced the purpose of the statute.

Aharon Barak - The Judge in a Democracy - Princeton University Press, 2006 (pp.124, 136, 137, 138 and 142) ref.

(b) National Tariff Commission Act (VI of 1990)---

----S. 6---Member of the National Tariff Commission---Tenure of office---Three years "unless otherwise directed by the Federal Government" --- Purposive interpretation--- Phrase "Unless otherwise directed by the Federal Government" appearing at the start of S. 6 of National Tariff Commission Act, 1990 meant that at best the Federal Government was empowered to appoint a person for less than three years, if circumstances so required.

(c) Anti-Dumping Duties Ordinance (LXV of 2000)---

----S. 37---National Tariff Commission Act (VI of 1990), S. 6---Constitution of Pakistan, Art. 199--- Constitutional petition---Provisional Anti-Dumping Duty, imposition of---Coram non judice---Constitution of National Tariff Commission defective and irregular---At the time of the Preliminary Determination made by the National Tariff Commission, term of office of one of its Members had lapsed therefore, the constitution of the Commission was defective and irregular---Legality of the Commission's constitution was pivotal to the exercise of its jurisdiction---No provision in the National Tariff Commission Act, 1990 existed that protected the decisions or determinations of the Commission in case the constitution of the Commission was irregular or defective---Preliminary Determination made by the Commission in the present case had not been issued by the Commission as mandated under S.37 of the Anti-Dumping Duties Ordinance, 2000, therefore the same was set aside being coram non judice---Constitutional petition was allowed accordingly.

(d) National Tariff Commission Act (VI of 1990)---

----S. 4---National Tariff Commission---Function---Nature---National Tariff Commission exercised a quasi-judicial function in deciding the rights of the parties.

Messrs Khawar Paper Mart through Proprietor v. National Tariff Commission through Chairman and another 2011 PTD 2243 and Waheed Sons Lahore and others v. National Tariff Commission Islamabad C.P.No.1608 of 2009 rel.

(e) National Tariff Commission Act (VI of 1990)---

----S. 6---Chairman and Members of the National Tariff Commission---Appointment procedure---Open and competitive process---Procedure of initial appointment of Chairman and Members of the National Tariff Commission was not a mechanical act of simple transfer of a civil servant to the Commission---Concerned Ministry of the Federal Government must structure its discretion by identifying key strengths that a Chairman or Member of the Commission must possess to effectively run the Commission and then go about selecting a person through an open and competitive process---Appointment to the Commission was, therefore, a deliberative act based on selection of the right person for the slot, rather than appointing favourites to the post.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 rel.

Petitioners by

Shafqat Mehmood Chohan, Abdul Quddus Mughal, Mian Muhammad Athar and Malik Hafiz Muhammad Arshad (in W.Ps. Nos.12255 of 2014, 12665 of 2014 and 12663 of 2014).

Waheed Riaz (in W.Ps. Nos.13552 of 2014 and 13123 of 2014).

Waqar Hussain (in W.P. No.13124 of 2014).

Monim Sultan and Usman Malik (in W.P. No.13138 of 2014).

Respondents by

Mian Muhammad Irfan Akram, Deputy Attorney General for Pakistan.

Ahmed Sheraz for Respondent (NTC).

Muhammad Raheel Kamran Sheikh for Respondent No.3 (in W.Ps. Nos.12255 of 2014, 13124 of 2014, 13138 of 2014, 13123 of 2014, 12663 of 2014 and 12665 of 2014).

Muhammad Saad Khan and Rahman Aziz for Respondent No.3 (in W.P. No.12255 of 2014).

Date of hearing: 19th May, 2014.

2014 P L C (C.S.) 1355

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD AJMAL ALI and 2 others

Versus

UNIVERSITY OF AGRICULTURAL, FAISALABAD through Vice-Chancellor and 2 others

Writ Petition No.1800 of 2012, decided on 6th February, 2013.

University of Agriculture Faisalabad Act (XII of 1973)---

----S. 15(4)(viii)---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Regularization of service---Petitioners, initially were appointed on ad hoc basis for six months, but that appointment continued to be extended from time to time---Petitioners remained working against permanent posts, but despite their repeated requests, authorities failed to issue them regular appointment letters---Submission of the authorities was that a Sub-Campus of University was established at place 'D', but as Government had not provided land for constructing said Sub-Campus, the faculty members who were appointed against the posts of the University were transferred to the main University campus at place 'F' and that the temporary appointments of supporting staff of the project, including the petitioners stood consequently terminated due to the closure of said project/Sub-Campus---Validity---Petitioners, were the employees of the University and not the Sub-Campus---Sub-Campus was part of University and appointment letters of the petitioners were issued by the Vice-Chancellor of the University---Even after the alleged closure of said Sub-Campus, authorities continued to pay salaries to petitioners---Authorities had failed to produce any document showing that petitioners' contracts of service were terminated or expired---Case was remanded to Vice-Chancellor, of the University, with the direction to hear the petitioners and to decide their grievance in accordance with law and that salaries of the petitioners would also be paid till the disposal of their grievance.

A.D. Nasim for Petitioners.

M. Shahzad Shaukat for Respondents.

2014 P L C (C.S.) 1392

[Lahore High Court]

Before Abdus Sattar Asghar, J

Mrs. REHANA KAUSAR and others

Versus

PAKISTAN ELECTRIC POWER COMPANY LIMITED (PEPCO) and others

Writ Petition No.28063 of 2011, decided on 7th March, 2014.

Constitution of Pakistan---

----Arts. 25, 27 & 199---Constitutional petition---Civil servant---Special WAPDA allowance---Discrimination---Petitioners possessing degrees of M.Sc. Chemical Engineering and M.Sc. Chemical Technology claimed the grant of special WAPDA allowance which was extended to other categories of employees working in WAPDA and power companies---Department refused the grant of allowance on the plea that such allowance was restricted to engineering cadres having registered with Pakistan Engineering Council only therefore no discrimination could be claimed on such basis---Validity---Benefit of special allowance had been extended to all the officers of BS-17 and above working in Engineering, Finance, Accounts, Costing and Audit, Administration and Human Resources Cadres of WAPDA and related power companies---Petitioners' had also possessed equivalent educational qualification which was made basis for grant of special allowance--Extending an additional allowance to the officers of one cadre and denying to the other cadre in the same level of skill and responsibilities having equal educational qualification amounted to nothing but discrimination---Petitioners possessing equal qualification, level of skill and respondents could not be discriminated---Petitioners were also entitled to the benefit of special WAPDA allowance---Constitutional petition was allowed.

Mian Mahmood Hussain for Petitioners.

Tariq Mahmood Aamir for Respondents.

2014 P L C (C.S.) 226

[Peshawar High Court]

Before Mian Fasih-ul-Mulk Khan and Muhammad Daud Khan, JJ

BAKHT MUNIR

Versus

SECRETARY HEALTH, GOVERNMENT OF N.W.-F.P., PESHAWAR and 4 others

Writ Petition No.1947 of 2009, decided on 22nd October, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Qualification of "Dental Technology"---Interpretation and scope---Petitioner having certificate of dental assistant applied for the post of Junior Clinical Technician Dental---Department appointed a candidate having diploma of "Dental Hygienist"---Contention of the petitioner was that candidate having certificate of "Dental Assistant" was eligible for appointment against the post in question---Validity---Word "Dental Technology" had been used in the advertisement of post in question---"Dental Technology" would cover all paramedic's qualifications on dental side---Diploma of "Dental Hygienist" and certificate of "Dental Assistant" had no difference and included in the term of "Dental Technology" for the purpose of appointment of "Junior Clinical Technician Dental"---Appointee had diploma of "Dental Hygienist", which was higher qualification than the petitioner who had certificate of "Dental Assistant"---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Administrative domain of government---Judicial review by superior courts---Scope---Appointment to a particular post was a matter falling exclusively within the administrative domain of the government, therefore the same was not open to judicial review---Candidate having higher qualification than the required one could not be made him ineligible for a post---Constitutional petition was dismissed.

Sayyed Badshah for Petitioner.

Muhammad Javed, A.A.-G. for Respondents.

Syed Abdul Haq for Respondent No.5.

Date of hearing: 22nd October, 2013.

2014 P L C (C.S.) 265

[Peshawar High Court]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

Pro. Dr. M. ISLAM GOUHAR

Versus

UNIVERSITY OF PESHAWAR through Registrar and 5 others

Writ Petition No.296-P of 2013, decided on 28th August, 2013.

Constitution of Pakistan---

----Arts. 9, 25 & 199---Constitutional petition---Civil service---Appointment---Discrimination---Equal treatment to similarly placed employees---Scope---Petitioner and his other similarly placed colleague was respectively posted as Director and Chairman, to look after the affairs of Pashto Academy and the Department of Pashto of the University of Peshawar---Subsequently, the University only appointed similarly placed colleague/private respondent as Director on permanent basis and the petitioner was ignored---Validity---Petitioner could not be discriminated without any cogent reason by violating the provisions of Art.25 of the Constitution and they were bound to protect the rights of the petitioner as enshrined in Art.9 of the Constitution---Where the aggrieved party had alleged discrimination, the Court could not over-look the implication thereof---Equal treatment of all similarly situated was the basic principle which rested justice under the law---If even-handed justice was not administered, same could have many adverse and negative effects on the society and could cause discontentment and frustration in the social set up and there could be no denial that social justice was an objective and was enshrined in the Constitution---University authorities were directed to issue proper notification in respect of services of the petitioner, as was done in the case of his similarly placed colleague---Constitutional petition was allowed.

Mehr Muhammad Nawaz v. Managing Director Small Business Finance Corporation 2009 SCMR 187 rel.

Neelam A. Khan for Petitioner.

Waseem-ud-Din Khattak for Respondents.

Date of hearing: 29th August, 2013.

2014 P L C (C.S.) 282

[Peshawar High Court]

Before Shah Jehan Khan Akhundzada, J

SIRAJUDDIN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through S.M.B.R., Peshawar and another

Writ Petition No.576 of 2011, decided on 6th February, 2013.

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

----S. 26---Notifications SOR-VI (E&AD) 1-3/2003/ Vol.II & SOR-VI(E&AD)1-3/2011/Vol. III---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Entitlement of children/widow of deceased civil servant for appointment to government posts---Petitioner claimed entitlement for appointment to a government post on basis of Notification SOR-VI(E&AD)1-3/2003/Vol.II, whereby children of deceased civil servants were held entitled for such appointment---Validity---Provincial Government had issued another notification number SOR-VI(E&AD)1-3/2011/Vol.III dated 31st August, 2012, whereby R.10(4) of the Rules made under the Khyber Pakhtunkhwa Civil Servants Act, 1973 had been substituted to the effect that children or widows of deceased government employees would be entitled for appointment to BPS-1 to BS-10 according to their qualifications---High Court directed that petitioner be considered for appointment in accordance with Notification SOR-VI(E&AD) 1-3/2011/Vol. III dated 31st August, 2012 and, as per Rules/Policy of the Provincial Government, on the subject---Constitutional petition was allowed, accordingly.

Sh. Iftikhar-ul-Haq for Petitioner.

Sanaullah Khan Shamim, D.A.-G. for Respondents.

Date of hearing: 6th February, 2013.

2014 P L C (C.S.) 318

[Peshawar High Court]

Before Rooh-ul-Amin Khan, J

RAZI RIZWAN

Versus

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

Civil Miscellaneous No.16 of 2012 and Writ Petition No.861 of 2011, decided on 24th January, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Recruitment---Appointment to the post of Health Technician at University---Merit list---Petitioner in response to an advertisement, applied for the post of Health Technician and after the test, his name was placed second on the merit list, whereafter the person who was first on the merit list could not join the new assignment---Contention of the petitioner was that after the person who was first on the merit list could not join the post, the petitioner became entitled to appointment---Validity---When the first selected candidate could not join the service, such post still remained vacant and it was imperative for the University to have considered the petitioner against the same, as he was second on the merit list---Petitioner was fully qualified for the post and was called for the test and interview wherein he participated and was declared successful, and therefore for all intents and purposes he was entitled to be offered the post of Health Technician---Petitioner's vested right was illegally refused to him---High Court directed the University to consider the petitioner for appointment against the vacant post---Constitutional petition was allowed, in circumstances.

Government of N.-W.F.P. through Secretary Education Department Peshawar and others v. Qasim Shah 2009 SCMR 382 rel.

Sh. Iftikhar-ul-Haq for Petitioner.

Rashidullah Khan Kundi for Respondents.

Date of hearing: 24th January, 2013.

2014 P L C (C.S.) 330

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

ABDUL LATIF and others

Versus

SECRETARY C&W DEPARTMENT KHYBER PAKHTUNKHWA, PESHAWAR and 5 others

Writ Petitions Nos.376-D, 377-D, 383-D, 384-D and 385-D with C.M. No.396 of 2013, decided on 31st October, 2013.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Irregular appointment---Withholding of salary---Scope---Petitioners were appointed by the competent authority and they joined their duties---Despite the fact that petitioners were working but their salaries were not released on account of non-issuance of "no objection certificate" (NOC) from the Establishment Department---Contentions of the petitioners were that they were suffering by no fault at their part and as they were performing their duties, therefore they were entitled for salaries---Validity---No illegality appeared in the appointment of the petitioners---Even if any irregularity was alleged and based for non-issuance of NOC, the same could not be made as hurdle by the concerned authorities---Appointment of an employee, if in any case made against the established procedure, would not burden him, rather the appointing authority would be responsible for committing misconduct by making irregular appointment---Departmental authorities were directed to release the salaries of the petitioners---Constitutional petition was allowed.

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

Jahanzeb Ahmad Chughtai on behalf of S. Abid Hussain Bokhari for Petitioner.

Muhammad Haroon Awan, Deputy Advocate-General along with Waqar Ali, D.C., D.I. Khan and Navid Zafar Khan, Asstt. Accountant Officer, D.I. Khan for Respondents.

Date of hearing: 31st October, 2013.

2014 P L C (C.S.) 352

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

BARKAT ALI

Versus

PRESIDENT/CHIEF EXECUTIVE, PTCL, ISLAMABAD and 10 others

Writ Petition No.101 of 2010, decided on 29th October, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Annual increment, grant of---Terms and conditions of service---Petitioner claimed annual increment after his retirement---Contention of the petitioner was that departmental authorities withheld the annual increments without any reason and the same were awarded to other similarly placed persons---Validity---As per the terms and conditions of petitioner's service, he was held entitled to minimum basic pay with the admissible allowances under the usual conditions but a condition was attached in his appointment order to the effect that the petitioner would not be entitled to annual increment till his regular appointment as Accountant on qualifying the departmental accounts examination---Petitioner had not qualified the prescribed departmental examination till availing Voluntary Separation Scheme, which was must to get annual increment as per terms and conditions of his service as contained in his appointment order---Such condition was a stumbling block in the way of the petitioner to claim the desired annual increments---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Claim has to be filed within reasonable time---Failure of the petitioner to timely agitate the issue was fatal to his case as law always enjoined aggrieved persons to avail the legal forum for the redressal of their grievances within the prescribed and reasonable time.

Jehanzeb Ahmad Chughtai for Petitioner.

Muhammad Iqbal Khan Kundi for Respondents.

Date of hearing: 29th October, 2013.

2014 P L C (C.S.) 382

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Shah Jehan Khan Akhundzada, JJ

MAQBOOL AHMAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

Writ Petitions Nos.1547 and 1552 of 2011, decided on 27th February, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---When there was no provision for adjustment/absorption and appointment of a Project employee, in the relevant Service Rules, then the Authorities could not be directed to treat the petitioners as regular employees as their initial appointment was for a Project and on winding up of the same, their services had come to an end.

Mian Mohibullah Kakakhel for Petitioner.

Fazal Rehman Khan, A.A.-G. for Respondents.

Date of hearing: 27th February, 2013.

2014 P L C (C.S.) 470

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

QAMARUDDIN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Home Secretary, Government of Khyber Pakhtunkhwa, Peshawar and 6 others

Writ Petition No.848 of 2013, decided on 30th May, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Quota/post reserved for general public---Scope---Recommendations for appointment of departmental/in-service employees against the posts reserved for general public were challenged---Contention of the petitioner was that quota for in-service employees was already fixed, therefore respondent/in-service employees could not be appointed against the posts reserved for open quota---Validity---Neither the respondents/in-service employees were prohibited from applying against the reserved posts for general public nor any rule had barred or restricted in-service employees from applying against open quota---In-service employees could apply for a post falling in any quota which was much available to them---Constitutional petition was dismissed.

Saleemullah Khan Ranazai, Muhammad Iqbal Khan Kundi and Burhan Latif Khaisori for Petitioner.

Khan Wali Khan Mehsud, A.A.-G. for Official Respondents.

Muhammad Ismail Khan Alizai for Respondents Nos.6 and 7.

Date of hearing: 30th May, 2013.

2014 P L C (C.S.) 476

[Peshawar High Court]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

AMJAD KHAN

Versus

WAFAQI MOHTASIB (OMBUDSMAN)' SECRETARIAT through Secretary, Islamabad and another

Writ Petition No.1394-P of 2012, decided on 13th August, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination from service--- No show-cause notice--- Non-issuance of charge sheet---Effect---Petitioner's services were terminated without assigning any reason or giving any show-cause notice---Validity---Demand of statutory law was that before proceeding against any civil servant, who had been appointed/selected after due process of law, proper inquiry such as issuing charge sheet/statement of allegations and show cause notice should be conducted---Record of the present case was silent about adopting of any procedure, which was violative of law---Petitioner was re-instated into service with all back benefits---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Irregularities committed by department in appointment---Termination from service of employee---Scope---Petitioner being fully eligible/ qualified was appointed by the Competent Authority after due process of selection---Petitioner took over the charge of post and started performing his duties---After the lapse of some time the department realized that proceedings for recruitment were illegal due to non-conformity with rules---Competent authority declared the appointment of petitioner void and terminated his service---Validity---Any irregularity, in appointment, if committed by the department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department that it had itself committed some irregularities qua any appointment---Termination order of petitioner/employee was set aside---Petitioner was re-instated into service with all back-benefits---Constitutional petition was allowed.

Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and District Coordination Officer District Dir Lower and others v. Rozi Khan and others 2009 SCMR 663 rel.

Ijaz Anwar for Petitioner.

Muhammad Farooq Shah, D.A.-G. for Respondents.

2014 P L C (C.S.) 526

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SUMARA UMAR AWAN

Versus

CHANCELLOR GOMAL UNIVERSITY, D.I. KHAN and 4 others

Writ Petition No.95-D of 2012, decided on 30th May, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Non-joining of service by successful candidate---Effect---Right of appointment of runner up candidate (came at serial No.2)---Scope---Petitioner applied for the post of Game Supervisor---Merit list was prepared on the basis of test and interview---Petitioner came at serial No.2 on merit list---Candidate shown at serial No.1 did not join the service---Petitioner claimed herself as topper of the merit list and claimed appointment---Authorities refused to appoint petitioner---Contention of the Authorities was that the selection made with regard to the appointment of a candidate, shown at serial No.1 topper of the list, in case of non-joining, would not entitle the next candidate for appointment as the merit list stood exhausted---Validity---Successful candidate, being topper did not join and the seat became vacant which entitled the next candidate as per waiting list to be offered the post and the same could not be kept waiting and the department was under the obligation to consider the runner candidate for appointment against the post---Hectic drill of subsequent requisition in ordinary course to re-advertise the vacancy would on one hand frustrate the procedure adopted and on the other, would deprive successful candidate appearing at serial No.2, in favour of whom a vested right had been accrued---Department was directed to appoint the petitioner, in circumstances---Constitutional petition was allowed.

Government of N.-W.F.P through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382 rel.

Muhammad Anwar Awan for Petitioner.

Akbar Ali Khan for Respondents.

Date of hearing: 30th May, 2013.

2014 P L C (C.S.) 558

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

GHAFFAR ALI and others

Versus

PROVINCIAL POLICE OFFICER, KHYBER PAKHTUNKHWA and others

Writ Petition No.361/B with C.M. No.191-B of 2013, decided on 20th November, 2013.

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

----S. 16---Suspension of government servant---Powers and scope---Suspension may be a punitive or one in aid of an enquiry---Order in the nature of punishment is always required to be proceeded by a properly constituted enquiry---Suspension is designed to facilitate the due prosecution of the enquiry---Temporary suspension is deemed to be an implied term in every contract of service---Authority who had power to appoint had the power to suspend---Authority holding an enquiry could suspend the employee, if satisfied that the charge against the public servant is connected with his position as government

servant or is likely to involve him in the discharge of his duties or involved moral turpitude.

East End Export Karachi v. Chief Contractor of Import and Export, Rawalpindi PLD 1965 SC 605 rel.

(b) Khyber Pakhtunkhwa Government Servant (Efficiency and Discipline) Rules, 1973---

----R. 5(2)---General Clauses Act (X of 1897), S.16---Suspension---Salary during period of suspension---Entitlement---Scope---Suspension is not a punishment---Suspension of a government servant during the course of his service simply means that no work is to be taken from him during the period of suspension---Suspension is only a temporary measure, wherein the employees are entitled to their full emoluments.

Government of N.-W.F.P. v. 1-A. Sherwani PLD 1994 SC 72 rel.

(c) Khyber Pakhtunkhwa Government Servant (Efficiency and Discipline) Rules, 1973---

----R.5(2)---Khyber Pakhtunkhwa Service Tribunal Act (I of 1974), S.4---Constitution of Pakistan, Arts.199 & 212(2)---Constitutional petition---Maintainability---Suspension---Terms and conditions of service---Civil servant assailed suspension order before High Court under Art.199 of the Constitution---Validity---Suspension pending disciplinary action germane to the terms and conditions of service and appeal against such order was maintainable before Service Tribunal---Jurisdiction of the High Court under Art.199 of the Constitution to scrutinize the suspension order was ousted---Constitutional petition was dismissed.

Muhammad Sadiq Khokhar's case 1985 SCMR 63 rel.

Muhammad Ismail Alizai for Petitioners.

2014 P L C (C.S.) 635

[Peshawar High Court]

Before Yahya Afridi and Syed Afsar Shah, JJ

NUSRAT IQBAL

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education (E&SE), Abbottabad and another

Writ Petition No.923-A of 2012, decided on 23rd May, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Appointment---Controversial question of facts---Appointment against vacant posts of primary school teacher (PST)---Department denied availability of vacant post---Petitioners cleared written test and stood at serial Nos.1 and 2 on merit list but the department ignored them for appointment---Department on court's notice undertook that candidate at serial No.1 could be appointed against the vacant post but the candidate at serial No.2 was ignored despite there being two posts available in the Union Council---Respondent department denied the vacant post in the Union Council as the other post of PST had been upgraded from BPS-12 to 15---Validity---Serious disputed questions raised by the petitioners could be agitated and proved otherwise by producing evidence at an appropriate legal forum, but not in constitutional jurisdiction---Constitutional petition was dismissed.

Ghulam Nabi's case PLD 2001 SC 415; Shamim Khan's case PLD 2005 SC 792 and Muhammad Sadiq v. Ilahi Bukhsh 2006 SCMR 12 rel.

M. Arshad Khan Tanoli for Petitioner.

A.A.-G. for Respondents.

Date of hearing: 23rd May, 2013.

2014 P L C (C.S.) 726

[Peshawar High Court]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

NOOR MUHAMMAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and 7 others

Writ Petition No.27-D with C.M. 38-D of 2013, decided on 24th January, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Deputation---Repatriation of employee/deputationist to parent department before completion of tenure of deputation---Validity---Deputationist may not necessarily complete tenure for which he was deputed and the power rested and vested with the competent authority in its discretion to repatriate a deputationist as and when deemed proper---In the case of transfer on deputation, no vested right accrued to a deputationist to continue for the period of deputation and there was no law in the field to support such grievance of the petitioner---Competent authority was empowered to repatriate a deputationist as and when the exigencies of service required---Civil servant could be repatriated on administrative grounds---High Court dismissed Constitutional petition filed by employee/deputationist.

2000 SCMR 656; 2005 PLC (C.S.) 1207; 2003 PLC (C.S.) 243 and 1998 PLC (C.S.) 839 rel.

(b) Civil service---

----Appointment---Educational sector---Importance and criteria---Held, competence, good educational background, rich experience and above all impeccable honesty should be the sine qua non for appointment against important post in educational sector.

Amjad Ali and Muhammad Yousaf Khan for Petitioner.

2014 P L C (C.S.) 745

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

ZAHID ULLAH and others

Versus

GOVERNMENT OF N.-W.F.P through Secretary Education and 2 others

Writ Petitions Nos.24-B, 44-B, 159-B of 2010, 57-B, 58-B, 175-B of 2011, 6-B, 61-B, 159-B, 161-B, 285-B, 286-B, 307-B, 365-B, 403-B of 2012, 6-B, 7-B, 8-B, 51-B, 59-B, 60-B, 61-B, 62-B, 63-B, 67-B, 81-B, 82-B, 88-B, 89-B, 90-B, 96-B, 151-B, 202-B, 381-B of 2013, decided on 28th November, 2013.

(a) Civil service---

----After decision of a question of law by a competent court on a subject, the department is under legal obligation to follow and apply in letter and spirit with its independent mind, without compelling each and every individual to knock the door of the court.

Hameed Akhtar Niazi v. The Secretary, Establishment Division Government of Pakistan and others 1996 SCMR 1185 and Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 rel.

(b) Constitution of Pakistan---

----Arts. 4, 25, 189 & 199---Constitutional petition---Civil service---Appointment---Controversy already resolved by the court of competent jurisdiction---Equal treatment of law---Scope---Petitioner/candidate having primary teacher certificate from Allama Iqbal Open University applied for the post of primary school teacher---Department had not treated the petitioner/candidate at par with those who qualified from government elementary colleges and thus denied him appointment, despite the fact that the Supreme Court had already settled in another case that certificate obtained from government institutions and the one obtained from Allama Iqbal Open University should be taken as equal---Contention of the petitioner/candidate was that as the impugned controversy had already been resolved, therefore he was also entitled for the similar treatment---Validity---Department was directed to relax the age of petitioners as permissible under the law and consider him in the manner as already settled by the Supreme Court in forthcoming appointment process, after proper advertisement and recommendations of departmental selection committee---Constitutional petition was allowed.

Shahid Salim Minakhel for Petitioners.

Nemo for Respondents.

Date of hearing: 28th November, 2013.

Connected Writ Petitions

Sanaullah W.P. No.44-B of 2010, Bashir Muhammad W.P. No.159-B of 2010, Gul Nawaz Khan W.P. No.57-B of 2011, Umer Hayat Khan W.P. No.58-B of 2011, Khairullah Shah and 2 others W.P. No.175-B of 2011, Hamid Ullah Khan and 2 others W.P. No.6-B of 2012, Asmar Ali Khan and 5 others W.P. No.61-B of 2012, Muhammad Iqbal Khan and 3 others W.P. No.159-B of 2012, Ansar Ali Shah W.P. No.161-B of 2012, Qayyum Khan and another W.P. No.285-B of 2012, Sher Baz Khan W.P. No.286-B of 2012, Qismat Ali W.P. No.307-B of 2012, Mazhar Ali Shah W.P. No.365-B of 2012, Qismat Ullah Khan and 3 others W.P. No.403-B of 2012, Abdul Jalil Khan W.P.No.6-B of 2013, Wali Zaman W.P. No.7-B of 2013, Muhammad Ishaq Ali Shah and another W.P. No.8-B of 2013, Umar Ali and another W.P. No.51-B of 2013, Abdul Khanan Khan W.P. No.59-B of 2013, Aziz Khan W.P. No.60-B of 2013, Hadayat Ullah Khan W.P. No.61-B of 2013, Asghar Ali Khan W.P. No.67-B of 2013, Gul Rahim W.P. No.63-B of 2013, Nek Nawaz Khan and another W.P. No.67-B of 2013, Safed Khan W.P. No.81-B of 2013, Gul Saeed Khan and another W.P. No.82-B of 2013, Umar Ali Khan W.P. No.88-B of 2013, Rehman Ayaz Khan W.P. No.89-B of 2013, Safdar Ali Khan W.P. No.90-B of 2013, Roukh Niaz Khan Qureshi W.P. No.96-B of 2013, Atlas Khan and 2 others W.P. No.151-B of 2013, Aman Ullah Khan W.P. No.202-B of 2013, Sher Ayaz Khan and 2 others W.P. No.381-B of 2013.

2014 P L C (C.S.) 766

[Peshawar High Court]

Before Ikramullah Khan and Malik Manzoor Hussain, JJ

ATTA ULLAH and another

Versus

PROVINCIAL POLICE OFFICER and another

Writ Petition No.1351/P of 2013, decided on 29th August, 2013.

Khyber Pakhtunkhwa Validation of Standing Order Act (IV of 2005)---

----S.O.7---Constitution of Pakistan, Art.199---Constitutional petition---Vested rights---Retrospective effect of legislation---Scope---Petitioners had secured higher marks in lower training police course opted to join Police training college as ATS/Drill Instructors---Petitioners in pursuance of Standing Order, were expectant of certain incentives including enlistment of Intermediate Training Course---Respondent department in order to bring some changes in the previously promulgated Standing Orders, enacted a new Standing Order, whereby certain earlier incentives were withdrawn and department refused the petitioners to allow them to participate in the Course---Validity---Notification of fresh Standing Order could not be given retrospective effect, as no such provision had been provided thereunder---Rights accrued to petitioners by virtue of earlier Standing Order made them entitled for all such incentives and privileges along with all opportunities in that regard---Department, in circumstances was directed to enlist the petitioners for the course---Constitutional petition was allowed.

Khalid Mahmood v. N-W.F.P. through Chief Secretary PLD 2011 Pesh. 120 rel.

Ashraf Ali Khattak for Petitioners.

Waqar Ahmad Khan, A.A.-G. for Respondent.

Date of hearing: 29th August, 2013.

2014 P L C (C.S.) 769

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

MUHAMMAD BILAL and 7 others

Versus

GOVERNMENT OF KHYBER PAKTHUNKHWA through Secretary Education and 5 others

Writ Petitions Nos.14-D, 21-D, 42-D and 77-D of 2014, decided on 19th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---On-going recruitment process---Change in selection policy/criteria---Effect-Candidates (petitioners), pursuant to advertisement applied for selection against teaching cadre posts---Respondent department according to policy in vogue prepared a tentative merit list, however before completing the recruitment process, the recruitment policy was changed---Contention of the Candidates (petitioners) was that new selection criteria was prospective in its application and they had to be appointed in accordance with the selection criteria, which was in vogue at the time, when they applied for appointment---Validity---Mere publishing an advertisement in newspaper and submission of application forms pursuant thereto would not confer a vested right on a candidate---Government had the authority to amend or substitute an existing criteria by a new one for the betterment and in the larger interest of its citizen, which had so been done through the impugned selection criteria---On-going recruitment process, initiated prior to the new selection criteria/policy could not be saved from the application of the same---Constitutional petition was dismissed.

1997 SCMR 1043; 1999 SCMR 1524 and 2013 SCMR 264 rel.

Muhammad Waheed Anjum for Petitioner.

Sanaullah Khan Shamim, A.A.-G. for Respondents.

Date of hearing: 19th February, 2014.

2014 P L C (C.S.) 778

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

Mst. DILROBA

Versus

SECRETARY EDUCATION (E&SE) KHYBER, PAKHUNKHWA PESHAWAR and 4 others

Writ Petition No.3400 of 2011, decided on 21st November, 2013.

Constitution of Pakistan---

----Arts. 4, 25 & 199---Constitutional petition---Civil service---Discrimination---Selection grade---Pensionary benefits claimed by widow of deceased civil servant---Scope---Selection grade awarded to similarly placed colleagues of the deceased civil servant---Claim of widow regarding pensionary benefits of selection grade was rejected by the department---Contention of the widow of deceased civil servant was that department granted selection grade to the juniors of her deceased husband and as such she was entitled to equal treatment of law---Validity---Selection grade had been granted to Office Superintendents with effect from the date on which deceased civil servant/husband of the petitioner/widow was in service---Deceased husband of the petitioner was senior to those similarly placed incumbents who were retired from service during the pendency of litigation but were given selection grade in the light of judgments of Service Tribunal and Supreme Court---Deceased husband of the petitioner, in circumstances, could not be discriminated against by the department for the reason of raising the matter at a belated stage---Widow of deceased civil servant was entitled for the same treatment---Department was directed to treat the deceased husband of the petitioner at par with the persons who had been given benefits of selection grade despite his retirement---Petitioner/widow of deceased civil servant was declared entitled to pensionary benefits by inclusion of the benefits of selection grade into pension---Constitutional petition was allowed.

M. Asif Yousafzai for Petitioner.

Mian Arshad Jan, A.A.-G. for Respondents.

Date of hearing: 21st November, 2013.

JUDGENT

MIAN FASIH-UL-MULK, J.--- Petitioner is the widow of late Abdur Rahim, who was serving in the Education Department as Superintendent (PBS-16) and stood retired as such on 5-12-1995. The Provincial Government, however, on 30-10-1993 vide No.FD(PRC)/4-1/91 had adopted the policy to grant 33% selection grade (BPS-17) to holder of the posts of Administrative Officer etc. (BPS.16) along with Superintendents on joint seniority list but subject to the conditions that the Administrative Department/Services and General Administration Department shall change the method of appointment to the post of Administrative Officer, Accounts Officers and Assistant Accounts Officers etc in the respective recruitment and appointment rules; and that selection grade shall be effective from the date of notifying the changed method of appointments

1. The Education Department did not comply the above order within reasonable time, which was acted upon in the year 2002 and that too with effect from 19-7-1999 instead of 30-10-1993. The aggrieved Superintendents etc filed appeals before the Khyber Pakhtunkhwa Service Tribunal, where their appeals were accepted and they were held entitled to selection grade w.e.f. 30-10-1993 as per seniority position.

2. The above order of Khyber Pakhtunkhwa Service Tribunal was challenged by the Department before the august Supreme Court of Pakistan in Civil Petitions Nos.35-P to 51-P and C.P. 301-P of 2007. The apex Court vide judgment dated 5-3-2010 dismissed the appeals of the Department with the following observations made in Paras.6 and 7 of the judgment, which reads as under:---

"It is pertinent to mention here that the department cannot be allowed to sleep for any indefinite period to amend the rules and to prepare seniority list at the cost of the respondents, who are government employees and they are always anxious about their promotion or to get benefit of the service as early as could be possible. Unfortunately, in instant case, after issuance of the policy letter dated 30th October 1993 rules were amended in 1997 but perhaps the seniority list was prepared later on and on account of such slackness, the respondents had suffered a lot and ultimately in 2001 they were given selection grade and in the meantime, some of them stood retired. We are, therefore, of the opinion that under these circumstances the Service Tribunal has rightly granted relief to the respondents and judgments passed by it, being unexceptionable, admit no interference by this Court.

It is informed by the learned counsel appearing for the respondents that despite lapse of about more than 16/17 years, the judgments of the Service Tribunal, passed in favour of the respondents, have not been implemented. In such state of affairs, we direct the concerned authority to implement the same within a period of four weeks and send a compliance report to the Registrar of this Court, for our perusal in Chambers."

1. Grievance of petitioner in the instant writ petition is that her husband was in service in the year 1993 and in view of the judgments of the Service Tribunal as well as Hon'ble Supreme Court of Pakistan, he was entitled to the benefits of selection grade being at S.No.9 of the seniority list coupled with the fact that juniors to him have already been granted such benefit.

2. The stance of respondents in their comments is that husband of petitioner was retired from service in the year 1995 and he remained alive till the year 2007 but he never agitated the matter of his promotion and now at such a belated stage, the instant writ petition being suffering from serious laches, no relief can be granted to the petitioner.

3. Arguments heard and record perused.

4. Admittedly, selection grade was allowed by the Provincial Government vide notification dated 30-10-1993 at a time when husband of petitioner was in service. However, the department concerned acted upon the order of Provincial Government in the year 2001 and granted such benefit to eligible employees with effect from 19-7-1999, on which date, husband of petitioner was not in service having been retired. The matter was taken to the Service Tribunal by the aggrieved employees, which was decided on 15-8-2006, and finally the matter was agitated before the apex Court; thus final verdict in the case was announced on 5-3-2010, on which date, husband of petitioner was not alive for agitating the matter of his promotion because at the time of his retirement, no selection grade was granted to the Superintendents, which was granted to various Superintendents after his retirement and then the matter remained pending adjudication before the competent Courts till 5-3-2010. The judgment of the apex Court was implemented by the Department on 26-4-2010 and the petitioner agitated the matter of selection grade of her husband before the Secretary Elementary and Secondary Education as well as Director Secondary Education, Khyber Pakhtunkhwa through appeal dated 19-5-2010 just within a period of one month from implementation of the judgment of the august Supreme Court of Pakistan. We, therefore, find no inordinate delay in filing the instant writ petition.

5. When there is no denial to the fact that selection grade has been granted to Superintendents w.e.f. 30-10-1993, on which date husband of petitioner was in service as Superintendent (BPS.16), being senior on the seniority list and similarly placed with those incumbents who too were retired during the period of pendency of litigation but were allowed the said relief in the light of judgments of Service Tribunal and Hon'ble Supreme Court of Pakistan, he cannot be discriminated against by the Department for the reason of raising the matter at a belated stage.

2014 P L C (C.S.) 784

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak JJ

BARKAT ALI

Versus

PRESIDENT/CHIEF EXECUTIVE, PTCL HEADQUARTER, ISLAMABAD and 10 others

Writ Petition No.101 of 2010, decided on 29th October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Grant of annual increments---Apprentice Accountant in the Telegraph and Telephone Department---Condition with regard to qualifying the Departmental Accountants Examination for annual increments---Scope---Petitioner was appointed as Apprentice Accountant on the recommendations of Federal Public Service Commission---Employee was entitled to minimum of basic pay scale-16 with the admissible allowances under the usual conditions---Appointment order of petitioner had condition with regard to his entitlement to annual increments till his regular appointment as Accountant to qualify the Departmental Accountants Examination---Petitioner could not qualify the prescribed departmental examination passing of which was must to get annual increment as per terms and conditions of his service---Petitioner was aware of such condition necessary for enabling him to get annual increments and he applied for its exemption but same was not granted to him---Employee had brought the issue of grant of annual increments to the Authority at a very belated stage till his availing the VSS package---Such was fatal to the case of petitioner as law had enjoined aggrieved persons to avail the legal forum for redressal of their grievances within the prescribed and reasonable time---No discrimination had been pointed out by the petitioner---Constitutional petition was dismissed, in circumstances.

Jehanzeb Ahmad Chughtai for Petitioner.

Muhammad Iqbal Khan Kundi for Respondents.

Date of hearing: 29th October, 2013.

2014 P L C (C.S.) 806

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

AHMAD DIN and another

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA AGRICULTURAL, LIVE STOCK AND COOPERATIVES DEPARTMENT PESHAWAR through Secretary and 3 others

Writ Petition No.414-B of 2011, decided on 18th February, 2014.

(a) Khyber Pakhtunkhawa Civil Servants Act (XVIII of 1973)---

----S. 19 (2)---Khyber Pakhtunkhawa (Regularization of Services) Act (XVI of 2009), S. 3---Constitution of Pakistan, Arts.25 & 199---Constitutional petition--- Ad hoc/contractual appointment---Regularization---Legitimate expectation---Discrimination---Appointment in prescribed manner---Scope---Petitioners/contractual employees claimed regularization---Contention of the petitioners was that government had already regularized several other employees appointed on contract/ad hoc basis but they were discriminated---Validity---Provincial government had regularized the services of contract employees throughout the province, but said benefit was not extended to some of the employees, on the pretext that they had not been appointed in prescribed manner---Petitioners/employees who had been appointed on the recommendation of Departmental Selection Committee after test and interview were entitled for regularization being appointed in prescribed manner---Constitutional petition was allowed.

Government of North-West Frontier Province through Secretary Agriculture Livestock and Cooperatives Department Peshawar and others v. Abdullah Khan and others 2011 SCMR 898 and Government of N.-W.F.P. v. Kalim Shah 2011 SCMR 1004 rel.

(b) Administration of justice---

----If a competent court of law had decided a point of law or fact and if such a decision covered not only the case of those litigated before the court but some other also, then under the dictate of justice the benefits of that judgment should not be restricted to those who had litigated rather shall be equally extended to those who had not indulged in litigation.

Hameed Akhtar Niazi v. The Secretary Establishment Division and others 1996 SCMR 1185; Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878 and Government of Punjab through Secretary Education and others v. Sameena Parveen and others 2009 SCMR 1 rel.

Anwar-ul-Haq for Petitioners.

Saifur Rehman Khattak, A.A.-G. for Respondents.

Date of hearing: 18th February, 2014.

2014 P L C (C.S.) 879

[Peshawar High Court]

Before Qaiser Rashid Khan and Musarrat Hilali, JJ

Dr. Syed ANSAR HUSSAIN SHAH NAQVI

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Secretary and 4 others

Writ Petition No.1112 of 2011, decided on 23rd October, 2013.

Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008---

----R.3(iii)---Notification No.SOE-II(E&D)2-1/2007, dated 29-1-2011---Constitution of Pakistan, Art.199--- Constitutional petition---Amendment in rules---Retrospective effect---Scope---Petitioner applied for post in question and sought relaxation in upper age limit on the plea that he was employee of development project of Provincial Government---Plea raised by petitioner was that Provincial Government had extended benefit of age relaxation to project employees also---Validity---Closing date for submitting applications for vacancy in question was 15-8-2009, whereas Notification was issued on 29-1-2011, which did not contain any clause indicating that it had retrospective effect---In absence of any such clause, amendment so made in rules was to be held as prospective in nature which was of no help to petitioner and in such eventuality prevalent rules were applicable---Any candidate, who applied for post, in response to advertisement issued by Public Service Commission, would be considered for selection in accordance with prevailing rules---Such candidate could not take benefit of any subsequent amendment in rules unless amendment so made had retrospective effect---Petition was dismissed in circumstances.

Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Bilal Ahmad Kakaizai and others 2013 SCMR 890 rel.

Shumail Ahmad Butt for Petitioner.

Naveed Akhtar, A.A.-G. for Respondents.

2014 P L C (C.S.) 893

[Peshawar High Court]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

TIPU M. SULTAN

Versus

REGISTRAR

Writ Petition No.871-A of 2013, decided on 20th March, 2014.

Khyber Pakhtunkhwa Judicial Service Rules, 2001---

----R. 6---Constitution of Pakistan, Arts.4, 25, 27 & 199---Constitutional petition---Allegation of discrimination with regard to age relaxation for judicial service to government servants and practicing lawyers---Reasonable classification based on intelligible differentia---Scope---No doubt, Art.25 of the Constitution guarantees equality before law, but the same does not mean equality of operation of legislation upon all citizens of the State---Equal protection of law forbids class legislation, but permits reasonable classification for purpose of legislation---Permissible classification is allowed by Art.25 provided classification is founded on intelligible differentia, which distinguishes persons or things that are grouped together from others, who are left out of groups---Such classification and differentia must be on rational relaxation to the object sought to be achieved by legislation---If a classification in the challenged law on the basis of any state of facts can be reasonably conceived that would sustain it and the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary lies upon one, who assails a classification as law should be saved rather than destroyed and Court must lean in favour of upholding the constitutionality of a legislation---State, the Provincial Government and the Department have the right to categorize different peoples, as per the principle of intelligible differentia---Constitutional petition was dismissed in the circumstances.

Karim Ayub Tanoli for Petitioner.

Muhammad Naeem Abbasi, A.A.-G. for Respondent.

Date of hearing: 20th March, 2014.

2014 P L C (C.S.) 926

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Abdul Latif Khan, JJ

ABDUL WAHAB

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and 18 others

Writ Petition No.906-P of 2012, decided on 7th May, 2013.

(a) Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Regln. 24---Constitution of Pakistan, Art.199---Constitutional petition---Recruitment process---Short listing of candidates for interview---Allocation of marks in interview---Procedure---Petitioner was not selected/recommended by the Commission for appointment despite the fact that he got first position in written test---Petitioner claimed additional marks in interview on the basis of his top position in written test---Validity---Commission would decide the nature of the screening test keeping in view the qualification and experience prescribed for the post---On receipt of result a merit list of all the candidates should be drawn---Top ten candidates on the merit list should be called for interview against a post reserved for merit while five candidates per post should be called against zonal post---Rules of procedure enable the Public Service Commission to adopt various methods which they could screen out candidates for the purpose of interview---Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit for the purpose of short listing---Top ten candidates would be called for interview for one vacancy reserved for merit and the eleventh one on the merit list would not be entitled for interview---No rule indicates that a candidate having secured higher marks (in written test) should be given any distinct treatment against those candidates, who were borne on the merit list with less marks---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Process of recruitment---Selection of candidate---Securing high marks in written test---Vested right of appointment---Scope---Petitioner who got first position in written test was not selected by the Commission---Validity---Mere securing of high marks in the written test would not create a vested right in favour of a candidate unless he secures required marks in the interview---Constitutional petition was dismissed.

Nazir Ahmed for Petitioner.

Fazle Rehman Khan, A.A.-G. for Respondents.

Date of hearing: 7th May, 2013.

2014 P L C (C.S.) 982

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Muhammad Daud Khan, JJ

LIAQAT ALI

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Home and Tribal Affairs Department, Peshawar and 10 others

Writ Petition No.2271 of 2009, decided on 21st January, 2014.

(a) Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)---

----S. 9---Constitution of Pakistan. Art.199---Constitutional petition---Promotion---Principles---Promotion is not a vested right---Civil servant lacking pre-requisite for promotion claimed promotion on the basis of seniority---Scope---Promotion against the non-selection post should be made on the basis of seniority-cum-fitness and civil servant could not claim or ask for a promotion as a matter of right, as it was within the exclusive domain of competent authority or departmental selection committee---Promotion could not take place automatically and seniority alone was also not a deciding factor, as number of factors constitute fitness for promotion---Promotion was neither a vested right, nor it could be claimed with retrospective effect---Whenever there was a change of grade or post for the better, there would be an element of selection involved which would be promotion and the same could not be earned automatically---Rules of each department, particularly of the Police Department enumerate a specific length of service and qualification for getting higher post or grade---Civil servant lacked pre-requisite for ascending to the higher post was disqualified for promotion---Constitutional petition was dismissed.

Abid Hussain Sherazi v. The Secretary N/O Ministry Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742 and Government of the Punjab v. Muhammad Owais Shahid 1991 SCMR 6967 rel.

(b) Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)---

----S. 9---Constitution of Pakistan. Art.199---Constitutional petition---Promotion---Claim after retirement---Petitioner after his retirement claimed for promotion with retrospective effect---Validity---Petitioner on attaining the age of superannuation was retired from the post of Sub-Inspector, Police therefore he could not be considered for promotion with retrospective effect---Constitutional petition was dismissed.

Abdul Hameed v. Ministry of Housing and Work, Government of Pakistan, Islamabad PLD 2008 SC 395; Government of Pakistan through Establishment Division v. Hameed Akhtar Niazi, Academy of Administration, Islamabad PLD 2003 SC 110 and Ashiq Ali Bhatti v. Federation of Pakistan through Secretary Establishment Division and others 2006 SCMR 1324 rel.

Khalid Rehman for Petitioner.

Qaiser Ali Shah, A.A.-G. for Respondents.

Date of hearing: 21st January, 2014.

2014 P L C (C.S.) 1007

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

NOOR ZEB KHAN and 2 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Food and Agriculture Department and 3 others

Writ Petition No.206-B of 2013, decided on 26th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Termination of service---Petitioners were appointed by competent authority on the recommendations of Departmental Selection Committee---Petitioners started performing their duties---Services of the petitioners were terminated on the ground that some irregularities were committed by the department during process of appointment---Validity---In case of any procedural violation, the Authority could not be allowed to take benefit of its lapses in order to terminate services of petitioners/appointees merely because it had itself committed irregularity in violating procedure governing such appointment---Services of the petitioners/appointees had wrongly been terminated on the ground of some irregularities committed by department/respondents during process of the appointment for which the respondents could not punish the petitioners---Impugned termination order was set aside, petitioners/appointees were re-instated into service---Constitutional petition was allowed.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department Peshawar v. Sadullah Khan 1996 SCMR 8413; Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Gohar Riaz 2004 SCMR 1662; Muhammad Akhtar Sherani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Managing Director SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Ghazanfar Abbas and 2 others v. District Education Officer (Colleges) Sialkot and 2 others 2011 PLC (C.S.) 331 rel.

M. Shah Nawaz Khan Sikandri and Anwar-ul-Haq, Inamullah Khan Kakki for Petitioner.

Saifur Rehman, A.A.-G. for Respondents.

Date of hearing: 26th February, 2014.

2014 P L C (C.S.) 1134

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Shah Jehan Khan Akhundzada, JJ

Nawabzada MUHAMMAD NADIR KHAN HOTI

Versus

CENTRAL SELECTION BOARD (C.S.B.) (ADVISORY BODY) through Chairman and another

Writ Petition No.3138 of 2011, decided on 19th December, 2012.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.20---Constitutional petition---Civil service---Territorial jurisdiction---Impugned action was taken at Islamabad---Constitutional petition was filed before Peshawar High Court---Objection on territorial jurisdiction of High Court---Validity---Jurisdiction of High Court under Art.199 of the Constitution was not contingent upon residence of an aggrieved person---Elements embodied in S.20, C.P.C. could not be introduced in Art.199 of the Constitution; respondents were Federal Institutions operating within the territories of whole of Pakistan, High Court Peshawar would therefore did not lack jurisdiction to entertain the constitutional petition.

Nawabzada Muhammad Shahabuddin v. The Chairman, Federal Land Commission 1996 CLC 539 rel.

(b) Service Tribunals Act (LXX of 1974)---

----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion---Bar contained in Art.212 of the Constitution---Applicability---Supersession of the civil servant (petitioner) by the Central Selection Board---Matter pertained to promotion of civil servant to Selection Post in BS-21---Assessment of fitness and suitability were excluded from the ambit of the Service Tribunal---High Court could entertain constitutional petition involving the question of fitness of civil servant for promotion---Constitutional petition was allowed.

Mrs. Iram Adnan and others v. Federation of Pakistan and others 2012 PLC (C.S.) 1355; Liaquat Ali Chugtai v. Federal of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 and 1991 SCMR 1129 rel.

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

----S. 9(2)(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7, 7-A & 8---Constitution of Pakistan, Arts.10-A & 199---Constitutional petition---Promotion---Right to fair trial---Civil servant was superseded without confronting the material available against him---No proper opportunity was given to explain the position before taking decision of supersession---Petitioner questioned the recommendations of Central Selection Board---Validity---Selection Board was to apply its collective wisdom; it was fundamental right of the petitioner that the process of determination of civil and criminal rights must at every step pass the test of fairness and procedural propriety---Central Selection Board could not blindly rely and pass an adverse order on the basis of impression nurtured and opinions harboured by Members of Central Selection Board---Without first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration, Central Selection Board could not place reliance on the said evidence---Constitutional petition was allowed---Central Selection Board was directed to formulate well thought-out objective criteria in accordance with Revised Promotion Policy and to reconsider the case of petitioner civil servant afresh.

Liaquat Ali Chugtai v. Federal of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

Imtiaz Ali for Petitioner.

M. Jamil Warsak for Respondents.

Date of hearing: 19th December, 2012.

2014 P L C (C.S.) 1234

[Peshawar High Court]

Before Dost Muhammad Khan, C.J. and Rooh-ul-Amin Khan, J

Mian MUSTAFA GUL and 12 others

Versus

PROVINCIAL POLICE OFFICER, KHYBER PAKHTUNKHWA, PESHAWAR

and 4 others

Writ Petition No.1680-P of 2012, decided on 24th April, 2013.

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

----Arts.7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Constitution and organization of the police establishment---Scope and framework---Police order provides a framework in legal fashion and manner, transferring police from a mere preventive and detective body to a service-oriented organization by providing ample opportunities for citizen participation in the institutional structures, in shape of safety commission at the district, provincial and national level---Internal administration, for the purpose to ensure that everyone plays his/her role effectively and acts within clearly laid down parameter, the organization on functional basis was split up into units/branches/divisions/bureaus and sections, with a condition that every police officer shall be liable for posting to any branch, division, bureau and section or anywhere in or outside the police, subject to necessary training and experience in accordance with rules.

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

----Arts. 7 & 8---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Civil Service---Seniority---Equality before law---Separate seniority lists of the employees of prosecution and executive branches of police department---Discriminatory treatment in respect of benefits---Validity---One branch shall not be separated from the other for future fringe benefits i.e. promotion, etc.---Seniority list divulges that the incumbents of the executive unit, whose entries into the service falls on same footing with the petitioners had earned rapid promotion than that of the petitioners---Universal principle propounds that amongst equal the law should be equal and that shall be administered equally to all similar placed persons and all alike should be treated alike, both in respect of privileges conferred and liabilities imposed.

(c) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Police Order (22 of 2002), Arts.7 & 8---Civil Service---Discrimination---Persons in comparable situation, must be treated alike, thus differently treating them would be direct discrimination---Discrimination can arise only through application of different rules to comparable situations of the application of the same rules to different situations---Eventually, the separation of the two units from one another would not be a step justified in law and would be against the spirit and commandants of the provisions of Police Order, 2002 as well as the Constitution.

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

----Arts. 8(2)(4) & 22---Constitution of Pakistan, Art.199---Constitutional petition---Transfer and posting of Police Officers---Scope---Every police officer shall be liable for posting to any branch, division, bureau and section or anywhere in or outside the police---Subject to rules the appropriate government may transfer any Police Officer appointed under the Police Order, 2002 from police constituted for one general police area to another, thus, by no stretch of imagination, all these branches may not be separated being units of one department.

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

----Arts. 7 & 8(2)(4)---Civil Servants Act (LXXI of 1973), S.8---Constitution of Pakistan, Art.199---Constitutional petition---Seniority of police officials---Issuance of separate seniority list of prosecution and executive branch of the police department---Petitioners were employees of the police department performing their duties in one cadre (Inspector), but in different branches---Services of all the police employees, working in cadre of Inspector, in different branches were governed and regulated by same rules---No separate service structure was provided for regulating the different branches, nor separate rules had been framed for describing the terms and conditions of employees of different branches with different yardstick and distribution of their duties in different branches and had not bifurcated them in separate departments---Validity---Maintaining separate seniority lists of the two units i.e. the executive and prosecution, in the circumstances, would be without any legal justification and against the spirit of S.8 of the Civil Servant Act, 1973 and being discriminative, would deprive the petitioners from their lawful rights and future prospectus i.e. future promotion---Constitutional petition was allowed, authorities were directed to issue a combined seniority list of the two branches.

Saadullah Khan (Marwat) for Petitioners.

Akhtar Naveed, Addl. A.-G. for Respondents.

2014 P L C (C.S.) 1026

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

NUSRAT ULLAH KHAN NIAZI

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE through Registrar and others

Service Appeals Nos.48, 49 of 2001 and 52 of 2002, decided on 9th May, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks---Expunction of---Vague remarks---Presumption of innocence, principle of---Appellant while posted as Judicial Officer allowed an application under S.249-A, Cr.P.C. for the acquittal of accused; complainant being dissatisfied filed an appeal in the High Court wherein appellant was summoned and forced to tender his resignation---Appellant under protest tendered his resignation and before its acceptance through notification dated 16-3-1999 submitted application on 15-3-1999 for withdrawal of his resignation---Appellant submitted his representation against the notification of acceptance of resignation, which was rejected---Adverse remarks were communicated to the appellant after the acceptance of his resignation---Appellants submitted representations for expunction of these adverse remarks, which were rejected---Appellant filed appeals against the adverse remarks and notification of acceptance of his resignation, which were dismissed, therefore the appellant approached the Supreme Court, which set aside the notification of acceptance of resignation of the appellant and directed that Service Appeals of the appellant be deemed to be pending before the Punjab Subordinate Judiciary Service Tribunal, which would be disposed of on merits---Contentions of the appellant were that he had 14 years unblemished career before the adverse remarks; that Reporting Officers had evaluated his performance as a good, honest officer fit for promotion on his turn in the relevant columns of Part-VI; that Countersigning Officer was inspired of the appellant's forced resignation and that appellant was not administered any warning or counseling by the Reporting Officer or the Countersigning Officer with regard to his integrity---Validity---Adverse remarks were recorded by the Countersigning Officers in the year 2000 i.e. after forced resignation of the appellant---Both the Countersigning Officers prima facie were inspired by the appellant's resignation---Appellant throughout his 14 years service record as judicial officer earned good reports from his Reporting/Countersigning Officers---Presumptions were always positive unless proved otherwise and a person was presumed to be innocent until proved guilty beyond any reasonable doubt---In the absence of any plausible reason the adverse remarks of the Countersigning Officers had resulted in grave prejudice to the appellant---Remarks given by the Countersigning Officers suffered from vagueness---Appeals of the appellant were accepted in circumstances.

Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749; Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 and Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191 ref.

Inspector-General of Police Punjab Lahore and 2 others v. Rana Altaf Majid 1994 SCMR 1348 rel.

Khalid Mian for Appellant.

Mian Manzoor Hussain and A.H. Masud for Respondents.

Date of hearing: 9th May, 2014.

2014 P L C (C.S.) 1167

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

SHAFIQ ABBAS SHAH

Versus

REGISTRAR, LAHORE HIGH COURT LAHORE

Service Appeal No.29 of 2005, decided on 30th May, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Instructions about Confidential Reports, Inst. Nos.23 & 30---Vague adverse remarks---Expunction of---Appellant rendered services for 18 years and during the said period he did not earn even a single adverse ACR except the impugned one---Contention of the appellant was that the adverse remarks had been recorded in violation of the Instruction Nos.23 & 30 of the Instructions about Confidential Reports---Plea of the authorities was that appellant's evaluation in the ACR was based on credible information and personal observation of the Reporting Officer and Countersigning Officer and the same did not require any tangible material---Validity---Adverse remarks about the integrity of the appellant were not based on the reasons enumerated in Instruction No.23 of the Instructions about Confidential Reports---Expression 'reporting officer should be in a position to justify his views, if called upon, to do so' used in Instruction No.30 was of great importance---Adverse remarks should have been based on some tangible material, but the Reporting Officer had not been able to fortify the said remarks with reference to any material---Keeping in view the 18 years unblemished career of the appellant, it was held that the adverse remarks about work and integrity of the appellant recorded by the Reporting Officer and endorsed by the Countersigning Officer being unfounded, without reasons suffered from vagueness and had resulted into serious prejudice to the appellant---Tribunal directed the expunction of questioned adverse remarks from the ACR of the Appellant---Appeal was allowed in the circumstances.

Registrar, Lahore High Court, Lahore v. Muhammad Afzal Khan Civil Judge Sahiwal and another 2007 SCMR 1251 and Principal, Government Girls College, Thana Malakand Agency Now at Saidu Sharif Swat v. Mrs. Bilquis Begum 2003 PLC (C.S.) 187 ref.

Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters Peshawar and 2 others 1997 SCMR 1749 rel.

Shaukat Javed Farooqi, Under Secretary Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141 Distinguished.

Syed Ijaz Qutab for Appellant in person.

Nayyar Iqbal Ghauri and Muhammad Shafique, Assistant Registrar (Confidential-II) with record for Respondent.

Date of hearing: 30th May, 2014.

2014 P L C (C.S.) 1194

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MUHAMMAD ASAD ULLAH SIDDIQUI

Versus

REGISTAR, LAHORE HIGH COURT, LAHORE and others

Service Appeal No.16 of 2003, decided on 16th May, 2014.

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

----S. 10---Constitution of Pakistan, Art.10-A---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Termination of service---Serious allegation of misconduct---Authority dispensed with the regular inquiry---Right of due process and fair trial---Services of the appellant were terminated without conducting inquiry during his probation period on the ground that he perpetrated gross misconduct by lodging a false and concocted complaint to malign his colleague---Authority ordered initiation of disciplinary proceedings against the appellant---Inquiry Officer instead of conducting the regular inquiry proposed to terminate the services of the appellant under S.10 of the Punjab Civil Servants Act, 1974---Authority dispensed with the procedure of regular inquiry and passed the order of termination of appellant during his probation period---Validity---Order was not an order of termination simpliciter rather it was based upon allegation of misconduct---Order of termination in fact was an order of imposition of penalty of removal from service necessitating a regular inquiry and fair opportunity of hearing to be given by the Authority to the appellant---Serious allegation of misconduct was pending inquiry against the appellant therefore appellant's termination even during period of probation could not be ordered without finding truth of the allegation by providing an opportunity of hearing to the appellant through due process of law---Right of due process and fair trial is Fundamental Right of each and every citizen of this country duly safeguarded and guaranteed under Art.10-A of the Constitution, which could not be denied in any case---No civil servant could claim salary and other benefits without performing the duty, therefore, Authority would determine as to whether or not appellant was engaged in gainful employment during the intervening period---Punjab Subordinate Judicial Service Tribunal, accepted the appeal in the circumstances.

Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605 and Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others PLD 2001 SC 980 rel.

Appellant in person.

Nayyar Iqbal Ghouri and Daud Ahmed, Assistant Registrar (Confidential), Lahore High Court, Lahore for Respondents.

Date of hearing: 16th May, 2014.

2014 P L C (C.S.) 1229

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Malik ZULFIQAR ALI

Versus

LAHORE HIGH COURT through Registrar

Service Appeal No.20 of 2004, decided on 23rd May, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Grant of selection grade in BS-21 after retirement---Petitioner was retired as District and Sessions Judge (BS-20) on 16-3-2004---Through notification dated 3-7-2004, twenty one District and Sessions Judges including appellant's junior colleagues were granted selection grade in BS-21 ignoring the appellant---Contention of the petitioner was that he had been denied the selection grade in BS-21 without assigning any reason causing a serious miscarriage of justice---Plea of the authorities was that Provincial Judicial Selection Board had ignored the appellant for grant of selection grade in BS-21 in view of his unsatisfactory record and the said benefit could not be granted to the appellant being a vested right since the appellant had retired from service---Validity---Appellant retired from service attaining the age of superannuation on 16-3-2004, whereas the notification was issued on 3-7-2004 whereby his juniors were granted selection grade in BS-21 w.e.f. 9-12-2000; Besides vide same notification eight other already retired District and Sessions Judges were also awarded selection grade in BS-21, therefore, objection with regard to maintainability of the appeal was devoid of any force---Through notification appellant had been ignored for promotion in selection grade BS-21, whereas four officers, junior to the appellant, had been granted selection grade in BS-21 without assigning any reason for ignoring the appellant for the grant of selection grade in BS-21---In case of selection grade, selection was to be made on the basis of merit and the Authority in this regard had no other criterion to be taken into consideration except the merit by exercising fair and transparent discretion---Appellant was promoted as District and Sessions Judge in BS-20 by the respondent vide notification dated 22-4-1997 and by virtue of that promotion any advisory remarks about the appellant in his ACRs relating to the period prior to the said promotion had no relevance to ignore the appellant for selection grade in BS-21 w.e.f. 9-12-2000---Appellant's service record from 1997 till his superannuation on 16-2-2004 revealed that during said period appellant served against various posts as District and Sessions Judge, Judge Accountability and Judge Anti-Terrorism Court, but there was no adverse remarks with regard to his work and integrity during above mentioned postings---If a judicial officer had an unblemished career he deserved selection for a higher grade on merit, hence, denial of valuable right to the appellant was not justified and the appellant could not be denied permanent loss of regular and pensionary benefits of higher grade in BS-21---Appeal was allowed.

Dr.Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2008 SCMR 1535; Muhammad Siddique, Stenographer, FIA Headquarter, Islamabad and another v. Secretary, Establishment Division, Islamabad and 5 others 2001 SCMR 252; Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696; Tariq Aziz-ud-Din and other's case 2010 SCMR 1301 and Iftikharullah Malhi v. Chief Secretary and another 1998 SCMR 736 rel.

Appellant in person.

Nayyar Iqbal Ghouri, Muhammad Shafique Assistant Registrar Confidential-II and Muhammad Rizwan Ashraf Dealing Assistant Confidential-I for Respondents.

Date of hearing: 23rd May, 2014.

2014 P L C (C.S.) 1248

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MUHAMMAD SALEEM HUSSAIN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others

Service Appeal No.58 of 2002, decided on 16th May, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks---Expunction of---Absence of element of mala fide or grudge on the part of Reporting Officer---Judicial Officer submitted a representation, which was dismissed---Judicial Officer did not raise any allegation of mala fide or personal grudge against the Reporting Officer for recording of adverse remarks---Contention of the Judicial Officer was that the adverse remarks were recorded without any tangible material or complaint on the basis of which adverse remarks were recorded---Validity---It was not necessary that there must be some tangible material or complaint in writing to furnish ground for such remarks---Adverse remarks qua integrity of an officer were made by the Reporting Officer, who had supervisory authority over him to watch his work and conduct closely---Remarks Recorded by the Reporting Officer/Countersigning Officer were generally based on their having credible information and personal observations---Adverse remarks were not recorded on the basis of mala fide or grudge on the part of the Reporting Officer---Appeal was dismissed.

Ch. Shabbir Hussain and others v. Registrar, Lahore High Court and others PLD 2004 SC 191 rel.

Munir Ahmed Bhatti for Appellant.

A.H. Masood along with Shafique Ahmed, Assistant Registrar (Confidential), Lahore High Court for Respondents.

Date of hearing: 16th May, 2014.

2014 P L C (C.S.) 1344

[Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal]

Before Qaiser Rashid Khan and Malik Manzoor Hussain, JJ

FAQIR-UR-REHMAN JADOON

Versus

CHIEF JUSTICE/AUTHORITY, through Registrar , Peshawar High Court and 2 others

Service Appeals Nos.40 to 44 of 2011, decided on 14th June, 2014.

Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (No.1 of 1974)---

----S. 5---Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)(ii)--- Penalty of compulsory retirement of Judicial Officer---Delay in recording the adverse remarks in the ACR---Effect---Certificates issued by the Bar Associations and their members---Legality---Non-providing of material available against the appellant---Effect---Contention of the appellant was that the Chief Justice who had recorded ACRs was not acting as Chief Justice during the period he recorded adverse remarks in the ACRs---Validity---Chief Justice who had recorded adverse remarks in the ACRs of the appellant was not acting as Chief Justice during the said period but if the ACRs were not recorded by the former Chief Justice, the successor Chief Justice was neither debarred nor disabled from recording such remarks---Delay in recording adverse remarks did not affect their efficacy or legality---Superior officers like the District Judge and the Chief Justice were the only officers who could accurately assess the work and conduct of the subordinate judge serving under them; they were the best judges of appellant's work, conduct and character---Basis for their opinion could be very extensive, depending on their own observation, the general reputation and such other material which might have been brought to their notice---Material did not generally form part of the record---Opinion was formed by the superior officers on the basis of conglomeration of events, too minute to be noticed individually and recorded separately---Total impart of such events, however, brought into focus a clear image of the persons before them---Judicial officer remained constantly under supervision of his superior through his judgments which were examined while occupying appellate, revisional and constitutional jurisdiction of high forum---Superior officers could not, therefore, be asked to produce material on which they based their opinion, nor should there be any corpus on the superior officers to express themselves freely while recording their opinion concerning their subordinates---Judicial officer could not be expected to procure certificates in order to rebut the adverse remarks---Best judges of his work, conduct and character were his superiors---Adverse remarks with regard to integrity of judicial officer was made on the basis of his reputation and long standing observations of his superiors, which needed no rebuttal from Bar Association---Appeals were dismissed in circumstances.

Ch. Shabbir Hussain v. Registrar, Lahore High Court Lahore 2004 PLC (C.S.) 236; Syed Tahir Hussain Sherazi v. The Governor of the Punjab 1990 SCMR 1510; Lahore High Court, Lahore through its Registrar v. K.M. Sohel 2001 PLC (C.S.) 1253; Mehar Khan Meo v. High Court of Sindh 2007 SCMR 632; Inspector-General of Police v. Altaf Majid 1994 SCMR 1348 and Lahore High Court, Lahore through Registrar v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 rel.

Amjad Ali and Aamir (sic) for Appellant.

Malik Mujtaba Ahmad Standing Counsel for Respondents.

Date of hearing: 14th June, 2014.

2014 P L C (C.S.) 219

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, J

GHULAM HUSSAIN

Versus

CHAIRMAN/SECRETARY S&GAD, HOUSING ALLOTMENT COMMITTEE, QUETTA and 2 others

Civil Revision No.233 of 2012, decided on 6th February, 2013.

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

----O. VII, R. 11---Rejection of plaint---Documents essential to be considered by court---Scope---Only contents of plaint would be seen.

(b) Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009---

----Rr. 10(11) & 11(14)---Official residence, allotment of---Preferential right of allotment claimed by a person having come into possession of such residence without permission of authorities concerned---Validity---Government servant in order to claim such allotment would have to establish his right within parameters provided in Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009---Such person could not claim to be an "informant" of subletting and his possession would be as an "illegal occupant"---Notice to such person for vacation of the premises, if issued by authorities, would not be illegal in circumstances.

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

----O. VII, R. 11---Exercise of powers by court under O.VII, R.11, C.P.C.---Scope---Court could reject plaint, but could not dismiss suit.

Tahir Ali Baloch for Petitioner.

Amanullah Baloch along with Akbar Kamal, Civil Estate Officer S&GAD for Respondents Nos.1 and 2.

Sarwar Awan for Respondent No.3.

Date of hearing: 14th November, 2012.

2014 P L C (C.S.) 250

[Balochistan High Court]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ANWAR SHAH and 5 others

Versus

SECRETARY GOVERNMENT OF BALOCHISTAN IRRIGATION AND POWER DEPARTMENT, QUETTA and 5 others

Constitutional Petition No.250 of 2011, decided on 12th December, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Vested right of appointment---Withholding of appointment orders---Legality---Mala fide of appointing authority---Effect---Petitioners applied for the posts in question, which posts were advertised for candidates belonging to the district, from which petitioners belonged---Petitioner cleared their written test and interview and stood at serial No.1 of the merit list, which was duly approved by the appointing authority---Appointments orders of petitioners were kept in abeyance without any legal justification---Contention of appointing authority was that as per an agreement, posts in question were reserved for affectees of construction of a dam, who had surrendered their houses and land for the construction of the dam---Validity---Applications for posts in question were invited from candidates of the district to which the petitioners belonged---Petitioners were permanent residents of the said district by birth---Advertisement of posts did not mention any condition regarding the fact that only affectees of the dam could apply for the posts---No objection regarding residency of petitioners was raised at the time of their test or interview---Agreement between administrative authorities and dam affectees was signed prior to the advertisement of posts in question---Status of petitioners was accepted by the appointing authority when they were selected by the Selection Committee, therefore, the matter became a past and closed chapter for all intents and purposes---Subsequent somersault made by appointing authority by declining to issue appointment orders of petitioners appeared to be a clear act of mala fide on part of the appointing authority---Vested right had been created in favour of the petitioners, which could not be taken away in the manner adopted by the appointing authority in the present case---Withholding of appointment orders of petitioners, reconstitution of recruitment committee and re-advertisement of posts in question on fallacious grounds, was without lawful authority, arbitrary and unjustified---Appointing authority was directed to issue appointment orders of petitioners immediately---Constitutional petition was allowed accordingly.

Masoom Khan Kakar for Petitioners.

Amanullah Tareen, Addl. A.-G. for Respondents.

Date of hearing: 23rd October, 2012.

2014 P L C (C.S.) 294

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

Ms. ZAHIDA NAWAZ

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Agriculture and Cooperative Department

Constitutional Petition No.249 of 2010, decided on 4th December, 2012.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Civil service---Appointment letter, issuance of---Entitlement to post on merit---Discrimination in appointment---Effect---Petitioner-lady applied for post of Research Officer (BS-17) in the concerned Department and took the requisite tests and interview---Petitioner was declared successful and an offer letter for the post in question was issued to her, which she accepted and also cleared her medical examination---Petitioner was not issued an appointment letter on the grounds that post in question was reserved for a zone/city, which was different to the city where petitioner was domiciled---Validity---Eight different seats were available for the post in question, out of which six were allocated for different cities/zones, and the remaining two seats were merit-based---Out of the two merit-based seats, one was allocated to a candidate who had obtained lesser marks than the petitioner---Petitioner held the requisite qualification and had successfully passed the test and examination and acquired the highest marks, therefore, her non-appointment on one of the two merit-based seats was not understandable--- Contention of Department to the effect that petitioner could not be appointed to the post due to zonal quota was not relevant as petitioner was seeking her appointment on the merit-based seat, and not the ones reserved for zonal quota---Non-appointment of petitioner to the post in question amounted to discrimination as she was qualified for the post ---Non-appointment of petitioner could also be categorized as discrimination on basis of gender, which the Constitution specifically forbade---Constitutional petition was allowed and concerned Department was directed to issue appointment letter to the petitioner.

Khushal Khan Kasi for Petitioner.

Tariq Ali Tahir, Addl. A.-G. for Respondents.

Date of hearing: 4th December, 2012.

2014 P L C (C.S.) 467

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, JJ

MUHAMMAD IQBAL

Versus

FEDERATION OF PAKISTAN through Secretary, Water and Power, Islamabad and 3 others

Constitutional Petition No.663 of 2010, decided on 19th December, 2013.

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

----S. 17(1)(B)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---WAPDA employee---Promotion---Employee working in "Power Company" of Water and Power Development Authority (WAPDA) aggrieved by his supersession invoked the Constitutional jurisdiction of High Court---Validity---Employee working in "Power Company" of WAPDA at the time of his appointment was in service of Pakistan and as per S.17(1)(B) of Water and Power Development Authority Act, 1958 was a civil servant", therefore bar of Art.212 of the Constitution was attracted---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service--- Promotion--- Scope--- Terms and conditions of service---Scope---Promotion was not a vested right of a civil servant as the same was dependent upon the eligibility-cum-fitness---Person eligible for promotion being senior in rank in the grade but was not fit to share higher responsibilities would not be promoted to the next grade---Question of eligibility for promotion relate to terms and conditions of service and was to be subjected to judicial scrutiny by the Service Tribunal---Constitutional petition was dismissed.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Saleemullah Khan v. Shahid Hamid 2011 SCMR 788 rel.

Amanullah Kanrani for Petitioner.

Date of hearing: 18th November, 2013.

2014 P L C (C.S.) 531

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

NASRULLAH and others

Versus

CHAIRMAN, WATER AND SANITATION AUTHORITY (WASA), QUETTA and 3 others

Constitutional Petition No.316 of 2011, decided on 23rd October, 2013.

(a) Civil service---

----Regularization in service, concept of---Such concept would be illegal, unless provided by law specifically.

(b) Civil service---

----Appointment in government service/statutory body---Scope---Such appointment must be made in accordance with applicable law.

Syed Ayaz Zahoor for Petitioners.

Tahir Ali Baloch for Respondents.

Date of hearing: 1st October, 2013.

2014 P L C (C.S.) 571

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

MITHA KHAN UMRANI

Versus

FEDERATION OF PAKISTAN through Secretary National Assembly, Islamabad

Constitutional Petition No.506 of 2012, decided on 23rd October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for the post of Micro Form Technician in the newspapers---Minimum qualification being Intermediate in Science and experience in Microform/Microfilming with maximum age of 25 years---Petitioner being Intermediate in Arts with age of 35 years---Effect---Contention of petitioner was that neither he was called for interview nor was informed about the fate of written test taken by him whereas authorities contended that proposed vacancy had been redesigned---Validity---Requisite qualification for the post advertised was Intermediate in Science and experience in Microform/Microfilming with maximum age of 25 years---Petitioner did his Intermediate in Arts and was 35 years of age at the relevant date---Petitioner was over-aged and did not have any experience as prescribed for the proposed vacancy---Government was competent to prescribe qualifications for a particular post---Scientific development and increasing technical know-how in prescribing qualification for a post could not be ignored---Eligibility of a candidate had to be determined in accordance with the advertisement for the post, service Rules governing the appointment and any instruction backed by law and Rules framed thereunder---Unqualified person could not be appointed to a particular post---Appointment could not be made in violation of requisite qualification---Petitioner did not have the requisite qualification for the post advertised and he could not be appointed thereto---Authority had also abolished the said post which was a matter within its discretion---Petitioner had no right for the relief claimed by him---Constitutional petition was dismissed in circumstances.

Shazia v. Government of Balochistan C.P. No.738 of 2012; Dr. Muhammad Hussain v Principle, Ayub Medical College PLD 2003 SC 143 and Government of Punjab through Secretary (S&GAD) Lahore v. Zafar Maqbool Khan and another 2012 SCMR 686 rel.

Inamullah Kakar for Petitioner.

Sher Shah Kasi, Dy. A.-G. of Pakistan for Respondent.

Date of hearing: 11th September, 2013.

2014 P L C (C.S.) 579

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

SAIMA

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education Department, Quetta and another

Constitutional Petition No.738 of 2012, decided on 3rd October, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Fundamental Right, infringement of---Aggrieved person---Scope---Advertisement for the post of Laboratory Assistant in the newspapers---Minimum qualification being Secondary School Certificate Matric in Science---Petitioner had certificate of Secondary School/Matric in Arts---Contention of petitioner was that there was no other contestant in the field from the concerned union council and she was entitled to be appointed against the said vacancy---Validity---Exercise of jurisdiction under Art.199 of the Constitution would depend on the existence of a fundamental or legal right of a person or a party and the infringement thereof---Such right might be a statutory right or a right recognized by law---Person or a party could be said to be aggrieved only when he was denied a legal right---Government, in the present case, was competent to prescribe qualification for a particular post---Scientific development and increasing know-how could not be ignored in prescribing stipulated qualification for such post---Eligibility of a candidate had to be determined in accordance with the advertisement for the post, service Rules governing the appointment and any instruction backed by law and rules framed thereunder---Unqualified person could not be appointed to a particular post and appointment could not be made in violation of requisite qualification---No one could be appointed on the ground that no other contestant was available from the concerned union council---Neither any appointee was arrayed in the present petition nor impugned appointment order was appended with the memo. of the same, therefore such defects could not be attended to as petitioner could not qualify the preliminary test of maintainability of the petition coupled with qualification of an aggrieved person---Constitutional petition was dismissed in limine.

Dr. Muhammad Hussain v Principle, Ayub Medical College PLD 2003 SC 143 and Government of Punjab through Secretary (S&GAD) Lahore v. Zafar Maqbool Khan and another 2012 SCMR 686 rel.

Shams-ur-Rehman for Petitioner.

Nemo for Respondent.

Date of hearing: 10th September, 2013.

2014 P L C (C.S.) 1138

[Balochistan High Court]

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

SHAAN SHER TAREEN

Versus

REGISTRAR, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and 2 others

Constitutional Petition No.715 of 2007, decided on 2nd June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Word 'person'---Scope---Word 'person' used in Art.199 of the Constitution is in the most ordinary contacts, used for a group of people, body, authority etc., thus a person includes a university, its vice-chancellor and its authorities as well.

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

----S. 31---Constitution of Pakistan, Arts.199 & 212---Constitutional petition--- Maintainability---Petitioner was an employee of Allama lqbal Open University and major penalty of compulsory retirement was imposed upon him---Plea raised by authorities was that bar contained in Art.212 of the Constitution was applicable and jurisdiction vested with Service Tribunal---Validity---Bar contained in Art.212 of the Constitution did not apply to service matters of the University---Against an order of Appellate Authority, no remedy had been provided by Allama lqbal Open University Act, 1974, therefore, under Art.199 of the Constitution, "a High Court may if it is satisfied that no other adequate remedy is proved by law" could entertain Constitutional petition against order of appellate authority of the University---Only allegation levelled against petitioner was that he forwarded vouchers amounting to Rs.38,380 submitted by a part time tutor, who performed his duty and was entitled for T.A./D.A.---No amount was drawn on the basis of vouchers in question, therefore, no loss had been incurred to the University---Allegation that petitioner did not verify the vouchers was not established---Both Inquiry Committees and Sub-Committee failed to collect any evidence against petitioner showing an attempt to embezzle alleged amount, therefore, charge framed against petitioner was disproved---Imposing of penalty of compulsory retirement by Executive Council of the University was unjustified, not sustainable and resultantly set aside---It was not proved that after compulsory retirement, petitioner was indulged in any profitable business or service---Petitioner had been facing inquiries and agony of litigation since 2003 to 2007, respectively, therefore, service of petitioner was ordered to be restored with all back benefits, with effect from the date his service was discontinued---Petition was allowed in circumstances.

Mazhar Ilyas Nagi for Petitioner.

Muhammad Qahir Shah for Respondents.

Date of hearing: 25th February, 2014.

2014 P L C (C.S.) 1275

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar, J

REGISTRAR, HIGH COURT OF BALOCHISTAN, QUETTA

Versus

MAZAR KHAN and others

Civil Revision (suo motu) Nos.8 and 39 of 2014, decided on 11th July, 2014.

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

----S. 115---Revisional jurisdiction of High Court---Suo motu powers, exercise of---Limitation---Any revision petition filed under S.115, C.P.C., is subject to limitation but where High Court exercises suo motu revisional jurisdiction under S.115 C.P.C., clog of limitation does not come in the way of High Court in administration of justice---Revisional power under S.115, C.P.C., is supervisory jurisdiction of High Court over subordinate Courts and if limitation of 90 days is made applicable in respect of exercise of supervisory jurisdiction of High Court, then such power may drastically curtailed and as authority in supervising affairs of its subordinate Courts is severely hampered.

Mst. Banori v. Jilani, PLD 2010 SC 1186 and Rehmdil v. Province of Balochistan 1999 SCMR 1060 rel.

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

----S. 115---Revisional jurisdiction---Scope---Revisional jurisdiction is very vast and corresponds to remedy of "certiorari" which although discretionary yet can be invoked suo motu as well and Court can "make such order in the case as it thinks fit".

(c) Civil service---

----Promotion---Even if promotion is not considered to be a vested right of any civil servant, a legitimate expectation of promotion to higher rank comes to reside in the minds of eligible persons.

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

----S. 2(2)---Decree-Applicability---Scope---Decree is binding only on parties to suit and not on a stranger---Every person/authority not impleaded in the array of dependents is a stranger.

(e) Constitution of Pakistan---

----Art. 212(2)---Words "other court"---Scope---Words "other courts" occurring in Art.212(2) of the Constitution, include all subordinate Courts/High Courts---No civil Court can exercise jurisdiction where matter brought before it involves enforcement of terms and conditions of service of civil servants.

Dr. Rehmat Ibad Khan v. Employees' Old-Age Benefits Institution 2002 SCMR 572 rel.

(f) Constitution of Pakistan---

----Art. 199---Words "alternate remedy"---Scope---Adequacy of alternate remedy varies from case to case depending upon nature of remedy provided by law and peculiar facts and circumstances of each case.

(g) Constitution of Pakistan---

----Art. 212---Service Tribunal, establishment of---Object to establish Service Tribunals was to provide special forum to civil servants for rectification of wrong done to them in connection with any terms and conditions of their service.

(h) Administration of justice---

----Legal remedy---Indulgence---Effect---Where law provides a remedy by appeal to another Tribunal fully competent to give any relief, any indulgence to the contrary by any Civil Court including High Court is bound to produce a sense of distrust in statutory Tribunals.

(i) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---

----R. 12-A---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 212---Civil Procedure Code (V of 1908), S.115---Alteration in date of birth--- Terms and conditions of service---Civil Court, jurisdiction of---Civil servants filed civil suits for declaration regarding correction of their dates of births and sought amendment of their dates of births in official record---High Court, in exercise of suo motu powers invoked revisional jurisdiction under S.115, C.P.C. against judgment and decrees passed in favour of civil servants---Validity---Civil servants entered into government service in years, 1976 and 2005 respectively and if at all they had valid claims, they should have instituted proceedings for correction of their dates of births within the period of two years from dates of joining of government service and if it was not possible then at least, they should have agitated for correction of their dates of births within a reasonable time, which according to them was wrongly recorded in service record---Presumption would be that civil servants were satisfied with dates of births mentioned in their service record and Annual Confidential Reports because they did not challenge the same at an earlier stage---Civil servants had knowledge about their dates of births but kept silent at relevant time and slept over their alleged rights and no request whatsoever was made to get it altered---Civil servants woke up from a deep slumber after about 36 and 5 years respectively and no explanation whatsoever had been furnished regarding such silence, and the same had spoken volumes of their conduct and genuineness of their claims---At such belated stage, civil servants could not be allowed to change their stance after a considerable long period in spite of the fact that they were in possession of all relevant documents concerning to their dates of births---Civil/Qazi Court was not vested with jurisdiction to entertain suit of civil servant in respect of date of birth and its decree did not bind government and therefore, government was not obliged to alter service record on the basis of decree passed by Civil Court---High Court directed to ensure scrutiny of record of government servants/civil servants who had got altered their dates of births in service record on the basis of decrees obtained by them from Civil/Qazi Courts without impleading Government of Balochistan in the array of defendants---High Court further directed that such civil servants, if they were still in service, should be proceeded against after affording them a reasonable opportunity of hearing in accordance with relevant law that could culminate in their dismissal or retirement from service, besides recovery of excess amount paid to them on account of salary, perks and emoluments etc.---High Court also directed that if academic certificates or other documents were found forged on the basis whereof dates of births were got altered in service record, probability of instituting criminal cases should also be considered---High Court directed that if any other public official was found to be guilty of connivance or negligence in such respect, the government would take appropriate disciplinary action against him / her under the relevant law---High Court, in exercise of suo motu revisional jurisdiction, set aside judgments and decrees passed in favour of civil servants altering their dates of births---Revision was allowed accordingly.

M.R. Khalid v. Chief Secretary, Punjab 1994 SCMR 1633; Niaz Akbar v. Pakistan Atomic Energy Commission 2002 SCMR 992 and Khyber Tractors (Pvt.) Ltd v. Pakistan through Ministry of Finance, PLD 2005 SC 842 ref.

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

----S. 2(2)---Decree---Court having no jurisdiction---Effect---Decree passed by a Court without jurisdiction is nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and in collateral proceedings.

Muhammad Saleem Baloch, Addl. A.-G., Abdul Latif Kakar and Shai Haq Baloch, Asstt. A.G. for Petitioner.

Shah Muhammad Jatoi and Muhammad Akram Shah for Respondents.

Dates of hearing: 30th and 7th July, 2014.

2014 P L C (C.S.) 272

[Sindh Subordinate Judiciary Service Tribunal]

Before Justice Faisal Arab, Chairman and Justice Nisar Muhammad Shaikh, Member

GUL HASAN

Versus

HIGH COURT OF SINDH through Registrar and others

Service Appeal No.3 of 2003, decided on 8th July, 2013.

(a) Sindh Service Tribunals Act (XV of 1973)---

----Ss. 3-B & 4---Sindh Civil Servants Act (XIV of 1973), S.26---Sindh Judicial Staff Service Rules, 1992, Rr.11 & 13---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.11---Appeal to Subordinate Judiciary Service Tribunal---Inter se seniority---Date of birth of civil servants---Determining factors of inter se seniority---Appointment of civil servants of the same batch---Claim of inter se seniority on the basis of date of joining the service---Scope---Appellant and respondent were appointed as Reader in BPS-6 on same date---Appellant joined service earlier in date than the respondent---Respondent was older in age than the appellant---Post of Nazir in BPS-8 fell vacant for promotion amongst Readers---Departmental Selection Committee approved the promotion of appellant from BPS-6 to BPS-8 being senior from respondent---Respondent being aggrieved from promotion of appellant on the basis of seniority filed departmental appeal, which was allowed---Appellant claimed his seniority on the basis of earlier joining of his duty on his appointment as Reader in BPS-6---Validity---Claim of appellant of his seniority as against the respondent on the basis of having joined the duty and taking over the charge earlier than the respondent was not justified---Late joining the service by respondent-employee did not destroy his right to seniority inter se---Appeal was dismissed.

Abdullah Khan v. Director, Labour Welfare, N.-W.F.P., Peshawar and 2 others 1989 SCMR 1193; Muhammad Sadiq Khan v. Azad Government of State of Jammu and Kashmir and another 1987 PLC (C.S.) 302; 1972 PLC 93; M. Tahir Rasheed and 2 others v. Secretary Establishment Division, Islamabad and others 1993 PLC (C.S.) 116 and Fazal Muhammad v. Government of N.-W.F.P. and others 2009 SCMR 82 rel.

Dr. Hafiz Ahmed Khan and 4 others v. Secretary Establishment Division and others PLJ 1997 Tr.C. (Services) 568 distinguished.

(b) Civil service---

----Locus poenitentiae, principle of---Applicability---Scope---Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed become irrevocable and past and closed transaction.

Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed become irrevocable and past and closed transaction and that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the present case, the order of authority allowing the impugned promotion on the basis of seniority in question, was never withdrawn or rescinded by such authority nor it intended to do so and, on the contrary, it had turned down the representation of respondent employee. However, such order affected the legal right of respondent employee and therefore, he had challenged the order under due process of law. Principle of Locus poenitentiae was not attracted in the process of legal battle going on between two parties.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 rel.

Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farrukki PLD 1969 SC 407; Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420 and Chairman, Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak, 1999 SCMR 1004 distinguished.

Abrar Bukhari for Appellant.

Mukesh K. Sharma for Respondent No.3.

Nafees Osmani, A.A.-G.

Date of hearing: 16th March, 2013.

2014 P L C (C.S.) 12

[Sindh Service Tribunal]

Before Justice Sajjad Ali Shah, Chairman and Justice Muhammad Ali Mazhar, Member

Agha ASIF KHAN

Versus

The REGISTRAR, HIGH COURT OF SINDH KARACHI and another

Service Appeal No.2 of 2012, decided on 7th September, 2013.

(a) Limitation---

----Bar of limitation---Condonation of delay---Principles---Before going into the merits of case, the party has to cross the barrier of limitation and Court/Tribunal has to see first the grounds advanced for condonation of delay---Party seeking condonation of delay must explain the delay of each and every day to the satisfaction of court.

(b) Sindh Service Tribunals Act (XIV of 1973)---

----Ss. 3, 4 & 6-A---Limitation Act (IX of 1908), S.5---Time-barred appeal---Condonation of delay---Scope---Appellant claimed that due to his ailment he did not file appeal before Service Tribunal within period of limitation---Medical certificates produced by appellant did not cover the whole period of delay---Validity---Aggrieved person could file appeal against final order whether original or appellate made by departmental authority within thirty days of communication of order---For invoking the benefit of condonation of delay, the appellant was required to show sufficient reasons or grounds---Party who seeks condonation of delay was bound to offer plausible explanation constituting sufficient cause in approaching the court---Court was required to dilate upon essentials, which required condonation of delay and the same could not be decided in cursory manner---Delay in filing proceedings could not be condoned lightly unless it was shown that there were sufficient reasons causing delay---Law of limitation reduced an effect of extinguishment of a right of a party when significant lapses occurred and no sufficient cause for such lapses, delay or time-barred action was shown by the defaulting party, the opposite party was entitled to a right accrued by such lapses---Application for condonation of delay along with main appeal was dismissed.

Master Abdul Basit v. Dr. Saeeda Anwar 2013 YLR 375 ref.

Irfan Mir Halepota for Appellant.

Sher Muhammad K. Shaikh, A.A.-G. for Respondents.

Date of hearing: 24th August, 2013.

2014 P L C (C.S.) 17

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

GOVERNMENT OF PUNJAB through Chief Secretary, Government of Punjab and others

Versus

Syed MUHAMMAD RAFIQUE SHAH and others

Civil Appeals Nos. 655-L and 717-L of 2009, decided on 14th May, 2013.

(On appeal from the judgment dated 30-4-2008 and 20-5-2009 of the Lahore High Court, Lahore passed in Writ Petitions Nos.2582 and 12554 of 2005.)

(a) Constitution of Pakistan---

----Art. 185(3)---Limitation Act (IX of 1908), S. 5---Time-barred petition for leave to appeal before Supreme Court---Condonation of delay---Scope---Matter of public importance---Effect---Matter concerning entitlement of government officers to orderly allowance---Although reasons enumerated in the condonation of delay application were not convincing but at the same time it was an established fact that the matter was one of public importance and would affect a number of government employees---Whenever the Supreme Court was faced with such a situation, it had used its discretion to condone the delay and decide the case on merits.

Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787 ref.

(b) Civil service---

----Orderly allowance, entitlement to---Document, interpretation of---Retired judicial officer claimed payment of orderly allowance and its inclusion in his pensionary benefits---High Court allowed constitutional petition filed by retired judicial officer and declared that he was entitled to orderly allowance and its inclusion in his pensionary benefits in view of provisions of two letters issued by Provincial Finance Department---Pleas of Provincial Government were that in view of the said two letters, orderly allowance was only available to officers holding post in BPS-20 or above, who were working in Punjab Civil Secretariat and that retired judicial officer in question never served in Punjab Civil Secretariat, therefore, he was not entitled to orderly allowance---Validity---First letter issued by Provincial Finance Department led to only one interpretation i.e. "orderly allowance would only be available to officers of BPS-20, 21 & 22 working in Punjab Civil Secretariat who followed certain procedure"----Said letter made it clear that officers who had been working in the Punjab Civil Secretariat were the only ones entitled to orderly allowance---Second letter issued by Provincial Finance Department provided for payment of additional pension equal to "admissible" pre-retirement allowance---Interpretation of word "admissible" was that only those officers were entitled to additional benefit of pension to whom orderly allowance was admissible during pre-retirement service---Retired judicial officer not being an officer in Punjab Civil Secretariat was not entitled to orderly allowance during service and therefore the same was not admissible to his post-retirement benefits---Appeal was allowed and order of High Court was set aside.

(c) Civil service---

----Orderly allowance, entitlement to---Document, interpretation of---Retired Member of Punjab Public Service Commission claimed payment of orderly allowance and its inclusion in his pensionary benefits---High Court allowed constitutional petition filed by retired Member/officer and declared that he was entitled to orderly allowance and its inclusion in his pensionary benefits in view of provisions of two letters issued by Provincial Finance Department---Pleas of Provincial Government were that in view of said letters, orderly allowance was only available to officers holding post in BPS-20 or above, who were working in Punjab Civil Secretariat and that retired Member/officer in question never served in Punjab Civil Secretariat, therefore, he was not entitled to orderly allowance---Pleas of retired Member/officer were that he was for all practical intents an officer working in the Punjab Civil Secretariat and that even otherwise he was a BPS-21 officer and officers serving in the Punjab Civil Secretariat were also drawing the same benefits in the same grade, therefore there was no legal distinction between officers who were working in Punjab Civil Secretariat and those who were not---Validity---Letters issued by the Provincial Finance Department made it clear that orderly allowance would only be admissible to officers who had actually served in the Punjab Civil Secretariat and not those who might have been on the same footing in some other department---Officers working in different departments fell in different classes and could not be categorized as a composite class---Appeal was allowed and order of High Court was set aside.

(d) Civil service---

----Civil Servants serving in different departments---Class---Scope---Officers working in different departments fell in different classes and could not be categorized as a composite class.

M. Azeem Malik, Additional A.-G. Punjab along with Tariq Muhammad Mirza, Dy. Secy. Finance for Appellants (in C.A. No.655-L of 2009).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondent (in C.A. 655-L of 2009).

M. Azeem Malik, Additional A.-G. Punjab along with Tariq Muhammad Mirza, Dy. Secy. Finance for Appellants (in C.A. No.717-L of 2009).

Pir S. A. Rasheed, Advocate Supreme Court for Respondents (in C.A. No.717-L of 2009).

Date of hearing: 2nd May, 2013.

2014 P L C (C.S.) 82

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

CONTEMPT PROCEEDINGS AGAINST CHIEF SECRETARY, SINDH AND OTHERS: In the matter of

Criminal Original Petition No.89 of 2011, C.M.As. Nos.309-K, 310-K of 2012, Criminal M.As. Nos.42-K, 80-K, 87-K of 2012, 13-K of 2013, C.M.A. No.2453 of 2013, Criminal M.A. No.29-K of 2013, C.M.A. No.131-K of 2013, Criminal M.As. Nos.185-K of 2012, 225, 226, 227 of 2013, C.M.As. Nos.244-K to 247-K, 257-K, 258-K of 2013, Criminal M.A. No.263 of 2013, Criminal M.A. No.282 in Constitutional Petition No.71 of 2011, C.M.As. Nos.5547, 2560, 2561, 2565, 2112-2113, 2706-2707 of 2013 in Constitutional Petition No.71 of 2011, Constitutional Petitions Nos. 21, 23 and 24 of 2013, Civil Petition No.6-K of 2011, C.M.A. No.278-K of 2011, Civil Appeals Nos.98-K, 100-K of 2010, 12-K of 2012 along with Criminal M.As. Nos.51-K to 53-K of 2012, C.M.A. 2014 of 2013, Civil Appeal No.131-K of 2010 along with 241-K of 2012 and Civil Appeals Nos.183-K to 185-K of 2011, Criminal M.A. No.252 of 2013 in Criminal M.A. No.98 of 2012 in Criminal M.A. No.339 of 2012, H.R.C. No.12995-S of 2011 and H.R.C. No.2103-G of 2011, decided on 12th June, 2013.

(On appeal against the judgments in C.A.183-K of 2011, dated 17-2-2011, SST, Kcy. in S.A. 39 of 2008, C.A. 12-K of 2012, dated 14-4-2011, SHC, Kcy in Constitutional Petition D-932 of 2009, C.A. 98 of 2010, dated 23-2-2010, SST, Kcy. in S.A. No.1 of 2009, C.A. 100-K of 2010, dated 22-3-2010, SST, Kcy. in S.A. No.65 of 2009, C.A.131-K of 2010, dated 31-3-2010, SST, Kcy. in S.A. No.94 of 2009 and C.P.6-K of 2011, dated 29-10-2010, SST, Kcy. in S.A. No.66 of 2009.)

Per Amir Hani Muslim, J.

(a) West Pakistan Civil Service (Executive Branch) Rules, 1964---

----R. 5(4)(b)---Constitution of Pakistan, Art. 184(3)---Appointment by transfer to the post of Assistant Commissioner (BS-17) in Ex-PCS Cadre by way of nomination by the Chief Minister after exhausting his prescribed quota---Validity---Impugned appointment would affect seniority of incumbents, who would pass PCS examination on merits and be appointed as Assistant Commissioner---Supreme Court declared impugned nomination to be without lawful authority while reverting nominated officers to their original positions and directed Sindh Government to formulate mechanism for such appointments in future---Officers inducted by Chief Minister in excess of his prescribed quota would relegate to their original positions---Principles.

(b) Constitution of Pakistan---

----Arts. 4, 9, 18, 25 & 184(3)---Constitutional petition challenging laws relating to civil service to be violative of fundamental rights guaranteed under the Constitution---Maintainability---Supreme Court either on its own or on petition by a party could examine vires of such laws---Question raised in the petition being of public importance relating to rights of civil servants, petition was maintainable---Principles.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292 and Tariq Aziz-ud-Din's case 2010 SCMR 1301 rel.

(c) Sindh Civil Servants (Regularization of Absorption) Ordinance (III of 2011)---

----S. 9-A---Sindh Civil Servants (Regularization of Absorption) Act (XVII of 2011), S.3---Sindh Civil Servants (Amendment) Ordinance (VI of 2012), Preamble---Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012), Preamble---Sindh Civil Servants (Amendment) Act (I of 2013), Preamble---Sindh Civil Servants (Second Amendment) Act (XXIV of 2013), Preamble---Sindh Civil Servants Act (XIV of 1973), Ss. 9 & 9-A---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, Rr. 9 & 9-A---Constitution of Pakistan, Arts. 4, 9, 25, 184(3), 240(b) & 242---Constitutional petition challenging the vires of statutes---Absorption of employees of other organizations to any Cadre in Sindh Government as civil servants with backdated seniority by Chief Minister under Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011 and Sindh Civil Servants (Regularization of Absorption) Act, 2011---Validity---Term "absorption" was not defined in Sindh Civil Servants Act, 1973, rather same being an appointment by transfer could be made under R. 9-A of Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 subject to possessing matching qualifications, experience and expertise prescribed for such post under R. 3(2) thereof---Impugned absorption in absence of mechanism therefor under newly added S.9-A of Sindh Civil Servants Act, 1973 was violative of the Constitution---Conferring status of civil servant on a person without competing through recruitment process by virtue of impugned legislation would deprive other civil servants of their fundamental rights of "status" and "reputation" guaranteed under the Constitution---Civil servant appointed on merits after qualifying competitive examination and fulfilling codal formalities would lose his right to be considered for promotion, if an employee from other organization was absorbed, granted backdated seniority and conferred status of a civil servant under impugned legislation without undertaking competitive process---Impugned legislations were discriminatory---Provincial Assembly could promulgate law relating to service matters pursuant to parameters defined under Arts. 240 & 242 of the Constitution read with Sindh Civil Servants Act, 1973, but could not enlarge definition of "civil servant" by appointing a non-civil servant in such manner and introduce any validation Act in nature of multiple or parallel legislation on subject of service law---Impugned legislations were amendatory and were not new laws, but were continuation of old/original statute, which requirements had to be met---Impugned legislation for being violative of recruitment rules would encourage nepotism, corruption and bad governance---Impugned legislations did not meet standards of jurisprudence mandating safeguards provided to civil servant under Constitution---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Supreme Court declared impugned legislations and benefits extended thereunder by Government for being violative of the Constitution---Principles.

Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Haji Ghulam Rasul v. Government of the Punjab 2003 SCMR 1815; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; The Province of Punjab v. National Industrial Co-operative Credit Corporation 2000 SCMR 567; Raj Narain v. Smt. Indira Nehru Gandhi AIR 1975 SC 2299; Capt. (R) Abdul Qayyum v. Muhammad Iqbal Engineer PLD 1992 SC 184; Muhammad Nadeem Arif v. Inspector-General of Police, Punjab Lahore 2010 PLC (C.S.) 924; Province of Sindh through Chief Secretary v. Prosecutor-General Sindh 2012 SCMR 307; Syed Zulfiqar Mehadi v. P.I.A. 1998 SCMR 793; Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Province of Punjab v. Ibrar Younis 2003 PLC (C.S.) 1357; Hussain Badshah v. Akhter Zaman 2007 CLC 157; Chairman Minimum Wages Board v. Fayyaz Hussain 1999 SCMR 104; Ghulam Rasool v. Secretary, Government of Pakistan Ministry of Defence and others 2011 SCMR 994; Islamic Republic of Pakistan v. Israr-ul-Haq PLD 1982 SC 531; Muhammad Arshad Sultan v. Prime Minister of Pakistan PLD 1996 SC 771; Muhammad Ramzan v. Government of Pakistan 1999 PLC (C.S.) 1149; Lal Khan v. Employees Old Age Benefits Institution 2010 PLC (C.S.) 1377; Safdar Ali Sahito v. Province of Sindh 2011 PLC (C.S.) 972; Iqbal Ahmed v. Province of Sindh 1996 PLC (C.S.) 955; Deedar Hussain Jakhrani v. Federation of Pakistan 2011 PLC (C.S.) 203; Dr. Anwar Ali Sahito v. Federation of Pakistan PLD 2002 SC 101; M.D. Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas 2003 PLC (C.S.) 796; Nazir Ahmed Panwar v. Government of Sindh 2005 SCMR 1814; Government of Punjab v. Mrs. Kishwer Alam PLD 1997 SC 578; Pir Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Mehr Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11; C. Munni Appa Nido v. State of Karnataka 1976 (4) SCC 543 (797); Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Munir Hussain Bhatti Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf Chief Executive and others PLD 2002 SC 853; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan and others 2001 SCMR 1161; Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225; Pakistan Tobacco Company Ltd. and others v. Government of N.-W.F.P. through Secretary Law and others PLD 2002 SC 460; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others 1997 PTD 1555; Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Pakistan Industrial Development Corporation v. Pakistan 1992 SCMR 891; Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan and others 1999 SCMR 382; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263; Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court Lahore and others 1997 SCMR 1043; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Accountant-General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Independent Newspaper Corporation v. Chairman Fourth Wage Board 1993 SCMR 1533; Executive District Officer (Revenue) v. Ijaz Hussain 2012 PLC (C.S.) 917; Lila Dhar v. State of Rajasthan and others AIR 1981 SC 1777; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623; The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and Mamukanjan Cotton Factory v. The Punjab Province and others PLD 1975 SC 50 ref.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 870; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(d) Constitution of Pakistan---

----Art. 9---Term "life" as used in Art. 9 of the Constitution---Scope---Such term would include "reputation", "status" and all other ancillary privileges conferred on a citizen by law---Principles.

Article 9 of the Constitution provides protection to every citizen of life and liberty. The term "life and liberty" used in this Article is very significant as it covers all facets of human existence. The term "life" has not been defined in the Constitution, but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term "life" includes "reputation", "status" and all other ancillary privileges, which the law confers on the citizen.

(e) Words and phrases---

----"Deputation"---Meanings stated.

ESTACODE 2009 Edition Chapter-III at page 385, Part-II at Page 426 ref.

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

----Ss. 2(1)(b)(i) & 10---Appointment by way of deputation and transfer---Scope---Non-civil servant could not be appointed on deputation to any cadre of Government---Principles.

The procedure provided under the ESTACODE requires that a person, who is transferred and appointed on deputation must be a Government servant, and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation.

No non-civil servant can be transferred and appointed in the Government by way of deputation to any cadre.

Muhammad Arshad Sultan and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 and Lal Khan v. Employee Old Age Benefit Institution 2010 PLC (C.S.) 1377 ref.

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

----Ss. 2(1)(b), 14 & 10---Sindh Civil Servants (Amendment) Ordinance (VI of 2012), Preamble---Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012), Preamble---Sindh Civil Servants (Amendment) Act (I of 2013), Preamble---Sindh Civil Servants (Second Amendment) Act (XXIV of 2013), Preamble---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, Rr. 9 & 9-A---Constitution of Pakistan, Arts. 4, 8, 9, 25, 184(3), 240 & 242---Constitutional petition---Challenging the vires of statutes---Powers of Chief Minister to re-employ retired civil servants under S.14 of Sindh Civil Servants Act, 1973 as amended by Sindh Civil Servants (Amendment) Ordinance, 2012, Sindh Civil Servants (Second Amendment) Ordinance, 2012, Sindh Civil Servants (Amendment) Act, 2013 and Sindh Civil Servants (Second Amendment) Act, 2013---Transfer of non-civil servants and non-cadre-civil servants to cadre posts in Sindh Government by way of deputation and their absorption against cadre posts with backdated seniority by Chief Minister pursuant to Sindh Civil Servants Act, 1973 as amended by Sindh Civil Servants (Second Amendment) Ordinance, 2012, Sindh Civil Servants (Amendment) Act, 2013 and Sindh Civil Servants (Second Amendment) Act, 2013---Validity---Such deputationists, despite not having matching qualifications to cadre in which they were transferred and liable to be repartriated, had been absorbed against cadre posts against language of S. 10 of Sindh Civil Servants Act, 1973 on basis of impugned legislations---Neither a non-civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in Government by way of deputation as same would affect rights of civil servants serving in Government and create sense of insecurity in them---Impugned legislations meant for specific class of persons was violative of Art. 25 of the Constitution and were violative of Arts. 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner--- Provincial Assembly could not change structure of service laws in conflict with provisions of Art. 240(b) or Art. 242(1B) of the Constitution---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Supreme Court struck down impugned legislations---Principles.

Muhammad Mubeen-us-Salam's case PLD 2006 SC 602; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(h) Constitution of Pakistan---

----Preamble---Powers under the Constitution, exercise of---Scope---Such powers not a prerogative, but a sacred trust reposed in authorities by Allah and the Constitution---Principles.

The concept of power under the Constitution of Pakistan is distinct from other Constitutions of Common Law Countries. Under the Constitution of Pakistan, the sovereignty vests in Allah and it is to be exercised by "the people within the limits prescribed by Him", as a sacred trust. The authorities in Pakistan while exercising powers must keep in mind that it is not their prerogative, but a trust reposed in them by Allah and the Constitution.

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

----S. 14(3) [as inserted by Sindh Civil Servants Act (Second Amendment) Ordinance (VII of 2012) and Sindh Civil Servants (Second Amendment) Act (XXIV of 2013)]---Constitution of Pakistan, Arts.184(3), 4, 9 & 25---Constitutional petition assailing re-employment of retired civil servants by Government on contract basis by virtue of amendments made in S. 14 of Sindh Civil Servants Act, 1973---Validity---Locus poenitentiae, principle of---Applicability---Re-employment could be made in public interest, but in exceptional and compelling circumstances under unamended S. 14 of Sindh Civil Servants Act, 1973---Power of Government to re-employ retired civil servants would adversely affect terms and conditions of serving civil servants by blocking their promotion to next higher cadre after gaining expertise by passage of time---Retired employee after re-employment would be governed by terms of contract---Amendments made through Amending enactments in the Sindh Civil Servants Act, 1973 had been made to defeat judicial pronouncement regarding induction of retired officer on contract basis---Such re-employment was violative of Arts. 4, 9 & 25 of the Constitution and Sindh Civil Servants Act, 1973 and Rules made thereunder---Benefits extended to different employees or civil servants through impugned (Amending) legislations would not attract principle of locus poenitentiae---Supreme Court declared impugned legislations to be violative of the Constitution---Principles.

Human Rights Cases No.57701-P of 2010 PLD 2011 SC 205; Mrs. Farkhanda Talat v. Federation of Pakistan and others 2007 SCMR 886; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

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

----S. 9-A [as inserted by Sindh Civil Servants (Amendment) Ordinance (IV of 2002) and amended by Sindh Civil Servants (Amendment) Ordinance (V of 2012), Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012) and Sindh Civil Servants (Amendment) Act (I of 2013)], Ss. 23-A & 23-B [as inserted by Sindh Civil Servants (Amendment) Ordinance (IV of 2002)]---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, R.8-B---Constitution of Pakistan, Art. 184---Constitutional petition assailing the grant of out-of-turn promotion to civil servants with backdated seniority---Validity---Locus poenitentiae, principle of---Applicability---Government through impugned (Amending) legislations had extended benefit of S. 9-A of Sindh Civil Servants Act, 1973 to all civil servants by giving unbridled discretionary powers to authorities to protect culture of favouritism and nepotism, which prevailed earlier in Sindh Police---Impugned legislations had bypassed stipulation of R. 8-B of Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974---Grant of out-of-turn promotion were class specific, prejudicial to public interest and not based on intelligible differentia, rather having destroyed service structure, affected inter-se seniority between officers serving on cadre posts after acquiring jobs through competitive process---Impugned (Amending) legislations were violative of Arts.143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner---Conflicting laws both Provincial and Federal would result in administrative chaos---Such unstructured discretion vested in Chief Minister would infringe valuable rights of meritorious civil servants of legitimate expectancy of attaining climax of career---Sindh Civil Servants (Amendment) Act, 2013 had been passed without debate some hours before completion of term of Government---Government under R. 8-B of such Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 could constitute Committee to evaluate performance of Police Officer for conferring award or reward for his act of gallantry, but out-of-turn promotion would not boost his morale---Supreme Court emphasized on Sindh Government to depoliticize police force---Legislature by using word "gallantory" in S.9-A of Sindh Civil Servants Act, 1973 had never intended to grant out-of-turn promotion to civil servants other than police force---Impugned legislations being amendatory and were not laws, but were continuation of old/original Statute, which requirements had to be met---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Impugned legislations did not meet standards of jurisprudence---Supreme Court declared the impugned legislations and benefit extended thereunder to be violative of the Constitution---Principles.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Sabir Shah's case PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Air League P.I.A.C. Employees v. Federation of Pakistan 2011 SCMR 1524; Capt. (Retd.) Abdul Qayyum Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; Muhammad Nadeem Arif and others v. Inspector-General of Police Punjab, Lahore and others 2010 PLC (C.S.) 924; Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others 2005 SC 605 and "The Construction of Statutes" by Earl T. Crawford rel.

(k) Judgment---

----Nullification of effect of a judgment of court through legislation---Scope.

In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed.

As a general rule, the legislature cannot destroy, annul, set aside, vacate, reverse, modify or impair a final judgment of a court of competent jurisdiction nor can fundamental rights guaranteed under the Constitution be abridged by the legislature. The legislature is not only prohibited from re-opening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment through a piece of legislation.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 and Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605 ref.

(l) Locus poenitentiae, principle of---

----Applicability---Scope.

Locus poenitentiae is the power of receding till a decisive step is taken, but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal, then perpetual rights cannot be gained on the basis of an illegal order.

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and opanother v. Jalaluddin PLD 1992 SC 207 rel.

Per Asif Saeed Khan Khosa, J

(m) Interpretation of statutes---

----Mala fide cannot be attributed to the legislature, but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violate the law, then it is difficult to attribute bona fide to it either.

Abdul Fateh Malik, A.-G. (Sindh), M. Sarwar Khan, Additional A.-G. (Sindh), Adnan Karim, Additional A.-G. (Sindh), Irfan A. Memon, Advocate, Naseer Jamali, Secy. (Services), Sindh, Sohail Qureshi, Additional Secy. (Services), Sindh, Syed Asif Haider Shah, Secy. (Services), Sindh, Mudasir Iqbal, Sp. Secy. (Home), Sindh and Ali Sher Jakhrani, A.I.-G. Legal in Attendance (in all cases).

Ch. Afrasiab Khan, Senior Advocate Supreme Court for Petitioner (in Constitutional Petitions Nos.71 of 2011 and 21 of 2013).

Ch. Afrasiab Khan, Senior Advocate Supreme Court for Appellant (in C.A. No.12-K of 2012).

M.S. Khattak, Advocate-on-Record for Petitioner (in Constitutional Petition No.21 of 2013).

M.S. Khattak, Advocate-on-Record for Respondents Nos.10 and 12 (in Constitutional Petition No.71 of 2011).

M.S. Khattak, Advocate-on-Record for Respondents Nos.10 and 11 (in C.A. No.12-K of 2012).

Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Constitutional Petition No.71 of 2011).

Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No.12-K of 2012).

Dr. Farough Naseem, Advocate Supreme Court for Respondent No.3 (in Constitutional Petition No.71 of 2011 for interveners in H.R.C.12995-S of 2011).

Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos.3 and 6 (in Constitutional Petition No.71 of 2011).

Abrar Hassan, Advocate Supreme Court for Respondent No.5 (in Constitutional Petition No.71 of 2011).

Abrar Hassan, Advocate Supreme Court for Respondents Nos.4 and 6 (in C.A. No.12-K of 2012).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Sheraz Asghar (in C.A. No.12-K of 2012).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Applicant (in Criminal Miscellaneous Application No.52-K of 2012).

Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Respondent No.6 (in Constitutional Petition No.71 of 2011).

Abbad-ul-Hasnain, Advocate Supreme Court for Respondent No.8 (in Constitutional Petition No.71 of 2011).

Abbad-ul-Hasnain, Advocate Supreme Court for Respondent No.9 (in C.A. No.12-K of 2012).

Shabbir Ahmed Awan, Advocate Supreme Court for Petitioner (in C.P. No.6-K of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Respondent No.9 (in Constitutional Petition No.71 of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Respondent No.3 (in C.As. Nos.183 to 185-K of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Applicant (in C.M.A. No.80-K of 2012, Criminal M.A. No.263 of 2013).

Hashmat Ali Habib, Advocate Supreme Court for Respondents Nos. 10 and 12 (in Constitutional Petition No.71 of 2011).

Hashmat Ali Habib, Advocate Supreme Court for Respondents Nos.10 and 11 (in C.A. No.12-K of 2012).

M. M. Aqil Awan, Senior Advocate Supreme Court for Respondents Nos.11 and 14 (in Constitutional Petition No.71 of 2011).

M. M. Aqil Awan, Senior Advocate of Supreme Court for Appellant (in C.As. Nos.183-K to 185-K of 2011).

M. M. Aqil Awan, Senior Advocate of Supreme Court for Respondent (in C.A. No.100-K of 2010).

M. M. Aqil Awan, Senior Advocate Supreme Court for Lal Khan (in C.A. No.12-K of 2012).

Muharram G. Baloch, Advocate Supreme Court for Applicants (in C.M.As. Nos.241-K of 2012, 185-K and 248-K of 2013).

Raja Muhammad Asghar, Advocate Supreme Court for Respondent No.3 (in C.A. No.12-K of 2012).

Khalid Javed, Advocate Supreme Court for Respondent No.12 (in C.A. No.12-K of 2012).

Khalid Javed, Advocate Supreme Court for Shahid Hussain and Zamir Ahmed (in C.A. No.12-K of 2012).

Khalid Javed, Advocate Supreme Court for Applicant (in Crl. M.A. No.51-K of 2012).

Khalid Javed, Advocate Supreme Court for Dr. Sarwat (in C.M.A. No.309-K of 2012).

Yawar Farooqui, Advocate Supreme Court for Applicant (in C.M.A. No.80-K of 2012).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Applicant (in C.M.A. No.87-K of 2012).

Syed Mehmood Akhtar Naqvi in person (in Constitutional Petition No.24 of 2013).

Dr. Azeem-ur-Rehman Meo in person (in Petition No.10 in Constitutional Petition No.23 of 2013).

Dr. Azeem-ur-Rehman Meo for Appellant (in C.A. No.184-K of 2011).

Dr. Azeem-ur-Rehman Meo for Applicant (in C.M.A. No.244-K of 2013).

Syed Mehboob Ali Shah (in person) (in C.M.A. No.131-K of 2013).

Sarwar Khan, Inspector (in person) (in C.M.A. No.245-K of 2013).

Bahar-ud-Din Babar, Inspector (in person) (in C.M.A. No.247-K of 2013).

Khaleeq Ahmed, Advocate of Supreme Court.

Rasool Bux Samejo, Inspector.

Pervez Ahmed Sehar in person.

Syed Attaullah Shah, Additional Dy. Commissioner.

Ghulam Shabbir Jiskani, Hyderabad.

Dates of hearing: 16th to 19th, 29th, 30th April, 7th, 8th and 9th May, 2013.

2014 P L C (C.S.) 393

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Ather Saeed, JJ

ABDUL WAHAB and others

Versus

HABIB BANK LTD. and others

Constitutional Petition No.39 of 2007, H.R.Cs. Nos.14127-S, 14646 of 2009, 13486-S and 47811-P of 2010, decided on 17th October, 2012.

(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.)

(a) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Banking Companies Ordinance (LVII of 1962), Preamble---Constitution of Pakistan, Arts. 199(1)(c) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Constitutional petition filed before High Court against the Bank---Maintainability---'Person' or 'authority' performing functions in connection with the affairs of the Federation---Scope---Plea of employees (petitioners) was that the State/Federation had a considerable shareholding in the Bank in question and representation in the managing affairs thereto; that the Bank was being regulated by and under the authority of the State Bank of Pakistan; that the Bank was a 'person' in terms of Art. 199(1)(c) of the Constitution as it was distinct from an 'ordinary private individual', because it (the Bank) was owned and controlled by the State, therefore, for all intents and purposes, an appropriate writ petition against the Bank was maintainable under Art.199(1)(c) of the Constitution---Validity---Bank in question had been privatized and the majority shareholding thereof, had been acquired and was vested in a (private) foundation---Board of Management of the Bank was predominantly represented by the said foundation---Petitioners were unable to show that the State/Federation had the majority of shareholding, or majority representation in the Board of Management of the Bank---State Bank of Pakistan was only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962---Such regulatory role and control of State Bank of Pakistan could not clothe the Bank in question, with the status of a 'person' or the 'authority' performing the functions in connection with the affairs of the Federation---Bank in question was a private institution for all intents and purposes---Constitutional petition was held to be not maintainable and was dismissed accordingly.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 ref.

(b) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months' dues---Maintainability---Contractual employees of a Bank governed by non-statutory rules---Employees (petitioners) in question were employed by the Bank as a result of a prescribed internal process of the Bank and the letters of their appointment clearly indicated that they were taken into employment on their unequivocal acceptance of the terms and conditions of employment---When employees duly accepted the offer of appointment, it culminated into a valid and a binding service contract between the parties, which for all intents and purposes was meant to govern and regulate the relationship inter se between the parties---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional petition before the High Court---Maintainability---Service grievance---Person/employee not governed by statutory rules of service---Where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, before the High Court, in terms of Art.199 of the Constitution, such petition shall not be maintainable.

Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 and Pakistan Telecommunication Co. Limited v. Iqbal Nasir PLD 2011 SC 132 rel.

(d) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Service grievance---Employment on contractual basis---While exercising jurisdiction under Art. 184(3) of the Constitution the Supreme Court was bound by the conditions of the said Article, and moreover by such rules which were laid by the Supreme Court for regulating its jurisdiction, keeping in view the principles of restraints---In cases of contractual service, where the grievance agitated was against a private person, there was no reason that such restraint should not be resorted to by the Supreme Court.

(e) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Scope---Supreme Court had the power of judicial review to examine and adjudge any legislative and/or administrative action of the State on the touchstone of the fundamental rights and, to pass appropriate orders for protecting such rights and enunciating the law in respect thereof.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Jurisdiction of the Supreme Court under Art.184(3) of the Constitution---Scope and restraints---Constraints and limitations, if any of Art.199 of the Constitution, might not stricto sensu be attracted to the jurisdiction of the Supreme Court under Art.184(3) of the Constitution, in view of the expression "without prejudice" appearing at the very opening of Art.184(3), meaning thereby "without any detriment" (i.e. without being harmed or damaged or hurt)---However, the Supreme Court had the power and the jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and to apply the rules of restraints---Besides, Art. 184(3) of the Constitution itself had its own limitations and conditions, which were that the matter before the Supreme Court should be for the enforcement of any of the fundamental rights conferred by Chapter I of Part-II of the Constitution, and with reference to the enforcement of such fundamental rights the question involved should be of public importance---Said two conditions were primary, foundational and fundamental for the exercise of the power vested in the Supreme Court under Art. 184(3) of the Constitution and were sine qua non thereto---Both said conditions must first be established by the petitioners of the case and shown to co-exist before enabling the Court to exercise its jurisdiction in terms of Art. 184(3) of the Constitution (obviously subject to its own principles for regulating its jurisdiction and the judicial restraints).

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Maintainability---"Question of public importance"---Scope---For the purpose of qualifying the test of "question of public importance", the issue involved in a matter before the Supreme Court under Art. 184(3) of the Constitution must belong and should concern the public at large, the State or the nation---If the proposition/matter involved the alleged violation of the Fundamental Rights of an individual or a group of individuals, how so large it might be, but had no concern and effect on the public, then it could not be termed as "question of public importance".

(h) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---"Question of public importance"---Scope---Employees in question (petitioners) were retired/terminated by invoking provisions of Rr. 15 & 17 of Habib Bank Limited Staff Service Rules, 1981---Employees were contractual employees, of a private institution having no statutory rules to safeguard their service---All except six of the employees had received their dues and no issue had been joined by them to such fact, therefore virtually it seemed to be the grievance of few individuals---On the basis of the facts and circumstances of the present case, and the nature of grievance propounded , present petition did not qualify the test and the condition of the "question of public importance"---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642; Zulfiqar Mehdi v. Pakistan International Airlines 1998 SCMR 793 and PLD 2004 SC 583 ref.

(i) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to life of a person/citizen included the right to livelihood.

(j) Constitution of Pakistan---

----Arts. 184(3), 199 & Pt. II, Ch. 1 [Arts. 8 to 28]---Constitutional petition before the High Court/Supreme Court---Maintainability---Service grievance---Contractual service---Person/employee not governed by statutory rules of service---Cases where the employment/service(s) was not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of contract and wrongful action against him, before the court of plenary jurisdiction---In such a situation, it could not be urged that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Art.199 and/or under Art.184(3) of the Constitution.

(k) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15, 16, 17 & 18---Constitution of Pakistan, Arts. 9, 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---Plea of employees in question (petitioners) was that they were compulsorily retired by the Bank on basis of "changed staffing needs" but the changing needs of the Bank were neither specified nor shown, thus the action against them was arbitrary, whimsical, capricious and unfair, and that some of the employees of the Bank who were equally placed as the employees in question (petitioners) had been retained, therefore they had been discriminated against---Plea of the Bank was that employees in question had no fundamental right(s) which could be said to have been violated by the Bank; and that the employees were simply contract employees of a (private) Bank, whose services had been dispensed with strictly as per the terms of the contract (i.e.) Habib Bank Limited Staff Service Rules, 1981---Validity---By virtue of Rr.15 & 17(a) of Habib Bank Limited Staff Service Rules, 1981, the Bank had the due authority to bring to an end the services of its employees by way of termination/early retirement, likewise, the employee also had the option to give up the employment of the Bank in view of Rr.16 & 18 of the said Rules---When R.17(a) of Habib Bank Limited Staff Service Rules, 1981 was invoked at a large scale for employees of the Bank pursuant to the decision of the Board of Management it shall be deemed that the decision and the action was primarily founded upon commercial, business, administrative wisdom, the prudence and judgment of a private enterprise for the better interest of the institution, which might involve and be based upon financial constraints and considerations and/or for the restructuring and revamping of the staff (ability, efficiency and skill wise)---Such decisions were not justiciable by the Supreme Court, while sitting as a court of appeal over it---No fundamental right to life of the employees had been violated by the Bank to satisfy the second condition of Art.184(3) of the Constitution warranting interference by the Supreme Court---Employees had not provided for comparison, any dates or material or the particulars of the persons, who were equally placed as them and had been retained---Even otherwise it was for the Bank management to decide about the usefulness of the employees or otherwise---Obviously, it had to be the evaluation of the management as to who was the employee(s) worthy of serving the best interest of the Bank, and as to who was more suitable, so as to be retained and those who should retire---Impugned decision of the Board of Management in the present case had been made pursuant to the Board resolution and seemingly on the basis of considerations of the Bank, therefore, the question of arbitrariness and lack of assigning reasons etc. had no relevance to the matter---Provisions of Art.25 of the Constitution did not help the cause of the employees and no case of discrimination in terms of said Article had been made out---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

(l) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Where a case was not made out in terms of Art. 184(3) of the Constitution, jurisdiction should not be exercised on the plea of pity, compassion and humanitarian reasons only.

Muhammad Akram Sheikh, Senior Advocate Supreme Court (assisted by Hassan Murtaza, Advocate, Sajeel Shahryar Swati, Advocate and Syed Riaz Hussain, Advocate) and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court (assisted by Gohar Ali Khan, Advocate and Kashif Ali Malik, Advocate) and M.S. Khattak, Advocate-on-Record for Respondents.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicants (in C.M.A. No.1899 of 2012).

Sher Muhammad Baloch, Applicant in person (in H.R.C. 14127-S of 2009 and H.R.C. 13486-S of 2010).

Dates of hearing: 15th, 16th and 17th October, 2012.

2014 P L C (C.S.) 665

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

HAROON MUHAMMAD KHAN and others

Versus

RUKHSANA YASMEEN and others

Civil Appeals Nos.420 to 430 of 2012, decided on 18th February, 2013.

(On appeal from judgment of Federal Service Tribunal, Islamabad dated 2-12-2011 passed in Appeals Nos.1531(R)CS/2011, 1532(R)CS/2011, 1550(R)CS/2011, 1562(R)CS/2011, 1626(R)CS/2011, 1640(R)CS/2011 to 1642(R)CS/2011, 1658(R)CS/2011, 1807(R)CS/2011 and 312(P)/CS/2011.)

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---Civil Servants (Seniority) Rules, 1993, R.4 (b)---Service Tribunals Act (LXX of 1973), S.4 (1) proviso (b)---Tribunal Office Memorandum No.6/2/2009-CP-II, dated 12-9-2009 (O.M.), Establishment Division---Seniority list---Length of service---Creation of new group---Condemned unheard, principle of---Government created Inland Revenue Service by inducting officials by way of transfer from other service groups---Appellants were aggrieved of seniority list prepared in newly created service group and contended that seniority had not been fixed on the basis of length of service and they were condemned unheard---Appeal to Service Tribunal was dismissed and seniority list was maintained---Validity---Appellants were party to proceedings before Service Tribunal, notices were duly issued to them and there was strong presumption against appellants that they were well aware about such proceedings---Appellants were afforded full opportunity of hearing in appeals before Service Tribunal, wherein they had already agitated all their grievances, which had been discussed and were answered in judgment of Service Tribunal, therefore, due opportunity of hearing was provided to appellants before passing of judgment by Service Tribunal---Mere length of service was no criteria for determining seniority of a government servant---Promotion and seniority was not a vested right in line with the language of Ss.8 & 9 of Civil Servants Act, 1973, read with S.4(1) proviso (b) of Service Tribunals Act, 1973---Supreme Court declined to interfere in seniority list prepared by authorities and judgment passed by Service Tribunal---Appeal was dismissed in circumstances.

Muhammad Nadeem Arif v. Inspector-General of Police 2010 PLC (C.S.) 924 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 rel.

Abdur Rahim Bhatti, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 420 to 430 of 2012).

Appellant No.2 in person (in Civil Appeals Nos.420, 421 and 430 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondent No. 1 (in Civil Appeals Nos. 421 to 423, 425 and 429 of 2012).

Athar Minallah, Advocate Supreme Court for Respondent No.1 (in Civil Appeals Nos.421, 422 and 427 of 2012).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Majid, Secretary, FBR for Respondent No.3 (in Civil Appeals Nos.420 to 429 of 2012) and for Respondent No.4 (in Civil Appeals Nos.425, 427 and 430 of 2012).

Nemo for other Respondents (in all cases).

Dates of hearing: 22nd, 23rd, 31st January and 1st February, 2013.

2014 P L C (C.S.) 831

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

FEDERATION OF PAKISTAN through Secretary

Versus

SULTAN AHMAD SHAMS and 17 others

Civil Appeals Nos.581 to 598 of 2012, decided on 7th August, 2013.

(On appeal against a common Judgment dated 22-2-2012, passed by the Federal Service Tribunal, Islamabad, in Appeals Nos.1520(R)CS/2011, 1521(R)CS/2011, 1522-A(R)CS/2011, 1638(R)CS/2011, 1728(R)CS/2011, 1801(R)CS/2011, 1836(R)CS/2011, 1837(R)/CS/2011, 1838(R)CS/2011, 1990(R)CS/2011, 2026(R)CS/2011, 2031(R)CS/2011, 2041(R)CS/2011, 2042(R)CS/2011, 2054(R)CS/2011, 2055(R)CS/2011, 2071(R)CS/2011, 2072(R)CS/2011.)

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

----S. 4---Civil Service Regulations, Regln. 486---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether Special Additional Allowance, Special Relief Allowance, Ad hoc Relief Allowance and Dearness Allowance etc. were liable to be included in pensionable emoluments and were reckonable towards calculation of pension under the law.

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

----S. 4---Civil Service Regulations, Regln. 486---Emoluments---Basis of pension---Respondents were retired civil servants who claimed payment of pension by addition of Special Additional Allowance, Special Relief Allowance and Additional Ad hoc Relief---Service Tribunal allowed appeals filed by retired civil servants and directed to include the same in calculation of their pensionary benefits---Validity---Term "emoluments" was to be calculated upon what the officer was receiving immediately before his retirement i.e. Basic Pay, Senior Post Allowance, Special Pay of all types and nature, Personal Pay, Technical Pay, Indexed Pay, Increments accrued during Leave Preparatory to Retirement and any other emoluments which might be specially classed as pay---Term "emoluments" as defined by Civil Service Regulations, Regln. 486, apparently seemed to be all inclusive and though word "include" had been used but it did not seem to enlarge the scope from the one that was enumerated in its items (a) to (h)---Term "include" as appearing in Civil Service Regulations, Regln.486, did not include alien and extraneous elements for calculation of emoluments rather it would confine itself to the incidence attached to or connected with enumerated items (a) to (h)---Service Tribunal in its judgment, omitted to consider Civil Service Regulations, Regln.486, although Federal Government in its para-wise comments had specifically raised defence that Civil Service Regulations, Regln.486 did not include allowances claimed by retired civil servants in emoluments reckonable towards calculation of pension---In Office Memorandums by which the allowances were granted, it was specifically noted that such allowances would not be treated as part of emoluments for the purpose of calculation of pension/gratuity and recovery of house rent---Judgment passed by Service Tribunal was not in accordance with law and suffered from legal infirmity and perversity and, therefore, was not sustainable---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Maqsud Ahmad v. The Accountant-General, Pakistan Revenue Islamabad and 2 others 1999 PLC (C.S.) 5; I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Secretary to the Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCMR 1904; Khursheed Latif and others v. Federation of Pakistan and others 2010 SCMR 1081 and N.P.D. Namboodripad v. Union of India AIR 2007 SC 1782 ref.

(c) Constitution of Pakistan---

----Art. 25---Civil servants on duty and retired---Classification---Discrimination---Pensioners have been classified as a separate group/class from the one, who are in service, the question of discrimination or violation of Art. 25 of the Constitution does not arise as the two groups are not to be dealt with in the same manner.

Dil Muhammad Alizai, D.A.-G. for Appellant.

Muhammad Munir Piracha, Senior Advocate Supreme Court for Respondents (in C.As. Nos. 581, 582, 584, 589, 591, 594 and 598 of 2012).

Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondents (in C.As. Nos.586 and 588 of 2012).

Respondent in person (in C.A. No.583 of 2012).

Respondent in person (in C.M.A. No.4451 of 2012).

Nemo for Respondents (in other cases).

Date of hearing: 11th February, 2013.

2014 P L C (C.S.) 884

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Iqbal Hameedur Rahman, JJ

Civil Petition No.2052 of 2013

SARFRAZ SALEEM

Versus

FEDERATION OF PAKISTAN and others

(On appeal from judgment of Lahore High Court, Lahore dated 11-11-2013, passed in I.C.A. No.98 of 2013).

Civil Petition No.2081 of 2013

ZAFAR ABBAS---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from judgment of Islamabad High Court, Islamabad dated 11-12-2013, passed in Writ Petition No.4513 of 2013).

Civil Petitions Nos.2052 and 2081 of 2013, decided on 16th January, 2014.

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

----S. 3---Constitution of Pakistan Arts.212(2), 199, 4 & 10A---Civil service---Bar of jurisdiction under Art.212(2) of the Constitution---Scope---Non-appointment of Chairman, Federal Service Tribunal---Effect---Constitutional petition relating to a service matter was filed before the High Court due to non-functioning of Federal Service Tribunal on account of non-appointment of its Chairman---Maintainability---Bar under Art.212(2) of the Constitution could only come into operation when the Administrative Court or Tribunal in terms of S.3(1) of Service Tribunals Act, 1973 was "established"---Interpretation of the word "establishment" of an Administrative Court or Tribunal could not be narrowed down to mere completion of paper by way of some appropriate legislation, unless it was established in a manner that it was functional and exercising jurisdiction in accordance with law---Physical existence and functioning of an Administrative Court or Tribunal was sine qua non for attracting bar of jurisdiction under Art.212(2) of the Constitution---Litigant having a remedy before such an Administrative Court or Tribunal, could not be left in a vacuum for an indefinite period due to non-establishment of such court or tribunal---High Court's dismissal of constitutional petition in such circumstances on basis of bar of jurisdiction under Art. 212(2) of the Constitution would be contrary to the principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Arts. 4 & 10A of the Constitution---Constitutional petition should be entertained and proceeded before the High Court in accordance with law, until establishment and functioning of the Federal Service Tribunal, as bar of Art.212(2) of the Constitution would not apply to such proceedings---Appeal was allowed accordingly with the direction to Federal Government to expedite appointment of Chairman, Federal Service Tribunal in terms of S.3 of Service Tribunals Act, 1973 and complete such process within 30 days.

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

----S. 3---Constitution of Pakistan, Arts.212(2) & 199---Civil service---Constitutional petition before High Court under Art.199 of the Constitution---Maintainability---Bar of jurisdiction under Art.212(2) of the Constitution---Scope---Non-appointment of Chairman, Federal Service Tribunal---Effect---For establishment of Service Tribunal, appointment of its Chairman by the President, with prescribed qualification was a sine qua non and unless such appointment in terms of S.3(3)(a) of Service Tribunals Act, 1973 was made, there was no Tribunal in existence, so as to attract the bar of jurisdiction contained in Art.212(2) of the Constitution---Bar on jurisdiction of High Court under Art.212(2) of the Constitution would not come into play till the Federal Service Tribunal was established in terms of S.3(3)(a) of Service Tribunals Act, 1973, and it was actually functional so as to attend the grievance of a civil servant under its jurisdiction.

(c) Constitution of Pakistan---

----Arts. 4 & 10A---Equal protection of law---Scope---Articles 4 & 10A of the Constitution ensured that all individuals should enjoy equal protection of law and should be treated in accordance with law, which was their inalienable right---Every person for determination of his civil rights and obligations or in any criminal charge against him should be entitled to fair trial and due process.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292 and Contempt Proceedings against Syed Yousuf Raza Gillani PLD 2012 SC 533 rel.

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court (in C.P. 2052/13), Kh. Azhar Rasheed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in C.P. 2081/13) for Petitioners.

Shah Khawar, Addl. Attorney-General for the Federation.

Muhammad Naeem, Superintendent (PASB) for Respondent No.2 (in C.P. No.2052 of 2013).

Date of hearing: 16th January, 2014.

2014 P L C (C.S.) 939

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

SENATE SECRETARIAT through Chairman and another

Versus

Miss FAIQA ABDUL HAYEE

Civil Petition No.1127 of 2013, decided on 7th November, 2013.

(On appeal against the judgment dated 27-6-2013 of the Islamabad High Court, Islamabad passed in I.C.A. No.593 of 2013.)

(a) Civil service---

----Deputation---Permanent absorption, right to---Scope---Absorption was not a vested right of an employee and the employer had the right and authority to terminate the deputation period or repatriate the employee back to his/her parent department.

Nazir Ahmed Rana v. Chairman, Board of Intermediate and Secondary Education and others 1998 SCMR 1172; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others 2010 SCMR 378; Contempt proceedings against Chief Secretary Sindh and others 2013 SCMR 1752; Asma Shaheen and 19 others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and 3 others 2013 PLC (C.S.) 391 and Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2013 PLC (C.S.) 915 ref.

(b) Civil service---

----Deputation---Permanent absorption of an employee on deputation---Departmental Promotional Committee, recommendations of---Legality---Performance Evaluation Report of an employee prepared by an officer, who subsequently was promoted and sat as Chairman of Departmental Promotional Committee at the time of considering said employee's permanent absorption---Effect---By sitting in the Promotional Committee and chairing it, such officer would render the recommendations of the Promotional Committee illegal---Illustration.

(c) Civil service---

----Deputation---Permanent absorption, right to---Scope---Mala fides, bias and discriminatory treatment showed by competent authority in not selecting employee for permanent absorption---Employee was transferred to Senate Secretariat on deputation basis, and during her service her permanent absorption was initiated and in such regard a NOC was also sought and accordingly granted by her parent department---Subsequently vide impugned notification she was repatriated back to her original department on the basis that Departmental Promotional Committee reviewed her Annual Confidential Reports sent from her parent department and found adverse remarks therein and her conduct and work in Senate Secretariat also remained unsatisfactory---Plea of employee that her absorption was refused because of personal mala fides of a person who initially served as Special Secretary and then was promoted as Secretary of the Senate; that said person reported about her work in his capacity as Special Secretary, and subsequently same person after becoming Secretary of Senate, sat as Chairman of Departmental Promotional Committee and considered his own reports; that Departmental Promotional Committee recommended permanent absorption of one of her colleagues despite the fact that no NOC was received from his parent department; that another of her colleague was appointed on deputation much after her but was still permanently absorbed much before the expiry of his deputation period, which showed mala fide and discrimination against her---Validity---Employee in question was recommended for promotion even in her Annual Confidential Reports, which contained adverse remarks---Such remarks reflected that employee was in a habit of expressing her opinion to the discomfort of her superiors, and in most cases such remarks would not be considered adverse remarks---Former Secretary of Senate had countersigned a Performance Evaluation Report of the employee observing that her performance was up to the mark and she was better than most officers---Many eminent senators had issued certificates to the employee wherein they had commended her work and considered her to be a true professional, but neither the Special Secretary nor the Departmental Promotional Committee considered such certificates---Chairman of Departmental Promotional Committee, who was Special Secretary at the time of preparing detrimental reports of employee, should have excused himself from sitting on the Promotional Committee when case of employee was being considered---Absorption case of one of employee's colleagues was taken up by the Departmental Promotional Committee despite the fact that no NOC was received from his parent department, while another colleague was permanently absorbed within less than two years of his deputation period---Employee in question had been discriminated against---Impugned notification whereby employee was sent back to her original department, was issued without any cogent and valid reasons and on the basis of personal bias, mala fide and discrimination---Impugned judgment of Division Bench of High Court was correct, whereby impugned notification was set aside, and case of employee's permanent absorption was remanded to the Senate Secretariat with the direction to pass a speaking order ignoring derogatory remarks in her Personal Evaluation Reports and taking into account NOC issued by her parent department, and allowing her to resume her duties from the date she was refused permission to attend office and also pay her salaries---Petition for leave to appeal was dismissed in circumstances.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 7th November, 2013.

2014 P L C (C.S.) 961

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, CJ, Khilji Arif Hussain and Sh. Azmat Saeed, JJ

Syed NAZIR GILLANI

Versus

PAKISTAN RED CRESCENT SOCIETY and another

C.R.P. No.163 of 2005 in Civil Appeal No.1080 of 1998, decided on 11th February, 2014.

(To review this Court's judgment dated 1-6-2005 passed in Civil Appeal No.1080 of 1998)

Pakistan Red Crescent Society Act (XV of 1920)---

----S. 5---Constitution of Pakistan, Arts. 199 & 188---Service Rules framed by Pakistan Red Crescent Society---Non-statutory in nature---Constitutional petition filed before High Court by an employee of Pakistan Red Crescent Society challenging his removal from service---Maintainability---(Service) Rules framed by Pakistan Red Crescent Society were non-statutory and on such count constitutional petition filed by its employee before the High Court challenging his removal from service would not be maintainable---Review petition was dismissed accordingly.

Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court along with Aftab Ali, Assistant Director for Respondents.

Date of hearing: 11th February, 2014.

2014 P L C (C.S.) 1049

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, CJ., Amir Hani Muslim and Ejaz Afzal Khan, JJ

Messrs OIL AND GAS DEVELOPMENT COMPANY LTD., ISLAMABAD through Chief Executive Officer/MD and another

Versus

MUHAMMAD AZHAR CHUGHTAI

Civil Appeal No.800 of 2013 and C.M.A. No.4996 of 2013, decided on 18th December, 2013.

(On appeal from the judgment dated 10-6-2013 passed by the Islamabad High Court, Islamabad in Intra Court Appeal No.612 of 2013)

Oil and Gas Development Company Limited Employees Service Rules, 2002---

----R. 2(k)---Group (EG-VII) employee of Oil and Gas Development Company (OGDCL)---Termination of service of such employee by Managing Director, OGDCL---Legality---Plea of OGDCL that appointment order of employee in question contained a clause which authorized either the Board of OGDCL or its assignee to terminate appointment by giving an advance notice; and that such assignment was duly made in favour of Managing Director, OGDCL, who could pass termination order---Plea of employee that he was not a contract employee within the meaning of R. 2(k) of Oil and Gas Development Company Limited Employees Service Rules, 2002; that Board of OGDCL did assign its power to Managing Director for terminating appointments, but such delegation/assignment was for contract employees only, therefore his services could not have been terminated by the assignee/Managing Director, OGDCL---Validity---Terms and conditions mentioned in appointment order of employee in question stated that his services could be terminated by OGDCL or its assignee in its discretion---Board of OGDCL had authorized the Managing Director to terminate "contracts of employment" of officers up to the level of Managers (EG-VII)---Admittedly employee in question was a Group (EG-VII) employee but his appointment was not a contract employment---Delegation of power to terminate services by Board of OGDCL to its Managing Director, therefore, would not apply to the present employee---High Court had rightly set aside termination order of employee---Appeal was dismissed by Supreme Court accordingly.

Azid Nafees, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellants.

Ch. Afrasiab Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 18th December, 2013.

2014 P L C (C.S.) 1077

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

S. MASOOD ABBAS RIZVI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

C.P.L.A. No.593-K of 2013, decided on 27th February, 2014.

(On appeal from Order dated 20-8-2013 of the Sindh High Court, passed in C.P. No.D-3112 of 2013)

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

----S. 10---Posting on deputation---Deputationist, right of---Scope---Deputationist repatriated to his parent department without assigning of any reasons--- Legality--- Deputationist did not have any vested right to remain on the post for ever or for a stipulated period---Deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason---Parent department of deputationist was not obliged in law, to assign any reasons for his repatriation.

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

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

----Ss. 2(b)(i) & 10---Posting on deputation---Deputationist, status of---Scope---Civil servant, definition of---Deputationist lost his status as a civil servant during the period he was on deputation.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 27th February, 2014.

2014 P L C (C.S.) 1093

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

ORYA MAQBOOL ABBASI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

Constitutional Petition No.22 of 2013, decided on 3rd October, 2013.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 7-A & 8---Revised Promotion Policy, 2007---Promotion---Selection post---Supreme Court observed that it would be great achievement, if it is added in the Policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including lifestyle, expenses on children education, expenses on children marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation.

Policy of promotion (revised in 2007) enjoys the force of law, therefore, has to be adhered to strictly.

The Central Selection Board, being semi judicial forum, has been authorised to examine the cases of the officers justly and fairly.

The competent authority i.e., Government as well as CSB has to adhere strictly to the law and the rules as well as the instructions on the subject. If any action is taken against any of the officers denying his case for promotion, such action would be unlawful and would have no leg to stand. Two clauses i.e. (e) and (f) of Item-5 of Promotion Policy are very important, and while examining clauses (e), (f) and (h) relating to quality and output of work, variety of experience and top management potential, stringent provisions have to be incorporated to make such Promotion Policy to provide objective criteria for promotion.

It would be great achievement, if it is added in the Policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including lifestyle, expenses on children education, expenses on children marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation as it has been observed in his speech by the Quaid-e-Azam.

Watan Party v. Chief Executive of Pakistan PLD 2003 SC 74; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; Dr. Mir Alam Jan v. Dr. Muhammad Shehzad 2008 SCMR 960; Saleem Ullah Khan v. Shahid Hamid 2011 SCMR 788; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280 and Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways PLD 2013 Lah. 413; Fazali Rehmani v. Chief Minister N.-W.F.P. PLD 2008 SC 769; Government of Punjab through Secretary Health Department v. Dr. Aman-ul-Haq 2000 SCMR 1805; Babar Hussain Shah v. Mujeeb Ahmed Khan 2012 SCMR 1235; President Balochistan High Court Bar Association v. Federation of Pakistan 2012 SCMR 1958; Federation of Pakistan through Secretary Establishment v. Liaqat Ali and Tauqir Ahmad Faiq Civil Petitions Nos. 836 and 837 of 2006; Tariq Aziz-ud-Din's case 2010 SCMR 1301 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 rel.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 7-A & 8---Central Selection Board, duty of---Scope---Central Selection Board being a semi judicial forum would have to examine cases of officers justly and fairly.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction under Art. 184(3) of the Constitution---Scope---Illegal and arbitrary decision would militate against rule of law---Court in exercise of its power of judicial review could interfere in such decision---Principles.

Federation of Pakistan through Secretary Establishment v. Liaqat Ali and Tauqir Ahmad Faiq Civil Petitions Nos.836 and 837 of 2006 rel.

(d) Civil service---

----Role of civil servants in management of Government---Importance stated.

Officers relating to the management in Government of Pakistan, notwithstanding whether they belong to Pakistan Administrative Service or Secretariat Group or any other group, fact remains that individuals of such cadre play a decisive role in shaping the destiny of the nation. Reference in this behalf to highlight their importance can conveniently be made to the speech of Quaid-i-Azam Muhammad Ali Jinnah delivered in April, 1948, to the civil officers in Peshawar.

Petitioner in person.

Arshad Ali Chaudhry, Advocate-on-Record for Applicant (in C.M.A. No.2903 of 2013).

Shah Khawar, Additional AGP, Raja Abdul Ghafoor, Advocate-on-Record, Malik Shakeel, J.S. (Litigation) and Shahbaz Karmani, S.O. for Estt. Div. & CSB.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.19, 61 and 81.

Rashid A. Rizvi, Senior Advocate Supreme Court for Respondent No.82.

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents Nos. 23, 47, 49, 53, 57 and 74 to 76.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos.28, 43, 52 to 54 and 58.

Saqib Aleem, Additional Secretary, Wafaqi Mohtasib, Capt. Retd. Muhammad Aftab, J.S. (Cabinet) and M. Shabbir Ahmed, Additional Secretary, MOI, Respondents (in person).

Date of hearing: 12th July, 2013.

2014 P L C (C.S.) 1211

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

Dr. ALYAS QADEER TAHIR

Versus

SECRETARY M/O EDUCATION (NOW M/O CADD), ISLAMABAD and others

C.A. No.780 of 2013, decided on 23rd January, 2014.

(On appeal against the judgment dated 10-4-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No.397(R)CS/2011)

Civil service---

----Promotion--- Conditions/eligibility---Rules / conditions/qualification for promotion to higher grade not existing at time of appointment of civil servant but only enacted subsequent to appointment---Legality---Contention of civil servant that requirement of a Master's degree for promotion did not exist at the time of his appointment, therefore it could not be made a requirement for promotion at a subsequent stage just to debar him from promotion to the next scale---Validity---Such contention was not legally and logically tenable---Enactments of rules and amendments therein was the prerogative of the Government---Government could enact and amend rules according to the needs and exigencies of service---Institutional interest shaped structure of a service and not individual interest---Although at the time of appointment of civil servant in question, no rules (for promotion) were enacted or enforced but that did not mean that the institution or department could not change the rules subsequently---Institution's/department's right to improve and update its service structure to keep pace with modern age could not be restrained or restricted on the ground that at the time of appointment of a civil servant, a certain qualification was not a requirement for promotion---Vires or validity of rules or amendments therein attending to qualification for promotion could not be looked askance at, when there was absolutely nothing in the rules to show that they were either person specific or an off shoot of mala fides--- Appeal was allowed accordingly.

Government of the Punjab and others v. Muhammad Zafar Bhatti and others 2004 PLC (C.S.) 881; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; The Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmed Khan PLD 1960 SC 81; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155 and M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927 ref.

M. Aftab Alam Rana, Advocate Supreme Court for Appellant.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No.4.

Ex parte: Respondents Nos.1 to 3.

Date of hearing: 23rd January, 2014.

2014 P L C (C.S.) 1239

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Amir Hani Muslim and Muhammad Ather Saeed, JJ

MUHAMMAD SHEHZAD ZAHEER

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others

Civil Appeal No.708 of 2009 out of Civil Petition No.507 of 2008, decided on 6th March, 2014.

(On appeal from the judgment dated 31-1-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.345(K)CS/2001)

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

----R. 9---Constitution of Pakistan, Art. 13---Procedure of inquiry against government servants working on deputation outside their department or service to which they belong---Reinstatement in service due to procedural flaws in conducting inquiry---Whether such reinstatement amounted to exoneration---Double jeopardy---Scope---Appellant joined government service in Commerce and Trade Group (parent department/lending authority), however he was transferred to Central Board of Revenue ("borrowing authority"), by whom he was posted as Assistant Commissioner, income tax---Appellant while serving as Assistant Commissioner was accused of extorting illegal gratification from tax payers---Inquiry was conducted by the borrowing authority and appellant was found guilty of misconduct and corruption---Borrowing authority dismissed appellant from service under S.9 of Government Servants (Efficiency and Discipline) Rules, 1973 but later on he was reinstated in service for the reason that he had been removed without following certain conditions laid down under S. 9 of Government Servants (Efficiency and Discipline) Rules, 1973---Appellant was retransferred/sent back to his parent department i.e. lending authority---Subsequently parent department of appellant issued him a show-cause notice based on the previous allegations of extorting illegal gratification, and removed him from service---Contention of appellant that he had been subjected to double jeopardy as borrowing authority removed him from service on allegations of extorting illegal gratification, and then his dismissal order was set aside and he was reinstated in service, but on the basis of same allegations a show-cause notice was issued by the parent department and he was once again dismissed from service; that parent department had been directed by Establishment Division to conduct its own fresh inquiry, but same was not done and instead he was dismissed from service on basis of earlier inquiry conducted by the borrowing authority---Validity---Section 9 of Government Servants (Efficiency and Discipline) Rules, 1973 (as it stood before its amendment in the year 2001) provided that borrowing authority could take action against an officer of the lending authority by initiating proceedings against him under the Rules subject to certain conditions---Borrowing authority, in the present case, took action against the appellant without fulfilling the said conditions and therefore, appellant was reinstated into service---Appellant was reinstated into service not because he had been exonerated from the allegations but because there were certain procedural flaws in the procedure adopted for his dismissal, therefore contention regarding double jeopardy was without weight---After reinstatement by borrowing authority appellant was sent back to his parent department/lending authority and entire material on basis of which appellant was removed was sent to the parent department---Upon appellant's retransfer to his parent department, Establishment Division had issued a direction to the parent department to conduct fresh disciplinary proceedings against appellant from the stage the borrowing authority was required to transmit to the lending authority the records of proceedings, which included the inquiry already conducted, therefore contention that entire disciplinary proceedings including inquiry had to be conducted afresh was without force---Proceedings against appellant had been conducted in accordance with S. 9 of Government Servants (Efficiency and Discipline) Rules, 1973, and principles of natural justice had been followed and the appellant had been provided opportunities to reply to the show-cause notices and statements of allegations at both stages and also given a chance of personal hearing---Appeal was dismissed accordingly.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Sajid Ilyas Bhatti, Deputy Attorney-General, Omar Hameed, Joint Secretary M/o Commerce, Fahad Raza, Section Officer M/o Commerce and Rana Bilal, Section Officer M/o Commerce for Respondents Nos.1 and 3.

Imran Fazil, Advocate Supreme Court for Respondent No.2.

Date of hearing: 6th March, 2014.

2014 P L C (C.S.) 1250

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD through Chairman and another

Versus

AMNA AFRIDI and others

Civil Petition No.200 of 2013, decided on 13th August, 2013.

(On appeal from the judgment dated 4-12-2012 passed by the Islamabad High Court, Islamabad in W.P. No.3512 of 2012)

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

----Ss. 7 & 10---Federal Public Service Commission Rules for Competition Examination (CSS)---Allocation of group---Mistake by Federal Public Service Commission---Vacancy, increased by High Court---Scope---Commission was aggrieved of judgment passed by High Court increasing one vacancy in specific service group---Validity---High Court in its judgment admitted the fact of mistake and found respondent candidate entitled to preference over other candidate but on erroneous assumption that respondent candidate had acquired vested right proceeded to direct her adjustment also in the same group by creating one additional vacancy---Such finding of High Court could not be sustained as there was no room in rules and policy for creating one additional vacancy, when it was found that candidate was entitled to be selected for the same group---High Court was not justified to interfere with rules and policy of government that of increasing of fixed quota/vacancies from 3 to 4---Judgment of High Court to the extent of adjustment of respondent candidate was without any justification and not valid in the eye of law and therefore, the same was set aside---Appeal was allowed in circumstances.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 rel.

Imran-ul-Haq, DAG along with Sajid Ilyas Bhatti, DAG for Petitioners.

Mahmood Ahmed, Director Legal, FPSC, Siddique Sajid, Director, CSS, Kamran Raffat, A.D. Legal, FPSC and Khawaja Khurram Naeem, Additional Director, CSA for Respondents.

Respondent No.2 in person.

Date of hearing: 13th August, 2013.

2014 P L C (C.S.) 1320

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

PROVINCE OF SINDH and others

Versus

GHULAM HASSAN BUGHIO

Civil Petition No.302-K of 2013, decided on 13th November, 2013.

(On appeal from the judgment dated 15-5-2013 of the High Court of Sindh, Karachi passed in C.P. No.D-3506 of 2011.)

(a) Constitution of Pakistan---

----Arts. 212 & 199---Constitutional petition before High Court under Art.199 of the Constitution by a civil servant, before joining service, challenging his allocation to a particular post/group despite availability of a seat in the group chosen by him as his first choice---Maintainability---Such petition did not relate to terms and conditions of service of civil servant but his claim for allocation to a particular post/department before joining service---Constitutional petition in question was not barred by Art.212 of the Constitution and was maintainable.

(b) Sindh Public Service Commission Recruitment Management Regulation 2006---

----Reglns. 0329 & 1108---Constitution of Pakistan, Art. 185(3)---Re-allocation of post to candidate next on the merit list after non-occupation of such post---Scope---Post "falling vacant" and post "not occupied at all"---Difference---Provincial Government advertised combined competitive examination to fill posts of Deputy District Officer (Revenue) and Section Officers---Candidate/respondent sat for said examination and indicated post of Deputy District Officer (Revenue) as his first priority---After successfully passing the examination candidate in question was placed at S.No. 44 of the merit list of nominees, and since all 43 nominees who had surpassed him were given post of Deputy District Officer (Revenue),candidate in question was placed at S.No. 1 of list of Section Officers---Subsequently one of the nominees, who was placed at S.No. 8 of the list of Deputy District Officer (Revenue) opted not to join service---Candidate in question, resultantly, requested Provincial Government to post him as Deputy District Officer (Revenue) since that was his first choice and a vacancy had occurred in the said group due to non-joining of one of the nominees---Provincial Government did not respond to candidate's request, who then filed a constitutional petition before the High Court, which was allowed on the basis that post of Deputy District Officer (Revenue) did not fall vacant but was not occupied at all, therefore such post had to be filled and should have been given to the candidate in question who was next on the merit list---Plea of Provincial Government that in view of Regulations Nos.0329 & 1108 of Sindh Public Service Commission Recruitment Management Regulation 2006, no re-allocation could be made from one post to another post, in which a vacancy arose, and that such vacant post had to be re-advertised---Validity---Regulations No.0329 of Sindh Public Service Commission Recruitment Management Regulation, 2006 only provided that post should be re-advertised when no suitable candidate was available and therefore it was not mandatory that in every case when any vacancy occurred the post had to be re-advertised---Regulation No.1108 also did not create any hurdle in accommodating the candidate in question to the post of Deputy District Officer (Revenue), which was not occupied---Candidate in question was on the top of the list of post of Section Officers and had the same rural domicile as that of the nominee who did not occupy post of Deputy District Officer (Revenue), therefore there was no bar in re-allocating candidate in question to Deputy District Officer(Revenue) group---Judgment of High Court was unexceptionable and did not warrant any interference---Petition for leave to appeal was dismissed in circumstances.

Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through Chairman and others 1993 SCMR 1124 and Dr. Faizur Rehman and others v. N.-W.F.P. Public Service Commission, Peshawar and others 1996 SCMR 589 distinguished.

Adnan Karim, Additional Advocate-General along with Sohail Qureshi, Additional Secretary Services, Abdul Aziz, AD Regional Office Karachi and Hadi Bux Kalhoro, Secretary SPSC for Petitioners.

Respondent in person.

Date of hearing: 13th November, 2013.

2014 P L C (C.S.) 1381

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Qazi Faez Isa, JJ

BADSHAH GUL WAZIR

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Civil Petition No.1080 of 2014, decided on 19th September, 2014.

(On appeal from the judgment dated 9-6-2014 in Writ Petitions Nos.2547-P of 2013 and 2833-P of 2013 passed by the Peshawar High Court of Peshawar).

(a) Khyber Pakhtunkhwa Provincial Ombudsman Act (XIV of 2010)---

----Ss. 4 & 6(2)---Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013), S.5---West Pakistan General Clauses Act (VI of 1956), S.4(1)(b) & (c)---Provincial Ombudsman, office of---Tenure of office---Period of four years---Substantive/accrued right---Amendment repealing/substituting tenure of office of Provincial Ombudsman---Such amendment would not have retrospective effect---Appellant was appointed as Provincial Ombudsman for a period of four years in terms of S.4 of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010, which provided that the Provincial Ombudsman shall hold office for a period of four years---Subsequently Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013) made an amendment in the tenure of office of Provincial Ombudsman by adding that Provincial Ombudsman would hold office for four years or till the age of sixty-two years, whichever was earlier---Before appellant's tenure of four years was complete, he attained the age of 62 years, hence in terms of the amendment he was de-notified as Provincial Ombudsman---Legality---Section 4 of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010 [as amended by S.5 of Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013)] was not given retrospective effect nor did it contain a non-obstante clause---Substituted section, particularly one curtailing substantive rights, did not have "retroactive operation" unless the legislature elected to give it retrospective effect---Amendment made, in the present case, did not contain any element whereby the appointment of appellant as a Provincial Ombudsman was revoked, repealed, withdrawn or cancelled---In the absence of such legislation, the tenure, of appellant could not be curtailed in the exercise of administrative powers---Legislature in its wisdom provided statutory protection to the person holding office of Provincial Ombudsman and envisaged his/her removal only if he/she was guilty of misconduct or was physically or mentally incapacitated to perform his/her duties as provided under S.6(2) of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010---Appellant was appointed as Provincial Ombudsman for a period of four years and no step for his removal was taken pursuant to S.6(2) of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010, therefore, he had to be allowed to continue to hold office till expiry of his term of four years---Supreme Court directed that appellant would continue to hold, office of Provincial Ombudsman for a period of four years---Appeal was allowed accordingly.

Union of India v. Uday Date AIR 1998 Bombay 157; Akhlaque Hussain Advocate's case PLD 1965 (W.P.) Lah. 147 and Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

Lt. Gen. (Retd.) Jamshaid Gulzar and others v. Federation of Pakistan and others Civil Appeals Nos.826, 827, 828 of 2007 and Gulzar Khan v The Government of K.P.K. Civil Appeal No.116 of 2011 distinguished.

(b) Interpretation of statute---

----Amendment/substitution of an enactment---Curtailing substantive right/accrued right--- Retroactive/retrospective operation--- Scope---Substituted section, particularly one curtailing substantive rights, did not have "retroactive operation" unless the legislature elected to give it retrospective effect---Substituted section could not obliterate accrued rights.

Akhlaque Hussain Advocate's case PLD 1965 (W.P.) Lah. 147 and Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

(c) Vested right---

----Vested right---Executive cannot obliterate a vested right.

Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

Asaf Fasihuddin Vardag, Advocate Supreme Court for Appellant.

Abdul Latif Yousafzai, A.-G. Khyber Pakhtunkhwa for Respondent No.1.

Afnan Karim Kundi, Advocate Supreme Court for Respondent No.4.

Date of hearing: 17th September, 2014.

2014 P L C (C.S.) 288

[Supreme Court (AJ&K]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD AKHLAQ

Versus

PRINCIPAL SECRETARY, PRIME MINISTER SECRETARIAT MUZAFFARABAD, AZAD KASHMIR and 2 others

Civil Appeal No.108 of 2010, decided on 19th March, 2012.

(On appeal from the judgment of the Service Tribunal dated 20-1-2010 in Service Appeal No.148 of 2008).

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

----Ss. 3 & 5---Compulsory retirement---Employee who remained absent from the duty for 10 days, was compulsorily retired from service without adopting due process of law, without affording an opportunity of hearing and without concluding an inquiry---Inquiry into the allegation was mandatory under the provisions of Ss.3 & 5 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 and it was mandatory for competent Authority to constitute an inquiry committee; and if after the inquiry and due process of law, the allegation was proved and the competent Authority was satisfied that allegation was proved, civil servant could be proceeded under S.3(2) of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---Under proviso to subsection (2) of S.3 of the said Act, 2001, no opportunity would be given to person where the competent Authority was satisfied that in the interest of security of Azad Jammu and Kashmir or Pakistan or any part thereof, it was not expedient to give such opportunity---Said exception given in the proviso, could not be used arbitrarily---Reason for not providing such opportunity must be borne out from the record---Person could not be removed from service merely on the ground of allegation without proving the same---Hearing was a time tested right based at Maxim "audi alteram partem i.e., nobody could be punished without providing him an opportunity of hearing"---In the present case, no inquiry was conducted against the employee, he was condemned unheard and impugned order had been passed against him in arbitrary manner, without due process of law which was set aside and the employee was restored to service, in circumstances.

Muhammad Khurshid and another v. Secretary Education Schools and 4 others 2011 SCR 175 and Muhammad Irshad v. Medical Superintendent and 3 others 2010 SCR 99 rel.

Kh. Iftikhar Ahmed, Advocate for Appellant.

Ch. Shoukat Aziz, Additional Advocate-General for Respondents.

Date of hearing: 6th March, 2012.

2014 P L C (C.S.) 320

[Supreme Court (AJK)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

EJAZ AHMED

Versus

GUL MUHAMMAD and another

Civil Appeal No.56 of 2011, decided on 8th February, 2012.

(On appeal from the judgment of the High Court dated 9-2-2011 in Writ Petition No.378 of 2005).

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

----S. 44---Writ petition, competency of---Alternative remedy---Scope---Employee of autonomous body---Counsel for respondent urged that as alternate remedy was available to petitioner, writ petition was not competent---Validity---Held, as it was the court to decide that the remedy available was efficacious and speedy; and if an order on the face of it was illegal, that could be challenged by way of filing writ petition---Alternate remedy must be adequate, efficacious, convenient, beneficial, speedy and effective---When the court would think proper that the order impugned in the writ petition was without jurisdiction and unlawful, there would be no bar in filing a writ petition---Court would not hesitate in entertaining the writ petition, although alternate remedy was available---Where matter pertained to terms and conditions of service of employee of an autonomous body and the employee was not governed by Azad Jammu and Kashmir Civil Servants Act, 1976 and Rules framed thereunder, writ petition was competent.

Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632; Iqbal Razzaq Butt v. Abdus Salam Butt and others 1999 MLD 634; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 and Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 rel.

Bostan Chaudhry, Advocate for Appellant.

Ch. M. Reaz Alam, Advocate for Respondents.

Date of hearing: 27th January, 2012.

2014 P L C (C.S.) 442

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and

Raja Saeed Akram Khan, JJ

IMRAN ALI

Versus

PUBLIC SERVICE COMMISSION, AZAD JAMMU AND KASHMIR through

Secretary and 4 others

Civil Appeal No.92 of 2011, decided on 11th January, 2013.

(On appeal from the judgment of the High Court, dated 27-1-2011 in Writ Petition No.909 of 2010).

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

----S. 42---Posts of Lecturer reserved for refugees advertised by Azad Jammu and Kashmir Public Service Commission---Refusal of Commission to consider petitioner against such quota for he being Mangla Dam displaced State Subject settled in Pakistan---Dismissal of petitioner's writ petition by High Court---Validity---Supreme Court granted leave to appeal to consider question as to whether State Subjects of Jammu and Kashmir, who had permanently settled in Pakistan either being Mangla Dam displaced persons or for some other reasons by compulsion could be treated as "refugees settled in Pakistan" for purpose of eligibility for appointment in service of Azad Jammu and Kashmir against quota reserved for refugees settled in Pakistan?

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

----Ss. 4, 42, 42-A & 44---Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970, S.2---Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, S.9---Azad Jammu and Kashmir Supreme Court Rules, 1978, Rr.1, 4, 5 & 6---Posts of Lecturer reserved for refugees advertised by Azad Jammu and Kashmir Public Service Commission---Refusal of Commission to consider petitioner against such quota for he being Mangla Darn displaced State Subject settled in Pakistan---Dismissal of petitioner's writ petition by High Court---Validity---Petitioner's father was originally resident of Mirpur, Azad Jammu and Kashmir, wherefrom he, due to construction of Mangla Dam was forced to migrate to District Sargodha, Pakistan, where petitioner was born---Quota reserved initially for refugees of Jammu and Kashmir settled in Pakistan vide Notification dated 12-3-1972 had been changed through Notification dated 24-8-1972 by using therein words "persons who migrated from any of occupied Kashmir and settled in Pakistan"---Quota in such notifications had been reserved for refugees from occupied Kashmir settled in Pakistan and not for State Subjects having migrated to Pakistan under compulsion, thus, Mangla Dam displaced persons settled in Pakistan could not be considered as "refugees" for purpose of such notifications---Right to be enrolled as voter and contest election and right to secure post in service of Azad Jammu and Kashmir could not be claimed on strength of eligibility to contest elections on a seat reserved for State Subjects settled in Pakistan---Petitioner being a State Subject was entitled to apply for and appointment against a post in service of Azad Jammu and Kashmir under service laws, but he was being deprived of such Fundamental Right by Government due to such notifications---Right guaranteed in Constitution could not be taken away through a subordinate law or notification issued thereunder---State would be bound to provide equal protection of service rights to Mangla Dam displaced persons settled in Pakistan or other category of State Subjects migrated to Pakistan under compulsion---Petitioner was entitled to similar treatment of his service rights as guaranteed under Fundamental Right No.4(15) of the Interim Constitution Act to other State Subjects---Supreme Court accepted appeal while directing Government to make immediate arrangements for equal protection of rights including right of service and admission in profession Colleges/Universities of Azad Jammu and Kashmir and Pakistan for State Subjects displaced due to construction of Mangla Dam or any other national cause and settled in Pakistan and directed Commission to recommend petitioner for appointment against such post, if he fell in merit position after interview.

Oxford Dictionary, 1961 Edition page 356; Oxford Advanced Learner's Dictionary, 8th Edition page 1280; Black's Law Dictionary 8th Edition page 1307 and Webster's Third New International Dictionary, Volume II, page 1910 ref.

Jammu and Kashmir Tehrik Amal Party and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 AJ&K 95; Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others 1994 SCR 341; Azad Jammu and Kashmir Government v. Javaid Iqbal Khawaja and another 1996 PLC (C.S.) 155; Azad Government and another v. Raja Muhammad Nasab Khan and 20 others 2011 SCR 257 and Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761 rel.

(c) Words and phrases---

----"Refugee"---Definition.

In order to avoid persecution and massacre, due to political, religious or social reasons, when some persons are expelled from country of their origin by the Government and they take refuge in another country or State for protection and such persons who are escaped from perceived injustice or fundamental incompatibility with their own State fall in the definition of "refugees". The category of such persons, who are eligible for international assistance and adversely affected by a particular social or political event, may be termed as refugees under the international refugee definition.

(d) Words and phrases---

----"Refugee"---Definition stated.

(e) Interpretation of statutes---

----When two interpretations were possible, then one beneficial to the subject would be adopted.

Ch. Javaid Mehdi v. Chief Election Commissioner and others PLJ 2004 SC (AJ&K) 245; Messrs Amin Spinning Mills v. Deputy Collector Central Excise and others 2004 SCR 223 and Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 rel.

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

----S. 4---Fundamental Rights guaranteed in Constitution---Such right could not be taken away through a subordinate law or notification issued thereunder.

Jammu and Kashmir Tehrik Amal Party and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 AJ&K 95; Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others 1994 SCR 341; Azad Jammu and Kashmir Government v. Javaid Iqbal Khawaja and another 1996 PLC (C.S.) 155 and Azad Government and another v. Raja Muhammad Nasab Khan and 20 others 2011 SCR 257 rel.

Ch. Muhammad Latif, Advocate for Appellant.

Ch. Shokat Aziz, Additional Advocate-General for Respondents.

Abdul Rasheed Abbasi and Raja Muhammad Hanif Khan, Advocate Amicus Curiae.

Date of hearing: 15th November, 2012.

2014 P L C (C.S.) 520

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, J

Ch. MUHAMMAD SULEMAN

Versus

DISTRICT ACCOUNTS OFFICER, MIRPUR, AK and 7 others

Civil Review No.8 of 2006, decided on 21st March, 2012.

(In the matter of review from the order of this Court dated 13-4-2006 in Civil P.L.A. No.48 of 2006)

Azad Jammu and Kashmir Civil Servants Pay Revision Rules, 1977---

----R. 8---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVI---Entitlement to move-over in higher grade---Review of Supreme Court judgment---Authority sanctioned move-over to the petitioner in grade, B-18 w.e.f. 1-12-1999 after his retirement---Order sanctioning said move-over held the field and neither it had been amended nor challenged by the petitioner, rather he had himself claimed that he was entitled to that very move-over---Petitioner claimed to be entitled for move-over in grade B-19, w.e.f. 1-12-1995, four years prior to move-over in grade, B-18---Such claim had rightly been refused by the High Court as well as Supreme Court through the order under review---Supreme Court, in the judgment under review, had rightly observed that the petitioner, was not entitled to move-over in grade B-19---No substantial legal error or mistake was found in the impugned order---Petitioner had failed in justifying his claim according to statutory provision---Powers to grant grades, was a sacred trust bestowed upon the authorities, which power could not be exercised like to distribute palms as charity---Order accordingly.

Muhammad Rafique's case 1995 SCMR 1549 and 2006 PLC 460 ref.

Ch. Jehandad Khan, Advocate for Petitioner.

Bostan Chaudhry, Advocate for Respondents.

Date of hearing: 29th February, 2011.

2014 P L C (C.S.) 534

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

MUHAMMAD ASIF KHAN and 173 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 14 others

Civil Appeal No.108 of 2012, decided on 1st February, 2013.

(On appeal from the judgment of the High Court, dated 3-9-2012 in Writ Petitions Nos.700 of 2011, 1388 and 1452 of 2012).

(a) Police Rules, 1934---

----R. 2.9(1)(2)(3)---Induction in Additional Police Force---Absorption in Regular Police Force---Scope---Every person inducted in the Additional Police Force was not to be absorbed in the Regular Police Force---Persons, who were recruited in Additional Police, being trained Police persons and having got the experience, whenever permanent vacancies would occur, it was enjoined upon the authorities to induct them under R.2.9(2) of Police Rules, 1934 after evaluating the suitability and fitness---Only condition attached was that at the occurrence of vacancies, their suitability and eligibility was to be judged.

Ghulam Hassan Punjabi v. Government of Azad J&K and others PLD 1957 SC (Pak.) 219; State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others PLD 1975 AJ&K 81; 1993 SCMR 1394 and 2010 PTD (Trib.) 519 ref.

(b) Interpretation of statutes---

----Two "Co-ordinate Sections" of a statute apparently inconsistent---Duty of Court---Law should be interpreted in such a manner that it should be saved than destroyed---Law must be interpreted in a broader and liberal manner giving effect to all the parts; and the presumption would be that no conflict and repugnancy was intended by the framers---Where two "co-ordinate sections", were apparently inconsistent, an effort must be made to reconcile them, if it was impossible, the latter would generally override the earlier---Court would avoid reading a provision or enactment in the manner, the effect of which was to make nugatory another enactment, unless they were totally irreconcible, when it would be driven to hold that later in point of time impliedly repealed the earlier one---Sometimes where an enactment was added or amended in a statute, the earlier enactment with regard to the same subject was not expressly repealed; in such a situation, the latter enactment would impliedly repeal the earlier enactment---Courts while interpreting such enactments were bound to harmonize such inconsistencies, if it was possible---Whenever there were two provisions applicable with regard to the rights of a citizen, one favourable to the subjects, be given preference over the other---Where it was possible without doing any violation to the language of the statute, beneficial construction could be adopted while interpreting a statute, which would infringe upon the right of a citizen or a party.

Crawford's Statutory Construction, Interpretation of Statutes 262; Rafique Akhtar Chaudhary v. Azad Jammu and Kashmir Government PLD 1982 SC (AJ&K) 124; Fazal Dad v. Khadim Hussain and another 1995 MLD 1299; Halsbury's Laws of England, Vol.44; Imran Ali v. Public Service Commission and 4 others (Civil Appeal No.92 of 2011; Messrs Amin Spinning Mills v. Deputy Collector Central Excise and others 2004 PTD 2479 and Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 rel.

(c) Police Rules, 1934---

----R. 2.9(1)(2)(3)(4) & (5)---Additional Police Force---Entitlement for permanent absorption in Regular Force---Scope---Sub-rules (1) to (3) of R.2.9 of Police Rules, 1934 had postulated that extra men enlisted in the Additional Police Force, would be part of the District Police and would be entitled for permanent absorption in the Regular Force, whenever vacancies would occur, subject to the suitability and eligibility---Under sub-rules (4) & (5) of R.2.9 of Police Rules, 1934 extra men enlisted in Additional Police Force would be contract employees; and such contract would confer no right for permanent induction in the Police Force.

State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others 1993 SCMR 1394 and Statutory Construction by Crawford rel.

(d) Interpretation of statutes---

----Amendment of law, effect---If a right was vested in a person under law, and later on the said right was snatched by amendment, the operation of such amendment would be prospective and not retrospective.

Mst. Sardar Begum v. Rehmat Khan and 11 others Civil Appeal No.19 of 2006; Construction of Statutes, 1940 Edition, page 581 by Crawford; The State v. Muhammad Jameel PLD 1965 SC 681; Muhammad Alam v. The State PLD 1967 SC 259 and Nizam Din and another v. Custodian and 15 others 2011 SCR 390 rel.

Sadaqat Hussain Raja, Advocate for Appellants.

Ch. Shaukat Aziz, Additional Advocate-General for Respondents.

Date of hearing: 10th January, 2013.

2014 P L C (C.S.) 639

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Sardar Muhammad Sadiq Khan, J

AZAD KASHMIR GOVERNMENT COOPERATIVE BANK LTD., MUZAFFARABAD through General Manager and another

Versus

Ch. MUHAMMAD AKRAM and another

Civil Appeal No.19 of 2004, decided on 5th April, 2012.

(On appeal from the judgment of the High Court dated 4-11-2003 in Writ Petition No.476 of 2000).

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

----S. 44---Civil service---Writ petition before High Court---Maintainability--- Scope--- Pre-mature retirement under "Golden Handshake Scheme"---When, appellant Bank by a circular offered to its employees 'Golden Handshake Scheme' for pre-mature retirement, employee gave final consent after the perusal of conditions laid down in the circular---Employee himself applied for taking the benefit of said scheme, accepted same, got issued retirement order and received retirement benefits---Employee after accepting the offer and receiving the retirement benefits, was estopped from challenging the same through writ petition as he himself was instrumental in his retirement through "golden handshake scheme"---Employee, later on, tried to built-up a new case that he accepted the offer conditionally---Only condition in the application of the employee, was that if better benefits were not offered, he would not opt for said scheme---Employee had given final consent after the perusal of the conditions laid down in the circular---Employee, after receiving the benefits of retirement, filed review petition, whereby he instead of taking ground that better terms and conditions had not been awarded, he took a different stand that he should have been retired in grade-B-18---Such was an afterthought and new stand, he could not be allowed to turn round and take a new stand contrary to one taken previously---Impugned judgment of High Court, was set aside by the Supreme Court, in circumstances.

Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 and Azad Government and 4 others v. Syed Muhammad Akbar Shah 1996 PLC (C.S.) 838 rel.

Raza Ali Khan, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent No.1.

Date of hearing: 13th March, 2012.

2014 P L C (C.S.) 866

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

WAHEED AHMED

Versus

CHIEF ENGINEER ELECTRICITY, GOVERNMENT OF AZAD JAMMU AND

KASHMIR MUZAFFARABAD and 5 others

Civil Appeal No.133 of 2012, decided on 26th December, 2012.

(On appeal from the judgment of the Service Tribunal dated 19-9-2012 in Service Appeal No.1066 of 2012).

(a) Azad Jammu and Kashmir Electricity Department Service Rules, 2010---

----R. 31---Rules of Business, (AJK) 1985, R.22(1), Sched. VIII, Clause 4---Transfer of employee from one Division of department to another---Employee who was transferred from construction Division of Electricity Department to its operation Division, filed appeal before the Service Tribunal against that transfer---Appeal was dismissed by the Service Tribunal---Validity---Person was an employee of the department which had been divided into two zones, i.e. South and North Zones which did not mean that the department had been bifurcated into two independent departments---Such was only for administration purpose---Appointments and transfers in the department were made by the Chief Engineer, Headquarter, who was competent authority, contention that Chief Engineer North could not pass transfer order, was repelled---Transfer order in question, was passed with the consent of the employee, argument that employee was illegally transferred, had no force---Rule 22(1), Schedule VIII, Part A, Clause 4 of Azad Jammu and Kashmir Electricity Department Service Rules, 2010 was only relevant to the employees of Civil Secretariat, whereas clause 4 of Part C of Schedule VIII related to transfer of civil servants from one attached department to another department---Said provisions did not attract in the present case---Impugned transfer order having already been implemented and both employees were drawing their salary from their respective Divisions, no illegality, or infirmity existed in the order passed by the Service Tribunal---Same was maintained, in circumstances.

(b) Civil service---

----Transfer---Normal tenure of stay of a civil servant at one Station should not be less than three years, but in the exigencies of the service, the transfer could be made before that time, if the terms and conditions of service of civil servant were not affected.

Abdul Jabbar v. District Education Officer and others Civil Petition for Leave to Appeal No.151 of 2012 rel.

Sardar Muhammad Habib Zia, Advocate for Appellant.

Raja Ghazanfar Ali, Advocate-General for Respondents Nos.1 to 5.

Noorullah Qureshi, Advocate for Respondent No.6.

Date of hearing: 5th December, 2012.

2014 P L C (C.S.) 991

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J.

Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

NARGIS FIRDOS

Versus

D.P.I. SCHOOLS ELEMENTARY, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 5 others

Civil Appeal No.168 of 2011, decided on 19th March, 2012.

(On appeal from the judgment of the Service Tribunal dated 17-10-2011 in Service Appeal 22 of 2011)

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

----S. 9---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Transfer---Appellant who remained posted as School Teacher in school at place 'B.K.' for a period of 11 years, was transferred from that school---Said transfer having been cancelled, respondent filed appeal before Service Tribunal against the cancellation of transfer order---Service Tribunal accepted appeal filed by the respondent and set aside cancellation of transfer order---Validity---Medical certificates attached with the record did not suggest that the appellant was posted in school at place 'B.K.' against a post of disabled teacher or she was permanently disabled from travelling---Transfer order of the appellant after a period of 11 years was justified---Civil servant had no absolute right to remain at a particular station for an indefinite period---No justification existed for cancellation of transfer order by the Service Tribunal---Appeal filed by the appellant before the Supreme Court having no merits was dismissed, in circumstances.

Deputy Inspector-General of Police and another v. Muhammad Yaseen and another 2008 SCR 611; Kausar Perveen v. Azad Government and others 2002 PLC (C.S.) 1385; Mst. Shaista Idrees v. Mst. Gul Shireen and others 2006 SCR 294; Dr. Muhammad Rafique v. Azad Government and others 2007 SCR 129 (sic) and Mst. Sabia Aziz v. Director Technical Education and 5 others 2012 PLC (C.S.) 538 ref.

Iqbal Begum v. Azad Government and others 2003 PLC (C.S.) 1041 rel.

Kh. Muhammad Maqbool War, Advocate for Appellant.

Mushtaq Ahmed Janjua, Advocate for Respondent No.5.

Sadaqat Hussain Raja, Advocate for Respondent No.6.

Date of hearing: 13th March, 2012.

2014 P L C (C.S.) 999

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

ABIDA PARVEEN

Versus

DISTRICT EDUCATION OFFICER, SCHOOLS ELEMENTARY (FEMALE) MIRPUR and 4 others

Civil Appeal No.72 of 2012, decided on 11th February, 2013.

(On appeal from the judgment of the Service Tribunal, dated 10-5-2012 in Service Appeal No.403 of 2012).

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

----S. 9---Transfer order---Cancellation of---Appellant who was transferred from school at place 'S' to school at place 'M', submitted her joining report in compliance of her transfer order, and she was allowed to join new place of posting---After 15 days of said transfer order, on the orders of Prime Minister, department cancelled transfer order, without assigning any valid reason for the cancellation---Validity---Transfer of civil servants, no doubt fell in the exclusive domain of the Authority, but while passing the order it was the duty of the Authority to apply its judicial mind, and the powers in that regard should not be exercised in an arbitrary manner---Order cancelling transfer order of appellant, had itself shown that same had not been passed in exigency of the service, but with mala fide intention---Authority having failed to exercise its discretion in a judicious manner, such like order could not be allowed to remain in field---Supreme Court normally did not interfere with the orders passed by the competent authority in exigency of service after due application of mind, but if the order seemed to be illegal ab initio void, Supreme Court would always intervene---Impugned order was set aside, in circumstances.

Azad Jammu and Kashmir University and 6 others v. Muhammad Arif and 3 others 2006 SCR 420; Raja Muhammad Manzoor Khan v. The Secretary Education and 8 others 2004 SCR 305; Misbah Mushtaq v. D.P.I. Colleges, Azad Jammu and Kashmir, Muzaffarabad and 2 others 2012 PLC (C.S.) 1446; Mst. Nazia Tabassum v. Mst. Robina Latif Civil P.L.A. No.80 of 2012; Secretary Education, N.-W.F.P., Peshawar and 2 others v. Mustamir Khan and others 2005 SCMR 17; Rabia Akram v. Azad Government and others Civil Appeal No.108 of 2012 and Azad Jammu and Kashmir University and 6 others v. Muhammad Arif and 3 others 2006 SCR 420 rel.

(b) Affidavit---

----When some fact was alleged and supported by an affidavit, if, there was no rebuttal from the other side by filing counter affidavit, same would be deemed admitted.

Sadaqat Hussain Raja, Advocate for Appellant.

Sardar Muhammad Habib Zia, Advocate for Respondents.

Date of hearing: 16th January, 2013.

2014 P L C (C.S.) 1145

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

SECRETARY FINANCE, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 3 others

Versus

KHALIL AHMED SEHRAI and 8 others

Civil Appeal No.47 of 2013, decided on 14th May, 2014.

(On appeal from the judgment/order of the High Court, dated 17-12-20013 in Writ Petition No.1797 of 2009).

Azad Jammu and Kashmir Rules of Business, 1985---

----Rr. 5 & 9(4)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42(12) & 12(1)(2)---Civil service---Up-gradation---Respondents through writ petition sought up-gradation of the posts of Calligraphers, which was accepted by the High Court---Contentions of the appellants (authorities) were that up-gradation of the posts could only be ordered after financial concurrence with the Finance Department; that up-gradation could not be approved by the Finance Department on the ground of financial crunch and that since up-gradation related to terms and conditions of services, therefore, writ petition was not maintainable---Validity---Authorities' plea that respondents had no right to claim up-gradation of the posts and writ petition was not maintainable, had no force---When the Prime Minister Azad Jammu and Kashmir, who was executive head of the Government passed a legal order and under the Constitution and Rules of Business, it was duty of the Finance Department to implement the lawful order, but the Department failed to implement the same despite the fact that no objection was raised on the order nor it was resubmitted to Prime Minister on the ground that it offended any law---Respondents had no alternate remedy, except to file Writ Petition in the High Court, therefore, the writ petition was competent---Under subsections (1) and (2) of S.12 and R.5 of the Azad Jammu and Kashmir Rules of Business, 1985, the Government consisted of the Prime Minister and the Ministers of the Azad Jammu and Kashmir; the Government shall act through the Prime Minister; he might perform his functions directly or through the Ministers; he being head of the Cabinet and Chief Executive of Government might perform functions assigned under the Constitution and the Rules and while performing his assigned functions he might do either directly or indirectly through Ministers---Provisions of Azad Jammu and Kashmir Rules of Business, 1985 were obligatory for the Secretary or the officer below to implement the lawful order of the Prime Minister and under the provisions of R.9(4) of Rules of Business if any, order contravened the provision of any law, rule or policy decision, it was the duty of the Secretary Finance to point it out to the Prime Minister that the order was in contravention of the Rules or policy and request for review the same---Nothing had been done on the part of the authorities to comply with the R.9(4), even during the period of three years of pendency of the writ petition no objection had been raised on the summary---Without pointing out any contravention of law or illegality in the order passed by the Prime Minister non-implementation of the order was a violation of the Constitution and Rules of Business---Appeal of authorities was dismissed in the circumstances.

Khurshid Anwar v. The Secretary Local Government and others 1992 MLD 236 rel.

Ch. Shoukat Aziz, Additional Advocate-General for Appellants.

Syed Shahid Bahar, Advocate for Respondents.

Date of hearing: 1st April, 2014.

2014 P L C (C.S.) 1160

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and

Raja Saeed Akram Khan, JJ

IFFAT BIBI

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 19 others

Civil Appeal No.6 of 2013, decided on 17th May, 2014.

(On appeal from the judgment of the Service Tribunal dated 15-8-2012 in Service Appeals Nos.6 and 18 of 2011)

(a) Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976---

----R. 7(e)---Qanun-e-Shahadat (10 of 1984), Art.87(2)(3)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Seniority---Photocopy of a document---Admissibility in evidence---Scope---Petitioner was aggrieved of the seniority assigned to her juniors---Petitioner filed the appeal before the Service Tribunal without certified/true copy of the seniority list---Seniority list issued by the Government appended with the Memorandum of appeal in the Service Tribunal was attested by the Advocate General, but not by the officer concerned who had the custody of the original document---Effect---Rule 7(e) of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 showed that memorandum of appeal shall be accompanied by a copy of order---Photostat copy of a document was not admissible unless the officer having the custody of original document certified the same to be true copy---In the presence of clear statutory provisions no other interpretation was permissible---Under Art.87 of the Qanun-e-Shahadat, 1984, every public officer having the custody of a public document shall give a person on demand on payment of the legal fee, together with a certificate written at the foot of such copy that it was true copy of such document or part thereof and such certificate shall be dated and subscribed by such officer with his name and official title and shall be sealed---Seniority list issued by the Government appended with the appeal in the Service Tribunal and attested by the Advocate General was not a "certified true copy" under Art.87(2) and did not fulfil the requirement of R.7(e) of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976---Copy appended with the memorandum of appeal was not a certified true copy of original seniority list, whereas, it was only a photocopy which was not admissible in evidence---Appeal filed in the Service Tribunal without appending the certified copy of the order was not competent, therefore, it was liable to be dismissed on this sole ground---Appeal filed in the Service Tribunal in violation of R.7(e) of the Azad Jammu and Kashmir Service Tribunals (Procedure) Rules, 1976 was incompetent---Appeal was dismissed by the Supreme Court.

Kh. Muhammad Ahsan v. Manzoor Ali Khokhar and another 1999 SCR 163; Kh. Muhammad Ahsan v. Manzoor Ali Khokhar and another 2001 PLC (C.S.) 243; Public Health Engineering Division and others v. Aurangzeb Khan 2008 SCR 590; Tasneem Yaseen v. Azad Government and 11 others 2004 PLC (C.S.) 850; Muhammad Riaz Khan v. Inspector-General of Police and 19 others 2010 SCR 131; Bashir Ahmed v. Khurshid-ul-Haq and another 1983 PLC (C.S.) 652; Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303; Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C.S.) 445; Nadir Shah, S.D.O., Minor Canal Cell, Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961; Zial Haq and others v. Secretary, Ministry of Education, Islamabad and others 1991 SCMR 1632 and Fazal Muhammad v. Government of N.-W.F.P. and others (2009 PLC (C.S.) 444 ref.

Manzoor Hussain Raja, Advocate for Appellant.

Raja Muhammad Hanif Khan, Syed Nazir Hussain Shah Kazmi, Sardar Karam Dad Khan, Sher Zaman Awan, Raja Amjad Ali Khan and Dawood Ahmed Abbasi, Advocates for Respondents.

Date of hearing: 8th May, 2014.

2014 P L C (C.S.) 1334

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad and 2 others

Versus

MUHAMMAD QADIR JAVID and another

Civil Appeal No.171 of 2011, decided on 24th February, 2014.

(On appeal from the judgment of the High Court, dated 26-8-2011 in Writ Petition No.1247 of 2010).

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

----Rr. 13(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Appointment---Withholding of post---Respondent applied for the post of Lecturer Chemistry reserved for District Muzaffarabad---Respondent qualified the test and interview and was placed at serial No.1 of the waiting list---Contention of the respondent was that the Department had withheld two posts of lecturers of Chemistry and the posts had not been requisitioned with male fide intention; had the department requisitioned all the posts he might have been appointed---Validity---Candidate placed by the Public Service Commission in the waiting list in the result of test and interview conducted in response to advertisement issued by the Public Service Commission on the requisition of the department could only be appointed against the post if the candidate who was appointed on the recommendations of the Commission failed to join the service or he was declared medically unfit and department requested the Public Service Commission to recommend the candidate next in the merit list from the waiting list prepared by the Public Service Commission and this merit list shall remain valid only for a period of 180 days---No candidate who had qualified the test and interview and was placed in the waiting list could be appointed against the post which became available after the test and interview had been conducted by the Public Service Commission in response to previously advertised vacancies---No post of lecturer was withheld by the Department in the subject of Chemistry in the quota reserved for District Muzaffarabad at that time of advertisement---Judgment of the High Court was not maintainable, therefore, the same was set aside---Appeal was accepted.

Sarfraz Ahmed Khan v. Azad Government and others 2012 PLC (C.S.) 755 rel.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----Rr. 147, 149 & 153---Limitation Act (IX of 1908), S.12(5)---Exclusion of time spent in obtaining the certified copies of judgment and decree---Scope---Appellants were entitled for exclusion of time actually spent in obtaining the copies of the judgment and the decree appealed from---Appellant was entitled for exclusion of 10 days time actually consumed in obtaining the copies of the judgment---After exclusion of said 10 days the appeal was within time---Objection was overruled.

Asghar Ali Malik, Advocate for Appellants.

Raza Ali Khan, Advocate for Respondents.

Date of hearing: 6th January, 2014.