PLCCS 2015 Judgments

2015 P L C (C.S.) 1091

[Federal Service Tribunal]

Before Justice (Retd.) Sheikh Ahmad Farooq, Chairman Muhammad Arshad Bhatti, Syed Nasir Ali Shah, and Ishtiaq Ahmed, Members

KHALID FAROOQ TIPU and another

versus

SECRETAY, MINISTRY OF FINANCE, PAKISTAN SECRETARIAT, ISLAMABAD

Review Petitions Nos.2 and 3 of 2015 in Appeal No.99(L)CS of 2012, 5 of 2015 in Appeal No.199(L)CS of 2010 and Misc. Petition No.66-A of 2013 in Appeal No.56(L) CS of 2011, decided on 20th May, 2015.

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

----S. 4-A [as inserted by Service Tribunals (Amendment) Act (IV of 2014), S.3]---Review of order by Service Tribunal---Limitation---"Aggrieved party"---Scope---Only an "aggrieved party" could file a review petition within 30 days of the passing of final order---Petitioner was not a party in appeal wherein the order sought to be reviewed had been passed---Impugned order was not a final order rather an interim order and was not liable to be reviewed---Petitioner could not be considered to be an "aggrieved party" and review petition was not maintainable---Review petition could not be filed against an interim order---Review petition was dismissed.

2004 SCMR 1397; Chief Mechanical Engineer Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal N.-W.F.-P, Peshawar and another 2003 PLC 118; Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 172; Mehboob Khan and 307 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 7 others 1993 SCMR 2385; 2003 PLC (C.S.) 1335; PLD 1985 SC 159 and 1997 PLC (CS) 533 ref.

Pakistan Railways through its General Manager and others v. Samiullah and others 1999 SCMR 2554; Chairman, Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 and Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 distinguished.

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

---S. 4-A [as inserted by Service Tribunals (Amendment) Act (IV of 2014), S.3]---Review petition---Limitation---Review petition could be filed within 30 days of the passing of a final order.

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

----S. 4---Civil Procedure Code (V of 1908), O.VII, R.11---Application for rejection of appeal before Service Tribunal---Maintainability--- Scope---Application for rejection of plaint under O.VII, R.11, C.P.C., could be filed in civil suit and not to reject appeal---Application for rejection of appeal before Service Tribunal was not maintainable.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil servants could not invoke constitutional jurisdiction of High Court under Art.199 of the Constitution, notwithstanding their terms and conditions of service had statutory characteristics.

National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253 rel.

Riaz Ahmad Tahir for Petitioner (in Review Petition No.2 of 2015).

Umar Khan for Pro Forma Respondent No.4 (in Review Petition No.2 of 2015).

Miss Humaira Latif Ch. for Respondents Nos.1 and 2 (in Review Petition No.2 of 2015).

Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways (in Review Petition No.2 of 2015).

Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae (in Review Petition No.2 of 2015).

Miss Humaira Latif Ch. for Petitioner (in Review Petition No.3 of 2015).

Umar Khan for Appellant (in Review Petition No.3 of 2015).

Tahir Pervaiz, Director General (Legal Affairs) Pakistan Railways (in Review Petition No.3 of 2015).

Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae (in Review Petition No.3 of 2015).

Riaz Ahmad Tahir for Petitioner (in Review Petition No.5 of 2015).

Salman Riaz Ch. for Appellant No.3 (in Review Petition No.5 of 2015).

Miss Humaira Latif Ch. for Respondents Nos.1 and 2 (in Review Petition No.5 of 2015).

Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways (in Review Petition No.5 of 2015).

Mian Mahmood and Jaffar Hussain Amicae Curiae (in Review Petition No.5 of 2015).

Riaz Ahmad Tahir for Respondents Nos.3 to 7 and 10/Petitioners (in Misc. Petition No.66-A/2013 in Appeal No.56(L)CS/2011).

Asif Nazir Awan for Appellant (in Misc. Petition No.66-A/2013 in Appeal No.56(L)CS/2011).

Mian Asghar Ali Gurdaspuri for Respondents Nos.1 and 2 (in Misc. Petition No.66-A/2013 in Appeal No.56(L)(CS)/2011)..

Nemo for Respondent No.8 (in Misc. Petition No.66-A/2013 in Appeal No.56(L)(CS)/2011).

Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways.

Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae.

Dates of hearing: 21st, 22nd and 23rd April, 2015.

2015 P L C (C.S.) 1432

[Federal Service Tribunal]

Before Mr. Justice (Retd.) Sheikh Ahmad Farooq, Chairman, Kazi Afaq Hussain and Syed Nasir Ali Shah, Members

MUHAMMAD NAVEED ANWAR

Versus

AUDITOR GENERAL OF PAKISTAN GOVERNMENT OF PAKISTAN, LAHORE and another

Appeal No.78(L)CS of 2010, decided on 14th September, 2015.

Service Tribunals Act (LXX of 1973)---

----S. 4---Misconduct---Disciplinary proceedings---Employee had gone abroad---Ex parte inquiry proceedings---Scope---Major penalty of "dismissal from service" was imposed upon the employee when he was on ex-Pakistan leave while proceeding ex-parte---Contention of employee was that he was condemned unheard and no opportunity of defence was afforded to him---Validity---Employee had exceeded his powers while restoring the cancelled plots-Civil servant had transgressed his powers and acted beyond the mandate which was misconduct and infraction on his part---Civil servant having gone abroad could not defend himself during the inquiry proceedings; he had furnished documentary evidence in his favour after remand of case by the Supreme Court---Major penalty was required to be imposed upon the civil servant but there was no direct allegation that cancelled plots were restored by him for mundane consideration---Civil servant had more than two decades of service---Right to seek further employment by civil servant in other department/organization should not be forfeited keeping in view his agony, ordeal, mental stress and illness, major penalty of "compulsory retirement from service" would be in sync with the enormity of allegations/improprieties and same would meet the ends of justice---Service appeal was disposed of by modifying the penalty of "dismissal from service" to "compulsory retirement from service" with effect from the date of impugned order---Absence of employee would be treated as leave of the kind due---Question of back benefits if any should be decided by the competent authority.

Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi 2010 SCMR 11 rel.

Muhammad Umar Riaz for Appellant.

Syed Tajdar Mustafa Zaidi, Deputy Director (Legal) as D.R.

Date of hearing: 3rd September, 2015.

2015 P L C (C.S.) 1442

[Federal Service Tribunal]

Before Justice (Retd.) Sheikh Ahmad Farooq, Chairman, Kazi Afaq Hossain and Syed Nasir Ali Shah, Members

MUHAMMAD TUFAIL and others

Versus

NATIONAL BANK OF PAKISTAN and others

M.Ps. Nos.159 of 2015 in Appeal No.120(L)CE of 2002, 23 of 2015 in Appeal No.99(L)CE of 2004; 70 of 2015 in Appeal No.110(L)CS of 2013, 173 of 2013 in Appeal No.2770(R) CS of 2012, 133 of 2015 in M.P. No.131 of 2012 in Appeal No.37(L)(CS) of 2011, 212 of 2015 in Appeal No.159(L)CS of 2014, M.P. No.84 of 2014 in Appeal No.439(L)CS of 2014, 38 of 2015 in Appeal No.387(L) CS of 2012 and 142-A of 2012 in Appeal No.9(L)CS of 2010, decided on 14th September, 2015.

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

----Ss. 4, 5(2) & 2-A [since repealed]--- Balochistan Service Tribunals (Appeal) Rules, 2013, R.9(4)---Civil Procedure Code (V of 1908), O.XXII, Rr.1 & 11---Service appeal---Death of civil servant during pendency of service appeal---Legal heirs, impleadment of---Scope---Abatemennt of appeal---Scope---Words "right to sue"---Inheritable right---Terms and conditions of service---Scope---Vested and substantive rights should be decided according to law which was prevalent when the action was initiated and the door of the court was knocked and/or machinery of the court was set in motion---Service appeals which were filed before Service Tribunal prior to repeal/omission of S.2-A of Service Tribunals Act, 1973 should be deemed to be pending before it and same should be decided according to law which was in field at the commencement of the lis---Petitions filed by the legal heirs of deceased employees could not be dismissed summarily on the ground of repeal of S.2-A of Service Tribunals Act, 1973---Legal heirs of a deceased civil servant could not file a fresh appeal in Service Tribunal---No provision existed in the Service Tribunals Act, 1973 that upon the death of civil servant his appeal would abate---Term "right to sue" would refer to the right to seek the same relief which the deceased civil servant was seeking at the time of his death---Service appeal might be continued by the legal representatives of deceased civil servant to the extent of inheritable rights where the cause of action survived---All rights of action existing in favour of a person would survive except personal actions connected with the individuality of the deceased civil servant---Personal right of actions would die with the person---Civil servant could knock the door of Service Tribunal whenever he was aggrieved of an order with regard to terms and conditions of his service---Terms and conditions of service would include pay, promotion, allowances, pension and seniority---Financial benefits would be inheritable which would devolve upon the legal heirs of deceased civil servant---Legal heirs of a deceased civil servant could pursue the service appeal filed by his predecessor-in-interest provided that the benefits likely to accrue on the acceptance of such an appeal were admissible to such legal heirs under the rules---Order XXII, Rr.1 & 11, C.P.C. did not provide the abatement of a suit/appeal on the death of plaintiff/appellant if the right to sue survived---Deceased civil servants had filed service appeals before the Service Tribunal with regard to the terms and conditions of services which entailed financial benefits inheritable by their legal heirs upon their death---Legal heirs of deceased civil servants were entitled to be impleaded as party to pursue their cases to the logical conclusion---If right to sue survived then an appeal would not be abated on the death of a party---Legal heirs of a civil servant could be impleaded as a party to the appeal filed by their predecessor-in-interest with regard to terms and conditions of service entailing financial benefits which were inheritable by them on the demise of civil servant---Petitions for impleadment of legal heirs of civil servants were accepted in circumstances.

Mst. Ghazala Tariq v. Federation of Pakistan through Secretary/Chairman Railway Board and another 2005 PLC (C.S.) 271; Mst. Itrat Zahida and others v. President, A.B.L. and others 2006 SCMR. 1287; Lt. Col. (R) Arshad Mehmood Ch. v. Karakurum International University through Acting Registrar and 3 others 2010 PLC (C.S.) 245; Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad 2013 SCMR 392; Rakhshinda Habib v. Federation of Pakistan and others 2014 PLC (C.S.) 247; Rameshwar Manjhi v. Management of Sangaramgarh Colliery 1994 AIR 1176; 1994 SCC (1) 292; Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs 1991 SCMR 1192; Dr. Qamar-uz-Zaman Ch. v. Syed Fazal Muhammad Farooq and others (C.A. 1082 of 1998) 2005 PLC (C.S.) 1424; Muhammad Ashfaq v. Member (Revenue) Board of Revenue, Punjab, Lahore and another PLD 2008 SC 703; 2013 SCMR 314 and PLD 1969 SC 65 rel.

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

----S. 4---Service appeal, filing of---Scope---Only a civil servant aggrieved by any order whether original or appellate made by a departmental authority with regard to any terms and conditions of his service could file an appeal to Service Tribunal.

(c) Civil service---

----Terms and conditions of service---Terms and conditions of service would include pay, promotion, allowances, pension and seniority.

(d) Interpretation of statutes---

----Change in substantive law which divested and adversely affected the vested rights of the parties should have prospective application unless by express word of legislation and/or by necessary intendment/ implication such law was made applicable retrospectively.

(e) Administration of justice---

----Vested and substantive rights should be decided according to law which was prevalent when the action was initiated and the door of the court was knocked and/or machinery of the court was set in motion.

Rana Muhammad Mehtab for Petitioner.

Syed Fazal Mahmood for Respondent-NBP MP.No.159/2015 in Appeal No.120(L)CE/2002.

Nemo for the Petitioner.

Mian Qamar-uz-Zaman for Respondent-NBP M.P.No.23/2015 in Appeal No.99(L)CE/2004

Mian Mahmood Hussain for Petitioner.

Ehsan-ul-Haq Mughal for Respondents with Dr. Munir Khan, Deputy Secretary, M/o Communications as DR MP No. 70/2015 in Appeal No.110(L)CS/2013 MP.No.173/2013 In 2770(R)CS/2012

Shahid Qayyum for Petitioner.

Nemo for Respondents.

MP. No.133/2015 in MP.No.131/2012 in Appeal No.37(L)CS/2011.

Muhammad Iqbal Khan for Petitioner.

Ehsan-ul-Haq Mughal for Respondents.

MP. No.212/2015 in Appeal No.159(L)CS/2014 [MP.No.84/2014 in Appeal No.439(L)CS/2014].

Sohail Javed Chughtai for Petitioner.

Muhammad Younus Kiyani for Respondents (MP.No.38/2015 in Appeal No.387(L)CS/2012).

Sultan Muhammad Momin for Petitioner.

Sh. Fazal-ur-Rehman, AAO as DR. (MP.No.142-A/2012 in Appeal No.9(L)CS/2010).

Date of hearing: 31st August, 2015.

2015 P L C (C.S.) 179

[Federal Shariat Court]

Before Sardar Muhammad Raza, C.J., Allama Dr. Fida Muhammad Khan, Sheikh Najam-ul-Hasan, Riaz Ahmed Khan and Zahoor Ahmed Shahwani, JJ

Ch. MUHAMMAD ASLAM GHUMAN, ADVOCATE SUPREME COURT

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 8 others

Shariat Petition No.3/I of 2011, decided on 17th November, 2014.

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

----S. 19(2)---Securities and Exchange Commission of Pakistan Service Rules, 2007, Ch.11, Cl. 3(1)---Constitution of Pakistan, Art.203-D---Shariat petition---Employee of the Securities and Exchange Commission of Pakistan ("Commission")---Notice for termination of service without assigning any reason---Repugnancy to Injunctions of Islam---Aajir and Ajeer', principle of---Scope---Petitioner contended that under S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997, a Commissioner or Member of the Commission could not be removed without an inquiry, and reasonable opportunity of being heard, but under R.3(1) of Chap.11 of Securities and Exchange Commission of Pakistan Service Rules, 2007, services of employees of the Commission could be terminated by notice without assigning any reasons; that rights of Members or the Commissioners were discriminatory to the rights of general employees, thus said Rule was not only violative of the principles of audi-alteram partem but was based on the principle 'master and servant', which was a term derogatory to the principles laid down by Islam---Validity---Principle of "master and servant" was a condition of service which could also be termed as 'employer and employee' or in others words 'Aajir and Ajeer'---State could make laws in accordance with its needs defining the interaction between 'Aajir and Ajeer'; employer and employee' and 'master and servant'; whatever terminology the law may import---Rule 3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007, had already been declared as ultra vires the Constitution and inter-alia the Securities and Exchange Commission of Pakistan Act, 1997, by the Supreme Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159 at page 1172)---Said judgment of the Supreme Court, therefore, had removed the alleged discrepancy between S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997 and R.3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007---Present Shariat petition had thus become infructuous---Section 19(2) of the Securities and Exchange Commission of Pakistan Act, 1997, however, contained nothing derogatory to the Injunctions of Islam because it expressly contained the provision of enquiry by impartial person or persons, before taking action against a Member or Commissioner---Shariat petition was dismissed accordingly.

Pakistan and others v. The Public at Large and others PLD 1987 SC 304 ref.

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

Abdul Rahman Siddiqui, Advocate for Petitioner.

Raja Ahsan Mehmood Satti, Advocate for Federal Government.

Mian Shujahat Shah, Asstt. A.-G. Khyber Pakhtunkhwa for Province of Khyber Pakhtunkhwa.

Barrister Qasim Ali Chohan, Asstt. A.-G., Punjab for Province of Punjab.

Farid Dogar, Asstt. A.-G. Balochistan for Province of Balochistan.

Hafiz S.A. Rehman and Sh. Rizwan Nawaz, Advocates for Respondent No.9.

Date of hearing: 17th November, 2014.

2015 P L C (C.S.) 906

[Chief Court Gilgit-Baltistan]

Before Sahib Khan, C.J. and Yar Muhammad, J

BABAR KHAN

versus

PROVINCIAL GOVERNMENT through Chief Secretary and 5 others

W.P.No.127 of 2014, decided on 11th March, 2015.

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

----Arts. 71 & 81---Notification No. SO(S)-1-2(7)/2006, dated 20-11-2009---Notification No. SO(S)1-2(39)/2013, dated 25-4-2014---Notification No. CM.Sectt. 1(04)/2012, dated 31-5-2014---Writ petition---Civil service---Deputation and absorption---Cancellation of absorption/deputation order---Petitioner was a permanent employee as Inspector (BS-16) in ASF controlled by Ministry of Defence---Ministry of Kashmir Affairs and Northern Areas, borrowed services of the petitioner on deputation basis---No-objection certificate was granted by department of the petitioner, and he was adjusted against post of DSP in Police Department; since then he was discharging his duties to the entire satisfaction of his seniors---Writ petition filed seeking cancellation of deputation/adjustment order of the petitioner as DSP, was dismissed, holding that absorption of the petitioner as DSP was made in accordance with Rules---Provincial Government, after lapse of years on recommendation of Air Port Security Force, vide Notification No.SO(S)1-2(39)/2013, dated 25-4-2014 cancelled absorption order of the petitioner as DSP, which being without notice was illegal and as such was liable to be set aside---Department, itself had adjusted the petitioner against the post of DSP in relaxation of Rules by the Competent Authority---No objection could be raised against said adjustment of the petitioner, because law would not allow anyone to take benefit of his own lapses---Competent Authority though had the power to undo the orders, but such order after taking legal effect and creating certain rights in favour of an individual, could not be withdrawn, cancelled, rescinded, amended or varied under the principle of 'Locus Poenitentiae'---Petitioner was condemned unheard, which otherwise was against the principles of natural justice, especially when the petitioner had secured a vested right which could not be taken away or withdrawn in a fanciful manner i.e. without providing opportunity of being heard---Notification issued by Provincial Government, was declared illegal---Petitioner was entitled to continue his service as DSP, and was also entitled for his back benefits---Authorities were directed to issue formal notification withdrawing the impugned notification for record---Petition was accepted.

PLD 2002 SC 728; 2003 PLC (C.S.) 262; 2008 PLC (C.S.) 715 and 2007 PLC (C.S.) 145 ref.

Amjad Hussain, Malik Kifayat-ur-Rehman and Aurangzeb Khan for Petitioner.

Assistant Advocate-General for Respondents.

Date of hearing; 11th March, 2015.

2015 P L C (C.S.) 1018

[Chief Court Gilgit-Baltistan]

Before Sahib Khan, C.J. and Yar Muhammad, J

MUHAMMAD FAROOQ

versus

MINISTRY OF DEFENCE through Secretary Defence, Rawalpindi Cantt. and 3 others

Writ Petition No.28 of 2012, decided on 23rd June, 2014.

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

----Arts. 71 & 81---Writ petition---Civil service---Termination of service---Petitioner was appointed on permanent basis, on probation for a period of one year---Petitioner successfully completed his probation period, but his services were terminated without serving on him any show-cause notice and without hearing him before termination of service---Petitioner, after getting the appointment letter, got the legal right, but same was infringed by terminating him from service unheard---Authorities, though had power to recall, withdraw and rescind the order of appointment before its taking effect, but after taking effect in favour of the petitioner, authorities had no power to recall or withdraw the same as the principle of 'locus poenitentiae' would apply in the matter---Impugned termination order being in clear violation of relevant law, and against the justice and equity, was set aside---Petitioner was reinstated with back-benefits petitioner was entitled to continue his service in accordance with law.

PLD 2002 SC 728 and 2004 SCMR 23 ref.

Amjad Hussain for Petitioner.

Javed Akhtar Dy. Attorney-General for Respondents.

2015 P L C (C.S.) 1078

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Wazir Shakeel Ahmed, J

Mir INTIKHAB-UL-HAQ

versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit and 6 others

W.P.No.75 of 2014, decided on 1st December, 2014.

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

----Arts. 71 & 81---Writ petition---Civil service---Contractual service---Termination---Petitioner, initially was appointed as Excise and Taxation Officer in BS-17 on contract basis for one year---Period of one year was extended and service of the petitioner was supposed to continue till the recruitment of regular incumbent, however, services of the petitioner, were terminated without issuing him show-cause notice, and without giving him opportunity of hearing---Serious allegations of corruption and misappropriation of government funds, were levelled against the petitioner---No Inquiry Committee, was appointed to probe the said allegations---Reliance was placed by the authorities, on the report submitted by the Chief Minister's Inspection Team, on the basis of which the termination of the petitioner, was ordered---Said report, could not be a substitute for departmental inquiry---Petitioner after his appointment, being entitled to continue his service till any recruitment made by Public Service Commission; a valuable legal right was created in favour of petitioner---Authorities, though were empowered to cancel/rescind the notification, rules, laws and orders, but they could not exercise the power under the principle of 'locus poenitentiae'---Authorities, did not follow the service rules, and failed to provide a fair opportunity to petitioner of being heard and defend the allegations levelled against him---Condemning the petitioner unheard just on the basis of a fact finding report, tantamounted to miscarriage of justice---Impugned order, was set aside with direction that the petitioner be reinstated in his position with back benefits.

PLD 1956 SC 431 and 1999 CLC 548 ref.

Basharat Ali and Aurangzeb Khan for Petitioner.

Assistant Advocate-General and Imran Hussain along with Departmental Representative for Respondents.

Date of hearing: 1st December, 2014.

2015 P L C (C.S.) 1213

[Chief Court Gilgit-Baltistan]

Before Sahib Khan, C.J. and Muhammad Alam, J

ROZEENA KHATOON and 2 others

versus

PROVINCIAL GOVERNMENT through Chief Secretary and 4 others

W.P.No.10 of 2013, decided on 2nd May, 2013.

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

----Arts. 71, 72 & 81---Writ petition---Civil service---Appointment, cancellation of---Petitioners had called in question impugned order passed by Secretary Education, whereby, he in the result of an inquiry, cancelled the appointment order of 183 persons, issued on various dates---Impugned order passed by the Secretary Education, had already been withdrawn by his superior i.e. Chief Secretary---Petitioners had not brought under question any subsequent order before the Chief Court and petition was solely based on the impugned order of Secretary Education---Said order was not in field due to subsequent order passed by the Chief Secretary---Writ petition having become infructuous, was dismissed, in circumstances.

2002 SCMR 1124 and 2002 PLC (C.S.) 182 ref.

Amjad Hussain and Javed Ahmad for Petitioner.

Dy. A.-G. assisted by Sher Ndir, Legal Advisor for Respondents Nos.3 and 5.

Khalid Mehmood Secretary Law and Prosecution G.B. in person.

2015 P L C (C.S.) 8

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

ABDUL AZIZ MUGHAL

Versus

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

Writ Petition No.2401 of 2012, decided on 26th August, 2013.

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

----Ss. 2(b), 4 & 5---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47(3)---Writ petition---Maintainability---Suspension---Inquiry proceedings---Jurisdiction of High Court when no adverse final order was passed by Authority---Scope---Petitioner assailed suspension order as well order of inquiry proceedings before High Court---Validity---Grievance relating to terms and conditions of civil servant had to be decided by the Service Tribunal on a regular appeal where no adverse order had been passed against the petitioner, there was no occasion for approaching the Service Tribunal---Writ petition was maintainable.

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

----Ss. 2(b), 4 & 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47(3)---Writ petition---Maintainability---Suspension---Inquiry proceedings---Terms and conditions of service---Petitioner was suspended and inquiry proceedings were initiated against him---Petitioner challenged suspension and inquiry order before High Court---Claim of the petitioner was that his suspension as well as initiation of disciplinary proceedings against him had been initiated by an incompetent authority--- Department raised objection on maintainability of writ petition being matter related to terms and conditions of service---Validity---Authority, who had suspended the petitioner and had passed the order of inquiry and subsequently for de novo inquiry, had no jurisdiction in the matter and as such order was coram non judice---Bar contained in S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 was not attracted as High Court could not ask the petitioner to wait till he was illegally hanged---Writ of prohibition could be issued to an Authority or Tribunal to refrain from proceeding further in any proceedings in which it had no jurisdiction to proceed under law---Order of suspension as well as inquiry proceedings were quashed---Writ petition was allowed.

(c) Administration of justice---

----Opinion of the law department was advisory in nature and was not binding on the courts, if the same was against the statutory provisions of law.

Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Dewan Petroleum (Pvt.) Ltd. through M.D./Chief Executive and another PLD 2012 SC 189 rel.

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

----Ss. 2(b), 4 & 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47(3)---Writ petition---Appointment of Inquiry Officer---Scope---Departmental proceedings were of semi-criminal nature and should have been initiated in accordance with the spirit of law---Civil servant had a right to have fair trial, which included appointment of an impartial and independent Inquiry Officer.

Azad Government of the State of Jammu and Kashmir, Muzaffarabad and another v. Muhammad Akram Shah 1989 CLC 905 rel.

2001 PLC (C.S.) 11; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faid and others PLD 2008 SC 135; Rana Muhammad Naveed and anther v. Federation of Pakistan through Secretary M/O Defence 2013 SCMR 596; Messrs Ahmed Clinic v. Government of Sindh and others 2003 CLC 1196; Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim Lodhran and 3 others 2006 CLC 1902; Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department 1981 PLC (C.S.) 194; The Muree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Muhammad Iqbal v. Secretary, Ministry of Interior Islamabad and 2 others 1993 PLC (C.S.) 1522; Miss Zubaida Khatoon v. Mrs. Tehimina Sajid Sheikh and others 2011 SCMR 265; Inayatullah and others v. Director-General and others 2006 SCMR 535; Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1998 CLC 783; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidydalaya, Sitapur (U.P.) and others AIR 1987 SC 2186; AJ&K Government and others v. Ch. Abdul Majeed and others 2004 MLD 844; Muhammad Arshad Khan v. Chairman, M.D.A. and 6 others 1997 MLD 3066; Divisional Personal Officer Pakistan Railways, Lahore v. Chairman, Punjab Labour Appellate Tribunal Lahore and 2 others 1987 CLC 1397; Tabassum Arif v. Azad Government and others 2013 SCR 134; Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439; Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others 1999 PLC 941; Habibullah Gannaie v. Wajahat Rashid Baig and 3 others 1999 PLC (C.S.) 615 and Qazi Muhammad Suleman and 5 others v. AJ&K Government and 2 others 2002 PLC (C.S.) 769 ref.

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

----S. 44---Writ jurisdiction of High Court---Scope---Principles and guidance for High Court to entertain writ petitions laid down by Azad Jammu and Kashmir Supreme Court.

Tahir Aziz Khan for Petitioner.

Syed Nazir Hussain Shah Kazmi for Respondents.

Saqib Javed deputizing Raza Ali Khan for Respondent No.6.

2015 P L C (C.S.) 330

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

INHABITANTS OF VILLAGE NINGA PANI NARIYOLA, DISTRICT BAGH

Versus

DISTRICT EDUCATION OFFICER (FEMALE), BAGH, AZAD KASHMIR and 3 others

Writ Petition No.2144 of 2012, decided on 10th September, 2014.

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

----S. 44---Writ petition--- Maintainability--- Locus standi to file constitutional petition---Scope---Writ of mandamus was solicited to direct respondent/teacher to perform their duties at the school---Non-joining of the respondent (teacher) at the said school was reported to the high-ups and political figures, but no action was taken---Inhabitants of the locality had hired services of a private teacher out of their pockets---Grievance of the petitioners was that despite the fact that the matter of non-joining of duty by respondent (teacher) at the said school was reported to the high-ups, instead of taking action against the respondent (teacher), the said school was shifted to another place with mala fide intention in violation of Notification dated 27-5-1984---Validity---Said school was established since 1976, therefore, according to notification dated 27-5-1984 the same could not be shifted to any other place by the departments because under notification dated 27-5-1984 a Site Selection Committee had been constituted by the Government which recommended that land could be acquired for construction of school in any other place---District Education Officer violated the said notification---Petitioners had proved through pleadings and record that the school was constructed by the government and an institution, which was established by the Government could not be shifted from one place to another---Such order was coram non judice, not creating any right which must be struck down---Respondents were directed to take all necessary steps for functioning of the school at the previous place and the teacher was directed to resume her duties in the said school forthwith failing which Secretary Education School was directed to take necessary disciplinary proceedings against her---Writ petition was accepted in circumstances.

Muhammad Rashid v. Azad Jammu and Kashmir Government and 20 others PLD 1987 SC (AJ&K) 60; Azad Government and 3 others v. Abdul Ghaffar Butt and 2 others 2000 SCR 250 and Mst. Kanza v. Judge Family Court, Lahore and another 2003 YLR 2356 rel.

Sajid Hussain Abbasi for Petitioners.

Nemo for Respondents.

2015 P L C (C.S.) 650

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

KHALID BASHIR MUGHAL and others

versus

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

Writ Petitions Nos.724, 901 and 2244 of 2012, decided on 8th December, 2014.

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

----S. 44---Writ petition---Civil service---Advertisement for the posts of Section Officer (Law)---Candidate having two domicile certificates---Effect---Petitioner was not authorized to keep in possession two domicile certificates for different places at one and the same time---Petitioner, at the relevant time, was not holding a valid certificate of domicile from District "X", thus, was not eligible to apply for the post of Section Officer (Law) against the quota reserved for refugees settled in Pakistan--- Writ petition was disposed of accordingly.

(b) Azad Jammu and Kashmir State Subjects Act, 1980---

----S. 5---Certificate of domicile, issuance of---Requirement---Certificate of domicile could be issued to a person after satisfaction that applicant had been continuously residing in Azad Jammu and Kashmir for a period of not less than five years.

2012 MLD 1508; 2003 PLC (C.S.) 554 and 2002 PLC (C.S.) 1425 rel.

Khalid Bashir Mughal for Petitioner No.1 (in Writ Petition No.724 of 2012 and non-petitioner No.7 in Writ Petition No.2244 of 2012, in person).

Miss Saima Nazir for Petitioner No.2 (in Writ Petition No.724 of 2012, and non-petitioner No.8 in Writ Petition No.2244 of 2012, in person).

Sadaqat Hussain Raja for the Petitioner (in Writ Petition No.2244 of 2012 and non Petitioner No.11 in Writ Petition No.724 of 2012).

Syed Ali Raza Gillani for Petitioner (in Writ Petition No.2244 of 2012 and non-petitioner No. 11 in Writ Petition No.724 of 2012), in person.

Syed Asim Masood Gillani for Petitioner (in Writ Petition No.901 of 2012).

Ch. Shaukat Aziz, Addl. A.-G. for official non-Petitioners Nos.1 to 3, (in Writ Petition No.724 of 2012).

Sajid Hussain Abbasi for non-Petitioner No.1 (in Writ Petition No.2244 of 2012).

DCP Ehtesab Bureau for non-petitioner No.4 (in Writ Petition No.2244 of 2012)

2015 P L C (C.S.) 812

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

KHURSHEED MEHMOOD KHAN

versus

GOVERNMENT OF AZAD JAMMU AND KASHMIR through Chief Secretary and 2 others

Writ Petition No.660 of 2011, decided on 27th January, 2015.

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

----R. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Advertisement for the posts of Section Officers---Petitioner being qualified for the post applied for the same against allocated quota of District "K" and after obtaining test and interview Public Service Commission placed him at serial No. 1 of the general waiting merit list---Services and General Administration Department sent requisition for sixteen more posts of Section Officers including two posts of District "K"---Candidates who passed written examination with regard to four posts of Section Officers as per previous advertisement were interviewed by the Public Service Commission---Public Service Commission had not made a fresh advertisement/amendment to the previous advertisement---Validity---If requisitioning authority had intimated to the Public Service Commission with regard to additional vacancies before the date of test/examination or interview was fixed for earlier vacancies keeping in view the time factor, Commission should issue fresh proclamation pertaining to amendment to the previous advertisement---Public Service Commission had violated its own mandatory procedure although subsequent requisition for additional vacancies was sent to it much before date of interview conducted for the posts earlier advertised through proclamation---Issue of time frame was also not involved---Had these sixteen posts been included in earlier requisition then petitioner would have been in successful candidates---No person should suffer from an unlawful act of the Authority which was bound to pass an order strictly in accordance with law---Relief sought by the petitioner could be extended against withheld posts of Section Officers---Petitioner could not be penalized for an unlawful act of Public Service Commission---Public Service Commission was also directed to recommend the petitioner against one withheld post pertaining to allocated quota of District "K" requisitioned by Services and General Administration Department---Government was also directed to appoint the petitioner on the basis of recommendations of Public Service Commission within the specified period---Writ petition was accepted in circumstances.

Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537; Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298 and Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another PLD 1994 Lah. 3 rel.

(b) Administration of justice---

----No person should suffer from an unlawful act of the Authority which was bound to pass an order strictly in accordance with law.

Barrister Humayun Nawaz Khan for Petitioner.

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

2015 P L C (C.S.) 977

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SAEED AHMED QURASHI

versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 3 others

Writ Petition No.20 of 2015, decided on 5th January, 2015.

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

----S. 44---Writ petition---Maintainability---Alternate remedy---Civil service---Apprehension for cancellation of transfer order---Petitioner filed writ petition to restrain respondents (authorities) from cancellation of his transfer order---Validity---Petitioner who was appointed by transfer by the competent authority had alleged that certain proceedings had been initiated by the authorities to recall transfer order---No proof had been appended with the writ petition with regard to cancellation of transfer order---Writ petition had been filed merely on the basis of apprehension and without any documentary proof on conjectures and surmises---Such petition could not be filed---Petitioner was a civil servant and in case of cancellation of his posting notification against Government Policy, he had an alternate remedy of filing appeal---Writ petition was dismissed in limine, in circumstances.

Muhammad Shafi and another v. Ch. Ilam-ud-Din and others 1968 SCMR 317 and Muhammad Asaf v. Small Business Finance Corporation through Branch Manager, Lahore Cantt. and 7 others 2001 YLR 1891 rel.

Raja Majid Khan for Petitioner.

2015 P L C (C.S.) 1051

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SAFINA BEGUM

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 7 others

Writ Petition No.2654 of 2014, decided on 7th January, 2015.

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

----Ss. 44 & 47(2)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Writ petition---Civil service---Transfer of an employee---Alternate remedy---Where any Administrative Court or Tribunal had been established no other Court could grant an injunction, make any order or entertain any proceedings with regard to any matter to which jurisdiction of such Administrative Court or Tribunal had been extended---Azad Jammu and Kashmir Service Tribunal having been established, writ petition was hit by the provisions of S.47(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Petitioner had an alternate, adequate and efficacious remedy to challenge notification of her transfer before Service Tribunal---Present writ petition was also barred under S.44(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petition was dismissed in limine however petitioner would be at liberty to challenge impugned notification before the concerned Service Tribunal as per law.

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

----S. 2(1)(b)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.2 (b)---"Civil servant"---Meaning---Exclusion of category of employees from the ambit of "civil servant" detailed.

Muhammad Sarfaraz and 174 others v. Government of Punjab through Secretary, Education Department Civil Secretariat Lahore and others 2001 PLC (C.S.) 1224 and Shaheen Akhtar v. Government of Punjab and others 1988 PLC (C.S.) 70 rel.

Muhammad Abrar for Petitioner.

2015 P L C (C.S.) 1206

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

IMRAN HUSSAIN through Attorney

versus

AZAD JAMMU AND KASHMIR UNIVERSITY through Registrar Office and 3 others

Writ Petition No.305 of 2015, decided on 19th February, 2015.

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.32(2)---Writ petition---Maintainability---Civil service-Show-cause notice, issuance of---Scope---Petitioner had failed to append certified copy of impugned show-cause notice with the writ petition---Such writ petition was bad in law---Writ petition against show-cause notice issued by the competent authority was not maintainable---Petition was dismissed in limine, however, petitioner would be at liberty to place his defence before the competent authority as per law.

Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1995 SCR 231 ref.

Shaheen Asad v. Azfar Yaseen and 4 others 2000 SCR 308 rel.

Mushtaq Ahmed Janjua for Petitioner.

Syed Mushtaq Hussain Gillani for Respondents.

2015 P L C (C.S.) 1533

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

MUHAMMAD MANZOOR AWAN

Versus

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

Writ Petition No.663 of 2014, decided on 18th June, 2015.

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

----S. 44---Writ petition---Civil service---Date of birth, correction of---Ex parte decree obtained without impleading necessary party---Effect---Retirement of employee---Terms and conditions of service---Contention of petitioner was that his date of birth was 1-1-1958 which had been wrongly entered as 13-4-1954---Validity---Petitioner had himself entered date of birth in his matriculate certificate and subsequently in all his service record as 13-4-1954---Said entry had been repeated by the petitioner till 2011---Petitioner filed suit for declaration and he was granted decree on 3-1-2014---Government which was employer was not impleaded as party in the said suit---No opportunity to refute the stand taken by the petitioner in the suit had been provided to the employer---Such ex parte decree was not binding on the government/employer---Decree which had been obtained without impleading a necessary party was a nullity in the eye of law and same was liable to be ignored---Employee had been retired from service---Proper course for the employee was to approach the Service Tribunal for redressal of his grievance as retirement was a part of terms and conditions of service---Writ petition was dismissed in limine.

Habibullah v. Mahmood 1984 CLC 309; Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others PLD 1985 SC (AJK) 102;

Union of India v. Rama Swamy AIR 1997 SC 2055; Khurshid Hussain's case, 2012 PLC (C.S.) 429 and Alamdar Hussain v. Inspector-General of Police, Punjab and others 2003 SCMR 1105 rel.

Shaukat Hussain Abbasi for Petitioner.

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

2015 P L C (C.S.) 37

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Qazi MUSTAFA KAMAL

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others

Writ Petition No.2152 of 2014, decided on 24th June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Constitutional petition before the High Court---Maintainability---Alternate remedy---Scope---Judicial review could be exercised if the alternate remedy was not adequate or efficacious---Alternate remedy must be capable of achieving the same purpose as was sought to be achieved through the constitutional petition.

2012 SCMR 455 and PLD 2012 Sindh 425 rel.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199(1)(b)(ii)---Constitutional petition before the Supreme Court/High Court---Quo warranto, writ of---Maintainability---Contents of petition---Conduct of petitioner---In writ petitions in the nature of quo warranto, the message was more important than the messenger---Contents of such petitions generally override concerns arising on account of the conduct or antecedents of a petitioner.

2013 SCMR 1159 and PLD 2012 SC 132 rel.

(c) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Laches---Laches did not apply to writ of quo warranto as the cause of action was a recurring one, so long as the public office was being held by the person in question---Unlawful holding of a public office was a continuing wrong, which may be called into question by anyone, at any time.

2010 PLC (C.S.) 731; PLD 2010 Lah. 625 and 2002 PLC (C.S.) 274 rel.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope---Public office---Recruitment process---Subject to judicial review---Entire process of recruitment leading to appointment to a public office could be subjected to judicial review under Art.199(1)(b)(ii) of the Constitution---Such process had to pass the test of law, which included the settled principles of due process, openness, fairness, participation and transparency---Recruitment process must be above board and devoid of the slightest smear of nepotism---Court was under an obligation to judicially review the integrity of the entire selection process to a public office.

(e) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Government of Pakistan, Establishment Division Notification No. 6/4/1996.R-3 dated 22-07-2013---Quo warranto, writ of---Pakistan Television Corporation (PTVC)---Managing Director, post of---Selection process---Eligibility criteria for candidates--- Change in eligibility criteria to accommodate a specific candidate---Legality---"Person specific criteria"---Nepotism and favouritism---Arbitrary and colourable exercise of authority--- Making of false statements, misrepresentation and cheating during interview for selection---Respondent was appointed to post of Managing Director, PTVC, which was challenged by the petitioner by way of present constitutional petition---Process of appointment of Managing Director, PTVC was initiated through advertisement---Various criteria for eligibility for said post were changed twice through further advertisements, without any plausible rationale or justification---Educational requirement for a candidate was initially advertised as a Master's degree but was subsequently lowered to a Bachelor's degree, without any apparent reason---Grade 15 or 16 employee of PTVC were required to have a Master's degree as a bare minimum, thus it was all the more surprising that educational requirement for head of PTVC was lowered to a Bachelor's degree---Furthermore in terms of the revised advertised criteria educational qualification of Bachelor's in Arts and Social Sciences was added, whereas requirement of providing "written evidence" of 15 years work experience was changed to "established track record" of 15 years work experience---Such changes in eligibility criteria was to accommodate the respondent who only had a Bachelor's in Arts and was not able to provide written evidence of work experience from some of his past employers---Eligibility criteria was changed/ manipulated and maneuvered to enable the respondent to apply for the post of Managing Director, PTVC---Furthermore a company owned by respondent was a long standing defaulter of PTVC---Established liability of respondent towards PTVC existed at the time when process of recruitment for the post in question had already commenced---Respondent did not pay PTVC the outstanding amount till notification of his appointment as Managing Director, PTVC---Subsequently PTVC did issue a clearance certificate to the said company owned by respondent but only after he had been appointed to the post of Managing Director---During his interview by Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), the respondent made a false statement before the said Commission to the effect that companies owned by him or his spouse did not have any outstanding liabilities towards PTVC---Respondent misled and cheated the said Commission and committed criminal act of making false statement and misrepresentation--- Commission (FCHPSO) recommended names of two candidates to the Prime Minister for the post of Managing Director, PTVC, which recommendation was binding---Name of respondent was placed at number 2 on the list on order of merit, but astonishingly the Prime Minister exercised his discretion by disregarding the name of candidate placed at number 1, and without any reason recommended appointment of respondent, who was placed at number 2 on the merit list---Such exercise of discretion was arbitrary and colourable exercise of authority---In the context of selection through open advertisement, merit and interview/short-listing process, it was all the more important that the person selected by the Commission (FCHPSO) as the most suitable candidate for the job, was appointed to such post, rather than giving the concerned authority the option or discretion of hand picking and choosing any person out of the list provided---Respondent also had his own private production company which sold its products to PTVC, thus he was disqualified to be even considered for the post of Managing Director, PTVC as his personal interest clashed with the interest of PTVC---Respondent was appointed as Managing Director, PTVC, with immediate effect, prior to settlement of the terms and conditions of his service, including salary, perks and other privileges, which fact spoke volumes of the pre-conceived intention of the concerned authority in constructing the appointment of respondent to the post in question---High Court declared appointment of respondent as Managing Director, PTVC as non-transparent, non-competitive and illegal---Constitutional petition was allowed and High Court directed that respondent shall forthwith cease to be Managing Director, PTVC, and Chairman of the Commission (FCHPSO) should re-initiate the competitive process of appointment of Managing Director, PTVC, afresh strictly in line with the guidelines laid down by the Supreme Court in the case of Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205].

2013 PLC (C.S.) 1147; Khawaja Asif's case 2013 SCMR 1205 and PLD 2012 SC 132 ref.

(f) Civil service---

----Appointment---Government of Pakistan, Establishment Division Notification No.6/4/1996.R-3 dated 22-7-2013--- Para.4(vi)---Appointment of head of a public sector organization--- Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), recommendation of---Recommendation of FCHPSO to the competent authority regarding selection/appointment of head of a public sector organization was binding.

(g) Constitution of Pakistan---

----Art. 199(1)(b)(ii)----Quo warranto, writ of---Public office, appointment to--- Recruitment/selection process--- Discretion of appointing authority---Subject to judicial review---Appointing authorities 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---Exercise of power by such appointing authorities was judicially reviewable.

(h) Discretion---

----Structured discretion, exercise of---Scope---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirements of due process, transparency, fairness and safeguarded discretion against the vice of discrimination and arbitrariness.

2010 SCMR 1301 ref.

Barrister Faisal Khan Toru, Ms. Hadiya Aziz and Khubab Aziz for Petitioner.

Fazal-ur-Rehman Khan Niazi, D.A.-G. for Respondents.

Muhammad Nazir Jawad and Feisal Hussain Naqvi, Advocate Supreme Court for Respondent No.2.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Ch. Hassan Murtaza Maan and Sultan Hayat Ranjha for Respondent No.3.

Date of hearing: 16th June, 2014.

2015 P L C (C.S.) 208

[Islamabad High Court]

Before Athar Minallah, J

MUHAMMAD SAJJAD and others

Versus

FOP and others

Writ Petition No.1703 of 2013, decided on 10th September, 2014.

(a) Constitution of Pakistan---

----Arts. 9, 25, 199 & 212---Constitutional petition---Maintainability---Civil service---Regularization of contract employees / daily wagers---Discrimination---Terms and conditions of eligibility for regularization were specified in the regularization policy---Cabinet Committee was constituted for implementation of the Policy subject to fulfillment of some conditions---Cabinet Committee recommended for regularization of petitioners in accordance with the Policy after fulfilling the said conditions---Contentions of the petitioners were that as the Federal Service Tribunal remained dysfunctional, therefore, they sought enforcement of their Fundamental Rights particularly guaranteed under Art.25 of the Constitution; and that recommendations of the Cabinet Committee for regularization of the petitioners had not been implemented---Validity---High Court observed that discrimination in service matters had always been deprecated in the strongest words because it lead to devastating consequences--- Resentment had given rise to a feeling of being discriminated and was a major cause of bad governance, which inevitably affected the general public by violating their Fundamental Rights as well; it had given rise to a perception that policies were implemented on the basis of whims, nepotism or for political considerations; such a perception was enough to erode public confidence in executive authorities and thereby weakens the writ of the State; principle against discrimination was embedded in the concept of the rule of law---Failure of the State to provide inexpensive and effective forums for dispute resolution had given rise to an intolerant and chaotic society; present petitions were to be classic examples of employees, who were deprived of effective and inexpensive forums to redress their grievances---Federal Government, which owned the Policy, might provide an effective forum and decide the grievances in the present petitions being the best judge of its own Policy---High Court passed the order with the consent of the parties---Constitutional petitions were disposed of in circumstances.

Brig. F.B. Ali v. State PLD 1975 SC 506; Engineer Iqbal Zafar Jhagra and Senator Rukhsana Zubairi v. FOP and others 2014 SCMR 220; OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 PTD 243; Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmad and others 2013 SCMR 1687; Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd and others 2013 SCMR 1749; Punjab Public Service Commission and another v. Mst. Ayesha Nawaz and others 2011 SCMR 1602 and Wattan Party through President v. FOP through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 rel.

(b) Constitution of Pakistan---

----Arts. 199 & 25---Constitutional jurisdiction of High Court---Scope---Government Policies---Violation of Fundamental Rights---Effect---Courts exercise restraint in matters of Government Policies except when it could be shown that Fundamental Rights had been violated.

(c) Civil service---

----Public functionaries---Duties of---Duty of executive and all public functionaries to implement its policies in letter and spirit by holding the interests of the employees supreme---Public functionaries were under a duty that they must at all times act in a just, fair, equitable and transparent manner.

Amir Javed, M. Shabbir Bhutta, Ali Murad Baloch, Mehrem Baig, Khizar Hayat Khan, Ghulam Mehboob, Muhammad Ramzan Khan, Umar, Syed Muzhar Naqvi, Khawaja Javid Iqbal, Sadiq Nawaz Khattak, S.A. Matin, Muhammad Riaz Akbar, Pervez Khan, Arshad Mehmood Malik, Shafqat Mehmood, Bilal Hassan Sabri, Muhammad Shoaib Shaheen, Muhammad Umair Baloch, Arbab Alam Abbasi, Mian M. Faisal Irfan, Rana Afsar Ali, Kifayat Ullah Wazir, Ch. Bilal Ahmed and Ghulam Fareed Chaudhry, for Petitioners (in their respective writ petitions).

Mohsin Akhtar Kayani, Mrs. Misbah Gulnar Sharif, Sh. Junaid, Raja Zubair Hussain Jaral, Asad Javid Komal, Mumtaz Ahmed Bilal, M.D. Shahzad, Waseem ud Din Khattak, Muhammad Arfan .Ullah Khan, Abdul Rehman S. Alvi, for Respondents.

Malik Faisal Rafique, DAG and Tallat Abbas Khan, Standing Counsel.

Major M. Ayaz, representative of M/O Interior, Barrister Rizwan Ahmad, Assistant Legal Advisor M/O Foreign Affairs, Ms. Shabana Ashraf, Deputy Director (Admn. and Accounts) PNCA, Qamar ul Islam Siddiqui, Amjad Saeed Awan, S.O. Establishment Division, Malik M. Bashir, Assistant Estate Office, Islamabad, Ahsan Ameen, Assistant Director PHA, Tariq Mahmood, Company Secretary, Livestock and Dairy Development Board, Muhammad Gulzar, Legal Supervisor, National Construction Ltd. Islamabad and Muhammad Arshad Anjum, A.D. Legal FDE, for representatives of the Respondents.

2015 P L C (C.S.) 248

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

MUHAMMAD MASOOD MALIK and others

Versus

MINISTRY OF PETROLEUM AND NATURAL RESOURCES and others

Writ Petition No.3346 of 2010, heard on 19th September, 2012.

Oil and Gas Development Corporation Employees (Service) Regulation, 1994---

----Chapter-V, Appendix-C & Chapter-III---Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001), S.5---Constitution of Pakistan, Art.199---Constitutional petition---Promotion policy, change in---Bell Curve Scheme---Petitioners were employees of Oil and Gas Development Corporation and they were aggrieved of Bell Curve Scheme introduced by authorities---Plea raised by petitioners was that Employer Corporation had statutory rules and the Scheme introduced by authorities was without sanction of Federal Government, which would affect their promotion---Validity---No change in terms and conditions of service of petitioners had occurred after introduction of Bell Curve System and the same had been introduced on the analogy of re-organization and restructuring of the Organization in order to improve efficiency of employees---Oil and Gas Development Corporation, under S.5 of Oil and Gas Development Corporation (Re-organization) Ordinance, 2001, could not be stopped from introducing any mechanism in order to bring improvement in working of employees---Petitioners did not bring on record document to show that Annual Confidential Reports and Performance Evaluation Reports of employees of Oil and Gas Development Corporation were not taken into consideration under Bell Curve Scheme at the time of considering any officer/official for promotion against any vacant post---Petitioners failed to point out that Bell Curve Scheme had hindered promotion of petitioners in accordance with procedure as provided under Oil and Gas Development Corporation Employees (Service) Regulations, 1994---Petition was dismissed in circumstances.

2011 SCMR 1912; 2010 PLC (C.S.) 621; PLD 1999 SC 990; PLD 1965 SC 420; 1992 SCMR 1112; 1990 SCMR 1321 and PLD 2003 SC 143 ref.

Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427 rel.

Abdur Rehman Siddiqui for Petitioners.

Mushtaq Hussain Bhatti for Respondents.

Date of hearing: 19th September, 2012.

2015 P L C (C.S.) 309

[Islamabad High Court]

Before Athar Minallah, J

MUHAMMDA JAVAID and others

Versus

F.O.P. and others

Writ Petition No.965 of 2013 and 142 other Petitions, decided on 11th September, 2014.

Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual employment---Petitioners were employees of Federal Government on daily wages/contract basis but they were not regularized under the policy formulated for the purpose---Validity---High Court directed that Federal Government which owned the policy should provide effective forum and decide grievances of petitioners being the best judge of its own policy; that Federal Government would constitute a Committee to consider grievances and pass speaking orders in each case after giving opportunity of hearing to employees; that each employer would submit its comments to Federal Government for placing the same before Committee constituted for the purpose and the Committee after hearing petitioners and respective employer would pass orders in accordance with law and that in the event Committee had come to the conclusion that there had been discrimination in implementing the policy, the decision would be communicated to Federal Government who would ensure its implementation without delay---Committee would identify all such cases in which employees were eligible under the policy to be considered and a Cabinet sub-Committee would be constituted to consider the cases referred by the Committee and the Committee would process the cases preferably within 90 days---High Court expected from respective employers that restraint would be exercised in taking action against its employees till finalization of proceedings by the Committee, except in cases where disciplinary proceedings had or might be initiated or the services were otherwise liable to be terminated---High Court further directed that petitions be treated as representations deemed to be pending before Federal Government---Petition disposed of accordingly.

Brig. F.B. Ali v. State PLD 1975 SC 506; Engineer Iqbal Zafar Jhagra and Senator Rukhsana Zubairi v. FOP and others 2014 SCMR 220; OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 PTD 243; Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmed and others 2013 SCMR 1687; Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd and others 2013 SCMR 1749; Punjab Public Service Commission and another v. Mst. Ayesha Nawaz and others 2011 SCMR 1602 and Wattan Party through President v. FOP through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Qazi Naseer Ahmad, Mir Aurangzeb, Barrister Omer Malik, Sh. Muhammad Suleman, Shafqat Mehmood, Ch. Sagheer, Mohsin Bhatti, Malik Jawwad Khalid, Hafiz Arfat Ahmad Chaudhry, Muhammad Shabbir Ahmad Nasir, Ahmed Nawaz Bhatti, Ch. Bilal Ahmad, G.M. Chaudhry, Jam Khurshid Ahmad, Mian Abdul Rauf, Tariq Mehmood, Bilal Hasan Sabri, Muhammad Ramzan Khan, M.A. Malik, Ibrar Hussain, Muhammad Sarwar, M. Shafiq ur Rehman Dab, for Petitioners (in their respective writ petitions).

Amjad Zaman Khan for NHA, Sltan Hayat for OTV, Khalid Zaman, Rehan Seerat, Bilal Raza, Muhammad Asif Khan, Muhammad Amin Feroze Khan, M.D. Shahzad, Mrs. Misbah Gulnar Sharif, Barrister Waqas Qureshi, Muhammad Nadeem Zafar Khan Khan, Ms. Shahida Sukhera, Khalil ur Rehman Abbasi, Ch. Asghar Ali, lmran Feroze, Malik Shakil ur Rehman Khan, Abdul Rehman S. Alvi, Barrister Afzal Hussain, Raja Zubair Hussain Jaral, Saeed Ahmad Zaidi, Tajammal Hussain and Abdus Salim Qureshi, for Respondents.

Tariq Mehmood Khokhar, Additional Advocate General and Tallat Abbas Khan, Standing Counsel.

Abdul Waris, Senior Auditor AGPR, Arshad Pervez, AD, Muhammad Nawaz, Inspector, Maj. Liaquat Ali Khan for FWO, Navid Anjum Legal Advisor PIMS, Abdul Samad Sheikh Research Officer M/O National Food Security, Hasnain Yousaf, Deputy Director M/o Foreign Affairs, Amjad Saeed Awan S.O. Establishment Division, Nadeem Arshad S.O. Finance Division, Muhammad Arshad Anjum, A.D. Legal FDE, Zafar Ali Khan, PWD, M. Rashid Headclerk, Carriage Factory Islamabad, Faiz Rasool head clerk Pakistan Railways, Nisar Ahmad, Director PDM, Rashid Ahmad, S.O. A/PDM, Sakhi Muhammad, SCO, Rana Naeem Ahmed A.O. CMA, Syeda Mehrukh Batool Law Officer Pakistan Revenue Automation (Pvt.) Ltd. Tariq Mahmood Company Secretary Livestock and Dairy Development Board, Nadeem Salahuddin, Deputy Commission Legal, Punjab Revenue Authority and Mehrban, Admn. Officer for M/o Defence Director FGEI, representatives of Respondents.

2015 P L C (C.S.) 460

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

KHALID SAFDAR

Versus

SECRETARY, MINISTRY OF FINANCE GOVERNMENT OF PAKISTAN, ISLAMABAD

Writ Petition No.3851 of 2014, heard on 7th November, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 25---Rules of Business, 1973, R.11---Constitutional petition---Civil service---Change of status by upgradation/promotion into move-over---Effect---Facility of rental ceiling/house rent allowance---Entitlement---Mala fide of authorities for excluding the other categories---Effect---Discrimination---Failure of authorities to produce the letter issued by the Establishment Division---Effect---Authority to issue memorandum---Scope---Petitioner's post of Private Secretary was upgradated as Senior Private Secretary from BS-18 to 19 after fulfillment of prescribed conditions---Order of upgradation/ promotion was acted upon and the petitioner started to enjoy the benefits thereof, but subsequently the order of upgradation/promotion of the petitioner was withdrawn through the impugned memorandum treating the said promotion/upgradation of Senior Private Secretaries (BPS-19) at par with move-over---Validity---Memorandum dated 23-12-2011 did not mention that the upgradation was just like move-over---Memorandum of withdrawal of benefit had been issued after lapse of a considerable period of two years and ten months and during said period no action was taken by the Finance Division---Authority to issue the office memorandum was vested with the Establishment Division and no such authority was vested with the Finance Division---Maxim: "A communi observantia non est recedendum" (where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done, same would not be lawful)---Authority while issuing the impugned memorandum without prior consultation/concurrence from the Establishment Division as required under the law had committed serious illegality, so the same was ineffective upon the rights of Private Secretaries---On the basis of obstructive document, a right already occurred in favour of beneficiaries after approval of the Prime Minister of Pakistan could not be snatched away---High Court set aside the impugned memorandum and the upgradation of the posts of Private Secretaries as Senior Private Secretaries was ordered to be considered as promotion in order to obviate the financial loss being suffered by them---Constitutional petition was disposed of in circumstances.

(b) Maxim---

----"A communi observantia non est recedendum"---Meaning---Where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done, same would not be lawful.

M. Shoaib Shaheen for Petitioner.

Jahangir Khan Jadoon, Standing Counsel with Nadeem Arshad, S.O. (Legal), Ministry of Finance for Respondent.

Date of hearing: 7th November, 2014.

2015 P L C (C.S.) 537

[Islamabad High Court]

Before Athar Minallah, J

MUHAMMAD AZRAM

Versus

NATIONAL INSTITUTE OF HEALTH and others

Writ Petition No.178 of 2013, decided on 15th October, 2014.

(a) National Institute of Health Employees (Service) Regulations, 1989---

----Reglns. 63 & 69---Constitution of Pakistan, Arts. 199, 10-A & 25---Constitutional petition---Laches---Scope---Civil service---Misconduct---Criminal case was registered against the petitioner (employee) and he was dismissed from service without any notice and proceedings---Natural justice, principles of---Speaking order---Disciplinary and criminal proceedings---Audi alteram partem, principle of---Discrimination--- Effect--- Reasonable classification--- Scope--- Regulation 63 of National Institute of Health Employees (Service) Regulations, 1989 did not give unfettered and unbridled power for imposing a penalty without observing the principles of natural justice---Principles of natural justice had to be followed so that Authority could decide whether employee should be dismissed or removed from service, reduced in rank or whether to absolve him from the charge of misconduct---Regulation 63 of National Institute of Health Employees (Service) Regulations, 1989 was inapplicable to such an employee who had been sentenced to a fine or imprisonment---Said Regulation did not exclude or expressly oust the principles of natural justice in the case of disciplinary proceedings against an employee sentenced to a fine or imprisonment---Authority could make a choice after employee had been informed of the allegations which he had to explain affording him/her an opportunity of hearing and thereafter passing a speaking order---No right of appeal had been provided to an employee falling within the category specified in Regulation 63 of National Institute of Health Employees (Service) Regulations, 1989---Services of petitioner should not have been terminated without observing the principles of natural justice---Disciplinary and criminal proceedings were distinguishable and they were independent of each other and could not be termed as synonymous and interchangeable---Both disciplinary and criminal proceedings had different characteristics---Forums for adjudication, principles of evidence and procedure were also separate and distinct---Decision of one forum could not have bearing on the decision of the other---Whether a person was convicted or acquitted in a criminal trial could not influence the disciplinary proceedings---Outcome of criminal trial could not influence the disciplinary proceedings---Principles of natural justice were mandatory for the purposes of proceedings under Regln.63 of National Institute of Health Employees (Service) Regulations, 1989---Authority had to make a choice between different penalties provided in the said Regulation or discharge the employee---Any decision taken without observing the principles of natural justice i.e. serving a show cause notice, informing the employee with regard to precise allegations and affording a reasonable opportunity of hearing would be arbitrary, whimsical, without lawful authority and therefore illegal---Violation of the principle of audi alteram partem would render an order or decision a nullity in law---Principles of natural justice were to prevent miscarriage of justice and ensure fair play in actions--Infliction of any penalty, deprivation or curtailment of a right or any other action which might prejudice the rights of a person if passed in violation of rules of natural justice was not sustainable---Same would result in endorsing the giving of untrammeled and unfettered powers to the authorities who had adjudicated upon the rights of citizens---Due process had been acknowledged as a fundamental right--Observance of rules of natural justice while adjudicating the rights of citizens were equally important even before the insertion of Art.10-A in the Constitution as a fundamental right---Public authorities were required to act fairly and justly while performing their functions and exercising powers---Fair and just exercise of powers could only be ensured by strictly observing the principles of natural justice---Where giving of notice was necessary condition the failure to do so would render the order void---Right against discrimination was a fundamental right guaranteed under Art.25 of the Constitution---Similarly situated persons could not be treated differently which would render any action or order as void, arbitrary and illegal---Reasonable classification of persons was permissible who might be treated differently provided there was legitimate basis for such classification---Classification should not be arbitrary and capricious and must rest on reasonableness and there should exist a fair nexus and just relationship with the need for such classification---Petitioner ought to have been reinstated in response to his representation so that he could be treated at par with the other similarly situated employees---Petitioner had made out a case of being treated differently from a similarly situated employee---Impugned order was in violation of fundamental right guaranteed by the Constitution---Laches would not be a bar in granting the relief when there was a continuous wrong---Petitioner was entitled to the grant of discretionary relief and laches would not operate as a bar in the present case---Impugned order was declared to be in violation of Regln.63 of National Institute of Health Employees (Service) Regulations, 1989, rules of audi alteram partem and fundamental right guaranteed under Art.25 of the Constitution---Impugned order was arbitrary, illegal and same was set aside---Department would be at liberty to treat the period from the date of impugned order till the date of reaching the age of superannuation as any kind of leave including leave without pay, while salary for the period when petitioner remained under suspension and his pension after retirement should be paid strictly in accordance with the relevant rules and instructions---Department was directed by the High Court to complete all the formalities and calculate the pension within a specified period---Constitutional petition was accepted in the terms of prayer sought therein in circumstances.

Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Executive Engineer and others v. Zahid Sharif 2005 PLC (C.S.) 701; Falak Sher v. Inspector-General of Police, Punjab and 2 others 2005 SCMR 1020; Rab Nawaz Hingoro v. Government of Sindh and others 2008 PLC (C.S.) 229; Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484; Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court Lahore 2004 SCMR 540; 'Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192; Muhammad Ayub v. The Chairman Electricity Board WAPDA, Peshawar and another PLD 1987 SC 195; Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Commissioner of Income-Tax East Pakistan v. Fazlur Rahman PLD 1964 SC 410; Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad 2012 PLC (C.S.) 1052; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899; Dhirendra Kumar v. Superintendent and Remembrancer of Legal Affairs to the Government of West Bengal AIR 1954 SC 424; Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad 1997 SCMR 1026 and Chief Executive Progressive Paper Limited/The Chairman National Press Trust, Islamabad v. Sh. Abdul Majeed and another 2005 PLC (C.S.) 1439 rel.

(b) Civil service---

----Disciplinary and criminal proceedings---Distinction---Disciplinary and criminal proceedings were distinguishable and they were independent of each other and could not be termed as synonymous and interchangeable---Both disciplinary and criminal proceedings had different characteristics---Forums for adjudication, principles of evidence and procedure were also separate and distinct---Decision of one forum could not have bearing on the decision of the other---Whether a person was convicted or acquitted in a criminal trial could not influence the disciplinary proceedings---Outcome of criminal trial could not influence the disciplinary proceedings.

Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Executive Engineer and others v. Zahid Sharif 2005 PLC (C.S.) 701; Falak Sher v. Inspector-General of Police, Punjab and 2 others 2005 SCMR 1020; Rab Nawaz Hingoro v. Government of Sindh and others 2008 PLC (C.S.) 229; Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484; Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court Lahore 2004 SCMR 540; Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192 and Muhammad Ayub v. The Chairman Electricity WAPDA, Peshawar and another PLD 1987 SC 195 rel.

(c) Administration of justice---

----Public authorities were required to act fairly and justly while performing their functions and exercising powers.

(d) Constitution of Pakistan---

----Art. 10-A---Right of fair trial---Scope---"Due process" had been acknowledged as a fundamental right.

(e) Natural justice, principles of---

----Applicability---Fair and just exercise of powers could only be ensured by strictly observing the principles of natural justice.

(f) Constitution of Pakistan---

----Art. 25---Equality before law---Scope---Similarly placed persons could not be treated differently as doing so would render any action or order as void, arbitrary and illegal.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, principle of---Scope---Constitutional jurisdiction of High Court was discretionary and same would rest on the foundation of equity---Law of limitation was not attracted and no time was prescribed for invoking the extraordinary jurisdiction of High Court---Jurisdiction under Art.199 of the Constitution was subject to the bar known as laches---High Court had to decide whether discretionary relief should be granted or refused keeping in view various facts of the case when there was a delay---Laches would not be a bar in granting the relief when there was a continuous wrong.

Muhammad Bashir Khan for Petitioner.

Mian Arshad Javed and Muhammad Zaka Ullah representative NIH for Respondents.

Date of hearing: 22nd September, 2014.

2015 P L C (C.S.) 568

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Dr. Rana MUHAMMAD AKHLAQ

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others

Writ Petition No.3476 of 2013, heard on 9th April, 2014.

(a) Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Ordinance (XLIV of 1979)---

----S. 3---Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Rules, 1980, R.5---Export Control (Animal) Order, 2004, Cl.2.53---Constitution of Pakistan, Art.199---Constitutional petition---Import of sheep---Health of animals---Determination---Plea raised by petitioners was that consignment of sheep imported from Australia was wrongly declared to be violative of food security and livestock---Validity---No documentary evidence was available on record to show that consignment in question was rejected by Bahrain authorities due to some disease in the sheep as in that case "World Alert" would have been issued by Bahrain authorities as per practice prevailed in international animal trade so that no further trade in such animals from that geographical area be carried out---Not a single document of Bahrain government was available which could prove that said government rejected the sheep due to infected by some disease except speculated media reports which were only based on hearsay---High Court declared the whole process of culling of sheep as unlawful---Respondent had been continuously harassed by officials of Provincial Government through different tactics to not to pursue constitutional petition before the Sindh High Court which resulted into withdrawal of the same by the respondent just one day before announcement of order by Division Bench of High Court of Sindh High Court---High Court directed the Provincial Government to take up matter for initiating legal action against officials responsible for the same as per service and criminal laws---Petition was allowed in circumstances.

PLD 2010 SC 1; PLD 2010 SC 265; 1998 SCMR 1863; 1994 SCMR 2244; PLD 1999 SC 1126; PLD 1997 SC 563; 2013 SCMR 1752 and Muhammad Yasin v. Federation of Pakistan PLD 2011 SC 132 ref.

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

----R. 6---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Petitioner assailed appointment of respondent as Animal Husbandry Commissioner in Basic Scale-20 by Provincial Government---Validity---Respondent was officer of Basic Scale-19 and he could not be allowed to hold post of Basic Scale 20 by Secretary of Ministry who was not competent authority---Competent Authority, under R.6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 for appointment against post of Basic Scale 20, was the Prime Minister---If post in question was to be looked after through acting/current charge, the same procedure was also provided under R.8(b)(4) and (5) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---High Court declared that respondent did not hold post in question for such period in prescribed manner---High Court declared the respondent as usurper and directed to refund salaries and other monetary benefits drawn by him in such behalf---Petition was allowed accordingly.

Abdur Rehman Siddiqui, Advocate Supreme Court and Ch. Asghar Ali for Petitioner.

Zulfiqar Ahmad Bhutta, for Respondent No.4.

Khawaja Azhar Rasheed and Liaqat Ali Qasim for Respondent No.5.

Adnan H. Memon for Respondent No.6.

Fazal-ur-Rehman Khan Niazi, D.A.-G.

Haseeb Muhammad Ch., Standing Counsel for Respondents Nos.1 to 3).

Respondents Nos.4 and 9 in person.

Date of hearing: 9th April, 2014.

2015 P L C (C.S.) 617

[Islamabad High Court]

Before Athar Minallah, J

ABDUL QAYYUM

versus

CHAIRMAN CAPITAL DEVELOPMENT AUTHORITY (CDA), ISLAMABAD and another

Writ Petitions Nos.1975 of 2012 and 70 other petitions decided on 27th February, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court under Art.199 of the Constitution is of extraordinary nature---Constitution has conferred power on High Court for enforcement of fundamental rights---Such power of High Court includes issuance of orders, directions or writs of five kinds, namely hebeas corpus, mandamus, certiorari, prohibition and quo warranto---Constitutional jurisdiction being discretionary and extraordinary is exercised in grave cases rather than in routine---Despite expansive nature of powers and jurisdiction, it does not enable a High Court to act as an appellate forum---Various trappings or limitations are required to be satisfied before jurisdiction is to be assumed by High Court---Jurisdiction cannot be exercised to resolve disputed questions of fact, while policy matters and enforcement of contractual terms and rights are outside its scope.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Terms and conditions of service---Adequate remedy, non-availability of---Petitioners were employees of Capital Development Authority and with regard to matters pertaining to terms and conditions of their service, they did not have any remedy before any forum except to invoke Constitutional jurisdiction of High Court---Validity---Constitution unambiguously showed that State, its organs and functionaries, besides owning duty of care towards the employees had a constitutional obligation to provide them with independent and impartial exclusive forum for inexpensive and expeditious justice---Leaving an employee without an adequate remedy was a denial of justice and flagrant violation of constitutional commands imposing mandatory obligations---Petitioners and employees of several other State/government controlled corporations and organizations, no Tribunal or forum had been provided which could meet threshold of right of access to justice, nor was invoking extraordinary jurisdiction of High Court under Art.199 of the Constitution an adequate and proper remedy for enforcement of their rights resting on terms and conditions of service---Individual grievances invariably included disputed questions of fact or enforcement of contractual terms, leaving most of the petitioners without remedy, while many others, due to meager resources were dissuaded from approaching High Court---Unmistakable and manifest conclusion was that employees suffered grave injustice and right to access to justice was denied to them---By keeping employees without remedy or refusal to determine their rights in inexpensive, expeditious manner through independent and impartial tribunals / forums, the employer, in addition to other rights, also violated the principle of legitimate expectation both procedural as well as substantive---Failure in providing forum or Tribunal having judicial powers was breach of the duty of care of employer towards employees and a violation of their fundamental rights---Besides being exposed to claims of damages for breach of duty of care, both Federal Government and respective entities controlled by it might be liable for exemplary special costs for forcing its employees to invoke extraordinary jurisdiction of High Court under Art.199 of the Constitution, which was inadequate remedy for employees in case of their individual grievances relating to terms and conditions of service---High Court directed Federal Government to comply with obligations under the Constitution and to take necessary steps/measures for ensuring 'inexpensive and expeditious justice' to employees who fell in categories amenable to jurisdiction of High Court under Art.199 of the Constitution, by proposing to Parliament legislative enactment for establishing an appropriate appellate forum---Petition was disposed of accordingly.

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

Donoghue v. Stevenson (1932) A.C. 562; Anns v. London Borough of Merton (1977) 2 ALL ER 492, Caparo Industries plc v. Dickman and others (1990) 1 ALL ER 568; Fairchild and others v. Glenhaven Funeral Services Ltd and others (2002) 3 ALL ER 305; John Edward Walker v. Northumberland County Council (1994) EWHC QB 2; Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Islamic Republic of Pakistan through Secretary, M/O Railways, and others v. Abdul Wahid and others 2011 SCMR 1836; Abdul Majeed Khan v. Tawseen Abdul Haleem PLD 2012 SC 80; Al-Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Sharaf Faridi and others v. The Federation and others 1989 Kar. 404; Sh. Riaz-ul-Haq and another v. Federation of Pakistan and others PLD 2013 SC 501; Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Rauf B. Kadri v. State Bank of Pakistan PLD 2002 SC 1111; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Suo Motu Case No. 4 of 2010 PLD 2012 SC 553; Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 923 and Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2011 SCMR 408 ref.

(c) Constitution of Pakistan---

----Art. 4---Dealing in accordance with law---Scope---Right to access to justice is fundamental to and an integral part of rule of law.

(d) Constitution of Pakistan---

----Part II, Chap.2 [Arts.29 to 40]---Principles of Policy---Scope---Principles of Policy enshrined in Chapter 2 of the Constitution and commitments and policy statements made and expressed by public sector organizations from time to time gives rise to legitimate expectations on part of the employees.

Muhammad Ramzan Khan, Abdul Rahim Bhatti, Muhammad Umair Baloch, Abdus Salam Qureshi, Muhammad Shoaib Shaheen, Sana Ullah Zahid, Ch. Tanweer Akhtar, Zill-E-Huma, Malik Umer, Syed Kazim, Muhammad Fareed Ch, Ch. Abdul Ghafoor Qamar, Farzana Sultana Baig, Ch. Fayyaz Ahmed Pandana, Mohtisim Sattar Ch. Ahmed Nawaz Bhatti, Ch. Saghir Ahmad, Ahmed Nawaz Bhatti, Tariq Mehmood, G. Farooq Awan, Khawar Amir Bukhari, Saeed yousaf Khan, Ch. Asghar, Tariq Mahmood, Muhammad Shabbir Ahmed Nasir, G.M. Chaudhry, Ahmad Awais, Misbah Ullah Khan, Kashifa Awan, Muhammad Shabbir Ahmed, Riaz Hanif Rahi, Hafiz Arfat Ahmad Ch, Amir Abdullah Abbasi, Syed Atif Hussain Naqvi, Riasat Ali Azad, Ali Murad Baloch, Raja Tariq Mehmood, Niaz Ullah Khan Niazi and Akhtar Hussan Awan for the Petitioners in their respective petitions.

Ch. Haseeb, M. Khalid Zaman, Mrs. Misbah Gulnar Sharif, Muhammad Nazir Jawad, Kashifa Niaz Awan, Ch. Abdul Khaliq Thind, Muhammad Anwar Dar, Hifz-ur-Rehman, for Respondents in their respective petitions.

Raja Amir Abbas, Standing Counsel.

Maroof Afzal, Chairman of the C.D.A.

2015 P L C (C.S.) 671

[Islamabad High Court]

Before Athar Minallah and Aamer Farooq, JJ

Miss SUMMARA NAYAZ

versus

FOP through Secretary Establishment Division and 3 others

Intra-Court Appeal No.501 of 2014, heard on 22nd January, 2015.

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

----S. 3---Constitution of Pakistan, Art.199---Intra-Court appeal---Expression 'person' occurring in Art.199 of the Constitution---Scope---Civil service---Employer/International Islamic University decided not to renew the term of service of petitioner---Validity---Federation had little or almost no control i.e. administrative as well as financial, over the affairs of the International Islamic University---International Islamic University was not a 'person' carrying the affairs of Federation---Government/Federation had no administrative or financial control over the same---International Islamic University and its functionaries did not fall within the definition of 'person' for the purposes of Art.199 of the Constitution---Intra-court appeal was dismissed in circumstances.

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 PSC 326 distinguished.

Pakistan International Airlines Corporation v. Tanweer ur Rehman PLD 2010 SC 676 and Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 (sic) 568 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---Determination of status of 'person' as occurring in Art.199 of the Constitution---Test for determination of status of the 'person' performing functions in connection with the affairs of the Federation was the administrative and the financial control of the Federation over the entity in question.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could be invoked on an application of any aggrieved party against 'person' performing the functions in connection with the affairs of the Federation, a Province or a Local Authority.

Muhammad Shoaib Shaheen for Appellant.

Rehan-ud-Din Khan and Malik Faisal Rafiullah, D.A.-G. for Respondents.

Date of hearing: 22nd January, 2015.

2015 P L C (C.S.) 710

[Islamabad High Court]

Before Athar Minallah, J

Dr. KAMRAN JAHANGIR

versus

CHANCELLOR SHIFA TAMEER-E-MILLAT UNIVERSITY and others

Writ Petition No.3380 of 2014, heard on 27th February, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Expression 'person', occurring in Art.199 of the Constitution---Test---Educational Institution---Appointment on the basis of contract---Scope---Employer-University was neither receiving funds from the Federal Government nor Federal Government had any management control over the same---Constitutional jurisdiction could be invoked only against the 'person'---University was not "person" as Federal Government or a Provincial Government had neither any financial nor administrative and management control over it---Satisfaction of the test for a 'person' was a pre-condition for assumption of jurisdiction under Art.199 of the Constitution---Appointment of petitioner was on the basis of contract which was ultra vires---Petitioner had accepted the terms and conditions of contract and had not raised any objection---Constitutional jurisdiction of High Court could be exercised in rare and exceptional cases when relief being sought was against educational institution---Educational institution was the best judge of the interests of students and ought to be allowed to act as it might deem appropriate---Educational institution was to safeguard and ensure the discipline of students and ability of faculty which should not be eroded---Litigation had adverse effects on the impressionable minds of students enrolled in the institution---Jurisdiction of High Court under Art.199 of the Constitution was equitable and discretionary in nature---Present constitutional petition was not maintainable as University was not a "person" on the touchstone of the "function test"---Constitutional petition was dismissed in circumstances.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and others 2013 SCMR 1707 ref.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and others 2013 SCMR 1707; PLD 2002 SC 326; Pakistan International Airlines Corporation v. Tanweer ur Rehman PLD 2010 SC 676; Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah, 568; The University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Ahmed v. Vice Chancellor University of Engineering and Technology PLD 1981 SC 464 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Determination of status of 'person'---Test for determination of status of 'person' performing functions in connection with the affairs of the Federation was the administrative and the financial control of the Federation over the entity in question.

(c) Educational institution---

----"Loco parentis", doctrine of---Applicability.

Muhammad Anwar Mughal for Petitioners.

Abdul Shakoor Paracha, Raja Saim-ul-Haq Satti and Riffat Hussain Malik for Respondents.

Date of hearing: 27th February, 2015.

2015 P L C (C.S.) 807

[Islamabad High Court]

Before Aamer Farooq and Athar Minallah, JJ

CHIEF SECURITY OFFICER AIRPORTS SECURITY FORCE and others

versus

TARIQ AHMED LODHI

Intra-Court Appeal No.1089 of 2013, heard on 12th February, 2015.

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

----S. 3---Intra-court appeal---Scope---Intra-court appeal would lie to a Bench of two or more Judges of a High Court from final order passed by a single Judge of said Court in exercise of its original civil jurisdiction---Intra-court appeal would not lie in a case where the law under which the original order was passed had provided an appeal, revision or review.

(b) Civil Servants Appeal Rules, 1977---

----R. 4---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Scope---Retirement---Remedy of appeal being available to the civil servant under Civil Servants Appeal Rules, 1977, order of retirement could be assailed under the said Rules---Intra-court appeal was not maintainable which was dismissed being not competent.

Vice-Chancellor/Chairman Admission Board University of Health Science Lahore v. Breeha Zainab and another 2011 MLD 1652; Basher Ahmed v. Board of Intermediate and Secondary Education, Multan through Chairman and 3 others 2013 PLC (C.S.) 752 and Mst. Karim Bibi v. Hussain Bukhsh and another PLD 1984 SC 344 ref.

Kh. Imtiaz Ahmed Standing Counsel for Appellants.

Bashir Khan for Respondent.

Date of hearing: 12th February, 2015.

2015 P L C (C.S.) 991

[Islamabad High Court]

Before Athar Minallah and Aamer Farooq, JJ

Dr. AFTAB HASSAN MINHAS

versus

NATIONAL COUNCEL FOR HOMOEOPATHY through Registrar/Secretary and 3 others

Intra-Court Appeal No.735 of 2012, decided on 4th March, 2015.

National Council for Homeopathy (Staff) Service Regulations, 1987---

----R. 33---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Intra-court appeal---Maintainability---Departmental proceedings---Constitutional petition under Art.199 of the Constitution filed by appellant was dismissed by Single Judge of High Court as it was aimed to stop inquiry proceedings initiated against him---Validity---If appellant was being punished he could file appeal under Regln.33 of National Council for Homeopathy (Staff) Service Regulations, 1987---Constitutional petition filed by appellant was against departmental proceedings undertaken against him under National Council for Homeopathy (Staff) Service Regulations, 1987, which provided a right of appeal---Intra-court appeal, in the light of proviso to S.3(2) of Law Reforms Ordinance, 1972, was not maintainable---Appointment of respondent on the post of Registrar was the prerogative of competent authority which had acted in consultation---Intra-court appeal was dismissed in circumstances.

Karim Bibi and others v. Hussain Bukhsh and another PLD 1984 SC 344 ref.

Sardar Abdul Majeed Khan and Muhammad Farid Chaudhary for Appellant.

Aamir Abdullah Abbasi for Respondents.

2015 P L C (C.S.) 1030

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

ADNAN QURESHI

versus

CAPITAL DEVELOPMENT AUTHORITY

Civil Revision No.3 of 2012, heard on 31st January, 2012.

Accommodation Allocation Rules, 2002---

----Rr. 2(p) & 15--- Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Official accommodation---Application for grant of interim injunction---Government accommodation---Trespasser---Both the Courts below declined to grant interim injunction in favour of plaintiff---Validity---Posts filled on daily wages, work-charge basis or hired from contingencies or ad-hoc basis were excluded being Federal Government servant eligible for allotment of accommodation---After expiry of six months period, applicant had become trespasser as defined in R.2(p) of Accommodation Allocation Rules, 2002---Category of service of applicant and eligibility in classification "A" was not denied or opposed---Plaintiff could not claim to retain accommodation after retirement of his father---Revision was dismissed in circumstances.

Federation of Pakistan through Secretary Ministry of Housing and Works and another v. Abrar Ahmed and others 2010 SCMR 1537 and Imran Ahmad Khilji v. Federation of Pakistan and 2 others 2010 PLC (C.S.) 608 ref.

Muhammad Ishtiaq Ahmed Raja for Petitioner.

Muhammad Nazir Jawad for Respondent No.l.

Date of hearing: 31st January, 2012.

2015 P L C (C.S.) 1137

[Islamabad High Court]

Before Athar Minallah and Aamer Farooq, JJ

Major (R) WAQAR ALI SHAH and 4 others

versus

NAWAB ALI and 5 others

Intra-Court Appeals Nos.325 and 28 others I.C.As. and Crl. Orgl. No.465 of 2014, decided on 9th April, 2015.

Civil service---

----Notifications OM No.10/30/2008-R-II, dated 29-8-2008---Notification No.F.2/3/2014-Lit, dated 2-4-2015, Cabinet Division---Intra-court Appeal---Regularization of services---Appellants were aggrieved of judgment passed by Single Judge of High Court declaring regularization of services by cabinet sub-committee to be without jurisdiction---Validity---Terms of reference of committee were extensive and provided an opportunity to employers as well as employees to present their cases before it and the Committee would examine each case on merits---Notification in question was issued pursuant to an order passed by High Court in Constitutional petition, which order attained finality as Supreme Court had refused leave---Matter related to policy owned by Federal Government and therefore, beyond the pale of jurisdiction of High Court---Division Bench of High Court set aside judgment passed by Single Judge of High Court---Division Bench of High Court directed all government and semi-government departments, government agencies and statutory corporations to approach the Committee for regularization of employees who fulfill criteria as laid down in Notification OM No.10/30/2008-R-II, dated 29-8-2008, and each case would be examined on its own merits after giving an opportunity of hearing to parties---Regularization policy could not be construed or implemented in manner which might extend legitimacy to illegally appointed employees---Intra-court appeal was allowed accordingly.

Syed Mubashir Raza Jaffri v. Employees Old Age Benefits Institution 2014 SCMR 949 rel.

Fiaz Ahmed A. Jandran, M. Shoaib Shaheen, Ali Murad, Baloch, Muhammad Haroon, Barrister Umar Riaz, M. Umair Baloch, Sher Afzal Khan, Ms. Kashifa Niaz Awan, Hafiz Arfat Ahem, Rehman Qaisar, Malik Qamar Afzal, Safdar Ahmed, Khalil ur Rehman Abbasi, Anar Khan Gondal, Raja Aamir Abbas, Saad Butter, Moheed Rashid Khan, Raja Zubair Hussain Jarral, along with Meharban Khan, A.O. Legal, Ajmal Ghaffar Toor and Atif Rahim Barki, in their respective appeals.

Afan Karim Kundi, Additional Attorney-General, Kh. Imtiaz Ahmed, Standing Counsel, Rizwan Faiz Muhammad, Muhammad Asif Khan, Khasro Pervaiz Khan, Additional Secretary, Cabinet Division, Tariq Mehmood Jahangiri, Muhammad Fazal Siddiqui, Abdul Rehman Siddiqui, Syed Sohail Asghar, and Rabnawaz in their respective appeals.

2015 P L C (C.S.) 1259

[Islamabad High Court]

Before Aamer Farooq, J

IFTIKHAR RASHID and 3 others

versus

FEDERATION OF PAKISTAN and 5 others

Writ Petition No.1233 of 2015, decided on 29th May, 2015.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Locus standi---Aggrieved person---Public interest litigation---Petitioners had sought declaration and direction to the effect that police officers and civil servants were required to exercise authority through application of mind in accordance with law---Validity---Civil servants/police officers were required to perform their duties in accordance with law and no declaration vis-à-vis the same was required---Respondents were civil servants and disciplinary action had been initiated against them---Bar of jurisdiction had been provided under Art.212 of the Constitution and no court should have jurisdiction in the matter of terms and conditions except the Courts/Tribunal established under the said Article---Disciplinary matters had been included in the terms and conditions of person who were or had been in the service of Pakistan---Remedy of appeal had been provided to a civil servant who was aggrieved of any order passed by the departmental authority---What was not permissible directly was also not permissible indirectly---Petitioner(s) should have a locus standi to institute the proceedings under Art.199 of the Constitution---Petitioners were retired police officers who had no locus standi to seek declaration that disciplinary proceedings initiated against the respondents were ultra vires of the Constitution---Constitutional petition was not maintainable even if any order with regard to terms and conditions of service was based on mala fide or without jurisdiction---All factual and legal defence were available to the respondents in the proceedings before the competent authority or the Service Tribunal---Petitioners had no legal right to ask for such a relief for initiation of action against public office holders---Constitutional petition was dismissed being not maintainable.

Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Mushtaq Ali v. Government of Sindh PLD 1998 Kar. 416; Muhammad Afzal and other v. Government of Pakistan and others 1987 SCMR 2078; Pakistan Petroleum Ltd. v. Director-General Mines and Minerals Mines and Manpower Building and 2 others PLD 2011 Quetta 1, Malik Changez Khan and 4 others v. Provincial Police Officer, Karachi and 7 others 2011 YLR 868; The State and others v. Director General FIA and others PLD 2010 Lah. 23; K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376; Muhammad Yasin v. Federal of Pakistan PLD 2012 SC 132; Philips Electrical Industries v. Pakistan and others 2000 YLR 2724; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Syed Mahmood Akhtar Naqvi v. Federal of Pakistan PLD 2013 SC 195 and Arrest of Accused on Murder of Her Daughter Waheeda 2014 SCMR 83 ref.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Ali Azhar Khan Baloch v. Province of Sindh and others 2015 SCMR 456; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Montgomery Flour and General Mills Ltd. v. Director, Food Purchases PLD 1957 Lah. 914; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO To Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52; N.-W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Pir Muhammad v. Government of Balochistan 2007 SCMR 54 and Muhammad Khan Ranjha and another v. Secretary, Government of Punjab, Irrigation Department Lahore and 5 others 2004 PLC (C.S.) 244 rel.

Babar Sattar for Petitioners.

Afnan Karim Kundi, Additional Attorney-General for Respondents Nos.1 to 4.

2015 P L C (C.S.) 1293

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

NASEER PERVAZ QURESHI

versus

BOARD OF DIRECTORS, ZTBL, through Company Secretary and 3 others

W.Ps. Nos.2594 and 1656 of 2013, heard on 21st May, 2015.

Zarai Taraqiati Bank Limited Staff Service Regulations, 2005---

----Constitution of Pakistan, Art.199---Constitutional petition---Maintainability--- Factual controversy--- Determination--- Petitioner filed two constitutional petitions challenging show-cause notices, charge sheets and .order of inquiry issued by Employer Bank---Bank took plea that petitioner had raised factual controversies which were beyond scope of constitutional jurisdiction---Validity---Petitioner had demanded extensive inquiry, collection and appraisal of evidence, which was beyond scope of jurisdiction of court under Art.199 of the Constitution---High Court was not to look into veracity of allegations levelled by Bank or explanation given by petitioner---Allegation as to whether petitioner had proceeded abroad without approval of Bank was factual controversy---Bank was under legal obligation to consider representation made by petitioner in accordance with relevant laws, rules and regulations---Bank was directed to consider representation of petitioner under Zarai Tarqiati Bank Limited Staff Service Regulations, 2005 within fifteen days---Constitutional petition was disposed off in circumstance.

Muhammad Anwar Mughal for Petitioner.

Barrister Afzal Hussain, Rana Zafar Iqbal Khan, SVP and Muhammad Younas, OG-I, ZTBL for Respondents.

Date of hearing: 21st May, 2015.

2015 P L C (C.S.) 1304

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

SAFIULLAH JOKHIO and others

versus

FEDERATION OF PAKISTAN and others

W.P.No.2703 of 2012, decided on 6th June, 2013.

(a) Federal Investigation Agency Act 1974 (VIII of 1975)---

----S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Induction of an employee in another department---Scope---Federal Investigation Agency---Plea of petitioner was that induction of respondents followed by absorption was illegal and was based on political considerations---Validity---Mischief in the induction of respondents in Federal Investigation Agency was on record---Illegality had been committed during the said process and favoritism was floating on the face of record---Federal Investigation Agency could obtain the services of suitable persons on deputation to enhance its capability to fight terrorism and to protect the internal security of the State---Said powers had been ridiculously exercised by bringing the respondents in the agency---Most of the respondents had never served in any law enforcement agency---Authority had no unbridled discretionary powers to exercise it in despotic, illegal and mala fide manner in detriment to the institution as well as against the legal rights of regular employees---Persons should have been taken or might be taken from the other departments to fill-up the deficiency of certain experience and qualification in the existing staff of the agency---Not a single person so appointed had been shown to be possessive of a certain quality which was specifically required to the authority---Respondents had been taken on deputation with nefarious design just to accommodate certain individuals in an unfair and un-transparent manner---High Court directed that respondents so appointed, be relieved/repatriated to their parent department, forthwith---Constitutional petition was accepted accordingly.

(b) Federal Investigation Agency Act 1974 (VIII of 1975)---

----Preamble---Scope---Federal Investigation Agency was constituted for investigation of certain offences committed with the Federal Government and for matters connected thereto---Federal Investigation Agency had been vested with the investigation of sensitive cases as to ensure the internal security of the State---Federal Investigation Agency should have internal discipline equal to the discipline of Pakistan Army if not more than that.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Actions of departments of Government and statutory bodies if were illegal, mala fide and coram-non-judice then same were amenable to the constitutional jurisdiction of High Court.

Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Rental Power Plant's case 2012 SCMR 773; M/s. Faheem Haider v. Government of Pakistan and 9 others 2010 GBLR 467; Air Port Security Services v. Air Port Manager Quaid-e-Azam International Air Port Karachi and others 1998 SCMR 2269; M/s. UN Professional Corporate Bank Ltd. v. Deputy Commissioner of Income Tax and others 2002 PTD 2799 and Commissioner Inland Revenue v. M/s. Kamal Fabrics 2012 PTD (Trib.) 619 rel.

Shah Khawar, Advocate Supreme Court, Sardar Nasir Ahmed Saghir and Aamir Rehman Mughal for Petitioners.

Tariq Mehmood Jehangiri, D.A.-G.

Barrister Sajeel Sheryar and Ch. Hassan Murtaza Mann for Respondent No.11.

Qaisar Masud, D.D. (Law), FIA and Zarnab Khattak, Superintendent Establishment Division.

2015 P L C (C.S.) 1336

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, Shaukat Aziz Siddiqui and Athar Minallah, JJ

INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD and others

versus

Dr. SHAMEEM TARIQ and others

Intra-Court Appeals Nos.179-W of 2012, 98, 99 of 2013, 427 of 2014, 191, 192 and 187 of 2015, Crl.Org. No.345 of 2014 and Writ Petitions Nos.3135 of 2013 and 2910 of 2014, decided on 9th July, 2015.

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

----Ss. 4, 9, 11, 12 & 16 ---Law Reforms Ordinance (XII of 1972), S.3--- Constitution of Pakistan, Art.199--- Intra-court appeal---International Islamic University, status of---Constitutional jurisdiction of High Court---Scope---Appellant was appointed as professor in International Islamic University and the appointment was challenged by respondent before High Court in exercise of Constitutional jurisdiction---Single Judge of High Court set aside the appointment of appellant---Validity---Rules and Regulations formulated under International Islamic University Ordinance, 1985, were statutory in nature and it was juristic person for the purpose of Art.199, of the Constitution and it was having the statutory Rules and Regulations---Single Judge of High Court rightly took notice of admitted facts and accepted the Constitutional petition in accordance with law---Division Bench of High Court in exercise of appellate jurisdiction declined to interfere in the order passed by Single Judge of High Court as the same was not amenable to any interference---Intra-court appeal was dismissed in circumstances.

PLD 2002 SC 326 and Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 rel.

Rehan-ud-Din Golra for Appellants (in ICA No.179-W/2012).

Jehangir Wains for Appellant (in ICAs Nos.98-W, 99-W of 2013).

Syed Khawar Ameer Bukhari for Appellant (in ICAs Nos.191-W and 192-W of 2015).

Sardar Abdul Majeed Khan for Appellant (in ICA No.187 of 2015).

Syed Zafar Ali Shah for Petitioner (in Crl. Org. No.345-W of 2014).

Sajeel Shryar Swati for Petitioner (in W.P. No.3135 of 2013).

Jehangir Wains for Petitioner (in W.P. No.2910 of 2014).

Rehan-ud-Din Khan Golra for Respondents (in W.P. No.2910 of 2014, Crl. Org.No.345 of 2014, ICAs Nos.427 of 2014, 192 of 2015, 191-W of 2015, 99-W of 2013 and 98-W of 2013).

Muhammad Aleem Khan Turabi.

Nauman Munir Peracha.

Malik Mushtaq Ahmad, Advocate Supreme Court.

Ishfaq Ahmad (in C.M. No.2092).

Dr. Shamim Tariq.

Umar Baloch for Respondents (in ICAs Nos.179 of 2012 and 187 of 2014).

2015 P L C (C.S.) 32

[Sindh High Court]

Before Abdul Maalik Gaddi and Nisar Muhammad Shaikh, JJ

MUHAMMAD JUMAN MALANA

Versus

GOVERNMENT OF SINDH HEALTH DEPARTMENT, KARACHI and 3 others

Constitutional Petition No.D-1789 of 2011, decided on 25th August, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Withholding of salary on account of past absence from duty for a period of 11 years after rejoining of duty by the petitioner with the approval of the Authority---Authority had not passed any adverse order against the petitioner for the said long absence---Approbate and reprobate---Effect---Payment of salary---Vested right---Contention of the petitioner was that Authority had paid his salary after his rejoining for the period from 14-3-2010 to 31-7-2010, but the salary for remaining period from August, 2010 till the date of his resignation had not been paid to him without any legal justification---Validity---Plea of Authority was that petitioner had remained absent from duty for more than three years, therefore, as per R.33 of Sindh Service Rules, Manual I, petitioner ceased to be government servant---Petitioner joined his duties on 13-3-2010 with the approval of the Authority and salary was also paid to him for this period, therefore, in doing so the Authority waived his right, if any, as such said plea had no force---Authority could not approbate and reprobate about the same matter in same breath---Petitioner was serving in Department till his resignation, no complaint whatsoever about his conduct was available on record, therefore, he had a vested right of payment of salary to him for the period he worked and the reasons given by the authorities in their comments for non-payment of salary of said period were vague, evasive and not sustainable in law---Constitutional petition was allowed in circumstances.

Mst. Mehrun Nisa and 2 others v. Province of Sindh through Secretary, (Education), Government of Sindh and 4 others 2012 PLC (C.S.) 1161; Muhammad Sharif v. Chief Administrator Auqaf and others 1975 SCMR 104 and A.R. Khan v. P.N. Boga through Legal Heirs, PLD 1987 SC 107 rel.

Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 distinguished.

Miss Nasim Abbasi for Petitioner.

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

Date of hearing: 20th August, 2014.

2015 P L C (C.S.) 108

[Sindh High Court]

Before Shahab Sarki and Irfan Saadat Khan, JJ

SAJID RAZA and 17 others

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION AND LITERACY), NOUSHERO FEROZ and 3 others

Constitutional Petition No.D-724 and C.M.A No.2106 of 2011, decided on 26th August, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition--- Civil service---Appointment---Conditional offer letters---Change of policy---Effect---Petitioners applied for the post of Primary School Teachers and after having cleared the test and medical examination petitioners were issued offer letters---Contention of the petitioners was that after issuance of the offer letters, they were not issued posting orders, inspite of fulfilling all the requirements and persons, who had some backing were accommodated---Validity---Under the policy of the government female candidates would be given 20 extra points and the petitioners had raised no objection as to the said conditions of the policy nor had they challenged any of its provisions---Office letters unless followed by acceptance and final appointment letters, did not confer any vested right upon the petitioners---Petitioners' offer letters were subject to condition regarding the qualifying marks and no illegality had been committed by the authorities in awarding 20 extra points to the female candidates and subsequent preparation of the merit list, which was in accordance with law and policy---Offer letters had not been acted upon and no posting order had been issued, therefore, the petitioners could not seek directions for issuance of posting orders---Constitutional petition was dismissed in circumstances.

Ghulam Murtaza and others v. Federation of Pakistan and others 2011 PLC (C.S.) 709 distinguished.

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

Qurban Ali Malano for Petitioners.

Imtiaz Ali Soomro, A.A.-G. along with Ms. Zaib-ul-Nisa Mangi, Director School Education Sukkur Region Sukkur.

2015 P L C (C.S.) 129

[Sindh High Court]

Before Faisal Arab and Riazat Ali Sahar, JJ

ANEES AHMED and others

Versus

FEDERATION OF PAKISTAN and others

Constitutional Petition No.D-664 of 2012, decided on 28th February, 2013.

Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants (Seniority) Rules, 1993---Constitution of Pakistan, Art.199---Constitutional petition---Seniority, fixation of---Provisional seniority list---Petitioners were Inland Revenue Officers and were aggrieved of fixation of ante-dated seniority and provisional seniority lists prepared by authorities---Validity---Provisional seniority lists were issued in accordance with Civil Servants (Seniority) Rules, 1993---Opportunity of representation to employees and copies of lists were placed on Web-site, and the same was sufficient to provide opportunity of representation to employees, subsequently notification regarding promotions of employees was issued as final order of competent authorities, therefore, High Court could not interfere in such seniority lists---Petitioner filed petition to invoke Constitutional jurisdiction without exhausting available remedy---High Court under Constitutional jurisdiction could not suspend/set aside notifications regarding ante-dated promotions to respondents, which was outcome of judgments/orders passed by Service Tribunal---Petition was dismissed in circumstances.

S.H.M. Rizvi v. Maqsood Ahmed PLD 1981 SC 612; Ajmal Hassan Khan v. Government of Sindh 2012 SCMR 860; Nasimul Haque Malik v. Chief Secretary to Government of Sindh 1996 PLC (C.S.) 921 and Ajmal Hassan Khan v. Government of Sindh 2012 SCMR 860 distinguished.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Mukhtar Ahmed Junejo v. Province of Sindh PLD 1986 SC 560 rel.

Abid S. Zuberi for Petitioners.

Asif Hussain Mangi, Standing Counsel, Malik Naeem Iqbal and Syed Shafqat Ali Shah Masoomi for Respondents.

Date of hearing 20th December, 2012.

2015 P L C (C.S.) 195

[Sindh High Court]

Before Irfan Saadat Khan and Shahab Sarki, JJ

MUHAMMAD HASHIM and 30 others

Versus

GENERAL MANAGER, HUMAN RESOURCES, SUI SOUTHERN GAS CO. LTD. and 3 others

Constitutional Petition No.D-875 of 2012, decided on 17th October, 2014.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Service---Regularization---Petitioners claimed themselves to be the Caretakers and Guards working on contract basis in the respondent/company---Grievance of the petitioners was that a number of persons working on contract basis in the respondent/company were regularized, but the petitioners were not being regularized against their respective posts by treating them discriminately---Plea of the respondent/company was that the constitutional petition was liable to be dismissed, since the petitioners had no lien or right over the respondent company being not employees of the said organization---Validity---Salary sheets produced by the respondent company showed that the petitioners were the employees of the ZIM security company and were not on the pay roll of the respondent company---Petitioners were not in possession of any appointment letter issued to them by the respondent company and if the petitioners claimed that they were the employees of the company they should have at least produced the appointment letters issued to them---Assigning a job by the respondent company for deploying them at a certain place would not imply that they had become the employees of the said company when it was evident that the petitioners were the security guards, provided by Security Company as per the agreement executed between the respondent company and the said Security Company---Simply outsourcing certain specific job by the company would not mean that the petitioners had become employees of the company---Petitioners had failed to adduce any evidence to show that they were at any given point of time the employees of respondent Company, therefore, they were not entitled for regularization---Regularization of other persons were approved by the HR department of respondent company, who were working on casual work basis, therefore, they had no nexus with the case of the petitioners, and argument raised by the petitioners was not tenable---Constitutional petition was dismissed in circumstances.

Ikram Bari v. NBP 2005 SCMR 100 and PTCL v. Muhammad Zahid 2010 SCMR 253 distinguished.

Mian Munir Ahmed v. The State 1985 SCMR 257; Farid Ahmed v. Pakistan Burmah-Shell Ltd. 1987 SCMR 1463; Mehmood Hussain and another Presiding Officer, Punjab Labour Court and others 2012 SCMR 1539; Fauji Fertilizer Company Ltd. through Factory Manager v. National Industrial Relation Commission, through Chairman and others 2013 SCMR 1253 and Malik Mazharul Haq and another v. Chairman, Pakistan International Airlines Corporation, Islamabad and 3 others 2010 PLC (C.S.) 1472 rel.

Ghulam Shabbeer Shar for Petitioners.

Mukesh Kumar G. Karara, Yousuf Ali, Standing Counsel along with Inayatullah Soomro, Admn. Officer, SSGC Head Quarter for Respondents.

Dates of hearing: 27th August, and 14th October, 2014.

2015 P L C (C.S.) 283

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Aftab Ahmed Gorar, JJ

IRSHAD ALI

Versus

PROVINCE OF SINDH through Home Secretary and 3 others

Constitutional Petition No.D-2646 of 2011, decided on 2nd October, 2014.

(a) Constitution of Pakistan---

----Arts. 4, 25 & 199---Constitutional petition---Civil service---Determination of seniority---Discrimination---Estoppel---Applicability---Public functionaries---Duty of--Petitioner was appointed as Prosecuting Sub-Inspector and subsequently his cadre was changed from prosecution side to executive side along with other colleagues---Grievance of the petitioner was that after absorption of the Prosecuting Sub-Inspectors, seniority to others was allowed from the date of their initial appointment but the petitioner had been discriminated by awarding him seniority from the date of his absorption---Validity---Under Arts.25 & 4 of the Constitution, equal protection of law to all the citizens and equal treatment to the citizens similarly placed had been guaranteed---All the statutory functionaries in a democratic set-up were bound to act in public matters justly, fairly and in accordance with rules and instructions on the subject and individual distinction for extraneous reasons was not permissible---`Equality before law' meant that like should be treated alike and it forbade discrimination between person, who were substantially in similar circumstances or conditions, however, it did not forbid different treatment of unequals and classification could be made between two groups which were substantially not placed in similar circumstances or conditions---Petitioner was subjected to hostile discrimination forbidden by Art.25 of the Constitution---High Court directed the respondents to treat the petitioner equally and on the same line as other officers had been treated and assigned seniority to the petitioner from the date of his substantive appointment in the rank of Prosecuting Sub-Inspector with all service benefits---Constitutional petition was allowed in circumstances.

(b) Estoppel---

----No estoppel against statute/law---If a person had been bestowed some legal right by law/statute, and he omitted to claim such legal right for a considerable time, it did not mean that he had waived his legal right and subsequently he could not claim such right.

(c) Public Functionary---

----All the statutory functionaries in a democratic set-up were bound to act in public matters justly, fairly and in accordance with rules and instructions on the subject and individual distinction for extraneous reasons was not permissible.

Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Muhammad Saleh v. Muhammad Shafi NLR 1981 Civil 467 (SC) rel.

Inayatullah G. Morio for Petitioner.

Abdul Hamid Bhurgri, A.A,-G. for Respondent.

Date of hearing: 13th August, 2014.

2015 P L C (C.S.) 293

[Sindh High Court]

Before Shahab Sarki and Irfan Saadat Khan, JJ

IRSHAD ALI and 78 others

Versus

PROVINCE OF SINDH through Secretary Local Government Department, Karachi and 4 others

C.M.As. Nos.9498 and 2589 of 2014 in Constitutional Petition No.D-684 of 2012, decided on 2nd September, 2014.

Constitution of Pakistan---

----Arts. 199 & 25--- Constitutional petition--- Civil service---Regularization---Discrimination---Petitioners were employed on contract basis on consolidated meager pay---Contention of the petitioners was that inspite of working for a period of more than 05 years their services had not been regularized, whereas the services of other employees, who had been employed subsequent to the petitioners, had been regularized thus treating the petitioners discriminately---Authorities had not denied the appointment of the petitioners and stated that the process had been initiated for the regularization of petitioners and petitioners would be regularized as per policy of the Government---High Court allowed the constitutional petition and directed that the petitioners should be regularized/confirmed in their services as per law and should be permanently absorbed on a priority basis---Constitutional petition was allowed in circumstances.

Hakim Ali Ujjan and others v. P.O. Sindh and others SBLR 2011 Sindh 1575 rel.

Hadi Bux Bhatti for Petitioner.

Munir Ahmed Awan for Respondents.

Manoj Kumar Tejwani for Respondent No.4.

Shaharyar I. Awan, Asstt. A.-G.

2015 P L C (C.S.) 363

[Sindh High Court]

Before Syed Saeeduddin Nasir, J

AL QERA ATIQ

Versus

FEDERATION OF PAKISTAN through Secretary Aviation and 19 others

Suit No.1018 of 2014, decided on 28th November, 2014.

Constitution of Pakistan---

----Arts. 4 & 10-A---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Civil service---Plaint, rejection of---Contention of defendant was that Civil Aviation Authority was an independent authority having non-statutory rules of service, that relationship between Civil Aviation Authority and its employee was governed by the principle of "Master and Servant" and only remedy available to the employee against any action taken by the Civil Aviation Authority was to file the suit for damages---Validity---Service regulations applicable to the employees of Civil Aviation Authority were of statutory in nature---Employees had protection under Arts.4 & 10-A of the Constitution whether the rules and regulations were statutory in nature or not---No one could be condemned unheard---Aggrieved person could in such a case invoke constitutional jurisdiction of High Court to enforce his right conferred upon him by the Constitution---Application for rejection of plaint was dismissed in circumstances.

2013 SCMR 1383; 2013 SCMR 747; 2013 SCMR 523; PLD 1960 DACCA 759; PLD 1971 Lah. 598; PLD 1971 Lah. 748; 2001 SCMR 901; 2013 SCMR 1733; 2012 PLC 636; 2013 SCMR 1707; 1997 CLC 1936 and 2013 PLC (C.S.) 1212 ref.

2013 SCMR 1707 rel.

Mehmood Alam Rizvi and Obed-ur-Rehman for Plaintiff.

Khalid Mehmood Siddiqui for Defendant No.2.

Shahab Usto for Defendants.

Date of hearing: 28th November, 2014.

2015 P L C (C.S.) 385

[Sindh High Court]

Before Faisal Arab and Riazat Ali Sahar, JJ

SAKHAWAT and 4 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice and Parliamentary Affairs and 3 others

Constitutional Petition No.D-1859 and C.M.A No.10743 of 2012, decided on 17th December, 2012.

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 5---Constitution of Pakistan, Arts.199, 141 & Item No.32 of the Fourth Schedule---Constitutional petition---Maintainability---Disabled persons---Re-employment after retrenchment---Scope---Retrenchment of disabled persons on the ground of re-organization of department---Enforcement of 2% quota reserved for disabled persons---Scope---Contention of the petitioners was that petitioners had been deprived of benefit of 2% quota allocated to the disabled persons in view of the provisions of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981---Plea of the authorities was that the department (Electric Supply Company) was not amenable to constitutional jurisdiction of High Court and the labour laws had become a provincial subject---Validity---Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 was promulgated to rehabilitate disabled persons through employment, which was a beneficial legislation---Establishment defined under the said Ordinance were required to maintain quota for employing special/disabled persons---Said Ordinance could not be strictly called the law for workmen only, but the real purpose was to provide employment to disabled persons---Petitioners were seeking enforcement of the provisions of the said Ordinance, which was a beneficial legislation intended to rehabilitate disabled persons and there was no special judicial or quasi judicial forum available for providing efficacious remedy for enforcement of the rights of disabled persons, therefore, jurisdiction of the High Court under Art.199 of the Constitution could be invoked---Employees termination on the ground of retrenchment, if had not left any stigma on their service record and if a law entitled them to be retained on employment on certain conditions, and they fulfilled the requisite criteria, their services could not be retrenched---High Court directed the authorities to first apply the quota under the said Ordinance to the petitioner's case and after maintaining 2% quota in case petitioners' services remained protected, then the petitioners should be re-employed---Constitutional petition was disposed of accordingly.

2012 PLC (C.S.) 1205; 2008 CLC 339; 2009 PLC (C.S.) 888; 2001 PLC 607 and 2010 PLC (C.S.) 899=2011 SCMR 333 ref.

Farhatullah for Petitioners.

Mehmood Abdul Ghani for Respondent No.4.

Asif Hussain Mangi, Standing Counsel.

Mrs. Haleema Khan, A.A.-G.

2015 P L C (C.S.) 596

[Sindh High Court]

Before Nisar Muhammad Shaikh and Syed Saeeduddin Nasir, JJ

AKHLAQUE HUSSAIN MEMON and others

versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and others

Constitutional Petitions Nos.D-1045 and 1139 of 2014, decided on 9th September, 2014.

Constitution of Pakistan---

----Arts. 199, 4 & 10-A---General Clauses Act (X of 1897), S.21---Constitutional petition---Maintainability---Civil service---Promotion---Withdrawal of notification of promotion---Vested right---Accrual of---Violation of principles of natural justice---Principle of master and servant---Applicability---Promotions of the petitioners were withdrawn after conducting departmental proceedings at the back of the petitioners without assigning any reason and issuing show-cause notices---Contention of the petitioners was that as the order of their promotion had been acted upon, therefore, the same could not be rescinded or recalled on the touchstone of principle of locus poenitentiae---Plea of the authorities was that Electric Supply Company being a separate entity had no statutory rules and the rules adopted by the Company had been borrowed from WAPDA, thus, constitutional petition was not maintainable---Validity---Constitutional petitions were maintainable under Art.199 of the Constitution for the reasons, inter alia, that the petitioners had been condemned unheard and there was no alternate, efficacious and speedy remedy available to them to enforce their rights---Affected persons were not made a party to the inquiry proceedings, which took place surreptitiously in a clandestine manner at the back of the petitioners and without giving them show cause notices, petitioners were served with the orders of demotions without affording them an opportunity of being heard---Despite the fact that petitioners were not governed by any statutory rules and that statutory intervention of Removal from Service (Special Powers) Ordinance, 2000 was also not there due to repeal of the same, nevertheless, petitioners were still entitled to invoke constitutional jurisdiction of High Court under Art.199 of the Constitution in order to enforce their Fundamental Rights under Arts.4 & 10-A of the Constitution---Inquiry proceedings were initiated at the behest of some obscure and illegal source, which was bereft of any legal or moral authority and was arbitrary, capricious, void ab initio, mala fide, tainted with malice, coram non judice and of no legal effect, therefore, were liable to be set aside---Constitutional petitions were allowed in circumstances.

Mubeen-Ul-Islam's case PLD 2006 SC 602; 2010 SCMR 487; Pakistan Steel v. Muhammad Aslam Chaudhry 2013 SCMR 375; 2013 PLC (C.S.) 229; Anisa Rehman v. PIAC 1994 SCMR 2232; Pakistan International Airlines (PIAC) v. Nasir Jamal Malik 2001 SCMR 934; Federation of Pakistan v. Noor Jamal 2004 SCMR 294; Federation of Pakistan v. Abdul Basit 2012 SCMR 1229; Mansab Ali v. Amir PLD 1971 SC 124; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Mumtaz Hussain Bhutta v. Government of Pakistan 2014 PLC (C.S.) 229; Tahir Abbas v. FESCO 2011 PLC (C.S.) 354; Deedar Hussain Jakhrani and others v. Federation of Pakistan through Secretary Establishment and others 2011 PLC (C.S.) 203; 2001 SCMR 934; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; 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. Inayatullah Shaikh 1999 SCMR 311; Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205; Zahir Jan v Province 2003 SCMR 681; Pakistan International Airlines Corporation v. Shaista Naheed 2004 SCMR 316; Munsif Shah v. PEPCO 2013 PLC (C.S) 223; Habibullah Energy Limited v. WAPDA PLD 2014 SC 47; Ghazanfar Ali Khan v. F.O.P. PLD 2014 Lah. 375; Abdullah Ismail v. Sindh Industrial Trading Estate Ltd. 1997 CLC 783 and Pakistan v. Muhammad Himayatullah PLD 969 SC 407 ref.

Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Muhammad Nadeem Arif v. Inspector-General of Police 2011 SCMR 408 and Hyderabad Electric Supply Co.'s case 2010 PSC 1392 rel.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789 and Executive District Officer (Education) v. Muhammad Younas 2007 SCMR 1835 distinguished.

Barrister Zamir Ghumro and Shahab Usto for Petitioners.

Zahoor Ahmed Baloch, D.A.-G. for Respondents.

Syed Jawaid I. Bukhari for PEPCO.

Muhammad Arshad S. Pathan for HESCO.

Dates of hearing: 11th, 12th and 18th August, 2014.

2015 P L C (C.S.) 699

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Lt. Cdr. (R) ABDUL AZIZ NAREJO

versus

KARACHI PORT TRUST through Chairman and another

Constitutional Petition No.D-4010 of 2012, heard on 29th August, 2014.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil Service--- Termination without issuance of show-cause notice ignoring the findings of second inquiry---Effect---Petitioner was appointed against the post of Assistant Electric Engineer (BS-17) though the advertisement for vacancies mentioned the posts of Electric Engineer (BS-18)---Claim of the petitioner for grant of BS-18 culminated into his victimization---Successive inquiries were conducted against the petitioner---Petitioner was proved guilty in the first inquiry and was exonerated in the second inquiry with the recommendation of issuance of warning, but the petitioner was condemned unheard and his services were terminated without issuing him any show-cause notice---Contention of the petitioner was that the authorities had passed the order of his termination on the basis of allegation of theft of diesel with mala fide intentions and bias, just to deprive him of his right of appointment against the post of Electric Engineer (BS-18)---Validity---Once second inquiry was conducted by the department in which the petitioner stood exonerated, the show-cause notice issued on the basis of first inquiry report was no more in field and in fact said notice, for all practical and legal purposes, had abated and was non-existent in the eyes of law---Authorities without any reason held the petitioner guilty of the charge, which was never proved and was rather dropped by the second Inquiry Committee in its report-- No body should be condemned unheard and no action should be taken against a person unless he was confronted with the allegations and charges levelled against him through a proper show-cause notice---Petitioner's termination order was set aside and was reinstated into service with all back benefits---Constitutional petition was allowed in circumstances.

Pakistan International Airlines Corporation v. Abdul Ghafoor and others 2004 PLC (C.S.) 418; Water and Power Development Authority v. Abbas Ali Malano and another 2004 PLC (C.S.) 1; Sarfaraz Ahmed v. Government of Sindh 2006 PLC (C.S.) 1304; New Jubilee Insurance Company Limited v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Qazi Abdul Jalil v. N.-W.F.P. Forest Development Corporation 2010 SCMR 1933 ref.

Ghulam Mustafa Khan v. Federation of Pakistan and another 2010 PLC (C.S.) 426 rel.

Mansoorul Haq Solangi for Petitioner.

Ahsan Ghani Siddiqui for Respondents.

Date of hearing: 29th August, 2014.

2015 P L C (C.S.) 719

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

Mrs. ZEENAT AHMED

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others

Constitutional Petition No.D-3488 of 2014, decided on 16th October, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 212(2)---Civil Procedure Code (V of 1908), O.VII, R.11---Service Tribunals Act (LXX of 1973), Ss.3, 4, 7 & Preamble---Civil Servants Act (LXX of 1973), Preamble---Constitutional petition---Maintainability---Alternate remedy---Scope---Civil service---Transfer and posting---Terms and conditions of service---Bar of Art.212(2) of the Constitution----Applicability of Civil Procedure Code to the proceedings under Art.199---Scope---Relief of 'wedlock policy' in earlier round of litigation through another constitutional petition---Effect---Violation of principle of approbate and reprobate---Effect---Respondent sought rejection of the constitutional petition filed by the petitioner for her transfer and posting on the ground of 'wedlock policy'---Petitioner had challenged the order before proper forum through filing of departmental representation---Contentions of the respondent were that constitutional petition was not maintainable under law keeping in view the bar contained in Art.212(2) of the Constitution, as the question of posting and transfer of a civil servant related to terms and conditions of service, which fell within the jurisdiction of Service Tribunal; that constitutional petition was incompetent as the petitioner had filed the constitutional petition after taking charge of the post and filing of the departmental representation before the proper forum---Plea of the petitioner was that provisions of O.VII, R.11, C.P.C. were not applicable to the proceedings under Art.199 of the Constitution---Validity---Extra-ordinary jurisdiction for seeking relief was subject to non-availability of alternate remedy---Such bar was not absolute and resort could be made to it where the ordinary remedy was not efficacious or otherwise---Service Tribunal had been established under the Service Tribunals Act, 1973, which had exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto---Applicability of O.VII, R.11, C.P.C. was immaterial, particularly when there was no dispute about the applicability of C.P.C. to constitutional petition---Mentioning of wrong provision would make no difference or cause no prejudice---Preambles of Civil Servants Act, 1973 and Service Tribunals Act, 1973 showed that both the Acts had not only provided a complete mechanism for the matters relating to the terms and conditions of service of a civil servant, but also dealt with the connected and ancillary matters exclusively---Petitioners had no substantial ground for requiring the cognizance of the High Court in its constitutional jurisdiction---Neither any violation of the Constitution nor of any other statutory provision of law had been violated by the respondents, which under circumstances of the case could appropriately be redressed by the High Court without going and or entering into the details of the disputed facts and/or of recording the evidence---Alternate remedy was evidently available to the petitioner, therefore, intervention of the High Court under constitutional jurisdiction was not warranted, as the petitioner had already challenged the order before proper forum---Application under O.VII, R.11, C.P.C. was allowed and constitutional petition was held to be not maintainable.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Object of proceedings under Art.199 of the Constitution was the enforcement and protection of vested right and not the establishment thereof.

(c) Pleadings---

----Binding effect---Parties were bound by their pleadings and could not be permitted to resile therefrom according to their whims and wishes.

(d) Approbate and reprobate, principle of---

----Applicability---One could not be allowed to approbate and reprobate and/or otherwise resile from the position having already been taken/pleaded---Petitioner, a civil servant, in the present case, in earlier round of litigation had only resisted her transfer on the plea of 'wedlock policy' therefore, she was not permitted to wriggle out of her stand or otherwise, resist her transfer made by the authorities much less in view of the binding principle of 'wedlock policy' and also in compliance with the observations of the High Court passed in earlier petition.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Equity---Principle---"One who seeks equity must do equity"---For seeking a relief under Art.199 of the Constitution, of course, one had to approach the court besides clean hands, with a bona fide claim---Conduct of a litigant was of a paramount importance for seeking relief under Art.199 of the Constitution.

Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another 2001 PLC (C.S.) 907; Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Amanullah Khan (A. Khan) v. Chotey Khan 1978 SCMR 14; Managing Director (Power), WAPDA and others v. Muhammad Luqman 2003 PLC (C.S.) 526; Syed Najmul Hassan Wasti v. Province of Sindh through Secretary Excise and Taxation and 2 others 2010 PLC (C.S.) 224; Dr. Younis Asad Sheikh v. Province of Sindh through Secretary, Health Department Government of Sindh 2009 PLC (C.S.) 735; Gulbat Khan v. Water and Power Development Authority 1992 SCMR 1789; Mst. Riaz Anjum and others v. Mrs. S. Maqool and others 1999 SCMR 912; Government of Punjab through Secretary, Labour and Manpower, Civil Secretariat and others v. Shahid Mehmood Butt 2006 SCMR 443; Punjab Small Industries Corporation (PSIC) v. Sh. Abdus Salam and others 2008 SCMR 583; Miss Rukhsana Ijaz v. Secretary Education, Punjab and others 1997 SCMR 167; Water and Power Development Authority and others v. Commissioner Hazara Division and others 1992 SCMR 2102; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Suo Motu and Human Rights cases PLD 2011 SC 277; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department Lahore and another 2004 PLC (C.S.) 622; Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab Livestock and Dairy Development Department, Lahore and 4 others 2003 PLC (C.S.) 1322 and Mrs. Zeenat Ahmed v. Federation of Pakistan through Secretary Defence and 2 other 2014 PLC (C.S.) 1032 ref.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 226; Khalilur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 590; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Muttaqi Hussain Rizvi v. Province of Sindh PLD 1978 Kar. 703; Syed Shabbar Raza Rizvi v. Institution Officer 2010 SCMR 354; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Messrs E.F.U. General Insurance Company Limited v. The Federation of Pakistan and others PLD 1997 SC 700; Sarfraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376/300 rel.

Khalid Javaid for Petitioner.

Muhammad Arshad Khan Tanoli for Respondent No.4.

M.M. Aqil Awan and Danish Rasheed for Respondent No.5.

Asif Hussain Mangi Standing Counsel for State.

Date of hearing: 23rd September, 2014.

2015 P L C (C.S.) 883

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Aziz-ur-Rehman, JJ

GHULAM ALI BUGHIO

versus

PROVINCE OF SINDH through Secretary and 3 others

Constitutional Petition No.D-4533 of 2014, decided on 16th October, 2014.

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

----R. 12A--Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Change of date of birth before superannuation--- Approbate and repprobate, principle of---Applicability---Laches---Scope---Petitioner sought correction of date of birth by submitting photo-copies of documents---Plea of the Authority was that Constitutional petition was not maintainable keeping in view the bar contained in Art.212(2) of the Constitution and the matter pertained to the terms and conditions of service of civil servant as such Service Tribunal was the only competent forum which could appropriately and suitably adjudicate upon the issue of date of birth as the same was a factual dispute which could not be resolved without recording of evidence---Validity---Petitioner was only seeking correction of the employer department record and not asking for change of his date of birth, therefore, the same was not barred or otherwise, hit by Art.212(2) of the Constitution---High Court had ample powers to issue such like direction under its constitutional jurisdiction to the department but, of course, where the illegality was quite apparent on the face of record and/or there was a clear violation of any vested and established legal right---Constitutional jurisdiction was only meant for safeguarding/protecting the vested right and not for establishing any right through evidence---Question pertaining to correctness of date of birth or otherwise of the date of birth in service was a pure question of fact, which could not be ascertained under the constitutional jurisdiction as the same required evidence---Petitioner remained silent during long period of service rather got promoted keeping in view the Seniority list---One could not approbate and reprobate---Petitioner at the 'verge of his retirement' sought direction to the Authorities for correcting the date of birth of the petitioner in service record, which direction at this belated stage, of course, could not be granted on the ground of laches---Petitioner, in his own wisdom remained dormant for many years without making any efforts for correction of his date of birth rather the petitioner in a number of documents himself had mentioned his date of birth as 15-9-1954 instead of 15-9-1958--- Under R.12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 issue of correction of date of birth could not be agitated after joining of service---Date of birth once recorded at the time of joining of government service had become final and thereafter no alteration in the date of birth was permissible---Petitioner's plea at this belated stage was apparently aimed at to only prolong his tenure for enjoying the perks and privileges for a few years more only at the cost of others, but such aimed enjoyment of financial gains under the facts and circumstances of the present case could not be permitted---Constitutional petition was dismissed in circumstances.

Overseas Pakistani Foundation and others v. Sqn. Ldr. [Retd.] Syed Mukhtiar Ali Shah and another 2007 SCMR 569; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494; Qamaruddin v. Pakistan through Secretary, Establishment Division Islamabad and another 2007 SCMR 66 and Khalil Ahmad Siddiqui v. Pakistan through Secretary Interior, Interior Division, Government of Pakistan and 5 others 2003 PLC (C.S.) 696 rel.

Manzoor Hussain for Petitioner.

Sibtain Mehmood, A.A.-G. along with Maqsood Ahmed, Deputy Secretary Irrigation Department, Government of Sindh for Respondents.

Date of hearing: 18th September, 2014.

2015 P L C (C.S.) 923

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

AHMED SAEED SIDDIQUI and others

versus

PAKISTAN through Secretary Establishment and others

Constitutional Petitions Nos.D-786, D-787 and D-4054 of 2014, decided on 22nd September, 2014.

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

----S. 22---Federal Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion of the civil servants to selection posts from BS-20 to BS-21 and from BS-19 to 20---Bar contained under Art.212 of the Constitution---Scope---Deferment of the civil servants (petitioners) by the Central Selection Board---Petitioners earned "good", "very good", "excellent" and "outstanding performance" evaluation in their ACRs/PERs throughout their service career---Appointment through promotion to 'selection' posts was based on 'merit', which required subjective assessment regarding "fitness" and "suitability" of the officers, to the said posts subject to their eligibility---Petitioners being senior officers with unblemished record were not recommended for promotion by the Central Selection Board, whereas officers juniors to petitioners were recommended for promotion without any lawful justification---Validity---Appointment through promotion against the selection posts was purely based on merits---Promotion to such posts required "subjective assessment viz-a-viz "fitness" and "suitability"---"Assessment of fitness" and "suitability" were excluded from the ambit of Service Tribunal under S.4 of the Federal Service Tribunals Act, 1973---Constitutional petitions were maintainable, in circumstances.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Tariq Aziz-ud-Din and other's case 2010 SCMR 1301 and Orya Maqboo1 v. Federation of Pakistan and others 2014 SCMR 817 ref.

Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 and Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 rel.

(b) Civil Service---

----Selection Board (public authority)---Selection of officers---Subjective assessment---Scope---"Subjective evaluation" was to be based on an "objective criteria"---In the present cases, the deferment of the petitioners' promotions was on account of "undisclosed reasons"---"Objective assessment" for promotion and determining the fitness was required to be made under the law.

Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564 rel.

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

----S. 9---Constitution of Pakistan, Arts.10A, 14, 18, 199 & 212---Constitutional petition---Right to fair trial---Inviolability of dignity of man, etc.---Scope---Deferment of the civil servants (petitioners) by the Central Selection Board---Evaluation of integrity and performance of the civil servants---Jurisdiction of High Court in matters pertaining to non-consideration for promotion--- Scope--- Reliance on personal opinion of the Central Selection Board for such evaluation---Validity---Matters pertaining to the appointment, posting, promotion and consideration for promotion of civil servants needed to be dealt with in a fair manner otherwise any treatment given in violation of Art.10-A of the Constitution would be open to challenge under Art.199 of the Constitution---In the present case, the "adverse remarks" made by Central Selection Board were not only arbitrary, but also against the Fundamental Rights of the petitioners as provided under Arts.9, 14 & 18 of the Constitution---Violation of the Fundamental Rights, indeed, could validly be challenged by a civil servant by means of filing of the Constitutional petition---Action or inaction which was arbitrary and not supported by materials on record or otherwise based on "undisclosed" materials could validly be challenged through filing of constitutional petition under Art.199 of the Constitution---Merit based decisions made by the Central Selection Board without violation of the Fundamental Rights could only be barred under Art.199 of the Constitution and not otherwise---Non-consideration of the petitioners' cases for promotion could validly be challenged under Art.199 of the Constitution.

Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 rel.

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

----S. 9---Constitution of Pakistan, Arts.4, 10-A & 199---Constitutional jurisdiction of High Court---Scope---Equal protection of law---Doctrine of fairness and due processes---Scope---Arbitrary acts were always to be open to correction by High Court---Petitioners, in the present case, had no vested right to be promoted, but yet under S.9 of the Civil Servants Act, 1973, they were entitled to be considered for promotion---Junior officers had been considered for promotion, which was nothing but a glaring violation of Art.4 of the Constitution, particularly when the left out officers were eligible for promotion---Arbitrary decision would always be open to correction under the exercise of constitutional jurisdiction---Petitioners' deferment for promotion by Central Selection Board while placing reliance on the personal opinion of departmental representative, ex-facie was contrary to the "doctrine of fairness and due processes" as provided under Art.10-A of the Constitution.

Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 rel.

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

----S. 3(2)---Constitution of Pakistan, Arts.4, 199 & 212---Constitutional jurisdiction of High Court---Scope---Promotion Policy---Bar of Art.212 of the Constitution and S.3(2) of the Service Tribunals Act, 1973---Scope and extent---Instructions issued and contained in the Estacode etc. had the force of law and as such the same were to be followed strictly---High Court, despite the bar contained in Art.212 of the Constitution and S.3(2) of the Service Tribunals Act, 1973 had ample jurisdiction to give direction to the public functionaries to perform their functions strictly in accordance with law while exercising its functions under Art.199 of the Constitution in view of Art.4 of the Constitution---Guidelines regarding "promotion policy" ought to be based on "objective criteria" and 'subjective evaluation" of confidential reports etc.---Guidelines issued by the Government itself from time to time were to be treated at par with statutory rules---"Revised Promotion Policy" framed by the Federal Government (Estacode, enclosed at Serial No.163) enjoyed the force of law.

Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others PLD 2008 SC 769 rel.

(f) Relevant provisions of service laws---

----Constitution of Pakistan, Arts.4, 10A & 199---Constitutional petition---Promotion---Rights to equal protection of law and fair trial---Scope---Disclosure of adverse materials to be used against a person and affording opportunity of defence---Scope---Without disclosure of adverse materials and affording opportunity of defence, nevertheless, the petitioners were deprived of their promotion which act of the Central Selection Board was not only "unfair" but also against the principles of natural justice and spirit of Arts.4 & 10-A of the Constitution.

Tanvir Ashraf v. Riasat Ali and 5 others 2004 YLR 659 and Muhammad Jameel and 45 others v. Taluka Nazim, Taluka Municipal Administration Khairpur and 5 others 2014 PLC (C.S.) 479 rel.

Muhammad Farogh Naseem for Petitioners (in C.Ps. Nos.D-786 and D-787 of 2014).

Muhammad Jamshid Malik for Petitioner (in C.P. No.D-4054 of 2014).

Asif Hussain Mangi, Standing Counsel (for Respondents Nos.1 and 3).

Zakir Leghari and S. Nooruddin Ahmed, FBR Coordination (Legal), Karachi for Respondent No.2 (in C.P. No.D-786 of 2014).

Kafeel Abbasi and S. Nooruddin Ahmed, FBR Coordination (Legal), Karachi for Respondent No.2 (in C.P. No.D-787 of 2014).

Date of hearing: 13th August, 2014.

JUDGMET

AZIZ-UR-REHMAN, J.--- Through this common judgment we intend to dispose off the above Constitutional Petitions i.e. C.P. No.D-786 of 2014 (Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment and others) C.P. No.D-787 of 2014 [Dr. Aftab Imam v. Pakistan through Secretary Establishment and others] and C.P. No.D-4054 of 2014 [Muhammad Saeed Nashir v. Federation of Pakistan through Secretary Establishment and others] which pertain to the similar issue of promotion from BPS-20 to BPS-21 or BPS-19 to BPS-20 [in the case of petitioner in C.P.No.D-4054 of 2014] coupled with for seeking direction to the respondents, inter alia, to consider the petitioners for promotion. Almost, common prayers have been sought by the petitioners in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014 [hereinafter the 1st two C.Ps.] which read as follows:---

(a) Declare the meeting and decisions of the CSB dated 13-2-2014 in respect of promotion from BS-20 to BS-21 of officers of the Inland Revenue to be completely mala fide, without any basis, illegal, arbitrary, void ab-initio and of no legal effect, while setting aside the same;

(b) direct the respondents to consider the petitioner for promotion in BS-21.

(c) declare Office Memorandum dated 12-10-2012 (Annex-C to the petition) to be completely without jurisdiction, illegal, void ab initio and of no legal effect;

(d) permanently and pending disposal of the main petition restrain the respondents, their officers/agents from notifying any persons junior to the petitioner in BS-21 in the Inland Revenue Service of the FBR;

(e) direct the respondents to submit before this honourable Court the entire minutes and record of the CSB dated 13-2-2014, the Performance Evaluation Reports (PERs) of petitioner, his entire data and record in respect of SMC and NMC training programmes, so also the precise reasons given by CSB for the discretionary deferment to the petitioner;

(f) award costs and special costs;

(g) award any other relief deemed fit.

1. The only difference in the 'prayer clause' sought by the petitioner viz. Muhammad Saeed Nashir in C.P.No.D-4054 of 2014 [hereinafter the 3rd C.P.] is to the extent of his Grade [i.e. BPS-19] and promotion from BPS-19 to BPS-20. Rest of the prayers are almost the same.

2. The relevant facts in the backgrounds are as follows:---

3. That the petitioners in C.P. No.D-786 of 2014 and C.P. No.D-787 of 2014 are working in the Inland Revenue in the BPS-20 and have the required length of service in BPS-20 for promotion to BPS-21. Per respondents version, under the 'Promotion Policy' as prescribed in the Estacode, the necessary requirements for the officers in BPS-20 for promotion into BPS-21 are as under:---

"(a) the officers should have undertaken 22 years of service in BS-17 and above;

(b) the blood count of the officers should be 75%."

1. Per 'Promotion Policy' as prescribed in the Estacode, the blood count as averred by the petitioner is arrived at in the following manner:---

"(a) 75% marks are attributed to the quantification of the Performance Evaluation Reports (PERs) (formerly known Annual Confidential Report i.e. ACRs). The PER quantification is to be made as per the mathematical formula given in the Promotional Policy/Estacode;

(b) 15% marks are attributed towards training. The officers in BS-20 have to undertake training at the National Management College (Administrative Staff College), now known as the National Management Course (NMC);

(c) 15% marks are attributable solely at the discretion of the Central Selection Board (CSB) i.e. the respondent No.3."

1. According to the petitioners, in terms of S.I. No.160 [Estacode], the seniors officers cannot be left out or ignored for promotion much-less when they possess/have attained the requisite eligibility requirements of working. Per averments, made in C.P.No.D-786 of 2014 and C.P. No.D-787 of 2014, both the petitioners therein have not been recommended for promotion in BPS-21. So also the petitioner viz. Muhammad Saeed Nashir in C.P.No.D-4054 of 2014 was not recommended for promotion from BPS-19 to BPS-20 in the Board meeting of CSB held on 13th February, 2014.

2. The respondent No.3, as averred, held its' meeting on 13th February, 2014. The petitioners in the first two C.Ps. besides being seniors officers with un-blemished record and lawfully acquired blood count, however, were not recommended for promotion to BPS-21 by the Central Selection Board [in short CSB] in its meeting held on 13th February, 2014. While, officers juniors to them, per reliable source, were recommended for promotion without any lawful justification. The reasons for not recommending the petitioners, however, were not conveyed to petitioners. Rather to say, the petitioners were ignored for extraneous reasons despite having attained the required blood counts etc.

3. Under the aforesaid scenario, the petitioners herein have not only challenged the failure of respondents to consider the petitioners for promotion in BPS-21 or BPS-20 [in the case of 3rd petitioner] but also the decision taken by the CSB in its' meeting held on 11th, 12th and 13th February, 2014 wherein the cases of petitioners, nonetheless, were deferred.

4. Per averments, the failure/refusal of the respondents to consider the petitioners for promotion in BPS-20 to BPS-21 [in the case of 1st two petitioners] and BPS-19 to BPS-20 [in the case of 3rd petitioner], is not only mala fide, illegal, void ab initio but also without jurisdiction. The mala fides of the respondents can be appreciated from the facts that although the petitioners had successfully completed NMC [National Management Course] and all along their performance was also extolled by their reporting countersigning officers. All the petitioners, no doubt, had earned good, very good, excellent and outstanding performance evaluation in their ACRs/PERs throughout their career spending over years but they were ignored by CSB in its' meeting held on 13th February, 2014 for un-known reasons.

5. Moreover, the respondents in a manner completely without jurisdiction and illegally prescribed 'Office Memorandum' dated 12-10-2012 stating the 'revision of Promotion Policy'. Such 'Revision, of Promotion Policy' has no legal sanction behind it. The 'Office Memorandum' it is worth to note is against the very percept of 'structuring the discretion'. Per stand taken by the respondents, once the PER reflects the work of civil servant satisfactory, then there would be no justification to have prescribed, such 'revision of Promotion Policy', conferring absolutely 'subjective discretion' on the respondents. 'Office Memorandum' in view of this position is completely illegal, without jurisdiction and, of course, cannot be given effect to it on any ground whatsoever.

6. The above 1st two petitions bearing C.Ps.Nos.D-786 and 787 of 2014 when came-up before the court on 19-2-2014, then besides issuing notice to the respondents and learned D.A.-G., the following order was passed:---

"19-2-2014

Dr. Muhammad Farogh Naseem, Adv. for the petitioner.

1. Urgency granted.

2. It is inter alia contended by the learned counsel that the petitioner is performing his duties in BS-20 in the Inland Revenue and according to the Promotional Policy as prescribed in the Estacode the petitioner is entitled for promotion from BS-20 to BS-21. It is further stated that the petitioner is in service for the last 22 years. A meeting of Central Selection Board (CSB) was held on 13-2-2014 for the promotion of 17 officers in BS-21 of the Inland Revenue and according to the information the petitioner was also recommended for promotion in BS-21, but he came to know that despite being senior, having an unblemished record and huge length of service his recommendation for promotion in BS-21 was not considered.

Issue notice to the respondents as well as to DAG. Meanwhile, one post in BS-21 (Inland Revenue) shall not be filled by promotion of any junior officer till next date of hearing."

1. Likewise, when the 3rd C.P.No.D-4054 of 2014 came-up before the court on 7-8-2014, then the following order was passed:---

"7-8-2014

Mr. M. Jamshed Malik advocate for petitioner

1. Urgent application is granted.

2. Exemption application is granted subject to all just exceptions.

3 and 4. It is, inter alia, contended by the learned counsel for petitioner that the petitioner is presently working in Inland Revenue Department in BS-19 and has the acquired length of service in grade BS-19 so as to be promoted to grade BS-20. As per learned counsel for petitioner the respondent No.3 in its Minutes held on 11th, 12th and 13th February, 2014 for consideration of promotion recommended promotions of 46 officers in BS-19 of the Inland Revenue Department but it did not recommend the petitioner to promote him. As per learned counsel for petitioner the action of respondent No.3 is illegal and mala fide. Learned counsel for petitioner states that in similar and identical circumstances some other officers have also challenged such Promotion Policy by filing of C.P.No.D-787 of 2014 in which on 19-2-2014 restraining order was passed after issuing the notice to the learned D.A.G. to the effect that one seat in BS-20 (Inland Revenue) shall not be filled in by promotion of any junior officer till next date of hearing. Learned counsel for petitioner submits that same treatment may also be extended to the petitioner as this case is identical and similar to the case of petitioner who has filed C.P.No. D-787 of 2014, Issue notice to the respondents as well as learned D.A.G.

Till next date of hearing one another seat of post of BS-20 (Inland Revenue) Department shall not be filled-in by promotion of any junior officer. As other similar and identical petition is fixed on 13-8-2014 this petition be also fixed together aforementioned petition on the same date and before the same Bench."

1. Upon service, only the respondent No.2, filed their comments in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014 wherein inter alia, the locus standi of the petitioners as well as the accrual of any 'cause of action' in their favour was denied. The infringement of any right was also denied. Per respondents' version, the present petitions as framed and filed by the petitioners besides misleading are misconceived. Passing of any 'adverse order' against the petitioners was also denied. Moreover, per respondents' stand, the Service Matters of civil servants, purely fall within the exclusive jurisdiction of the Federal Service Tribunal [in short FST] thus the same under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be agitated in the Constitutional Petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On this score alone, as per contentions of the respondents, the present petitions are liable to be dismissed in limine, as the petitioners have wrongly invoked the jurisdiction of this court.

2. The petitioners, per respondents' stand, have no legal rights to contest their non-promotion muchless in view section 22 of the Civil Servant Act, 1973 which provides that no representation shall lie on the matters pertaining of determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Indeed, consideration for promotion is a right of civil servant, but such promotion is not a vested right of the petitioners. No doubt, pre-requisite ingredients, for consideration of promotion is the length of service and seniority but the competent authority, however, can also consider overall record of the civil servants including their seniority, variety of experience, integrity, reputation and equality of service. The petitioners' cases, per averments, no doubt, were placed for consideration of promotion before Central Selection Board [in short CSB] in its' meeting held on 13-2-2014, however, their cases were deferred by CSB with the following remarks:---

"The departmental representative Chairmen FBR stated before the Board that he was not satisfied with recent performance of the officers. He recommended to put the officer under observation in order to assess his performance. The Board considering all the facts agreed with officer with direction of Chairman FBR to come up with clear recommendation in next CSB meeting".

1. According to the respondents' version, the cases of petitioners will be placed for consideration before the Central Selection Board [CSB] for promotion in its' next meeting whenever it is held in accordance with 'Promotion Policy'. The competent authority while, considering the promotion of the petitioners amongst others will consider the commitment of the petitioners to job, dedication to duty, power to take decision, acceptance to responsibility integrity and variety of experience etc. The petitioners, however, presently, did not possess the requisite requirements for promotion as such were deferred. The comments/opposition of the petitioners on the point of legality and jurisdiction of 'Office Memorandum' dated 12-10-2012 besides un-called, baseless are without any legal footings.

2. On 13-8-2014, when the above petitions came-up before us, we heard Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014, Mr. M. Jamshid Malik, learned counsel for petitioner in connected C.P.No.D-4045 of 2014, Mr. Kafeel Ahmed Abbasi, learned counsel for the respondent No.2, Mr. Zakir Laghari, learned counsel for respondent No.2 in C.P. No.D-786 of 2014 along with Mr. S. Nooruddin Ahmed, Co-ordinator [Legal] Karachi and Mr. Asif Hussain Mangi, learned Standing counsel for respondents Nos.1 and 3 and with their valuable assistance also scanned the record available before us.

3. Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.Ps.Nos.D-786 and D-787 of 2014, vehemently contended that the respondents failure/refusal to consider the cases of the petitioners for promotion in BPS-21 besides, mala fide, illegal, void ab initio, without jurisdiction is of no legal effect. The mala fides of the respondents, are evident from the record. Both the petitioners [in the 1st two C.Ps.] have the outstanding PER for the period 1-12-2012 to 3-3-2012. The non-availability of their PER for the remaining period of service in PBS-20 is not due to the petitioners' fault and/or negligence. The petitioners, rather had successfully completed NMC training. All along, the performance evaluation of the petitioners remained 'satisfactory', 'good', 'very good' and 'excellent' as per their PER/ACRs of their careers spending over years.

4. Dr. Muhammad Farogh Nasim, learned counsel for the petitioners [in the 1st two C.Ps.] further urged, that 'Office Memorandum' dated 12-10-2012 is without jurisdiction and seemingly has been issued in a mala fide and illegal manner. Firstly there is no legal sanction behind the 'Office Memorandum' and secondly such 'Office Memorandum' is against the percept of 'structuring the discretion'. According to the learned counsel, once the PERs/ACRs reflect work of the civil servant satisfactory then there would be no justification of prescribing such a revision of the promotion policy', conferring absolutely 'subjective discretion' on respondents. In view of this position as well, 'Office Memorandum' dated 12-10-2012 is without jurisdiction and illegal.

5. Learned counsel for petitioners in the 1st two C.Ps., next argued that the 'adverse remarks' made while, considering the cases of the petitioners by CSB not only are mala fide but also not supported by any materials available on record. Per learned counsel, due to such 'adverse remarks' the petitioners nonetheless were denied their promotions. Such denial of promotion is not only illegal but also without any lawful justification. According to Mr. Farogh Nasim, learned counsel for petitioners in 1st two C.Ps., the bar of jurisdiction under Article 212 of the Constitution does not apply as there is no impugned order and the cases of the petitioners otherwise, pertain to fitness to hold higher post and promotion and prospect of promotion only.

6. In support of his contentions, Mr. Farogh Nasim, learned counsel for the petitioners in 1st two C.Ps. placed reliance on the following cases :---

(i) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195]

(ii) Tariq Aziz-ud-Din and others [2010 SCMR 1301]

(iii) Orya Maqbool v. Federation of Pakistan and others [2014 SCMR 817]

(iv) Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lahore 413].

1. Apart from the above case-laws, the learned counsel also placed reliance on an unreported judgment dated 19-12-2012 passed in C.P.No.D-3430 [Saleem Butt and others v. Pakistan through Secretary Establishment Division Cabinet Secretariat, Islamabad and others] and other connected C.Ps. [i.e. C.Ps.Nos.D-3431, 3574, 3698 of 2011, C.P. No.D-11, 214 and 704 of 2012], wherein the learned Divisional Bench of this Court while, disposing of the aforesaid petitions had observed as follows:---

"We are of the view that when promotion of an employee is being considered then there has to be some material on record to show that the employee is either inefficient or does not possess requisite qualification or has been involved in corrupt practices. There has to be some material in Performance Evaluation Reports in order to come to the conclusion that a candidate is not fit to be promoted. The adverse opinions formed by Central Selection Board apparently do not take into account the material contained in the Performance Evaluation Reports. We are therefore of the opinion that let Central Selection Board reconsider the cases of the petitioners afresh for promotion from BS-19 to BS-20 to BS-21, as the case may be, and in case it is found that any of the petitioners is not fit for promotion then opinion in such regard should be based on some material available on the record from which it becomes evident that a particular candidate was either inefficient or did not have requisite qualification or indulges in corrupt practices. Hence, we set aside the earlier decision of the Central Selection Board with regard to the non-suitability of petitioners' promotion and direct that the Central Selection Board to de novo consider the promotion of the petitioners in its next/future meetings [Underlining is ours].

These petitions stand disposed off in the above terms."

1. Lastly learned counsel prayed for allowing the petitions as prayed.

2. Mr. Jamshid Malik, learned counsel for petitioner in C.P. No.D-4054 of 2014 while, adopting the arguments of Dr. Muhammad Farogh Nasim, learned counsel for the petitioners in 1st two C.Ps. also prayed for allowing the Petition No.D-4054 of 2014 [Muhammad Saeed Nashir v. Federation of Pakistan through Secretary Establishment and others].

3. Conversely, Mr. Asif Hussain Mangi, learned Standing Counsel, Mr. Kafeel Ahmed Abbasi, learned counsel for respondent No.2 in C.P. No.D-787 of 2014 and Mr. Zakir Laghari, learned counsel for respondent No.2 in C.P. No.D-786 of 2014 along with Mr. S. Nooruddin Ahmed, Co-ordinator [Legal] Karachi forcefully contended that present petitions as framed and filed are not maintainable in law. Per learned counsel, the service matters cannot be questioned under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioners in the instant petitions, have no legal right to contest their non-promotion. Under section 22 of the Civil Servants Act, 1973, no representation lie on the matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Indeed, consideration for promotion is a right of a civil servant but admittedly, promotion is not a vested right. Further the recommendations of CSB is still awaited as such, the present petitions being pre-mature are liable to be dismissed with cost.

4. Moreover, the petitioners in the instant petitions have merely acted on presumptions and hearsay, as such the present petitions are not maintainable. The contentions of the petitioners in actual fact is merely based on apprehension and that too at the pre-mature stage as such all the petitions being devoid of merits thus deserve outright rejection. Per respondent No.2 stand, the cases of petitioners indeed, would be 'considered for promotion' in the next CSB's meeting, as and when it is held. Per averments, the Central Selection Board had deferred the case of the petitioners with direction to the Chairman CBR to come up with clear recommendations in the next CSB's meeting.

5. Learned counsel for the respondent No.2, in support of his contentions has placed reliance on the case of Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others [PLD 2008 SC 769]. The relevant observations read as follows:---

"6. As regard the first contention raised by the learned counsel for the appellant that since very eligibility of respondent No.5 for promotion to the next higher grade was disputed as compared to the appellant, therefore, the learned Tribunal could not have declined to exercise jurisdiction by bringing the matter under section 4(b) (i) of the Act, it may be pointed out here that eligibility for promotion and fitness for promotion are distinct and separate from each other. Eligibility relates to the terms and conditions of service, whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a Tribunal or a Court hence, neither eligibility to promotion can be equated with promotion nor prospects of promotion can be included in terms and conditions of service. It is well-settled that though eligibility A' for promotion of a civil servant can be subjected to judicial scrutiny by the Service Tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction under section 4(b)(i) of the N-W.F.P. Service Tribunals Act, which reads as follows:---

"4. Appeal to Tribunals …...

(a) ……………………………………………………………………………….

(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:

(i) the fitness or otherwise of a person to be appointed to a higher post or grade;

In a number of judgments, it has been repeatedly laid down by this Court that though the question of eligibility relates to the terms and conditions of service and therefore, would fall within domain of the Tribunal yet, the question of fitness of a civil servant for promotion is barred from the jurisdiction of the Tribunal. Reference in this regard may usefully be made to the following reported judgments:---

(i) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539)

(ii) .Muhammad Iqbal v. Executive District Officer (Revenue) (2007 SCMR 682)

(iii) Syed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323)

(iv) Allan Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCMR 1129)

(v) Muhammad Akram and others v. The State and others (1996 SCMR 324)

No doubt it has also been, in some cases including (i) Muhammad Anis (supra), (ii) Muhammad Rehman Khan v. Chief Secretary, N-W.F.P. and others (2004 PLC (C.S) 62), (iii) Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority and others (2002 SCMR 574), and (iv) Zafarullah Baloch v. Government of Balochistan and others (2002 SCMR 1056), laid down by this Court that when a civil servant was eligible for promotion but ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, yet, in the instant case, since the appellant had failed to show that respondent No.5 was ineligible for promotion, therefore, the learned Tribunal had rightly declined to interfere with the order of the departmental authority. Needless to point out that though consideration for promotion is a right yet, the promotion itself cannot be claimed as of right. Record reveals that the cases of both the appellant as well as respondent No.5 were thoroughly considered by the Selection Board and since respondent No.5 was found fit for promotion, therefore, his name was recommended. The contention therefore, is devoid of force.

1. In the wake of above, it thus follows that where promotion to posts carrying basic pay scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i.e. BPS-19 and above is to be made on the basis of "fitness-cum-seniority" meaning thereby that in the earlier case, i.e. BPS-18 and above seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i.e. BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and effect of rules, by virtue of subsection (2) of section 25 of the Civil Servants Act, 1973 as has been held by this Court in the cases of (i) Secretary to the Government of the Punjab v. Abdul Hamid Arif and others (1991 SCMR 628) and (ii) Muhammad Yousaf and others v. Abdul Rashid and others [1996 SCMR 1297), therefore, this contention too, has no force." [Underlining is ours]

2. Heard.

3. To appreciate the contention of the learned counsel for the parties, it would be appropriate to reproduce herein section 3(2) of Service Tribunal Act, 1973 which reads as follows:---

"3. Tribunals.--- (1) The President may, by notification in the official Gazette, establish one or more service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the ,territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act.

(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, Including disciplinary matters."

1. Being relevant Article 212 of the Constitution of Islamic Republic of Pakistan is also reproduced hereinbelow:---

"212. Administrative Courts and Tribunals.--- (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of---

(a) matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters;

(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends;

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."

1. Let in the first place, the objection viz-a-viz jurisdiction of this court be taken up for consideration. Under law the matters pertaining to the appointment, posting, promotion and consideration for promotion of civil servants need to be dealt with in a fair manner otherwise any treatment given in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 would be open to challenge under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. In the cases in hand the 'adverse remarks' made by CSB are not only arbitrary but also against the fundamental rights of the petitioners as provided under Articles 9, 14 and 18 of the Constitution, 1973. The violation of the fundamental rights, indeed, can validly be challenged by a civil servant by means of filing of the constitution petition. Any action or inaction which is arbitrary and not supported by materials on record or otherwise, based on 'un-disclosed', materials can validly be challenged through filing of Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and in such eventuality the jurisdiction of this court would not barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Only merit based decisions made by the CSB without violating of the fundamental rights, in our opinion, would be barred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and not otherwise. Needless to say the 'non-consideration' of the petitioners' cases for promotion can validly be challenged under Article 199 of the Constitution, 1973 .

2. Indeed, the petitioners have no vested right to be promoted but yet in terms of section 9 of the Civil Servants Act, 1973 [No.LXXI of 1973] they are entitled to be considered for promotion. In the present petitions, per averments, the junior officers have been considered for promotion which is nothing but a glaring of violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 particularly, when the left out officers are eligible for promotion. Be that as it may, such decision being based on arbitrariness would always be open to correction under the exercise of constitutional jurisdiction. The deferment of the petitioners cases for promotion by CSB on 13th February, 2014 while placing reliance on the personal opinion of the Departmental representative, ex-facie seems contrary to the 'doctrine of fairness and due processes' as provided under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

3. On the aforesaid aspect of the matter, the relevant observation from the case of Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lah. 413] reads as under:---

"23. Pakistan is a constitutional democracy which rests on rule of law which in turn is pillared on fairness and due process. Now with Article 10A of the Constitution, it is a fundamental right of the petitioners that the process of determination of civil and criminal rights must at every step pass the test of fairness and procedural propriety. There is no room for CSB to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by Member(s) of CSB. Without the Member(s) first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration, the Board cannot place reliance on the said evidence. Syed Jamshed Ali, J. (as he then was) speaking for the Division Bench of this Court in Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others, [(2003 PLC (C.S.) 503)] held:---

"A bare allegation of one of the members of the Selection Board, against whom there is an uncontroverted allegation of personal malice, not supported by any tangible material and not even justified when he was called upon to submit comments to this writ petition, could not, therefore, be accepted as a valid ground to supersede the petitioner. We are quite mindful that the Selection Board comprises of very high personage with variety of experience and wisdom yet they are human beings and cannot he said to be in fallible. Such a presumption is neither warranted by reality nor supported by the history. We are also mindful that we cannot substitute the opinion of the Selection Board with over own opinion yet we may observe here that if the opinion as to unsuitability of an officer for promotion is not based on any material, the decision based thereon is rendered arbitrary and open to correction by this Court in exercise of Constitutional jurisdiction.

1. No doubt, the petitioner had no right to be promoted yet in accordance with section 9 of the Civil Servants Act (No. LXXI), 1973 he was entitled to be considered for promotion. The right contemplated by section 9 aforesaid is neither illusionary nor a perfunctory ritual. Withholding of promotion is a major penalty in accordance with the Government Servants (Efficiency and Discipline) Rules, 1973 and therefore, before a Civil Servant is condemned, he has a right to insist that the material on the basis of which he is being deprived of promotion should be disclosed to him and he should be allowed an opportunity to clear himself. The consideration of an officer for promotion is, therefore, to be based not only on the relevant law and the rules but also on some tangible material which could be lawfully taken into consideration. Therefore, unless the opinion of the Selection Board was backed by some tangible material, it could not be said that the case of the petitioner for promotion was considered in accordance with law. The expression "law" as employed in Article 4 of the Constitution is of wider import which includes the duty of every public functionary to act in the matter justly and fairly and in accordance with the principles of natural justice." [Underlining is ours]

2. Without 'disclosure' of 'adverse materials' and affording opportunity of defence, nevertheless, the petitioners herein were deprived of their promotion which act of the Central Selection Board [CSB] is not only 'unfair' but also against the principles of natural justice and spirit of Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973 as well. In this regard the relevant observation from the case of Tanvir Ashraf v. Riasat Ali and 5 others [2004 YLR 659] are reproduced herein below:---

"… To arrive at a finding adverse to some person, not only cogent evidence is required but also that the affected person has to be confronted with the material sought to be used against him to fulfil the duty of "adequate disclosure" and the said person is also entitled to an opportunity of defense to rebut the material, to satisfy the requirement of the principles of natural justice and fairness to obey the command of Article 4 of the Constitution of Islamic Republic of Pakistan , 1973." (emphasis supplied)"

1. Regarding Bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we would also like to refer the case of Muhammad Jameel and 45 others v. Taluka Nazim, Taluka Municipal Administration Khairpur and 5 others [2014 PLC (C.S.) 479], wherein the Hon'ble Division Bench of this court while, dilatitig upon the maintainability of Constitution Petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 held as follows:---

"33. Now touching to the last contention of Mr. Phulpoto regarding the maintainability of filing of Constitutional Petitions by the petitioners for relief claimed before this court. In our opinion, while exercising the constitutional jurisdiction, if vested right having been created in favour of any party, the denial thereof would justify issuance of direction by High Court in constitutional jurisdiction to set right the wrong. Even otherwise, in spite of the bar contained in Article 212 of the Constitution, the Constitutional Court under Article 199 of the Constitution has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution. (1986 CLC 1403 + 2005 PLC (C.S.) 154). The purpose of constitutional jurisdiction was to do complete justice and no one should be allowed to get away with ill-gotten gains. Such jurisdiction was corrective and directory in nature and it was to be tampered with equity. Superior Court, 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 of State functionaries and the property of the State. (2010 CLC 860). Therefore there is no legal embargo for filing of Constitutional Petition for availing immediate relief by the aggrieved citizens against State functionaries if misusing their legal authority." [Underlining is ours].

1. Mr. Farogh Nasim, learned counsel for the petitioners in the lst two C.Ps. is right in saying that 'subjective evaluation' is to be based on an 'objective criteria'. In the instant petitions, however, the deferment of the petitioners' promotions is on account of 'un-disclosed reasons'. For the purpose of promotion and determining the fitness an 'objective assessment' under law is required to be made which essential requirement, nonetheless, is missing in the present cases of the petitioners. Some of the directions issued for the guidance of CSB by the Division Bench of this court in the case of Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others [2006 PLC (C.S.) 564 read as follows:---

"20.(i) Correctness of information: In the first instance, any observation made by the CSB regarding the past conduct or performance of an officer must be based on authentic and verifiable information to describe an officer's performance as lack luster in the face of 9 'very good, 2 'good' and not a single adverse or even average report defies all norms of objectivity and could vitiate the entire exercise.

(ii) Previous supersession: It has been noticed that the previous supersession of an officer has been treated as a ground for recommending supersession by a subsequent CSB despite the fact that it is repeatedly asserted that posts in BS-21 are selection posts and promotions are to be made on the basis of comparative excellence. In this context, a distinction ought to be kept in view between posts where promotion is made on seniority-cum-fitness basis and selection posts. Indeed, in the former case the supersession of a senior officer takes place only when he is found to be unfit for promotion and such finding of unfitness by the competent authority needs to be given weight. In selection posts, however, an officer may eminently be suitable for promotion but is superseded merely because a junior might be found to be comparatively more meritorious. In such cases, therefore, the previous supersession of such officer must be completely ruled out of consideration and his merit must be ascertained in comparison to others so eligible.

(iii) Eligibility Threshold: There seems to be some confusion whether the minimum 75 marks requirement is a question relating to eligibility or fitness of a civil servant to be promoted. The Honourable Supreme Court has repeatedly held that for the purpose of Civil Servants Act, there is a marked distinction between the concept of eligibility and fitness. As held in Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), eligibility involves the legal qualification of a person to be appointed or promoted, whereas fitness relates to the suitability for such appointment. The question of eligibility has been held to be justiciable before a Service Tribunal as against that of fitness. We are, therefore, of the view that though the CSB may consider a person unfit for promotion on account of his low quantified score or even choose not to examine other factors in the case of an officer's scoring below a prescribed minimum, it would not be quite correct to describe it as an eligibility threshold. Primarily it is an important factor relating to the fitness of a person to be promoted.

(iv) Overall assessment: We have noticed that the CSB has mainly been considering the quantified score worked out on the basis of the nebulous criterion "overall assessment" with no reference to his quality and work output and integrity. Indeed, it is common knowledge that integrity and quality and output of work are crucial factors in the performance evaluation of a civil servant and other factors, if any, could only have secondary effect. We have not been able to understand, as for instance, in the case of the petitioner in C.P. No. D-1761 of 2002 how this officer was found to possess less than 75 marks under "overall assessment", whereas in terms of quality and output of work he obtained more than 85 and more than 90 in terms of integrity. Obviously, some altogether extraneous factors were considered while recording his "overall assessment". In any event, when the quantification formula requires as civil servant's performance to be quantified, apart from overall assessment, in terms of quality and work output as well as moral and intellectual integrity, non-consideration of the latter factors both for the purposes of determining the minimum threshold or for fitness by the CSB is entirely unwarranted. It may be added that Para 6(e) of the Guidelines for CSB contained at page 233 of the Estacode, 2002-03 Edition explicitly requires that marks calculated in respect of these two factors shall be crucial in determining the comparative merit of an officer."

1. Being relevant, the 'Office Memorandum No.F.1/1/2012-CP-2 dated 12th October, 2012 [Annexure 'C' to the MoP] is also reproduced as under:---

"Government of Pakistan

Cabinet Secretariat

Establishment Division

No.F.1/1/2012-CP-2 12th October, 2012

OFFICE MEMORANDUM

Subject: REVISION OF PROMOTION POLICY -- RESTRUCTURING OF CRITERIA FOR AWARD OF MARKS RESERVED FOR CENTRAL SELECTION BAORD.

The undersigned is directed to say that the instructions contained in the Promotion Policy, 1982 and the Guidelines for Departmental Promotion Committees/Central Selection Boards issued under the Establishment Division's do. letter No.0(3)/81-CP-1(Pl), dated 31-10-1982, read with Revised Promotion Policy, 2007 contained in this Division's O.M. No.1/32007-CP-II, dated 24th October, 2007, amended from time to time have been reviewed on the basis of recommendations by a Committee on the subject.

1. With approval of the Competent Authority, the following changes are hereby made in the said policies/guidelines:---

(a) The existing parameters/attributes namely (1) Quality and Output of Works; (2) Variety and Relevance of Experience; (3) Top Management Potential contained in the Guidelines for CSB attached with Promotion Policy, 1982 read with Revised Promotion Policy, 2007 shall continue to apply for consideration of civil servants for promotion, deferment and supersession.

(b) New parameters/attributes namely (1) Integrity/General Reputation/Perception (2) Personality Profile; and (3) Conduct, discipline and Behaviour are added in the said Guidelines attached with 192 Policy.

(c) "Quality and Output of Work" and "Integrity" contained in the Guidelines attached with 1982 Policy as well as relevant boxes in the PER Forms, deleted in 2003, are revived Changes in the PER forms being issued separately.

(d) A new Objective Assessment Form (Annexure-A) for assessment of each officer on the panel by CSB against the attributes namely (1) Quality and Output of Work; (2) Integrity/General Reputation/Perception; (3) Variety and Relevance of Experience; (4) Top Management Potential; (5) Personality Profile; and (6) Conduct, discipline and Behaviour is hereby introduced

(e) The said Objective Assessment Form shall be placed before the CSB along with panel pro forma of every officer for his/her objective evaluation by the CSB. The Board shall assess each officer on the panel on the basis of said parameters/attributes. After assessment/evaluation, the CSB shall place the officer in any of the following categories and assign appropriate marks accordingly:

| | | | | | --- | --- | --- | --- | | S. No. | Category | | Range of Marks | | 1. | Category-A | = | 11 to 15 | | 2. | Category-B | = | 6 to 10 | | 3. | Category-C | = | 00 to 5 |

(f) Sub Para-b of Para-4 of Revised Promotion Policy, 2007 provides that the officers securing requisite percentage of marks viz. 70 to 75 will be promoted to BS-20 and 21 respectively. The said para, is modified as under:---

"(b) The Selection Board shall recommend the officers on the panel securing requisite % and above in the efficiency index for promotion unless deferred (in order of seniority, depending upon the number of vacancies). An officer meeting the aggregate threshold shall also be superseded if CSB places him in Category-C. The senior officers, if not recommended for promotion on account of low threshold, shall be superseded whereas the junior officers if not recommended for promotion for want of vacancies shall be deemed not to have been considered."

(g) The aforementioned criteria for award of 15 marks by the CSB shall henceforth be treated as part of the Guidelines for Selection Board attached with Promotion Policy, 1982.

1. The Promotion Policy, 1982 read with Revised Promotion Policy, 2007 as well as the Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy shall be deemed to have been modified to the above extent.

2. Instructions contained in the Promotion Policy, 1982 read with Revised Promotion Policy, 2007, as amended from time to time, and Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy in so far as not inconsistent with the provisions of this OM shall remain in force.

3. Subject to the provisions of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and such other rules made under the Civil Servant Act, 1973, the Civil Servants shall be considered for promotion to higher post in accordance with the Promotion Policy issued by the Federal Government for the time being in force. The amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 shall be notified separately.

4. The Ministries/Divisions are requested to bring this decision to the notice of all Attached Departments/Sub-ordinate Offices under their administrative control for compliance.

Sd/-

(Sajid Mahmood)

Section Officer (Policy)

The Secretaries/Additional Secretaries

Incharge of the Ministries/Divisions

Islamabad 'Rawalpindi

1. The instructions issued and contained in the Estacode etc have the force of law and as such the same are to be followed strictly. Despite bar under Article 212 of the Constitution read with section 3[2] of Service Tribunal Act, 1973, 'High Court' has ample jurisdiction to give direction to the public functionaries to perform their functions strictly in accordance with law while, exercising its functions under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 in view of Article 4 of the Constitution. The 'Revised Promotion Policy' and/or Office Memorandum dated 12th October, 2012 cannot be declared illegal and/or unjustified much-less in absence of any violation of law.

2. The guidelines regarding 'promotion policy' ought to be based on 'objective criteria' and 'subjective evaluation' of confidential reports etc. The guidelines issued by the Government itself from time to time are to be treated at par with statutory rules. The 'Revised Promotion Policy' framed by the Federal Government [Estacode, enclosed at Sr.No.163], of course, enjoys the force of law. The same 'Revised Promotion Policy' provides guidelines for the CSB. Reliance in this regard can be placed on the case of Fazali Rehman v Chief Minister, N.-W.F.P., Peshawar and others [PLD 2008 SC 769] wherein it was observed as follows:---

3. ...that where promotion to posts carrying basic pay scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i.e. BPS-19 and above is to be made on the basis of "fitness-cum-seniority" meaning thereby that in the earlier case, i.e. BPS-18 and above seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i.e. BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and effect of rules, by virtue of subsection (2) of section 25 of the Civil Servants Act, 1973 as has been held by this Court in the cases of (i) Secretary to the Govt. of the Punjab v. Abdul Hamid Arif and others (1991 SCMR 628) and (ii) Muhammad Yousaf and others v. Abdul Rashid and others (1996 SCMR 1297), therefore, this contention too, has no force." [Underling, is ours]

4. As far as the cases of the present petitioners regarding their promotion to BPS-21 [in the lst two C.Ps.] and BPS-20 [in the 3rd C.P.] are concerned, it is worth to note that these are selection posts and appointment through promotion to these posts is purely based on merits. Promotion to such post requires 'subjective assessment viz-a-viz 'fitness' and 'suitability'. Manifestly, the 'assessment of fitness' and 'suitability' are excluded from the ambit of Service Tribunal i.e. under Section 4 of the Federal Service Tribunal Act, 1973. For properly appreciating the non-applicability of ban contained in Article 212 of the Constitution and the process of promotion to selection posts in BPS-20 and BPS-21, the relevant observations from the case of Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lahore 413] are reproduced as under:---

"12. These cases pertain to promotion of the petitioners to SELECTION posts in BS-20 and BS-21. Appointment through promotion to SELECTION posts is based on MERIT, which requires subjective assessment regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility. The impugned decision of supersession of the petitioners by the CSB is, in effect, determination of their fitness for the posts in question. It is settled law that assessment of fitness and suitability are excluded from the ambit of the Services Tribunal under section 4 of the Federal Service Tribunals Act, 1973. Reliance for convenience is placed on Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others, (1991 SCMR 1129), Government of Punjab, through Secretary Health Department, Civil Sectretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala (2000 SCMR 1805) and Mushtaq Hussain Shah v. Director, Food, Lahore Region and others, (1990 SCMR 1492). As a consequence, the bar contained under Article 212 is not attracted to the present cases. The preliminary objection raised by the learned DAG is, therefore, over-ruled. On the objection whether this court can interfere in the subjective assessment of the CSB, it is observed that this is not the case here. It is not the subjective assessment of the CSB which is under challenge her but infact the process adopted by CSB in arriving at the said subjective assessment. It is now settled that subjective assessment by a public authority must rest on an open and transparent objective criteria. The subjectivity of CSB must filter through clearly defined parameters, criteria and standards. Subjective assessment does not empower or grant a license to a public authority to exercise discretion without first structuring it.

1. The objection by the learned counsel for the private respondents that as the petitioners have failed to meet the threshold marks of 70 or 75 respectively, the issue of CSB adopting an objective criteria or the process employed by CSB is irrelevant. This submission is without force for the reason that the marks awarded by CSB (out of a total of 15 marks) have to be added to the quantified marks of PERs and Training Evaluation Reports in order to tabulate the Aggregate Marks of Efficiency Index. Theoretically, for the sake of argument, if more marks were awarded to the petitioners (out of a total of 15 marks) they would have successfully crossed the threshold requirement and be promoted. The order of this court relied upon by the learned counsel turns on its own facts and is not relevant to issue in hand.

2. The legislative background relating to promotion to Selection post of BS-20 and BS-21 is as follows:---

(i) Section 9(2)(a) of the Civil Servants Act, 1973 provides that promotion to selection post shall be made on the basis of selection on merits, while subsection (3) provides that the said promotion shall be made on the recommendation of a Selection Board constituted by the Federal Government.

(ii) Rules 7, 7-A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 reiterate that promotion to BS-20 shall be made on the recommendation of the Selection Board and only such persons as possess the qualification and meet the conditions laid down for the purpose of promotion to a post shall be considered by the Central Selection Board.

(iii) Preamble to the Revised Promotion Policy (October, 2007)2 provides:---

".... a comprehensive criteria for selection for promotion/deferment/supersession, which is measurable to the extent possible, comparable with regard to performance of each officer on the panel and is based on tangible record duly placed on the dossier and also re-defines discretion, of the members and the Boards and, to lay down as to how more objectivity can be brought in the recommendations of the Selection Board". (emphasis supplied)

(iv) The Policy provides for "Comprehensive Efficiency Index" for promotion. The minimum threshold of marks for promotion to various scales is as follows:---

| | | | --- | --- | | Basic Pay Scale | Aggregate Marks of Efficiency Index | | BS-20 | 70 | | BS-21 | 75 |

(v) Revised Promotion Policy provides that an officer meeting the Aggregate Marks of Efficiency Index cannot be superseded.

(vi) Clause 7 of the said Policy provides for Quantification of Performance Evaluation Reports ("PERs'), Training Evaluation and CSB evaluation. For the purpose of consideration by the CSB, PERs are to be quantified according to the form given in the Addendum to the existing Promotion Policy3. The Policy allocates following marks for quantification of PERs/Training Evaluation Reports and CSB evaluation:---

| | | | | --- | --- | --- | | S.No. | Factor | Remarks | | 1. | Quantification of PERs relating to present grade and previous grades @ 60% : 40% | 70% | | 2. | Training Evaluations reports in ratio of 60% : 40% | 15% | | 3. | Evaluation of CSB | 15% | | | Total | 100% |

(vii) Revised Guidelines with addendum for Central Selection Board provide under clause 4 "that posts in BS-20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers must also have sufficient variety and width of experience ... Variety of experience includes experience in the field, corporations, attached departments, different Ministries/Divisions.

(viii) For promotion to middle management posts (BS-20) a civil servant must fulfill the following requirements:---

(a) Qualifying Service --- Possessing 17 years service;

(b) Eligibility Threshold -- attain a minimum score of 70 marks;

(c) Qualificationsas prescribed by relevant recruitment rules;

(d) Relevance of Experience;

(e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum;

(f) Variety of Experience. - The Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature;

(g) Training.

(ix) Posts carrying BS-21 fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil servant must fulfill the following conditions for promotion to senior management post:---

(a) Qualifying Service - Possessing 22 years service;

(b) Eligibility Threshold - attain a minimum score of 75 marks;

(c) Qualifications - as prescribed by relevant recruitment rules;

(d) Relevance of Experience;

(e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum;

(f) Variety of Experience - the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments …. Depending on the post to be filled, an officer possessing well-rounded experience with adequate exposure to difficult assignments should normally be preferred.

(g) Training.

(h) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice.

(x) Addendum dealing with the quantifying the Confidential Reports,5 deals with overall assessment, quality and output of work, as well as, integrity of the officer while quantifying the confidential reports." [Underlining is ours]

1. 'Fair trial' and 'due process' albeit after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 through 18th amendment has now become a fundamental right. To enjoy the protection of law and also to be treated in accordance with law now is the inalienable right of every citizen of Pakistan. Under the Constitution of Islamic Republic of Pakistan, 1973, no action detrimental to the life, liberty, body, reputation or property of any person is permissible.

2. In the case of Shabir Ahmed v. Kiran Khursheed and others [2012 CLC 1236], on the aforesaid aspect of the matter it was held as under:---

"Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life, liberty or property---The question then focuses on the nature of the 'process' that is `due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis and underling are ours].

1. Apart from the above, the respondent No.2 [FBR] in their comments in response to Memo of Petitions in C.P. No.D-786 of 2014 and C.P. No.D-787 of 2014 have clearly averred as under:---

... ...It is submitted that the case of petitioner was placed for consideration of promotion before Central Selection Board in its meeting held on 13-2-2014. The CSB deferred the case of the petitioner with the following remarks:---

"The Departmental Representative Chairman FBR stated before the Board that he was not satisfied with the recent performance of the officer. He recommended to put the officer under observation in order to assess his performance. The Board considering all the facts agreed with the officer with the directions to the Chairman FBR to come up with the clear recommendations in the next CSB meeting:

The case of petitioner will be placed for consideration of promotion before the CSB in its next meeting whenever it is held in accordance with promotion policy." [Underlining is ours].

2015 P L C (C.S.) 1014

[Sindh High Court]

Before Abdul Rasool Memon and Zafar Ahmed Rajput, JJ

FAYAZ ALI

versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petition No.D-1951 of 2014, decided on 19th November, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for appointment of Assistant Sub-Inspector in Police Department---Age limit being 18 years to 28 years for direct recruitment---Petitioner being over age by 5 months and 25 days on the closing date---Contention of petitioner was that he was 24 years old when he applied for the first time for the post of Assistant Sub-Inspector---Validity---Petitioner was over age by 5 months and 25 days on the closing date--Relaxation in upper age limit had not been provided in direct recruitment of Assistant Sub-Inspector in Police Department in the advertisement---Petitioner being over age was not eligible for the post of Assistant Sub-Inspector in Police Department and he was not entitled for the relaxation in upper age limit---Petitioner had no case for consideration---Constitutional petition was dismissed in circumstances.

Mian Taj Muhammad Kerio for Petitioner.

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

Muhammad Yousuf Alvi, Law Officer, Sindh Public Service Commission for Respondent No.5.

Date of hearing: 12th November, 2014.

2015 P L C (C.S.) 1056

[Sindh High Court]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Mrs. ITRAT SAJJAD KHAN

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 3 others

Constitutional Petition No.D-3796 of 2012, decided on 10th December, 2014.

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

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Civil service---Non-statutory rules of service---Dispensing with service of petitioner without holding a formal enquiry---Scope---Action taken against the petitioner employee of a statutory corporation was tainted with malice and same had militated against the natural norms of justice--- High Court could assume jurisdiction notwithstanding employee's status as the one governed by non-statutory rules of service in the corporation created by statute---Petitioner had been awarded various certificates of appreciations---Dismissal of petitioner was not simpliciter---Petitioner had been removed from service without holding a formal inquiry against her which could not be considered in accord with the norms of natural justice---Petitioner was public servant within the meaning of S.21 of Pakistan Penal Code, 1860---While dispensing with the service of petitioner Authority had not followed the provisions of Removal from Service (Special Powers) Ordinance, 2000---Impugned letter was declared to be of no legal effect and Authority was directed to restore the petitioner with immediate effect to her original position---Authority could hold inquiry in accordance with law---Constitutional petition was accepted in circumstances.

Khalid Siddique v. Secretary, Excise and Taxation Department, Punjab and others 2002 SCMR 690; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Peerano Khan and another v. The State 2014 YLR 1331 rel.

(b) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Scope--- If any statutory corporation/organization had passed order or acted in a way that same was in violation of rules and regulations construed under the statute creating that body, then same could be intervened by the High Court while exercising constitutional jurisdiction.

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

(c) Constitution of Pakistan---

----Art. 199(i)(a)(ii)(5)---"Person"---If an organization or corporation was established through statute and it had performed some of the functions which the State did then same would be construed as "person".

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

Syed Shafqat Ali Shah Masomi for Petitioner.

Ainuddin Khan, Dy.A.-G. for Respondent No.1.

Asim Iqbal for Respondent No.2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 18th November, 2014.

2015 P L C (C.S.) 1149

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

GHULAM AULIA

versus

FEDERATION OF PAKISTAN through Secretary and 2 others

Constitutional Petition No.D-873 of 2009, decided on 31st December, 2014.

(a) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Maintainability--- Laches, principle of---Applicability---Discretionary relief---Civil service---Judgment of Service Tribunal, implementation of---Criminal case was registered against the petitioner (civil servant) and upon acquittal, he was re-instated in service with all the benefits---Plea of petitioner was that he was also entitled for ex-gratia and workers participation fund for the intervening period and children education allowance---Contention of petitioner was that judgment passed by the Service Tribunal had not been complied with in its letter and spirit---Validity---Issue of payment/back benefits was not only agitated but had also been decided---Petitioner had received amount without any protest and he could not agitate any grievance with regard to service benefits---Judgment passed by the Service Tribunal had been abated by the said Tribunal---Impugned order had attained finality---No question for implementation of judgment of Service Tribunal arose---Present constitutional petition was not maintainable as no Statutory Rules of the Employer Corporation existed---Petitioner could not explain delay of five years in filing of present constitutional petition---Constitutional petition suffered from laches---Petitioner was not entitled for discretionary relief in such like situation---Constitutional petition was dismissed, in circumstances.

Muhammad Mubeen-us-Salam v.Federation of Pakistan and others PLD 2006 SC 602; Anisa Rehman v. PIAC and another 1994 SCMR 2232; Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S) 1046; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communications, Government of Pakistan and 2 others 1988 PLC (C.S) 705; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Raziuddin v Chairman PIAC PLD 1992 SC 531; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 Pakistan International Airline Corporation v. Shahabuddin and others 1993 PLC (C.S.) 1 and Pakistan Telecommunication Co. Limited v. Iqbal Nasir PLD 2011 SC 132 ref.

Muhammad Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 distinguished.

Anisa Rehman v. PIAC and another 1994 SCMR 2232; Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S) 1046; Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of facts could not be looked into or scrutinized by the High Court while exercising constitutional jurisdiction which was discretionary in nature---Recording of evidence could not be done or undertaken in constitutional jurisdiction.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.

(c) Constitution of Pakistan---

---Art. 189---Judgment of Supreme Court---Binding effect---Decision of Supreme Court deciding a question of law or enunciating a principle of law was binding on all the other courts in Pakistan.

Muhammad Arshad Khan Tanoli for Petitioner.

Asif Hussain Mangi, Standing Counsel for Respondent No.1.

Khalid Javed for Defendants Nos.2 and 3.

Date of hearing: 11th November, 2014.

2015 P L C (C.S.) 1227

[Sindh High Court]

Before Abdul Rasool Memon and Zafar Ahmed Rajput, JJ

MUHAMMAD YAQOOB LASHARI

versus

ASSISTANT DIRECTOR RECRUITMENT SECTION SINDH PUBLIC SERVICE COMMISSION, HYDERABAD and 3 others

Constitutional Petition No.D-1820 of 2014, decided on 19th November, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for the post of Assistant Sub-Inspectors in Police Department---Direct recruitment in Police Department---Age limit---Upper age limit being 28 years---Petitioner being government servant, applied through proper channel but his name was not included in the list of successful candidates because he was over-aged---Contention of petitioner was that he was entitled for relaxation in upper age limit being government servant---Validity---Applications were called by Public Service Commission for the posts of Assistant Sub-Inspector in Police Department from the candidates having minimum 18 and maximum 28 years age for direct recruitment and minimum 18 and maximum 33 years age for Graduate Constables and Head Constables---No relaxation of age in upper limit was given to the applicants/candidates already employed in government service in the advertisement---Petitioner applied for direct recruitment for the post of Assistant Sub-Inspector for which upper age limit was 28 years, and no relaxation in upper age limit had been provided for the same---Application of the petitioner was rejected by the Public Service Commission as he failed to fulfill the conditions for the said post due to his over-aged by 3 years, 4 months and 24 days on closing date---Petitioner had not challenged the bar in advertisement with regard to relaxation in age to the candidates for direct recruitment---Relaxation up to maximum of 15 years in the upper age limit to the applicants applying for the vacancies in the Government Department provided by the Government had no application to the candidates applying for the post of Assistant Sub-Inspector in Police Department due to specific bar---Petitioner being over aged on closing day by 3 years, 4 months and 24 days, was not eligible for the post of Assistant Sub-Inspector in Police Department---Petitioner was not entitled for the relaxation in upper age limit---Petitioner had no case for consideration---Constitutional petition was dismissed, in circumstances.

Israr Hussain Chang for Petitioner.

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

Muhammad Yousaf Alvi, Law Officer, Sindh Public Service Commission for Respondent No.5.

Date of hearing: 12th November, 2014.

2015 P L C (C.S.) 1235

[Sindh High Court]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

SHAHID RAHIM

versus

BOARD OF TRUSTEES OF KARACHI through Chairman, Karachi and another

Constitutional Petition No.D-2934 of 2013, decided on 24th December, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Discrimination---Effect---Contractual employment---Scope---Father of petitioner (employee) died during service and he was appointed in terms of "package for families of deceased employees"---Petitioner (employee) was intimated that his service period would complete on 26-7-2013---Contention of petitioner (employee) was that services of several employees working on contract basis had been regularized and letter informing him with regard to his service was mala fide and discriminatory---Validity---Agreement designed to govern the terms and conditions of contract was signed by the parties---Petitioner (employee) had agreed to be appointed on contract for a period of two years only---Dispensing with the requirement of filling up a given post after advertising was without any purpose but to facilitate a successor of a deceased employee to avoid a competition so that he could get a job for the time being without hindrance---Object of such appointment was to extend a helping hand for two years to the bereaved family---Petitioner (employee) was intimated through the impugned letter that his service period of two years on contract would complete on 26-7-2013--No illegality had been pointed out in issuing such letter--Case of petitioner (employee) did not match with those contract employees who had been appointed by the department after following the prescribed procedure for appointment---Petitioner (employee) had not been able to bring on record any material suggesting discrimination against or inequality of treatment meted out to him by the department---Petitioner's appointment was contractual in nature and was the result of a particular scheme meant to provide some relief to the bereaved family of a deceased employee---Contractual employment did not confer any vested right upon the employee to continue in his service on permanent basis without going through a procedure prescribed under the rules/policy for appointment of the post he was working on---Petitioner (employee) had no case on merits---Constitutional petition was dismissed in circumstances, however department was directed to consider the case of petitioner sympathetically in future appointment on the same posts keeping in view the experience he had gathered while working there if he was otherwise found eligible for the same.

Miss Shazia Batool v. Government of Balochistan and others 2007 SCMR 410; Messrs Arshad and Company v. Capital Development Authority, Islamabad through Chairman 2000 SCMR 1557 and Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahid Kakar and 43 others 2005 SCMR 642 rel.

(b) Constitution of Pakistan---

----Art. 25---Equality before law---"Discrimination"---Scope---Exercise of discretion---Scope---If a person or a group of persons was denied an equal right being extended to and enjoyed by others positioned in the similar situation, it would be discrimination---Discrimination could not be without an element of unfavorable bias which had to be proved through concrete and solid evidence---Mere assertions that an authority had not exercised discretion fairly, justly and equitably without placing incriminating material on record would not bring the act of discretion to be counted discrimination---Discretion would become an act of discrimination only when it was improbable, vacillating or erratic exercise or abuse of discretionary authority---Differentiation and inequality of treatment per se would not tantamount to discrimination unless it was shown to be based on no reason or it was proved to be capricious or arbitrary.

Miss Shazia Batool v. Government of Balochistan and others 2007 SCMR 410 and Messrs Arshad and Company v. Capital Development Authority, Islamabad through Chairman 2000 SCMR 1557 rel.

(c) Civil service---

----Contractual employment---Scope---Contractual employment did not confer any vested right upon the employee to continue in his service on permanent basis without going through a procedure prescribed under the rules/policy for appointment of the post he was working on.

Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahid Kakar and 43 others 2005 SCMR 642 rel.

Abdul Ghaffar for Petitioner.

Khalid Javed for Respondents.

Abdul Qadir Leghari, Standing Counsel.

Date of hearing: 6th November, 2014.

2015 P L C (C.S.) 1285

[Sindh High Court]

Before Faisal Arab and Abdul Rasool Memon, JJ

Mst. TARA BEGUM

versus

GOVERNMENT OF SINDH through Home Secretary and 2 others

Constitutional Petition No.D-441 of 2013, decided on 17th February, 2015.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Maintainability---Civil service---Criminal and departmental proceedings---Effect---Departmental action was taken against civil servant who was dismissed from service and departmental appeal was dismissed against which no appeal was filed---Criminal proceedings were also initiated against the civil servant wherein he was acquitted---Plea of petitioner (widow of deceased) was that civil servant should be symbolically restored in service and he might not be treated as a "dismissed employee"---Validity---Where disciplinary action was taken solely on the ground that civil servant was involved in criminal proceedings, criminal act would have no concern with the department---Order of dismissal was not justified after acquittal from criminal case in circumstances---Where criminal proceedings were initiated on the basis of misconduct and side-by-side departmental proceedings were also initiated on same grounds, mere acquittal in criminal case would not discharge an employee from the consequences of departmental proceedings---Outcome of criminal proceedings in such circumstances had no bearing on the departmental proceedings---Husband of petitioner after his dismissal from service, did not challenge the same before the Service Tribunal---Remedy of deceased employee was available only before the service tribunal which he did not avail---Dismissal order had attained finality---Present constitutional petition had been filed after five years from the death of employee by his widow which was not maintainable---Constitutional petition was dismissed in circumstances.

2007 SCMR 537; 2007 SCMR 729; 2002 SCMR 57 and 1991 SCMR 209 distinguished.

1995 SCMR 500 rel.

Syed Mudasir Hussain Zaidi for Petitioner.

Sibtain Mehmood, A.A.-G. for Respondents.

2015 P L C (C.S.) 1300

[Sindh High Court]

Before Faisal Arab, C.J. and Zafar Ahmed Rajput, J

Syed JAWAD RAZA NAQVI and 2 others

versus

FEDERAL TAX OMBUDSMAN (FTO) and 6 others

C.Ps.Nos.1544, 1314 and C.M.As. Nos.6743, 5680 of 2015, decided on 14th April, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Dismissal from service---Petitioners, who were officers of Pakistan Customs, impugned show-cause notices issued to them for dismissal from service on charges of inefficiency, misconduct and corruption---High Court declined to address petitioners' arguments on merits of the case as any view taken on merits may prejudice either of the parties in the proceedings and only that the show-cause notices were issued but no final order had been passed---Once such final order was passed, remedy was available to the petitioners and that too under service laws as the petitioners were civil servants---Where a disciplinary action was taken against a civil servant, the jurisdiction of the High Court under Art.199 of the Constitution was barred---Constitutional petition was dismissed, in circumstances.

2014 PLC (C.S.) 1032; 1363; 2014 PLC (C.S.) 159; 2011 SCMR 698; 2010 SCMR 1345; 2014 SCMR 1407; 1557; 1567; SBLR 2015 SC 15; 2000 PLC 184; PLD 1997 SC 382; PLD 1987 SC 447; 2011 PLC (C.S.) 673; 562; 2014 PTD 1531; 1988 SCMR 691; SBLR 2001 945-969; PLD 1981 SC 612; 1999 SCMR 483; PLD 1988 Kar. 401; 1987 CLC 393 and 1999 SCMR 2518 ref.

Ali Azhar Khan Baloch v. Province of Sindh and others Civil Review Petition No. 193 of 2013 rel.

Khawaja Shamsul Islam for Petitioners.

Khalil Dogar for Respondent No.2.

Sarfraz Metlo for Respondent No.4.

Aslam Butt, D.A.-G. along with Nooruddin Ahmed, Coordinator (Legal affairs) F.B.R. Karachi.

2015 P L C (C.S.) 1357

[Sindh High Court]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

KHALIL AHMED AWAN

versus

SECRETARY, MINISTRY OF INTERIOR and another

C.P. No.D-5335 of 2013, decided on 9th December, 2014.

Pakistan Rangers Ordinance (XIV of 1959)----

----S. 15---Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967, R.4--- Constitution of Pakistan, Art.199--- Constitutional petition---Dismissal from service---Concealing of facts---Petitioner was an employee of Rangers who was dismissed from service and his appeal was pending before Service Tribunal---Three years after filing of appeal before Service Tribunal, Authority decided departmental appeal in favour of petitioner---Validity---Authority who decided departmental appeal was not the appellate authority as such order passed by him besides being without jurisdiction and illegal could not be implemented muchless when petitioner had come to High Court with unclean hands---Petitioner had concealed factum of filing of service appeal before Service Tribunal, therefore, he was not entitled for any relief on account of his unclean conduct---High Court allowed petitioner to approach competent forum by way of filing departmental appeal which would be decided on merits strictly in accordance with law after affording a fair opportunity of hearing to petitioner---Petition was dismissed accordingly.

Abdul Salam Memon for Petitioner.

Abdul Sadiq Tanoli Standing Counsel.

Muhammad Saad Siddiqui for Respondent No.2.

2015 P L C (C.S.) 1364

[Sindh High Court]

Before Irfan Saadat Khan and Shahab Sarki, JJ

IRFAN ALI and 13 others

versus

PROVINCE OF SINDH through Secretary, Health Department and 3 others

Constitutional Petition No.D-1021 of 2013, decided on 30th April, 2015.

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

----S. 3----Constitution of Pakistan, Arts.25 & 199---Constitutional petition--- Equality of citizens--- Regularization of employees---Appointment on daily wages---Rules as to regularization---Petitioners contended that they were appointed in medical college and later their services were terminated through verbal orders---Contention raised by petitioners was that they had been discriminated in terms of Art.25 of the Constitution---College authorities took plea that under Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013, regularization could not be given to employees working on daily wages---Validity---Persons working on daily wages could not claim regularization until and unless they were appointed either on contract or permanent basis---Authorities had duly mentioned the period for which petitioners had worked and that after said period their assignment was not extended---Petitioners admitted that they had worked only for the period for which they had been duly compensated---Petitioners were assigned with the job which was purely for employees working on daily wages basis, hence question of their regularization could not be considered until and unless nature of posts were not considered to be that important which required regularization---Petitioners, at the time of their appointment, were duly apprised that their appointment was on daily wages and not on any permanent sanctioned post, whereafter petitioners joined services on daily wages---High Court dismissed constitutional petition with direction to the authorities to prefer petitioners for appointment on the same posts when the same would be vacant subject to fulfillment of legal and codal formalities.

Pakistan Telecommunication v. Muhammad Zahid 2010 SCMR 253 distinguished.

Syed Arshad Ali v. Pakistan Telecommunication 2008 SCMR 314 rel.

Suhail Ahmed Khoso for Petitioner.

Shaharyar I. Awan, A.A.-G. for Respondents.

Date of hearing: 28th April, 2015.

2015 P L C (C.S.) 1412

[Sindh High Court]

Before Salahuddin Panhwar, J

HAIDER ALI BAIG

Versus

FIRST MICRO FINANCE BANK LTD. through President/Chief Executive Officer, Islamabad and 3 others

Suit No.611 of 2013, decided on 7th April, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX Rr. 1 & 2---Specific Relief Act (I of 1877) Ss.42 & 54---Contractual employment---"Master" and "Servant", relationship of---Suit for declaration, permanent injunction and damages by employee/plaintiff seeking inter alia, declaration that transfer order issued by the employer/defendant was illegal---Plaintiff/applicant sought interim injunction against operation of transfer letter issued by its employer---Held, that relationship of plaintiff with defendant was one of "master" and "servant" and such relationship continued under the contract/agreement which either sides entered into, acknowledging the legality thereof coupled with prescribed rules, if any, so referred to in such contract---Such employee worked at his choice and the desire of the employer was the right of the authority/"master" and to follow the same was the obligation of the "servant"/employee and without the same, the relationship of master and servant would collapse; and such relationship was necessary to run the affairs of an institution which was established by the "master" to be run by "servants"---In case of any mala fide causing prejudice resulting in some damages to the "servant"; such person would have a right to claim damages but in no way such person could seek an interim order from the court which otherwise amounted to creating a situation for the employer to let the "servant" control and command over the financial affairs against the wish of the employer---Application of plaintiff, if allowed to succeed would result in giving a cause/right to every single "servant" to approach the court to seek suspension of transfer orders and continuity of working against the wishes of his employer / master; which could not be stamped as the same, in all senses, could amount to an undue advantage---Plaintiff had not been able to show as to how the transfer order was illegal when admittedly he had complied with earlier such orders, hence "prima facie case" and "balance of convenience" were not available to the plaintiff---Application under O.XXXIX, Rr.1 & 2, C.P.C. was dismissed, in circumstances.

United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Islamic Republic of Pakistan through Secretary Establishment Division and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Allied Bank of Pakistan Ltd. and others v. Chairman, NIRC and others 1984 PLC 1342; 2000 PLC (CS) 11 and Syed Imran Raza Zaidi v. Government of Punjab and others 1996 SCMR 654 ref.

ATCO Lab. (Pvt.) Ltd. v. PFIZER Ltd. and others 2002 CLD 120 rel.

Mehmood Habibullah for Plaintiff.

Faisal Mehmood Ghani for Defendants.

Date of hearing: 30th March, 2015.

2015 P L C 1461

[Sindh]

Before Syed Saeeduddin Nasir, J

ZAKIR RASHID KHAN

Versus

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Ministry of Defence and 3 others

Suit No.30 of 2009, decided on 8th May, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and recovery of damages---Civil service---Termination of an employee---Discrimination---Plaintiff-employee being Flight Engineer was terminated by the defendant-Airlines Corporation---Validity---Neither prerequisite/approval of Board of Governors was obtained by the defendant-Airlines Corporation before serving upon the plaintiff-employee the termination letter nor 30 days prior notice was served before termination of plaintiff-employee---Plaintiff-employee was not afforded an opportunity of hearing before termination of his service---Impugned termination letter was arbitrary, void ab-initio and was liable to be struck down---Plaintiff-employee had been discriminated by the defendant-Airlines Corporation---Plaintiff-employee had not been paid entire amount to which he was entitled i.e. salary, allowances and other benefits up to the age of retirement---Plaintiff-employee was entitled for reinstatement, however, by now he had attained the age of superannuation, therefore, he was entitled to be compensated in the amount claimed in the suit---Suit was decreed as prayed for, however, the amount if any received by the plaintiff should be deducted from the decretal amount.

Muhammad Haseeb Jamali for Plaintiff.

Khalid Javed for Defendants.

Date of hearing; 24th February, 2015.

2015 P L C (C.S.) 1528

[Sindh]

Before Munib Akhtar and Syed Saeeduddin Nasir, JJ

BADAR MUNIR

Versus

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

C.P. No.D-3272 of 2010, decided on 10th August, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches--- Bank employee---Optional retirement scheme---Discretion of Bank---Cause of action---Employee applied for optional retirement scheme announced by the Bank but his request was declined---Employee opted for retirement voluntarily from the service of Bank---Contention of employee was that he had been deprived of seeking benefits with regard to encashment of entire accumulated leave with full salary and allowances---Validity---Optional retirement scheme offered by the Bank to its staff members who had completed twenty years of continuous service was not available to all the staff members---Out of eighty six applications for the said retirement scheme only fifty applications were accepted whereas thirty six applications including the application of petitioner were declined---Applications under the said scheme were to be considered by the Bank on individual basis---Bank had discretion to either accept or reject any application for optional retirement without assigning any reason---Bank was not bound to accept all the applications which were made to it by its staff members under the said scheme---Employee voluntarily requested for his retirement after completion of twenty five years of continuous service which was accepted by the Bank---Petitioner was finally relieved from duty after completion of all formalities and all the retirement benefits were released to the employee---Employee was aware of the fact that his request for optional retirement under the optional retirement scheme had been turned down by the Bank---Employee, after having acquiesced to be retired from service could not turn around and press his demand for retirement under the optional retirement scheme---Present constitutional petition was filed after a delay of twelve years which suffered from laches---No cause of action had accrued to the employee for filing of present constitutional petition which was liable to be dismissed---Constitutional petition was dismissed in circumstances.

Petitioner in Person.

Javed Asghar Awan and Ashfaq Rafiq Janjua Standing Counsel for Respondents.

Date of hearing: 10th August, 2015.

2015 P L C (C.S.) 25

[Lahore High Court]

Before Shujaat Ali Khan, J

Ch. MUHAMMAD ZAFAR SAHI

Versus

MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN through Secretary Defence, Rawalpindi and 5 others

Writ Petition No.19463 of 2011, decided on 3rd July, 2014.

Constitution of Pakistan---

----Art. 199---Civil Aviation Authority Ordinance (XXX of 1982), S.14(a)---Civil Aviation Authority Service Regulations, 2000, Reglns.2.75, 3.38 & 4.22(a)--- Constitutional petition---Maintainability---- Transferee employee--- Non-adoption of office Memorandum of Federal Government for grant of medical allowance---Effect---Contention of the Authority was that constitutional petition was not maintainable---Validity Petitioner fell within the category of "Transferee employee", the embargo of non-maintainability of his Constitutional petition would not come into play as his terms and conditions were to be governed by the Rules and Regulations prevalent in the Department wherefrom he was transferred---Petitioner was an employee of the Civil Aviation Department and his services were transferred to the Authority in the year 1982---Employees retired from the Departments under the administrative control of the Federal Government were enjoying the benefits of increase in pension and other allowances from time to time, therefore, the petitioner was also entitled for the same---Petitioner was entitled to the pensionary benefits not less favourable as compared to the pensioners of the Civil Aviation Department---Civil Aviation Department fell within the domain of Federal Government and its employees were enjoying the benefits of the said Memorandum, the petitioner could not be deprived of the same merely on the ground that the said Memorandum had not been adopted by the Board or the Authority---Person who was transferred to the Authority after its establishment in the year 1982, was entitled to all the pay and allowances to which he was entitled in his parent department and no less favourable perks were admissible---Petitioner being a "Transferee employee" was entitled to the benefits of Office Memorandum issued by the Government of Pakistan---Constitutional petition was accepted in circumstances.

Sufi Ghulam Rasool v. Chief Secretary to Government of the Punjab 2004 PLC (C.S.) 101 ref.

Civil Aviation Authority v. Javed Ahmad and another 2009 SCMR 956; Director General Civil Aviation Authority Karachi v. Abdul Touheed Khan 2010 SCMR 468 and Federal Government Employees Housing Foundation Islamabad v. Syed Gul Shah 2013 SCMR 1027 rel.

Dr. Khalid Ranja for Appellant.

Muhammad Usman Arif for Respondents.

Date of hearing: 25th June, 2013.

2015 P L C (C.S.) 117

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

GHAFFAR-UL-HASSAN

Versus

NATIONAL COMMAND AUTHORITY and others

Writ Petition No.2205 of 2012, decided on 17th February, 2014.

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

----S.22---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Ouster clause in the statute---Effect---Employees of the statutory bodies had the right to invoke the jurisdiction of High Court under Art.199 of the Constitution---Constitutional jurisdiction of High Court could not be taken away, abridged or curtailed by subordinate legislation as provided in ouster clause contained in S.22 of National Command Authority Act, 2010---Constitutional petition was maintainable.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; PLD 1964 SC 126; PLD 1963 SC 322; PLD 1962 SC 42; PLD 1963 Lah. 109; PLD 1964 Lah. 376 and PLD 1996 SC 362 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Alternate remedy---Scope---Non-maintainability of constitutional petition on the ground of availability of other appropriate remedy is not a rule of law barring jurisdiction of the High Court but a rule by which court regulates its jurisdiction---Order of statutory body was attacked on ground that it was wholly without authority, partial, unjust and mala fide---High Court in exercise of its constitutional jurisdiction had the power to grant relief to the aggrieved party.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Removal from service on account of absence from duty---Absence period was regularized/condoned---Effect---Competent authority on the one hand had imposed a penalty of removal from service upon the petitioner for remaining absent from duty but on the other hand, the said absence had been treated as leave without pay and allowance---After condoning/regularizing the period of absence, the competent authority was not justified to impose major penalty of removal from service on the employee.

Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 SCMR 434 rel.

(d) Civil service---

----Misconduct---Punishment, award of---Quantum of punishment---Consideration and scope---Competent authority while awarding the major penalty should always keep in mind the gravity of charge---Underlined concept behind imposition of major penalty is that not only offender is brought to justice but also to make it an example for the others---Where gravity of charges is of lesser degree and circumstances reflected absence of bad faith and willfulness then minor punishment might be a preferred course.

Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 rel.

(e) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Administrative authority---Discretion, exercise of---Judicial review---Scope---Where wide worded powers conferring discretion exists there remains always need to scrutinize the discretion---Structuring of discretion only means regularizing it, organizing it, producing order in it so that the decision will achieve the high quality of justice---Exercise of discretionary powers without framing rules to regulate its exercise has always been taken to the enhancement of power and where the authorities fail to rationalize and regulate their discretion by rules or precedents the courts have to intervene where exercise of such discretionary power appears to be arbitrary and capricious.

Muhammad Arif Baloch for Petitioner.

Barrister Waqas Aziz Qureshi and Faisal Mahmood Raja, Standing Counsel for Respondents.

Date of hearing: 17th February, 2014.

2015 P L C (C.S.) 144

[Lahore High Court]

Before Abid Aziz Sheikh, J

MUHAMMAD WAQAS GUL

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Secretary and 2 others

Writ Petition No.13279 of 2011, heard on 19th February, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual appointment---Lack of required qualification---Termination of service---Scope---Contention of the petitioners was that although they were not qualified on the date of advertisement but subsequently they attained the required qualification, therefore their termination was not justified---Validity---Neither the petitioners were qualified nor they had requisite experience when the posts were advertised---Petitioners being not having required qualification and experience had not fulfilled the eligibility criteria---Impugned termination orders were not arbitrary and perverse in circumstances---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Contractual appointment---Termination of service without notice---Claim of re-instatement---Validity---Non-issuance of notice of hearing to the contractual employee would not entitle him for revival of his contract of service---In case of wrongful termination, the contractual employee could claim damages to the extent of un-expired period of his service before the competent court of law---Constitutional petition was not maintainable.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707; Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chatha 2013 SCMR 120 and The Chairman WAPDA and others v. Maj. (Rtd.) Nisar Ahmad 1996 PLC (C.S.) 654=1996 SCMR 617 ref.

Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chatha 2013 SCMR 120; Trustees of the Port of Karachi v. Saqib Samdani 2012 SCMR 64; Mrs. Zeb Mazhar Ali Bhatti v. Government of Punjab and others 1995 PLC (C.S.) 831, The Chairman WAPDA and others v. Maj. (Rtd.) Nisar Ahmad 1996 PLC (C.S.) 654 = 1996 SCMR 617 and Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 rel.

Ch. Waqas Ahmad Kamboh for Petitioner.

Ch. Haroon Bhutta for Applicant (in C.M. No.4199 of 2012).

Khalid Jameel for Respondents.

Date of hearing: 19th February, 2014.

2015 P L C (C.S.) 170

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

TARIQ MEHMOOD, ADVOCATE and 4 others

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and 2 others

Writ Petition No.24261 of 2014, decided on 17th September, 2014.

Punjab Public Service Commission Regulations, 2000---

----Regln. 39---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Recruitment---Written examination---Number of chances to be availed---Relaxation of age---Distinct category of over-age candidates who had been granted relaxation in age under law---Interpretation of Regln.39 of the Punjab Public Service Commission Regulations, 2000---Applications of petitioners for a post were rejected on the ground that the petitioners had already unsuccessfully availed three chances of appearing in the written examination for said post---Contention of petitioners was that they were entitled to one more chance per Regl.39 of the Punjab Public Service Commission Regulations, 2000---Held, that Regln.39 of the Punjab Public Service Commission Regulations, 2000 provided for two different sets of candidates, one who were of age on date of application; and other, who were over­age but had been allowed age relaxation under the law---Petitioners, in the present case, had availed three chances of appearing in written examinations; and were now over-age, yet claimed that they were still entitled to one more chance, which chance was available to candidates who were over-age under Regln.39 of the Punjab Public Service Commission Regulations, 2000---Such second category for over-age candidates only dealt candidates who had not earlier sat in the examination and were overage and if such candidates were granted age relaxation, they could get one chance only to sit in the written examination---"Over-age candidate" under Regln.39 of the Punjab Public Service Commission Regulations, 2000 was a distinct category and did not include candidates who had already unsuccessfully availed three chances of appearing in written examinations when they were of age---High Court observed that the one chance available to over-age candidates was not in continuation of the earlier chances but was a special one time allowance or concession given to a candidates was overage and had been granted relaxation---Constitutional petition, being without merit, was dismissed in circumstances.

Mian Bilal Bashir for Petitioners.

Anwaar Hussain, Asstt. A.-G. Punjab and Muhammad Farooq Raja, Deputy Director Legal PPSC for Respondents.

2015 P L C (C.S.) 183

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD IDREES and 6 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 4 others

Writ Petition No.5820 of 2012, heard on 12th August, 2014.

(a) Pakistan Cantonment Servants Rules, 1954---

----Annexs. I & III---Constitution of Pakistan, Arts.199, 4, 9 & 25---Constitutional petition--- Maintainability--- Cantonment service--- Up-gradation---Denial of Fundamental Rights---Effect---Colourful exercise of powers by authorities---Effect---Authorities partially implemented the office memorandum for up-gradation of clerical/Auditors posts according to their own whims instead of implementing the same in toto---Test for determining as to whether statutory body was a 'person' within the meaning of Art.199 of the Constitution---Contention of the petitioners was that they had been subjected to discrimination by not upgrading their posts and the discretion had been exercised by the authorities unreasonably and arbitrarily---Validity---Petitioners were entitled to national pay scales in accordance with the government policy as provided in Annexure-I to the Pakistan Cantonment Servants Rules, 1954---Cantonment Boards were under mandatory obligation to follow the government policies introduced/ circulated from time to time---Inaction on part of the authorities fell within the mischief of Art.25 of the Constitution, which envisaged that equal protection of law should be provided to the persons equally placed and they were entitled to be treated alike in privileges conferred---Persons similarly placed could not be distinguished or discriminated and in case of any deviation, the act of the authority/statutory functionary could be challenged before the High Court under Art.199 of the Constitution---Functionaries of the State, statutory bodies and statutory corporations were required to act strictly in accordance with law and in case of transgression of powers, abuse of powers or colourful exercise of powers by such functionaries, the exercise was open to correction in constitutional jurisdiction of superior judiciary---Authorities could not act at its sweet will and pleasure, but its action must be in conformity with the principles, which met the test of justice, reason, fairness, equality of treatment and must qualify standards and norms that were not arbitrary, irrational, whimsical and discriminatory---Principle of reasonableness and rationality, which was an essential element of equality or non-arbitrariness was projected by Art.25 of the Constitution and it must characterize every State action whether it be under authority of law or in exercise of executive power---Petitioners had been discriminated as the authorities without any reasonable differentia had denied the right of up-gradation of their posts---Constitutional petition was allowed in circumstances.

Salahuddin and 3 others v. Taj Muhammad Khanzada PLD 1975 SC 244 ref.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad) 1994 SCMR 958; Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 and Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707

(b) Constitution of Pakistan---

----Art. 199(5)---Constitutional jurisdiction of High Court---Scope---Word 'Control'---Connotation---'Test' for determining statutory body to be a 'person'---Word 'Control' mentioned in Art.199(5) of the Constitution was not only restricted to the financial control of the Government over a body, but the executive control also; it did not necessarily mean the financial control over the bodies that were under the dominative control of the Federal or Provincial governments, which were amenable to the jurisdiction of the High Court under Art.199 of the Constitution---Absolute control over the management of a body/an organization by the Federation etc., was a condition most important for declaring that to be a 'person' performing its functions in connection with the affairs of the Federation---Federation should have a complete domination to do and undo whatever it decided in running the affairs of such a body and should have exclusive, complete and final authority to take the vital policy decisions.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, in exercise of its powers under Art.199 of the Constitution could direct a person performing functions within its territorial jurisdiction in connection with the affairs of the Federation to do anything, he was required by law to do---Grant of relief under Art.199 of the Constitution was discretionary in nature, but where it was shown that the act was unconstitutional or was violative of the fundamental/ constitutional rights, then having taken oath to preserve and defend the Constitution, it became bounded duty of the High Court to enforce the constitution with its full might and majesty.

Qamar-uz-Zaman Butt for Petitioners.

Syed Muhammad Ali Gillani for Respondents.

Date of hearing: 12th August, 2014.

2015 P L C (C.S.) 225

[Lahore High Court]

Before Shezada Mazhar, J

Mrs. ZAIB-UN-NISA

Versus

SECRETARY HEALTH, GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.7637 of 2013, heard on 26th August, 2014.

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

----Ss. 2(f) & 2(h)---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Charge of participation in the public demonstration---Competent authority in case of joint inquiry proceedings--- Determination of--- Alternate remedy of appeal available---Effect---Contention of the petitioner was that the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 were not applicable to the petitioner, he being a contract employee, and the respondent was not the competent authority to pass the order for termination---Plea of the authority was that the petitioner had alternate remedy of appeal and the constitutional petition was not competent---Validity---Words "employee" and "in the employment of a corporation…." included all employees whether contract or otherwise and action could be taken against a contractual employee of a corporation, corporate body, authority, statutory body or any other organization under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---When any proceeding was initiated against more than one employee, the senior most employee would become competent authority for all the employees---High Court, while examining a case in exercise of jurisdiction provided under Art.199 of the Constitution could not interfere with the findings of facts recorded by the competent forums---Constitutional petition was dismissed on the ground that the order had not been passed by the competent authority and against the said order, petitioner had an alternate remedy of appeal.

Executive Council Allama Iqbal Open University Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manger and another 2007 SCMR 1240; Muhammad Raza and others v. Jammu and Kashmir Co-operative Housing Society and others PLD 2013 Isl. 49 and Nighat Yasmin v. Pakistan International Airlines Corporation Karachi and another 2004 SCMR 1820 distinguished.

Ibrar Hussain and others v. Government of N.-W.F.P through Secretary Board of Revenue and others 2001 SCMR 914; Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801; Syed Mir Muhammad v. N.-W.F.P Government through Chief Secretary PLD 1981 SC 176 and Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Finding of facts recorded by the competent forums---High Court while examining a case in exercise of jurisdiction provided under Art.199 of the Constitution could not interfere with the findings of facts recorded by the competent forums.

Abdul Rashid Sheikh for Petitioners.

Rana Muhammad Hussain, Asstt. A.-G. along with Dr. Muhammad Abid DC (IRAMNCH), Khanewal for Respondents.

Date of hearing: 26th August, 2014.

2015 P L C (C.S.) 279

[Lahore High Court]

Before Shahid Jamil Khan, J

Mst. RIFFAT SIDDIQUE

Versus

DISTRICT CO-ORDINATION OFFICER and others

Writ Petition No.2992 of 2010, decided on 11th August, 2014.

Constitution of Pakistan---

----Arts. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Appointment of Elementary School Educator---Policy for recruitment of Educators in Government Schools---Scope---Petitioner was aggrieved of the policy whereby 05 marks were allocated for M.A. (Education) degree---Contention of the Authority was that the petitioner, after joining recruitment procedure, in existence and unchallenged/ valid policy was estopped by her conduct to challenge the merit list---Validity---Allocation of 05 marks for M.A. (Education) degree was a policy decision which could not be called in question and replaced with 10 marks by the High Court in constitutional jurisdiction---Policy could be held invalid if not approved by the authority under any law or if lacked legal sanction---Petitioner being part of the process of appointment under an unchallenged policy was estopped by her conduct to challenge the same after being unsuccessful---Law, rule, policy or terms of appointment were not violated, in the present case---Constitutional petition was dismissed in circumstances.

Mst. Sadia Sultan v. D.E.O. and others 2011 PLC (C.S.) 158 distinguished.

Syed Muhammad Arif and others v. University of Balochistan and others PLD 2006 SC 564; Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 and Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 rel.

Malik Sibt-ul-Hasnain for Petitioner.

Barrister Qasim Ali Chowhan, Asstt. A.-G., Punjab for Respondents.

2015 P L C (C.S.) 289

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

Mst. AMEERAN MAI

Versus

I.-G. PUNJAB POLICE, LAHORE and 2 others

Writ Petition No.11829 of 2014, decided on 9th September, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 25---Standing Order No.1 of 2008 as issued by Inspector-General of Police Punjab [as amended in June, 2011]---Appointment on the basis of family claim---Discrimination---Change of educational standard---Effect---Petitioner's husband had expired during his service and she claimed that her son was entitled for appointment against the post of Constable---Authorities refused to appoint the petitioner's son on account of his qualification as Middle instead of Matric, as changed on the strength of Notification issued in the year 2014---Contentions of the petitioner were that her husband expired on 11-5-2011, whereas, the subsequent notification issued in the year 2014, whereby the standard of education was changed from middle to matric, could not be applied to the case of the petitioner retrospectively; that two other persons had been accommodated by the authorities, but the petitioner's son was singled out by treating him discriminately---Validity---Once a right had accrued to a person, it could not be taken away subsequently by issuing another notification---Notification having the potential to impair the existing rights or benefits could always be applied prospectively instead of retrospectively---Minimum educational standard to enlist a driver constable under the changed policy would be Matric even for the offspring of "shaheed" or "persons" applying on the family claim basis, but amended Standing Order No.1 of 2008 was to be given effect in the future---Constitutional petition was allowed in circumstances.

Messrs Asif Traders and another v. Collector of Customs through Assistant Collector and another 2014 PTD 1057; Muhammad Asif Khan and 173 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 14 others 2014 PLC (C.S.) 534; Atta Ullah and another v. Provincial Police Officer and another 2014 PLC (C.S.) 766; Dr. Syed Ansar Hussain Shah Naqvi v. Khyber Pakhtunkhwa Public Service Commission through Secretary and 4 others 2014 PLC (C.S.) 879 and R.M. Gulistan Engineering and Constructors (Pvt.) Ltd. through Chief Executive v. Collector of Customs (Appeals) and another 2014 PTD (Trib.) 76 ref.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Collector of Central Excise and Land Customs and 3 other v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439 rel.

(b) Notification---

----Retrospective effect---Principle---Once a right had accrued to a person, it could not be taken away subsequently by issuing another notification---Notification having the potential to impair the existing rights or benefits always applied prospectively instead of retrospectively.

Shakeel Javaid Chaudhary for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. with Iftikhar Ahmad, D.S.P. (Legal) for Respondents.

2015 P L C (C.S.) 323

[Lahore High Court]

Before Shujaat Ali Khan, J

MUSTANSIR HUSSAIN and others

Versus

DISTRICT COORDINATION OFFICER, BAHAWALPUR and others

Writ Petition No.5420 of 2012/BWP, decided on 26th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Elementary School Educator, appointment of--- Requisite qualification--- Locus poenitentiae, principle of---Applicability---Basic qualification for appointment of Elementary School Educator was decree in Arts or Science subjects---Petitioners having decree in Commerce subjects---Termination of services---Petitioners (having decrees in Commerce subjects) were selected against the post of Elementary School Educators---Contract of petitioners was terminated on the allegation that they did not possess requisite qualification for appointment against the said post---Contention of petitioners was that Higher Education Commission had held the degree of B.Com. at par with that of B.A.---Validity---Degrees of B.A. and B.Com. were at par with regard to duration of studies but same could not be used in place of each

other---When competent authority had decided to induct such persons who possessed degrees in a specific field then no exception could be taken by the High Court in exercise of its Constitutional jurisdiction---Petitioners did not possess prescribed qualification at the relevant time and, therefore, did not fulfil the eligibility criteria as there was no mention of equivalent qualification in the advertisement pursuant whereto the petitioners applied against the post in question---When a concrete step had been taken towards implementation of an order then same could not be withdrawn subsequently but where the very edifice of the said order was unfounded then same could not be let unnoticed on the ground of principle of locus poenitentiae---Contract of the appointee was liable to termination if during the scrutiny he was found ineligible for the said post--Competent authority issued show cause notice to the petitioners on coming to know the deficiency and terminated the contract of petitioners--Petitioners had failed to provide any justification for their appointment against the post applied for---Contract employee instead of pressing his reinstatement in service could only claim damages to the extent of unexpired period---Impugned orders were unexceptional--Constitutional petition was dismissed in circumstances.

Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others 2014 SCMR 949; Rao Muhammad Aftab v. Province of Punjab through Secretary Schools Education, Lahore and 3 others 2014 PLC (C.S.) 39; Abdul Latif and others v. Government of the Punjab and others 2003 PLC (C.S.) 975; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161 and Federation of Pakistan v. Muhammad Azam Chattha 2013 SCMR 120 rel.

(b) Locus poenitentiae, principle of---

----Applicability---Scope---When a concrete step had been taken towards implementation of an order, same could not be withdrawn, where, however, the very adifice of an order was unfounded the same could not be unnoticed on the ground of principle of locus poenitentiae.

Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others (2009 PLC (C.S.) 161 ref.

Raja Muhammad Sohail Iftikhar for Petitioner.

Tahir Saeed Ramay, Asstt. A.-G. for Respondents.

2015 P L C (C.S.) 381

[Lahore High Court]

Before Shah Khawar, J

AHMAD HASSAN BUCHA

Versus

CHAIRMAN, NADRA and others

Writ Petition No.467 of 2014, decided on 12th September, 2014.

Constitution of Pakistan---

----Arts. 4, 9, 10-A, 25 & 199---Constitutional petition---Civil service---Dismissal from service---"Due process of law"---Scope---Non-supply of documents---Petitioner appeared in person but he was not provided documents as requested by him---Contention of the petitioner was that major penalty of dismissal from service was imposed upon the petitioner without holding a regular inquiry and recording of evidence, which was in gross violation of Art.10-A of the Constitution---Validity---Petitioner's case squarely revolved around the principle of "due process of law" which had been enshrined in Art.10-A of the Constitution---"Due process of law" was provided as fundamental right in the Constitution by Art.10A---Fundamental right of the petitioner as guaranteed by Art.10-A of the Constitution had been violated and had been dismissed from service without resorting to the principle of due process of law---Contention that opportunity of defence was provided to the petitioner in shape of personal hearing, was not tenable in law---Record revealed that despite written request made by the petitioner, he was not provided with the requisite documents enabling him to offer any explanation or defence against proposed major penalty of removal from service---Mere issuance of show cause notice and affording an opportunity of personal hearing was not sufficient and the order of dismissal from service was without lawful authority and the same was set aside by the High Court---Constitutional petition was allowed in circumstances.

Muhammad Haleem and others v. Director General Pakistan Railways and others 2009 SCMR 339; Tariq Mehmood v. DPO Toba Tek Singh etc. PLD 2008 SC 451 and Saad Alam Ansari v. Chief Justice, Sindh High Court Karachi through its Registrar 2007 SCMR 1726 rel.

Iqbal Hussain Pawar Hajwari for Petitioner.

Mahmood Ahmad Raja and Faraz Sarmad for Respondents.

Date of hearing: 12th September, 2014.

2015 P L C (C.S.) 402

[Lahore High Court]

Before Shahid Karim, J

FAROOQ AHMAD CHAUDHRY

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.19727 of 2009, decided on 23rd January, 2015.

Cooperative Societies Act (VII of 1925)---

----S. 54---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan, Arts.13 & 199---Constitutional petition---Double jeopardy, principle of---Selecting forum of one's own choice---Arbitration award by Registrar---Petitioner was employee of Punjab Provincial Cooperative Bank, who went on Leave Preparatory to Retirement (LPR) on attaining the age of superannuation---Three months after petitioner had proceeded on LPR, the Bank got an FIR registered on the allegation of some shortfall in cash available in the Bank---Proceedings were also initiated by Bank before Registrar Cooperatives for recovery of embezzled amount---Registrar, in exercise of his powers under S.54 of Cooperative Societies Act, 1925, passed award in which he exonerated petitioner from any financial liability---Bank did not assail the award any further and same attained finality---Bank authorities imposed upon petitioner penalty of compulsory retirement and recovery of one half of embezzled amount---Plea raised by petitioner was that after pronouncement of award by statutory forum, Bank authorities could not recover embezzled amount from him---Validity---Application under S.54 of Cooperative Societies Act, 1925, was filed by Bank itself for recovery of amount from persons allegedly involved in embezzlement including petitioner and it was upon that application of the Bank that award was made by Registrar---Bank could not then turn around and take a different stance or to return a different finding from the one which had been made vide the award of Registrar---Having approached a forum and having submitted to its jurisdiction, it did not lie in the mouth of the Bank to assert that they could revisit that award through some internal proceedings---Such would amount to double jeopardy and it could not be permitted---Award of Registrar had been finalized with regard to fixing of liability about recovery of amount which was alleged to be embezzled---Petitioner had been absolved for any wrong doing and the Bank should recover its losses from the person who had been held responsible in the award---Petition was allowed in circumstance.

Qazi Misbah-ul-Hassan for Petitioner.

Javed Iqbal for Respondent No.2.

2015 P L C (C.S.) 411

[Lahore High Court]

Before Shah Khawar, J

Dr. RAB NAWAZ MALIK

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.6735 of 2014, decided on 29th October, 2014.

(a) Constitution of Pakistan---

----Art. 199---Punjab Civil .Servants (Appointment and Conditions of Service) Rules, 1974, R.22---Constitutional petition---Civil Service---Regularization of ad hoc appointment of the petitioner against the post of Senior Registrar (Surgery) (BS-18) on the basis of length of service---Scope---"Ad hoc appointment" and "appointment by promotion"---Distinction elaborated---Petitioner was aggrieved of his termination and promotion of respondent as Senior Registrar Surgery (BS-18) on acting charge basis by respondent's adjustment against the post vacated by termination of ad hoc appointment of petitioner---Validity---Respondent's promotion on the recommendation of Departmental Promotion Committee created a vested right in his favour and such incumbent could be promoted to the higher scale on availability of a vacant post, which was admittedly occupied by the petitioner as a stop-gap arrangement---Respondent after having been promoted was adjusted against the said post, which had not infringed any of the Fundamental Rights of the petitioner---Promotion of respondent against the post of Senior Registrar Surgery (BS-18) was to be considered as a regular appointment and petitioner could not claim continuation of his ad hoc appointment against the post in presence of promotion of respondent on the recommendations of a duly constituted departmental promotion committee as approved by the competent authority---Constitutional petition was declined in circumstances.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46 and Muhammad Ashraf v. Government of Punjab PLJ 1998 Tr.C. (Services) 77 ref.

(b) Civil service---

----"Ad hoc" and "Acting charge"---Meaning and connotation---Word "ad hoc" itself reflected that an incumbent was holding the charge as stop-gap arrangement as the vacant post was not filled up through due process---Word "acting charge" had wider connotation, as a person performing duties on acting charge basis exercised full powers of the office and could not be considered to be appointed on the basis of stop-gap arrangement.

Qamar-uz-Zaman Butt for Petitioner.

Jahanngir Ali Sheikh for Respondent No.5.

Haji Muhammad Aslam Legal Advisor for Respondents Nos.3 and 4.

Malik Muhammad Bashir Lakhesir, Asstt. A.-G.

2015 P L C (C.S.) 423

[Lahore High Court]

Before Ijaz ul Ahsan, J

AMIR SHAHZAD CHAUDHARY

Versus

CHAIRMAN, BANK OF PUNJAB and 2 others

Writ Petitions Nos.24095 of 2009 and 3225 of 2010, decided on 10th November, 2014.

Bank of Punjab Act (XII of 1989)---

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Bank employee ---Non-statutory service Rules---Master and servant, principle of---Applicability---Petitioners were employees of Bank of Punjab who assailed orders terminating them from service---Plea raised by Bank was that Constitutional jurisdiction of High Court could not be invoked as service Rules of Bank were non-statutory---Validity---Petitioners were employees of Bank of Punjab who accepted employment on the basis of service contracts and had agreed to be governed by service regulations/Human Resource Manual of the Bank---Human Resource Manual did not consist of statutory Rules nor it met settled criteria on the subject, to be termed as statutory Rules---Human Resource Manual was an internal document meant to govern terms and conditions of employees of the bank---Relationship between petitioners and the bank was governed by principle of "Master and Servant"---Any grievance of petitioners arising out of alleged violation of their service contract/Human Resource Manual was not amenable to interference by High Court in exercise of its Constitutional jurisdiction---Petitioners could approach a Court of plenary jurisdiction for redressal of their grievance---Petition was dismissed in circumstances.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Syed Nazir Gillani v. Pakistan Red Crescent Society and another 2014 SCMR 982; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Ms. Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Arshad Ahmad Khan v. Chairman, Bank of Punjab and others 2001 PLC (C.S.) 207; Habib Bank Ltd. v. The State 2013 SCMR 840; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; ABN-AMRO Bank through Vice-President/Branch Manager v. Wasim Dar 2004 PLC 69; Arshad Ahmad v. Chairman Bank of Punjab Lahore and 2 others 2000 PLC (C.S.) 1355; Muhammad Mazhar Anwar Khan v. Chairman Bank of Punjab W.P. No.20794 of 1999; Chairman WAPDA v. Jamil Ahmed 1993 SCMR 346 and Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 rel.

Petitioner in Person.

Mian Jaffar Hussain for Petitioner (in Writ Petition No.3225 of 2010).

Saleem Baig along with Miss Sumera Fazil Khan for Respondents.

2015 P L C (C.S.) 442

[Lahore High Court]

Before Amin-ud-Din Khan and Faisal Zaman Khan, JJ

ZAFAR JAVAID and 6 others

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), OKARA and 2 others

Intra-Court Appeal No.546 of 2013 in Writ Petition No.26599 of 2010, heard on 30th April, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Determination of criteria laid down in advertisement and Recruitment Policy, 2004 for consideration and appointment by the Selection Committee---Constitutional petition filed by the petitioner for consideration of his marks in test for appointment against the post of Patwari was allowed---Intra-Court appeal---Contention of the appellant was that the Selection Committee only considered the qualification and the marks obtained in the interview, but not the result of test; that criteria laid down in the Recruitment Policy, 2004 was adopted by the Recruitment Committee instead of criteria laid down in advertisement---Validity---Single Judge of High Court had brushed aside the Recruitment Policy, 2004, wherefrom criteria for evaluation of a candidate was established and as such assumed the role of recruitment committee by making the test as envisaged in the advertisement to be the bench mark---High Court under its Constitutional jurisdiction could not assume the role or perform functions of a selection authority---Interview was a subjective test and it was not possible for a court of law to substitute its own opinion for that of an Interview Board, rather it was within the domain of the Members of the Board that what persuaded them to award certain marks to a particular candidate and the court of law was not expected to substitute their findings with its own findings---Recruitment Policy, 2004 was promulgated much prior to advertisement of the post of Patwari, therefore, the criteria laid down in the Recruitment Policy, 2004 would supersede the advertisement and it was within the domain of the Recruitment Committee to ultimately award marks in accordance with the criteria laid down---Intra-court appeals were accepted and the order of the High Court was set aside.

Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157; Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others 2012 SCMR 686; Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2012 PLC (C.S.) 917 and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 rel.

Asif Nazir Awan for Appellants.

Waqar Ahmad Chaudhry, A.A.-G. with Sardar Riaz Ahmad GAR, Okara and Rana Zulfiqar Ali Ahmad, Ahlmad to District Collector, Okara for Respondents.

Respondent No.3 in person.

Date of hearing: 30th April, 2014.

2015 P L C (C.S.) 449

[Lahore High Court]

Before Abid Aziz Sheikh, J

Qazi TEHMID AHMED

Versus

SECRETARY MINISTRY OF PETROLEUM and 3 others

Writ Petition No.610 of 2008, decided on 8th September, 2014.

(a) Constitution of Pakistan---

----Art. 199--- Sui Northern Gas Pipelines Limited, Executive Service Rules, R.6---Constitutional petition---Termination simpliciter of employee---Non-extension of probationary period---Automatic confirmation after completion of one year probation period---Scope---Contention that after expiry of one year probationary period, no further extension for 6 months could be granted and service of the petitioner was liable to be confirmed automatically was not only misconceived but also contrary to the relevant rule---Under R.6 of the Service Rules probationary period could be extended by the competent authority and in case the performance during probationary period was not satisfactory, the competent authority could also terminate the services with one month's notice or payment of remuneration in lieu thereof; there was no concept of automatic confirmation---Successful completion of probationary period would not ipso facto make the petitioner permanent unless the term of his appointment letter or rules applicable clearly indicate such intention, which in the present case had not been specified in clear terms either in the appointment letter or in Rules, rather it was specifically mentioned that on completion of probation, services could be terminated with one month's remuneration in lieu of notice, therefore, it could not be said that authorities had acted illegally by not confirming the petitioner automatically on expiry of probation period of one year---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Sui Northern Gas Pipeline Limited Executive Service Rules, R.6---Constitutional petition---Maintainability---Non-statutory rules of service---Executive Service Rules of Sui Northern Gas Pipeline Limited were neither framed by government nor same were made with the approval of the government, therefore, it did not have a statutory force behind it---Where rules were not statutory, constitutional petition was not maintainable.

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

----Ss. 3 & 12---Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Termination simpliciter--- Contention of employee/petitioner was that though the service rules of Sui Northern Gas Pipeline Limited were not statutory in nature, however, the petitioner's services could not be terminated under the said rules, rather it should be terminated under the Removal from Service (Special Powers) Ordinance, 2000, therefore, the constitutional petition before the High Court was maintainable---Validity---Petitioner's contention that he should have been proceeded under the Ordinance, therefore, the constitutional petition was maintainable, was without substance---Appointment letter of the petitioner specifically provided that petitioner's service would be governed under the Rules and the termination order also showed that it was a case of non-extension of probationary period and termination simpliciter under the rules---Simpliciter termination without stigma could be made as per terms of the service contract---Under S.3 read with S.12 of the Ordinance showed that the matters which were governed under the Ordinance were dismissal, removal from service, compulsory retirement, reduction to lower post or pay scale or impose one or more minor penalties as prescribed in the Government Servants (Efficiency and Discipline) Rules, 1973 for grounds specified under S.3 of the Ordinance; petitioner in the present case was not dismissed or removed from service due to any allegations, but it was a case of non-extension of probationary period and simpliciter termination, which were governed under the non-statutory Rules and not by the Ordinance---Constitutional petition was dismissed in circumstances.

Muhammad Naseer Khan v. General Manager (HR-OPS) 2013 PLC (C.S.) 698 ref.

Qaiser Masud v. Secretary Law and Parliamentary Affairs, Government of Punjab and another 2011 SCMR 1181; Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority, Government of Punjab, Lahore and another 2008 PLC (C.S.) 224; Muhammad Rafique v. Director General, Pakistan Rangers (Sindh) 2003 PLC (C.S.) 1418; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Zarai Taraqiati Bank Ltd. v. Hakeem Khan 2011 SCMR 577; Muhammad Ashraf v. Director General, Multan Development Authority, Multan and another 2000 PLC (C.S.) 796; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Messrs Flying Board Paper Production Ltd. v. Messrs Lab. Aids Corporation 1996 MLD 1238; Shahid Mehmood Usmani v. House Building Finance Corporation through Managing Director and others 2010 PLC (C.S.) 1360; Syed Arshad Ali and 55 others v. Pakistan Telecommunication Company Ltd. through President and 8 others PLD 2007 Kar. 214; Jawaid Ghafoor v. Pakistan Civil Aviation Authority and another 2010 PLC (C.S.) 276; Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Sheikh Abdul Aziz 1998 SCMR 91; Fateh Khan v. Sharaaf Khan PLD 1984 Lah. 106; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipeline Ltd. and others 1998 CLC 1890; Muhammad Ilyas v. Managing Director, Sui Northern Gas Pipelines Limited, Lahore and 3 others 1998 CLC 600 and Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 distinguished.

Abdul Wahad and others v. HBL and others 2013 SCMR 1383; Syed Nazir Gillani v. Pakistan Red Crescent Society 2014 SCMR 982; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Gohar v. M.D. SNGPL 1998 PLC (C.S) 828; M. Munir v. Government of Punjab 1998 SCMR 916=1998 PLC (C.S.) 794; Muhammad Hussain Naqshabandi v. Government of the Punjab and others 2004 SCMR 44; Muhammad Nadeem Ahmed and 18 others v. Ms. Azhra Feroz Bakhat and 58 others PLD 1968 SC 37; Shahzada Shahpur Tan v. Auditor General of Pakistan and another PLD 1984 SC 430; Habib Bank Ltd. v. State 2013 SCMR 840; Aman Ullah Khan v. MD Pasco and others 2012 PLC 96; Executive Council, Allama Iqbal Open University, Islamabad v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Agha Saleem Khurshid and others v. Federation of Pakistan and others 1998 SCMR 1930 and Secretary, Government of the Punjab through Secretary, Health Department and others v. Riaz ul Haq 1997 SCMR 1552 rel.

Zafar Hussain Chaudhary for Petitioner.

Ms. Sumaira Fazil Khan for Respondents.

Date of hearing: 8th September, 2014.

2015 P L C (C.S.) 468

[Lahore High Court]

Before Abid Aziz Sheikh, J

NOOR BADSHAH

Versus

UNITED BANK LIMITED through President and 3 others

Writ Petitions Nos.10109, 10111, 10110, 10108, 10107, 10106, 10105, 10104, 10103, 15597, 15596, 15595, 15594, 15593, 15592 of 2010, 13504, 13505, 13506, 13507, 13508, 13509, 13510, 13511, 13512 of 2011, 27864, 27867 of 2013, 26374, 26375 of 2010, 26376, 26377 of 2012, 26378 of 2010, 27870, 27874, 24891, 27862 and 27863 of 2013, heard on 11th September, 2014.

(a) Banking Companies Ordinance (LVII of 1962)---

----S. 41---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Resolution of dispute of private character---Scope---Petitioners were retired employees of a Bank in different grades---Withholding of grade increment in the completed year and recalculation of retirement/pensionary benefits---Functions of State Bank of Pakistan---Nature---Functional test for determining the status of the employer Bank---Effect---Plea of the Bank was that same being a private bank was not performing functions with respect to affairs of Federation, Province or any other statutory body and that the employees of the bank were not governed under the statutory rules, therefore, the constitutional petitions were not maintainable---Validity---Employer Bank being a private entity and not performing functions in connection with Province, Federation or any statutory authority, Constitutional petitions were not maintainable---Where service grievance was agitated before High Court in terms of Art.199 of the Constitution, by a person/employee, who was not governed by statutory rules of service, such petition would not be maintainable---Service Rules of Employer Bank being not statutory, constitutional petition was not maintainable for enforcement of said Rules---Dispute between the petitioners and the bank was not covered under the provisions of Banking Companies Ordinance, 1962 and that such regulatory role and control of State Bank of Pakistan did not clothe the Bank with the status of "person" or "authority" performing function in connection with affairs of Federation---Petitioners had not referred any statutory provision under which the State Bank of Pakistan, being a regulator, had a statutory duty and obligation to direct the private Bank to perform functions in respect of its employees' terms and conditions of service---State Bank of Pakistan having not failed to perform any of its statutory obligation towards petitioners (employees) was not a necessary party in the petition and no direction could be issued to State Bank of Pakistan for release of increments or recalculation of pensionary benefits of the petitioners---Constitutional petitions being incompetent and not maintainable were dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Resolution of private dispute---Claim of the petitioners (employees of a private Bank) regarding release of grade increments and recalculation of their pensionary benefits etc. was indeed a dispute of private character with the employer Bank regarding terms and conditions of service contract, governed under non-statutory rules---Remedy of Constitutional petition under Art.199 of the Constitution was pre-eminently a public law remedy and was not generally available against private wrongs---Constitutional jurisdiction of High Court was equipped to serve as a judicial control over administrative actions and where a dispute was of a private character and not for enforcement of fundamental rights as of public duty, constitutional petition was not maintainable for resolution of such private dispute.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Office objection---Effect---Only after office objection was over-ruled, the case matured for adjudication on the judicial side and formally entered the arena of "Original Civil jurisdiction" or the "Constitutional Jurisdiction" as the case may be---Office objection decided in the present case by the High Court was under administrative jurisdiction which did not preclude the High Court to determine the question of maintainability of Constitutional petition, after hearing the parties on judicial side in constitutional jurisdiction.

Abdul Wahab v. HBL and others 2013 SCMR 1383; P.I.A. Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (C.S.) 623; United Bank Limited Pensioners Welfare Association v. United Bank Limited 2011 CLC 831 and Muslim Commercial Bank Limited v. State Bank of Pakistan 2010 CLD 338 ref.

Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; A.F. Industries through Proprietor and 2 others v. Federation of Pakistan through Secretary Law and 7 others 2010 CLD 1765; Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others 2005 SCMR 235; Metropolitan Corporation Lahore v. Imtiaz Hussain Kazmi PLD 1996 Lah. 499 and The State and others v. Director General FIA and others PLD 2010 Lah. 23 distinguished.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and 5 others 2011 CLC 831; Abdul Malik v. Habib Bank Ltd. 2008 CLC 339; Abdul Rehman v. President Habib Bank Limited and others 2009 PLC (C.S.) 888; UIMCB Ltd. through Authorized representative v. State Bank of Pakistan through Governor and 2 others 2010 CLD 338; Izhar Hussain and 18 others v. Khalid Sherwani and 4 others 2004 PLC (C.S.) 945; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Salahuddin v. Taj Muhammad Khanzad PLD 1975 SC 244; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others 2011 PLC (C.S.) 623; Syed Nazir Gillani v. Pakistan Red Crecent Society and another 2014 SCMR 982; Habib Bank Ltd. v. State 2013 SCMR 840; Executive Council, Allama Iqbal Open University, Islamabad v. M. Tufail Hashmi 2010 SCMR 1484; Praga Tools Corporation v. Shri C.A. Imanual and others AIR 1969 Supreme Court 1306 and Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD PLD 2014 Lah. 436 rel.

Syed Sajjad Hussain Rizvi for Petitioner.

Mian Muhammad Zulqarnain for United Bank Limited and Rehan Nawaz for State Bank of Pakistan for Respondents.

Date of hearing: 11th September, 2014.

2015 P L C (C.S.) 485

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

KHURRAM KHAN VIRK and 3 others

Versus

PROVINCE OF THE PUNJAB through Chief Secretary and 2 others

Writ Petition No.29163 of 2014, heard on 28th November, 2014.

Punjab Judicial Service Rules, 1994---

----Rr. 5(3)(b) & 7(1)(a)(iii)---Constitution of Pakistan, Arts.25, 199, 177 & 193---Appointment to the post of Additional District and Sessions Judge---Senior Civil Judges and Civil Judges-cum Magistrates with ten years' service experience---Tabulation of service experience to include two years practice at the Bar---Interpretation of R.5(3)(b) of the Punjab Judicial Service Rules, 1994---Petitioner Civil Judges sought interpretation of R.5(3)(b) of the Punjab Judicial Service Rules, 1994 whereby civil judges with ten years' service experience were eligible to apply for the post of the Additional District and Sessions Judges---Contention of the petitioners was that ten years' service experience in the said amended Rule included eight (8) years of service and two years standing as a lawyer practicing at the Bar---Held, that R.7(1)(a)(iii) of the Punjab Judicial Service Rules, 1994 provided the qualification for a person to be appointed a Civil Judge, which was that he had actively practiced at the Bar for not less than two years after having been enrolled as an Advocate: and therefore the said two years' practice was an essential part of the terms and conditions of appointment to the post of a Civil Judge---Two years of active practice at the Bar was a professional experience which could not be ignored while tabulating the service experience of a Civil Judge---While practice at the bar was a valid qualification for an advocate aspiring to the post of Additional District and Sessions Judge, the same professional experience was being disregarded in the case of a judicial officer who too had completed a minimum of two years of active practice at the Bar and such treatment bordered on discrimination and could not be sustained---Practice at the Bar was foundational professional experience, which was always considered as a qualification for a judicial appointment and even appointments to the superior judiciary under Arts.177 & 193 of the Constitution recognized such experience---Ten years' service experience under R.5(3)(b) of the Punjab Judicial Service Rules, 1994 included a maximum of two years of active practice at the Bar after which a person was qualified to be appointment as Civil Judge---High Court observed that the petitioners and similarly placed judicial officers were therefore entitled to apply to the posts of Additional District and Sessions Judge and concerned authorities were directed to accept their applications and process the same according to the law; enabling the petitioners to sit in the examinations---Constitutional petition was allowed, in circumstances.

Mian Bilal Bashir and Raja Tasawar Iqbal for Petitioners.

Anwaar Hussain, Asstt. A.-G., Punjab and Asif Mushtaq Ahmed, Law Officer S&GAD, Regulations Wing for Respondents.

Date of hearing: 28th November, 2014.

2015 P L C (C.S.) 501

[Lahore High Court]

Before Abid Aziz Sheikh, J

MUNEER AHMAD and 2 others

Versus

ASSISTANT CHIEF HUMAN RESOURCE and 3 others

Writ Petition No.24624 of 2013, heard on 27th October, 2014.

(a) Constitution of Pakistan---

----Art.199---General Clauses Act (X of 1897), S.24-A---Civil service---Dismissal of daily wage employees---Reinstatement---Natural justice, principles of---Applicability---Right of hearing and right to be confronted with allegations---Scope---Petitioners were dismissed as daily wage employees of the Civil Aviation Authority ("Authority"), and sought implementation of order of High Court in their previously filed Constitutional petition whereby respondent Authority was ordered to consider case of petitioners for reinstatement after giving opportunity of hearing to the petitioners and recording a well reasoned order---Contention of petitioners was that said right to hearing was not afforded to the petitioners as per the order of the High Court---Held, that order of the High Court did not require respondent Authority to reinstate the petitioners but it required the Authority to consider their case after affording opportunity of hearing; however, neither any statement of allegations was furnished to the petitioners nor they were given adequate time and opportunity to rebut allegations by filing of written statements or producing oral evidence---Record of and complaints against, the petitioners were neither mentioned in the impugned order nor there was any discussion of veracity of such complaints---No inquiry was conducted before passing of impugned order and no statement of witnesses against petitioners was recorded and no opportunity for cross examination of any witnesses against petitioners was given to the petitioners---Although petitioners were given notice for personal hearing and were required by the Authority to sign an "undertaking" that hearing was afforded to them, but where dismissal of service was result of serious allegations of corruption; principles of natural justice must be followed not merely as a formality but as a well meaning and effective requirement of law, which included confronting the parties with statements of allegations, opportunity to rebut documents and charges against them through written and oral defence as well as cross-examination witnesses and only thereafter, a well reasoned and speaking order must be passed as mandated in S.24A of the General Clauses Act, 1897---Requirements of natural justice had not been followed in the present case, and impugned order were set aside and matter was remanded to the Authority for decision afresh after fulfilling mandatory requirements of natural justice---Constitutional petition was allowed, accordingly.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 ref.

(b) Natural justice, principles of---

----Principles of natural justice must be followed not merely as a formality but as a well meaning and effective requirement of law.

Syed Muhammad Aslam Rizvi and Zia-ud-Din for Petitioners.

Muhammad Usman Arif for Respondents.

Date of hearing: 27th October, 2014.

2015 P L C (C.S.) 547

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

ATHAR HUSSAIN KHAN and others

Versus

FEDERATION OF PAKISTAN through Principal Secretary and others

Writ Petition No.11192 of 2014, decided on 22nd December, 2014.

Constitution of Pakistan---

----Arts. 199 & 212---Federal Service Tribunals Act (LXX of 1973), S.4--- Constitutional petition--- Civil service--- Promotion--- Objective criteria---Attributes of integrity, general reputation and perception---Scope---Discrimination---Petitioners were recommended for promotion by Central Selection Board but Competent Authority referred their cases back for reconsideration on the attributes of integrity, general reputation and perception---Plea of petitioners was that they had been discriminated against and that the attributes of integrity, general reputation and perception were not an objective criteria on the basis of which promotion could be denied---Validity---Petitioners were considered for promotion by the Central Selection Board and were recommended for the same having fulfilled the objective criteria---Names of the petitioners were provided in the list of employees recommended for promotion---Attributes of integrity, general reputation and perception were out of five marks---If an employee under consideration had earned less than three marks, he might be deferred or superseded by the Central Selection Board with reasons to be recorded in writing---If an employee had earned three marks then he/she should be awarded five marks---Summary placed before the Competent Authority had provided for the marks as per the objective criteria---Marks for petitioners on attributes of integrity, general reputation and perception were five as they had earned three marks---No specific information was available before the Competent Authority on the basis of which it could have concluded that Central Selection Board did not give due consideration to the attributes of integrity, general reputation and perception in the case of petitioners---Authority could not have singled out the cases of petitioners on the ground that Central Selection Board had decided upon the attributes of integrity, general reputation and perception in a mechanical manner without due consideration--- Competent Authority had recorded that the recommendations being confirmed were for those employees who had the public reputation and perception of being honest and not corrupt---Nothing was before the Competent Authority on the basis of which it could have come to such conclusion---Competent Authority had promoted some and referred others for reconsideration without just cause which was discrimination---Decision of Competent Authority was not fair and transparent as no reason had been given for such decision---Authority was required to give basis for its decision so as to ensure transparency, fairness and good governance---Petitioners had a right to be considered for promotion which would include the right to know as to why their cases had been singled out---Subjective attributes with regard to integrity and reputation would not play a dominant role in the promotion of senior civil servants---Authority should give due consideration to the collective wisdom of Central Selection Board on the attributes of integrity, general reputation and perception as same were not objective in nature---Authority should rely on the collective wisdom of Central Selection Board which had objectified the assessment---Civil servants should be promoted on the basis of an objective criteria which could be assessed and graded in a fair manner to ensure transparency and good governance---No justification existed to require the Central Selection Board to deliberate further on integrity, general reputation and perception---Such attributes had been factored into the objective assessment criteria and were subject to collective wisdom and a formula for assessment---No re-assessment on such attributes could be ordered unless concrete material was provided which would justify rethinking integrity, general reputation and perception---Decision of Authority was discriminatory which would amount to abuse of discretion---Said decision of re-assessment on attributes of integrity, general reputation and perception was not based on any cogent reason which was set aside---Attributes of integrity, general reputation and perception would relate to the fitness of employee---Assessment of employees for fitness had been excluded from the ambit of S.4 of Federal Service Tribunals Act, 1973---Bar of Art.212 of the Constitution was not attracted to the present case---Authorities were directed to promote the petitioners forthwith from the same date when other recommendations were approved and notified---Constitutional petitions were accepted in circumstances.

Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 and Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 ref.

Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817 rel.

Ms. Asma Jehangir and Haris Azmat for Petitioners (in W.P. No.11192 of 2014).

Haris Azmat and Ali Saleem for Petitioners (in W.P. No.28201 of 2014).

Saad Rasul for Petitioners (in W.P. No.14612 of 2014).

Dr. Ikram ul Haq and Mansoor Beg for Petitioners (in W.Ps. Nos.12094 and 3340 of 2014).

Riaz Ahmad Tahir for Petitioners (in W.Ps. Nos.17924 and 17944 of 2014).

Said Ijaz Hotiana for Petitioners (in W.P. No.19657 of 2014).

Ch. Amir Rehman, D.A.-G. along with Shams-ud-Din, Section Officer, Establishment Division, Islamabad for Respondents.

Ibrar Ahmad for Respondent FRB (in W.P. No.14612 of 2014).

Izhar ul Haq for Respondent FRB (in W.P. No.12094 of 2014).

Date of hearing: 11th December, 2014.

2015 P L C (C.S.) 563

[Lahore High Court]

Before Shujaat Ali Khan, J

KALSOOM BIBI

Versus

SECRETARY EDUCATION and others

Writ Petition No.1511 of 2014/BWP, decided on 11th October, 2014.

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

----R. 17-A--- Constitution of Pakistan, Art.199--- Constitutional petition---Civil service---Appointment of one child of deceased civil servant---Scope---Petitioner's father breathed his last during service and she applied for her appointment---Contention of respondent was that a married son of the deceased government servant was entitled for appointment under the rules---Validity---No line of distinction had been drawn between the married and unmarried children and a person had to show that he/she was from the progeny of the deceased civil servant---One child of government servant who died during service or retired on the basis of medical grounds was eligible for appointment irrespective of his/her marital status---Mala fide was on record on the part of respondent to delay the appointment of the petitioner---Departmental authorities were bound to implement the policies/decisions taken by the government but said power could not be used to substitute language of a Statute---Authority had tried to introduce interpretation of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 of its own choice---Such unbridled exercise of powers by the Authority and that too in contravention to the provision of a Statute could not be approved rather same deserved to be depricated---Authority was directed by the High Court to issue appointment letter in favour of petitioner forthwith---Constitutional petition was accepted---Department was directed to look into the conduct of the Authority and initiate departmental proceedings against him.

Mst. Ubaida Manzoor v. Government of the Punjab and 4 others 2012 PLC (S.C.) 101 and Notification No.SOR-III(S&GAD)2-10/2007-P, dated 6-7-2010 rel.

Makhdoom Kaleem Ullah Hashmi for Petitioner.

Tahir Saeed Rameh, Asstt. A.-G. for Respondents.

2015 P L C (C.S.) 646

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

AFSHI IBRAHIM

versus

DISTRICT GOVERNMENT, KHANEWAL through District Coordination Officer and 2 others

Writ Petition No.1890 of 2014, decided on 15th April, 2014.

Punjab Office of the Ombudsman Act (X of 1997)---

----Ss. 2 & 32---Punjab Educators Recruitment Policy, 2012---Notification No.SO(SE-IV)2-43/2011 dated 5-6-2012---Constitution of Pakistan, Arts.199 & 4---Constitutional petition---Civil Service---Appointment---Non-implementation of order of the Provincial Ombudsman---Violation of Punjab Educators Recruitment Policy, 2012---Petitioner, in pursuance of advertisement applied for the post of Educator and stood at Serial No.29 of the merit list---Out of sixteen posts three posts could not be filled---Petitioner sought her appointment in the light of the Punjab Educators Recruitment Policy, 2012, wherein it had been stipulated that the posts still not filled were to be offered first to the candidates who stood next in the merit list finalized in 2011---Petitioner's request for issuance of appointment letter was refused by the Authority on the plea that she had missed the bus and could not take benefit of the Recruitment Policy as no post was lying vacant---Petitioner submitted an application to the office of the Provincial Ombudsman, which was accepted---Aggrieved by the same Authority made a representation to the Governor under S.32 of the Punjab Office of the Ombudsman Act, 1997, which was dismissed, therefore, the Authority filed review petition and which was also turned down on the ground that no review was provided under the law---Contention of the petitioner was that the order of the Provincial Ombudsman was not being implemented by misapprehending and misconstruing the Notification of the Punjab Educators Recruitment Policy, 2012---Validity---Notification regarding the Punjab Educators Recruitment Policy, 2012 was duly considered by the Provincial Ombudsman, but he disagreed with the respondents regarding construction to be put on it, therefore, he censured the respondents for misapprehending and misconstruing the said Notification declaring their act to be falling within the purview of "maladministration" as defined in S.2 of the Punjab Office of the Ombudsman Act, 1997---In any civilized society, the anguish, agony and mental torture the petitioner was put through would have come to an end, but perhaps the Education Department and the powers had considered themselves to be above the law---Conduct exhibited by them showed that they were not willing to bow their heads to the majesty of law---If the orders of the Provincial Ombudsman were not be carried out and if the edict of the Governor of a Province was not to be followed, what was the purpose of creating such dignified offices---High Court observed that it was pity that in order to get the orders passed by the Provincial Ombudsman implemented, the petitioner had to file constitutional petition---In a society which professed and upheld the rule of law, underpinning Art.4 of the Constitution, the petitioner should not have been made to run from pillar to post---Constitutional petition was allowed.

Muhammad Younas Sheikh for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. with Abida Nasreen Siddiqui, D.E.O.(W), Khanewal for Respondents.

2015 P L C (C.S.) 782

[Lahore High Court]

Before Ijaz ul Ahsan and Faisal Zaman Khan, JJ

SHAUKAT ALI

versus

MANAGING DIRECTOR KTWMA/DCO, KASUR and 2 others

Intra-Court Appeal No.918 of 2014, decided on 18th September, 2014.

(a) Kasur Development Authority (Appointment and Conditions of Service) Regulations, 2008---

----Regln. 22---Punjab Development of Cities Act (XIX of 1976), S.44---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan, Art.199--- Intra-Court appeal--- Contract employee---Termination of service---Statutory nature of rules and regulations---Determining factor---Principle of master and servant---Applicability---Adoption of non-statutory rules---Effect---Appellant was a contract employee and his service was governed by non-statutory rules---Constitutional petition filed by the appellant was dismissed on the ground of maintainability---Contention of the appellant was that under Regln. 22 of the Kasur Development Authority (Appointment and Conditions of Service) Regulations, 2008 certain rules and regulations of the Government of the Punjab were made applicable to the employees governed by those regulations, thus, the constitutional petition was maintainable---Validity---Regulations had been made by the Authority itself under S.44 of the Punjab Development of Cities Act, 1976 for which prior permission of the Government was not sought, thus the same could not be considered as statutory Regulations---Appellant's services were not governed by statutory regulations, thus, he could not approach the High Court for enforcement of terms and conditions of his service including reinstatement---Mere adoption of rules, regulations etc. or reference by application would not lend a cover to the regulations in question terming them to be statutory in nature---Constitutional petition was rightly dismissed in view of existence of relationship of master and servant between the appellant and his organization---High Court dismissed the intra-court appeal in circumstances.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Chairman State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; Habib Bank Ltd v. The State 2013 SCMR 840; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; 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; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024 rel.

Pakistan Defence Officers Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 distinguished.

Sardar Qasim Farooq Ali for Appellant.

2015 P L C (C.S.) 793

[Lahore High Court]

Before Ijaz ul Ahsan, J

Dr. KHALIL UR REHMAN

versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and 5 others

Writ Petition No.19918 of 2014, heard on 24th February, 2015.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4---Constitutional petition---Maintainability---Issue involving initial appointment of civil servant falls outside the purview of Service Tribunals Act, 1973.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of---Principle---Substituting findings of authorities---Petitioner was aggrieved of appointment of respondent for post in question---Validity---Petitioner was an interested party and did not approach High Court pro bono publico---Petitioner competed with respondent and others for post in question but did not succeed on account of having been awarded lesser marks by Special Selection Board, therefore, writ of quo warranto could not ordinarily be issued---High Court could not substitute its own opinion for that of the regulatory authorities and Selection Committee, unless mala fide, bias or error of judgment were floating on the surface of record---High Court declined to interfere in appointment of respondent---Petition was dismissed in circumstances.

Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation, Islamabad and 7 others 2003 PLC (C.S.) 1105; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Dr.Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Muhammad Ashraf Sanghri v. Federation of Pakistan and others 2014 SCMR 157; Federation of Pakistan through Secretary Establishment and others v. Ghulam Shabbir and others 2011 SCMR 1198 and Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others 2012 SCMR 686 rel.

Muhammad Omer Malik for Petitioner.

Hafiz Tariq Nasim for Respondent No.6.

Ch. Aamir Mehmood for Punjab University, Ch. Muhammad Umar for PM&DC and Muhammad Farid Chaudhry for Respondents Nos.4 and 5.

Date of hearing: 24th February, 2015.

2015 P L C (C.S.) 802

[Lahore High Court]

Before Shahid Karim, J

UNIVERSITY OF AGRICULTURE, FAISALABAD through Vice-Chancellor

versus

PROVINCIAL OMBUDSMAN PUNJAB, LAHORE and another

Writ Petition No.25717 of 2013, decided on 30th January, 2015.

Punjab Office of the Ombudsman Act (X of 1997)---

----S. 9(2)---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Jurisdiction of Ombudsman---Bar---Scope---Respondent filed complaint before the Ombudsman with regard to his pension and petitioner (University) was directed to make payment---Validity---All matters with regard to the Agency (department) in which public servant or functionary had been working, in respect of his personal grievance relating to service, jurisdiction of the Ombudsman was barred---Ombudsman had no jurisdiction with regard to matters relating to service of a public servant---Court and public functionary should give an effect to the intention of the legislation---Matters with regard to service of a public servant had been consigned to the province of specialized forums set up by service laws---Issues with regard to terms and conditions of service of public and civil servants should have been resolved by the forums set up by service laws to avoid conflict between two forums on the same issue---Ombudsman by impugned order had gone beyond the periphery of the powers vested in him---University was directed to decide the grievance urged by the respondent within a specified period by speaking order---Impugned order was set aside---Constitutional petition was accepted in circumstances.

Muhammad Aslam Zia v. Administrator, Punjab Agricultural Development and Supplies Corporation (Defunct), 4-Lytton Road Lahore and 4 others 2002 PLC (C.S.) 606; Tariq Jamil Rana v. Provincial Ombudsman (Mohtasib), Punjab 2-Bank Road, Lahore and others 2002 PLC (C.S.) 779 and Punjab Agricultural Development and Supplies Corporation through Administrator v. Muhammad Rafiq Khan and 2 others 2002 PLC (C.S.) 1133 rel.

Muhammad Shahzad Shaukat for Petitioner-University.

Ms. Samia Khalid, A.A.-G.

Sadaqat Mehmood Butt for Respondent No.2.

2015 P L C (C.S.) 831

[Lahore]

Before Syed Mansoor Ali Shah, J

Syed RIAZ ALI ZAIDI

versus

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

Writ Petition No.5406 of 2011, decided on 10th February, 2015.

(a) Constitution of Pakistan---

----Preamble & Arts. 175, 2A & 208---Independence of judiciary---Separation of powers between organs of the State---Nature and scope of relation between organs of the State---Scope and nature of judicial self-governance---Constitutional protection of financial autonomy and budgetary independence of the Superior Judiciary---Purpose, and necessity of institutional independence of the judicial branch---Concept described.

Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another 2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial Independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57 and The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet & Christopher Forsyth, PP.20-21 rel.

(b) Constitution of Pakistan---

----Preamble & Arts. 121, 175, 208, 122, 2A, & 199---High Court (Lahore) Rules and Orders, Vol. V, Chap. 10, Part C, R. 17---Constitutional protection of the financial and budgetary autonomy of High Court---Terms and conditions of service of officers and employees of the Superior Courts---Expenditure charged upon Provincial Consolidated Fund---Judicial independence and separation of powers---Scope---Federal Government vide an order of the Prime Minister had allowed an increase in the pay of staff of Superior Judiciary across the Country by granting an enhancement in the judicial and ad hoc allowance, and the same was duly approved and sanctioned by the Lahore High Court in terms of the High Court (Lahore) Rules and Orders, Volume-V---Provincial Government did not honour the said budgetary approval for enhancement of the said allowances---Question before High Court was whether administrative expenses of the High Court, which under the Constitution were an expenditure charged on the Provincial Consolidated Fund under Arts. 121 & 122 of the Constitution, once approved and claimed by the High Court, could be ignored or turned down by the Provincial Legislature or the Provincial Government---Held, that judicial independence was composed of at least five aspects: first non-political appointments to a court; second guaranteed tenure and salary; third executive and legislative interference with court proceedings or office holders; fourth budgetary autonomy; and fifth; administrative autonomy---Constitutionalism of financial autonomy of the judiciary found its roots in the preambular constitutional values which stated that "the principles of democracy...shall be fully observed" and that "independence of judiciary shall be fully secured."---Such values were echoed more substantively in the Objectives Resolution when read with Art.2A of the Constitution and Art.175 of the Constitution reaffirmed independence of judiciary on the basis of separation of powers---Article 208 of the Constitution provided administrative independence and insularity to the judicial branch by empowering the judiciary to appoint its officers and servants on their own terms and conditions of employment and this constituted a separate cadre of judicial administrative staff, distinct from the staff and officers of the Executive or the Legislative Branches of the State---Administrative expenses of High Court formed part of the charged expenditure, which for the purpose of the Province found explanation under Arts.121 & 122 of the Constitution---Provincial charged expenditure was an expenditure met from the Provincial Consolidated Fund, which may be discussed but not submitted to vote in the Provincial Assembly---Financial and budgetary management of the High Court in terms of administrative expenses if left to the Executive or the Legislature would generate a public perception of dependence of the judiciary on the other two branches of the State, which would weaken public confidence reposed in the judicial system and cripple the embodiment of democracy under the Constitution---While judicial independence meant that a judge must decide individual cases free from any extraneous influence, it also required that the judicial branch exercised control and influence over administrative penumbra immediately surrounding the judicial process---Pivotal to independence of the judicial branch was its financial autonomy, not in the sense of constitutionally protected salary structure but also the financial autonomy to budget for the administrative costs for effectively running and managing the judicial branch---Articles 121, 122, 175 & 208 of the Constitution provided construct for self-judicial governance, which rested on foundational pillars like separation of powers, administrative independence and autonomy---High Court (Lahore) Rules and Orders Volume-V regulated appointment and conditions of service of the High Court Establishment and in terms of Art.208 of the Constitution, the only constitutional requirement was that the Governor must approve the said Rules, which was a one-off act---Rule 17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Volume-V provided that the servants and officers of the High Court shall be entitled to pay and allowances as fixed by the Chief Justice from time to time; and said Rule did not mean that the decision of the Chief Justice fixing pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor, which approval was only to the promulgation of the said Rules and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation of Art.208 of the Constitution and R.17 of the High Court (Lahore) Rules and Orders Vol.-V subjecting decision of the Chief Justice to approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence---Art.121(b) of the Constitution extended budgetary and financial control to High Court so that the institution could draw up its own administrative expenses---Administrative expenses of the High Court did not require assent of the Provincial Assembly and expenditure proposed by the High Court therefore, could not be turned down, reduced, or altered by the Executive or the Legislature and no provision existed in the Constitution that authorized the Provincial Executive to delay, reconsider, negotiate, alter or reduce the administrative expenses of High Court which passed as charged expenditure---Once High Court budged its administrative expenses including remuneration (inclusive of any increase for a particular year) the same was to be simply provided in the Annual Budget Statement by the Provincial Government and placed before the Provincial Assembly for discussion and information only---Constitution proceeded on an assumption that the judiciary while determining its administrative expenses would act with the institutional maturity and sagacity it possesses---Financial independence of the judiciary must rest on a professionally structured budgetary system within the judiciary and required meticulous fiscal and budgetary controls with a consultative and deliberative methodology for budget preparation---Consultation with the key stakeholders before finalizing the administrative expenses of the High Court was an unwritten constitutional assumption---Articles 121 & 122 of the Constitution required that the High Court while exercising its budgetary discretion would proceed with fiscal prudence and circumspection---Financial autonomy and budgetary independence in the hands of the High Court had to be nurtured with highest sense of responsibility, level-headedness, judiciousness, transparency and financial foresight and the budgetary process of the High Court must be a collaborative exercise, where comments, suggestions and inputs are solicited from the provincial government, financial experts and other relevant institutions, in order to examine, appreciate and gauge the fiscal and economic conditions and realities of the Province before finalizing the charged expenditure---High Court directed the Provincial Government to release arrears of the enhancement of the judicial and ad hoc allowance to the officers and servants of the High Court after completion of constitutional requirements with effect from the date when such enhancement was made---Constitutional petition was allowed, in circumstances.

Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another 2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57; The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet Christopher Forsyth, PP.20-21 rel.

(c) Constitution of Pakistan---

----Arts. 208 & 175---High Court (Lahore) Rules and Orders Vol.-V Chap.10, Part C, Rr. 17 & 22---Officers and Servants of Courts---Rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment---Interpretation of Art.208 of the Constitution---Approval of the Governor---Scope---Article 208 of the Constitution provided that the High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of the officers and servants of the Court and for their terms and conditions of employment---Rules that regulated the appointments and conditions of service of the establishment had been provided under Chap.10, Part "C" of the High Court (Lahore) Rules and Orders Vol.V and R.17 of the said chapter provided that members of the High Court Establishment that were its officers and servants, shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time, provided the Rules are approved by the Governor as mandated by the Constitution under Art.208---Only constitutional requirement under the said Art.208 was that the Governor must approve the said rules, which was a one-off act and in line with such constitutional dictate, R.17 of the High Court (Lahore) Rules and Orders Vol.V also required that the Rules must be approved by the Governor---Said Rule does not mean that the decision of the Chief Justice fixing the pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor---Approval of the Governor was to the promulgation of the Rules (which was a one-off act) and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation subjecting the decision of the Chief Justice to the approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence, on which rested the democratic architecture of the Constitution---High Court observed that R.22, Chap. 10, Part C of the High Court (Lahore) Rules and Orders Vol.V was simply for the efficient administrative governance of the High Court and the said Rule adopted principles provided under the Civil Service Rules (Punjab) regarding salaries, allowances, leave and pension and in no manner converted or changed the status of the officers and servants of the High Court into that of civil servants or in any manner subordinated the authority of the High Court in such matters to that of the Executive Branch---Article 208 of the Constitution, therefore had no relevance in terms of grant of increase in judicial allowance in the context of the Governor---Governor was not the approving authority regarding the terms and conditions of service of officers and servants of the High Court and in fact the Governor was to simply grant approval to the promulgation of the Rules, which was once in the life time of the said Rules , unless the same were amended---Financial control regarding administrative expenses including remuneration of staff of the High Court vested with the High Court---Grant of an increase in the judicial allowance of officers of the High Court could only be acknowledged as a partial payment of allowances approved by the High Court under Art.208 of the Constitution read with R.17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Vol.V.

Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527 rel.

FOR PETITIONER

Mian Bilal Bashir assisted by Raja Tasawer Iqbal.

FOR RESPONDENTS

Mian Tariq Ahmed, Deputy Attorney General for Pakistan.

Muhammad Hanif Khatana, Advocate-General, Punjab.

Anwaar Hussain, Asstt. Advocate-General, Punjab.

Tariq Mirza, Dy. Secretary, Finance Department, Government of the Punjab, Lahore.

Nadeem Riaz Malik, Section Officer, Finance Department, Government of the Punjab, Lahore.

AMICI CURIAE.

Tanvir Ali Agha, former Auditor General of Pakistan and Waqqar Ahmad Mir:

ASSISTED BY:

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre.

Dates of hearing: 20th, 21st, January, 9th and 10th February, 2015.

2015 P L C (C.S.) 903

[Lahore High Court]

Before Faisal Zaman Khan, J

MUHAMMAD ANWAR

versus

NATIONAL BANK OF PAKISTAN through President/Board of Directors/Regional Business Chief, National Bank of Pakistan, Sialkot and another

Writ Petition No.17276 of 2011, heard on 13th May, 2015.

(a) Constitution of Pakistan---

----Arts. 25 & 199--- Constitutional petition--- Civil service---Discrimination--- Natural justice, principles of--- Applicability---Affording an opportunity of hearing to an employee, who agitated his grievance before his department is a principle of natural justice and in case of denial, it will amount to denying a right, which is not warranted under the law---Non-consideration of the case of the petitioner on the question of discrimination and lack of opportunity of hearing militated, the concept of natural justice and fair play---Impugned orders were not sustainable in circumstances, therefore the same were set aside---Constitutional petition was accepted.

(b) Maxim---

----"Audi alteram partem"---Exceptions---Scope---Circumstances where hearing not required---Principles---Opportunity of hearing is not sine qua non in every case---High Court has identified the circumstances where opportunity of hearing was not required: (i) When an authority was vested with wide discretion; (ii) When the maxim 'expression unius est exclusion alterius' was involved; (iii) Where absence of expectation of hearing existed; (iv) When compulsive necessity so demanded; (v) When nothing unfair could be inferred; (vi) When advantage by protracting proceedings was tried to be reaped; (vii) When an order did not deprive a person of his right or liberty; (viii) In case of arrest, search and seizure in a criminal case; (ix) In case of maintaining academic discipline; (x) In case of provisional selection to an academic course and (xi) In case of enormous malpractices in selection process.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 SC 483; Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338 and Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 rel.

Junaid Jabbar Khan for Petitioner.

Abid Hussain for Respondents.

Date of hearing: 13th May, 2015.

2015 P L C (C.S.) 915

[Lahore High Court]

Before Shahid Bilal Hassan and Mirza Viqas Rauf, JJ

SAEED AHMED SHERAZI

versus

GOVERNMENT OF PUNJAB and others

Intra-Court Appeal No.123 of 2014, heard on 22nd December, 2014.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Civil service---Contractual appointment---Termination of service---Vested right---Appellant was appointed for a project on contract basis and plea raised by him was that due to length of service he had a right to be regularized in service---Validity---Appellant was employee on contract basis and could not claim to be retained in service for a longer period than as prescribed in contract of his service---Appellant was even otherwise proceeded due to his willful absence and authorities, after due diligence, exercised their powers to terminate his service---Once terms of service were accepted by appellant, he could not wriggle out of the same as he was estopped by his words and conduct to challenge terms and conditions---Appellant had no vested right to plead through Constitutional petition which was rightly dismissed by Single Judge of High Court---Intra court appeal was dismissed in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Federation of Pakistan through Secretary Law v. Muhammad Azam Chattha 2013 SCMR 120 and Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 rel.

Muhammad Atif Qureshi for Appellant.

Tahir Saeed Ramy, Addl. A.-G. for Respondents.

Date of hearing: 22nd December, 2014.

2015 P L C (C.S.) 980

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

KASHIF MUSTAFA

versus

SECRETARY INTERIOR, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Writ Petition No.18525 and C.M. 3377 of 2011, heard on 5th December, 2014.

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

----S. 7---General Instructions for Concealing the Material Information, Instruction No.23---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Withdrawal of recommendations by the Public Service Commission---Scope---Petitioner was appointed as Assistant Director Investigation (BS-17) in the Federal Investigation Agency (FIA) on the recommendations of Public Service Commission and he submitted his acceptance---Public Service Commission withdrew its recommendation and government withdrew appointment of petitioner---Contention of petitioner was that Public Service Commission was not competent to withdrew its recommendations---Validity---Role of Public Service Commission after nominating a candidate for appointment in the service of Pakistan would come to an end once its recommendations had been acted upon and a candidate had been notified at his position---Public Service Commission could not withdraw its recommendation as same had been acted upon---If any omission or error in the application had been discovered then Public Service Commission could bring the same to the notice of competent authority being appointing authority of the candidate---Public Service Commission could not issue a notice to an appointed candidate as to why action should not be taken against him with regard to concealment of information---Only competent authority could take notice of the fact and take action as per law---Appointing authority had no problem with the petitioner and appointment order could not be withdrawn without looking into merits of the case---Petitioner had not concealed anything at the time of his appointment---Error was on the part of Public Service Commission who did not consider his documents properly and subsequently had blamed the petitioner for concealment---Petitioner was not at fault in the present case---Impugned letter issued by the department was set aside and government was directed to adjust the petitioner retaining his original position as Assistant Director Investigation (BS-17) against a seat he had applied for---Constitutional petition was allowed in circumstances.

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

----S. 7---Functions of Federal Public Service Commission---Scope---Functions of Public Service Commission were limited to conduct tests and take examination for recruitment of civil service in basic pay scales 16 and above and advise the President on matters with regard to qualifications and method of recruitment.

Imtiaz Rasheed Siddiqui and Shehryar Kasuri for Petitioners.

Hafiz Tariq Naseem for Applicant (in C.M. No.3277 of 2011).

Muhammad Zikria Sheikh, D.A.G. along with Syed Imran Hassan, Representative for Respondent FPSC and Hamad-ur-Rehman, Deputy Director/FIA for Respondents.

Date of hearing: 5th December, 2014.

2015 P L C (C.S.) 986

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

MUZAFFAR ALI ANJUM and others

versus

GOVERNMENT OF PUNJAB through Secretary Ministry of Law and Parliamentary Affairs, Lahore and 2 others

Writ Petitions Nos.19330, 19613 to 19616, 20545 and 33302 of 2014, decided on 23rd December, 2014.

Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---

----R. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Civil service---Petitioners were Assistant District Public Prosecutors---Plea of petitioners was that Secretary Prosecution Department was not competent to issue transfer orders and only Prosecutor General was competent to transfer the petitioners---Validity---Appointing Authority for the post of Assistant District Public Prosecutor was the Administrative Secretary---Competent Authority for the purposes of appointment through transfer was the Secretary Prosecution Department---Constitutional petitions were dismissed in circumstances.

Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another v. Prosecutor General Sindh, Criminal Prosecution Department and others 2012 SCMR 307 distinguished.

Muhammad Umer Riaz and Saqib Haroon Chishti for Petitioners (in W.Ps. Nos.19330, 19613, 19614, 19615 and 19616 of 2014).

Zubair Afzal Rana for Petitioner (in W.P. No.20545 of 2014).

Sheikh Muhammad Siddiq-II for Petitioner (in W.P. No.33302 of 2014).

Syed Nayyar Abbas Rizvi, Addl. A.-G. along with Syed Ehtesham Qadir, Prosecutor-General, Abdul Samad, Addl. Prosecutor-General, Muhammad Mumtaz Dogar, Additional Secretary and Rana Shaukat Ali Law Officer for Respondents.

Date of hearing: 28th November, 2014.

2015 P L C (C.S.) 1010

[Lahore High Court]

Before Ali Baqar Najafi, J

KHAN BAHADAR

versus

GOVERNMENT OF THE PUNJAB through Secretary Education School and another

W.P.No.3697 of 2012, decided on 3rd February, 2015.

Civil Service---

----Pension---Commutation of pension, payment of---Petitioner was appointed Stenographer in defunct Bureau of Education and after its abolition he was absorbed in Primary Education Cell of Curriculum Research and Development Center with condition that his earlier services would be counted towards his pension---Later, said department was also merged into Punjab Text-Book Board and services of petitioner were transferred with pay protection and pensionary benefits---Government also extended benefit of past service to all services excluding service in Punjab Text Book Board---Calculation of pension and commutation was to be worked out on last pay certificate issued to petitioner which included 50% medical allowance---Punjab Text-Book Board, on his retirement approved provident fund but his medical allowance on full pension was withdrawn---Validity---Merger of Curriculum Research and Development Center with Punjab Text Book Board was made subject to pay protection and unaffected pensionary benefits, therefore, burden of pension payment would be transferred to Punjab Text Book Board and employee would be entitled to medical allowance for all his Government service in various departments---High Court accepted constitutional petition in circumstances.

Muhammad Kamran Hassan Bhutta for Petitioner.

Syed Basharat Ahmed for Respondents.

2015 P L C (C.S.) 1022

[Lahore High Court]

Before Shah Khawar, J

SARDAR MAI

versus

GOVERNMENT OF THE PUNJAB through Secretary and 2 others

Writ Petition No.6258 of 2014, decided on 18th December, 2014.

West Pakistan Qaumi Razakars Rules, 1966---

----R. 17(2)---Constitution of Pakistan, Arts.2-A, 4, 25 & 199---Directive of Chief Minister Punjab No.PSO/CMS/2-/2008-V dated 18-11-2009---Constitutional petition---Implementation of Directive of Chief Minister---Husband of the petitioner, who was 'Police Qaumi Razakar', gave his life in the line of duty---Chief Minister publically announced package as contained in Directive No.PSO/CMS/2-/2008-V, dated 18-11-2009, whereby, apart from determination of amount of compensation payable to aggrieved families of Shaheed Police Officials and Qaumi Razakars, certain other facilities, like free education and treatment to family members of the Shaheeds; Special appreciation and commendation certificate, etc. were announced---Despite publically pronouncement made by the Chief Minister and Directive issued by him, the same had not yet been implemented---Said Directive contained order of immediate release of Rs.2 million to the family of Qaumi Razakar/husband of the petitioner, who embraced Shahadat during duty, but widow and family members of said Shaheed Qaumi Razakar were running pillar to post to receive proposed compensation, but the matter was still lying in the shelves of the Chief Executives of the Province, unattended---Blood of Shaheed, could not be classified in two categories by the authority (respondent)---Different compensation to the defendants of members of the Police force and the Qaumi Razakars, were in gross violation of the Injunctions of Islam, as contemplated in Art.2-A of the Constitution---Said classification, was also violative of the provisions of Arts.4 & 25 of the Constitution---In both cases, the Shaheeds, either members of Police force or Qaumi Razakars, sacrificed their lives to protect the lives of citizens, so they could not be treated differently---High Court, could not shut its eyes on such glaring violation of Fundamental Rights of the widow/family members of Shaheed Qaumi Razakar, who gave his life in the line of duty---High Court, while exercising powers of judicial review under Art.199 of the Constitution, allowed petition, in terms that; Directive issued by Chief Minister's Secretariat be implemented in its letter and spirit within 30 days; petitioner be provided compensation of Rs.2 million; provide employment to one adult male member of Shaheed; if the Directive was implemented, and if there occurred the same enhancement in compensation, differential should also be paid to the petitioner---Constitutional petition was allowed in circumstances.

Shahid Parvez Dogar for Petitioner.

Muhammad Aurangzeb Khan, Asstt. A.-G. with Iftikhar Ahmad, DSP Legal for Respondents.

2015 P L C (C.S.) 1026

[Lahore High Court]

Before Ali Baqar Najafi, J

AMAN ULLAH and 50 others

versus

FEDERATION OF PAKISTAN through Secretary and 4 others

Writ Petitions Nos.20304 and 28577 of 2013, decided on 13th January, 2015.

(a) Constitution of Pakistan---

----Arts. 199 & 25-A---Constitutional petition---Civil service---Termination of service---Scope---Feeder Teacher---Services of Feeder Teachers were dispensed with without backing of decision of competent authority---Case of petitioners was of discriminatory nature---Winding up of National Commission for Human Development---Constitutionality---Feeder Teachers were contributing to provide fundamental right of compulsory education to all children of the age of 5 to 16 years and had responsibility to safeguard the constitutional guarantees to the minor citizens of the country---Dispensing with straightaway jobs of petitioners was injustice to them---Impugned orders were set aside and petitioners were ordered to be restored to their jobs of Feeder Teachers---Constitutional petition was accepted, in circumstances.

Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 rel.

(b) Constitution of Pakistan---

----Art. 25-A---Right to education---Scope---Compulsory education to all children of the age of 5 to 16 years to be ensured.

Malik Ejaz Hussain Gorcha for Petitioners.

Abid Hussain Chatta for Respondents Nos.3 and 4.

Muhammad Tahir Yaqub, Standing Counsel.

2015 P L C (C.S.) 1073

[Lahore High Court]

Before Ali Akbar Qureshi, J

SAMI ULLAH and another

versus

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

W.P.No.2500 of 2015, decided on 5th March, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Recruitment in service---Requisite qualification in advertisement---Removal from tentative list of candidates---Equivalence of certificate/degree notified by Inter-Board Committee of Chairman---Status---Petitioner being diploma holder in Associate Engineering applied for post of Educators in Education Department and qualified in written examination---Authorities had issued pre-interview tentative list that included name of petitioner but later on his name was dropped on the ground that he did not have requisite qualification of F.A./F.Sc.---Validity---Qualifications mentioned in advertisement were to be considered at time of making appointment but when Inter-Board Committee of Chairmen had notified that Diploma in Associate Engineering was equivalent to F.A./F.Sc. and same had not been challenged, Authorities were bound to abide by the same---Qualification of petitioner was held to be equivalent to requisite qualification mentioned in Advertisement---Action of authorities being illegal was set aside and constitutional petition was allowed.

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

Haji Muhammad Tariq Aziz Khokhar for Petitioners.

Mobasher Latif Gill, Asstt. A.-G. along with Muhammad Elahi, Deputy Controller, Punjab Board of Technical Education, Lahore and Ghulam Shabir, Assistant Legal Cell, Registrar Office, University of Punjab, Lahore.

2015 P L C (C.S.) 1125

[Lahore High Court]

Before Faisal Zaman Khan, J

MUHAMMAD ZAMAN CHEEMA

versus

PRESIDENT, THE BANK OF PUNJAB, HUMAN RESOURCE DIVISION, LAHORE and 2 others

Writ Petition No.6028 of 2011, heard on 15th April, 2015.

(a) Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Civil service---Departmental appeal---Object---Mandate of appellate authority---Scope---Appellate order passed without giving independent findings/reasons---Impugned order revealed that no independent finding was given by the appellate authority which would show that it applied its independent mind and had passed the order without being impressed by the findings of the competent authority---Appellate authority did not discuss in its order that thirteen different allegations were raised against the petitioner through the show-cause notice and which ones were proved---Appellate authority decided the appeal in a slipshod manner and without adverting to the case set up by the petitioner---Order passed by the appellate authority had not qualified to be a reasoned order as contemplated under S.24-A of the General Clauses Act, 1897---No independent reasons/findings had been given by the appellate authority, which was mandatory---Appellate authority by merely upholding the order of the subordinate functionary had frustrated the mandate of providing an appeal---Order was set aside---Constitutional petition was accepted.

Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 rel.

(b) Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Civil service---Decision of appeal by appellate authority---High Court provided guidelines in that behalf.

An Appellate Authority is suppose to consider the following aspects while deciding an appeal:---

(a) Allegations against the appellant;

(b) Findings/recommendations of inquiry, if conducted;

(c) Order passed by the competent authority;

(d) Grounds of appeal raised by the appellant; and

(e) After appraisal of the above, independent finding with reasons rendered by the appellate authority.

Junaid Jabbar Khan for Petitioner.

Saleem Baig for Respondents.

Date of hearing 15th April, 2015.

2015 P L C (C.S.) 1219

[Lahore High Court]

Before Shah Khawar, J

MUHAMMAD IQBAL and others

versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2171 of 2010, decided on 24th December, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advance/pre-mature increment, grant of---Scope---Petitioners were appointed/ promoted from lower grade to higher grade---Contention of petitioners was that they were entitled to the grant of one advance/premature increment on the basis of judgment of the Supreme Court passed in favour of another employee---Validity---Petitioners were fresh appointees with usual allowances and advance increments purely on temporary capacity prior to 27-7-1991 when Rules were amended---Benefit of one pre-mature increment was only available to the employees who were appointed against 50% in-service quota from the date of appointment on or after 27-7-1991 when Rules were amended---Petitioners, in circumstances, were not entitled to claim one pre-mature increment which was only provided to the employees appointed against 50% in-service quota on or after 27-7-1991---Constitutional petition was dismissed.

Taj Muhammad Pirzada for Petitioner.

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

Date of hearing: 16th September, 2014.

2015 P L C (C.S.) 1267

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUHAMMAD IQBAL SHAHID

versus

PROVINCE OF PUNJAB through Incharge Recruitment Complaints Redressal Cell/ Secretary (Revenue) and 4 others

W.P. No.5914 of 2013, decided on 3rd April, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Concessional quota---Patwari, appointment of---Petitioner was son of retired government servant and sought his appointment as Patwari against concessional quota---Validity---Department had to first fill vacancies on open merit and then cases of persons, who could not compete on open merit must have been considered against concessional quota, if they applied for the same---Department could not be allowed to import successful candidates from open merit into concessional quota as the whole scheme of policy of creating quotas would be frustrated and main purpose of keeping concessional quota would end to be just an eyewash---High Court directed the authorities to adjust successful persons whose name had been mentioned against concessional quota, on open merit and petitioner would be appointed against concessional quota, if otherwise, petitioner stood on merit and had met with appointment criteria---Petition was allowed, in circumstances.

Nergis Shazia Chaudhry v. Federal Public Service Commission and others 2010 PLC (C.S.) 1035; Ritesh R. Sah v. Dr. Y.L. Yamul and others (1996) 3 Supreme Court Cases 253 and AIR 1996 Supreme Court 1378 rel.

Rizwan Mushtaq for Petitioner.

Shahid Mobeen, Addl. A.-G. with Muhammad Naeem Akhtar, Naib Tehsil AC Office Kasur, Abdul Waheed HC Irshad Baig Naib Tehsildar, Muhammad Azam Deputy Director (Legal) and Muhammad Tahir Riaz Assistant Board of Revenue for Respondents.

2015 P L C (C.S.) 1290

[Lahore High Court]

Before Shah Khawar, J

MAZHAR ABBAS SHAH

versus

M.D. PUNJAB SEED CORPORATION

Writ Petition No.8099 of 2014, decided on 1st December, 2014.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope--- Respondent was a statutory corporation wherein petitioner was an employee---Petitioner had been proceeded against under the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Departmental penalty in the shape of removal from service had been imposed upon the petitioner---Petitioner had prayed for setting aside of impugned order and his reinstatement into service---Article 212 of the Constitution had placed specific bar on the jurisdiction of High Court in interfering with terms and conditions of service of a civil servant---Petitioner had wrongly invoked the constitutional jurisdiction of High Court under Art.199 of the Constitution---Constitutional petition was dismissed in circumstances, however, petitioner if so advised might approach Service Tribunal by filing an appeal and in case such appeal was filed it was expected that Service Tribunal should sympathetically consider his prayer for condonation of delay keeping in view the fact that petitioner had filed his grievance before a wrong forum but, in time.

Anwar Pervaiz v. Chairman Board of Intermediate and Secondary Education Abbottabad and 2 others 2005 SCMR 1603; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Muhammad Umar Lodhi Deputy Manager Operation Cantt. Division, Multan v. Managing Director (Power) WAPDA, Lahore and another 2007 PLC (C.S.) 1 ref.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707; Muhammad Mubeen Us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and Suo Motu Case No.24 of 2010 in the matter of Corruption in Hajj Arrangements 2010 PLD 2011 SC 963=2011 PLC (C.S.) 1489 distinguished.

Allah Bakhsh Khan Kulachi for Petitioner.

Muhammad Anwar Awan for Respondents.

Muhammad Aurangzeb Khan, Asstt. A.-G.

2015 P L C (C.S.) 1296

[Lahore High Court]

Before Shah Khawar, J

BUSHRA ABBAS

versus

GOVERNMENT OF PUNJAB through Secretary Education (Schools), Punjab, Lahore and another

Writ Petitions Nos.12175, 11996, 12478, 11995 of 2013 and 872 of 2014, decided on 4th December, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Contract employee---Termination of service---Termination of service as a punishment due to one day absence---Validity---One day absence did not commensurate to quantum of punishment awarded i.e. termination from service---Legitimate expectancy, principle of---Applicability---After notification of regularization of service punishment awarded seemed to be based on mala fide and had violated principle of legitimate expectancy---Treating intervening period as leave without pay constitutional petition was allowed in circumstances.

Ch. Ehsan Ali Gill for Petitioner.

Rana Muhammad Hussain, A.A.-G. with Elahi, Deputy DEO, D.G. Khan/Respondent No.2.

2015 P L C (C.S.) 1331

[Lahore High Court]

Before Faisal Zaman Khan, J

UMAR HAYAT KHAWAJA

versus

NATIONAL BANK OF PAKISTAN through President and 2 others

W.Ps. Nos.16272 of 2013, 24741 of 2012, 3213, 28556, 31343 of 2014 and 833 of 2015, heard on 3rd April, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Calculation of pensionary benefits---Laches, doctrine of---Applicability---Contention of petitioners who were retired employees of Bank was that their pensionary benefits were not calculated in accordance with the circular issued in the year 1986 which was still holding the field---Validity---Initially pension was calculated under the circular issued in the year 1986, however pay structure inclusive of pension was revamped with the promulgation of circular issued in the year 1999---Petitioners enjoyed the benefit of revised pay scales and got pension under the circular issued in the year 1999---Petitioners never challenged the circular issued in the year 1999 during their currency of service and they acknowledged the revised pay and pension structure whereupon other circulars were issued introducing periodical increase in pensionary benefits---Circular issued in the year 1986 was taken over/superseded by the subsequent circular of 1999 which was neither challenged nor objected by the petitioners---Petitioners availed the benefit of circular of year 1999 and subsequent circulars of the years 2008 and 2010 by availing the pensionary benefits under said circulars without any protest or objection---Petitioners, in circumstances, were estopped from raising the question of calculation of pension under the circular of year 1986 at such belated stage---Present constitutional petitions had not been filed due to non-payment of pension by the Bank---Petitioners had in fact challenged the circular issued in the year 1999 which could not be permitted at such belated stage---Instrument/notification/instructions not challenged within reasonable time would be hit by principle of laches---Constitutional petition was dismissed in circumstances.

I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 and Dr. Muhammad Tahir ul Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413 rel.

Umar Hayat Khawaja for Petitioners.

Abid Hussain and Umar Abdullah for Respondents.

Date of hearing: 3rd April, 2015.

2015 P L C (C.S.) 1343

[Lahore High Court]

Before Mirza Viqas Rauf, J

ZAIN-UL-AZIZ KHAN BABAR

versus

MINISTRY OF INTER-PROVINCIAL COORDINATION through Secretary, Ministry of Inter Provincial Coordination Pak Secretariat, Islamabad and 3 others

Writ Petition No.30572 of 2014, heard on 25th February, 2015.

(a) Pakistan Sports Board Service Rules, 2006---

----Rr. 9(i)(c) & 172---Constitution of Pakistan, Arts.199, 25 & 27---Constitutional petition---Quo-warranto, writ of---Appointment to public office---Procedure---Equality before law---Respondent was appointed as Director General Pakistan Sports Board---Contention of petitioner was that respondent did not fulfill the criteria for appointment as Director General Pakistan Sports Board and his appointment was without any advertisement---Validity---Proceedings in the present constitutional petition were of quo warranto which were not strictly adversarial in nature and it was not necessary that person seeking writ of quo warranto must be "aggrieved"---Question of locus standi of petitioner was immaterial---Respondent had failed to bring on record any disqualification of the petitioner---Post reserved for direct recruitment under the rules should be filled in on the recommendations of selection committees---Direct recruitment should be made from the market only after necessary advertisement professional test and interview---Qualification and experience for appointment as Director General Pakistan Sports Board was left upon the decision of the appointing authority---Respondent was an employee of Sports Board and he was posted as Director General on current charge basis till finalization of the promotion process---Rules did not provide any such post and said post was alien to the post mentioned in Pakistan Sports Board Service Rules, 2000---Pakistan Sports Board had authority to introduce amendment but no such amendment was ever brought---Respondent was officiating as Director General Pakistan Sports Board on acting charge basis before issuance of his notification for appointment---Government was bound to fill the post of Director General Pakistan Sports Board by way of direct recruitment through publicity and advertisement in order to bring harmony and transparency in the matter of appointment to a public office---Respondent was inducted as Director General Pakistan Sports Board without due process of law and in a non-transparent and collusive manner---Appointment of respondent would offend the rights of equality and abrogate the principles enshrined in Art.27 of the Constitution---Appointment to such post could only be made after proper advertisement and after inviting applications from eligible candidates by holding selection through Board or Committee of experts specially constituted for the purpose---Tendency of the State machinery adopting the course of favoritism and nepotism in appointment of holder of public offices would ultimately result into failure of organs of the State---Courts were bound to curb such tendency with the mandate of Constitution---Appointment of respondent as Director General Pakistan Sports Board was in violation of law and public interest, which was declared as without lawful authority and relevant notification was set aside---Post of Director General Pakistan Sports Board was declared to be vacant which should be filled by the competent authority in accordance with law---Constitutional petition was accepted, in circumstances.

Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Tariq Aziz-ud-Din and others: in re: Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, decided on 28th April, 2010 2010 SCMR 1301; Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1299; Dr. Azim-ur-Rehman Khan MEO v. Government of Sindh and another 2004 SCMR 1299 and Shahzado Langah v. Federation of Pakistan and others 2014 PLC (C.S.) 853 ref.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Scope---Proceedings of writ of quo warranto were not strictly adversarial in nature and it was not necessary that person seeking writ of quo warranto should be aggrieved---Such proceedings in the writ of quo warranto were inquisitorial so anybody could move for the same---Court had to see as to whether such proceedings did qualify the yardsticks laid down in Art.199(1)(b)(ii) of the Constitution---Article 199(1)(b)(ii) of the Constitution was meant to control the exercise of unbridled powers by the executive for making appointments to public offices against the law and to protect citizens from being deprived of a public office to which he had a right---High Court could call upon the holder of any public office to show as to by what right he was holding the said office if there was some dispute with regard to his competency to hold such office on the basis of lack of transparency, favoritism, nepotism or personal whims of the executive.

Barrister Haris Azmat and Muhammad Ali Salimi for Petitioner.

Muhammad Mehmood Khan, Dy. Attorney General and Tariq Mahmood Ahmad Khokhar, Standing Counsel for Respondents Nos.1 and 2.

Hafiz Tariq Nasim, Irfan Ullah Khan and Jawad Tariq for Respondents Nos.4 and 5.

Date of hearing: 25th February, 2015.

2015 P L C (C.S.) 1381

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ABDUL MAJEED

versus

CHIEF SECRETARY PUNJAB, LAHORE and 4 others

W.P. No.8686 of 2015, decided on 12th June, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Repatriation of an employee to his parent department---Deputationist---Vested right---Scope-- -Deputationist did not have any vested right to remain on the post as deputationist forever or for a stipulated period---Deputationist could be ordered to be repatriated to his parent department at any time without assigning any reason---Petitioner-employee being deputationist had no vested right to remain on a post as deputationist or otherwise and he could be ordered to be repatriated and or relieved at any time---Parent department of petitioner-employee was not bound to assign reason for his repatriation---Employee-petitioner had failed to point out any illegality or infirmity in the impugned order---Employee-petitioner had no vested right to hold a particular post---Constitutional petition was dismissed in circumstances.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Regarding Corruption in Hajj Agreement in 2010 (2011 PLC (C.S.) 1489); Abida Parveen, Primary Teacher, Government Girls Primary Schools, Mirpur v. District Education Officer Schools Elementary (Female) Mirpur and 4 others 2014 PLC (C.S.) 999; Dr. Samina Younas v. Government of Punjab and others 1998 PLC (C.S.) 556; Irshad Begum and others v. Muhammad Sarwar 1998 CLC 808; Regarding Corruption in Hajj Arrangement in 2010 (Application by Abdul Rasheed and others) PLD 2011 SC 963; Abdul Razaq v. Government of Balochistan Communication, Works, Physical Planning and Housing Department Civil Secretariat, Quetta through its Secretary 2010 PLC (C.S.) 1046; Dr. Tasnim Tahira Rehman, Senior Women Medical Officer Senior Registrar, Allied Hospital, Faisalabad v. Government of Punjab through Secretary Health, Lahore and 4 others PLJ 2008 Lahore 973 distinguished.

S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment 2014 SCMR 799; Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 and Shahid Hussain Malik v. Azad Government of the State of Jammu and Kashmir 2015 PLC (C.S.) 102 rel.

Malik Ali Muhammad Dhol for Petitioner.

Aziz-ur-Rehman, A.A.-G. on Court's call.

2015 P L C (C.S.) 1395

[Lahore High Court]

Before Ali Akbar Qureshi, J

MUHAMMAD SALEEM

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power, Islamabad and 10 others

W.P.No.11937 of 2011, heard on 17th March, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of service---Reinstatement---Petitioner was terminated from service and the representation was dismissed on the ground that equivalence certificate of degree must be submitted---Validity---According to Higher Education Commission, University of Engineering and Technology was a chartered university and status of B.Sc. Industrial and Manufacturing Engineering and B.Sc. Mechanical Engineering degrees was same---Petitioner having fulfilled condition by providing equivalence certificate of his academic qualification, was therefore, entitled to be reinstated into service in accordance with law and rules applicable thereon---Constitutional petition was disposed of, accordingly.

Rao Jamshed Ali Khan for Petitioner.

Sh. Muhammad Ashraf for Respondents.

Date of hearing: 17th March, 2015.

2015 P L C (C.S.) 1406

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan and Abdus Sattar Asghar, JJ

CHIEF COMMISSIONER INLAND REVENUE, RTO, LAHORE

Versus

MUHAMMAD AFZAL KHAN and 41 others

Intra-Court Appeal No.303 of 2011 in W.P. No.21651 of 2010, heard on 19th February, 2014.

(a) Constitution of Pakistan---

----Arts. 212 & 199 ---Law Reforms Ordinance (XII of 1972), S.3---Establishment Division Letter No. F-8/36/2010-R/1 dated 20-1-2010---Intra-court appeal---Civil service---Up-gradation of posts---Bar of Art.212 of the Constitution---Scope---Respondents, who were Inland Revenue Audit Officers, were not up-graded in line with the Policy issued by the Federal Government through Establishment Division Letter No. F-8/36/2010-R/1 dated 20-1-2010---Contention of the respondents was that their posts were similar to the Audit Officers in other departments, who had been up-graded---Contention of the respondents was accepted and Constitutional petition filed by them was allowed by the High Court, which was impugned by the Department in intra-court appeal---Held, that once there was a policy and some of the departments had been allowed to up-grade their posts, then there should not have been any discrimination towards other departments, like that of the respondents', and such issue should have been resolved amicably without consulting the Establishment Division---Where a question of law or fact had been decided by the Service Tribunal or the Apex Court; it covered not only the case of the civil servants who had litigated but also other civil servants who may have not taken part in such legal proceedings, and in such cases, rule of good governance demanded that benefit of such judgment by Service Tribunal or the Supreme Court should be extended to other civil servants who may not have been parties to the litigation; instead of compelling them to approach the Service Tribunal or any other forum---Bar of Art.212 of the Constitution therefore did not exist in the present case---Post of Inland Revenue Audit Officer was considered similar to post of Audit Officer in Department of Auditor General of Pakistan, which post had already been up-graded; therefore to rule out any discrimination, the respondents were also entitled to up-gradation of posts---Constitutional petition of the respondents, was therefore rightly allowed---Intra-court appeal was dismissed, in circumstances.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others PLD 1996 SC 1185; Dr. Zahoor Mehdi v. Chief Election Commissioner of Pakistan/Returning, Officer for Presidential Election, Islamabad and 8 others PLD 2009 SC 1 and Abdul Hameed-Anjum and others v. Federation of Pakistan and others PLD 2010 SC 857 rel.

(b) Civil Service---

----Where a question of law or fact had been decided by the Service Tribunal or the Supreme Court; it covered not only the case of the civil servants who litigated but also other civil servants who may have not taken part in such legal proceedings, and in such a case the rule of good governance demanded that benefit of such judgment by the Service Tribunal or the Supreme Court should be extended to other civil servants who may not have been parties to the litigation; instead of compelling them to approach the Service Tribunal or any other forum.

Ibrar Ahmad and Saeed Ahmad Zaidi for Appellant.

Ch. Sikandar Khan for Respondents Nos.1 to 37.

Muhammad Iqbal Akhtar for Respondents Nos.38 and 39.

Date of hearing: 19th February, 2014.

2015 P L C (C.S.) 1440

[Lahore High Court]

Before Shah Khawar, J

MAZHAR ABBAS SHAH

Versus

MANAGING DIRECTOR PUNJAB SEED CORPORATION

Writ Petition No.8887 of 2014, decided on 30th October, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of service---Withholding of salary---Petitioner was issued termination order in May, 2014, but his salary was withheld since December, 2013---Petitioner was entitled, not only to salaries, but also bonus and expenses of medical treatment during that period---No justification existed for withholding salary of a civil servant, even during pendency of departmental proceedings---Civil servant was entitled to all the salaries, service benefits, bonus and medical expenses till the date one was terminated from service---Petitioner, in circumstances, was entitled to salaries, service benefits, annual bonus and reimbursement of medical expenses till the date when his services were terminated by the Authorities.

Allah Bakhsh Khan Kulachi for Petitioner.

Muhammad Anwar Awan for Respondents.

Muhammad Aurangzeb Khan, Asstt. A-G.

2015 P L C (C.S.) 1483

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD HUZAIR QURESHI

Versus

PROVINCE OF PUNJAB through Secretary S&GAD, Lahore and another

Writ Petition No.3785 of 2015, decided on 15th April, 2015.

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

----R. 17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Civil service---Retirement of an employee on medical ground on the basis of invalidation certificate---Appointment of one child of a deceased/invalidated/incapacitated civil servant---Scope---Father of petitioner who was working as Naib Qasid was issued invalidation certificate---Employee retired from the government service at the age of 54 years on the basis of said invalidation certificate---Disability of employee was placed in category 'B'---Rule 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 did not make any distinction between an invalid category 'A' and 'B' for entering one child of an employee to government service---When a government servant was declared invalid/incapacitated for further service anyone of his unemployed children might be employed by the appointing authority against a post to be filled provided he possessed the prescribed qualification and experience---Government could not be allowed to read into the rule which had not been provided for---Unemployed offspring of a government employee who was retired on the ground that he had become invalid/incapacitated and could not carry on his duties could not be denied employment on the so-called distinction that the incapacity of his father fell in category `B'---Rule 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was designed to lessen the sufferings of an invalid employee---If anyone of his family would take over and step in his shoes then his miseries would be considerably reduced---Said rule was a kind of remedial enactment---Post of Naib Qasid had fallen vacant and petitioner fulfilled the prescribed criteria---No hurdle was available in the appointment of petitioner---Department was directed to issue an employment letter to the petitioner appointing him as Naib Qasid in place of his father---Constitutional petition was accepted in circumstances.

Jnan Ranjan Sengupta v. Arun Kumar Bose AIR 1975 SC 1994 International Ore and Fertilizers (P) Ltd. (1987) 4 SCC 203 rel.

(b) Interpretation of statutes---

----"Remedial Acts"---Meaning---Remedial Acts were those Acts enacted in order to improve and facilitate remedies already existing for the enforcement of right and for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law---Remedial legislation should be construed broadly to effectuate its purposes.

Statutory Construction by Crawford ref.

Malik Muhammad Zafar Iqbal for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. with Bashir Ahmad Clerk, D.C.O. Office, Multan.

2015 P L C (C.S.) 1495

[Lahore High Court]

Before Zafarullah Khan Khakwani, J

ALI RAZZAQ and others

Versus

D.C.O. and others

Writ Petitions Nos.5126 and 5127 of 2014/BWP, decided on 22nd August, 2014.

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

----R. 17-A---Notification No.SOR-III (S&GAD) 2-10-2006 dated 5-1-2008---Universal Declaration of Human Rights, Art.7---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Civil service---Retirement of an employee on medical ground on the basis of invalidation certificate---Rule of appointment of one child of a deceased/ invalidated/ incapacitated civil servant---Scope---Discrimination---Effect---Equality of citizens---Equal protection of law---One unemployed child of a deceased/invalidated/incapacitated government servant should be appointed against a post falling in BS-1 to 5 in the department in which deceased government servant was working without observance of formalities prescribed under the rules if he/she otherwise was eligible---Normal procedure for initial appointment in BS-1 to 5 and to the posts of junior clerks had to be waived of in cases falling under proviso of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Department had appointed two other persons of similarly invalidated employees who were issued invalidation certificate of the same nature---Act of department, in the present case had depicted discriminatory treatment which could not be recognized under the law and even by the Constitution---All citizens similarly placed were to be treated equally and not otherwise---Right to be treated equally was one of the Fundamental Right guaranteed by the Constitution---Treating persons differently and discriminately of the same category by making divergent yardsticks could not be permitted to continue In any manner---All persons would be equal before the law and would be entitled without any discrimination to equal protection of law---Department could not be permitted to treat discriminately the petitioners from other similarly placed persons---Case of petitioners would fall under the proviso of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and were also identical to the cases of two persons already appointed by the department---Petitioners were entitled to be appointed in the department---Competent authority was directed to appoint the petitioners in the department in accordance with R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 within a specified period---Constitutional petitions were accepted in circumstances.

Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Market Committee, Multan through its Administrator and another v. Muhammad Sabir 1995 SCMR 305 and Muhammad Ikram v. Principal and Chairman Admission Committee, Sukkur and 2 others 2014 MLD 1 rel.

(b) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---All citizens similarly placed were to be treated equally and not otherwise---Right to be treated equally was one of the Fundamental Rights guaranteed by the Constitution---Treating persons differently and discriminately of the same category by making divergent yardsticks could not be permitted to continue in any manner.

Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Market Committee, Multan through its Administrator and another v. Muhammad Sabir 1995 SCMR 305 and Muhammad Ikram v. Principal and Chairman Admission Committee, Sukkur and 2 others 2014 MLD 1 rel.

Muhammad Ismail Makki for Petitioners.

Tahir Saeed Ramay, A.A.-G. with Muhammad Aslam Sukhera, P.S.O./Litigation

Officer to Administrator District Government Bahawalpur.

2015 P L C (C.S.) 1503

[Lahore High Court]

Before Shahid Waheed, J

MUHAMMAD IQBAL

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and another

W.P.No.15320 of 2014, decided on 19th March, 2015.

(a) Constitution of Pakistan---

----Arts. 199 & 25-A---Constitutional petition---Maintainability---Civil service---Disciplinary proceedings against the Heads of schools whose result remained below---Show-cause notice, issuance of---Interlocutory orders passed in disciplinary proceedings---Scope---Show-cause notice or a charge-sheet was merely an expression made by a department/organization against its employee stating therein that particular acts of misconduct were alleged against him---Issuance of show-cause notice or a charge-sheet was the first step of the disciplinary proceedings and being interlocutory order were in nature of a step towards a final order to be passed and would be merged with the final order---Civil servant, in disciplinary proceedings, would have to wait till a final order was passed--- Interference in interlocutory orders unless same were shown to be without jurisdiction would amount to stifling of disciplinary proceedings---High Court declined to entertain constitutional petition challenging/quashing show-cause notice---Appropriate course for the petitioner to adopt was to file his reply to the impugned show-cause notice and invite the decision of disciplinary authority thereon---Present constitutional petition was pre-mature---Department had taken notice of low percentage of school results and had directed action against the Heads of the schools---Policy/letter in question being one of the modes to check malpractices---Creating hurdle in upgrading the standard of education and making citizen literate was not violative of any law or provision of the Constitution---Constitutional petition was dismissed in circumstances.

Allah Bukhsh v. DIG, Police 2003 UC 60; Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508; Muhammad Javed v. Executive District Officer (Education) Sialkot and 2 others PLJ 2002 Lahore 1393 and M/s. Al-Rehman Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Usher through Secretary and others 2011 SCMR 1621 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional petition was not maintainable against intermediate stages or steps of departmental proceedings---High Court declined to interfere with the policy matter in its constitutional jurisdiction---If policy was in conflict with any provision of law or was violative of fundamental right of a citizen then same might be challenged before High Court under its constitutional jurisdiction.

M/s. Al-Rehman Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Usher through Secretary and others 2011 SCMR 1621 rel.

(c) Constitution of Pakistan---

----Art. 25-A---Compulsory education---Scope---State was bound to provide free and compulsory education to all children of five to sixteen years. [p. 1506] C

Raja Naveed Azam for Petitioner.

Aziz ur Rehman Khan, A.A.-G. for Respondents.

2015 P L C (C.S.) 159

[Peshawar High Court]

Before Assad Ullah Khan Chamkani and Muhammad Daud Khan, JJ

ABDUL KHANAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others

Writ Petition No.321-B of 2013, decided on 21st May, 2014.

Constitution of Pakistan---

----Arts. 2-A, 4, 25, 27, 28, 199 & 212---Police Rules, 1934, Chapter XIII---Constitutional petition---Out of turn promotion---Jurisdiction of High Court---Scope---Locus poenitentiae, principle of---Applicability---Scope---Article 212 of the Constitution, barred the jurisdiction of High Court in matters relating to terms and conditions of civil servants but out of turn promotion had no link with the terms and conditions of civil service---Out of turn promotion was not regular promotion but a tool of reward in case of exceptional circumstances---Out of turn promotion involved Fundamental Rights such as equality of citizens before law and entitlement to equal protection of law under Art.25 of the Constitution, High Court had jurisdiction in the matter---Any act or order which was contrary to the Constitution and law would not be sustainable simply because such act had attained finality and had become past and closed transaction---Out of turn promotion was against the Constitution and injunctions of Islam---Promotion of official for the purpose of encouraging performance should not negatively affect the rights of other similarly placed officials---Constitutional petition was dismissed.

Criminal Original Petition No.89 of 2011 and Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 rel.

Khosh Dil Khan for Petitioner.

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

Date of hearing: 21st May, 2014.

2015 P L C (C.S.) 215

[Peshawar High Court]

Before Yahya Afridi and Ikramullah Khan, JJ

Engineer MUSHARAF SHAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 2 others

Writ Petition No.2440-P of 2012, heard on 4th September, 2014.

(a) Khyber Pakhtunkhwa Service Tribunal Act (I of 1974)---

----S. 4---Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973), S.9---Constitution of Pakistan, Arts.199 & 212(2)---Constitutional petition---Maintainability---Promotion---Terms and conditions of service---Right of a person to be considered for promotion---Scope---Absence of final order---Effect---Writ of "mandamus"---Scope---"Eligibility for promotion" and "fitness for promotion"---Distinction---Petitioners were aggrieved of their non-consideration for promotion---Validity---Civil servant had no "right to promotion" to a higher post, whereas, a "right to be considered for promotion" would accrue in favour of the civil servant on his fulfilling the requisite prescribed qualification---While dealing with maintainability of constitutional petition by a civil servant relating to "terms and conditions" of his service, it was settled that the exclusive jurisdiction to decide the same vested in the Service Tribunal and not the constitutional courts---Right to be considered for promotion to a higher post by a civil servant was a matter, which related to the "terms and conditions of service" and the Service Tribunal had to decide the same---Grievance of the petitioners relating to their right to be eligible for promotion to a higher post were 'vested right' provided and protected under S.9 of the Khyber Pakhtunkhwa Civil Servants Act, 1973---"Right to eligibility for promotion"were terms and conditions of service of the petitioners---Authorities had refused the right of petitioners to be considered for promotion in their comments, the same were deemed as final order provided under S.4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974---Exclusive jurisdiction to entertain and adjudicate upon the matters relating to the right to be considered for promotion to a higher grade vested in the Khyber Pakhtunkhwa Service Tribunal Act, 1974 and that the High Court was constitutionally barred under Art.212 of the Constitution to take cognizance thereof---Constitutional petitions were disposed of accordingly.

Mian Amanul Mulk's case PLD 1981 Pesh. 1; Abdul Bari's case PLD 1987 Kar. 290; Fida Muhammad Khan's case PLD 1960 SC 45; Muhammad Akbar Qureshi's case PLD 1962 SC 428; M.A. Rafique's case 1990 SCMR 927; Fazali Rahmani's case PLD 2008 SC 769; Qamar Dost Khan's case 2006 SCMR 1630; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Iqbal v.Executive District Officer (Revenue) 2007 SCMR 682; Syed Abdul Qadir Shah v. Government of Punjab 1972 SCMR 323; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129; Muhammad Akram and others v. The State and others 1996 SCMR 324; Muhammad Rehman Khan v, Chief Secretary, N.-W.F.P. and others 2004 PLD (CS) 62; Abdul Ghafoor Supervisor/Inspector, NHA v. National Highway Authority and others 2002 SCMR 574; Zafarullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Iqan Ahmed Khurram's case PLD 1980 SC 153; I.A. Sharwani's case 1991 SCMR 1041 and Abdul Wahab Khan's case PLD 1989 SC 508 rel.

(b) Khyber Pakhtunkhwa Service Tribunal Act (I of 1974)---

----S. 4---Jurisdiction of Service Tribunal---Scope---Question of "vires" of rules---Fundamental Rights---Service Tribunal was competent to adjudicate upon the question of "vires" of rules framed by the department, even if the same were challenged on the basis of violation of fundamental rights of the civil servant.

(c) Constitution of Pakistan---

----Arts. 199 & 212(2)---Constitutional petition---Maintainability---Promotion---Terms and conditions of service---Constitutional provision contained in Art.212(2) opening with the 'non-obstante' clause, expressly barred all courts, including the High Court to take cognizance of matters, which could be agitated and adjudicated before an administrative tribunal constituted and functioning under the law.

Ejaz Anwar for Petitioner.

Syed Qaisar Ali Shah, A.A.-G., Abdul Latif Afridi, Ghulam Mohyuddin Malik and Saadullah Khan Marwat for Respondents.

Date of hearing: 4th September, 2014.

2015 P L C (C.S.) 263

[Peshawar High Court]

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

ROSHAN DANI and 11 others

Versus

WAPDA through Chairman and 3 others

Writ Petition No.4405 of 2010, decided on 19th December, 2013.

Fundamental Rules---

----R. 54-A--- WAPDA Pension Rules, 1977, R.7(iv) Note 2---Constitution of Pakistan, Arts.199 & 212(2)---Constitutional petition---Maintainability---Retirement---Dismissal from service after retirement on attaining the age of superannuation---Scope---Pendency of inquiry before retirement---Withholding of pensionary and other financial benefits of late employee---Effect---Appeal against the impugned order was abated---Ex-employee was awarded penalty of reduction in time-scale by two steps for two years along with proportionate recovery in another inquiry before retirement---Contention of the petitioner was that ex-employee could not be dismissed from service after retirement on attaining the age of superannuation and the pensionary and other financial benefits of the said employee could not be withheld---Plea of the authorities was that the ex-employee was employee of Electric Supply Company, therefore, the High Court had no jurisdiction to entertain the constitutional petition---Validity---Late employee was employed in WAPDA and in fact was proceeded against under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 and the Authorities did not place on record any order whereby the late employee was absorbed as a regular employee in Electric Supply Company and had to be dealt with accordingly---High Court had jurisdiction to entertain the constitutional petition for the reason that the said employee was an employee of WAPDA and not that of Electric Supply Company---All pending inquiries against an officer abated on retirement of the said officer---High Court directed the authorities to pay the legal heirs of the late employee all pensionary benefits under the enabling rules of the matter after deducting the penalty awarded to the late employee before his retirement---Constitutional petition was disposed of accordingly.

Noor Ahmad Shah's case 2003 PLC (C.S.) 1400; Muhammad Anwar Bajwa's case 2001 PLC (C.S.) 336 and Muhammad Zaheer Khan's case 2010 SCMR 1554 rel.

Amanullah Marwat for Petitioners.

Faisal Khan for Respondents.

Date of hearing: 19th December, 2013.

2015 P L C (C.S.) 560

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

Mst. RUKHSANA

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and 3 others

Writ Petition No.366-M of 2014, decided on 9th October, 2014.

Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Civil service--- Appointment, withdrawl of---Scope---Appointment of petitioner was withdrawn by the department--- Validity--- Petitioner remained at lower pedestal in merit as against the respondents---Petitioner had no authority to make arrival prior to cut date---Petitioner had submitted charge report in violation of the terms and conditions mentioned in her appointment order---Appointment order was not based on merit---Petitioner had no locus standi to question the merits of respondents resulting into their appointments---Petitioner could not point out any infirmity or illegality in the order of withdrawal of appointment as she remained at lower pedestal in merit---Constitutional petition was dismissed in circumstances.

Mian Tajamul Shah for Petitioner.

Muhammad Nisar for Respondent No.1.

Sabir Shah, A.A.-G. for formal Respondents.

Date of hearing: 9th October, 2014.

2015 P L C (C.S.) 682

[Peshawar High Court]

Before Yahya Afridi and Ikramullah Khan, JJ

GUL TAIMUR KHAN and 6 others

versus

FEDERATION OF PAKISTAN through Secretary Aviation, Cabinet Secretariat (Aviation Division, Islamabad and another

Writ Petition No.676-P of 2014, decided on 23rd October, 2014.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Civil service---Grant of risk allowance---Principle of 'equality and non-discrimination'---Applicability---Scope---Petitioners being employees of Civil Aviation Authority sought risk allowance which had been granted to uniformed personnel of the 'Airport Security Force'---Validity---Fundamental right of 'equality and non-discrimination' could be invoked against any violative action, inaction, order, policy, legislative or subordinate legislation of the State---Said right was not an absolute right, vesting in a citizen, unqualified right in all aspect to be equal to all other citizens---State was under a constitutional obligation to treat its citizens equally---State, however in certain circumstances, might treat citizens differently but such classification should not be arbitrary and must be reasonable and rational and same should be on an intelligible differentia---Federal Government granted 'risk allowance' equivalent to one month basic pay to uniformed personnel of Airport Security Force---Grant of said allowance was stated to be in order to bring armed personnel of Air Port Security Force at par with uniformed personnel of Armed/Civil Armed Force to which was reasonable and rational---Classification of two Forces could not be termed as arbitrary---No 'intelligible differentia' between the uniformed Airport Security Force personnel and the petitioners performing their duties at the same Airport existed---Both uniformed Airport Security Force personal and Civil Aviation Authority employees performing their duties at the Airport could not be separated as a class only on the basis of 'uniform' or their 'scope of work'---Case of discrimination had been made out offending fundamental rights vested in the petitioners---Authorities were directed to grant 'risk allowance' to the petitioners while they were posted at the Airport and till said allowance was being granted to the uniformed personnel of Airport Security Force---Constitutional petition was accepted in circumstances.

Muhammad Akram's case 2013 PLC (C.S) 717 and Messrs ACT International's case 2013 YLR 1396 ref.

Holy Qur'an; Ross v. Moffitt 417 US 600; Jibendra Kishore v. Province of East Pakistan PLD 1957 SC Pak 3; Brig. F.B. Ali's case PLD 1975 SC 506; Muhammad Aslam Khakhi's case PLD 2010 FSC 1; Waris Mean's case PLD 1957 SC 157; Shrin Munir's case PLD 1990 SC 295; I.A. Sharwani's case 1991 SCMR 1041; Abdul Baqi's case PLD 2003 SC 163; Arshad Mehmood's case PLD 2005 SC 193; Messrs Nafees Dry Cleaners's case 2001 PTD 2018; Pakistan Tobacco Co.'s case 2002 CLC 1910; Shafqatullah's case 2006 CLC 1555; Shehzad Riaz's case 2006 YLR 229; Dr.Zahra Hassan's case 2013 MLD 1835; Charantit Lal Chownwdhury's case AIR (3) 1951 S.C. 41; Sakhawant Ali's case AIR 1955 S.C. 166; N.H. Bhagwati's case AIR 1958 S.C. 578 V.45.C.83 and Satwant Singh Sawhnev's case AIR 1967 S.C. 1836 rel.

Barkatullah Khan for Petitioner.

F.M. Sabir, Standing Counsel and Asif Jalal for Respondents.

Date of hearing: 23rd October, 2014.

2015 P L C (C.S.) 824

[Peshawar High Court]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

ZAHOOR KHAN

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.260-B of 2014, decided on 19th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Repatriation of employee to his parent department---Scope---Plea of petitioner was that impugned order with regard to his repatriation to parent department was illegal, void ab initio and the same was based on mala fide and without lawful authority---Validity---Petitioner was transferred/adjusted on deputation for a period of three years---Petitioner had not been absorbed on the post after deputation and he had no vested right to remain there being a deputationist---Petitioner could be repatriated to his original posting/department at any time by the authority when exigency of service required---Competent authority constituted an enquiry committee and petitioner was found to have caused financial loss to the Board---Sufficient material was available on record which might be used as reason for repatriation of petitioner's service to the parent department---No infirmity was found in the impugned order--- Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Terms and conditions of service---Bar of jurisdiction---Scope---Matter with regard to deputation and repatriation would relate to the terms and conditions and constitutional jurisdiction of High Court would be barred, however, since Service Tribunal was not functioning, at the relevant time, question of bar of jurisdiction of High Court would not come into play till the establishment of the Tribunal and its actual functioning so as to attend the grievance of a civil servant under its jurisdiction.

Sarfaraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232 rel.

(c) Civil service---

----"Deputation"---Scope---Deputation was administrative arrangement between borrowing and lending Authorities for utilizing the services of an employee in public interest which would not give any right to the employee to continue for a period of deputation for which services were required---Civil servant could be transferred or adjusted on deputation and repatriated at any time without any reason by the Authority as and when exigency of service required---Deputationist did not have any vested right to remain on the post forever or for a stipulated period for which he was deputed and power would rest and vest in the competent authority in its discretion to repatriate the deputationist to the parent department at any time without assigning any reason as and when deemed proper.

S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522 rel.

Anwarul Haq and Pir Hameedullah Shah for Petitioner.

Saif-ur-Rehman Khattak, Addl. A.-G. and Shad Muhammad Khan for Respondents Nos.6 and 7.

Date of hearing: 19th November, 2014.

2015 P L C (C.S.) 958

[Peshawar High Court]

Before Nisar Hussain Khan and Muhammad Daud Khan, JJ

ABDUL AZIZ and another

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

Writ Petition No.1348-P of 2014, decided on 21st January, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil service--- Advertisement through Public Service Commission for appointment of Research Officers/Hydro-Geologist (BPS-17)--- Alteration in prescribed qualification by the department after final selection by the Public Service Commission---Effect---Petitioners were recommended by the Public Service Commission for appointment but required qualification was changed by the department---Validity---Recommendation of Public Service Commission had conferred a vested right on the petitioners which could not be taken away by the Authority under the garb of change or alteration of prescribed qualification---Department kept stuck to the requirement of qualification provided in the advertisement till final selection of petitioners by the Public Service Commission---Alteration in prescribed qualification was mala fide was on record on the part of department---Department was directed to follow/honour the recommendations of Public Service Commission and appoint the petitioners against the posts advertised---Constitutional petition was accepted in circumstances.

Miss. Farzana Qadir v. Province of Sindh through Secretary, Ministry of Health, Government of Sindh Secretariat, Karachi and another 2000 PLC (C.S.) 225 rel.

Ghulam Mohyuddin Malik for Petitioners.

S. Sikandar Hayat Shah for Respondents.

Date of hearing: 21st January, 2015.

2015 P L C (C.S.) 1111

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SHABNAM

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa and 4 others

W.P.No.312-M of 2014, decided on 3rd October, 2014.

(a) Constitution of Pakistan---

-----Art. 199---Succession Act (XXXIX of 1925), Ss.15 & 16---Constitutional petition---Civil service---Advertisement for the post of P.S.T.(BPS-12)---Contention of petitioner was that respondent hailed from place "X" and she was not entitled to be appointed at place "Y" and she being resident of such place was entitled to be appointed at place "Y"---Validity---Respondent though resident of place "X" had married to a person who was resident of place "Y" prior to her appointment---CNIC of respondent had been issued wherein her temporary and permanent address had been mentioned along with her husband at place "Y" where the spouses were residing---Respondent had become the bona fide resident of place "Y" on account of her marriage---Domicile of wife during marriage would follow the domicile of her husband automatically---Woman would acquire by marriage the domicile of her husband---Respondent had been appointed rightly leaving no room for petitioner and petitioner had no locus standi to assail the same---Constitutional petition was dismissed, in circumstances.

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

----S. 16---Wife's domicile during marriage---Scope---Domicile of wife during marriage would follow the domicile of her husband.

Syed Abdul Haq for Petitioner.

Hafiz Bakht Amin and Sabir Shah, A.A.-G. for Respondents.

Date of hearing: 3rd October, 2014.

2015 P L C (C.S.) 1255

[Peshawar High Court]

Before Haider Ali Khan, J

DAWA KHAN

versus

SECRETARY (SARFOON) GOVERNMENT OF PAKISTAN, ISLAMABAD and 14 others

C.R. No.606-M of 2013, decided on 4th May, 2015.

West Pakistan Civil Servants Pension Rules, 1963---

----Rs. 4.7 & 4.10---Pension-cum-Gratuity Scheme, 1954---Specific Relief Act (I of 1877), S. 42----Suit for declaration---Gratuity---Family pension---Right of inheritance in shahada fund, gratuity and pension---Scope---"Family"---Definition---Plaintiffs filed suit for declaration claiming that they, along with defendants, all being legal heirs of deceased, who had embraced martyrdom, were entitled to their shares in amounts on account of shahada package, gratuity and pension---Both trial court and appellate court dismissed the suit on ground that only widow and children were entitled to share in disputed amount---Contention raised by plaintiffs was that as Guardian Court had issued succession certificate in favour of said persons regarding amount left by deceased, which was lying with Bank, so they were also entitled to share disputed amount---Respondents took plea that under Rr.4.7 & 4.10 of West Pakistan Civil Servants Pension Rules, 1963, only wife and children of deceased civil servant were entitled to pension and gratuity, and that disputed amount on account of shahada package was in shape of grant which had been awarded after death of deceased and the same, therefore, could not be treated as inheritable by all legal heirs of deceased, except widow and children of deceased--- Validity---Shahada package was service benefit and was not due to deceased during his life, and the same was in nature of grant payable after his death---Shahada package, therefore, could not be treated inheritable by all legal heirs, except widow and children, who were nearer beneficiaries and remained dependent mainly on deceased---Widow and children of deceased deserved to receive benefit of shahada package to exclusion of other legal heirs, including plaintiffs---Amount on account of shahada package , gratuity and pension were not legacy of deceased employee as he was not owner of the same during his life, and only widow and children were entitled to the same---Under Pension-cum-Gratuity Scheme, 1954, word 'family' had been defined as consisting of husband, widow and children, who were entitled to gratuity and pension in case of death of employee---Plaintiffs, as parents of deceased employee, were not entitled to get any share in shahada fund, pension and gratuity---No illegality, infirmity misreading or non-reading was pointed out in concurrent findings of courts below---Revision petition was dismissed in circumstances.

PLD 1991 SC 731 and 2014 CLC 126 ref.

2011 CLC 1528 rel.

Naeem-ud-Din for Petitioners.

Mian Hussain Ali, Deputy Attorney-General, Sabir Shah, A.A-G. and Abdul Ghaffar for Respondents.

Date of hearing: 4th May, 2015.

2015 P L C (C.S.) 1274

[Peshawar High Court]

Before Waqar Ahmad Seth, J

RUKHSANA ASIF and others

versus

GOVERNMENT and others

C.R. No.200 of 2014, decided on 20th October, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42, 12 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Civil service---Suit for declaration, permanent injunction and in alternate for retaining the possession of the premises---Application for rejection of suit---Appointment of son of deceased/plaintiff in government service against deceased son quota---Retention in official accommodation by the son/daughter of the deceased employee on the basis of changed policy---Entitlement---Parental jurisdiction of civil court in changed circumstances---Scope---Disclosure of new facts, which required recording of evidence---Effect---Predecessor-in-interest of petitioners being a government servant was allotted the house in question and during his life time filed a suit for declaration, permanent injunction and in alternate the possession of the suit quarter as the authorities were trying to dispossess the government servant under the garb of new policy---Authorities filed written statement and application for rejection of plaint, which was allowed---Appellate court maintained the judgment and decree passed by the trial court by granting 15 days for vacating the house, which culminated into filing of revision petition by the petitioners---Validity---New facts were placed on the file of revision petition, but not placed on record of the plaint, which required recording of evidence---Held, that civil court in changed circumstances had the alternate jurisdiction and it was the duty of the civil court to thrash out the dispute and rights of the citizens/government servants in a parental way and not in a summary way---High Court, in view of changed policy remanded the case to the trial court for recording of evidence---Revision was disposed of accordingly.

Yasir Zahoor Abbasi for Petitioners.

M. Naeem Abbasi, A.A.-G. for Respondents.

Date of hearing: 20th October, 2014.

2015 P L C (C.S.) 1317

[Peshawar High Court]

Before Waqar Ahmed Seth, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION

versus

ZAHID HAMEED

C.R.No.518-A of 2011, decided on 24th November, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.47---Suit for declaration---Civil service---Reinstatement order---Execution petition---Objection application---Execution petition was dismissed for non prosecution for restoration of which an application was moved wherein objection petition was submitted which was accepted by the Executing Court but same was dismissed by the Appellate Court---Validity---Decree holder had received all his dues/back benefits and nothing had been left outstanding against the judgment debtor---Employee on appointment/re-appointment or reinstatement etc. was supposed to make or submit arrival report there and then---Employee-decree holder in response to his reinstatement order/decree reported his arrival after more than two years from the date of decree and after five months of the decision of appeal where decree was never suspended---Decree of the court was an order of reinstatement and there was no need for passing fresh order---Employee-decree holder was issued show cause notice on the omission and commission of misconduct and Inquiry Committee was constituted---Employee-decree holder remained absent wilfully and ex parte inquiry was conducted and order of dismissal from service was passed---Said dismissal order was never challenged before the competent forum and same was still in field---Execution petition of employee-decree holder was dismissed for non-prosecution---Employee-decree holder had again been dismissed from service and execution petition was dismissed as per law by the Executing Court---Appellate Court had illegally reversed the order of Executing Court by not appreciating the facts on record---Impugned order passed by the Appellate Court was set aside---Revision was accepted in circumstances.

Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322 rel.

Abdur Rehman Qadri for Petitioner.

S. Mehboob Ahmad Shah for Respondent.

Date of hearing: 24th November, 2014.

2015 P L C (C.S.) 1362

[Peshawar High Court]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

AMIN-UR-REHMAN and others

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petitions Nos.433-P and 2948-P of 2014, decided on 17th March, 2015.

Constitution of Pakistan---

----Arts. 199, 212(2), 4, 24 & 25---Constitutional petition---Maintainability--- Alternate remedy--- Scope--- Civil service---Promotion--- Bar of jurisdiction of High Court---Laches---Petitioner had called in question amendment brought vide notification that put petitioners at disadvantageous position against fundamental rights and terms/conditions of service---Petition was filed after a gap of almost two years of impugned notification---Effect---Delay in filing constitutional petition attracted doctrine of laches---Promotion was related to terms and conditions of service and Art.212(2) had put specific bar upon High Court in such cases---Petitioner could assail impugned notification only before competent forum---Constitutional petition was dismissed being not maintainable.

I.A. Sharwani and others v. Government of Pakistan through Secretary 1991 SCMR 1041 rel.

Abdul Ghaffar Khan for Petitioners.

Mian Arshad Jan, A.A.-G. for Respondents.

Date of hearing: 17th March, 2015.

2015 P L C (C.S.) 1385

[Peshawar High Court]

Before Mazhar Alam Khan, C.J. and Rooh-ul-Amin Khan, J

Lt. Col. (Retd.) SULTAN ZEB KHAN

versus

BOARD OF GOVERNORS, FAZLE HAQ COLLEGE, MARDAN through Chairman and 5 others

Writ Petition No.3070-P of 2013, decided on 6th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invocation of---Scope---Civil service---Contractual employment---Scope---Termination of service---Regular inquiry---Vested right---Non-statutory rules---Effect---Wrong dismissal or termination---Remedy---Petitioner being contract employee was terminated from service and he was held entitled to draw one month pay in lieu of giving one month notice in accordance with terms and conditions of appointment orders---Validity---Petitioner was appointed on contract basis and his services could be terminated by giving one month notice or payment of an amount equal to one month salary in lieu of notice period---Petitioner had been held entitled to draw one month pay in lieu of termination notice---Contract of service did not create any vested right in the appointee so as to make him entitled to be served with notice before termination of contract of his service---Contract of petitioner was terminated without stigmatizing him---Petitioner was given a very safe and honourable exit from service without leveling any allegation against him---If a person was employee on contract basis and terms of employment had provided the manner of termination of his service, same could be terminated in terms thereof---If a person was to be condemned for misconduct then in that event even if he was a contract employee he would be entitled to a fair opportunity to clear his position---Regular inquiry was necessary in case of stigmatized termination---Contract appointment of petitioner had been simply terminated without any allegation of misconduct--- No writ could be issued in contractual obligation by the High Court unless contract employment was terminated with any stigma---Petitioner in contractual appointment was not vested with a right to press for his reinstatement into service for the left over period---Where services of an employee were not governed by any statutory rules the principle of "master and servant" would be applicable and constitutional jurisdiction of High Court could not be exercised---Petitioner was not entitled for invoking the constitutional jurisdiction for seeking his reinstatement---Employee of corporation/institution in the absence of violation of law or any statutory rules could not press into service the constitutional jurisdiction or civil jurisdiction for seeking relief for reinstatement in service---Remedy against wrong dismissal or termination of petitioner was only to claim damages---Order of termination of petitioner without any stigma could not be challenged before the High Court in constitutional jurisdiction---Constitutional petition being not maintainable was dismissed in circumstances.

Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347; Abdur Rasheed Khan v. Registrar Bahaudddin Zakaria University Multan and others 2011 SCMR 944; University of Punjab v. Sardar Ali 1992 SCMR 1093; Ijaz Ul Hussain Suleri v. The Registrar and another 1999 SCMR 2381; 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 other PLD 2010 SC 676; Federation of Pakistan v. Muhammad Azam Chatta 2013 SCMR 120; Abdul Wahab and others v. Habib Bank Ltd. and others 2014 PLC (C.S.) 393; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445; Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; The Principal Cadet College, Kohat and another v. Muhammad Shoib Qureshi PLD 1984 SC 170; RTA Janjua v. National Shipping Corporation PLD 1974 SC 146; Anwar Hussain v. Agriculture Development Bank of Pakistan and others PLD 1984 SC 194; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1257 and Muhammad Yousuf Shah v. Pakistan International Airline Corporation PLD 1981 SC 224 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contract employment---No writ could be issued in contractual obligation by the High Court unless such employment was terminated with any stigma.

(c) Civil service---

----Contract employment---Scope---Contract of employment did not create any vested right in the appointee so as to make him entitled to be served with notice before termination of contract of his service.

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

----S. 2(41)---"Notification"---Meaning---Notification would mean a notification published under proper authority in the official gazette---Draft notification was of no significance and legal importance and it could not be termed as "notification" before publication in the official gazette.

Abdul Samad Khan and Ishtiaq Ibrahim for Petitioner.

Amjad and Syed Sikandar Hayat Shah, A.A.-G. for Respondents.

Date of hearing: 6th November, 2014.

2015 P L C (C.S.) 1402

[Peshawar]

Before Muhammad Daud Khan, J

AWAS KHAN

Versus

EDUCATION DEPARTMENT and others

C.R.No.198-B of 2014, decided on 16th October, 2014.

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

----S. 42---Suit for declaration---Civil service---Appointment---Predecessor of plaintiff donated land for construction of school on the condition of appointment of plaintiff in government service---Plaintiff claimed his appointment on basis of donation of land by his predecessor---Validity---Appointment to a position in public department was to be made according to prescribed procedure---Donation of land conditional with appointment being illegal agreement between donor of land and the department to the effect that plaintiff would be appointed in service, was not recognized by law---Donation of land by predecessor of plaintiff did not confer any legal character or entitlement for appointment in government service.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 and Umer Said and others v. District Education Officer (Female) and others 2007 SCMR 296 rel.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Suit for declaration with permanent injunction---Cause of action---Plaint not disclosing any cause of action should be buried at its inception.

S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali (Moin) through legal heirs 2002 SCMR 338; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 and Mir Sahib Jan v. Jana 2011 SCMR 27 rel.

(c) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court being directive in nature was to be strictly followed.

Asghar Ali for Petitioner.

2015 P L C (C.S.) 1506

[Peshawar High Court]

Before Yahya Afridi and Haider Ali Khan, JJ

Sardar AMINULLAH KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 2 others

W.P.No.3249-P of 2014, decided on 20th November, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual employment---Probation period---Termination of service---Scope---Petitioner was terminated before completion of the term fixed---Contention of petitioner was that he could not be terminated during the period of probation without proceeding in accordance with law---Validity---Petitioner was appointed on contract for a period of three years with the first year as a period of probation---Termination could take place during the said period without assigning any reason---One month prior notice of termination or one month pay in lieu thereof was to be paid---If termination during the period of probation was not for a misconduct, there was no requirement for providing any reason or proceedings against terminated employee through a regular inquiry---Principle of "master and servant" was applicable in the present case---Unwilling master could not be compelled for reinstatement by the High Court under constitutional jurisdiction---If petitioner was still aggrieved of his termination of contract of service, he might if so advised sought his remedies but before the competent forum---Constitutional petition was dismissed in circumstances.

Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 ref.

Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 PLC (C.S.) 69; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266; High Court Bar Association and others v. Government of Balochistan PLD 2013 Bal. 75; PLD 2013 SC 443 and Muhammad Tariq Malik v. Pakistan through Secretary Establishment Division PLD 2014 Isl. 33 distinguished.

Agha Salim Khurshid's case 1998 SCMR 1930; Syed Zia-ul-Hassan Kazmi's case 1998 SCMR 60; Tanveer-ur-Rehman's case PLD 2011 SC 676; Muhammad Azam Chattha's case 2013 SCMR 120 and Lt. Col. Syed Jawaid Ahmed's case 2013 SCMR 1707 rel.

Abdul Samad Khan for Petitioner.

Abdul Latif Yousafzai, Advocate-General.

Syed Hamad Ali Shah for Respondents Nos. 2 and 3.

Date of hearing: 20th November, 2014.

2015 P L C (C.S.) 1

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MUHAMMAD ANWAR NASIM

Versus

REGISTRAR, LAHORE HIGH COURT and others

Service Appeal No.8 of 2001, decided on 9th May, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.6(3)---First Authorized officer dispensed with holding of regular inquiry and recommended discharge of show cause notice---Disagreement of the Sub-Committee with the findings of the Authorized officer---Effect---De novo inquiry after exoneration by the first Authorized officer---Scope---Contentions of the appellant were that after having been exonerated by the first authorized officer de novo inquiry could not be initiated on similar charges; that the charges levelled against him were groundless and not substantiated from any record and that no malice or ill will was proved on the record in entertaining and passing orders in cases mentioned in the charge sheet---Validity---First Authorized officer had recommended for discharge of the show-cause notice but in agreeing or disagreeing with the recommendations of the authorized officer being the prerogative of the competent authority, there was no bar in the way of ordering de novo inquiry and no illegality was found in this regard---Conduct of the appellant besides being perfunctory was also tainted with mala fide and showed some extraneous consideration on his part---Appellant had failed to justify the urgency in deciding the pre-arrest bail in one day ignoring the fact that the said bail petition along with connected three others had already been entrusted to another Additional Sessions Judge, on administrative grounds---No record was produced in defence to show that deciding of bail matters in such expeditious manner had been the routine of the appellant---Authorized officer had thus rightly recommended imposition of major penalty of compulsory retirement from service on the appellant---Appellant regarding second charge of passing judgments in civil appeals against the mandatory provision of law had himself admitted that in the said judgments he had departed from certain principles of law and that the aggrieved party had the remedy to challenge his judgments before the higher forum which could hardly be considered a valid excuse by a judicial officer and when ignorance of law was not an excuse in the matter of a layman how it could be taken as a valid ground in the matter of a judicial ground like the present appellant, who was vested with the power to exercise the appellate jurisdiction---Tribunal declined to differ with the findings of the authorized officer that the appellant proved himself to be guilty of misconduct in handling judicial matters, involving valuable rights of the parties to the litigation---Appeal was dismissed in circumstances.

Petitioner in person.

Nayyar Iqbal Ghouri along with Dawood Ahmed, Assistant Registrar (Confidential), Lahore High Court for Respondent.

Date of hearing: 9th May, 2014.

2015 P L C (C.S.) 166

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

ARSHAD ALI TABSSUM

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others

Service Appeal No.3 of 2009, heard on 30th May, 2014.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Punjab Civil Servants Act (VIII of 1974), S.10---Termination of service during probation period---Judge-cum-Judicial Magistrate---Charge of aggressive attitude and inappropriate behaviour---Authority conducted an inquiry on a complaint, wherein appellant partially accepted the allegations---Complainant submitted his affidavit wherein he affirmed on oath the contents of the complaint, however, subsequently he forgave the appellant unconditionally---Appellant had not countered the statement as well as affidavit of complainant---Effect---Contention of the appellant was that once the Authority had decided to initiate disciplinary proceedings, the Authority had no legal right to alter the already adopted procedure, (termination from service), therefore, the act of the Authority in adopting another option without concluding the inquiry proceedings was unwarranted especially when the termination constituted a stigma---Plea of the authority was that the appellant had made confession of the incident and under S.10 of the Punjab Civil Servants Act, 1974 the Authority had powers to pass termination order of a probationer without assigning any reason---Validity---Contention was devoid of any legal force in circumstances of the present case---Authority had first decided to hold the inquiry and that inquiry reached its logical conclusion when it was brought to the notice of the Inquiry Officer that parties had entered into a compromise and this fact had neither been challenged nor objected to by the appellant at any stage of the proceedings---Appellant despite recording of examination-in-chief in his presence had failed to avail the opportunity to cross-examine the complainant, which amounted to accepting the allegations narrated in the statement and affidavit submitted by the complainant---Appellant in his written reply although denied the allegations, but affidavit and statement of complainant recorded by the Inquiry Officer not countered by the appellant were sufficient to conclude that an un-acceptable act had taken place and the same were sufficient to disqualify the appellant to retain the office of the judicial officer lest it would cause indiscipline in the entire ranks of the subordinate judiciary---Authority after receiving the report along with all the documents from the Inquiry Officer instead of removing the appellant with a stigma, preferred to use the power vested in it under S.10 of the Punjab Civil Servants Act, 1974, which was most appropriate way to deal with the situation emerged due to the rash, negligent and abominable act of the appellant---Appellant's act irrespective of the circumstances existing at the time of incident, was unbecoming of a judicial officer, rather an embarrassment to the entire judiciary---Authority had exercised the powers vested in consonance with the law as envisaged in Punjab Civil Servants Act, 1974 and no illegality or irregularity had been committed---Appeal was dismissed in circumstances.

(b) Administration of justice---

----Judicial system to dispense justice---Requirements---For judicial system to dispense justice in a befitting manner, it was essential to select persons having, inter alia, excellent character, superior caliber, mellow disposition, ability to control temper, meritorious record etc.---Judicial officers should not be impulsive, spiteful, vindictive, capricious, corrupt, covetous, greedy etc.

Syed Ijaz Qutab for Appellant.

Mian Manzoor Hussain and Dawood Ahmad, Assistant Registrar (Confidential-I) for Respondents.

Date of hearing: 30th May, 2014.

2015 P L C (C.S.) 173

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MUHAMMAD ASAD ULLAH SIDDIQUI

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeals Nos.22 and 23 of 2005, heard on 27th June, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Instructions about Confidential Reports, Inst. Nos.23, 30 & 45---Vague adverse remarks resulting into serious prejudice to the officer---Expunction of---Countersigning Officer disagreed with the assessment of the Reporting Officer regarding first ACR without assigning any reason---Reporting Officer inconsistently assessed the appellant in the second ACR---Cuttings and alterations were made by the Reporting Officer in the ACR---Effect---Contentions of the appellant were that the Reporting Officer and the Countersigning Officer were influenced by the controversy between the appellant and his colleague and the adverse remarks were recorded without any plausible material or reason---Validity---Cuttings and alterations made the veracity of assessment highly doubtful---Reporting Officer's assessment (reported to be corrupt) in Part-VI was inconsistent with the assessment made in Part-V, wherein the appellant had been found useful for further retention in service as well as in Part-VI the appellant was found fit for promotion in his turn---Adverse remarks with regard to integrity of the appellant clearly manifested that the same were not based on reasons enumerated in Instruction No.23---Expression 'reporting officer should be in a position to justify his views, if called upon, to do so' used in Instruction No.30 of the Instructions about confidential reports was of great importance---Adverse remarks should have been based on some tangible material, but the Reporting Officer had not been able to supplement the remarks with sufficient material---Adverse remarks in the ACRs about integrity of the appellant recorded by the Reporting Officer and the Countersigning Officer being unfounded, and without reasons suffered from vagueness and had resulted into serious prejudice to the appellant---Adverse remarks recorded in the ACRs of the appellant for both the periods were expunged and appeals were allowed in circumstances.

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 distinguished.

Noor Elahi's case 1997 SCMR 1749 rel.

Appellant in person.

Nayyar Iqbal Ghori and Muhammad Nabeel Khan Dahir along with Muhammad Shafique, Assistant Registrar (Confidential-II), for Respondent.

Date of hearing: 27th June, 2014.

2015 P L C (C.S.) 191

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

NUSRAT ALI SIDDIQUI

Versus

REGISTRAR

Service Appeal No.17 of 2007, decided on 11th July, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks pertaining to the period from 1-1-2006 to 13-5-2006 and 5-6-2006 to 11-11-2006---Expunction of---Adverse remarks were recorded without reference to any incident or relying upon any complaint from litigant public or the Bar---Effect---Reputation of "bad" or "good" of a judicial officer in the Bar---Relevance and scope---Countersigning Officer had not differed with the opinion of the Reporting Officer qua work and conduct of the appellant---Effect---Contention of the appellant was that as the adverse remarks were not based on cogent material and justification, therefore, the same were liable to be expunged---Plea of the respondent was that the countersigning Officer was not required to disclose his source of information to justify the adverse remarks recorded in the ACRs of the appellant, particularly when no malice or ill will or biased attitude had been attributed against the Countersigning Officer---Validity---Countersigning Officer had not differed with the opinion of the Reporting Officers with regard to their assessment made in Parts-II to VI of both the ACRs and in absence of any difference of opinion it was presumed that he had agreed with the assessment made by the Reporting Officers---When a Judicial Officer was adjudged "Honest", "Fit for promotion in his turn", "Useful for further retention in service" and "equals the majority of officer" by the Reporting Officer as well as the Countersigning Officer his reputation "bad" or "good" in the Bar could not be used as a barometer for recording adverse remarks in ACRs; if such remarks on the basis of reputation in Bar, were to be recorded, then it was essential that these should be backed by solid proof and specific instances, as in that time and age, when all sorts of pressures were known to be exerted upon the judicial officers by members of the bars, it had become incumbent upon the Reporting Officer and the Countersigning Officer to record any adverse remarks based on the feed back of the members of the bar with extreme caution, based on solid and concrete proof and not merely on hearsay---Reporting Officer was considered as the best judge for assessment of the work and conduct of his subordinate Judicial Officer, therefore, the Countersigning Officer's remarks that the appellant did not have a good reputation in the Bar were not justified by any cogent reason---Adverse remarks could not be recorded in absence of any counseling---Tribunal directed to expunge the adverse remarks recorded against the appellant---Appeal was accepted in circumstances.

Sh. Abdul Rashid v. Reporting Officer and others 1996 PLC (C.S.) 930; Ch. Shabbir Hussain and others v. Registrar, Lahore High Court and others PLD 2004 SC 191 and Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court, Lahore 2011 SCMR 1381 ref.

Mrs. Sajida Tahir v. Chairman, Government Board, National Institute of Modern Languages, Islamabad and 2 others 1995 PLC (C.S.) 1204 and Mehmood Aslam v. The Director Education, Schools, and others 1991 PLC (C.S.) 1061 rel.

Muhammad Umar Riaz for Appellant.

Mian Manzoor Hussain with Shafique Ahmed, Assistant Registrar (Confidential), Lahore High Court for Respondent.

Date of hearing: 11th July, 2014.

2015 P L C (C.S.) 239

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Sheikh ALLAH BAKHSH

Versus

THE REGISTRAR, LAHORE HIGH COURT

Service Appeal No.10 of 2005, decided on 20th June, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks pertaining to the period from 1-1-2002 to 13-5-2002 and 10-7-2004 to 31-12-2004---Expunction of---Violation of Instructions---Assessment of Reporting Officer and Countersigning Officer---Requirement---Allegation of mala fide and ill will against the Reporting Officer---Contentions of the appellant were that adverse remarks recorded by the Countersigning Officer were based on misconception and that prior to recording the adverse remarks the appellant was neither warned nor counseled qua his work, conduct and integrity---Validity---Appellant earned good remarks till the year 2000 and he was also reported to be an 'honest' judicial officer---Held, that it was astonishing as to how the appellant became dishonest, corrupt and incompetent within next few months, particularly when there was no complaint against him---Reporting Officer had assessed the work and conduct of the appellant in a way, which was against the instructions on the subject, whereby the Reporting Officer and Countersigning Officer should be as objective as possible---Reporting Officer right from Part II to Part IV, which required assessment of the officer reported upon qua his 'Personal Qualities', 'Attitude' and 'Proficiency in Job' had placed the appellant in column 'c', which showed that assessment of the Reporting Officer was 'subjective' and not 'objective', therefore, way adopted in recording ACR was not considered proper and close to the spirit of recording ACRs of subordinates---Reporting Officer was biased at the time of recording ACR of the appellant and possibility of his mala fide and ill will could not be ruled out---Tribunal expunged the adverse remarks in the ACR for the period from 1-1-2002 to 13-5-2002---Adverse remarks recorded by the countersigning officer in ACR for the period from 10-7-2004 to 31-12-2004 were the result of some misconception, therefore, the same were expunged---Appeal was allowed in circumstances.

Mrs. Sajida Tahir v. Chairman, Government Board, National Institute of Modern Languages, Islamabad and 2 others 1995 PLC (C.S.) 1204; Mehmood Aslam v. The Director Education, Schools and others 1991 PLC (C.S.) 1061 and Jamshed Iqbal v. Agricultural Engineering, D.G. Khan and 2 others 1990 PLC (C.S.) 808 rel.

Umair Khan Niazi for Appellant.

Nayyar Iqbal Ghauri along with Muhammad Shafique, Assistant Registrar (Confidential), Lahore High Court for Respondent.

Date of hearing: 20th June, 2014.

2015 P L C (C.S.) 275

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MUHAMMAD YAHYA KULACHI

Versus

REGISTRAR

Service Appeal No.13 of 2006, heard on 17th October, 2014.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 3(c)(iii)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial Officer---Annual Confidential Report---Adverse remarks---Dismissal from service---Regular inquiry, dispensing with---Scope---Persistent reputation of being corrupt---Appellant, a Civil Judge, was dismissed from service on the basis of adverse remarks recorded in the ACRs---Validity---Adverse remarks recorded in three ACRs were challenged by the appellant through representations which were dismissed by the Authority---Appeals against the adverse marks were dismissed by Service Tribunal---Service Tribunal could not again examine the legality of the adverse remarks recorded in the said three ACRs as same had attained finality---Allegations levelled against the appellant were supported by documents---No regular inquiry was required before initiating penal action against the appellant---Authority had rightly dispensed with conducting of regular inquiry in the matter of appellant's dismissal from service---Appellant had earned three consecutive adverse ACRs touching his integrity---Appellant was found guilty of having persistent reputation of being corrupt and was liable for imposition of major penalty---Appellant was a judicial officer and his earning three consecutive adverse ACRs was a valid ground to hold him guilty of having reputation of being corrupt---Such conduct of appellant was unbecoming of a judicial officer---Authority had rightly imposed major penalty of dismissal from service upon the appellant---Impugned order did not suffer from any infirmity or jurisdictional defect---Appeal was dismissed in circumstances.

Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 and Syed Aqleem Abbasi Jaffari v. Province of Punjab through Secretary Irrigation Department and others 2005 SCMR 1901 rel.

(b) Words and phrases---

----"Corruption"---Meaning---"Corruption" could not be limited to the act of "making money" alone by taking illegal gratification as there were so many other acts/actions which would come within the definition of "corruption"---Desire of accumulating more wealth was borne out of lust which was a state of mind irrespective of a person being "rich" or "poor".

Hafiz Tariq Nasim for Petitioner.

Zubda-tul-Husasain for Respondent.

Date of hearing: 17th October, 2014.

2015 P L C (C.S.) 307

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman and Justice Muhammad Ameer Bhatti, Member

MUHAMMAD INAYAT GONDAL

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.11 of 2012, decided on 22nd December, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----Ss. 5 & 6---Civil Procedure Code (V of 1908), O.I, R.10---Appeal to the Tribunal---Impleadment of complainant as necessary party to appeal under S.5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991---Applicant sought impleadment as party to an appeal before the Punjab Subordinate Judiciary Service Tribunal on the ground that disciplinary proceedings which culminated into the dismissal from service of the appellant, were initiated on the complaint of the applicant, therefore, he was a necessary party to the said appeal---Held, that disciplinary proceedings were initiated against the appellant on the applicant's complaint, and the applicant was also examined as a witness in the said proceedings, therefore, in the interest of justice, the applicant should be impleaded as a party to the appeal under S.5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991---Application under O.I, R.10, C.P.C. was allowed, in circumstances.

Appellant in Person.

Zubda-tul-Hussain for Respondent.

2015 P L C (C.S.) 337

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Syed FAISAL RAZA GILLANI

Versus

LAHORE HIGH COURT, LAHORE through Registrar and others

Service Appeal No.5 of 2012, heard on 3rd October, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Punjab Civil Servants Act (VIII of 1974), S.21---Constitution of Pakistan, Art.10-A---Resignation, withdrawal of---Appellant, working as Additional District and Sessions Judge, submitted his resignation--Pending the resignation, two days after, appellant sought permission to resume duty which showed his intention to withdraw the resignation by conduct---Authority, after 4 days of filing said application, issued notification, whereby resignation of appellant was accepted---Validity---Resignation, could be withdrawn or recalled before its acceptance by the competent Authority---No explanation was on record as to why the application of appellant for withdrawal of resignation was withheld and not considered before acceptance of resignation---Authority had shown undue haste in acceptance of resignation, without taking into consideration appellant's pending request for withdrawal of resignation---Appellant was denied Fundamental Right of due process as guaranteed under Art.10-A of the Constitution---Impugned notification, and order whereby departmental appeal of appellant was dismissed, being illegal, were declared inoperative, and set aside---Appellant was reinstated in service, with all back benefits---Intervening period from date of issuance of impugned notification, would be treated as kind of leave due.

Reichel v. Biship of Oxford (LVI) LTR (N.S.) 539; Registrar. Lahore High Court Lahore v. Syed Javed Akbar and another 2007 SCMR 792 and Muhammad Khan v. Pakistan through Secretary, Ministry of Interior, Karachi PLD 1958 (W.P.) Kar. 75 rel.

Hafiz Tariq Naseem for Appellant.

Syed Zubda tul Hussain along with Muhammad Akram, Deputy Registrar (Confidential) for Respondents.

Date of hearing: 3rd October, 2014.

2015 P L C (C.S.) 342

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MAZHAR ILAHI

Versus

LAHORE HIGH COURT through Registrar

Service Appeal No.3 of 2005, heard on 16th May, 2014.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Constitution of Pakistan, Art.4---General Clause Act (X of 1897), S.24-A---Termination of service during probation period without assigning any reason---Civil Judge-cum-Judicial Magistrate---Natural justice, principles of---Personal hearing---Scope---"No reason clause" of appointment letter---Scope---Adverse remarks were recorded in the appellant's First Annual Confidential Report, which were treated advisory in nature by the Administrative Committee---Authority before passing the termination order obtained a report from the Reporting Officer regarding the work and conduct of the appellant and two other probationers, which did not disclose any adverse material against the appellant---Effect---Contention of the appellant was that no material was available on the record, which had persuaded the Authority to pass the termination order---Plea of the Authority was that conditions of appointment, agreed to by the appellant, empowered the Authority to dispense with recording of any reason while terminating the services during the probationary period---Validity---Plea of the Authority that clause of the appointment order empowered the Authority to terminate the appellant without recording any reason was not tenable---Inclusion of "no reason clause" in the appointment letter did not mean that the authority had been entrusted with unfettered authority to terminate any judicial officer without any material on the record---Rationale behind the said clause was that on the basis of the material, the authority might pass the said order without assigning any reason, but if any of the affectee challenged that order, then it must be proved by producing the relevant record---Every employee had a Fundamental Right to be treated in accordance with law---Authority was under obligation to dispense justice fairly, justly and reasonably and to at least provide an opportunity of hearing before taking the extreme step of termination so that no one could be condemned unheard---Authority without any reason and legal justification had issued the termination order and failed to substantiate the said order---Termination order was set aside---Appeal was allowed in circumstances.

Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605 ref.

F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P and 5 others 1994 SCMR 722 and Ch. Shabbir Hussain and others v. Registrar, Lahore High Court Lahore and others PLD 2004 SC 191 rel.

(b) Constitution of Pakistan----

----Art. 189---Decision of Supreme Court---Binding nature of---Scope---Decision given by the Supreme Court has binding force not only on the courts of the country, but also on all the organs, which were duty bound to follow it.

Hafiz Tariq Naseem and Safdar Shaheen Pirzada for Appellant.

Nayyar Iqbal Ghouri, Dawood Ahmed, Assistant Registrar (Confidential-I) for Respondents.

Date of hearing: 16th May, 2014.

2015 P L C (C.S.) 389

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

KALSOOM MUSTAFA

Versus

REGISTRAR, LAHORE HIGH COURT

Service Appeal No.7 of 2013, heard on 24th October, 2014.

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

----S. 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Termination of service---Judicial officer---Special reports with regard to the integrity of Civil Judge---Departmental appeal, filing of---Mode---Probation period---Performance being below average---Integrity and credibility---Scope---Service of appellant was terminated on the basis of special reports that she did not enjoy good reputation---Contention of appellant was that she submitted her departmental appeal through ordinary mail but Authority had not acknowledged receipt of the same with mala fide intention; that there was no specific mode for filing departmental appeal and that special reports contained serious allegations which had stigmatized the appellant and without conducting regular inquiry services of the appellant could not be terminated---Validity---Nothing was on record to show that departmental appeal was sent by the appellant through ordinary mail and same had been received in the office of Authority---Appointment of the appellant had to be considered with effect from the date she assumed charge of the post---Appellant assumed charge of the post on 17-11-2008 and remained on probation for a period of four years as per condition No.4 of the appointment notification---Probation period of the appellant had to expire on 16-11-2012 but prior to that her services were terminated on 15-11-2012---Appellant had not attained the status of a confirmed/regular employee and her services could be terminated without notice and without assigning any reason---No notice was required to be issued to the appellant during probation period before issuing impugned notification---Authority had rightly terminated services of the appellant and had not committed any illegality while issuing the impugned notification---Service of the appellant remained under clouds right from her induction---Performance of the appellant was below average who cleared departmental examination in four attempts---Integrity of the appellant was also questioned in two ACRs and her conduct was not found satisfactory---Appellant did not enjoy good reputation and she was involved in malpractices---Impugned notification was a termination simpliciter and appellant had not been stigmatized in any manner whatsoever---Nothing was on record to suggest any mala fide or colourable exercise of powers by the Authority in terminating services of the appellant---Sufficient reasons existed to pass termination order against the appellant---Appeal was dismissed in circumstances.

Qaiser Masud v. Secretary Law and Parliamentary Affairs, Government of Punjab, Lahore and another 2011 SCMR 1181; The Deputy Registrar, Cooperative Societies, Peshawar Division and another v. Farman Ali 1991 SCMR 400; Director General Rangers Pakistan (Sindh) Karachi and another v. Abdul Rashid 2000 SCMR 643 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 ref.

Qaiser Masud v. Secretary Law and Parliamentary Affairs, Government of Punjab, Lahore and another 2011 SCMR 1181; The Deputy Registrar, Cooperative Societies, Peshawar Division and another v. Farman Ali 1991 SCMR 400; Director General Rangers Pakistan (Sindh) Karachi and another v. Abdul Rashid 2000 SCMR 643 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 distinnguished.

Hafiz Tariq Nasim for Petitioner.

Abdul Shakoor Chaudhry along with Zahoor Ahmed, Assistant Confidential-I Branch, Lahore High Court for Respondent.

Date of hearing: 24th October, 2014.

2015 P L C (C.S.) 415

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

ASMATULLAH KHAN NIAZI

Versus

REGISTRAR

Service Appeal No.13 of 2013, heard on 17th October, 2014.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Annual Confidential Report---Adverse remarks---Pro forma promotion---Performance being below average---Appeal---Limitation---Back benefits---Pro forma promotion of the appellant was declined by the Authority on the ground that he earned adverse remarks in his ACRs---Validity---Appellant filed representation for grant of pro forma promotion as Additional District and Sessions Judge on 7-9-2006 which was declined by the Authority on 10-6-2013---Decision of the Authority was conveyed to the appellant on 11-6-2013 and he filed Service Appeal within 30 days from the date of decision of his representation---Civil servant had choice either to file appeal immediately on the expiry of 90 days from the date of filing of departmental appeal or he could have waited for the decision of same and file Service Appeal within 30 days thereof---Appellant waited for decision of his representation for seven years and when his representation was declined he filed the present appeal within 30 days---Present appeal was within time---Appellant earned adverse remarks in his three ACRs but same were treated as advisory in nature in his representation---Representation of the appellant was rejected on the ground that his performance was found "below average"---Nothing remained adverse against the appellant barring his promotion as Additional District and Sessions Judge---Appellant could not be deprived of his right of promotion from the date when he became eligible for the same---Rejection of representation for pro forma promotion was not justified---Authority was directed to grant pro forma promotion to the appellant as Additional District and Sessions Judge from the date when his immediate junior was promoted with all the consequential back benefits---Appeal was accepted in circumstances.

Muhammad Yaqoob v. District Police Officer, District Sahiwal and 2 others 2006 SCMR 310 distinguished.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 rel.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Appeal---Limitation---Civil servant had choice either to file appeal immediately on the expiry of 90 days from the date of filing of departmental appeal or he could have waited for the decision of same and file Service Appeal within 30 days thereof.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 rel.

Manzoor Hussain Dogar and Khalid Mian for Appellant.

Ashfaq Qayyum Cheema for Respondent.

Date of hearing: 17th October, 2014.

2015 P L C (C.S.) 531

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Rao MUHAMMAD AKBAR

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeal No.31 of 2005, decided on 18th July, 2014.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3(c), 4(b)(v) & 6(3)(c)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Adverse remarks---Dismissal from service---Appellant, a Civil Judge-cum-Judicial Magistrate, earned adverse remarks in Annual Confidential Report touching his integrity---Authority while dispensing with the regular inquiry, issued show-cause notice to the appellant and after considering his reply as unsatisfactory, after providing him an opportunity of personal hearing, dismissed him from service vide impugned notification---Validity---Reporting Officer and Countersigning Officer of Annual Confidential Report had evaluated appellant as corrupt and dishonest officer---Authority, before passing impugned order against the appellant, had duly complied with the relevant provisions of law; and the principle of fair and due process of law for safe administration of justice---Appellant could not be said to have been condemned unheard, or that he was deprived of his right to explain his position---Appellant had not raised any plea of bias, prejudice and malice qua the Authority---Evaluation by the Authority, was based on credible material, information and personal observation, free of any bias---Case of appellant having been fairly and equitably dealt with by the Authority, did not warrant any interference by the Tribunal, in circumstances.

Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191 and Ghulam Mustafa Shehzad v. Lahore High Court through Registrar and another 2007 SCMR 1786 ref.

Tallat Farooq Sheikh for Appellant.

Nayyar Iqbal Ghoursi with Muhammad Shafique Assistant Registrar (Confidential), Lahore High Court, Lahore for Respondent.

Date of hearing: 18th July, 2014.

2015 P L C (C.S.) 659

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

NUSRAT ALI SIDDIQUI

versus

REGISTRAR

Service Appeal No.18 of 2007, decided on 11th July, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks pertaining to the period from 1-1-2005 to 1-6-2005---Expunction of---Previous ACR recorded by the same Reporting Officer did not contain any adverse remarks---Adverse remarks were recorded on 11-10-2006 i.e. after more than one year and communicated to the appellant in the year 2007---Entries in Part-III and Part-VI of the ACR of the appellant were changed by the Reporting Officer---Effect---Contentions of the appellant was that competency or integrity could not be imported over night; that the adverse remarks were not supported by any cogent material, rather were the result of biased attitude of the Reporting Officer---Validity---Held, question was as to how an officer who was adjudged 'Honest' in previous ACR had turned to be 'Corrupt' within few months without there being any complaint against him from any corner and one might not turn from "Honest" to :Corrupt" overnight, rather such a conduct developed with the passage of time---Appellant's previous and subsequent work and conduct being upto the mark, his ACR in question, which was recorded after more than one year cast a serious doubt qua its correctness---In Part VI(a) Overall Grading the appellant had been adjudged as "Equals the majority of officers (Average) and a judicial officer who is adjudged as 'Equal the majority of officers' could not be treated as 'not yet fit for promotion', 'reported to be corrupt' and 'not useful for further retention in service'---Such remarks, if were allowed to sustain in the ACR in question majority of the judicial officers were bound to be declared "Reported to be Corrupt"---Adverse remarks recorded by the Reporting Officer being inconsistent with his assessment made in rest of the ACR were expunged by the Tribunal---Appeal was allowed in circumstances.

Federation of Pakistan through Secretary, Islamabad and another v. Zakaria Khan Babar 1995 SCMR 1036; Registrar, Lahore High Court, Lahore v. Muhammad Afzal Khan, Civil Judge Sahiwal and another 2007 SCMR 1251; Akbar Ali v. Deputy Game Warden, Multan/Bahawalpur, Civil Divisions, Bahawalpur 1992 PLC (C.S.) 566 and Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court, Lahore 2011 SCMR 1381 ref.

Federation of Pakistan through Secretary, Islamabad and another v. Zakaria Khan Babar 1995 SCMR 1036 rel.

Muhammad Umar Riaz for Appellant.

Mian Manzoor Hussain along with Shafique Ahmed, Assistant Registrar (Confidential), Lahore High Court for Respondent.

Date of hearing: 11th July, 2014.

2015 P L C (C.S.) 678

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

MAZHAR GILANI

versus

REGISTRAR LAHORE HIGH COURT, LAHORE and another

Service Appeal No.6 of 2009, heard on 4th July, 2014.

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

----S. 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5--- Termination of service--- Serious allegation of corruption---Authority dispensed with the regular inquiry---Appellant had worked under six reporting officers and out of whom only one had recorded adverse remarks---Appellant's services were terminated during his period of probation without conducting inquiry on the basis of allegation of corruption without any concrete evidence---Appellant alleged mala fide and personal grudge of the reporting officer---Authority had given preference to the adverse remarks recorded by one reporting officer over the reports of the other five reporting officers without any cogent and concrete evidence---Validity---Opinion of one reporting officer should not have been given preference and superior weightage over the other five reporting officers, who had recorded the appellant having unblemished service record and the preference given to one of the reporting officer without holding any detailed inquiry was unjustified---Drawing of definite opinion of appellant "as being corrupt by instinct" could only be determined on the basis of concrete evidence and examples---If a person had any "good" or "bad" habit or trait by "instinct" then it was very difficult for the said person to hide the same and it could not have been possible for the appellant to be not exposed to the other five reporting officers---Allegation of "being corrupt by instinct" was found to be vague, sketchy, inconsistent and tainted with some mala fide and personal grudge, as the observation of one Reporting Officer in the absence of any proof could not be given precedence over the remaining unblemished record of the appellant---Punjab Subordinate Judicial Service Tribunal accepted the appeal in circumstances.

Hafiz Tariq Naseem for Appellant.

Zubda tul Hussain and Muhammad Shafique, Assistant Registrar (Confidential) for Respondents.

Date of hearing: 4th July, 2014.

JUDGMENNT

MUHAMMAD AMEER BHATTI, J/Member.--- This appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has been filed against the termination order dated 16-2-2004 against which the representation filed by the appellant was also rejected vide notification dated 15-7-2009 hence this appeal.

1. The brief facts necessary for just decision of the case are that appellant was appointed as Civil Judge vide notification dated 13-11-2000 on probation and vide notification dated 25-11-2000, he was posted as Civil Judge Cum Judicial Magistrate at Ali Pur District Muzaffar Garh. During his service, he passed the departmental examination and on the special report submitted by the Reporting Officer, vide notification dated 6-1-2004, the powers of Civil Judge 2nd Class were conferred upon the appellant. However, on 16-2-2004, the following order was passed terminating his services:---

"The Chief Justice and Judges are pleased to terminate the services of Mr. Mazhar Gilani, Civil Judge-Cum Judicial Magistrate, Layyah during his extended period of probation, under section 10 of the Punjab Civil Servants Act, 1974, in the public interest, with immediate effect."

1. The contentions of learned counsel for the appellant are that before taking the extreme step of termination it was a legal obligation of the respondents to provide him an opportunity of hearing as it is settled law that no one should be condemned unheard. The termination was based on an adverse report of a Reporting Officer whereas there were six Reporting Officers under whom the appellant had worked and out of them only one Reporting Officer recorded adverse report against him. The termination of service while on probation amounted to a stigma and a result of victimization or a mala fide action on account of personal grudge of the Reporting Officer and representation against it was pending when the impugned termination order was passed. It is further added that the authority did not take into consideration reports of the other Reporting Officers and his otherwise unblemished record. Adds that disregarding the other reports and giving preference to only one report of a Reporting Officer made appellant's case of detailed enquiry, which was not carried out resulting in miscarriage of justice. Reliance is placed on the decision of this Tribunal recorded in Service Appeal No.3 of 2005 dated 16-5-2014 and it is submitted that the case of the appellant is identical and he may also be granted the same benefit extended in that judgment.

2. On the other hand, learned counsel for the respondent submitted that definite opinion had been drawn by the Reporting Officer in his report against which appellant's representation has also been dismissed. It is further submitted that the authority at the time of deciding the matter, had rightly relied upon the adverse remarks recorded by the Reporting Officer, therefore, no illegality has been committed by the authority while exercising power conferred under section 10 of the Punjab Civil Servants Act regarding the probationer, hence order of the authority is in consonance with law and leaves no room for interference by this Tribunal.

3. We have heard the learned counsel for the parties and gone through record of the case.

4. There were six reports available on the record encapsulating the whole judicial service of the appellant consisting of 3 years and 2 months. It is noticed that in all these reports, except one, the appellant was found as honest, suitable for further retention in service, fit for promotion and a hard worker, whereas in one report containing the adverse remarks, all qualifications mentioned above have been found otherwise. Special reports were also summoned from all the Reporting Officers, who stood on their legs and made the same reports of the appellant's unblemished character and record.

5. In such eventuality, to our mind the opinion of one of the six Reporting Officer should not have been given preference and superior weightage. All other Reporting Officers have recorded the appellant having unblemished service record and in this precise situation, preference given to one of the Reporting Officer (without holding any detailed enquiry) is unjustified. The appellant had levelled allegation of mala fide with specific assertions in his representation and grounds of appeal against the Reporting Officers. The representation of the appellant remained pending against the adverse remarks from 2003 to 2005. It is also noticed that the adverse remarks report was submitted by the Reporting Officer in the month of January, 2003 and it was the most appropriate time for the authority to take a decision as to the judicial officer, however by allowing him two years of further service being which time also his Reporting Officers aforesaid him quite contrary to the adverse report of the previous year has created serious doubts as to the worthiness of the adverse report.

6. It is also observed that drawing of definite opinion of appellant "as being corrupt by instinct" can only be determined on the basis of concrete evidence and examples and it is astonishing for us to note that in the presence of other reports where the appellant was declared by the five Reporting Officers to be honest, hardworking and suitable for retention, how the opinion of only one Reporting Officer could prevail to remove the probationer from service. If a person has any "good" or "bad" habit or trait by "instinct" then it is very difficult for the said person to hide the same and it would not have been possible for the appellant to be not exposed to the other five Reporting Officers. Therefore, if the learned Reporting Officer was making such an exceptional allegation against the appellant then he should have supported the same by some material or at least citing any instance to support the same.

2015 P L C (C.S.) 758

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Mian QAMAR UL ISLAM

versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeals Nos.19 of 2005 and 11 of 2007, decided on 17th October, 2014.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(b)(iv)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Appellant was Civil Judge-cum-Judicial Magistrate and a written complaint was moved against him, in which complainant had alleged that appellant had demanded illegal gratification from him for decision of his civil suit in his favour; that complainant refused to pay the same, whereupon, appellant dismissed his suit---Inquiry was held against appellant, and Inquiry Officer, gave his findings to the effect that certain charges had fully been established and stood proved against the appellant---Appellant on the basis of said findings was removed from service---Validity---Judicial Officer was expected to guard his reputation jealously---Capricious, corrupt and greedy Judicial Officer was not acceptable in the judiciary and to the public at large---Reporting Officer had assessed appellant as "below average and a Corrupt Officer" in his ACR---Column of Counseling of ACR, mentioned that on two occasions, appellant was directed to pay more attention to his work, and informed that his reputation was at stake---Reporting Officer, also assessed appellant as "not useful for further retention in service"---All said remarks, were endorsed by the Countersigning Officer---Appellant did not improve himself and failed to guard his integrity---Appellant had a general and persistent reputation of being a corrupt Judicial Officer, even before lodging complaint against him by the complainant---Appellant had not raised any plea of bias or malice qua the Authority---Evaluation made by Authority was based on credible material, information and personal observation, free of any bias---Authority before passing impugned order against the appellant, had acted in accordance with law, following the principle of fair trial and due process for safe administration of justice and it could not be said that appellant was condemned unheard, or that he was deprived of his right to explain his position---Charge of corruption, having sufficiently been proved against appellant, he was rightly removed from service, in circumstances.

Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191 ref.

Syed Ijaz Qutab for Appellant.

Mian Manzoor Hussain and A.H. Masud for Respondents.

Date of hearing: 17th October, 2014.

2015 P L C (C.S.) 868

[Punjab Subordinate Judiciary Service Tribunal]

Before Justice Muhammad Farrukh Irfan Khan, Chairman, Justices Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

IKRAM-UL-HAQ CHAUDHRY

versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.5 of 2010, heard on 4th July, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks---Expunction of---Mala fide of reporting officer---Non-availability of any tangible material for passing adverse remarks---Effect---Appellant worked under nine reporting officers before the passing of adverse remarks, but he never earned any such remarks, which fact was also admitted by the authorities---Contention of the appellant was that the adverse remarks were passed against him owing to bias and mala fide of the reporting officer by holding the appellant responsible for the strike observed by the Bar Association against the said reporting officer---Validity---Reporting officer had recorded adverse remarks against the appellant to take revenge of his defamation caused by the Members of Bar Association---Nothing was on record that the appellant was ever called for or anything written was sent to him for counseling---No material was available before the reporting officer at the time of passing adverse remarks---Reply given by the department was submitted under the signatures of the same reporting officer, who did not bother to answer the allegation levelled against him by the appellant and his evasive reply was amounted to admission---Tribunal expunged the adverse remarks and accepted the appeal accordingly.

Hafiz Tariq Nasim for Appellant.

Ashfaq Qayyum Cheema and Muhammad Shafique, Assistant Registrar (Confidential-II) for Respondents.

Date of hearing: 4th July, 2014.

2015 P L C (C.S.) 1278

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman, Shahid Waheed and Amin-ud-Din Khan, Members

Ch. SHABBIR HUSSAIN

versus

LAHORE HIGH COURT, LAHORE through Registrar and 144 others

S.A.No.62 of 2002, heard on 27th March, 2015.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Notification No.SOR-II (S&GAD)2-59/78 dated 19-4-2007---Judicial officer---Minor penalty---Proforma promotion---Withholding of promotion due to pendency of disciplinary proceedings---Scope---Appellant (since retired) was ignored for promotion due to pendency of disciplinary proceedings against him---Contention of appellant was that pendency of departmental inquiry or minor penalty was not hurdle in the way of his promotion---Validity---When a judicial officer was found guilty in discharge of his duties, imposition of penalty was necessary to improve his conduct and to enforce discipline and ensure purity in the administration---Judicial officer could not be rewarded by promotion as a matter of course even if penalty was minor in nature---Civil servant had no vested right to promotion and he had only right to be considered for promotion---Promotion was neither a vested right nor it could be claimed with retrospective effect---Disciplinary proceedings were hurdle in the grant of promotion to the appellant---Promotion could only be withheld on reasonable and relevant grounds which might include pendency of disciplinary proceedings or a criminal prosecution against the civil servant---Promotion of appellant, in the present case, was rightly withheld due to pendency of disciplinary proceedings until the same were over---Proforma promotion could be granted in a case where an officer whose junior was promoted on regular basis but he was deferred due to the reason that he was under suspension or facing a departmental inquiry provided eventually he was exonerated of the charge---Appellant was not refused proforma promotion for no fault of his own but the hurdle in his way was permanent on account of imposition of minor penalty---Appellant had not filed any departmental appeal or representation during his service and representation filed after retirement could not be considered for proforma promotion---Appellant was considered for promotion along with his batch-mates but he was deferred due to pendency of disciplinary proceedings---Civil servant should have an unblemished record to qualify for promotion which was minimum requirement---Judicial officer found guilty of misconduct could not be placed at par with the other judicial officer and his case had to be treated differently---Authority could not reward civil servant with promotion retrospectively from a date when his conduct before the dated he was penalized---Denial of promotion was not a penalty but a necessary consequence of conduct of civil servant---When a judicial officer was held guilty and penalized and was not promoted at least till the date on which he was penalized, it could not be said to have been subjected to further penalty on that account---While considering for promotion whole record had to be taken into consideration and if selection board had taken the penalties into consideration and promotion had been denied then such denial was neither illegal nor unjustified---Appeal was dismissed in circumstances.

Ch. Muhammad Saleem v Government of the Punjab through Chief Secretary, SGA&I Department, Lahore and 5 others 1994 SCMR 517 rel.

(b) Civil service---

----Promotion----Scope---Whenever there was a change of grade or post for the better then there was an element of selection involved which was considered for promotion and it was not earned automatically but under an order of the competent authority to be passed after consideration of comparative suitability and the entitlement of those incumbents.

Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Government of the Punjab through Secretary Services, Punjab Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696 and Abid Hussain Sherazi v. Secretary M/O Industries and Production Government of Pakistan, Islamabad 2005 SCMR 1742 rel.

(c) Civil service---

----Proforma promotion---Scope---Retired civil servant---Proforma promotion---Meaning---Proforma promotion of a retired civil servant was allowed in a case where a senior civil servant was deferred for promotion due to no fault of his own and his junior was promoted and subsequently senior civil servant was also promoted during his service but could not get proforma promotion during service and retired---Grant of proforma promotion was based on the concept of presumption that except the temporary hurdles such as inquiry or adverse remarks which proved to be frivolous later on, the civil servant was fit for promotion on a particular date in the past.

Appellant in person.

Nayyar Iqbal Ghouri for Respondents.

Date of hearing: 27th March, 2015.

2015 P L C (C.S.) 22

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

SHAHAB-UD-DIN and 9 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others

Constitutional Petition No.255 of 2014, decided on 24th July, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Advertisement for the posts of Pharmacists/Drug Analysts and Drug Inspectors in the newspaper---Failure of petitioners to apply for the said posts due to late announcement of their result---Policy matters---Scope---Petitioners could not apply for the posts of Pharmacists/Drug Analysts and Drug Inspectors as their result was not declared till the date fixed for receipt of applications---Contention of petitioners was that fixing a date for submission of applications had no statutory backing and date for receipt of applications for the said posts should be extended---Validity---Advertisement in question was published on 9-3-2014 and closing date for receipt of applications was 7-4-2014---Application forms were to be obtained by depositing fee through challan in the bank---Petitioners did not deposit the fee nor submitted applications to substantiate their bona fide claim for extension of date---Petitioners had not submitted applications applying for the said posts---Inaction of petitioners due to late announcement of their result was of no avail in the present case---Petitioners could have appended their qualification subsequently before the test/interview took place but they had not applied for the said posts within prescribed period---Respondents-department had prerogative to fix the date for submission of application forms which was policy matters having statutory backing---Constitutional petition was not maintainable---Petitioners had failed to point out any violation of rule or regulation or malice against the respondents-department---Constitutional petition was dismissed in limine.

Habibur Rehman v. Government of Pakistan 1979 SCMR 121 and Dr. Haq Nawaz v. Balochistan Public Service Commission through Chairman 1996 CLC 58 rel.

Tariq Mehmood Butt for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 2014.

2015 P L C (C.S.) 253

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

MUHAMMAD YOUSAF

Versus

DIRECTOR, CULTURE BALOCHISTAN 3 others

Constitutional Petitions Nos.818 and 822 of 2011, decided on 24th July, 2014.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 49(2) & (3)---Constitution of Pakistan Art.199---Constitutional petition--- Illegal/irregular appointment--- Lack of prescribed qualification, experience and artistic skill---Effect---Non-existence of names of respondents in the merit list---Contention of the petitioner was that the appointment of respondents had been made by an incompetent Departmental Selection Committee in violation of principles of transparency as well as merit---Validity---Chairman of the Departmental Selection Committee was on leave, therefore, Deputy Director could not advertise the post, convene a meeting or make recommendations for making the appointments---Deputy Director knew that he did not have authority and in the minutes of the meeting and the final merit list of the candidates provided by the official respondents was signed by Deputy Director instead of the Chairman of the Departmental Selection Committee, which was in utter violation of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---Respondents did not have the stipulated qualification had no required two years' experience and did not possess any artistic skill---Non-possessing the stipulated qualification and experience was sufficient to establish the case of the petitioner and the mala fide of the members of the Departmental Selection Committee in the illegal appointments of respondents---Respondents having no demonstrable artistic ability had further eroded their ability, integrity and competence---High Court directed the competent authority to take disciplinary action against the delinquents---Constitutional petition was allowed in circumstances.

Abdul Malik Baloch for Petitioners.

Muhammad Qadir Shah for Private Respondents.

Humayun Tareen, Addl. A.-G. for Official Respondents.

Date of hearing: 2nd June, 2014.

2015 P L C (C.S.) 318

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail , J

ABDUL REHMAN

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others

Review Application No.12 of 2013 in Constitutional Petition No.655 of 2013, decided on 2nd June, 2014.

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 7---Civil Procedure Code (V of 1908), Ss.114, 117 & O.XLVII, R.1---Constitution of Pakistan, Arts.199 & 212---Civil service---Transfer and posting--- Jurisdiction of High Court under Art.199 of the Constitution---Scope---Review of order passed under constitutional jurisdiction---Scope---By virtue of S.117, C.P.C., provisions of the Code of Civil Procedure, 1908, were made applicable to High Court---Power and procedure of review jurisdiction were governed by S.114 and O.XLVII of C.P.C.; and R.1 of O.XLVII, C.P.C. provide the scope of review jurisdiction---Review, was only permissible and maintainable, if conditions stipulated in R.1 of O.XLVII, C.P.C., were fulfilled, and not otherwise---Matter in the present case, related to "transfer and posting" on a particular post---Said transfer and posting was solicited on basis of mutual transfer---Matter of transfer and posting of civil servant being relatable to the terms and conditions of his service, same fell within the exclusive domain of the Service Tribunal; which was competent Authority to consider the validity of transfer order, if the same was issued without lawful authority, and was coram non judice---Constitutional jurisdiction of the High Court, was ousted by virtue of Art.212 of the Constitution---Transfer, posting and promotion of civil servants, were governed by Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009; and its Part II, R.7(1) related to appointments by promotion or transfer---Assignment of 'transfer and posting' was prerogative of the Government only; and civil servant could not be allowed to decide the place of his posting according to his whims and wishes---Constitutional petition was rightly dismissed by High Court, in circumstances---Review was declined.

Peer Muhammad v. Government of Balochistan 2007 SCMR 54; Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Mst. Shagufta Yunus v. Director of Education 1992 PLC (C.S.) 906; Dr. Alif Arif v. Secretary Health, Government of Punjab PLD 1993 Lah. 286; Syed Afzal Ahmed Haidri v. Secretary Defence Production Division, Ministry of Defence, Rawalpindi 1991 SCMR 477; Miss Rukhsana Ijaz v. Secretary Education, Punjab 1997 SCMR 167; Rafique Ahmed Chaudhry v. Ahmed Nawaz Malik 1997 SCMR 170; Rashid Ahmed v. Mst. Jiwan 1997 SCMR 171; Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab 1998 SCMR 1948; Muhammad Nadeem v. District Officer Revenue and Estate Peshawar 2005 PLC (C.S.) 573 and Nazir Hussain (Ex-Director Excise and Taxation), Administrator, Auqaf N.-W.F.P. Peshawar v. N.-W.E.P. through the Chief Secretary 1992 SCMR 1843 ref.

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

----S. 114 & O.XLVII---Review---Power, procedure, aim and scope---Main aim of power of review, was to enable the correction of error alone and nothing more---Review was not equated with an appeal---Review, could not be made the pretext for rehearing the case---Power of review of a court's own judgment/order, was only discretionary---Reason for conferring discretionary power of review to a court, was to prevent injustice being done---Power of review, was meant to enable correction of error---Review in no case should amount to rehearing the case on merits; and case could not be re-opened on pretext of review.

Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 (sic) 110 ref.

Applicant in person.

Nemo for Respondents.

Date of hearing: 17th April, 2014.

2015 P L C (C.S.) 346

[Balochistan High Court]

Before Ghulam Mustafa Mengal, C.J. and Muhammad Hashim Khan Kakar, J

MUHAMMAD AYAZ KHAN JOGEZAI and 2 others

Versus

GOVERNMENT OF PAKISTAN STATES AND FRONTIER REGIONS DIVISION, ISLAMABAD and 31 others

Constitutional Petition No.320 of 2013, decided on 15th October, 2014.

Constitution of Pakistan---

----Arts. 199, 25, 27, 33 & 247(1), (6)---Instructions by Federal Government (1954)--- Constitutional petition--- Civil service---Appointments in Federal Levies Force---Powers of the President and Provincial Governor for making law for the area, which was different from prevailing in the rest of the country---Scope---Petitioners had challenged the advertisement inviting application for recruitment whereby appointments of Federal Levies Force were being made by the Provincial Government---Grievance of the petitioners was that appointments were being made on the basis of Instructions of 1954 issued by the Federal Government in conflict with the constitutional guarantees enshrined in Arts.25, 27 & 33 of the Constitution---Non-availability of service rules of the Federal Levies Force---Effect---Federal and Provincial governments could not rebut the contention of the petitioners and sought disposal of the matter on the basis of 'Proposed Recruitment Criteria for Federal Levies'---Validity---Law enforcement agencies in Balochistan were faced with the acute shortage of manpower in a time when the whole Province was being faced with the menace of terrorism---Province of Balochistan was the largest Province of the country and was presently engulfed by a severe level of militancy---Militants and terrorist groups' continuous murderous attempts, bomb blasts, target killings and threats published in various prominent newspapers and through electronic media, including pamphlets had created severe panic and a sense of insecurity in the whole Province and said facts had led to an extra-ordinary situation which demanded extra-ordinary measures to be taken---Pumping of fresh blood in the shape of recruiting youth in Federal Levies Force could be a very productive step, which on the one hand would ameliorate the worse law and order situation in the province and on the other hand would provide bread and butter to the jobless youth of Balochistan---No relevant rules and regulations being in existence in the Province of Balochistan, as a stop-gap arrangement, the Provincial Government was allowed by High Court to make the recruitment on the basis of proposed formula---High Court, however, formulated certain terms for the said appointments---Order accordingly.

Government of N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281; PLD 2010 (Supplement) Federal Statutes 644 and PLD 2013 Federal Statute Supplement 244 rel.

H. Shakil Ahmed and Mujeeb Ahmed Hashmi for Petitioners.

Sher Shah Kasi, Dy. Attorney-General, Nizam-ud-Din Mengal, A.-G., assisted by Shai Haq Baloch, Asstt. A.-G., Muhammad Akbar Durrani, Secretary, Government of Balochistan, Home and Tribal Affairs Department, Waqar Hasnain, Director Operation, Balochistan Levies Force and Naveed Akram, Section Officer (Judicial), Home and Tribal Affairs Department for Respondents.

Date of hearing: 2nd October, 2014.

2015 P L C (C.S.) 393

[Balochistan High Court]

Before Ghulam Mustafa Mengal, C.J., and Muhammad Hashim Khan Kakar, J

Miss GULNAZ BALOCH

Versus

REGISTRAR, BALOCHISTAN HIGH COURT, QUETTA and others

Constitutional Petition No.53 of 2013, decided on 10th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Advertisement for the post of Civil Judges/Judicial Magistrates---Petitioner's name was shortlisted and included in the list of eligible candidates but she could not secure enough marks in the interview to be selected---Plea of petitioner was that panel of Judges of High Court could not assign the interview marks impartially, without prejudice and fairly---Validity---Impugned notification had been issued by the Registrar of High Court in compliance of the order passed by the Chief Justice---Registrar carried out the orders of the Chief Justice or the Judges of the High Court---Constitutional jurisdiction of High Court could not be invoked against the orders passed by the Chief Justice or the Registrar on behalf of the Court---Petitioner was interviewed by the Selection Committee of High Court and was given certain marks but she could not secure enough marks to be selected---Authority of Selection Committee could not be challenged and questioned as Committee was the best judge to form an opinion and take decision after judging the abilities and capabilities of the candidates---High Court was not to interfere and thrust its opinion changing the verdict of the Selection Committee except when the same smacked of mala fide---Constitutional petition being not maintainable was dismissed in limine.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against High Court---Scope---High Court could not be deemed to be conferred with two distinct characters i.e. one judicial which was immune from constitutional jurisdiction and the other administrative which was amenable to the constitutional jurisdiction---Where a Judge of the High Court had acted as a "Court" for and on behalf of the Court then same was Court by itself and had complete and absolute immunity which was not dependent on the kind of jurisdiction he had exercised---All actions, acts and orders made by the High Court or the Supreme Court or any Judge thereof in exercise of powers and functions with regard to the performance of his official duties could not be subjected to constitutional jurisdiction---No constitutional petition could be entertained against the High Court.

Abrar Hassan v. Government of Pakistan PLD 1976 SC 315; Malik Asad Ali v. Federation of Pakistan, through Secretary Law and Parliamentary Affairs PLD 1998 SC 161 and Asif Saeed v. Registrar, Lahore High Court PLD 1999 Lah. 350 rel.

(c) Constitution of Pakistan---

---Art. 199(5)---"Person" as mentioned in Art.199(5) of the Constitution---Scope---Article 199(5) of the Constitution had excluded the Supreme Court, High Court or Tribunal established under a law relating to the Armed Forces of Pakistan from its purview from the definition of "person".

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had power to consider the legality/constitutionality of the orders passed by a "person" performing the functions in connection with the affairs of the Federation or a Province.

(e) Constitution of Pakistan---

----Art. 192---High Court, constitution of---Scope---Existence of High Court would depend upon the Chief Justice and the prescribed number of Judges which were essential components to constitute a High Court.

(f) Jurisdiction---

----Order passed without jurisdiction could not be allowed to hold the field.

Nauroz Khan Mengal and Jameel Ramzan for Petitioner.

Shai Haq Baloch, Asstt. A.-G. for Official Respondents.

Dates of hearing: 29th September and 30th October, 2014.

2015 P L C (C.S.) 489

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Kamran Khan Mulakhail, J

ABDUL SATTAR KHAN DURRANI and others

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary and 5 others

Constitutional Petition No.545 of 2014, decided on 30th December, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contractual employment---Scope---Regularization of service of contract/ad hoc employee---Petitioners being public prosecutors sought regularization of their service---Validity---Prosecutors had been appointed on contract after taking competitive examination through the process of Public Service Commission---Process of recruitment of prosecutors had been initiated and applications had been invited by the Public Service Commission---Contractual employment did not confer any right for regularization of service---Contract/ ad hoc employee could not claim any vested right---Appointments of petitioners were not only on contract basis but their services might continue as long as Public Service Commission had finalized the recruitment process---Petitioners were temporary and contract employees and their services were liable to termination on twenty four hours notice from either side on any ground in lieu of one month's pay paid or deposited---Petitioners were estopped to raise any question on legality or validity of their contractual employment by accepting the terms and conditions of service---High Court observed that dispensation of justice was likely to be affected due to such lethargic and unattended attitude of official respondents---Official respondents were directed to address the issue without further delay---No case had been made out in favour of petitioners---Constitutional petition was dismissed in limine.

Nasrullah and others v. Chairman, WASA and others 2014 PLC (C.S.) 531; Government of Balochistan v. Dr. Zahida Kakar 2005 SCMR 642; Muhammad Wasay Tareen v. The Chief Justice of Balochistan through Registrar of Balochistan High Court 2005 SCMR 464; Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769; Dr. Mubashir Ahmed v. PTCL through Chairman Islamabad and another 2007 PLC (C.S) 737; Muhammad Ali Satakzai and others v. Appointing Authority of Additional District and Sessions Judges and others 2011 PLC (C.S) 78; Muhammad Ali Satakzai and others v. Appointing Authority of Additional District and Sessions Judges and others 2012 PLC (C.S.) 1216; Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (C.S.) 623; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Muzaffar Khan and others v. Government of Pakistan 2013 SCMR 304 and Messrs Oil and Gas Development Company Ltd., Islamabad through Chief Executive v. Muhammad Azhar Chughtai 2014 SCMR 812 rel.

Muhammad Aslam Chishti for Petitioners.

Namo for Respondents.

Date of hearing: 21st August, 2014.

2015 P L C (C.S.) 526

[Balochistan High Court]

Before Qazi Faez Isa, C.J., and Muhammad Kamran Khan Mulakhail,J

Mirza LUQMAN MASUD

Versus

GOVERNMENT OF PAKISTAN, ESTABLISHMENT DIVISION through Secretary and 14 others

Constitutional Petition No.177 of 2013, decided on 3rd April, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Territorial jurisdiction---Principle---Civil service---Writ of quo warranto---Scope---Petitioner assailed appointments of respondents who were not serving within territorial jurisdiction of High Court---Validity---High Court under Art.199 of the Constitution enjoyed ample powers but it was mandatory upon High Court to confine itself to its jurisdiction as provided in the Constitution---High Court was competent to direct any person performing functions in connection with the affairs of Federation. Province or a Local authority to refrain from doing anything, which was not permitted by law or to do anything by law he was required to do, as well as, in terms of writ of quo warrant to hold public office but within its territorial jurisdiction only and not otherwise---Respondents were appointed by authorities in Islamabad and had never served with the territorial jurisdiction of High Court---High Court declined to call upon the respondents in terms of writ of quo warranto to explain as to under what authority of law they were holding offices as it would amount to transgression of Constitutional authority of High Court---Petitioner failed to satisfy that High Court could exercise jurisdiction against respondents who were neither appointed nor carrying out their duties within the territorial jurisdiction of High Court---Respondents were not holding any post created by Constitution of Pakistan and performing functions within the territory of the Province or which included the Province in respect whereby High Court could exercise jurisdiction---Petition was dismissed in circumstances.

Muhammad Yasin v. The Federation of Pakistan and others PLD 2012 SC 132 and Tariq Aziz-ud-Din's case 2010 SCMR 1301 distinguished.

(b) Constitution of Pakistan---

----Art. 199 (1)(b)(ii)---Writ of quo warranto---Scope---Issuance of writ of quo warranto is an extraordinary jurisdiction of High Court and is invoked when stipulations in the Constitution for its issuance are met---In view of Art.199(1)(b)(ii) of the Constitution, petitioner has to show that respondents are holding office in violation of Constitution or law and thereafter same can be asked from respondents that as to under what authority they are holding public office---High Court can also inquire into the conduct and motive of petitioner---No specific rule existed for exercise of discretion by High Court in granting or refusing writ in the nature of quo warranto and it depends on facts and circumstances of the case---Petitioner had to prima facie show that respondents lack qualifications for holding or purporting to hold public office that they are holding.

Farooq Anwar for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 2014.

2015 P L C (C.S.) 788

[Balochistan High Court]

Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

NAVEED AHMED

versus

GOVERNMENT OF BALOCHISTAN, EDUCATION DEPARTMENT, through

Secretary and 4 others

Constitutional Petition No.859 of 2012, decided on 25th August, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for the posts of teaching cadre in the Education Department---Petitioner possessed B.Ed. which was considered as professional qualification and respondents possessed PTC only---Petitioner could not be penalized for his higher professional qualification and respondents could not be facilitated on the basis of their PTC qualification---Only intermediate certificate was required for admission in PTC but for admission in B.Ed. degree Bachelor degree was mandatory---Petitioner was a better qualified person having higher professional qualification as compared to the contesting respondents---B.Ed. degree obtained by the petitioner was issued on 11-4-2012 but the year of examination was 2010 and on the cut date petitioner had qualification of B.Ed.---Petitioner should have been placed higher on merit list as he had secured higher qualification than the contesting respondents---Petitioner had successfully made out his case and he deserved to be appointed---Authorities were directed by High Court to rectify the errors in the merit list and issue appointment order to the petitioner without any further loss of time---Constitutional petition was disposed of accordingly.

Petitioner in person.

Muhammad Saleem Baloch, Addl. A.-G. for official Respondents.

Respondents Nos.4 and 5 in Person.

Date of hearing: 24th April, 2014.

2015 P L C (C.S.) 819

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mullakhail, J

Mst. SHUGAFTA

versus

CHAIRMAN FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and 2 others

Constitutional Petition No.922 of 2013, decided on 3rd April, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Advertisement for the post's of Assistant Head Mistress and Vice Principal---Prescribed qualification being second class or grade-C Master's degree or equivalent and B.Ed---Petitioner having only a Master's degree---Candidature of petitioner was rejected due to deficiency in the requisite qualification---Validity---Prescribed qualification was Master's degree in any discipline and B.Ed---Petitioner possessed a degree in Master of Arts (Education) which was two years post-graduation degree---Petitioner did not possess B.Ed. Degree (one year duration)---Degree of B.Ed. was also required for both the positions in addition to Master's degree in any discipline---Petitioner possessed only one qualification and was not qualified as she did not have two degrees and could not be allowed to appear in interview/viva voce---Decision of Public Service Commission was according to its mandate---Government had prerogative to prescribe the requisite qualification for a particular post---Eligibility of a candidate was to be determined in accordance with the advertisement for the post keeping in view the stipulated requirements and not otherwise---Non-qualified person could not be appointed to a particular post---Eligibility could not be created and thereby foisted in violation of the requisite qualification---Petitioner could not establish that she had the stipulated qualification---Petitioner had failed the preliminary test of an "aggrieved person"---Constitutional petition was dismissed in limine.

Dr. Muhammad Hussain's case PLD 2003 SC 143 and Government of Punjab through Secretary (S&GAD) Lahore v. Zafar Maqbool Khan and another 2012 SCMR 686 rel.

Manzoor Ahmed Rehmani for Petitioner.

Ch. Mumtaz Yousuf, Standing Counsel along with Amjad Khan, Assistant Director Federal Public Service Commission for Respondents.

Date of hearing: 12th March, 2014.

2015 P L C (C.S.) 1085

[Balochistan High Court]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

GHULAM QADIR

versus

GOVERNOR OF BALOCHISTAN through Personal Secretary, Quetta and 3 others

Constitutional Petition No.626 of 2011, decided on 4th February, 2015.

(a) Establishment of Office of Provincial Ombudsman Ordinance (VI of 2001)---

----S. 9(1)(2)---Balochistan Service Tribunal Act (V of 1974), S.4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Civil service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Appeal---Limitation---Petitioner was appointed as Senior Science Teacher (Gen:) (SST) in BPS-16 but was terminated against which he filed representation which was not decided, he filed a complaint before the Provincial Ombudsman which was allowed---Order of Provincial Ombudsman was assailed and was set aside by the Governor---Validity---Complaint was filed by the petitioner after the delay of nine years which was condoned by the Ombudsman without having any application for condonation of delay or plausible cause---Petitioner being government servant assailed his termination order before the Ombudsman who had no authority to assume jurisdiction with regard to terms and conditions of service---Complaint filed by the petitioner before the Ombudsman was not maintainable and the order passed was without jurisdiction and lawful authority---Question of limitation would not arise with regard to the judgment which had been passed without jurisdiction---Dispute with regard to terms and conditions of service of a civil servant could only be raised before an appropriate Service Tribunal and not before the Ombudsman---Petitioner was civil servant at the time of termination of his service and he was obliged to seek redressal of his grievance from the Service Tribunal---Constitutional petition was dismissed in circumstances.

PLD 2001 SC 514 and 1985 SCMR 1408 rel.

(b) Balochistan Service Tribunal Act (V of 1974)---

----S. 4--- Appeal--- Limitation--- If representation/appeal was not decided by the authority within a period of 90 days, appeal could be filed within 30 days after decision of appeal by the department.

Ghulam Shabbir v. Divisional Superintendent, Pakistan Railways and others 2013 SCMR 700 rel.

Manzoor Ahmed Rehmani for Petitioner.

Shaihaq Baloch, Asstt. A.-G. for Respondents.

Date of hearing: 8th December, 2014.

2015 P L C (C.S.) 1143

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUHAMMAD NADEEM and 3 others

versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs

Department and 3 others

C.P. No.364 of 2007, decided on 14th April, 2015.

(a) Constitution of Pakistan---

----Art. 199---Balochistan Civil Servants Act (IX of 1974), S. 5---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, Rr.2(1)(f), 2(1)(h), 2(e), 5, 11 & 12---Constitutional petition--- Maintainability--- Civil service--- Advertisement for appointment of Assistant Investigating Officer---Appointments made in pursuance of order of the High Court---Scope---Constructive res judicata principles of---Applicability---Grounds taken in the present constitutional petition were attended to by the High Court while deciding the fate of previous constitutional petition---Matter being one of past and closed transaction could not be re-agitated by using different phraseology and words---Order passed by the High Court under Art.199 of the Constitution could not be annulled by another constitutional petition---Present constitutional petition was hit by the principles of 'constructive res judicata' and was not maintainable---Written test and interview were conducted by the Departmental Selection Committee---Authority of the selection committee could not be challenged or questioned as same was the best judge at the given time to form an opinion, take decision after judging the abilities and capabilities of the candidates---Courts should not interfere and thrust their opinions changing the verdict of the selection committee except it had been made other than the capabilities of the candidates or smacked mala fide---No mala fide was on record in the present case---Private respondents were appointed in the year 2007 and they had been performing their duties and no complaints had been received by the authorities from any corner, they had put in more than eight years of service and had lost all their chances to get fresh appointments elsewhere as they stood disqualified being overaged---Superior courts had to act in aid of justice and might refuse to interfere with an illegal order if it would result in grave injustice---High Court should not interfere with an order notwithstanding its void or illegal dimension if it would lead to greater injustice---Nothing was on record with regard to violation of any statutory provisions in issuance of impugned notification---Initial presumption of correctness would attach to the official/public acts---Constitutional petition was not maintainable in absence of any violation of any provision of law---Constitutional petition was dismissed in circumstances.

Muhammad Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103; Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari" 2012 SCMR 366 and Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction could not be invoked to re-hear a case which had already been decided---Constitutional jurisdiction could be exercised to strike down orders which were found to be in excess of or without lawful authority or patently in contravention of any express provision of law.

Nemo for Petitioners.

Mazhar Ilyas Nagi for Respondents Nos.6, 9, 10, 11 and 22.

Shai Haq Baloch, Asstt. A.-G. for Official Respondents.

Date of hearing: 1st April, 2015.

2015 P L C (C.S.) 1182

[Balochistan High Court]

Before Ghulam Mustafa Mengal, C.J. and Muhammad Hashim Khan Kakar, J

PWD EMPLOYEES' UNION, BALOCHISTAN through Vice-President and others

versus

SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF BALOCHISTAN QUETTA and others

Constitutional Petition No.370 of 2010, Contempt Application No.34 of 2010 in C.P. No.370 of 2010, C.Ps. Nos.357, 379, 402 of 2011, 117, 844, 912 of 2012, 448, 502, 662, 962 of 2013 and 89 of 2014, decided on 10th November, 2014.

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 12---Constitution of Pakistan, Arts.199, 2A, 3, 4, 9, 18, 25, & 27---Constitutional petition---Civil service---Reservation of posts for the widow or child of a civil servant died while in service---Discrimination and classification---Vires of R.12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, Arts.25 & 27 of the Constitution had forbidden discrimination---Classification which was not arbitrary, capricious or in violation of the doctrine of the equality could not be questioned---Classification had to be justified on the basis of nexus between the classification and the object to be achieved---Fact that classification by itself was reasonable was not enough to support the same unless there was nexus between the classification and the object to be achieved---Object to be achieved, in the present case, was be to get the best talent for appointment against posts in public employment---Reservation of seats for the widow or child of civil servant died while in service, had no reasonable relation with the object to be achieved---Classification of persons could not be termed reasonable and such class of persons could not be put in advantageous position vis-a-vis widow and children of ordinary citizens---Such classification would result in discrimination and better qualified candidates from amongst the ordinary citizens might be ignored while less qualified from other widows or children of civil servants died while in service might be appointed---Such state of position might also result in impression that appointments in public offices were hereditary in nature which might result in aggravation of agonies of unemployed youth---No justification had been made out in support of such classification---Said classification would offend against the doctrine of "equal protection of law"---'Intelligible differentia' would distinguish persons or things from the other persons or things which had been left out---Holy Quran had enjoined that there was no difference between the individuals of mankind and all human beings were equal in the eye of almighty Allah---Fittest person who was strong and trustworthy was to be employed in public employment---State was bound to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle from each according to his ability to each according to his work---State was responsible to establish a society which was free from exploitation wherein social and economic justice was guaranteed to its citizens---Right person should be engaged in the right job which could not be done unless there was an open competition for appointment against the posts in government departments---Posts could not be filled by the method of competition when arbitrary classification were made between different classes of citizens and preferential rights were extended towards privileged classes at the cost of ordinary citizens---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was a classic example of such arbitrariness where widows or children of civil servants had been put in advantageous position vis-à-vis ordinary citizens---Every individual had right to enjoy the protection of law and to be dealt with in accordance with law---"Law" would imply such provisions of law which were in conformity with Fundamental Rights guaranteed by the Constitution---Every person and authorities were required to perform their duties and discharge their function within the limits prescribed by law, and respect and obey the Constitution and law in letter and spirit---Competent authority should consider the merit of all the eligible candidates for appointment against posts in government departments---By incorporation of R.12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 Fundamental Rights of the citizens had been infringed---Any law, custom or usage having the force of law which was inconsistent to the Fundamental Rights would be void---Constitution being a basic document was to be treated to be higher than other statutes---Whenever a document in the shape of law given by the Parliament or other competent authority was in conflict with the Constitution then to such extent same was liable to be declared unconstitutional---Every citizen should have the right subject to such qualification, if any, prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business---Said Fundamental Rights would include the right of a citizen to compete and participate for appointment to a post in any Federal or Provincial Government department or an attached department or autonomous bodies/corporations---Right of open competition could not be exercised unless the process of appointment was transparent, fair, just and free from any complaint---Non-advertising the posts (reserved for widows or children of civil servants) was violative of Art.18 of the Constitution---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was also violative of Art.18 of the Constitution---Merit in any case had to be considered and eligible candidates could not be ignored only because widows and children of civil servants had been put in advantageous position vis-à-vis widows and children of ordinary citizens---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was discriminatory and ultra vires of Arts.2-A, 3, 4, 9, 18, 25 & 27 of the Constitution---Provincial Government should consider of doing away all such kind of discriminatory provisions and reservation of seats in the government institutions---Constitutional petitions were accepted in circumstances.

PLD 1974 SC 31; AIR 1950 SC 107; PLD 1997 SC 11; (sic) PLC (C.S.) 442; PLD 2000 Lah. 509; PLD 1990 Pesh. 51; AIR 1950 SC 27, 107 and 2012 PLC (C.S.) 142 ref.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; I.R. Coelho (dead) by L.Rs. v, State of Tamil Nadu AIR 2007 SC 861; I.A. Sharwani v. Government of Pakistan 1999 SCMR 1041; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Holy Qur'an; Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Government of N.-W.F..P. v. Muhammad Tufail Khan PLD 2004 SC 313; 2004 PLC (C.S.) 892; Muhammad Kamran Mullahkhail v. Government of Balochistan PLD 2012 Bal. 57; Mushtaq Ahmed Mohal v. The Honourable Lahore High Court, Lahore 1997 SCMR 1043; 1996 SCMR 1349 and Mian Zia-ud-Din v. Secretary Local Government 2005 PLC (C.S.) 908 rel.

(b) Constitution of Pakistan---

----Arts. 25 & 27--- Discrimination and classification--- Scope---Articles 25 & 27 of the Constitution had forbidden discrimination and not classification---Classification which was not arbitrary, capricious or in violation of the doctrine of the equality could not be questioned---Classification had to be justified on the basis of nexus between the classification and the object to be achieved---Fact that classification by itself was reasonable was not enough to support the same unless there was nexus between the classification and the object to be achieved.

(c) Constitution of Pakistan---

----Arts. 199 & 184---Judicial review---Scope---Doctrine of judicial review had been recognized in every state particularly those having a written constitution---High Court in exercise of constitutional jurisdiction enjoyed enormous power of judicial review---Superior courts had constitutional duty and responsibility to find extent and limits of powers of executive as well as legislative organ of the State---Supreme Court and High Courts had jurisdiction to decide legality or otherwise of the action taken by State authorities either administrative or legislative and such power could not be taken away from judiciary---Judiciary had power to keep the different organs of the State within the limits of the power conferred upon them by the Constitution---High Court while examining the question of constitutionality of a piece of legislation principal or delegated was expected to explore every possibility of upholding the same before proceeding to strike down the same---No piece of legislation was immune from judicial scrutiny---High Court had power to test any piece of legislation on the touchstone of the Constitution even if the same was not repugnant to parent statute from which the executive had derived legislative power to make Rules or Regulations---High Court to take into consideration the expediency to enforce Fundamental Rights of ordinary citizens and privileged classes alike in order to sustain the presumption of constitutionality---High Court was bound to safeguard the Fundamental Rights of ordinary citizens in general and deprived classes in particular and to ensure elimination of all sorts of discrimination or exploitations---When there was any transgression of power, the abuse of power or colourable exercise of power then such exercise was open to correction under constitutional jurisdiction---High Court could examine the validity/constitutionality of any statutory provision itself when same came to its notice or had been brought into notice by the parties---Mere efflux of time did not ipso facto convert an unconstitutional provision of law into a valid and constitutional one---Mere passage of time was not a criterion of constitutionality of any provision of law.

(d) Jurisdiction---

----Order passed without jurisdiction could not be allowed to hold the field.

Muhammad Riaz Ahmed, Mujeeb Ahmed Hashmi, Abdul Maeed Kakar, Manzoor Ahmed Rehmani, Bashir Ahmed Qazi, Syed Zareef Shah, Ali Hassan Bugti and Saeed Ah med Langove for Petitioners (in C.P. No.370 of 2010).

Baz Muhammad Kakar for Respondent No.1 (in C.P. No.357 of 2011).

Tahir Ali Baloch for Intervenor/All Pakistan Clerk Association C&W Unit (in C.P. No.357 of 2011).

Shai Haq Baloch, Asst. A.-G. for Official Respondents (in C.P. No.357 of 2011).

Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.357 of 2011).

Aslam Pervaiz, Assistant Director (J) Education Department (in C.P. No.357 of 2011).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in Contempt Application No.34 of 2010 in C.P. No.370 of 2010).

Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in Contempt Application No.34 of 2010 in C.P. No.370 of 2010).

Abdul Majeed Khan for Petitioner (in C.P. No.357 of 2011).

Baz Muhammad Kakar for Respondent No.1 (in C.P. No.357 of 2011).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.357 of 2011).

Nemo for Petitioner (in C.P. No.379 of 2011).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.379 of 2011).

Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.379 of 2011).

Nemo for Petitioner (in C.P. No.402 of 2011).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.402 of 2011).

Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.402 of 2011).

Syed Zareef Shah for Petitioner (in C.P. No./117 of 2012).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.117 of 2012).

Manzoor Ahmed Rehmani for Petitioner (in C.P. No.844 of 2012).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.844 of 2012).

Manzoor Ahmed Rehmani for Petitioner (in C.P. No.912 of 2012).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.912 of 2012).

Saeed Ahmed Langove for Petitioner (in C.P. No.448 of 2013).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.448 of 2012).

Aslam Pervaiz, Assistant Director (Judicial) Education Department (in C.P. No.448 of 2012).

Mujeeb Ahmed Hashmi for Petitioner (in C.P. No.502 of 2013).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.502 of 2013).

Bashir Ahmed Qazi for Petitioner (in C.P. No.662 of 2013).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.662 of 2013).

Manzoor Ahmed Rehmani for Petitioner (in C.P. No.962 of 2013).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.962 of 2013).

Ali Hassan Bugti for Petitioner (in C.P. No.89 of 2014).

Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.89 of 2014).

Date of hearing: 13th October, 2014.

2015 P L C (C.S.) 1246

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

REHMAT SANOBER

versus

BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman and 2 others

C.P.No.67 of 2014, decided on 29th June, 2015.

(a) Balochistan Government Initial Appointment to Civil Service Posts (Age and Relaxation of Upper Age Limit), Rules, 2012---

----R.5---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art.199---Constitutional petition---Advertisement for appointment of Lecturer (Urdu)---Relaxation in upper age limit---Earlier policy of Government---Effect---Vested rights---Notification---Locus poenitentiae, principle of---Applicability---Petitioner was declared successful through press release but subsequent press release was issued cancelling the earlier press release and petitioner's name was excluded on the ground of being over-aged and respondent was declared eligible for appointment---Validity---Petitioner was within age limit prescribed by Government when advertisement for appointment was made---Petitioner applied and was found eligible for the post in question followed by her participation in written test---Petitioner secured first position in the concerned zone---Petitioner was found eligible, qualified, competent and was recommended for appointment by the Public Service Commission---Vested right had accrued to the petitioner---Notification could not be made applicable with retrospective effect---Notification issued subsequently would apply prospectively---Legal and valid right accrued to the petitioner could not be snatched by way of issuing the second press release---Maximum relaxation in upper age limit was extendable up-to next three years---Petitioner was under protection of earlier policy of the Government---Age limit provided in the subsequent notification was no more in the field---Relaxation in upper age limit being a policy matter extended by the Government earlier was not in violation of any Fundamental Right or law nor did it suffer from any infirmity, inherent legal defect or want of authority---Principle of locus poenitentiae was attracted in the present case---Petitioner had also done Master's in Social Work and had topped the University---Person with such a caliber and extra academic qualification must be allowed to benefit the educational institution in the interest of society---Petitioner had been condemned unheard while issuing the impugned press release---Such illegality on the part of authorities could not be ignored---Impugned press release was set aside and Administrative Department was directed to issue appointment letter in favour of petitioner forthwith---Constitutional petition was accepted in circumstances.

Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 rel.

(b) Notification---

----Notification could not be made applicable with retrospective effect.

Muhammad Qahir Shah and Akram Shah for Petitioner.

Shai Haq Baloch, A.A.-G. and Ehsan Rafiq Rana for Respondents.

Date of hearing: 15th June, 2015.

2015 P L C (C.S.) 1455

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUHAMMAD EWAZ ZEHRI (BALOCH)

Versus

CHAIRMAN SELECTION COMMITTEE FORAPPOINTMENT OF DISTRICT AND SESSIONS JUDGES and 10 others

C.P. No.447 of 2015, decided on 18th May, 2015.

(a) Constitution of Pakistan---

----Arts. 199 & 33---Constitutional petition---Civil service---Appointment of Additional District and Sessions Judges---Written test of candidates---Re-examination of answer sheets by the High Court---Discrimination---Mala fide---Effect---Petitioner appeared in the written test but remained unsuccessful---Plea of petitioner was that he had been discriminated only on the basis of caste and creed by the selection committee---Validity---Petitioner had made an effort to scandalize the Judges of High Court under the colour of parochial, racial and tribal approach---Every unsuccessful candidate had tendency to say that he had performed well but assessed poorly---Request with regard to re-checking, re-evaluation and re-marking of solved papers could not be acceded to without reasonable ground---No provision of law existed to allow inspection or evaluation of the answer sheets or to show it to the person concerned---Petitioner had participated in examination and had failed in it---Petitioner had no right to challenge the proceedings on the ground of mala fide or violation of rules as he had failed to point out the same---Answer books were collected by the committee and got evaluated in a very confidential and fair manner---Experienced Judges with proven integrity were nominated for evaluation of answer books---Examiner while checking the answer sheets did not know the identity of the candidates as same were coded in order to ensure the secrecy---No question of discrimination had arisen as examination was held in a fair, transparent and confidential manner---Only seven candidates had obtained more than 50% marks and remaining eighty eight candidates secured less than the qualifying marks---Examiners had evaluated the answer sheets with care and best of their knowledge---Petitioner had levelled baseless allegations of bias attitude on the part of examiners without any reason---No mala fide existed on the part of the members of selection committee---Answer sheets of petitioner had been evaluated fairly as per genuine assessment by the examiners---Re-evaluation of answer sheets could be ordered subject to strong ground that same were not justly evaluated---Malice and mala fides were sufficient grounds to vitiate all the proceedings---Courts could determine its (malice and mala fides) existence on probabilities to be inferred from the circumstances---No ground existed to believe that the answer scripts were not justly evaluated---High Court itself re-examined the answer scripts of the petitioner and found that total had been rightly brought forward---No portion of any answer had been left unmarked---No mistake existed in the grand total on the cover of answer book and answer books had not been changed---Examination in question had been conducted by a duly constituted committee---Candidates who had qualified for interviews belonged to indigenous tribes and to the ethnicity of the petitioner---Constitutional petition was dismissed in limine.

Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Haroon-ur-Rashid v. Registrar Balochistan High Court, Quetta 2013 PLC (C.S.) 81 rel.

(b) Mala fides---

----Malice and mala fides were sufficient grounds to vitiate all the proceedings---Courts could determine their existence on probabilities to be inferred from the circumstances.

Petitioner in person.

Date of hearing: 14th May, 2015.

2015 P L C (C.S.) 1513

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, Actg. C.J. and Muhammad Kamran Khan Mulakhail, J

GHULAM MUSTAFA and 4 others

Versus

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN through Chairman and 3 others

C.P. No.636 of 2012, decided on 13th August, 2015.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 22---Balochistan Service Tribunal Act (V of 1974), S.3---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Civil service---Deputationist---Transfer of employee---Terms and conditions of service---Scope---Remedy for the civil servants/petitioners would lie with the Authority and also before the Service Tribunal if any terms of their service had been violated---High Court had no jurisdiction in the matter---Civil servants/petitioners had not availed the remedy under the law and rules---Constitutional petition, therefore, was not maintainable---Policy governing terms and conditions of deputation of civil servants had not been followed by the authorities rather they remained silent having knowledge of illegality---Borrowing authority was empowered to take disciplinary action against the civil servant on deputation---Lending authority being parent department could initiate proceedings against the accused civil servant under the rules governing the deputationist in its parent department---Both the borrowing and lending authorities despite having knowledge that initial appointment of deputationist was illegal and bogus kept silent for a considerable period which was objectionable---High Court passed direction that there should be no extension in the period of deputation and deputationist should be repatriated to their parent department without any loss of time---Parent department of the deputationist was directed to take disciplinary action not only against them but also against the persons responsible of their appointment and also for their transfer and posting on deputation---Constitutional petition was disposed of in circumstances.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Chief Engineer, Hydel (North) and Project Director, WAPDA, Warsak v Zafrullah Shah and another 2003 SCMR 686 and Muhammad Asghar v. Government of Balochistan 2012 PLC (C.S.) Quetta 142 ref.

Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 rel.

Tahir Ali Baloch for Petitioners.

Muhammad Qahir Shah, Muhammad Riaz Ahmed for Respondents Nos.3 and 4.

Sher Shah Kasi, Deputy Attorney General and Latif Kakar, Asstt. A.-G. for Official Respondents.

Date of hearing: 5th August, 2015.

2015 P L C (C.S.) 637

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman Muhammad Ibrahim Sumalani, Member and Farzand Ali Mengal, Member (Judicial)

Qazi MUHAMMAD AKBAR and another

versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and others

Service Appeals Nos.413 of 2013 and 4 of 2014, decided on 27th August, 2014.

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

----Ss. 5 & 9---Balochistan Service Tribunals Act (V of 1974), S.4---Balochistan Fisheries Department (Grade 16 and above) Service Rules, 1982, Rr.3.5 & 7(ii)---Constitution of Pakistan, Art.4---Notification No. SO-II-27(176)/2008, dated 7-3-2008---Notification No.5(10)/2010-S&GAD dated 10-10-2010---Notification No. S.VIII-2(1)Gen/2013-S&GAD dated 23-8-2013---Appointment and promotion---Appellants who joined Fisheries Department, were promoted to Deputy Directors Fisheries (BPS-18)---Terms and conditions of service of the appellants, were regulated by the Balochistan Fisheries Department (Grade 16 and above) Service Rules, 1982---One of the prerequisites under said Rules for promotion to the rank of Director Fisheries (B-19), was the successful completion or Mid Career Management Courses (MCMC), but none of the Deputy Directors Fisheries (B-18), had ever been nominated to participate in the said course---Appellants stood exempted from the requirement of (MCMC), consequent upon attaining the age of 50 years in view of Circular dated 26-6-2008 of Government of Balochistan---Appellants were eligible for consideration of their cases and determination of their fitness for regular promotion to the higher rank of Director in Grade-19, but vacant posts were filled by ineligible persons belonging to other caders/departments---Respondent, who previously was posted as Settlement Officer, had been posted as Director Fisheries in Grade-19---Said practice of posting of outsider was clear violation of Statutory Rules, and also against the good governance---Post of Director Fisheries (B-19), was reserved under the Rules for departmental promotion of Deputy Director---Ignoring of senior eligible officers, and filling the vacant post of Director Fisheries (B-19) by the method of transfer/posting, was against the Rules, and also resulted in grave miscarriage of justice, jeopardizing the eligible officer's career---Such course also amounted to glaring violation of the commend of Art.4 of the Constitution--- Secretary Government of Balochistan, Fisheries Department was directed to process/place the case of the eligible Deputy Director Fisheries, to fulfil the criteria for promotion in (BPS-19) before the Selection Board concerned within two months---Authorities were also directed to reconsider the Notification No.S.VIII-2(1)Gen/2013-S&GAD dated 23-8-2013 to the extent of respondent(appointed in violation of Rules).

2012 PLC (C.S.) 1232 and 2011 PLC (C.S.) 956 rel.

Mazher Illyas Nagi for Appellants.

Hamayoon Tareen, Addl. A.-G. for Official Respondents.

Khursheed Anwar Khoso for Respondent No.4.

Date of hearing: 20th August, 2014.

2015 P L C (C.S.) 663

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman Muhammad Ibrahim Sumalani, Member and Farzand Ali Mengal, Member (Judicial)

AMIR NADEEM SHAH

versus

INSPECTOR-GENERAL, BALOCHISTAN POLICE, QUETTA and another

Service Appeal No.84 of 2014, decided on 9th September, 2014.

Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Balochistan Civil Pension Rules, 1989, R.3.5(ii)---Request for premature retirement---Acceptance of request---Application for withdrawal of the request---Employee, serving as Police constable, on completion of his 25 years of qualifying service, vide an application requested for his pre-mature retirement/LPR, which request was accepted---Later on, after about 5 months of acceptance of his request for premature retirement, he submitted application for withdrawal of his demand of premature retirement---Said application was rejected by the Competent Authority---Validity---Under R.3.5(ii) of Balochistan Civil Pension Rules, 1989, once application for such retirement was submitted same would be final and would not be allowed to be modified or withdrawn---Request submitted by the employee for pre-mature retirement after completion of 25 years qualifying service, after its acceptance having become final, same would not be allowed to be modified or withdrawn---Application of employee for withdrawal of premature retirement, was rightly rejected, in circumstances.

2005 SCMR 1928; 2008 SCMR 1078; Muhammad Naseer v. Deputy Inspector-General of Police Multan Range Multan and another 2005 SCMR 1928 and Muhammad Nisar Gul Khan v. District Coordination Officer and others 2008 SCMR 1078 rel.

Muhammad Arshad Aziz for Appellant.

Naseer Ahmad Bangulzai, Addl. A.-G. for Respondents.

Date of hearing: 4th September, 2014.

2015 P L C (C.S.) 695

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member-I, and Farzand Ali Mengal Member (Judicial)

AHMED HASSAN BILAL

versus

SECRETARY EDUCATION DEPARTMENT, GOVERNMENT OF BALOCHISTAN and another

Service Appeal No.327 of 2013, decided on 3rd April, 2014.

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

----S. 11---Balochistan Service Tribunal Act (V of 1974), S.4---Termination from service---Appeal---Limitation---Appellant, who was terminated from service, failed to file departmental appeal before Competent Authority---Appellant filed appeal against order of his termination from service before Service Tribunal, after a period of about five months and seventeen days, without any plausible explanation for said delay---Civil servant had no unfettered choice to file a representation or appeal, beyond time limit---Aggrieved employee, was necessarily required to agitate his grievance before the appellate forum within prescribed period---Any delay caused in approaching the appropriate/prescribed forum beyond the specified period without sufficient cause, was detriment---No reasonable ground for condonation of delay was taken by appellant in his application---Appeal filed by appellant being time-barred, was dismissed, in circumstances.

1999 PLC (C.S.) 510; 1999 PLC (C.S.) 862; 2010 SCMR 1982 and 2011 SCMR 8 ref.

Mushtaq Ahmed Anjum Rajput for Appellant.

M. Saleem Baloch, Addl. A.-G. for State.

Azher Malik representative on behalf of State.

Date of hearing: 7th March, 2014.

2015 P L C (C.S.) 953

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member and Farzand Ali Mengal, Member (Judicial)

ABDUL JABBAR and 180 others

versus

SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BALOCHISTAN and others

Service Appeals Nos.427 to 437, 465, 466, 468 to 470, 472, 473, 480 and 481 of 2014, decided on 25th February, 2015.

Balochistan Employees (Efficiency and Discipline) Act (VI of 2011)---

----S. 3---Balochistan Civil Servants Act (IX of 1974), S.5---Balochistan Service Tribunals Act (V of 1971), S.4---Appointment---Cancellation of appointment order---Appellants, who were appointed on the recommendations of Departmental Committee, their appointments were cancelled on the ground that appointments were illegal and void ab initio being against the prescribed rules---Validity---Appointment orders of the appellants had been cancelled without adhering to the provisions of the Balochistan Employees (Efficiency and Discipline) Act, 2011, as orders were cancelled without issuance of any show-cause notice and without holding inquiry and personal hearing---Appellants were condemned unheard and were made to suffer for illegality committed by the department, therefore, principles of natural justice had grossly been violated---Department, if itself had committed irregularity, by itself violating the prescribed procedure, could not punish appellants for its own misdeeds, after the lapse of a considerable time, during which appellants had satisfactorily performed their duties---Matter was remanded to the department for holding de novo proceedings against the appellants in accordance with law and decide the matter within four months---Impugned order was set aside to the extent of appellants, and they were directed to be reinstated in service without back benefits to face the inquiry.

Mst. Maryam Yunus v. Director of Education PLD 1990 SC 666; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor-General of Pakistan 2002 SCMR 1124 and Province of Punjab v. Zulfiqar Ali 2005 PLC (C.S.) 1165 ref.

Taj Muhammad Mengal for Appellants (in S.As. Nos.427 to 437 of 2014).

Muhammad Saleem Baloch, Add. A.-G. for Respondents.

Muhammad Ali Kanrani for Appellants (in S.As. Nos.465, 466, 468 to 470, 472, 473, 480 and 481 of 2014).

Date of hearing: 16th December, 2014.

2015 P L C (C.S.) 973

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member, and Farzand Ali Mengal Member (Judicial)

JEEYAND-UR-REHMAN

versus

SECRETARY AGRICULTURE AND COOPERATIVE DEPARTMENT, QUETTA and another

Service Appeal No.293 of 2013, decided on 13th December, 2013.

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

----Ss. 5 & 10---Balochistan Service Tribunal Act (V of 1974), S.4---Posting and transfer---Court should not interfere with transfer/posting orders, which were made in public interest and for administrative reasons, unless the transfer orders were made in violation of any mandatory statutory rules or on grounds of mala fide---Government servant, holding a transferable post, had no vested right to remain posted at one place or the other, he was liable to be transferred from one place to another---Transfer orders issued by the Competent Authority, would not violate any of his/her legal rights---Even, if a transfer order was passed in violation of executive instructions or orders, court ordinarily should not interfere with the orders, instead affected party should approach the higher authorities in the department to avail the first remedy---Transfer from one place to another, was necessary in public interest and efficiency of the public administration; whenever public servant was transferred, he must comply with the orders---If there was any genuine difficulty in proceeding on transfer, it was open to civil servant to make a representation to the Competent Authority for stay, modification, or cancellation of transfer orders---If the order of the transfer was not stayed, modified and cancelled, civil servant must carry out the orders of transfer---Civil servant could lose his service, if would fail or refuse to comply with the orders of his transfer---Service Tribunal, was not appellate forum to decide transfers of civil servants on administrative grounds---Appellant, who was working at one place for about 6 years, was desirous to remain there and to continue---Department never bothered to keep an eye on the tenure period and allowed him to continue on the acting charge basis by enjoying 10 to 20% additional pay, which was harmful for the Government Exchequer---Appeal was dismissed in circumstances.

M.A. Chishti for Appellant.

Saleem Baloch Addl. A.-G.

Arbab M.Tahir for Respondent No.2.

Date of hearing: 9th December, 2013.

2015 P L C (C.S.) 1035

[Balochistan Service Tribunal]

Before Muhammad Ibrahim Sumalani, Member-I

LIAQAT ALI CHALGARI

versus

SENIOR MEMBER, BOARD OF REVENUE, GOVERNMENT OF BALOCHISTAN and another

S.A.No.7 of 2014, decided on 13th February, 2014.

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

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer---Balochistan (Efficiency and Discipline) Rules, 2012---Appellant was posted at place "Q" but almost within a period of five months, he was transferred and some other person was posted at his place---Validity---Posting and transfer, no doubt, could not be challenged, unless it was against the law and rules or mala fide, however transfer order, if found mala fide, or made for the extraneous considerations to accommodate some blue-eyed chip, then the matter would fall within jurisdictional domain of the Service Tribunal---Appellant in the present case was transferred within a period of five months; if there was any complaint against the appellant, authorities were competent under the Balochistan (Efficiency and Discipline) Rules, 2012, to proceed against appellant, but mere immature transfer, would not serve the purpose---Impugned notification, was set aside, in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 ref.

Nadir Ali Chilgari for Appellant.

Shai Haq Baloch, Addl.A.-G. for Respondents.

Nemo for Respondent No.2.

Date of hearing: 3rd February, 2014.

JUDGMET

MUHAMMAD IBRAHIM SUMALANI (MEMBER-I).--- This appeal has been filed under section 4 of the Balochistan Service Tribunals Act 1974, against the impugned notification dated 8-1-2014, wherein the appellant has been transferred and directed to report to Board of Revenue, Balochistan, Quetta.

1. The gist of the case is that the appellant was posted as Tehsildar, City Tehsil, Quetta vide notification dated 1-8-2013, but almost within a period of five months, he has was transferred and directed to report to Board of Revenue, Balochistan Quetta vide impugned notification dated 8-1-2014 and one Mr. Muhammad Ali Kakar has been posted in his place, therefore, being aggrieved with the order of transfer within a period of five months, the appellant has filed this appeal.

2. Learned counsel for appellant Mr.Nadir Ali Chilgari appeared and stated that the impugned order is not only contrary to the law, but also against the fundamental rights of the appellant, because the appellant has been declared as OSD by the respondent No.1 (Secretary Board of Revenue) through notification dated 1-8-2013 and posted the Tehsildar City Tehsil Quetta. He submitted that within almost five months, the appellant has been transferred and directed to report to Board of Revenue Quetta and the respondent No.2 (Mr.Ali Ahmed) get posted in his place, therefore such immature arrangement is void and violation of the government policy. The learned counsel further contended that the private respondent remained posted since 13-12-2001 to 21-6-2006 as Naib Tehsildar Saddar Quetta, from, 29-9-2008 to 29-7-2009, as Tehsildar Quetta, from 29-12-2009 to 29-9-2010 as Sub-Registrar Quetta and from 19-7-2010 to 21-8-2013 as Tehsildar City Quetta respectively, therefore, according to learned counsel further retention of the private respondent as Tehsildar City Council Quetta would injust and violation of the Government Policy. He prayed that the impugned notification dated 8-1-2014 may be set aside and the appellant be allowed to continue as Tehsildar Tehsil Saddar Quetta.

3. The respondents were asked to file comments, which have been filed by them accordingly. In the comments it has been stated that transfer posting is a prerogative of the Government and this power cannot be circumstanced according to whims of any group of the employees.

4. Learned Assistant Advocate General (Mr.Shai Haq Baloch) argued that under section 4 of the Balochistan Civil Servants Act, 1974, it is discretion of the Government to transfer any civil servant any- where in the public interest, therefore, the appeal is not maintainable and liable to be dismissed.

5. The Private respondent in his comments has pointed out that without filing of Departmental Appeal/Representation remedy of the Service Tribunal cannot be availed and also failed to implead the necessary parties as the post in question falls within the domain of City District Government, Quetta, therefore, prayed for dismissal of the appeal. It has also been mentioned in the comments that many complaints have been received against the appellant for non seriousness, and further the transfer/posting does not come in the ambit of section 4 of the Balochistan Civil Servants Act, 1974, therefore, the appeal is liable to be dismissed and the private respondent may be allowed to continue as Tehsildar City Tehsil Quetta.

6. In view of the law having regard to the facts of the instant case I am concisions of the fact that normally a civil servant shall be transferred from one to another place to complete his prescribed period of tenure and is generally permitted to complete his normal tenure, but it is equally true that transfer and posting of a civil servant is the jurisdiction of Administration and no one has a right for his posting to a particular post or station. Posting of civil servant at a particular place is the prerogative of the competent authority and transfer of an official is part and parcel of the conditions of his service.

7. There is no doubt that positing and transfer cannot be challenged unless it is against the law and rules or mala fide. Transfer order if mala fide and made for the extraneous consideration to accommodate some blue eyed chips then matter would equally for within the jurisdictional domain of the Service Tribunal. The appellant has been transferred within a period of five (5) months and directed to report to Board of Revenue, Quetta.

8. Admittedly, civil servant cannot raise any legal objection to his transfer, being a civil servant and is liable to be transferred from one placed to another to any post subject. Of course that the term and condition of his service are not varied to his disadvantage.

9. It is to added that this Tribunal have held in Service Appeal 100/2009 title as Dr.Fakhira Jaffar v. Government of Balochistan dated 31-3-2010, that on posting/transfer cases direct appeal before the Tribunal is competent, because if the appellant goes through lengthy procedure of departmental appeal, that would take time and the purpose of filing of appeal would fail. Therefore, the objection to this regard is repealed. So far as complaint's against the appellant is concerned, the respondent No.1 is competent under the Balochistan E&D Rules, 2012 to proceed against the appellant, if deems fit, but mere immature transfer does not serve the purpose. And even the appellant has not been posted which tantamount, the officer has been declared as Officer on Special Duty (OSD), that it is a violation of the judgment passed the Hon'ble Supreme Court PLD 2013 (SC) P-195 titled Syed Mehmood Akhtar Naqvi v. Federation of Pakistan and others, wherein it was held that who act according to law at times have to face hardship in the dorm of immediate transfer or posting as Officer on Special Duty (OSD) even before the completion of the tenure. It is important to add here that in the light of the judgment of the Hon'ble Supreme Court of Pakistan in C.P.No.23 of 2012 out of Suo-Motu case No.23 of 2012 dated 12-11-2012, the worthy Chief Secretary, summarized the important points and guidelines of the judgment and conveyed to all concerned as under for compliance:

(a) Appointments and Removals of Civil Servants:

The statutory provisions or rules or regulations which govern the matter of appointments of civil servants, the same must be followed honestly and scrupulously. Where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in structured and reasonable mannered and in public interest.

(b) Promotions:

Consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material Related to merit and eligibility. In exceptional cases where rules are silent, discretion in matters of promotion must be exercised fairly and in a transparent manner. Discretion has to be understood within the four corners of the concept of rule of law.

(c) Transfers and tenures:

The normal period of posting of a Government Servant at a station is three (3) years which has to be followed in the ordinary circumstances, unless for reasons or exigencies of service a transfer before expiry of the said period becomes necessary in the opinion of the competent the authority. Furthermore, transfers of civil servants by political figures which are capricious and based on considerations not in public interest are not legally sustainable.

(d) Obeying illegal orders from Superiors:

The duty of public officers is to independently discharge their functions and not to be influenced by "dictatorial misuse of powers" at the ends of political figures. The appointment and removal of civil servants is not to be politically motivated. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. In case, the subordinates are directed to implement an illegal order they should put on record their dissenting note. Moreover, the compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Similarly illegal orders cannot be defended on the plea that these could expose the concerned Government servant to the risk of disciplinary action.

(e) Posting Civil Servant as Officers on Special Duty (OSD):

Officer should not be posted as OSD Except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an Officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.

1. The appeal is therefore accepted and the impugned Notification No.136-A.1 dated 8-1-2014 is set aside.

2015 P L C (C.S.) 1114

[Balochistan Service Tribunal]

Before Muhammad Ibrahim Sumalani, Member-I and Farzand Ali Mengal, Member (Judl.)

ABDUL MALIK

versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and 3 others

S.A.No.59 of 2014, decided on 25th March, 2014.

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

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer---Appellant, who was posted Agricultural at place "P", soon after 7 months of his posting, was transferred and posted at place "Q"---Validity---Appellant, actually, was posted at place "P" on acting charge basis for a short period on stopgap arrangement vide notification; however, afterwards on promotion, he had been posted at place "Q" against existing vacancy---Claim of appellant was not maintainable in circumstances.

Date of hearing: 14th March, 2014.

2015 P L C (C.S.) 1215

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman and Farzand Ali Mengal, Member (Judicial)

Dr. AKHTAR BANO and others

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

S.As. Nos.53, 63, 78, 79 and 86 of 2015, decided on 15th April, 2015.

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

----S. 10---Balochistan Service Tribunal Act (V of 1974), S.4---Notification No.SO-IV(H)4-6/2014/4235-350 dated 12-2-2015---Circular No.SOR 1-5(59) S&GAD 5241-5341 dated 2-2-1998---Circular No.SOR 1-5(59) S&GAD 2069-2170 dated 12-8-2006---Constitution of Pakistan, Arts.9 & 35---Transfer of civil servant---Appellants/Lady Doctors, who were serving in hospitals at place "Q" were transferred to hospitals in other places of the Province---Question of transfer/posting under S.10 of Balochistan Civil Servants Act, 1974, though fell within the domain of Authority, but such discretion must not be exercised in an arbitrary or fanciful manner---Such discretion, had to be exercised judiciously and in accordance with settled norms of justice, equity and fair play---Authority was duty bound that while exercising such discretion, requirement of job, nature of duties, requisites and capabilities, must be considered and there should be no extraneous considerations---Government had formulated a comprehensive policy by issuance of Circular No.SOR 1-5(59) S&GAD 5241-5341 dated 2-2-1989, to facilitate posting of serving husbands/wives at same station---Said circular followed by another Circular No. SOR 1-5(59) S&GAD 2069-2170 dated 12-8-2006, in pursuance whereof application of "Wedlock Policy" had been extended to the cases, where either of the spouses was employed in private sector---Said policy further provided that keeping in view the socio-economic problems and hardship faced by the husbands and wives due to posting at different stations of duty, Government through said circulars, issued instructions, guidelines to facilitate posting of husbands and wives at same station---Impugned notification whereby appellants were transferred, was violative of the 'Wedlock Policy' introduced through circulars---Notification in question was also violative of Arts.9 & 35 of the Constitution---If husband was posted at one city and his wife was posted in another one, that definitely would cause mental distress to both of them, with the consequences which were not only injurious to them and public exchequer, but could also impair their efficiency in discharge of official functions---Impugned notification, was set aside to the extent of appellants, in circumstances.

2003 PLC (C.S.) 1322; 2004 PLC (C.S.) 622; 2009 PLC (C.S.) 580; 2011 PLC (C.S.) 592; 2012 PLC (C.S.) 665; 2014 PLC (C.S.) 1032; PLD 2005 SC 193; PLD 2009 Lah. 22; PLD 1994 SC 693; 1998 CLC 1099 and 1996 CLC 1785 ref.

Muhammad Kazim for Appellant (in S.A. No.53 of 2015).

Iftikhar Ahmed Sawati for Appellant (in S.A. No.63 of 2015).

Mazher Illyas Nagi for Appellant (in S.A. No.78 of 2015).

Muhammad Hassan Mengal for Appellant (in S.A. No.79 of 2015).

Ali Hassan Bugti for Appellant (in S.A. No.86 of 2015).

Naseer Ahmed Bangulzai, Addl. A.-G. and Zahoor Ahmed Baloch, Asstt. A.-G. for Respondents.

Dates of hearing: 10th and 15th April, 2015.

2015 P L C (C.S.) 1224

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member-I, and Farzand Ali Mengal Member (Judicial)

Engineer MUHAMMAD SADIQ

versus

SECRETARY, COLLEGES HIGHER AND TECHNICAL EDUCATION DEPARTMENT, QUETTA and another

Service Appeal No.235 of 2013, decided on 6th May, 2014.

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

----S. 9---Balochistan Civil Servants (Seniority) Rules, 2008, R.4(c)---Balochistan Service Tribunals Act (V of 1974), S.4---Promotion---Appeal---Appellant/employee, who was appointed as Junior Instructor (Electronics) in B-16 in the year 1989, was on deputation---Employee's name stood at serial No.2 in the seniority list, while name of his co-employee stood at Serial No.1---Co-employee was cleared for promotion to B-17, but case of the employee was deferred for promotion due to being on deputation---Employee was directed to report back to his parent department---Employee, who was promoted belonged to same class of employees, whose case was deferred---One of the co-employees, who was on deputation, was allowed promotion in her absence in anticipation of her return from deputation---Seniority of an employee was protected under R.4(c) of Balochistan Civil Servants (Seniority) Rules, 2008---Employee deserved to be given equal treatment---Matter was remanded to the Secretary Higher and Technical Education Department with direction to consider the pro forma promotion of employee by giving equal treatment as done in the promotion case of co-employee.

Inayataullah Kakar for Appellant.

Muhammad Saleem Baloch A.A.-G. for the State.

Date of hearing: 24th March, 2014.

2015 P L C (C.S.) 1242

[Balochistan Service Tribunal]

Before Muhammad Ibrahim Sumalani, Member and Farzand Ali Mengal Member (Judicial)

MUHAMMAD ESSA SHAHOOK

versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, QUETTA and 4 others

S.A.No.90 of 2014, decided on 28th March, 2014.

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

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer---Appellant, who was posted at "L" was transferred to another district---Contention of appellant was that his transfer was illegal, arbitrary, mala fide and in violation of Rules of Business---Appellant who had most of his service period spent at district "L", and had never served outside in other district of the Province, was desirous to serve in district "L"---Validity---Held, it would not be justified to again allow the appellant to remain posted at district 'L"---Appeal, having no merit was dismissed, with direction that appellant be posted in other district of the Province, in accordance with his grade and scale.

Zahid Muqeem Ansari for Appellant.

M. Saleem Baloch, Addl. A.-G. for State.

Jaffar Raza Khan for Respondent No.2.

Date of hearing: 18th March, 2014.

2015 P L C (C.S.) 1324

[Balochistan Service Tribunal

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member-I

and Farzand Ali Mengal, Member (Judl.)

Syed MAZHAR-UL-HAQ

versus

INNSPECTOR-GENERAL OF POLICE, POLICE HEADQUARTER, QUETTA

S.A. No.339 of 2014, decided on 3rd December, 2014.

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

----S. 10---Fundamental Rules, R.29---Balochistan Service Tribunals Act (V of 1974), S.4---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1975, R.4(1)(e)---Transfer on deputation---Repatriation---Absence from duty---Major penalty of reduction in rank---Appellant who was employee of Balochistan Police Department, was transferred to ICT Islamabad Traffic Police on deputation for a period of 3 years; which period was extended for another two years---Appellant was repatriated to his parent department after completion of tenure---Appellant reported to Balochistan Police Department, but after availing the joining period he absented himself from his place of duty for about 2-1/2 years---Appellant was imposed major penalty of reduction in rank (demotion from the rank of Inspector to Sub-Inspector)---Validity---Absence period of 2-1/2 years, had been declared and treated as extraordinary leave without pay by competent authority---Imposition of punishment of reduction to a lower grade, without specifying the period of punishment, being in violation of Fundamental Rules, R.29, which could not be sustained---Punishment, inflicted on the appellant, was restricted for a period of few years only---Penalty imposed be restricted to some specific period---Department was directed to specify the period for which the penalty in question would remain in field---Appeal was accepted, and impugned order was set aside accordingly.

Tunvir Ahmed v. Chief Secretary 2004 SCMR 647 ref.

Mazhar Ilyas Nagi for Appellant.

Hamayoon Tareen, A.A.-G. for Respondent.

Date of hearing: 30th September, 2014.

2015 P L C (C.S.) 1475

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Muhammad Ibrahim Sumalani, Member-I

and Farzand Ali Mengal, Member (Judl.)

DAWOOD KHAN

Versus

CHIEF SECRETARY, BALOCHISTAN and 3 others

S.A.No.390 of 2013, decided on 19th May, 2014.

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

----S. 9---Balochistan Service Tribunal Act (V of 1974), S.4---Promotion---Entitlement---Both, appellant and respondent/co-employee, were appointed as drivers (BPS-4) in P & D department/parent department---Services of both, appellant and respondent, were transferred to S&GAD department/transferee department---On the request of appellant, he was re-transferred to P&D, parent department, while respondent remained in S&GAD/transferee department---Later on, appellant was promoted as Transport Supervisor in parent department---Respondent challenged the promotion of appellant in the parent department---Additional Chief Secretary withdrew the promotion order of the appellant as Transport Supervisor, and declared respondent as senior employee of P&D/department---Validity---Seniority list issued by P&D/parent department showed the appellant at serial No.1 whereas the name of the respondent employee, did not appear in that seniority list; respondent never challenged the same before the competent court was barred by time---Respondent being an employee of S&GAD/transferee department, his claim for promotion as Transport Supervisor in P&D/parent department, was not justified---Orders issued by Additional Chief Secretary/authorities were set aside, in circumstances.

Wali Muhammad Barech for Appellant.

Muhammad Saleem Baloch, A.A.-G. for official Respondents.

Zahoor Ahmed Baloch for Respondent No.2.

Date of hearing: 14th April, 2014.

2015 P L C (C.S.) 73

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

SUO MOTU CASE NO.24 OF 2010: In the matter of

(Regarding Corruption in Hajj Arrangements in 2010.)

CRIMINAL ORIGINAL PETITIONS 68 AND 93 OF 2012

(Muhammad Mushtaq and another v. Federation of Pakistan and Khushdil Khan Malik v. Sohail Ahmed and others.)

And

HUMAN RIGHTS CASE NO.42130-G OF 2012

(Complaint of Dr. M. Naeed Akhter against re-employment of Dr. Pakeeza Haider.)

Suo Motu Case No. 24 of 2010, Criminal Original Petitions Nos.68, 93 of 2012 and Human Rights Case No. 42130-G of 2012, decided on 6th December, 2013.

(a) Islamic jurisprudence---

----"Hajj"---Meaning and connotation---Word "Hajj" (the holy pilgrimage) means "to intend a journey" which connoted both the outward act of a journey and the inward act of intentions.

(b) Islamic jurisprudence---

----"Hajj"---Significance and reward of performance of "Hajj" in Islam stated.

(3:97); Darmi No.1792; Muslim, No.8; Bukhari, No.7 and Bukhari, No.1421 ref.

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

----S. 10---Posting of a civil servant as an Officer on Special Duty (OSD)---Legality---Placing an officer as OSD was tantamount to penalizing him because the expression 'OSD' was not known to either the Civil Servants Act, 1973 or the Civil Servants (Appointment Promotion and Transfer) Rules, 1973.

(d) Extradition Act (XXI of 1972)---

----S. 15---Requisition for surrender of persons to Pakistan---Scope---Pakistan being a sovereign State, Government was bound to exercise its authority to ensure that any person involved in a criminal case should be brought to Pakistan to face the law under the principle of rule of law.

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

----S. 14---Re-employment of a retired civil servant---Scope---Public interest---Re-employment of retired civil servants in services must be made in public interest because re-employment against a sanctioned post was likely to affect the junior officers, who were waiting for promotion to the next higher rank as their right of promotion was blocked---Junior officers had to wait till such re-employed officer completed his contract, and in the meanwhile, they had to face difficulties in maintaining their seniority, etc.---Promotion of an employee was not to be blocked to accommodate a retired officer, however, if the right of promotion was not blocked by re-employment, then such powers could be exercised, in an exceptional case.

Esta Code, Volume-1, Edition 2007; Suo Motu Case No.24 of 2010 PLD 2011 SC 277 and Suo Motu Case No.16 of 2011 PLD 2013 SC 443 ref.

(f) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction by the Supreme Court under Art. 184(3) of the Constitution regarding corruption and embezzlement in the arrangements of Hajj for the year 2010---Over-charging the Hajj pilgrims---Failure to provide accommodation---Investigation, hampering of---Corruption was done by political persons as well as government officers due to which Hajj pilgrims were robbed as not only extra money was charged from them but accommodation was not provided to them at one of the places---During investigation of the cases arising out of the Hajj scam, many officers/officials, who succeeded in collecting evidence against politicians/government officers involved in corruption/looting of money, were disassociated from the investigation and transferred to other positions---Hajj tour operators charged Rs.5,000 extra from each Hajj pilgrim in the name of security, which was in excess of the actual amount---Such conduct on part of Hajj tour operators was tantamount to looting the pilgrims, who were performing a sacred religious duty---Supreme Court directed that the Federal Government should expedite the matter of extradition of one of the accused of the present case from a foreign country and ensure his return to Pakistan as early as could be possible by taking all the necessary steps required in such regard; that concerned authorities should complete investigation of the cases against all the accused persons within shortest possible time and ensure completion of their trials as early as possible; that Secretary, Ministry of Religious Affairs should refer cases of Hajj operators who had been charging extra amount of Rs.5,000 from each pilgrim to Federal Investigation Agency; that all possible efforts should be made to ensure refund of said amount of Rs.5,000 to each pilgrim; that Secretary, Religious Affairs should ensure that in future no extra amount in the name of security etc. was received by Hajj operators; that strict measures should be adopted in future in order to avoid incidents of corruption in Hajj arrangements; that the Government should issue guidelines regarding Hajj arrangements including hiring of buildings for providing accommodation to pilgrims as well as transportation and other facilities during Hajj and that Federal Investigation Agency should take strict action against all those persons including politicians, officers and others in echelons of power, who interfered with and hampered the investigation of the present case---Constitutional petition was disposed of accordingly.

Qazi Ahmed Qureshi, Advocate Supreme Court for Petitioner (in Criminal Original Petition No.68 of 2012).

Nemo for Petitioner (in Criminal Original Petition No.93 of 2012).

Shah Khawar, Additional Attorney-General for Pakistan on Court Notice.

Hussain Asghar, Director, Khalid Rasool, Additional Director, Ghazanfar Abbas, Adnan and Zia-ul-Hassan, Inspectors for FIA.

Mian Khalid Habib, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Hamid Saeed Kazmi former Minister Religious Affairs.

Amjad Iqbal Qureshi, Advocate Supreme Court for Syed Yousaf Raza Gillani, former Prime Minister.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court (not present) for Abdul Qadir Gillani and Zain Iftikhar Sukheira (in C.M.As.56-57 of 2013).

Hasnat Rasool, Joint Secretary and Farid Islam Khattak, Dy. Secy. for M/o Religious Affairs.

Nemo for M/o Interior.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court (not present) and Shahbaz Kirmani, SO for Establishment Division.

Fauzi Zafar, ADPG for NAB.

M. Ikram Chaudhry, Advocate Supreme Court (in C.M.A. No.218 of 2011).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Tour Operators.

Afnan Karim Kundi, Advocate Supreme Court (on behalf of Prof. Ghazala Mehmood), Abdul Hafeez Amjad, Advocate Supreme Court (in Criminal Original Petition No.68 of 2012), Air Vice Marshal (R) Aftab Hussain in person, Dr. Pakeeza Haider in person and Iftikhar Ahmed, NSPP in person for Officers on Contract.

Date of hearing: 20th November, 2013.

2015 P L C (C.S.) 113

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Gulzar Ahmed JJ

SECRETARY SINDHI ADBI BOARD, JAMSHORO and another

Versus

Mirza DABEER HUSSAIN BAIG

Civil Appeal No.47-K of 2013, decided on 16th December, 2013.

Civil service---

----Contract employee of Adbi Board (a registered society)---Regularization in service under the orders of the Chairman of the Board/Provincial Minister of Education---Legality---Under the constitution of the Adbi Board, no power was vested in the Minister/Chairman of the Board to make appointments/regularizations of Board's employees---Clause 5 of constitution of the (Sindhi) Adbi Board specifically provided that the Board shall appoint such officers and servants as it deemed necessary to carry out the purpose of its constitution---Said clause of the constitution was essential to ensure that there was no nepotism, favouritism or arbitrary decisions in making of appointment/regularization of employees of the Board---Order passed by Chairman of the Board, whereby employee in question was regularized was without lawful authority and of no legal effect---Appeal was allowed accordingly.

Ansari Abdul Latif, Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellants.

Ms. Rukhsana Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 16th December, 2013.

2015 P L C (C.S.) 123

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Gulzar Ahmed and Muhammad Ather Saeed, JJ

AKHTAR GHORI and others

Versus

PROVINCE OF SINDH and others

Civil Review Petitions Nos.17-K, 18-K and 19-K of 2012, decided on 7th February, 2014.

(For review of the judgment dated 14-6-2012 of this Court passed in Civil Petition No.769-K of 2011)

Sindh Civil Service (Regularization of Ad hoc Appointments) Act (XIX of 1994)---

----S. 3---Sindh Public Service Commission (Functions) Rules, 1990, R.5---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Regularization of ad hoc appointments---Determination---Review petitioners claimed that they were initially regularly appointed in year, 1991, whereas respondents were appointed in year, 1992---Validity---Finding and observation of Supreme Court in its judgment under review should not have been given without examining notifications of appointments of review petitioners issued in year, 1991 and relevant provisions of Sindh Civil Service (Regularization of Ad hoc Appointments) Act, 1994---To arrive at valid conclusion that appointment order of year, 1991, could not be considered ad hoc appointments of respondents were regularized in year, 1994---Procedure prescribed in Sindh Civil Service (Regularization of Ad hoc Appointments) Act, 1994, also led to the conclusion that a procedure was prescribed therein for regularization of ad hoc employees which had to be followed and only thereafter ad hoc employees could be regularized---No such procedure was followed in cases of review petitioners to regularize their service and, therefore, assumption was that competent authority might have considered them to be regular employees from year, 1991---Supreme Court recalled its earlier judgment and fixed main petition for rehearing---Review petition was allowed.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Ajmal Hassan Khan and another v. Government of Sindh and others 2012 SCMR 860; Nazeer Ahmed Dhoon v. Government of Sindh and others 1996 SCMR 1547; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 ref.

Yawar Farooqi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners (in C.R.Ps. Nos.17-K and 18-K of 2012).

Ansari Abdul Latif, Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioners (in C.R.P. No. 19-K of 2012).

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent No.4.

Adnan Karim, Additional A.-G. Sindh on Court's Notice.

Date of hearing: 2nd January, 2014.

2015 P L C (C.S) 151

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Amir Hani Muslim, JJ

PROVINCE OF SINDH and others

Versus

GHULAM FAREED and others

Civil Appeals Nos.207-K to 249-K of 2013, decided on 7th February, 2014.

(Against judgments dated 1-8-2013 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 271 to 275 of 2012, 1 to 8, 27 to 42, 45 to 52 of 2013 and judgment dated 17-9-2013 passed by Sindh Service Tribunal in Appeals Nos. 75 to 80 of 2013)

(a) Sindh Service Tribunal Act (XV of 1973)---

----S. 6-A---Limitation Act (IX of 1908), S. 3---Appeal against termination order filed before Sindh Service Tribunal---Limitation---Termination order passed by an officer not competent in law to pass such an order---Effect---Such termination order would be void and without lawful authority---Consequently neither bar of limitation would be attracted nor period of limitation would run against such order---Appeal was dismissed accordingly.

Furqan Habib and others v. Government of Pakistan and others 2006 SCMR 460 distinguished.

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

----S. 9---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 8-A---Appointment of a civil servant on a higher grade on "Own Pay and Scale Basis" (OPS)---Legality---Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 did not contain any provision which could authorize the Government or competent authority to appoint any officer on a higher grade on OPS basis---Any appointment of such nature, that too of a junior officer would cause heart burning of senior officers within the cadre and/or department---Practice of appointment on OPS basis had always been discouraged by the Supreme Court, as it did not have any sanction of law, besides it impinged the self-respect and dignity of civil servants who were forced to work under their rapidly and unduly appointed fellow junior officers---Allowing such discretion to be vested in the competent authority would offend valuable rights of meritorious civil servants besides blocking promotions of deserving officers.

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

----R. 8-A---Appointment to higher grade on acting charge basis---Nature and scope---Appointment of an officer of a lower scale on a higher post on current charge basis was made as a stop-gap arrangement and should not under any circumstance, last for more than 6 months---Acting charge appointment could neither be construed to be an appointment by promotion on regular basis for any purpose including seniority, nor it conferred any vested right for regular appointment---Appointment on current charge basis was purely temporary in nature or a stop-gap arrangement, which remained operative for short duration until regular appointment was made against the post.

Muhammad Sawar Khan, A.A.-G. Sindh, Adnan Karim Additional A.-G. Sindh, Jalaluddin Additional Secretary, Education and Abdul Saeed Khan Ghouri, Advocate-on-Record for Appellants.

Respondents in person

Ghulam Fareed (in C. A. No.207-K of 2013).

Shakeel Ahmed (in C. A. No.208-K of 2013).

Waqar Ahmed (in C. A. No.210-K of 2013).

Ghulam Ali (in C. A. No.211-K of 2013).

Atta Muhammad (in C. A. No.212-K of 2013).

Khalil Ahmed (in C. A. No.213-K of 2013).

Ghulam Mustafa (in C. A. No.214-K of 2013).

Imdad Ali (in C. A. No.215-K of 2013).

Saphio (in C. A. No.216-K of 2013).

Abdul Majeed (in C. A. No.217-K of 2013).

Wali Muhammad (in C. A. No.218-K of 2013).

Wajid Ali (in C. A. No.219-K of 2013).

Hussain Bahleem (in C. A. No.220-K of 2013).

Sajjid Ali (in C. A. No.221-K of 2013).

Anwar Ali (in C. A. No.222-K of 2013).

Feroz Ahmed (in C. A. No.223-K of 2013).

Ayaz Ali (in C. A. No.224-K of 2013).

Zakir Hussain Sahito (in C. A. No.225-K of 2013).

Muhammad Hayat (in C. A. No.226-K of 2013).

Shakil Ahmed Khauharo (in C. A. No.230-K of 2013).

Fakir Muhammad (in C. A. No.231-K of 2013).

Afzal Ali Pathan (in C. A. No.232-K of 2013).

Qamber Ali Jamro (in C. A. No.233-K of 2013).

Nisar Ahmed (in C. A. No.234-K of 2013).

Syed Morial Shah (in C. A. No.235-K of 2013).

Ahmed Ali (in C. A. No.236-K of 2013).

Roshan Ali (in C. A. No.237-K of 2013).

Muhammad Ali (in C. A. No.240-K of 2013).

Abdul Qadir (in C. A. No.241-K of 2013).

Izhar Ali (in C. A. No.243-K of 2013).

Shabir Ahmed (in C. A. No.244-K of 2013).

Ashique Hussain (in C. A. No.245-K of 2013).

Haq Nawaz (in C. A. No.247-K of 2013).

Date of hearing: 7th February, 2014.

2015 P L C (C.S.) 201

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Peer MUKARRAM-UL-HAQ

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No.34 of 2012, decided on 7th April, 2014.

(On appeal against the judgment dated 5-4-2011 passed by the Islamabad High Court, Islamabad, in W.P. No.4738 of 2010)

(a) Constitution of Pakistan---

----Arts. 48(1), 189, 190 & 212(3)---Civil Servants Act (LXXI of 1973), S. 23---Civil Servants (Appeal) Rules, 1977, R. 5---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 3(1)(a) [since repealed]---Constitutional obligation of the President of Pakistan to ensure implementation of the judgments of the Supreme Court---Scope---Dismissal of civil servant from service attaining finality after judgment of Supreme Court---President ordering re-instatement of such civil servant on grounds of hardship under S. 23 of Civil Servants Act, 1973---Legality and effect---President nullifying findings of the Supreme Court---Civil servant in question was dismissed from service on charge of un-authorized absence from duty---Civil servant preferred departmental appeal under S. 23 of Civil Servants Act, 1973 before the President (competent authority), which remained undecided---Consequently civil servant filed appeal before the Service Tribunal, which was allowed, however Supreme Court in its appellate jurisdiction maintained penalty of dismissal from service---Such judgment of the Supreme Court attained finality---Subsequent to Supreme Court's judgment civil servant preferred second appeal/review to the President under S. 23 of Civil Servants Act, 1973, which was ultimately allowed, and civil servant was reinstated in service---Held, such order by the President was per se violative of the judgment of the Supreme Court given under Art. 212(3) of the Constitution, whereby penalty of dismissal from service was maintained---Such order by the President (competent authority) offended Art. 190 of the Constitution, which mandated that all executive and judicial authorities shall act in aid of the Supreme Court---Civil servant had already availed the right of appeal against his dismissal from service in terms of R.5 of Civil Servants (Appeal) Rules, 1977---Civil servant having exhausted his remedy of appeal in the original proceedings (before the Service Tribunal and the Supreme Court), could not in law, file a second appeal and/or review under S. 23 of the Civil Servants Act, 1973, as such appeal/review would offend the provisions of Art. 212(3) of the Constitution---Findings recorded by the Supreme Court against the civil servant could not be appealed against by resorting to S. 23 of the Civil Servants Act, 1973 before the President---President (competent authority), in the present case, had nullified the findings of the Supreme Court against the civil servant---Even otherwise civil servant in question could not have preferred the appeal/review in terms of S. 23 of the Civil Servants Act, 1973, as he ceased to be a civil servant on the date of filing of such appeal/review due to his dismissal from service attaining finality---Appeal filed by civil servant was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Constitutional obligations of the President of Pakistan and Prime Minister---Scope---Implementation of the judgments of the Supreme Court---Both President and Prime Minister had to ensure that the judgments of the Supreme Court were implemented in its letter and spirit, and findings of the Supreme Court were not nullified.

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

----S. 23---Constitution of Pakistan, Arts. 48(1), 189, 190 & 212(3)---Civil service---Dismissal of civil servant from service attaining finality after judgment of Supreme Court under Art.212(3) of the Constitution---President not empowered to reinstate such civil servant on grounds of hardship under S.23 of Civil Servants Act, 1973---Although S. 23 of Civil Servants Act, 1973 empowered the President to deal with the case of a civil servant in such a manner as may appear to him to be 'just' and 'equitable', but such power was not unbridled---Section 23 of Civil Servants Act, 1973 did not empower the President to pass orders of reinstatement of a civil servant who was dismissed from service, pursuant to the findings recorded by the Supreme Court which had attained finality---When there was no ambiguity in the findings recorded by the Supreme Court in relation to dismissal of a civil servant, the President in defiance of such findings was neither bound to act upon the advice of the Prime Minster in terms of proviso to the Art. 148(1) of the Constitution, nor the Prime Minister had the authority to advise the President to order reinstatement of such civil servant---Reinstatement of a civil servant on the ground of hardship, who had exhausted all the remedies under the law up to the Supreme Court on the issue of his dismissal from service, would be manifestly violative of Arts.189, 190 & 212(3) of the Constitution.

Shoaib Shaheen, Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2014.

2015 P L C (C.S.) 243

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

QAISER ZAMAN

Versus

FEDERAL BOARD OF REVENUE, ISLAMABAD and others

Civil Appeal No.962 of 2012, decided on 9th April, 2014.

(On appeal against order dated 28-5-2011 of the Federal Service Tribunal, Islamabad, passed in Appeal No.525(R) CS/2010)

(a) Civil service---

----Resignation from Government service, process of---Delay by concerned officials in approving resignation---Resignation of civil servant not processed by concerned officials for 2-1/2 years and instead issuing him a show notice for absence from duty, and consequently dismissing him from service---Legality---Income tax officer (appellant) applied for leave to pursue further studies---Competent authority did not sanction the leave---Appellant tendered his resignation from service on 31-3-2006, which remained unprocessed---On 13-11-2008 a show -cause notice was issued to the appellant on the ground of his absence from duty under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Appellant submitted his reply to the show-cause notice, but no response was received by him---On 17-1-2009 appellant received a notification entailing penalty of his dismissal from service---Departmental appeal filed by appellant against his dismissal from service was also dismissed as time barred---Federal Service Tribunal also dismissed appellant's appeal as being time barred---Plea of department that resignation of appellant could not be processed in time as his file had been misplaced---Validity---Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time---Department could not justify issuance of show-cause notice to the appellant after inordinate delay of 2-1/2 years---After tendering his resignation case of appellant was not processed for 2-1/2 years on the ground that his personal file went missing---Department instead of processing the case of resignation of appellant opted to proceed against him departmentally for absence of duty---Was not understandable as to how the department could sit over the resignation once it was tendered---In case the personal file of the appellant went missing the head of the department should have ordered enquiry and should have proceeded against the delinquent officers found responsible for misplacing the personal file of the appellant---Supreme Court directed Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of civil servants should be processed immediately and the concerned civil servant should also be informed about its fate forthwith as per the rules; that delinquent officers/officials who caused delay in processing resignation cases should be made accountable and proceeded against departmentally---Appeal was allowed accordingly and orders passed by departmental authority and Federal Service Tribunal were set aside.

(b) Civil service---

----Resignation from Government service, approval of---Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time.

Ch. Abdul Rab, Advocate Supreme Court for Appellant.

M.D. Shehzad Feroz, Advocate Supreme Court for Respondents Nos.1 and 2.

Ibrar Ahmed, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 9th April, 2014.

2015 P L C (C.S.) 267

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SHAHID AHMED

Versus

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

Civil Petition No.595-K of 2013, decided on 28th February, 2014.

(On appeal from judgment dated 4-9-2013 of the High Court of Sindh, Hyderabad, passed in C.P. No.D-413 of 2013)

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

----R. 12-A---Constitution of Pakistan, Art. 199---Civil service---Date of birth, alteration in---Delay of 20 years in seeking alteration in date of birth--- Laches--- Effect---Employee of Oil and Gas Development Company (OGDCL) made an application to the company for correction in his date of birth from 6-6-1953 to 11-6-1956 on the strength of a certificate issued by the Executive District Officer (Education)---Said application was rejected by OGDCL---Employee filed a constitutional petition before High Court against order of OGDCL, which was dismissed on the ground of laches---Validity---Employee at the time of joining service in OGDCL submitted numerous documents, including his secondary school certificate, Computerized National Identity Card, personal bio-data, personal data form, and all said documents mentioned his date of birth as 6-6-1953---Employee made representation before OGDCL for correction of his date of birth after serving his department for more than 20 years, at a time when he was nearing retirement---Employee was unable to offer any explanation for such inordinate delay in seeking correction of his date of birth---Even at the time of joining service, employee did not reserve his right to seek amendment in his date of birth, nor did he place any material to show that he had approached any authority for correction of his date of birth at the time of joining service---In terms of office memorandums/ circulars issued by OGDCL during different years, employee in question was required to declare his correct date of birth at the time of joining service, and said circulars also provided that date of birth declared at the time of entry into service shall be treated as final and no amendment would be allowed at any subsequent stage---Employee had submitted his date of birth as 6-6-1953 in response to said circulars, and now after 20 years in service he was seeking to nullify documents submitted by him earlier---High Court in such circumstances was justified in holding that constitutional petition was barred by laches.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Employee seeking protection against discrimination---Scope---Where employer/authority had wrongly given a right to an employee in contravention of the law or rules, it would not form basis to confer any right upon other employees---Illustration.

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

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on a certificate issued by the Executive District Officer (Education) to seek change in his date of birth---Such certificate authorizing change in date of birth had no legal sanctity nor could bind the employer organization to change and/or amend the service record.

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

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on a medical certificate issued by a surgeon to seek change in his date of birth---Radiological reports were essential for determining the age of a person---Medical certificate issued by a surgeon would not be of any significance, if the surgeon had not formed his opinion on the basis of radiological reports.

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

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on academic certificates based on a sworn affidavit to seek change in his date of birth---Such academic certificates could not sanctify the correct date of birth, unless such material was proved before a civil court of competent jurisdiction by recourse to a civil suit.

M.M. Aqil Awan, Advocate Supreme Court for Petitioner.

Salahuddin Gandapur, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents.

Date of hearing: 28th February, 2014.

2015 P L C (C.S.) 296

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

SECRETARY, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and 269 others---Appellants

Versus

M. ISMAIL TAYER and 269 others---Respondents

Civil Appeals Nos.971 to 1012, 1013 of 2012, C.M.As. Nos.5314, 1014 to 1017 of 2012, 289-L, 386-L to 401-L of 2013, 61 to 223, 274 of 2014 and Civil Petitions Nos.1040-L, 1049-L, 1070-L of 2013, 46-L to 58-L, 92-L to 94-L, 106-L, 213-L, 219-L to 225-L, 239-L, 257-L, 277-L, 293-L, 307-L to 315-L and 330-L of 2014, decided on 31st March, 2014.

(On appeal from the judgment dated 5-5-2011 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.773 of 2009 and the judgments/orders dated 17-1-2012, 17-11-2011, 27-2-2012, 17-1-2012, 2-2-2012, 17-1-2012, 23-4-2012, 21-11-2011, 31-5-2012, 8-10-2012, 1-11-2012, 22-10-2012, 30-10-2012, 1-11-2012, 16-10-2012, 1-11-2012, 13-12-2012, 18-12-2012, 24-12-2012, 14-12-2012, 10-7-2013, 31-7-2013, 30-1-2013, 15-1-2013, 22-1-2013, 16-1-2013, 4-2-2013, 8-1-2013, 15-1-2013, 2-5-2013, 24-5-2013, 22-5-2013, 10-6-2013, 28-5-2013, 28-6-2013, 3-7-2013, 25-6-2013, 25-6-2013, 28-6-2013, 12-8-2013, 19-6-2013, 30-7-2013, 10-4-2013, 9-9-2013, 10-9-2013, 18-9-2013, 10-9-2013, 19-9-2013, 20-9-2013, 17-9-2013, 16-9-2013, 15-1-2013, 16-9-2013, 21-10-2013, 26-9-2013, 27-9-2013, 30-9-2013, 19-9-2013, 30-9-2013, 3-10-2013, 4-10-2013, 1-10-2013, 24-9-2013, 26-9-2013, 27-9-2013, 30-9-2013, 1-10-2013, 7-10-2013, 14-10-2013, 23-10-2013, 7-10-2013, 24-10-2013, 10-10-2013, 21-10-2013, 28-10-2013, 29-10-2013, 30-10-2013, 2-10-2013, 21-10-2013, 4-10-2013, 14-10-2013, 31-10-2013, 21-10-2013, 22-10-2013, 23-10-2013, 24-10-2013, 7-10-2013, 28-10-2013, 31-10-2013, 30-10-2013, 4-11-2013, 6-11-2013, 13-12-2013, 24-5-2013, 17-5-2013, 2-5-2013, 11-11-2013, 12-11-2013, 13-11-2013, 15-1-2013, 18-11-2013, 29-11-2013, 19-11-2013, 20-11-2013, 20-11-2013, 4-11-2013, 4-11-2013, 7-11-2013, 20-11-2013, 18-11-2013, 17-12-2013, 19-12-2013, 17-11-2013, 23-12-2013, 26-12-2013, 19-12-2013, 17-12-2013, 23-12-2013, 20-11-2013, 19-12-2013 and 23-12-2013 of the Lahore High Court, Lahore/Bahawalpur Bench/ Rawalpindi Bench/Multan Bench, passed in W.Ps. Nos.29579, 6293, 20379, 20380, 20383, 20385 to 20393, 21546, 21547, 21550, 25402, 25403, 20376, 20377, 20381, 20382, 20384, 20394, 21548, 21551, 20378, 21549 of 2011, I.C.A. No.50 of 2012, W.Ps. Nos.324, 326, 327 of 2012, 11141, 24765 of 2011, 325, 299, 1653, 1654, 1914, 679, 3521 of 2012, 23058 of 2011, 13248, 13249, 10644, 298, 8745, 8746, 26478, 25760, 8747, 17077, 27183, 24652, 29155, 29287, 30862 to 30867 of 2012, 1480, 19144, 1899 of 2013, 29536, 31347 of 2012, 859, 1942, 2264, 2265, 2589 of 2013, 539, 29593, 29332 of 2012, 1373, 5058, 5069, 5071, 5073, 5499, 5501 to 5503, 5561, 5866, 6660, 7817, 7818, 8062, 7822, 5504, 5070, 5562, 5500, 5505, 7820, 5072, 7819, 7821 of 2013, 8344 of 2011, 7489, 7899, 8671, 5661, 8038, 1372, 8837, 10973 to 10975, 14337, 13122, 13168, 3487, 3486 of 2013, 21301 of 2012, 14297, 15537, 15950 of 2011, 345, 4643, 7349, 8640, 11504 of 2012, 3216, 894, 1853, 2689, 3216, 8984, 4507, 3485, 17937 of 2013, 25742 of 2011, 5102 of 2012, 8122, 933, 21918, 22183, 17118, 20381, 22028, 22166, 22144, 23519, 23665, 23770, 23093, 22912, 29332, 22888, 6162, 14635, 24551, 24664, 24850, 23493, 24769, 25276, 25197, 25012, 24099, 24211, 24437, 24645, 24713, 24757, 24939, 24957, 25692, 26431, 26923, 25685, 3946, 26059, 26131 of 2013, 6035, 6044/2013/BWP, 26111, 22115, 24286, 25495, 25161, 22102, 22103, 23375, 24618, 24949, 24953, 25055, 25239, 25484, 25670, 25984, 26140, 26738, 27343, 27480, 27559, 27730, 25103, 21989, 25196, 25517, 26516, 26557, 26611, 26636, 27804, 23183, 23230, 23823, 25703, 26820, 19412, 19413, 26878, 27151, 25682, 27487, 27796, 27690, 28166, 28424, 2547, 1878, 12157, 5041, 28780, 28797, 28927, 29044, 29131 of 2013, 29332 of 2012, 29291, 29287, 29314, 29331, 29346, 29470, 29545, 28067, 28135, 11026, 13644, 20141, 27206, 30834, 21545, 27710, 27562, 29537, 26514, 10544, 27314, 26635, 10667, 30967, 28184, 28475, 28664, 28893, 29230, 29263, 29303, 29317 and 27622 of 2013)

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

----S. 18---Punjab Civil Services Pension Rules, 1963, Rr. 4.4, 8.1 & 8.12---Constitution of Pakistan, Arts. 25, 185 & 212---Pension---Commutation of pension for a certain period---Periodic increase in pension during commutation period---Expiry of commutation period---Effect---Full pension would be restored inclusive of periodic increase in pension during the commutation period---Pension of retired civil servants of Provincial Government was commuted to one half for a period of 15 years---Upon expiry of commutation period full pension was restored---Provincial Government issued an Office Memorandum whereby increase in pension granted during the commutation period was deducted from the pension paid to retired employees---Legality---When a retired civil servant's portion of pension was commuted for a particular period of time, he surrendered his right to receive full pension in lieu of lump sum payment received by him, and on expiry of the commuted period, his right and entitlement to receive full pension, as prescribed, was restored and re-vested in him---Restoration of the right to receive pension in terms of R. 8.12 of Punjab Civil Services Pension Rules, 1963 was without any rider, and upon re-vesting of such right, the status of such retired civil servant in law was brought at par with the other retired civil servants, who had not exercised their option of seeking commutation of their pension---Retired civil servant on expiry of the period of commutation could not be discriminated against by being paid less pension, than his colleagues, who had not sought commutation, as there was no valid justification available in law between the two--- If the Government were to adopt such a course of (discriminative) action, as had been attempted in the present case, it would offend Art. 25 of the Constitution---Restored pension payable to a retired civil servant upon expiry of period of commutation would obviously include any increase in pension granted by the Government during the intervening period of commutation---Even retired civil servants of the Federal Government were being paid their pension inclusive of the increases sanctioned during the commutation period, after the Supreme Court struck down an Office Memorandum, which deprived increase in pension sanctioned during the commuted period---Appeal was dismissed accordingly.

Akram ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others 2012 SCMR 106 distinguished.

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

----S. 19---Pension, right of---Nature---Acquired and vested right---Pension formed a part of a civil servant's retirement benefits---Pension was not a bounty or an ex-gratia payment but a right acquired in consideration of past services---Pension was a vested right and a legitimate expectation of a retiring civil servant---Right to pension was conferred by law and could not be arbitrarily abridged or reduced except in accordance with law.

The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P. Communication and Works Departments Peshawar v. Muhammad Said Khan and another PLD 1973 SC 514; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Deokinandan Prasad v. State of Bihar and others AIR 1971 SC 1409 and State of Punjab and another v. Iqbal Singh AIR 1976 SC 667 ref.

(c) Words and phrases---

----"Restored"--- Definition.

Words and Phrases, Permanent Edition, Volume 37A; Corpus Juris Secundum, Volume 77 and Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 4 ref.

Ch. Muhammad Iqbal, Additional A.-G., Khalid Mehmood, Additional Secretary (Regulation), Finance Department, Government of the Punjab, Lahore for Appellants.

Khadim Nadeem Malik, Advocate Supreme Court, Asif Ch., Advocate Supreme Court, Abrar Hasan Naqvi, Advocate Supreme Court, Talat Farooq Sh., Advocate Supreme Court, Nazeer Ahmed Qureshi, Advocate Supreme Court, Afshan Ghazanfar, Advocate Supreme Court, Mian Ashiq Hussain, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

Date of hearing: 31st March, 2014.

2015 P L C (C.S.) 315

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa and Iqbal Hameedur Rahman, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary and others

Versus

AAMIR JUNAID and others

Civil Appeal No.4-L of 2014, decided on 28th March, 2014.

(On appeal from the judgment dated 19-6-2013 of the Lahore High Court, Lahore passed in W.P. No. 12113 of 2010)

Civil service---

----Contract employment---Advertised posts---Selection process---Irregularities and non-observance of codal formalities in selection process---Termination from service---Reinstatement in service after re-processing selection of each appointee---Locus poenitentiae, rule of---Scope---Respondents participated in the selection process, whereafter they were issued appointment letters and joined their respective services---Subsequently respondents were issued termination letters on the basis that their appointments had been made without observing codal formalities, and the official who had signed their appointment letters was not competent to do so---Respondents filed constitutional petition before the High Court, which was allowed and impugned termination orders were set aside with the directions that a Committee should be constituted to re-process the case of each respondent; that in case any of the respondents had submitted a fake document, or there was any criminal case pending against him, or he was not a resident of the area for which recruitments were made or otherwise did not meet the eligibility criteria provided in the advertisement on the basis of which he was appointed, such respondent shall not be inducted into service, and that all other respondents shall be deemed to have been reinstated into service with effect from the date on which their services were terminated---Validity---Such order passed by the High Court was absolutely valid and it had been left to the department itself to scrutinize/examine the eligibility of the respondents---High Court gave directions to retain those who passed the eligibility test by applying the rule of locus poenitentiae, notwithstanding that there was some irregularity in the process of selection, may be on account of one of the members (of the recruitment committee) who was said to be incompetent to act as appointing authority, and those who were not eligible/qualified were to be relieved from service---Department had to act fairly in terms of the directions of the High Court and take further action---Supreme Court directed that re-selection process, as mandated by the High Court, should be completed within a period of two months without fail---Appeal was dismissed accordingly.

Imtiaz Ahmed Kaifi, Additional A.-G. for Appellant.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents.

Mian Jaffer Hussain, Advocate Supreme Court for Applicant (in C.M.A. 1738-L of 2013).

Date of hearing: 28th March, 2014.

2015 P L C (C.S.) 366

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ

INSPECTOR-GENERAL OF POLICE, PUNJAB---Appellant

Versus

TARIQ MAHMOOD---Respondent

Civil Appeal No. 52 of 2012, decided on 25th April, 2013.

(On appeal from the judgment dated 20-10-2011 of the Punjab Service Tribunal, Lahore passed in Appeal No.3039 of 2010)

Civil Service Rules (Punjab)---

----R. 7.3---Fundamental Rules, R. 54---Reinstatement in service---Back benefits, entitlement to--- Payment of back benefits on reinstatement in service---Scope---Police official was dismissed from service due to registration of F.I.R. and civil suit filed against him---Police official filed revision petition before the Inspector General of Police, which was kept pending till the decision of F.I.R. case and civil suit by the court---Subsequently police official was acquitted from the F.I.R. case and as a result his revision petition was allowed and he was reinstated in service---Service Tribunal allowed payment of back benefits to the police official for the period during which he remained out of service---Validity---Grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department was a rule and denial of such benefits was an exception on the proof that such person had remained gainfully employed during such period---Entitlement of back benefits of a person had to be determined on the basis of facts of each case independently---Police official could not be held responsible for the period during which his revision petition was kept pending due to the F.I.R. and civil suit, because such pendency was on account of the act of the police department---Revision petition filed by police official was kept pending till the decision of the criminal as well as civil case, which had no relevance because unless he had been found guilty by the Court, he was not debarred from performing his duty---Police official was entitled to back benefits, as it was the police department, which on basis of a wrong opinion kept him away from performing his duty---Police official was entitled to back benefits from the date of filing revision petition till his reinstatement in service---Appeal was dismissed accordingly.

Muhammad Hussain and others v. EDO (Education) and others 2007 SCMR 855; Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi 2010 SCMR 11; Sher Muhammad Shahzad v. District Health Officer 2006 SCMR 421; Binyamin Masih v. Government of Punjab through Secretary Education, Lahore 2005 SCMR 1032; General Manager/Circle Executive Muslim Commercial Bank Limited v. Mehmood Ahmed Butt 2002 SCMR 1064; Pakistan through General Manager, P.W.R., v. Mrs. A.V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Secretary to the Government of Pakistan 1994 SCMR 1801 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Jawwad Hassan, Additional A.-G. for Appellant.

Aftab Alam, Advocate Supreme Court for Respondent.

Date of hearing: 25th April, 2013.

2015 P L C (C.S.) 405

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Amir Hani Muslim and Dost Muhammad Khan, JJ

SECRETARY, MINISTRY OF SCIENCE AND TECHNOLOGY and another

Versus

MUHAMMAD ANWAR BUTT

Civil Petition No.804 of 2014, decided on 9th September, 2014.

(On appeal from judgment dated 1-4-2014 passed by the Islamabad High Court of Islamabad, in W.P. No.3221 of 2012)

National Institute of Electronics Service Rules, 1998---

----R. 8(1)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 8B (4), (5), (6) & (7)---Pension, calculation of---Retirement while working on an Acting Charge basis post---Last pay drawn---Illegal appointment on Acting Charge basis---Effect---Employee of National Institute of Electronics, whose original basic scale was BS-19, was appointed to a post in BS-20 on Acting Charge basis---Employee reached his age of superannuation while working in the BS-20 post on Acting Charge basis---Upon his retirement employee was issued Last Pay Certificate in BS-19 instead of BS-20---Legality---Employee in question was not validly appointed on Acting Charge basis in BS-20---For purposes of appointment on Acting Charge Basis, the procedure laid down under Rr.8B (4), (5), (6) & (7) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 would be applicable to employees of National Institute of Electronics---In terms of the said Rules, first there had to be a vacancy and the person appointed on such vacancy on Acting Charge basis had to be the senior most officer in his pay scale/cadre and was otherwise eligible for promotion, which eligibility should also qualify tenural limitations---Material available on record did not reveal that the employee in question was the senior most officer in BS-19, besides he was not recommended by the Selection Board as provided under R. 8(1) of the National Institute of Electronics Service Rules, 1998, for appointment on Acting Charge basis in BS-20---Federal Minister concerned who had appointed the employee to BS-20 on Acting Charge basis did not have the competence to do the same without the recommendations of the Selection Board---Appointment of employee in question in BS-20 on Acting Charge basis was unwarranted in law being invalid, thus he could not claim pensionary benefits of BS-20---Appeal was allowed accordingly.

Province of Sindh and others v. Ghulam Farid 2014 SCMR 1189 ref.

Nemo for Petitioners.

M. Farooq Raja, Advocate-on-Record and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

Date of hearing: 9th September, 2014.

2015 P L C (C.S.) 419

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

ARSHAD ALI TABASSUM

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

Constitutional Petition No.11 of 2014, decided on 1st July, 2014.

(Petition under Article 184(3) of the Constitution against Notification dated 24-5-2013 passed by the Registrar Lahore High Court, Lahore)

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution---Post of Additional District and Sessions Judge---Interview---Interview Committee, opinion of---Non-interference by the Supreme Court---Allegation of malice on part of members of Interview Committee---Supreme Court could not substitute opinion of the Interview Committee on a bald allegation made by an unsuccessful candidate, who lost his chance in the interview---Constitutional petition was dismissed accordingly.

Asif Mahmood Chughtai, Advocate and 17 others v. Government of Punjab through Chief Secretary and others 2000 SCMR 966; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 and Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 rel.

(b) Constitution of Pakistan---

----Art. 184(3)---Punjab Civil Servants Act (VIII of 1974), S. 10---Constitutional petition before the Supreme Court under Art.184(3) of the Constitution---Post of Additional District and Sessions Judge---Interview---Interview Committee, opinion of---Non-interference by the Supreme Court---Petitioner appeared in the written examination for the post of Additional District and Sessions Judge and secured third highest marks in the Province---Petitioner was called for interview but obtained only 40 marks out of a total of 100 marks, which was less than required 50% marks to be eligible for appointment---Petitioner alleged malice on part of Interview Committee and contended that he was not recommended for appointment for the reason that his services as a civil judge were terminated on the charge of misconduct, which was used by the Interview Committee to oust him from the selection process---Validity---No measuring apparatus was available with the Supreme Court to determine that the petitioner was deferred/unsuccessful in the interview only for the reason of his misconduct as a civil judge---Presumption was that Interview Committee must have given the petitioner (40) marks after judging his ability without being influenced by his earlier misconduct, as the Interview Committee was not acting as a Disciplinary Committee dealing with misconduct of petitioner---Since the petitioner could not fulfil the requisite criteria for the post of Additional District and Sessions Judge, therefore, he was not recommended for appointment by the Selection Committee---Petitioner was unable to establish any malice on part of the Interview Committee---No illegality had been committed to warrant interference by the Supreme Court in its constitutional jurisdiction---Constitutional petition was dismissed accordingly.

Petitioner in person.

Ch. Muhammad Iqbal, Additional A.-G. Punjab for Respondent.

Date of hearing: 1st July, 2014.

2015 P L C (C.S.) 435

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

MUHAMMAD ASIF CHATHA and others

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others

Civil Appeals Nos.222 to 238 of 2012, decided on 25th November, 2014.

(On appeal against the judgment dated 25-11-2011 passed by Punjab Service Tribunal, Lahore in Appeals Nos.2933 to 2936, 2939 to 2943, 2951 of 2005, 4416 of 2006, 500 to 505 and 591 of 2006)

(a) Constitution of Pakistan---

----Art. 212(3)---Civil service---Appeal against judgment of Service Tribunal filed before the Supreme Court---Question of fact---Such question could not be gone into in appeal proceedings before the Supreme Court under Art. 212(3) of the Constitution.

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

----R. 8-B---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 13--- Appointment on acting charge/ officiating basis--- Promotion--- Scope--- Appointment on acting charge/officiating basis did not confer any vested right for regular promotion.

Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

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

----R. 13---Promotion to higher post on officiating basis---Civil servants seeking regularization of such promotion--- Limitation--- Delay of 6 years in raising issue of regularization of promotion---Effect---Three seniority lists were issued, during the period when civil servants remained promoted on officiating basis, showing them not only junior to other civil servants but also on officiating basis but they kept mum and never challenged the said lists---Civil servants after their appointment on officiating basis in the years 1995-1998 could not have agitated the matter in the year 2001---Civil servants seemingly had accepted their appointment on officiating basis---Appeal filed by civil servants seeking regularization of their promotion was dismissed accordingly.

Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 distinguished.

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

----S. 4---Departmental representation, filing of---Limitation period---Appeal filed before Service Tribunal--- Limitation period and competency---When a departmental representation was barred by time, then without disclosing any sufficient reason for delay, no subsequent order of disposal of such incompetent representation could create fresh cause of action and that the appeal filed before the Service Tribunal would be incompetent.

Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and others 1998 SCMR 882 and NED University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453 ref.

Saif ul Malook, Advocate Supreme Court for Appellants (in all cases).

Respondents in person.

Mudassir Khalid Abbasi, A.A.-G. for Government of Punjab.

Date of hearing: 13th November, 2014.

2015 P L C (C.S) 505

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Anwar Zaheer Jamali and Iqbal Hameedur Rehman, JJ

Lt. Gen. (Retd.) JAMSHAID GULZAR and another

Versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos.826, 827 and 828 of 2007, decided on 25th June, 2013.

(On appeal from judgments of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-12-2005 and 8-3-2006 passed in W.Ps. Nos.2379 of 2005 and 68 of 2006)

(a) Constitution of Pakistan---

----Art. 242(1A)---Federal Public Service Commission Ordinance (XLV of 1977), S. 4---Federal Public Service Commission (Amendment) Act (V of 2006), S. 2---Chairman and Members of Federal Public Service Commission, appointment of---Terms of office---Reduction in tenure of office---Authority of legislature to take away a vested right retrospectively---Scope---Chairman and Members of Federal Public Service Commission were appointed for a term of five years under Art.242(1A) of the Constitution and S. 4 of the Federal Public Service Commission Ordinance, 1977, respectively---Subsequently their tenure of office was reduced to three years by promulgation of various Ordinances and finally by Federal Public Service Commission (Amendment) Act, 2006---Plea of Chairman and Members of the Commission was that their appointment for a term of five years was their vested right which could not be curtailed or reduced to three years by retrospective operation of the impugned Ordinances and the Federal Public Service Commission (Amendment) Act, 2006---Validity---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment---Language of S. 2 of Federal Public Service Commission (Amendment) Act, 2006 made it clear the change in tenure of office had been given retrospective effect from the date when Federal Public Service Commission Ordinance, 1977 was promulgated---Legislature had ensured the applicability of the Federal Public Service Commission (Amendment) Act, 2006 with retrospective effect, covering the case of all serving Chairman/Members of the Commission---When the legislature had given the Federal Public Service Commission (Amendment) Act, 2006 retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights could be offered contrary to it--- Appeal was dismissed accordingly.

(b) Legislation---

----Retrospective effect---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment.

(c) Legislation---

----Retrospective effect---Vested right, curtailment of---Scope---Where the legislature had given an enactment retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights of a party could be offered contrary to it.

Nasir-ud-Din Khan Nayyer, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Appellants.

Raja Muhammad Aleem Abbasi, Deputy Attorney-General and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 25th June, 2013.

2015 P L C (C.S.) 666

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mian Saqib Nisar and Amir Hani Muslim, JJ

NATIONAL ASSEMBLY SECRETARIAT through Secretary

versus

MANZOOR AHMED and others

Civil Appeal No. 1355, C.M.A. No. 4783 of 2014 in C.A. 1355 of 2014, decided on 17th November, 2014.

(On appeal against the judgment dated 21-7-2014, passed by the Islamabad High Court Islamabad, in Writ Petition No.3547 of 2013)

(a) Constitution of Pakistan---

----Arts. 199 & 212(2)---Civil Service---Statutory rules relating to terms and conditions of service, violation of---Bar of jurisdiction of High Court---Civil servant could not have approached the High Court under Art. 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his service in view of the bar created under Art. 212(2) of the Constitution---High Court, therefore, was not competent to adjudicate the issue raised in the constitutional petition---High Court had fallen in error while proceeding on the erroneous assumption that civil servant had raised the issue of violation of the statutory rules, therefore, it was competent to decide the issues---High Court had adopted an incorrect approach by entertaining a constitutional petition of a civil servant on the ground of the statutory violation---Such grievances of a civil servant fell within the domain of the Federal Service Tribunal as mandated by the Constitution.

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

----S. 10---Transfer, temporary nature of---No right of transferee to get absorbed in borrowing department---Transfer under S. 10 of the Civil Servants Act, 1973 was itself of a temporary nature and neither confered a right on the transferee to get himself absorbed nor the borrowing department, in law, could be compelled to retain the services of such an employee on permanent basis by absorption---No concept of absorption of a civil servant in another department existed either in the Civil Servant Act, 1973 or the Rules framed thereunder---Section 10 of the Civil Servants Act, 1973 empowered the competent authority to order an employee from one post to another, which was never permanent in nature.

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

G.M. Chaudhry, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 - 4.

Date of hearing: 17th November, 2014.

2015 P L C (C.S.) 767

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

MUHAMMAD BACHAL MEMON and others

versus

Syed TANVEER HUSSAIN SHAH and others

Civil Appeals Nos.5-K of 2014 and 311 to 314 of 2013, decided on 18th June, 2014.

(Against the judgments dated 28-10-2013 and 12-11-2010 passed by the Sindh Service Tribunal, Karachi and High Court of Sindh in Appeal No.95 of 2012 and Constitutional Petition No.D-890 of 2006 respectively)

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

----Ss. 8 & 9---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 9---Constitution of Pakistan, Arts. 139(3) & 240---Civil service---Cadres---Inter se seniority---Engineers working in different Government departments having separate seniority lists---Reconfiguration/merger of departments---Procedure---Creation of combined seniority list---Legality---First cadre of engineers worked in the Provincial Education Department---Second cadre of engineers worked in the Communication and Works Department ("C&W") Department---Said two cadres continued their parallel existence alongside each other---As a result of reconfiguration of departments in the year 2002, Provincial Government created a new Works and Services department and a combined seniority list was prepared for engineers belonging from the two cadres on the basis that said two cadres purportedly stood merged---Held, under the constitutional scheme, administrative changes or allocation and reallocation of the business of the Province could be made under the Rules of Business made under Art. 139(3) of the Constitution but changes in the service conditions including seniority of civil servants could only be made under Art. 240 of the Constitution, something which was not done in the present case---Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the rules framed thereunder for such purpose---Even if an attempt was made by the Provincial Government to provide for a change or merger of cadres it had to be done in accordance with the provisions of S.8 of the Sindh Civil Servants Act, 1973, which related to seniority or through legislation---Preparation of combined/joint seniority list for the engineers from the two cadres was not in accordance with the law---Appeal was disposed of accordingly.

(b) Fundamental Rules, 1922---

----R. 9(4)---Sindh Civil Servants Act (XIV of 1973), Preamble---"Cadre"---Term "cadre" was not defined in the Sindh Civil Servants Act, 1973---Term "cadre" as given in the Fundamental Rules, 1922 was not inconsistent with any of the provisions of the Sindh Civil Servants Act, 1973, thus the same would apply to the service laws of the Province (i.e. Sindh).

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

----Ss. 8 & 26---Constitution of Pakistan, Art. 240---Inter se seniority of civil servants---Alteration in---Terms and conditions of service including seniority inter se between civil servants could only be altered/effected by means of an Act of the Provincial Assembly as had been expressly stipulated in Art. 240 of the Constitution or by rules made within the rule making power given in S. 26 of the Sindh Civil Servants Act, 1973.

(d) Constitution of Pakistan---

----Art. 139(3)---Civil service---Rules of Business of a Provincial Government---Rules of business could not be made in respect of service matters.

(e) Civil service---

----Government departments--- Merger of--- Cadres--- Merger of government departments did not by itself, amount to merger of cadres.

M. Aqil Awan, Senior Advocate Supreme Court for Appellants (in C.A. No.5-K of 2014).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As. No.311 - 312 of 2013).

Mehmood A. Sheikh, Advocate-on-Record assisted by Faraz Raza Advocate, Moazzam Habib, Advocate and Ms. Amina Sheikh, Advocate for Appellants.

Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. No.313 of 2013).

Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. No.314 of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.A. No.5-K of 2014).

M. Aqil Awan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3, 4, 6, 7, 9, 10 (in C.A. No.311 of 2013).

Wasim Sajjad, Senior Advocate Supreme Court assisted by Idris Ashraf, Advocate for Respondent No.3 (in C.A. No.312 of 2013).

Nemo for other Respondents.

Sibtain Mehmood, A.A.-G. for Province of Sindh.

Dates of hearing: 7th to 10th and 17th April, 2014.

2014 P L C (C.S.) 829

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

CHIEF COMMISSIONER, INLAND REVENUE and another

versus

MUHAMMAD AFZAL KHAN and others

Civil Petition No.908 and C.M.A. 3131 of 2014, decided on 8th July, 2014.

(On appeal from the judgment of the Lahore High Court, Lahore dated 19-2-2014 passed in I.C.A. 303 of 2011)

Constitution of Pakistan---

----Arts. 25, 185(3) & 199---Civil service---Similar posts in different departments performing similar functions---Up-gradation of posts---Uniformity---Discrimination---Respondents were appointed as Senior Auditors (BPS-16) in the Sales Tax Department---After reconfiguration of tax department respondents were re-designated as Inland Revenue Audit Officers---Respondents filed constitutional petition before the High Court for up-gradation of their posts on the analogy of up-gradation of posts to BPS-18 of Audit Officers in other departments like Auditor General of Pakistan, Accountant-General Punjab and Controller General of Accounts---Constitutional petition was allowed by the High Court on the grounds that respondents performed similar functions to that of Audit Officers in the other said departments, thus, refusal to grant them BPS-18 would amount to discrimination, and that Paragraph 2(a) of the Office Memorandum dated 20-1-2001 provided for uniformity in the up-gradation of similar posts in different departments of similar nature---Validity---Supreme Court granted leave to appeal to consider inter alia whether the constitutional petition filed by the respondents before the High Court was maintainable, as its subject matter related to the terms and conditions of service of the respondents and thus within the exclusive jurisdiction of the Service Tribunal; whether Paragraph No. 2(a) of the Office Memorandum dated 20-1-2001, could be construed in a manner that the up-gradation of a post in one department of the Government would furnish a ground to the officers performing similar job in other departments for up-gradation of the post, as the said provision provided that up-gradation could only be made if it was considered to be necessary for bringing about rationalism in the administrative structure; whether maintaining the impugned judgment of the High Court would bring about anomalies within the Inland Revenue Department as the respondents may as a result rank senior to other officers to whom they were subordinate; and whether the respondents could have been granted up-gradation from BPS-16 to BPS-18 when in the meanwhile their posts had already been upgraded to BPS-17 on 14-4-2012.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ibrar Ahmed, Advocate Supreme Court for Petitioners.

Hamid Khan, Senior Advocate Supreme Court for Respondents Nos.1 to 39.

Date of hearing: 8th July, 2014.

2015 P L C (C.S.) 962

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

versus

MUHAMMAD JAVED and others

Civil Appeals Nos.795 to 805 of 2014, decided on 24th November, 2014.

(On appeal from the judgment dated 26-2-2014 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos.1175 to 1184 of 2012)

(a) Khyber Pakhtunkhwa Irrigation and Public Health Engineering Department (Recruitment and Appointment) Rules, 1979---

----Appendix---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3---Promotion quota, reduction in---Provincial Government changing promotion criteria by prescribing higher education qualification--- Service Tribunal, jurisdiction of--- Sub-Engineers (BPS-11) (respondents) were appointed in Irrigation Department on the basis of having a diploma in Associate Engineering and enjoyed 20% reserved quota for promotion to the post of Assistant Engineer (BPS-17) as provided in the Khyber Pakhtunkhwa Irrigation and Public Health Engineering Department (Recruitment and Appointment) Rules, 1979---Said Rules were amended and stipulated promotion quota of appellants was reduced to 15% and a new category (for promotion) was created for those Sub-Engineers who possessed a degree in B.Tech. (Hons.) and who had passed Grade A and Grade B examinations with a minimum service of five years---Appellants contended that carving out of such new 'category' of degree holders had reduced the promotion prospects of diploma holders---Service Tribunal directed the Provincial Government to reconsider the amendments made to the Rules and in the meantime put on hold promotions under the amended Rules---Legality---Amendment made to the Rules in question was not with a view to accommodate specific individuals or for any other ulterior motive---Service Tribunal appeared to have been impressed by the fact that there were one hundred and thirty diploma holders whereas there were only thirteen graduates having B.Tech (Hons.) degrees, therefore, in the opinion of the Tribunal it was necessary to preserve the quota of the diploma holders---Concern of the Tribunal effectively meant that if there were many less qualified persons they should have greater prospects for advancement and those who had higher qualifications or who had improved their qualifications should not have an advantage---Such anxiety and concern of the Tribunal was misplaced---Amendment made to the Rules in question was a policy matter and the Government was empowered to reduce the promotion quota of Sub-Engineers holding diploma, and also to create a separate promotion quota for those holding B.Tech (Hons.) degree; the same was also not justiceable---Service Tribunal had clearly exceeded its jurisdiction in issuing directions to Provincial Government for reconsideration of the impugned amendment and by putting on hold the promotions under the amended Rules---Appeal was allowed accordingly and judgment of Service Tribunal was set aside.

Dr. Alyas Qadeer Tahir v. Secretary M/o Education 2014 SCMR 997 ref.

(b) Civil service---

----Promotion, criteria for---Educational qualification---Government changing promotion criteria by prescribing higher educational qualification---Effect---When talent, skill and capability was rewarded, it provided opportunity to ambitious employees, and if those amongst them who were better qualified received a differential focus it benefited the department and the people of the country, as all civil servants were there to serve the people---Similarly, if the bar to aspire to higher positions (i.e. promotion) was raised, it encouraged and motivated employees to take ownership of their careers and personal development---Moreover, when higher educational qualification and talent was appreciated it made for a more transparent system of advancement and may also help to retain talented individuals in an organization.

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

----S. 3---Constitution of Pakistan, Art. 212(1)(a)---Service Tribunal, jurisdiction of--- Civil service--- Promotion criteria--- Educational qualification---Government changing promotion criteria by prescribing higher educational qualification--- Policy matter--- Where the Government, as a policy matter, wanted to restrict promotion to those having degrees, or create another category of such persons, it was not ultra vires of any law nor was it unreasonable---Such matter fell within the exclusive domain of the Government, which, in the absence of demonstrable mala fides could, not be assailed.

Executive District Officer (Revenue) v. Ijaz Hussain and another 2012 PLC (C.S.) 917 and Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701 ref.

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

----S. 3---Constitution of Pakistan, Art. 212(1)(a)---Civil service---Promotion, right of---Promotion criteria---Justiciability---Neither promotion nor the criteria set out to aspire for promotion could be categorized as a 'right' that could be justiciable.

Zafar Iqbal v. Director, Secondary Education 2006 SCMR 1427 ref.

Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Appellants (in Civil Appeal No.795 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Respondents Nos. 2 - 4 (in Civil Appeal No.795 of 2014).

Nemo for Respondents Nos.1, 5 - 8 (in Civil Appeal No.795 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Appellants (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Respondents Nos.1 - 4 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Nemo for Respondents Nos.6 to 9 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Appellants (in Civil Appeals Nos.798, 802 and 803 of 2014).

Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Respondents Nos.1 to 4 (in Civil Appeals Nos.798, 802 and 803 of 2014).

Nemo for Respondents Nos.5 to 9 (in Civil Appeals Nos.798, 802 and 803 of 2014).

Date of hearing: 11th November, 2014.

2015 P L C (C.S.) 995

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL APPEALS NOS.1122 AND 1123 OF 2011

(Against judgment dated 5-5-2011 of Federal Service Tribunal, Islamabad, passed in Appeal No.33(L)CS of 2008)

MUHAMMAD ZAFAR ALI and others

versus

ASIM GULZAR and others

CIVIL APPEAL NO.1343 OF 2014

(Against order dated 3-10-2014 of High Court of Sindh at Karachi, passed in C.P. No. D-1085 of 2013)

Syed MUHAMMAD ABBAS RIZVI and others

versus

FEDERATION OF PAKISTAN and others

CRIMINAL APPEAL NO. 436 OF 2011

(Against order dated 9-8-2011 of High Court of Sindh, Circuit Court, Hyderabad, passed in C.P. No. D-198 of 2009)

ASIM GULZAR and others

versus

ATTAULLAH KHAN CHANDIO and others

CIVIL APPEAL NO. 431 OF 2013

(Against order dated 18-1-2013 of High Court of Sindh at Karachi, passed in C.P. No. D-3657 of 2009)

ASIM GULZAR and others---Appellants

versus

ATTAULLAH KHAN CHANDIO and others

Civil Appeals Nos.1122, 1123 of 2011, Civil Appeal No. 1343 of 2014, Criminal Appeal No.436 of 2011 and Civil Appeal No.431 of 2013, decided on 15th December, 2014.

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

----R. 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Seniority---Scope---Rule 11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, was confined to determination of seniority amongst the encadred police officers from the Provinces---Where question of seniority arose either between those coming from the same Province or between officers encadred from different Provinces the same would be determined in accordance with R. 11(2)(c) of the said Rules---Rule 11(2)(c) of the Rules was thus to be restricted only to the determination of seniority in the encadred group and could not be made applicable for determining their seniority vis-a-vis the other two groups (i.e. officers inducted into the Police Service of Pakistan through initial appointment and those appointed in the Police Service of Pakistan from the Armed Forces).

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

----Rr. 5, 7 & 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Not an initial appointment---Inter se seniority, determination of---Scope---For the purposes of determining inter se seniority of such encadred provincial police officers, their encadrement could not be considered as initial appointment---Initial appointment was confined to those officers appointed against a cadre post through competitive examination held by the Federal Public Service Commission.

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

----Rr. 7 & 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Seniority---Question as to whether seniority of such police officers was to be reckoned from the date when the vacancies occurred in the senior cadre reserved for that particular Province or from the date of notification of their encadrement---Ante-date encadrement of the Provincial police officers in the Police Service of Pakistan---Legality---Rule 7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985 did not specifically mention retrospective appointment (ante-dated encadrement) of such officers from the date on which the vacancy arose in a Province---Use of the words "shall be appointed to the service" in said R. 7 indicated that the appointment of such police officers from the Province into the Police Service of Pakistan was to be with prospective effect and not retrospective effect---Retrospective effect could be given to such appointments only for the limited purpose of determining their own inter se seniority in accordance with R.11(2)(c) of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---Notification whereby provincial police officers were appointed to Police Service of Pakistan retrospectively was declared to be in violation of R.7 of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---Appeal was disposed of accordingly.

Khushi Muhammad and 3 others v. The General Manager (now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and others PLD 1970 SC 203 ref.

(d) Civil service---

----Appointment---Prospective nature of---Appointments were always prospective in nature notwithstanding the fact that the vacancy occurred earlier.

Khushi Muhammad and 3 others v. The General Manager (now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and others PLD 1970 SC 203 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.A. No.1122 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.A. No.1123 of 2011).

Sajid Ilyas Bhatti, DAG, M.S. Khattak, Advocate-on-Record and Shahbaz Kirmani, SO for Appellants (in C.A. 431 of 2013).

Khalid Javed Khan, Advocate Supreme Court for Appellants (in C.A. No. 1343 of 2014).

Nemo for Appellants (in C.A. No. 436 of 2011).

Hamid Khan, Senior Advocate Supreme Court for Respondents (Nos.1, 18, 22, 28, 33, 35, 37 and 49 in C.A. No. 1122 of 2011 and No.1 in C.A. No.1123 of 2011 and Nos.10 - 13 in C.A. No.1343 of 2014).

Sajid Ilyas Bhatti, DAG for Respondents (in Nos.28, 4 in C.A. No.1122 of 2011).

Waqar Ahmed Khan, Additional AG, KPK for Respondents (in No.3 in C.As. Nos.1122 and 1123 of 2011).

Farooq Amjad Mir, Advocate Supreme Court for Respondents (in No.101 in C.A. No. 1122 of 2011).

Tariq Mehmood Jehangiri, Advocate Supreme Court for Respondents (in No. 4 in C.A. No. 1343 of 2014).

M. Siddique Khan Baloch, Advocate-on-Record for Respondent (in No.1 in Criminal Appeal No.436 of 2011).

Sajid Ilyas Bhatti, DAG, Waqar Ahmed Khan, Additional AG, KPK, Razzaq A. Mirza, Additional AG, Punjab, Muhammad Ayaz Khan Swati, Additional AG, Balochistan and Qasim Mirjat, Additional AG, Sindh on Court's Notice.

Date of hearing: 15th December, 2014.

2015 P L C (C.S.) 1039

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

CIVIL APPEAL NO. 404 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ALI HASSAN BROHI

versus

PROVINCE OF SINDH through Chief Secretary and others

CIVIL APPEAL NO. 405 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ALI AZHAR BALOCH

versus

PROVINCE OF SINDH and others

CIVIL APPEAL NO.407 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ABDUL GHANI JUKHIO

versus

PROVINCE OF SINDH through Chief Secretary and others

CIVIL APPEAL NO. 409 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Syed ABID ALI SHAH

versus

PROVINCE OF SINDH through Chief Secretary and others

CIVIL APPEAL NO. 411 OF 2011 AND C.M.A. NO.4339 OF 2013

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Dr. AFTAB AHMED MALLAH

versus

Dr. NASIMUL GHANI SAHITO and others

CIVIL APPEAL NO. 412 OF 2011 AND C.M.A. NO.4340 OF 2013

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Dr. MUHAMMAD ALI

versus

Dr. NASIMUL GHANI SAHITO and others

CIVIL APPEAL NO. 413 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

AHMED HUSSAIN

versus

Dr. NASIMUL GHANI SAHITO and others

CIVIL APPEAL NO. 495 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

RASOOL BUX PHULPHOTO

versus

PROVINCE OF SINDH through Chief Secretary and others

Civil Appeals Nos. 404, 405, 407, 409, 411, 412, 413, 495 of 2011, C.M.As. Nos. 4339 and 4340 of 2013, decided on 5th January, 2015.

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

----S. 24---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 9(1)---Absorption of officers from different departments into the Provincial Government---Legality---Absorption could neither be ordered under S. 24 of the Sindh Civil Servants Act 1973, nor under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and was also violative of the Fundamental Rights of the civil servants.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellants (in C.As.Nos.404 and 405 of 2011).

Adnan Iqbal Ch., Advocate Supreme Court for Appellants (in C.A. No.407 of 2011).

Asim Mansoor Khan, Advocate Supreme Court for Appellants (in C.A. No.409 of 2011).

Hamid Khan, Senior Advocate Supreme Court for Appellants (in C.As. No.411 and 412 of 2011).

Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. No.413 of 2011).

Miangul Hassan Aurangzeb, Advocate Supreme Court for Appellants (in C.A. No.495 of 2011).

Sarwar Khan Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary Services (S&GAD) for Government of Sindh.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents Nos.3 - 13, 15, 16, 18 - 25, 27 - 41, 43 - 49, 51 and 52 (in C.As. Nos.404, 405, 407, 409 and 411 to 413 of 2011).

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents Nos.3 - 12, 14, 15, 17 - 24, 26 - 31, 33 - 40, 42 - 48, 50 and 51 (in C.A. No.495 of 2011).

Dates of hearing: 5th, 6th, 10th June, 15th to 17th and 21st to 24th October, 2014.

2015 P L C (C.S.) 1082

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD AMIN and another

versus

GOVERNMENT OF PUNJAB and others

Civil Petitions Nos. 667-L and 702-L of 2013, decided on 10th February, 2015.

(On appeal against the judgment dated 19-3-2013 passed by the Lahore High Court, Lahore, in I.C.As. Nos. 182 and 183 of 2013).

Punjab Agricultural Produce Markets (General) Rules, 1979---

----R. 70(6)--- Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 2(h)(i), 16, 17 & 19---Constitution of Pakistan, Art. 199---Market Committee, employees of---Disciplinary proceedings---Order passed by Departmental authority---Constitutional petition filed by employee of Market Committee before the High Court against order of Departmental authority---Maintainability---Market Committees did not have any statutory service Rules to regulate terms and conditions of service of their employees---Section 19 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, clearly drew a (distinction) line between civil servants and the employees defined under S. 2(h)(i) of the said Act---Such employees who were covered under the definition of S. 2(h)(i) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if aggrieved by a final order passed by the Departmental authorities under S.16 or 17 of the said Act, could seek redressal of their grievances before the High Court---Employees of Market Committee were covered under the definition of employees provided under S.2(h)(i) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, thus, they could invoke jurisdiction of High Court under Art. 199 of the Constitution for redressal of their grievance---Petition for leave to appeal was converted into appeal and allowed accordingly.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Contempt Proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioners (in both cases).

Shahid Mobeen, Additional A.-G. Punjab for Respondents.

Date of hearing: 10th February, 2015.

2015 P L C (C.S.) 1117

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

Dr. AZIM-UR-RAHIM KHAN MEO

versus

PROVINCE OF SINDH through Chief Secretary and 9 others

Civil Petition No.769-K of 2011, decided on 13th February, 2015.

(On appeal from the judgment dated 17-6-2011 of the Sindh Service Tribunal at Karachi passed in Service Appeal No.116 of 2009)

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

----Rr. 3 & 5 [since omitted]---Sindh Civil Servants Act (XIV of 1973), S.2(1)(a)--- Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994), S.2(2)---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.10---West Pakistan Secretariat (Section Officers) Service Rules, 1962---Constitution of Pakistan, Art.212(3)---Inter se seniority---Dispute over seniority list---Ad hoc appointments---Scope---Section Officers (BS-17) directly appointed by Provincial Chief Minister under R.5 of Sindh Public Service Commission (Functions) Rules, 1990, without reference to the Sindh Public Service Commission--- Status of--- Regular appointments and not ad hoc appointments---Petitioner was appointed as section officer in BPS-17 through the Sindh Public Service Commission ("Commission") in the year 1992---Respondents were directly appointed to such posts in the year 1991 by the Provincial Chief Minister without reference to the Commission through the purported exercise of powers under R.5 of the Sindh Public Service Commission (Functions) Rules, 1990 (as it then was)---Contentions of petitioner were that appointments of respondents, could not be deemed to be regular for the purposes of determination of seniority and ought to be treated at par with ad hoc appointments requiring regularization; that the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994, was enacted on 28-7-1994, and it was only upon the regularization in terms of the said Act that the respondents achieved the status of regular employees for the purposes of determining their seniority; that, in such circumstances, the respondents could not be held to be senior to the petitioner despite having been appointed in 1991 i.e. prior to the petitioner---Validity---Section 2(1)(a) of the Sindh Civil Servants Act, 1973, provided that ad hoc appointments were made pending recruitments in accordance with the prescribed procedure implying that such posts were subject to a given procedure which in the present case of appointments in BPS-17 by virtue of R.3 of the Sindh Public Service Commission (Functions) Rules, 1990 would be through the Public Service Commission---Ad hoc appointments were not made with reference to the posts, which were permanently taken out of the purview of the given procedure, which in the present case would be through the Public Service Commission---Appointments by the Chief Minister under R. 5 of the Sindh Public Service Commission (Functions) Rules, 1990, thus, did not come within the ambit of "ad hoc appointments"---Provisions of Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 were not applicable to the case of the respondents as their appointments were not ad hoc appointments, and neither said Act affected their status as civil servants in any way---Relevant notification of appointment of respondents also clearly denoted that such appointments had been made on regular basis---Respondents for the purposes of seniority must be deemed to have been regularly appointed in the year 1991 on regular basis---Since the respondents were initially appointed in the year 1991 prior to the appointment of the petitioner in the year 1992, therefore, their seniority must be reckoned on the basis of such appointments in terms of R. 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, as well as the West Pakistan Secretariat (Section Officers) Service Rules, 1962---Respondents having been initially appointed on regular basis prior to the petitioner had been correctly held to be senior to the petitioner in the seniority list---Petition for leave to appeal was dismissed accordingly.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 distinguished.

M. Aqil Awan, Senior Advocate Supreme Court for Petitioner.

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

Yawar Farooqui, Advocate Supreme Court for Respondents Nos.4 and 5.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.6 to 9.

Date of hearing: 9th December, 2014.

2015 P L C (C.S.) 1130

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

FEDERAL PUBLIC SERVICE COMMISSION and others

versus

ALTAF HUSSAIN and others

Civil Appeals Nos.599 to 602 of 2014, C.M.A. No.3434 of 2014, C.M.A. No. 4915 and C.A. No.1547 of 2014, decided on 21st November, 2014.

(On Appeal from consolidated judgment dated 20-12-2013 of the Lahore High Court, Lahore, passed in W.Ps. Nos.19428 to 19430 of 2012, 14450 of 2013 and F.A.O. No.400 of 2013)

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

----S. 7---Rules of Business (1973), R. 4(4) & Sched. III, Serial No.89B---Federal Public Service Commission, role of---Scope---Examinations for recruitment in government departments---Eligibility/ineligibility criteria for candidates, determination of---Section Officers Promotional Examination, 2012---Employees of various field offices of the Federal Board of Revenue---Federal Public Services Commission floated an advertisement in the press for holding Section Officers Promotional Examination 2012, wherein it was mentioned that employees of subordinate offices of Customs/Central Excise and Income Tax including field offices of the Federal Board of Revenue were not eligible to appear in the said examination---Federal Board of Revenue had issued a letter dated 21-4-2011 wherein it had declared all its field offices as its subordinate offices---Respondents who were employees of various field offices of the Federal Board of Revenue challenged their ineligibility for appearance in the examination in question by contending that Federal Board of Revenue had been declared as an attached department of the Revenue Division by the Rules of Business (1973), and the employees working in the Federal Board of Revenue irrespective of the fact whether they were working in the field offices or in the Headquarters, were eligible to appear in the Section Officers Promotional Examination, 2012---Validity---Federal Public Service Commission had only an advisory role for the purpose of qualification of different persons and had not been conferred with the powers to determine eligibility or otherwise of a candidate in recruitment process of a department--- Recruitment rules were framed by the respective department of the Federal Government in consultation with the Establishment Division and the Federal Public Service Commission had to strictly follow the eligibility or ineligibility criteria mentioned in such rules---Federal Public Service Commission had not been conferred with the power to amend or modify the recruitment rules--- Letter issued by the Federal Board of Revenue on the basis of which the criteria for ineligibility had been given in the present case was in conflict with the language of Rules of Business (1973)---Under Schedule III, Serial No.89B of the Rules of Business (1973), the Federal Board of Revenue had been shown as an attached department of the Revenue Division---Federal Board of Revenue (on its own) could neither substitute nor amend the said entry No.89B in the Rules of Business (1973) through an unauthorized letter---Federal Board of Revenue was admittedly an attached department of the Revenue Division as per the Rules of Business (1973) and could not itself declare the field offices as its subordinate offices---Letter in question issued by the Federal Board of Revenue was unauthorized and was tainted with malice with the object to deprive the employees of the Federal Board of Revenue from availing the opportunity of appearing in the Section Officer Promotional Examination, 2012---High Court had rightly held that the ineligibility criteria for the examination in relation to subordinate officers such as Customs/Central Excise and Income Tax including field offices of the Federal Board of Revenue , as well as the letter issued by the Federal Board of Revenue were illegal and unlawful---Respondents who were employees of various field offices of the Federal Board of Revenue were eligible to appear in the Section Officers Promotional Examination, 2012---Appeal was dismissed accordingly.

Sajid Ilyas Bhatti, D.A.-G., Qari Abdul Rasheed, Advocate-on-Record and Mehmood Ahmed, Director (L) for Appellants (in all appeals).

Shakeel Ahmed Malik, J.S., D&L, Establishment Division on Court's Call.

Respondent No.1 in person (in C.A. No. 599 of 2014).

Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (in C.A. No. 599 of 2014).

Raja Muhammad Asghar, Advocate Supreme Court for Respondent No.1 (in C.A. No.600 of 2014 and C.M.A. 3434 of 2014).

Ibrar Ahmed, Advocate Supreme Court for Respondent No. 3 (in C.A. No.600 of 2014 and C.M.A. 3434 of 2014).

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Applicant (in C.M.A. 3434 of 2014).

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.1 (in C.As. 601 - 602 of 2014).

Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (in C.As. 601 - 602 of 2014).

Ibrar Ahmed, Advocate Supreme Court for Respondent No.3 (in C.As. 601 - 602 of 2014).

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.1 (in C.M.A. 4915 and C.A. 1547 of 2014).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record and Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (RTO) (in C.M.A. 4915 and C.A. 1547 of 2014).

Dates of hearing: 20th and 21st November, 2014.

2015 P L C (C.S.) 1210

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

MUHAMMAD ANAYET GONDAL

versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another

C.P. No. 172 of 2015, decided on 5th March, 2015.

(On appeal from the judgment of the Punjab Subordinate Judiciary Service Tribunal, Lahore, dated 16-1-2015 passed in Service Appeal No.11 of 2012)

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 6(2)---Constitution of Pakistan, Art. 185(3)---Punjab Subordinate Judiciary Service Tribunal ("Tribunal"), powers of---Scope---Appeal filed before the Tribunal---Tribunal sending the case back to the Departmental Authority for decision afresh after de novo enquiry---Legality---Petitioner contended that the Tribunal hearing an appeal had limited powers in view of the provisions contained in S. 6 of the Punjab Subordinate Judicial Service Tribunal Act, 1991, to confirm, set aside, vary or modify the order appealed against, but it could not send the case back to the Departmental Authority for decision afresh after de novo enquiry---Validity---Section 6(2) of Punjab Subordinate Judiciary Service Tribunal Act, 1991, clearly provided that the Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil court and shall have the same powers as were vested in such court under the Code of Civil Procedure --- Where the legislature in its wisdom had conferred on the Tribunal all the powers as were vested in the civil court, the contention of the petitioner was not correct--- No interference was required in the order passed by the Tribunal--- Petition for leave to appeal was dismissed accordingly and leave was refused---Abdul Khaliq, Primary Teacher, Primary School Rajkot, Tehsil and District Muzaffarabad v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706 per incuram.

Abdul Khaliq, Primary Teacher, Primary School Rajkot, Tehsil and District Muzaffarabad v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706 per incuram.

(b) Jurisdiction---

----Court/Tribunal---Implied powers---Where a statute conferred a jurisdiction on a court or tribunal it also conferred by implication the powers which were reasonably incidental and ancillary to effective exercise of jurisdiction.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th March, 2015.

2015 P L C (C.S.) 1231

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Dost Muhammad Khan, JJ

Dr. RIFFAT KAMAL and others

versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos. 981 to 984 of 2013, decided on 24th February, 2015.

(On appeal against the judgment dated 10-4-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No.1518(R)CS/2011)

Civil Servants (Seniority) Rules, 1993---

----R. 4---Pakistan Institute of Medical Sciences Ordinance (XI of 1995), S. 20(b)---Seniority in service---Scope---Seniority reckoned from date of regular appointment--- Medical Officers appointed in Pakistan Institute of Medical Sciences (PIMS) prior to promulgation of the Pakistan Institute of Medical Sciences Ordinance, 1995---Appellant-medical officers were appointed in PIMS on contract basis, and subsequently their services were regularized prior to the year 1992---Respondent-medical officer was appointed as a medical officer in the year 1993, and upon his own request, he was transferred and posted in PIMS in the year 2003---Federal Service Tribunal held that seniority of medical officers at PIMS was required to be determined on the basis of dates of their regular appointments to said post and the appellant-medical officers having not been appointed in the prescribed manner could not claim their seniority against the respondent-medical officer who from the first day was appointed by the competent authority on the recommendation of the Federal Public Service Commission---Validity---Pakistan Institute of Medical Sciences (PIMS) was an autonomous body managed by Board of Governors and later in the year 1995 vide Pakistan Institute of Medical Sciences Ordinance, 1995, it was declared as an attached Department of the Ministry of Health---Appellant-medical officers were duly appointed by the Board of Governors of the PIMS before promulgation of the Pakistan Institute of Medical Sciences Ordinance, 1995--- Service Tribunal failed to understand that at the time of appointment of appellant-medical officers it was the Board of Governors which was competent to appoint the appellants---Section 20(b) of the Pakistan Institute of Medical Sciences Ordinance, 1995, also clearly stipulated that all actions taken before promulgation of said Ordinance shall be deemed to have been respectively done---Appellants were regularized in service before the year 1992, whereas the respondent who was appointed as medical officer in the year 1993, himself requested for transfer to PIMS and vide order dated 9-4-2003 was posted in PIMS---Respondent was appointed in the year 1993, and could not claim seniority over the appellants, who were earlier regularized before his appointment---Competent authority had rightly determined seniority of respondent from the year 2003, and placed him junior to the appellants---Rule 4 of the Civil Servants (Seniority) Rules, 1993, clearly stipulated that seniority in a service, cadre or post to which a civil servant was appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post---Impugned judgment of Federal Service Tribunal was set aside in circumstances---Appeal was allowed accordingly.

S. M. Farooq v. Muhammad Yar Khan 1999 SCMR 1039 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court for Appellants.

Dr. Muhammad Fayyaz, Respondent No.3 in person.

Nadeem Akhtar, PA to Legal Advisor for Respondent No.2.

Date of hearing: 24th February, 2015.

2015 P L C (C.S.) 1270

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

FAZLI HAKEEM and another

versus

SECRETARY STATE AND FRONTIER REGIONS DIVISION ISLAMABAD and others

Civil Petitions Nos. 418 and 707 of 2012, decided on 8th February, 2013.

(On appeal against the judgment dated 19-1-2012 passed by Federal Service Tribunal, Islamabad in Appeals Nos.766(P)CS/2010 and 814(P)CS/2010)

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

----S. 5(1)---Limitation Act (IX of 1908), S. 3---Constitution of Pakistan, Art. 185(3)---Federal Service Tribunal, order of--- Order not passed in accordance with law---Void order, limitation against---Scope---Promotion---Temporary employee promoted in preference to regular employees against the law---Contention of respondent that present petition should be dismissed on the grounds of limitation---Validity---Respondent was a temporary contract employee and he was working as such at the time he was promoted---Question as to how could the respondent rank senior and how he could be given preference over the employees who were regularized much earlier were questions which had not been answered either in the impugned judgment of the Service Tribunal or by the respondent---Present case was not a case where the matter could be set at rest by invoking the provisions regulating limitation---Courts of law were not supposed to perpetuate what was unjust and unfair by exploring explanation for an act which was prima facie against law and thus void---Courts should rather explore ways and means for undoing what was unfair and unjust---Even where the question of limitation, if at all, created any impediment in the fair adjudication of the case, it had to be looked from such angle of vision---Controversy urged before the Service Tribunal in the present case had not been considered and decided in its correct perspective---Remand of the present case was inevitable---Supreme Court, thus, converted petition for leave to appeal into an appeal, set aside the impugned judgment of Service Tribunal and sent the case back to the Service Tribunal for decision afresh in accordance with law.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

(b) Administration of justice---

----Person/institution exercising executive, judicial or quasi-judicial power---Order of---Order not passed in accordance with law---Non est order---Scope---Repository of executive, judicial or quasi-judicial power was required to act in accordance with law---For the very condition for the conferment of such power was that such repository had to act in accordance with law---If and when such repository would go wrong in law it would go outside its jurisdiction, and order thus passed would be non est---Such order could not be protected simply because the repository of such power, had the power to pass such order.

"Discipline of law" by Lord Denning pages 74 and 76 ref.

Abdur Rehman Siddiqui, Advocate Supreme Court for Petitioners (in C.P. No.418 of 2012).

Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. No.707 of 2012).

Ejaz Anwar, Advocate Supreme Court for Respondents Nos.2, 3 and 4 (in C.P. No.418 of 2012).

M.S. Khattak, Advocate-on-Record for Respondents Nos.1 to 4 and 6 (in C.P. No.707 of 2012).

Syed Arshad Hussain Shah, Additional A.-G. Khyber Pakhtunkhwa for Khyber Pakhtunkhwa on Court's Notice.

Date of hearing: 8th February, 2013.

2015 P L C (C.S.) 1287

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, QUETTA and others

versus

SHAUKAT ALI and another

Civil Appeal No.1285 of 2013, decided on 5th March, 2015.

(On appeal against the judgment dated 24-7-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No. 26(Q)CS/2012)

Railway Personnel Manual, 1982---

----Rr. 433 & 611---Promotion, withdrawal of---Seniority reckoned from date of regular appointment---Respondent was appointed as Shunting Porter (BS-6) in Pakistan Railways ("Department")---To fill the vacant posts of Assistant Yard Master (BS-9) the Department asked its staff to give their willingness to promotion as Assistant Yard Master and thereafter the willing persons were directed to appear for training at the academy---Respondent attended the said course and obtained 2nd position, and consequently on the basis of merit was promoted as Assistant Yard Master---Subsequently such promotion was withdrawn by the Department as respondent was junior according to the combined seniority list of staff who had qualified the course for promotion as Assistant Yard Master---Respondent then challenged the said order before the Service Tribunal, which stood allowed, and he was promoted---Contention of Department was that respondent was junior according to the combined seniority list of staff who had qualified the course for promotion as Assistant Yard Master (BS-9), and that according to R. 611 of the Railway Personnel Manual, the seniority had to be reckoned from the date of regular appointment---Validity---Respondent was serving in the Department and for in-service staff, courses were held for further promotion---According to R. 611 of the Railway Personnel Manual, 1982, the combined seniority list of staff belonging to more than one category or more than one unit in the same category who were eligible for promotion to higher grade post shall be reckoned from the date of regular appointment to a post in the eligible grade (excluding officiating period against leave vacancies other than L.P.R. or under local arrangements made to suit administrative convenience)---Further R. 433 of the Railway Personnel Manual, 1982 stipulated that senior staff who, on the basis of seniority, became eligible for being sent to the training school to qualify themselves in promotion courses, passing of which was a pre-requisite condition for consideration for promotion to higher grade posts, should not be allowed to be superseded by their juniors---Respondent was at serial No.9 of the seniority list prepared for further promotion to Assistant Yard Master, department, in such circumstances, had rightly withdrawn the order of promotion of the respondent---Appeal was allowed accordingly and judgment of Service Tribunal was set aside.

M.D. Shahzad Feroz, Advocate Supreme Court and Mujahid Hashmi, Law Officer for Appellants.

Nemo for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 5th March, 2015.

2015 P L C (C.S.) 1299

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Sarmad Jalal Osmany, JJ

MUHAMMAD ANAYET GONDAL

versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another

Civil Petition No. 2225 of 2014, decided on 14th January, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991). S. 5--- Constitution of Pakistan, Art. 18---Judicial officer--- Termination from service--- Appeal to Service Tribunal---Impleadment of party--- Scope--- Witness/informant of inquiry proceedings---Witness whose testimony was recorded during inquiry proceedings presented an application under O.I, R.10, C.P.C. praying that he be impleaded as a party in the proceedings before the Punjab Subordinate Judiciary Service Tribunal---Validity---Testimony of such witness had already been recorded in the inquiry, and it may well be that he brought certain facts to the attention of the inquiry officer but that did not mean that he could become a party---Status of such witness remained that of an informant and witness only--- Disciplinary proceedings against judicial officer/ petitioner in the present case, which were between an employer and employee could not be turned into a contentious matter by an outsider, and this was particularly so considering that the petitioner stood terminated from service---Petitioner's rights under Art.18 of the Constitution may also be involved in the present case---Order passed by Service Tribunal to the extent of impleadment of witness of inquiry proceedings as party, being not warranted, was set aside---Order accordingly.

Petitioner in person.

Razzaq A. Mirza, Additional A.-G., Mian Ashfaq Ahmed, Registrar Tribunal and Arif Hussain, Assistant, Tribunal Branch for Respondents.

Date of hearing: 14th January, 2015.

2015 P L C (C.S.) 1313

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Anwar Zaheer Jamali and Maqbool Baqar, JJ

MUHAMMAD ASHRAF and others

versus

UNITED BANK LIMITED and others

C.P.L.A. No. 676-K of 2013, decided on 2nd April, 2015.

(On appeal from judgment of High Court of Sindh, Karachi, dated 20-3-2013 passed in C.P. No. D-2781 of 2013)

(a) Constitution of Pakistan---

----Art. 185(3)---Increase in pension, entitlement to---Ex-employees (petitioners) of respondent-bank, who retired before its privatization, claimed that they were entitled to increase in their pension as per terms of privatization agreement of the bank---Contention of bank that clause of the privatization agreement dealing with increase in pension was only applicable to employees/staff who were in service at the time of the privatization agreement, and not to ex-employees who had retired before the privatization agreement---Validity---Record revealed that the petitioners had retired much prior to the privatization of the bank---Privatization agreement of the bank did allow some protection as regards the benefits and facilities enjoyed by the employees/staff of the bank, who were in service at the time of the privatization agreement---Privatization agreement did not cover/protect the claim of pensionary benefits of employees, who had retired during the period before the privatization agreement---On humanitarian ground, one may have sympathy with the petitioners for their meagre pensionary benefits, during present times of high cost of living, but such fact alone was not sufficient to make them entitled for the relief of increase in pensionary benefits---Petition for leave to appeal was dismissed accordingly and leave was refused.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition before High Court---Maintainability---Private bank---Constitutional petition filed before the High Court against a private bank, having no statutory rules---Such a petition was not maintainable to entertain the grievance of the petitioner.

Petitioner in person.

Akhtar Ali Mehmood, Advocate Supreme Court as Amicus Curiae.

Mehmood Abdul Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

M. Aslam Butt, Dy. Attorney General for Respondents Nos.2 - 3 (on Court's Notice).

Date of hearing: 2nd April, 2015.

2015 P L C (C.S.) 1320

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

The COMMANDANT, KHYBER PAKHTUNKHWA CONSTABULARY, HEADQUARTERS PESHAWAR and another

versus

MUHAMMAD NASIR and others

Civil Appeals Nos.1122, 1123, 1107 of 2013, 173 and 174 of 2015, decided on 31st March, 2015.

(On appeal from judgment dated 9-5-2013 of the Peshawar High Court, Peshawar, passed in W.Ps. Nos.2987, 2764 of 2011 and 818-P of 2012) and against judgment dated 10-9-2014 of the Peshawar High Court, Abbottabad Bench, passed in W.Ps. Nos. 3219 and 475-P of 2014)

Khyber Pakhtunkhwa Constabulary Rules, 1958---

----R. 18---Dismissal of employee---Departmental appeal---Procedure, failure to follow---Effect---High Court set aside dismissal order passed by authorities and reinstated the employee in service---Validity---High Court had observed in its judgment that de novo inquiries were conducted by authorities without following the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958--- Once High Court held that the procedure prescribed in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958, was not followed while dismissing the employee from service, it should have remanded the matter to department after reinstating the employee in service for de novo inquiry---Supreme Court remanded the matter to authorities and directed them to strictly follow the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958---Appeal was allowed accordingly.

I.G. Frontier Corps and others v. Ghulam Hussain 2004 SCMR 1397 and Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

Ms. Shireen Imran, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.1122, 1123 and 1107 of 2013).

Mian Shafaqat Jan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos.173 and 174 of 2015).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1-40 (in C.A. No. 1122 of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1-34 (in C.A. No. 1123 of 2013).

Abdul Latif Afridi, Advocate Supreme Court for Respondents Nos.1-18, 20-25, 27, 28, 30, 31, 33, 35, 37, 38, 40, 41, 43-51 and 53-65 (in C.A. No. 173 of 2015).

Abdul Latif Afridi, Advocate Supreme Court for Respondent No.1 (in C.A. No. 174 of 2015).

Date of hearing: 31st March, 2015.

2015 P L C (C.S.) 1353

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

SARHAD DEVELOPMENT AUTHORITY through Chairman

versus

Syed MUHAMMAD LATIF SHAH and others

Civil Petition No. 84-P of 2015, decided on 25th March, 2015.

(On appeal from judgment dated 22-1-2015 of the Peshawar High Court, Peshawar, passed in W.P. No. 3258 of 2013)

Sarhad Development Authority Act (XI of 1973)---

----S. 29---Constitution of Pakistan, Art. 185(3)---Non-framing of rules---Service matter---High Court, in exercise of constitutional jurisdiction, struck down notification of promotion of employee against the post of General Manager (Administration) in Basic Scale 19---Validity---Government was required to frame rules pertaining to terms and conditions of services of officers and employees of Sarhad Development Authority---Such omission, prima facie, showed that government, in absence of proposed rules, was regulating service of the Authority by exercising its unstructured discretion in recruitment/ promotion of officers and employees in the Authority--- Supreme Court directed the government of Khyber Pakhtunkhwa to comply with provisions of S.29 of Sarhad Development Authority Act, 1973--- Supreme Court declined to interfere in judgment passed by High Court as the same would perpetuate injustice---Petition for leave to appeal was dismissed in circumstances.

Muhammad Ijaz Sabi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th March, 2015.

2015 P L C (C.S.) 1367

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL PETITION NO.41 OF 2015

(On appeal from the order/judgment of the Islamabad High Court, Islamabad dated 4-12-2014 passed in I.C.A. No.523 of 2013)

AND

CIVIL PETITION NO. 66 OF 2015

(On appeal from the order of the Lahore High Court, Lahore dated 9-1-2015 passed in W.P. No.85 of 2015)

SECRETARY ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD

versus

AFTAB AHMED MANIKA and others

Civil Petitions Nos.41 and 66 of 2015, decided on 22nd April, 2015.

(a) Constitution of Pakistan---

----Arts. 212(2) & 199---Civil service---Promotion---Fitness of civil servant---Determination---Constitutional jurisdiction of High Court---Scope---Determination of fitness of civil servant for promotion has been excluded from jurisdiction of Service Tribunal---Ouster clause (2) of Art.212 of the Constitution does not extend to such matters---Constitutional jurisdiction of High Court is not ousted in matters pertaining to appointment of civil servant to a particular post or to be promoted to a higher grade.

Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment 2014 SCMR 817 rel.

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

----S. 9(1)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.2(a) & 6---ESTACODE, 2007 Edition, Vol.I, Sr.192(2)(b)--- Promotion--- Determination of fitness--- Recommenda-tions of Central Selection Board--- Intelligence reports--- Despite specific recommendations by Central Selection Board, Prime Minister returned cases of civil servants for reconsideration as there were intelligence reports against them---High Court in exercise of constitutional jurisdiction declared that appointing authority could not return the cases of civil servants as there were specific recommendations of Central Selection Board in their favour---Validity---Appointing authority had to make promotions in Basic Pay Scale 20 and 21 only upon recommendations of the Board; it did not provide in either of the provisions that recommendations of the Board were binding and consequently be returned by appointing authority only when procedure followed by the Board suffered from any factual or legal flaw---Supreme Court set aside the judgments passed by High Court and constitutional petitions filed by civil servants were dismissed---Supreme Court directed Central Selection Board to re-examine cases of civil servants on the basis of criteria already set for determining fitness or otherwise of civil servants for promotion without being influenced by observations made in the summary for the return of recommendations to the Board---Appeal was allowed.

Safaraz Saleem v. The Federation of Pakistan PLD 2014 SC 232; Concise Oxford English Dictionary 11th Edition, Revised; Black's Law Dictionary 6th Edition; Words and Phrases 2nd Edition, 2008; Islamic Republic of Pakistan v. Israrul Haq PLD 1981 SC 531; Bahadur Shah, Divisional Engineer Development II, I.T.R. Islamabad and others v. Pakistan through Secretary, Ministry of Communication and others 1988 SCMR 1769; Faris Rahman Khan v. Federation of Pakistan through Secretary Establishment Division 1995 SCMR 579; Lakhwinder Singh v. Union of India and others (2008) 7 Supreme Court Cases 648; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Zahir Raja v. Federation of Pakistan 2012 SCMR 971; Fazali Rehmani v. Chief Minister N.-W.F.P. PLD 2008 SC 769; Zafar Iqbal v. Director, Secondary Education, Multan Division 2006 SCMR 1427; Government of Pakistan through Establishment Division v. Hameed Akhtar Niazi PLD 2003 SC 110; Saleem Ullah Khan v. Shahid Hamid 2011 SCMR 788; Muhammad Azam v. Muhammad Tufail 2011 SCMR 1871; Habibullah Energy Limited v. WAPDA through Chairman and others PLD 2014 SC 47; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 Abu Bakar Siddique v. Collector of Customs, Lahore 2006 SCMR 705; Federation of Pakistan through Secretary M/o Law v. Sindh High Court Bar Association PLD 2012 SC 1067; Government of the Punjab v. S. Tassaduq Hussain Bokhari PLD 1986 SC 162; R.S. Mittal v. Union of India 1995 Supp (2) SCC 230; I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 and Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 ref.

Salman Aslam Butt, AGP, Waqar Rana, Additional AGP, Qari Abdul Rasheed, Advocate-on-Record, Mumtaz Ali Khan, JS Est. Div. and Shahbaz Kirmani, S.O. for Petitioner.

Ms. Asma Jahangir, Advocate Supreme Court assisted by Haris Azmat, Advocate for Respondents Nos. 1, 4-6, 8, 9 and 11 (in C.P. No.41 of 2015).

Ms. Asma Jahangir, Advocate Supreme Court assisted by Haris Azmat, Advocate for Respondents Nos. 1 - 3 (in C.P. No.66 of 2015).

Dates of hearing: 30th January and 9th February, 2015.

2015 P L C (C.S) 1398

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J. and Amir Hani Muslim, J

The DIRECTOR-GENERAL, NATIONAL COMMISSION FOR HUMAN DEVELOPMENT and another

Versus

AMBREEN ANSARI and another

Civil Petition No. 257 of 2015, decided on 22nd April, 2015.

(On appeal from order dated 23-12-2004 passed by the High Court of Sindh, Karachi, in C.P. D-2145 of 2014)

National Commission for Human Development Ordinance (XXIX of 2002)---

----S. 22---National Commission for Human Development Employees' Service Rules, 2006, R. 12.02---Constitution of Pakistan, Arts. 185(3) & 199---Termination of service---Procedural requirements, non-fulfilling of--- Constitutional petition before High Court---Maintainability---Termination of respondent was set aside by High Court in exercise of constitutional jurisdiction---Validity---Order terminating services of respondent was in complete disregard of procedural requirements as provided in R. 12.02 of National Commission for Human Development Employees' Service Rules, 2006, and violative of principles of natural justice---Supreme Court declined to interfere in judgment passed by High Court in exercise of constitutional jurisdiction---Petition was dismissed.

Pakistan Defence Officer's Housing Authority v. Lt. Col. Jawaid Ahmed 2013 SCMR 1707 fol.

S. A. Mehmood Khan Saddozai, Advocate Supreme Court, Ms. Robina Mehmood Khan Saddozai, Advocate Supreme Court and Ch. Akhter Ali, Advocate-on-Record for Petitioners.

Bhajandas Tejwani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

Date of hearing: 22nd April, 2015.

2015 P L C (C.S.) 1417

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL PETITIONS NOS.565-568 AND 582-584 OF 2014

(On appeal against common Judgment dated 17-3-2014, passed by the Islamabad High Court, Islamabad, in I.C.A. No.8 of 2012)

CIVIL PETITIONS NOS.1596-1597, 1602, 1643 AND 2064-2067 OF 2014

(On appeal against common Judgment dated 3-7-2014 passed by the Peshawar High Court, Peshawar, in W.P. No. 2657 of 2012)

CRIMINAL PETITION NO.214 OF 2014

(On appeal against common Judgment dated 17-3-2014, passed by the Islamabad High Court, Islamabad, in I.C.A. No. 8 of 2012).

AND

C.M.A. NO. 3540 OF 2014 IN C.P. NO.565 OF 2014

(For impleadment of Telecom Pensioners Association as Respondent)

PAKISTAN TELECOMMUNICATION EMPLOYEES TRUST (PTET) through M.D., Islamabad and others

Versus

MUHAMMAD ARIF and others

Civil Petitions Nos.565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Criminal Petition No.214 of 2014 and C.M.A. No.3540 of 2014 in C.P. No. 565 of 2014, decided on 12th June, 2015.

(a) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 35, 36, 45 & 46(1)(d)---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Pakistan Telecommunication Corporation Employees Pension Fund (as created by a Trust Deed dated the 2nd April, 1994), Para. 2-- Constitution of Pakistan, Art. 185(3)---Pension---Serving employees, retired employees and widows of retired employees, who were employed in the Pakistan Telegraph and Telephone Department (T&T Department) and were subsequently transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)---Entitlement of such employees to receive pensionary benefits as fixed by the Federal Government---Grievance of said employees was that pension was being paid to them in accordance with the increase announced by the Federal Government but such increase in pension was abruptly stopped after the year 2009 by the Pakistan Telecommunication Company Limited (the Company)---Validity---Terms and conditions of service of the transferred employees from T&T Department to the Corporation and then to the Company remained unaltered and they continued to be paid the benefits as were admissible to them as employees of T&T Department---Terms and conditions of service and also the rules of service which were applicable to the T&T Department employees while in employment of the Federal Government would continue to be applicable to them on their transfer to the Corporation and then to the Company---Employees of T&T Department who were transferred to the Corporation and then to the Company, would on retirement be entitled to payment of pension according to the one announced by the Federal Government, thus if any increase in pension was announced by the Federal Government for its employees, the same would also apply and be paid to the employees of T&T Department transferred to the Corporation and then to the Company---While the Company may be entitled to fix the terms and conditions of service of its employees so also the provision of pension by the Board of Trustees of the Trust but, as regards the employees of T&T Department transferred to the Corporation and then to the Company, their terms and conditions of service stood protected by the provision of S. 9 of the Pakistan Telecommunication Corporation Act, 1991 [since repealed] and Ss. 35, 36 & 46 of the Pakistan Telecommunication (Re-Organization) Act, 1996, and thus they would be entitled to payment of increase in pension as announced by the Federal Government---Petition for leave to appeal was dismissed accordingly.

Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526 ref.

(b) Constitution of Pakistan---

----Arts. 188 & 189---Review petition pending against a judgment of the Supreme Court---Until such judgment of the Supreme Court was reviewed and some other conclusion was reached, such judgment remained in field and operated as a law pronounced by Supreme Court.

(c) Civil service---

----Pension, right to---Scope---Pension was part of a civil servant's retirement benefit and was not a bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation---Right to pension was conferred by law which could not be arbitrarily abridged or reduced except in accordance with law.

Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others PLD 1996 SC 222 ref.

Khalid Javed Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos.565 and 566 of 2014).

Zia-ul-Haq Makhdoom, Advocate Supreme Court for Petitioners (in C.P. No. 567 of 2014).

Rizwan Ijaz, Advocate Supreme Court and Zia-ul-Haq Makhdoom, Advocate Supreme Court for Petitioners (in C.P. No.568 of 2014).

Shahid Anwar Bajwa, Advocate Supreme Court and Ms. Zahida Awan, EVP (Legal) PTCL for Petitioners (in C.Ps. Nos.582-584, 1596-1597, 1602 and 1643 of 2014).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in Crl. P. 214, C.Ps. Nos.2064-2067 of 2014).

Hashmat Ali Habib, Advocate Supreme Court for the Applicants (in C.M.A. No.3540 of 2014).

Khalil-ur-Rehman, Advocate Supreme Court for Respondents Nos. 1 to 34 (in C.Ps. Nos.565 and 582 of 2014).

Khalil-ur-Rehman, Advocate Supreme Court for Respondents Nos. 1 to 134 (in C.P. No.566 of 2014).

Ghulam Mahboob Khokhar, Advocate Supreme Court for Respondents Nos. 1-4, 6-9, 11-18, 20-51 (in C.Ps. Nos. 567 and 584 of 2014).

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No.1 (in C.P. No.568 of 2014).

Ch. Mushtaq Hussain, Advocate Supreme Court for Respondent No.2 (in C.P. No.568 of 2014).

Ch. Mushtaq Hussain, Advocate Supreme Court for Respondents Nos.1-2 (in C.P. No.583 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-60 (in C.Ps. Nos.1596 and 2066 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondent No.1 (in C.Ps. Nos.1597, 1602 and 2064 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-805 (in C.P. No.1643 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-624 (in C.P. No.2065 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-135 (in C.P. No.2067 of 2014).

Dates of hearing: 10th, 27th, 28th November, 1st and 2nd December, 2014

2015 P L C (C.S.) 1487

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

Pir IMRAN SAJID and others

Versus

MANAGING DIRECTOR/GENERAL MANAGER (MANAGER FINANCE) TELEPHONE INDUSTRIES OF PAKISTAN and others

Civil Appeals Nos. 1359 to 1363 of 2014, decided on 18th May, 2015.

(On appeal from the judgment dated 24-4-2014 of the Peshawar High Court, Abbottabad Bench passed in Writ Petitions Nos.276-A to 280-A of 2014)

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition before High Court---Maintainability---"Person" performing functions in furtherance of the affairs of the Federation---"Function test"---Telephone Industries of Pakistan, employees of---Employees filing constitutional petition seeking relief against Telephone Industries of Pakistan---Contention of Federal Government was that Telephone Industries of Pakistan was a private limited company, therefore, constitutional petition filed by the employees was not maintainable---Validity---Telephone Industries of Pakistan was wholly owned, controlled, managed and financed by the Federal Government and was performing functions in furtherance of the affairs of the Federation---Status of Telephone Industries of Pakistan could not prevent the employees from seeking constitutional remedy as said company clearly fell within the definition of a "person" as envisaged by Art. 199 of the Constitution---Constitutional petition was held to be maintainable accordingly.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

(b) Constitution of Pakistan---

----Art. 9 & 25--- Regularization in service, right of--- Dignity of employees---Right to livelihood--- Scope--- Telephone Industries of Pakistan, contract employees of---Contract employees retained in service for more than 12 years---Effect---Vested right of regularization in service---Scope---Employees/appellants had been serving Telephone Industries of Pakistan in their respective positions since about last more than twelve (12) years, though on contract basis---However, renewal of employees' contracts on year to year basis since the inception and grant of increments to them clearly showed that the nature of their jobs/duties was permanent and not casual or temporary, and that they had been performing their functions/duties to the satisfaction of their employer and further that throughout the whole period their services were required, and had remained useful for and beneficial to the organization---Employing/retaining the employees in question on contract basis, instead of permanent basis was, thus, wholly mala fide, whimsical and unfair---No allegation of any misconduct or incompetence was made against the employees in question, rather they had been granted increments from time to time---Record showed that services of some other temporary/contract employees had been regularized by the Telephone Industries of Pakistan from time to time---Even otherwise the Federal Government which owned, controlled, managed and financed Telephone Industries of Pakistan, had directed the organization, through the concerned cabinet sub-committee to regularize the employees in question---Managing Director, Telephone Industries of Pakistan, did not heed to such direction, and such defiance was wholly illegal and mala fide---No justification existed for not making employment of employees in question permanent, and for keeping their entire career, rather livelihood exposed and susceptible to the whims of the authorities, which also hurt their dignity---Supreme Court directed that services of employees in question should be regularized from the date of decision of the sub-committee for regularization---Supreme Court observed that while discharging official functions, efforts should be made to ensure that no one was prevented from earning his livelihood because of unfair and discriminatory act on their part---Appeal was allowed accordingly.

Province of Punjab v. Ahmad Hussain 2013 SCMR 1547; Province of Punjab v. Gul Hassan 1992 PLC 924; Punjab Seed Corporation v. Punjab Labour Appellate Tribunal 1996 SCMR 1947; Executive Engineer v. Abdul Aziz PLD 1996 SC 610 and Secretary, Irrigation and Power Department Government of Punjab v. Muhammad Akhtar 2009 SCMR 320 ref.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to livelihood---Right to life as envisaged by Art. 9 of the Constitution included the "right to livelihood".

(d) Constitution of Pakistan---

---Art. 4 & Preamble---Socio-economic justice---Scope---Whole edifice of governance of the society had it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law, and that they were not being deprived of their due rights.

(e) Constitution of Pakistan---

----Art. 4---Public functionaries, duty of---Natural justice---Procedural fairness and propriety---Every public functionary was supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Art. 4 of the Constitution, which included principles of natural justice, procedural fairness and procedural propriety---Any action which was mala fide or colourable was not regarded as action in accordance with law.

PLD 1999 SC 1026 ref.

(f) Constitution of Pakistan---

----Arts. 4 & 25--- Administrative authorities, duty of--- Good governance---Scope---Object of good governance could not be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such objective could be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Arts. 4 & 25 of the Constitution---Obligation to act fairly on the part of the administrative authority had been evolved to ensure the rule of law and to prevent failure of the justice.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Abdul Rehman Qadar, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondents.

Date of hearing: 18th May, 2015.

2015 P L C (C.S.) 1519

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Mushir Alam, JJ

Mst. BASHARAT JEHAN

Versus

DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI and others

Civil Appeal No. 1184 of 2011, decided on 11th July, 2014.

(Against judgment dated 14-1-2011 of Federal Service Tribunal, Islamabad passed in Appeal No.325(P)CS/2010)

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

----R. 3(2)---National Command Authority Rules, Chap.II, para.7(k)---Civil service---Initial appointment---Relaxation in age prescribed for initial appointment--- Typographical error in advertisement for post qua upper age limit of applicant---Vested right of civil servant on issuance of appointment letter and joining of service---Scope--- Appellant applied for the position of Assistant Librarian (BPS-9)---Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases---Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits---Appellant was issued appointment letter and accordingly joined service---Along with her joining, appellant furnished certificate of age relaxation to the authorities---After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment---Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination---Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation---Validity---Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part---Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]---If the notification/ memorandum in question had gone unnoticed by the Government department, it was not the fault of appellant---Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect---Appellant had joined the service after appearing in the test and qualifying in the interview---For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised---In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was "not less than 18 years or more than 35 years of age"---However it was specifically stipulated in the said Rule that the said age limit "may be relaxed in exceptional cases upto 45 years by the competent authority"---Said Rule was not considered by the Government department in the present case---Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily---Appellant had applied for the advertised post giving her full particulars, including her qualification and age---At the time of joining she submitted the age relaxation certificate---Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority---Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service---Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department---Appellant, in such circumstances, was justified to urge that she had been discriminated against---General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal Government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules---Nothing was brought on record to show that such directive/policy decision expressed through memorandum/ notification was not applicable to the Government department in question---Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order---Appeal was allowed accordingly.

Ghulam Murtaza v. Federation of Pakistan 2011 PLC (C.S.) 709; Civil Petitions Nos. 426-K to 436-K of 2008 and Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1482 ref.

(b) Civil service---

----Appointment letter, cancellation of---Scope---Vested right of appointment---Once a person was appointed after fulfilling all the codal formalities and appointment letter was issued, a vested right was created and appointment letter could not be withdrawn.

Ghulam Murtaza v. Federation of Pakistan 2011 PLC (C.S.) 709; Civil Petitions Nos. 426-K to 436-K of 2008 and Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1482 ref.

(c) Civil service---

----Appointment--- Vested right of appointment--- Scope--- Locus poenitentiae, doctrine of---Once a right was accrued to a civil servant by appointment letter issued to him after complying with all the codal formalities, the same could not be taken away on mere assumption, supposition, whims and fancy of any executive functionary---Such right once vested, could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae.

Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

Ghulam Nabi Khan, Advocate Supreme Court for Appellant.

Sajid Ilyas Bhatti, DAG for Respondents.

Date of hearing: 11th July, 2014.

2015 P L C (C.S.) 102

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J.

SHAHID HUSSAIN MALIK

Versus

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

Civil P.L.A. No.338 of 2013, decided on 20th December, 2013.

(On appeal from the judgment of the Service Tribunal, dated 25-10-2013 in Service Appeal No.539 of 2013).

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

----S. 42(12)---Deputation Policy, dated 19-12-1979, Clauses IV & X---Civil servant---Transfer---Extension in period of deputation---Scope---Contention of the petitioner civil servant was that no consultation was made with the parent department before sending him back to his parent department---Validity---Purpose of consultation was that the officer who was being sent back to his parent department, would not face hardships and the department shall adjust him in an appropriate manner---Notification for sending the petitioner back to his parent department was issued by the Services and General Administration Department and in compliance of said order the petitioner had reported back to his parent department---Civil Servant could not claim that he shall remain on deputation on a particular- post without consent of the borrowing department---Under the deputation policy, the period of deputation of a civil servant shall not exceed five years---Initially the period of deputation might be three years and after completion of three years' period the Government servant was required to serve in his parent Department for a minimum period of two years; thereafter he could again be sent on deputation; although, the Government had authority to extend the period of one year but before proceeding on deputation for second time it was mandatory that a civil servant shall serve in his parent department for a minimum period of two years---Period of deputation could not be extended without sending the civil servant back to his parent department---If the officer was on deputation to another department and he created hardships in smooth functioning of that Department, then it was the prerogative of the department to send the officer back to his parent Department before completion of the period as laid down in clause (iv) of the Deputation Policy dated 19-12-1979---Department was justified in sending the petitioner back to his parent department---Petition for leave to appeal was dismissed.

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

----S. 9--Transfer---Petitioner had been made OSD and he was without post---Supreme Court (AJ&K) observed that under S.9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, a civil servant was obliged to serve under the Government anywhere outside or within Azad Jammu and Kashmir but a civil servant could not be posted without any post---Department was directed to adjust the petitioner against the post he was entitled to.

Syed Nazir Hussain Shah Kazmi, Advocate for Petitioner.

Raja Ghazanfar Ali Khan, Advocate-General for Respondents.

Date of hearing: 19th December, 2013.

2015 P L C (C.S.) 232

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Hafiz MUHAMMAD ABID

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 4 others

Civil Appeal No.18 of 2013, decided on 30th June, 2014.

(On appeal from the judgment of the High Court, dated 13-8-2012 in Writ Petition No.422 of 2009).

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

----S. 42---Appeal to Supreme Court---Civil service---Advertisement for the posts of lecturer---Contention of petitioner was that he was a refugee from Jammu and Kashmir settled in Pakistan but respondent had been recommended against the quota of refugee settled in Pakistan and such recommendation was illegal, arbitrary and without lawful authority---Validity---Impugned notification which came in the knowledge of petitioner during the pendency of writ petition had not been challenged before the High Court---Proper course for the petitioner was to challenge the said notification while filing application for amendment of writ petition or challenge the same independently but no such course was adopted---Petitioner had prayed to declare the recommendations made in favour of respondent and his appointment order having been issued without lawful authority---Petitioner had not challenged the appointment order of respondent in writ petition, therefore, he could not challenge the same directly before the Supreme Court---If a point had not been taken in the lower forum then same could not be taken for the first time in Supreme Court---Petitioner had to amend writ petition or challenge the impugned notification through a separate writ petition when the fact of appointment of respondent came into his knowledge---No relief could be claimed which was not prayed---Appeal was dismissed in circumstances.

Punoo Khan and 9 others v. Mst. Iqbal Begum and 19 others 2012 MLD 1678; Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358; Azad Government and 2 others v. Syed Muhammad Afzal Shah and another 2003 YLR 1810 and Raja Muhammad Saeed Khan v. Syed Khani Zaman Khan and 11 others PLD 2007 SC (AJ&K) 63 rel.

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

----O. VII, R.1---Relief beyond pleadings---Scope---No relief could be granted beyond pleadings.

Azad Government and 2 others v. Syed Muhammad Afzal Shah and another 2003 YLR 1810 and Raja Muhammad Saeed Khan v. Syed Khani Zaman Khan and 11 others PLD 2007 SC (AJ&K) 63 rel.

Muhammad Noorullah Qureshi, Advocate for Appellant.

Raja M. Hanif Khan, Advocate and Ch. Shaukat Aziz, Additional Advocate-General for Respondents.

Date of hearing: 9th June, 2014.

2015 P L C (C.S.) 354

[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 and 7 others

Versus

JAVED ANWAR

Civil Appeal No.37 of 2013, decided on 10th June, 2014.

(On appeal from the judgment of the High Court, dated 3-12-2012 in Writ Petition No.1326 of 2012).

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

----Ss. 44 & 42---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.42---Civil service---Writ petition before High Court---Laches---Maintainability---Principles of acquiescence and estoppel---Applicability---Enforcement of contract obligation---Scope---Admission of writ petition for regular hearing---Prerequisites---Respondent while on deputation in TEVTA applied and was approved for the post of Deputy Director---Grievance of respondent was that instead of appointing him against a permanent post, he was offered a project post---Respondent joined the said post and on completion of tenure when the notification of his repatriation was issued, he challenged the said notification before the High Court which was admitted for regular hearing---Validity---Respondent accepted the tenure of the post for three years' period and on completion of his term, when his repatriation process to the parent department was initiated he had come forward to disturb the whole process---Respondent's writ petition was hit by the principle of laches and acquiescence according to the material brought on record by the petitioner and the writ petition in that state of affairs had to be rejected as being devoid of any substance for admission for regular hearing---Respondent/petitioner was duty bound to make out prima facie case and if he failed, the writ petition could be rejected at preliminary stage---Provisions of Civil Procedure Code, 1908 were applicable to the writ proceedings---Appeal was accepted in circumstances.

Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur v. Engineer Muhammad Khalid PLD 2004 SC (AJ&K) 30 ref.

Kh. Manzoor Qadir v. Azad Government and 5 others 2010 SCR 215; Ehsan-ur-Rehman and 10 others v. Arshad Ali Khan and 5 others 2012 PLC (C.S.) 795; Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947; Tahir Mehmood Khan and 13 others v. Azad Government and 3 others 2008 CLC 1662; Kh. Noorul Ameen v. Sardar Muhammad Abdul Qayyum Khan and another 1993 SCR 27 and Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12 rel.

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

----S. 42---Appeal to Supreme Court---Power of Supreme Court to interfere at preliminary stage of writ petition before High Court---When justified.

Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12 and Sardar Sakindar Hayat Khan v. Syed Ghulam Mujtaba Bokhari Civil Miscellaneous Nos.7 and 8 of 1990 ref.

(c) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 42---Provisions of Civil Procedure Code, 1908 are applicable to the writ proceedings.

(d) Interpretation of statutes---

----Law included the principle of law enunciated by the Courts as well as the statutory law.

(e) Words and Phrases---

----"Material facts"---Definition and scope.

(f) Administration of justice---

----Courts are meant for adjudication of the matters for providing relief to the litigants, resolution of the legal and factual proposition and cannot continue proceedings in the case merely for academic discussions which hardly can bring fruits for the party who approached the court.

Raja Muhammad Hanif Khan for Appellants.

Raja Gul Majeed Khan for Respondent.

Date of hearing: 2nd April, 2014.